How an Islamic State Rejected Islamic Law

Abstract

How do states transitioning to democracy, including newly independent states emerging from colonialism or war, decide on their legal systems? In particular, why would a fledgling Muslim-majority state choose to uphold the legal system of its European colonial master rather than publicly enact Islamic law? Drawing on archival and interview data I gathered in Sudan, this Article shows how English common law emerged from colonialism as a default option that helped local elites bridge deep social, ethnic, and political divides. Because democratic-minded intellectuals were unable to agree on a common implementation of Shari’a (roughly translated as Islamic law), English common law provided a less satisfying but (to them) more practical basis to form a new state. Choosing common law over Islamic law allowed intra-elite conflicts, particularly among political parties and ethnic groups, to lay dormant during the transition to independence. But it also marginalized progressive Islamic jurists who had sought to create a democratic state built on Islamic principles of justice and equality. By unearthing Sudan’s remarkable legal history, this study reveals the contested nature of common law and Shari’a within Muslim-majority states. This Article ultimately demonstrates how debates over the place of religion shape democratic development and how colonial politics creates legal discourses that survive into the independent state.