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How Non-Muslim Democracies Engage Shari‘a: Lessons for Democratizing Muslim Nations
Abstract
After the 2011-12 elections in Tunisia and Egypt which resulted in the victory of Islamic parties, many asked whether Islamic law could be applied by democratically-elected Muslim governments in such a way that would ensure fundamental rights and liberties such as gender equality and freedom of religion. In the Muslim world, there is only one country (with 5+ mi. pop.) which both qualifies as a “full” democracy (Freedom House) and officially applies shari‘a within its legal system, that is Indonesia. One country alone is not enough to accurately analyze the relationship between democracy and shari‘a. However, there are 4 non-Muslim majority nations (with 5+ mi. pop.) which both qualify as “full” democracies and formally apply shari‘a as part of their family law systems. These are Israel, India, Greece, and Ghana. In this respect, the proposed paper will discuss what challenges these 4 non-Muslim majority nations encountered while implementing shari‘a within a democratic framework, how they went about responding to these challenges and “democratizing” shari‘a, and, what lessons (if any) Muslim nations could learn from their experiences. I define “Democratization of Shari‘a” (DoS) as abolition of non-human rights-compliant customs and practices by legal decree. The existing literature offers 3 broad explanations for how and when DoS occurs. (H1) The more secular the state the higher the DoS. (H2) The more responsive the state to women’s rights, the higher the DoS. (H3) The more the state persecutes Muslims, the higher the DoS. In order to test these hypotheses the paper develops a Democratization of Shari‘a Index (DSI) that measures the degree of liberalization of Islamic law across 42 nations, and correlates generated DSI scores with standard indicators of secularism (RAS), minority rights (MAR), and women’s rights (CIRI). The study shows that none of these accounts really is able to accurately explain why DoS occurs. Instead, it offers 3 alternative explanations: 1) The way and extent to which shari‘a is integrated into national legal system directly affects the DoS. 2) DoS seems to have often occurred as a by-product of reforms passed for the benefits of majority community. 3) Institutional rules and practices established under the colonial rule informs the extent to which postcolonial regimes have democratized shari‘a. In concussion, the study identifies a number of lessons for democratizing Muslim nations, and counterintuitively suggests that for success of democratization in the Middle East, shari‘a should be fully integrated into national legal systems.
Discipline
Political Science
Geographic Area
All Middle East
Sub Area
19th-21st Centuries