More shari’a-law regimes unlikely in Muslim world

Anyone who thought that the Arab world was a monolith governed by a gaggle of interchangeable despots, divided only on whether they were hereditary monarchs or ex-military (usually a colonel) coup leaders (or their hand-picked successors), now knows that construct isn’t accurate, and never was.

The more important question for us is the impact that the stunning string of grass-roots uprisings that has toppled, and may continue to topple, some of these entrenched autocrats will have outside the countries themselves.

It may be politically expedient for any new Muslim government that replaces one that cooperated with the West and/or Israel to proclaim its independence from them and express its camaraderie with its Muslim brothers by reducing or ending that cooperation. But that is a long way from establishing a full-fledged Islamic state based on legitimately fundamentalist principles.

It is the latter that scares us, because it could very easily then include the belief in the duty to support creating a worldwide caliphate. However, to go to that extreme requires first establishing a political, economic and social system based on rules inconsistent with an urban, industrialized and globally connected nation.

The key is whether religion will end up playing a broadly dominant role. There are a variety of reasons to expect that it won’t.

Consider the role that religion itself has played in each country over the last half century or more. While Iraq now has a Shi’a majority in power, for the first time in over 1,000 years, over its historic Sunni minority, Tunisia, Egypt and Libya are all Sunni-dominant and majority nations, as is Yemen (and nearly all of the other Arab majority states).

But Bahrain has a Sunni monarchy in a Shi’a-majority country. And in Syria, some await the possible overthrow of President Bashar Assad’s secular family regime, which is part of a tiny Shi’a sect. Such a revolution could give power to the country’s Sunni majority.

Lebanon, for its part, is uniquely divided among three major religious groups — Shi’a, Sunni and Christian — and at least one sect, the Druze.

Thus, political upheavals in the latter three states would probably set off internal strife along religious lines, as it has in Iraq. But the others have no such likelihood; there the contest will be between secular, or so-called moderate, Sunni Muslims and their much more dogmatic “fundamentalist” co-religionists.

Sunni and Shi’a have been fighting with each other for most of the past 1,400 years. The schism arose originally after the Prophet Mohamed died, in 632, when one group of his followers, the Partisans (or in Arabic, Shi’a) of Ali, his son-in-law, wanted him to succeed the Prophet as leader of all Muslims, based on dynastic succession. Instead, another man, Abu Bakr, the father of Mohammed’s youngest wife, Aisha, was chosen.

The rift became religious after the Martyrdom of Hussein, one of Ali’s sons, and the belief developed among the Shi’a that their successive dynastic leaders, called Imams, have special powers as lawgivers. And since both sides do not consider the other group to be truly Muslim, and apostasy is generally considered a capital offense in Islamic law, the resulting disputes mean much more than which mosque you attend.

Shari’a literally means the path or the way. The Shari’a governs every aspect of an observant Muslim’s life, including commercial and financial dealings. Muslims believe that Islamic law is a method by which to discover God’s divine will. The Shari’a governs both the relations between man and God and between man and man.

The two main sources of Islamic law are the Koran and the Prophetic Sunna, known as the Hadith or Traditions — the sayings and deeds that can be accurately attributed to the Prophet Mohammed. The two main secondary sources of Islamic law are: ijma (consensus of the ulema, the scholars and jurists, and sometimes the entire community); and qiyas (reasoning by analogy to one of the higher sources); and additionally for the Shi’a, direct reasoning.

However, beginning with the functional replacement of the caliphates by the Ottoman Empire, in the 14th Century, and culminating with Western colonial conquests and then nation-state building from the 18th through the late 20th centuries, day-to-day widescale governance by classical Islamic law was generally replaced by various national legal systems, increasingly based upon English common law or French civil law. The Shari’a remained primarily the local law governing family and religious disputes.

A big question in each Muslim nation is whether the groups that end up in power believe that all of the national society must live according to a strict construction of classical Islamic law — a version of Shari’a. This actually only existed in Afghanistan under the Taliban.

We now have two countries where that is somewhat the case — Saudi Arabia, a Sunni monarchy, and Iran, a Shi’a theocracy. Both draw on very lengthy traditions of Islamic scholarship and devotion, and have extensive networks of conservative religious leaders in undeveloped tribal sectors. But even both of these nations have an amalgam of modern civil law and international conventions alongside strong elements of Islamic law.

So besides Iranian loud-mouthing, there is no reliable evidence to believe that either is on a path toward deeper Islamic fundamentalism. In fact, my law students from Saudi Arabia and the diplomats I have met from there give me reason to believe that there is a real trend toward modernism there, albeit at a frequently glacial pace.

So what is the likelihood of any of these countries turning to a Taliban-style government? By all accounts, very small.

For one thing, two critical elements of classical Islamic law politically and economically disenfranchise two very important segments of society: women and lenders. Saudi Arabia almost gets away with discriminating against both these groups because of its enormous per-capita oil wealth. It has not faced the economic need for women to enter the workforce in large numbers or for systemic financial engineering (yet). And the Shi’a (who rule in Iran) have never been as dogmatic as the Sunni to start with, and have a post-World War II history of semi-decent women’s rights and banking.

Neither Tunisia nor Egypt have the economics, or an overwhelming history, of Islamic conservatism. Egypt does have a great history as a fount of Islamic scholarship, but also has been a mostly secular society in its huge cities since World War II.

Libya used to have Saudi-level per-capita oil production — but not anymore — and it has a very fractured tribal society, as we have found in its insurrection against Moammar Gadhafi. Yemen is another story, but may not change its government after all. Further, it has a very large minority made up of an otherwise small sect of Shi’a Muslims, making any single coordinated religious authority taking control unlikely. Similarly, Iraq’s division among Shi’a, Arab Sunni and Kurdish Sunni should keep it from becoming a restrictive theocracy.

That leaves, among other countries, Afghanistan and, most ominously, Pakistan. All bets are still off in those two nations.

Robert E. Michael, a New York-based lawyer, is chairman of the Islamic Law Committee of the American Branch of the International Law Association; chairman of the Subcommittee on Islamic Law of the Council on International Affairs of the New York City Bar Association, and an adjunct law professor at Pace University Law School, where he teaches a course on Western corporate finance to international, primarily Saudi, law students



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