Shari’ah and quest for legal pluralism (1)

On February 72008, Dr. Rowan Williams, the 104th Archbishop of Canterbury gave a lecture to the Temple Foundation at the Royal Courts of Justice (in United Kingdom) on the subject of “Civil and Religious Law in England: a religious perspective”.

He raised the question of conflicting loyalties which communities might have; cultural, religious and civic. He also argued that theology has a place in debates about the very nature of law as “supplementary jurisdictions” to that of the civil law noting that “the issues that arise around what level of public or legal recognition, if any, might be allowed to the legal provisions of a religious group, are not peculiar to Islam: while the law of the Church of England is the law of the land, its daily operation is in the hands of authorities to whom considerable independence is granted.”

Dr. Williams looks at some misconceptions about the nature and claims of Shari’ah, including the fact that even in predominantly Muslim states there is some recognition of the Muslim’s “dual identity, as citizen, and as believer within the community of the faithful”.

“Shari’ah is not intrinsically to do with any demand for Muslim dominance over non-Muslims. Many Muslim jurists recognize a degree of political plurality as consistent with Muslim integrity.

There is a recognition that our social identities are not constituted by one exclusive set of relations or mode of belonging” – either purely secular or purely religious.

The danger arises not only when there is an assumption on the religious side that membership of the community (belonging to the ummah or the Church or whatever) is the only significant category, so that participation in other kinds of socio-political arrangement is a kind of betrayal.

It also occurs when secular government assumes a monopoly in terms of defining public and political identity.” The archbishop’s remarks were critically interpreted as proposing a parallel jurisdiction to the civil law for Muslims’ Shari’ah and were the subject of demands for his resignation.

In response, Williams stated in a BBC interview that “certain provision(s) of Shari’ah are already recognized in our society and under our law….”Williams’s position received more support from the legal community, following a speech given on 4th July 2008 by Lord Phillips, the Lord Chief Justice of England and Wales.

He supported the idea that Shari’ah could be reasonably employed as a basis for “mediation or other forms of alternative dispute resolution”.

He went further to defend the position Williams had taken earlier in the year, explaining that “It was not very radical to advocate embracing Shari’ah law in the context of family disputes, for example, and our system already goes a long way towards accommodating the archbishop’s suggestion.”; and that “It is possible in this country for those who are entering into a contractual agreement to agree that the agreement shall be governed by a law other than English law.”

The import of this article is not about the personality of Rowan Williams as a notable clergyman or about the position of Lord Phillips as an eminent jurist; it is about the institution which both of them represents – member of former British Empire.

Both remarks expressed sharp paradigm shift in history within the last one century about the role the British colonialists played in abolishing Shari’ah practice in Yorubaland through indirect rule in 1914 and the subsequent adoption of aspect of Shari’ah in 2014 under guidelines for solicitors by The Law Society.

The spread of Islam to Yorubaland was accompanied by the institution of Shari’ah(the Islamic law), and Muslims in the area applied it, alongside the Customary Law during the pre-colonial period before its abolition by the colonial government.

British colonialists, during the colonial era, used their authority to replace Shari’ah with Common Law through Indirect Rule. It identified that Shari’ah issue is contentious because of general misunderstanding and misconceptions of its origin, tenets and practices. Shari’ahen compasses all spheres of human life. It is not confined to legal matters.

It is the conglomeration of politics, economy, administration, education, socialization, religion, etc. In fact, it is all embracing. The practice of the Shari’ah therefore means the practice of Islam and vice-verse.

The two may, therefore, be regarded as synonymous in this context. The Shari’ah could be seen from the perspective of general and legal matters. Certain precepts of the Shari’ah carry the force of law while others do not.

Those precepts which carry the force of law are regarded as legal matters or precepts while others are general matters of the Shari’ah. Islam came to Oyo Empire during the reign of Mansa Musa in Mali and the subsequent proselytization of Yorubas to Muslims.

According to eminent historian, Prof. Akinjogbin in -The Expansion of Oyo and the Rise of Dahomey 1600-1800- Islam had come to the ancient Yoruba Kingdom of Oyo by the 14th century through trans-Saharan trade. Prof. Ogunbiyi asserted in – The Search For A Yoruba Orthography Since The 1840s: Obstacles To The Choice Of The Arabic Script- that the origin of the word ‘Yoruba’ has been traced to Arabic writers such as Ahmad Baba (1627 in his “mi’raj al-su’ud”) and Muhammed Bello (1837 in his “infaq al-maysur”) both of whom were reported among the earliest to name the people in Oyo as ‘yariba’, ‘yaruba’, ‘yarba’ at a time when they were still referring to themselves by their diverse ethnic identities.

The first mosque was built in Oyo-Ile in 1550. Islam was established in Iwo in 1655, spread to Iseyin in 1760, Saki in 1790, and Oshogbo in 1889 while Ibadan, Abeokuta, Ijebu-Ode, Ikirun and Ede knew about Islam before Fulani Jihad. Islam came to Lagos in 18th century while the first mosque was built in 1774 as widely discussed in – The Growth of Islam among the Yoruba, 1841 – 1908. London: Longman Group Ltd., 1978by T.G.O.Gbadamosi.

TO BE CONTINUED NEXT WEEK Engr. Dauda Ayanda (MNSE), wrote from Ibadan.