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- Publisher
- Oxford University Press
- Copyright
- © The Author(s) [2018]. Published by Oxford University Press on behalf of the American Society of Comparative Law. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com.
- ISSN
- 0002-919X
- eISSN
- 2326-9197
- DOI
- 10.1093/ajcl/avy036
- Publisher site
- See Article on Publisher Site
Abstract
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. Introduction There is much concern, particularly in Muslim-majority states and among Western governments, aid agencies, and donors, over how much influence Islamic law should have in government. Political violence in Libya after Muammar al-Qaddafi, Egypt after Mohamed Morsi and Hosni Mubarak, Iraq after Saddam Hussein, and Afghanistan after the Taliban, underscore the necessity and importance (in some circles) and the fear and vitriol (in other circles) of Islamic law.1 Debates over the role of Islam in state development also occurred in the drafting of Tunisia’s 2014 Constitution after the revolution that ousted President Ben Ali, and in the Malaysian state of Kelantan, which was long the site of a campaign to introduce strict forms of Islamic punishments.2 Western governments and human rights activists, meanwhile, are concerned about encouraging the public promulgation of strict interpretations of Shari’a.3 Their fear comes from varied sources, but with limited exceptions they seem to agree that religious principles enforced by states may be antithetical to secular human rights principles enshrined in international law, especially for the rights of women and non-Muslim minorities.4 Such contemporary debates over Islamic law in the aftermath of street revolutions or military campaigns are reminiscent of debates in the mid-twentieth century at the twilight of colonialism. At that time, democratic nationalists in Muslim-majority societies—in Nigeria, Pakistan, Senegal, Somalia, and Sudan, among other places—were contemplating what kind of political and legal systems their new countries would adopt. A similar debate took place in Israel over whether and how to adopt Hebrew language and Jewish law to replace British law inherited from Mandatory Palestine.5 Probing this postcolonial moment is useful for comparative law scholarship because the decision to maintain the dominance of English common law, and thereby to confine or abandon religious law even for a short time, was so widespread in the Global South as colonies transitioned to states.6 As the British were departing their colonial holdings in the mid-twentieth century and new national governments were finalizing post-independence constitutions, local political leaders and intellectuals were left to envision the range of ideas and structures they wanted their fledgling nations to consider. Would they choose parliamentary or presidential systems? When and how would elections take place? Who would be allowed to become citizens, to vote, to form political parties, and to govern? From where would government funding come? Would a constitution be codified (as in the United States and Canada, but not in England)? Within this array of questions lurked the thorny issue in Muslim-majority societies of what to do with Islamic law and whether to build a new government on the foundation of Western law exported to the Global South. For their part the British had not banned Islamic or customary law outright under colonial rule. Rather, for decades they established highly synthetic and discretionary systems of law in which European legal principles, techniques, and practices were superior to Islamic, customary, and indigenous forms of dispute resolution. The British integrated Islam into the colonial legal order by codifying it, albeit in an extraordinarily abbreviated fashion. Colonial administrators vigilantly managed Islamic law and placed it under tremendous jurisdictional constraints. They supervised and even funded mosque construction to build support for British rule and enable British officials to keep local populations under surveillance. They allowed a truncated form of Islamic law to apply in specially created “Mohammedan” courts presided over by Muslim judges and for Muslim claimants, where only disputes related to the family (divorce, inheritance, and the like) could be heard. Islamic law, at least from the view of the colonial state’s civil courts, was a separate and subordinate legal order and (for colonial officials) an unfortunate necessity that had to be tolerated in order to control and pacify local Muslim populations.7 In these ways, European jurisdiction over Shari’a was a central feature of colonial rule. The case study of Sudan’s transition to independence in 1956, a critical and understudied moment in British colonial and comparative legal history, offers an important lesson for contemporary political transitions. Facing intense divisions among ethnic and religious groups, the alienation of Sudan’s non-Muslim minorities, and the start of a civil war potentially derailing the democratic transition, Muslim Sudanese elites continued to apply English common law (based largely on precedent set by British judges) as the primary source of law after independence. They sidelined calls to establish a democratic Islamic state and limited Islamic law’s jurisdiction to family-related matters like divorce, exactly as the British had done.8 English common law became a default option to bridge social, ethnic, and political divides. The consensus decision to preserve and prioritize English common law also allowed elites to avoid politically contentious choices about what kind of Islamic law to adopt and about the identity of the Sudanese state. But the decision to curb even progressive interpretations of Islamic law that protected minority rights would later inflame passions and intensify calls for restrictive or absolute impositions of Islamic law, ultimately impairing Sudan’s democratic development.9 Given that British colonial administrators transferred political power at Sudan’s 1956 independence to Muslim Sudanese elites, there is ample reason to assume that the adoption of Islamic law would have been immediate. These elites came instead to reject Islamic law as the underlying basis of state law. Their actions invert traditional analyses in postcolonial comparative law. That is, rather than explaining when and how Islamic law is adopted in Muslim-majority states, this Article addresses the separate but related question of how the colonial legal status quo is maintained. Thus, the contemporary formation of Islamic law in Muslim-majority states is shaped, paradoxically, by the post-independence choices to maintain colonial and common law trajectories. The British military seized power in Sudan in 1898 from what Sudanese lawyers would later deem a “fundamentalist” government under the self-proclaimed Islamic Mahdi, or “the anointed one.” The British took immediate steps to integrate Islam into the colonial government, specifically by recognizing Islamic law in a Shari’a division of the colonial judiciary. Islamic law appeared in very limited ways and was unable to break out of the prison into which the British had placed it. But creating space—however minimal—for Shari’a courts helped to manufacture a modicum of legitimacy for the colonial project in Sudan, particularly among local elites conscripted into the enterprise and paid as colonial employees. Islam rarely touched the areas of crime or tort, which were under the purview of laws and principles imported from Britain or its other colonies, nor were Islamic principles part of the foundation or transmission of British legal thought. As independence beckoned, Muslim intellectuals, lawyers, and nationalists in Sudan reasonably began to ask: Now that the moment has come for sovereignty, should the state and society be defined more centrally by Shari’a rather than by English common law that had been at the core of the colonial enterprise? This question over whether and how to separate legal systems and choose one over another spawned vociferous debate, particularly among Muslim intellectuals with legal training.10 Islamic law and English common law had been intertwined under colonialism, as bureaucrats constructed a plural legal system palatable to both English rectitude and local ethical principles. But in the transition to democracy, those who sought a more prominent role for Islamic law were quieted and their concerns overshadowed by other political issues surrounding the transfer of political power—when, to whom, and under what conditions. Democracy-believing Muslim intellectuals and politicians largely set Shari’a aside when presented with the first opportunity to use it as the basis of a politically progressive state order. The debate over common law and Islamic law ended as the British had intended it to end, with the uninterrupted dominance of the English common law principles and legal structures that the British had left to guide their subordinates to political independence.11 Drawing on archival records I gathered in Sudan and England and on field research and interviews I conducted in Sudan with lawyers and state officials, along with secondary literature, I argue that the rejection of Islamic law arose from a specific set of political, practical, and demographic conditions that demanded that Muslim elites shelve bigger issues for smaller ones, brush aside law for politics, and muddle through a rapid change from colonialism to independence by maintaining the structures the British had given them rather than radically altering them. To outline this argument, this Article proceeds in three parts. First, I detail the place of Islamic law during the British colonial occupation of Sudan, 1898–1956. Second, I explain the calls for Islamic law among political elites at the time of independence, and the political, practical, and demographic conditions structuring the rejection of those calls. Finally, I conclude with implications of these findings for comparative law scholarship and for international policymaking and legal reform efforts, including how the restraints placed on Islam during the early post-independence period hampered the growth of progressive versions of Islamic law. Ultimately, the postcolonial history of today’s Islamic states is a legal story that begins with the marginalization of progressive Muslim jurists and Islamic law. I. Constructing Legal Subjectivity in Colonial Sudan Sudan, Africa’s largest country prior to the 2011 secession of South Sudan, experienced two major periods of colonization. During the earlier period (1820–1884) Turco-Egyptian occupiers imported the Hanafi school of Islamic (Sunni) law to govern the region. During the later period (1898–1956) British civil servants administered Sudan, using Egyptian financial and military support. Sandwiched between these two colonial eras was a fifteen-year experiment (1884–1898) in independent rule under the self-proclaimed Mahdi (“anointed one”) and his followers. The first colonial period, under Turco-Egyptian occupiers, is notable because it was the first time that a foreign power imposed a central administration in Khartoum and extended a centralized legal order across a vast geographic space. Before this time, disparate Muslim communities living in northern Sudan had been governed largely by Maliki schools of Islamic law, which drew from the experiences of diverse local community leaders as they interpreted Shari’a and ‘urf (customs) in and for their localities. But Turco-Egyptian occupiers sought to impose a sweeping and singular version of Islamic law, rooted in the Hanafi school, to centralize political and legal power and supplant local Maliki norms. In this way, the first curtailment of Shari’a in Sudan occurred not under the British in the twentieth century, but a century earlier under a foreign power of Muslim occupiers—a Turco-Egyptian administration that imposed the Hanafi school of Islamic law to centralize authority over the Sudanese people.12 With Egyptian military support, the British in 1898 invaded Sudan and toppled the nationalist Mahdi regime that itself had seized power from the Turco-Egyptian colonial administration. The British would govern what they called the Anglo-Egyptian Sudan for nearly sixty years before departing as the Sudanese were declaring independence on January 1, 1956. (Sudan was the first sub-Saharan country in Africa to gain independence from the British.) During those sixty years before the 1956 independence, the British maintained the Turco-Egyptians’ project that recognized but compartmentalized Islamic law. The centerpiece of the colonial enterprise was a state legal system.13 Almost immediately upon their arrival in 1898, the British began to build up a state infrastructure by using legal tools they fashioned for themselves—drafting codes, building courts, overseeing mosque construction under a colonial Legal Department, creating an administrative apparatus to receive and process grievances, and devolving some authority to local religious or community elites.14 Similar to their activities in other colonies with substantial populations of Muslims, the British created a two-tiered legal order, Islamic and non-Islamic.15 The British formalized and institutionalized the two legal tiers—common law and Islamic law—into distinct divisions of the colonial judiciary: the civil division and the Shari’a division. It would have been more expedient to impose English common law and ban Islamic law outright, rather than institutionalize legal plurality. But the prominence of Islam in northern Sudan meant that outlawing Shari’a would have cost the British a great deal of local support. Instead, the British refashioned Islamic faith principles and norms into state law—reifying them as part of the colonial apparatus.16 They codified Islamic law in order to control it; this process of “centralization, codification . . ., bureaucratization, and jural homogenization . . . constituted the backbone of the modern state project, shaping any surviving aspects of Shari’a in Muslim-majority countries.”17 The British hoped to reduce the likelihood that Islamic nationalism would be a political rallying point against them, as it had been for the Mahdist army in their 1884 fight against Turco-Egyptian occupiers. Starting with their 1898 occupation of Sudan, the British trained and then integrated local Muslim elites into the routine work of the administration, particularly by involving them in the administration of justice and as part of a broader strategy of indirect rule.18 To curry favor with Muslim elites in Khartoum, the British also made Friday the official weekend holiday beginning in 1910. The British claimed success in bringing Islamic legal principles and Muslims into the colonial project in Sudan, particularly after displacing a national government deriving its authority from Islamic principles. To be sure, not all elites were part of the colonial system and the poor had limited access to the colonial regime. Diffuse customary laws made and interpreted by local sheikhs, sultans, and other authorities governed the behaviors of many of these persons. However, five primary reasons, outlined below, explain northern Muslim Sudanese elites’ acquiescence to and public support of the British colonial administration’s legal order that marginalized Islam. First, legal formalism mattered. Attorneys I would meet decades later in Sudan told me that the veneer of formalism that they observed in colonial courthouses helped to steer them toward English common law and careers in the legal profession. Echoing comments from other lawyers and judges I met, one of Sudan’s most prominent attorneys told me why he joined the bar in the 1950s: The appearance of the law being enforced, the court, the bench, the accused box, the witness box, the policeman, the quietness . . . the appearance of the judge, the respect. All that impressed me. The . . . dignity of law was [quite] apparent. The judges had robes and wigs at the time, in the English tradition.19 A former judge and government minister told me of his family’s acceptance of his decision to pursue a law degree in the 1950s because, during the colonial administration, being a judge for the bureaucracy “was a very respectable post.”20 The formalism embedded in the English common law tradition shaped people’s perceptions of law and courts—sidelining Islamic law’s connection to the state. It attracted local Muslims to use and even to join the colonial system as magistrates and subordinate officials. Their continued work within this system began to tie Sudan’s colonial courts to the country’s transition to democracy. Second, and related to formalism, common law procedures mattered. Repeated interactions based on a common set of procedural rules reinforced the relationship between governors and their governed. The British exposed the Sudanese to a legal system constituted not only by substantive rules and legal doctrine but also by routine processes and bureaucratic techniques. These procedures needed to be followed to express grievances and seek resolution of disputes. Observing them facilitated access to the colonial administration and its structures of order—ultimately helping to secure a claimant’s subordinate place in the hierarchy. These repetitive and patterned interactions with colonial institutions shaped the relationship between colonial administrators and their subjects who learned to access the administration and resolve disputes through the procedures that colonial administrators manufactured to protect their political authority and influence. The British colonial administration in Sudan heard on average 45,000 cases per year between 1910 and 1952, the years for which data are available (Figure 1). About a quarter of these were cases brought by Sudanese Muslims to the Shari’a division of the judiciary—equivalent to more than 10,000 cases annually. These recurrent interactions between colonial subjects and the state, as individuals accessed courts, helped to stabilize and legitimate the colonial regime’s influence and maintain the state’s (limited) application of Shari’a. Indeed, the colonial administration created a system that demanded access, which led to increasing uses of that system. The bureaucratic formalism of common law courts helped to build up both the colonial enterprise and the sovereign state that followed. Figure 1. View largeDownload slide Total Cases in Anglo-Egyptian Sudan, 1910–1952 (Non-customary Court Cases, Including Summary Convictions, by Year). Source: Compiled by the author using government data from each Annual Report of the Finances, Administration and Condition of the Sudan, 1910–1952. Note: Data are interpolated for missing years when the Sudan Political Service did not record case events, mainly during World War I. See alsoMark Fathi Massoud, Law’s Fragile State: Colonial, Authoritarian, and Humanitarian Legacies in Sudan 77 (2013). Figure 1. View largeDownload slide Total Cases in Anglo-Egyptian Sudan, 1910–1952 (Non-customary Court Cases, Including Summary Convictions, by Year). Source: Compiled by the author using government data from each Annual Report of the Finances, Administration and Condition of the Sudan, 1910–1952. Note: Data are interpolated for missing years when the Sudan Political Service did not record case events, mainly during World War I. See alsoMark Fathi Massoud, Law’s Fragile State: Colonial, Authoritarian, and Humanitarian Legacies in Sudan 77 (2013). Third, British anti-corruption measures helped to generate support for the colonial common law system among the Sudanese intelligentsia. Colonial accounts reveal that Sudanese people had been familiar with the Turco-Egyptian colonial administration’s unsuccessful attempts to deal with graft. In one account of British involvement in nineteenth-century Sudan, the cabinet council is said to have pleaded with the Governor General (the administration’s chief political officer) to investigate alleged corruption by a provincial governor in Kordofan. The council insisted, “Do not permit injustices towards the people and do not overpass the law.”21 Aiming laws at colonial personnel evidenced some seriousness on the part of the British to promote at least weak forms of the rule of law in colonial Sudan. Fourth, Muslim Sudanese effendiyya (urban, educated intellectuals) themselves enhanced the perceived legitimacy of English common law by participating in British efforts to promote land reform. The first legal act of the Sudan Political Service (SPS) in 1898 shortly after the British invasion of Sudan was the institution of a land registry to resolve ownership disputes. This registry was followed by the development of public agencies and courts meant to resolve other disputes. Maintaining stability, especially in and around urban areas, was essential to the colonial project, and enforcing the common law was the means by which that stability would be maintained. Fifth, the British created an elite class of professionals to serve in the administration by educating them in the law and prioritizing English common law. The Gordon College Sheikhs’ School opened in 1906 to train future qadis (judges) of the Shari’a division’s courthouses. But in 1936, the British opened a larger School of Law at Gordon College.22 The new law school’s goal was to bring more Sudanese into the administration, through common law training outside of the narrow jurisdiction the British had created for Islamic law. The law school sought to achieve this goal by selecting small groups of high-performing young Muslim Sudanese men for study; no more than six to ten entered the law school every two years. They would learn the common law, graduate, and take up subordinate posts in the colonial administration. The best among them were sent to work in the Legal Department. According to Lord Kitchener who led the 1898 invasion of Sudan, the “need for such a class” of “subordinate” employees was “severely felt,” especially early in the colonial administration.23 It was from this elite cadre of common law trained Sudanese persons that emerged the political leaders who would later agitate for Sudanese independence and democracy. For instance, the School of Law’s first graduating class in the late 1930s included a future prime minister, attorney general, and chief justice.24 They served the colonial administration, benefited from their training and employment within it, and then fought for its departure.25 They would help decide the political and legal structure that the sovereign Sudan would take. While independence was certainly a complicated project with myriad political actors involved, among the important and lasting choices Muslim Sudanese lawyers would make would be whether to build the new democratic state on the foundation of received English common law principles (increasingly layered with Sudanese norms) or on the foundation of Islamic legal principles, which the British had allowed Muslims to use only to resolve family, or personal status, disputes. II. Calling for Islamic Law in Early Postcolonial Sudan Sudanese political elites charged with transitioning the country to democracy in the 1950s decided to maintain the British-instituted division between English common law and Shari’a in the judicial branch of government. Shari’a would continue to be confined to the field of family law. A vocal minority of jurists, however, advocated expanding the jurisdiction of Islamic law to encompass contracts, property, crimes, and other areas of law beyond family-related matters for Muslim litigants. Data I was able to gather in Sudan are limited, but I have uncovered historical documents written by Sudanese intellectuals calling for a progressive and democratic government based on Islamic law. For instance, a former grand qadi under the colonial administration (and, later, a justice of Sudan’s Supreme Court), Hassan Muddathir, announced his endorsement of “the enactment of a Sudan constitution derived from the principles of Islam.” Drafted in the style of a legal memorandum, his pronouncement was published in November 1956, less than a year after Sudan’s independence. It was written in English, the language of Sudanese law at the time (the language of the Sudanese people was Arabic), indicating its intended audience of intellectual and political elites. Muddathir also declared Sudan to be “an Islamic country” and appealed to the Sudanese to reconsider the state’s continued use of common law imported by British colonialism, saying that supporting Western law would “encourage people to sip wines and commit adultery, both of which are prohibited by Islam whose principles have been adopted by our people.”26 Other Sudanese intellectuals, including legal scholars and Muslim Brothers (including its most prominent and vocal leader, Hassan al-Turabi), similarly worried that Sudan’s reception and expansion of English common law would facilitate moral decay and conduct antithetical to the tenets of Islam.27 Muddathir and his supporters’ claims are remarkable because they would prophesy the rise of regional Islamic activism involving groups like the Muslim Brothers. Their claims are also extraordinary for their content, reach, and intended audience. Just as the jurist and philosopher of Islam, Abu al-A’la al-Mawdudi, would do later in Pakistan, Muddathir proposed a democratic and Islamic state for Sudan built on principles of equality for religious and other minorities.28 Muddathir went to lengths to cite Hadith (Islamic prophetic teachings) that “the People are equal like the teeth of a comb” and that “an Arab is no better than a Persian, and the White is no better than the Black, except by virtue of his creditable deeds. All people are related to Adam, and Adam was made from the soil.”29 Turning to Islamic principles of equality before the law, Muddathir called for a progressive and democratic legal system consistent with Islamic faith principles. His vision was of a nation in which citizens of faith practiced their religious beliefs freely. It also entailed state-enforced protections for religious minorities living in Sudan, primarily Christians and Jews.30 The Muslim Brothers would not gain popularity until the mid-1960s, more than a decade after these calls for an independent, democratic state rooted in Islamic principles of equality and rights. The question of why that group’s vision of Islamic law arose a decade after independence is interesting. It has been argued that President Nimeiri’s 1969 coup was meant in part to put an end to growing unease around state development of Islamic law. But equally confounding is why the claims like those from Muddathir—appealing to progressive Muslim professionals—arose and were dismissed more than a decade earlier, at independence. Like Muddathir, Sheikh Mudathir Elbushi, an early minister of justice in postcolonial Sudan, publicized his concerns about the folly of the common law enterprise. Elbushi argued that English common law “was not intended for the betterment of the Sudan . . . or its progress but rather [was] aimed at killing the national feelings of the people,” a sentiment that Muddathir shared.31 In this way, elites sought to demarcate Sudan’s postcolonial past from its sovereign future by manufacturing a fictive boundary between English common law and religious law, just as the British had done. Others in the debate over Islamic law questioned “who has the authority to speak on behalf of Islam” and demanded a clear separation between religious and state authority.32 This separation entailed rejecting Islamic law as the primary source of state authority and instead constructing a Sudanese common law on the basis of British principles. These principles imported from Britain would be layered with Sudanese norms and sensitivities, as judges increasingly developed and cited to their own, rather than to foreign, precedent. Many in Sudan’s Sufi religious orders and democratically oriented political parties shared the belief “that Islam should play a central role in Sudanese Muslim society and as a principal source of legislation.”33 While they believed in “Islamizing” state and social institutions in Sudan, they sought out a state that would use Islam as a guide for democratic legislation rather than an Islam “enshrined in any permanent Islamic constitution” as the Muslim Brothers would later seek.34 III. Shaping the Choice for Common Law: Political, Practical, and Demographic Conditions Despite calls to expand the jurisdiction of Islamic law among important religious, political, and legal elites in Sudan, and despite widespread acceptance of Islamic legal principles among Muslims in the country, Islamic law continued to be marginalized by the state at independence and for decades afterward. That is, in the face of dramatic political change in the transfer of power from British administrators to Sudanese political elites, English common law remained unscathed while Islamic law floundered. Why? This Part elucidates three conditions animating Sudan’s choice for common law, and its concomitant isolation of Islamic law: political, practical, and demographic. Together, these three factors contributed to Sudanese elites’ attachment to English common law and prevented substantive legal changes during the country’s early postcolonial period. A. Political Plurality and Religious Divisions Intellectuals in Sudan disagreed over the extent to which Islam should structure politics after the British departure, making it more expedient for the state to maintain the status quo: a truncated form of Islamic law developed by the British to preside over family disputes among Muslims. In the run up to Sudan’s independence, the boundaries between various political and religious groups—including Western-style democratic secularists, communists, Sufi religious movements, and the Muslim Brothers—were complicated and blurred.35 Each of these groups was primarily centered in and around the capital city, Khartoum, and each had a distinct relationship with colonial authorities. But the political groups they formed distinguished themselves by their relationships with Egypt. The Unionist Party, or itihadiyya—controlled by the Mirghani family, which led the Khatmiyya Sufi order—strove for unity with Egypt. The nationalist Umma Party, or qawmiyya—controlled by the Mahdi family, which led the Ansar religious movement—envisaged a sovereign Sudan free from its northern neighbor.36 The Ansar movement and nationalist Umma Party were closely aligned with British colonial authorities who wanted to forestall the Khatmiyya’s proposed unification with Egypt. (These two religious movements and their respective political wings have remained major players in Sudanese politics since independence.) Other groups, including the Sudan Communist Party and the Muslim Brothers, had vocal, but comparatively smaller, followings than the unionist and nationalist parties’ popular followings.37 Institutional inertia facilitated by rivalries between the Ansar and the Khatmiyya religious movements during Sudan’s transitional period prior to independence (1953–1956) helped to lead the country to maintain the common law—and, thus, a secular vision of the state that subsumed and managed Islamic law—as the British had sought. Those in the Khatmiyya who were against the idea of an Ansar-led state were at least tacitly supportive of the secular ideal if it meant the Ansar—whom the British saw as most suited to implement a Western-style democracy—would not hold power. To the Khatmiyya, “any regime, even a secular one, [seemed] preferable to [another] Mahdist Islamist state.”38 Democratic secularism and English common law rules became the British-supported compromise to stave off the possibility of civil war entering Khartoum if rival groups could capitalize on political divisions between the Ansar and the Khatmiyya. Opposed to the annexation of Sudan to Egypt, the British rushed the Sudanese to accept self-government and independence. In this haste many debates, including over the role of Islam, were left unresolved or percolating. At times the Ansar and the Khatmiyya fended off political stalemate by adopting power-sharing agreements or plurality governments. However, more often their inaction led to legislative impasse, which facilitated military coups shortly after each time they took power. (These coups took place in 1958, 1969, and 1989.) The question of what to do with Islamic law was shelved each time in order to confront these other issues of governance and the survival of the nascent state, particularly in the face of the more immediate issue over whether to unite with Egypt. Britain was not supportive of religious parties as such; they (along with the Ansar leadership) expressed concern over the Muslim Brothers, then a small group of intellectuals and their followers.39 The rejection of an Islamic state and the choice for common law, then, became a default solution at Sudan’s independence. During Sudan’s three short-lived postcolonial democratic experiments (1956–1958; 1964–1969; 1985–1989), wedged between the country’s lasting authoritarian regimes, the nationalist Umma party (Ansar) and the unionist party (Khatmiyya) disagreed over the details of running the country, leading to stalemate and an inability to pass meaningful legislation. However, with some influence from countries in the region, the political rivals did discuss how Islamic principles might be integrated into their country’s legal and political system. With support from the Muslim Brothers, in 1957 they laid out the details of a more Islamic state and instituted a five-year period for “Islamization” of the law.40 Their efforts were cut short, however, the following year (1958) by a military coup that would keep them out of power until 1964. When the Ansar and the Khatmiyya returned to power after their joint involvement in an October 1964 street revolution, their myriad political disagreements revived, leading to further legislative deadlock. Any efforts to Islamize Sudan were curtailed by another coup, this one in 1969 by General Jafaar Nimeiri who would maintain power until 1985.41 The two parties never went so far as to call for the same kind of Islamic state that the Muslim Brothers demanded, with corporal criminal penalties for alcohol consumption and the like. (As President, Nimeiri would institute this brand of Islamic law in 1983 in a last-ditch effort to maintain national stability in the face of economic crisis.) Politics no doubt intervened in the legal choices made in postcolonial Sudan. Nimeiri’s 1969 coup in particular was meant to put an end to the more vigorous talk of an Islamic state that emerged over the previous decade. But Nimeiri himself was not immune to the lure of the law. In the 1970s he revised Sudan’s state legal system from common law to civil law as part of his attempt with Egyptian President Nasser to create a pan-Arab state. The Egyptian and Sudanese presidents sought to align Sudanese law with Egyptian and Libyan civil law as the first step toward merging the countries. The unification process failed when fervor for annexation to Egypt quieted in the mid 1970s, as civil war was restarting in southern Sudan, and as Sudan’s common law trained lawyers and judges refused to accept the procedural changes Nimeiri had sought for the country’s courts.42 Supporters of Sudan’s common law heritage vociferously complained about the sweeping changes. Speaking in 1972 against the adoption of the civil law system, the former dean of the University of Khartoum Faculty of Law, Zaki Mustafa, wrote that “any [legal system] which fails to reach the hearts of those whose relations it purports to regulate, because it does not respond to their needs and does not emanate from their history, culture and traditions, is a bad [legal system].”43 Common law was so entrenched in Sudanese law that when changes were afoot, lawyers immediately advocated for common law, against the civil law plan. President Nimeiri lost political capital following his dramatic changes to the legal system and unsuccessful unification bid with Egypt. To regain that capital, he spearheaded in the 1970s what his administration called a “national reconciliation” with Sudan’s major political parties. The reconciliation quickly failed, however, as Nimeiri lost favor with the parties affiliated with the Ansar and the Khatmiyya religious movements. Despite his distrust in the Muslim Brothers, Nimeiri was left to turn to them for support after the national reconciliation failed.44 Led by the jurist, activist, and legal philosopher Hassan al-Turabi, the Muslim Brothers used this political opportunity to cultivate a strategic relationship with Nimeiri. They joined his administration and the government soon translated all Sudanese laws from English to Arabic (a decision long avoided by Sudan’s common law trained lawyers accustomed to operating in English). Nimeiri continued to lean on the Muslim Brothers for political support as his disastrous economic policies led to hyperinflation in the late 1970s and early 1980s. With support from the Brothers, Nimeiri in 1983 proclaimed the source of all legislation in Sudan to be Islamic law—seemingly to divert the nation’s attention from its economic woes. His regime then changed Sudan’s criminal code to take on a strictly conservative interpretation of Shari’a, including corporal penalties for huduud (literally, “borders”) offenses.45 Nimeiri’s political choice to adopt strict Islamic punishments grew out of his relationship with the Muslim Brothers and the country’s long history of sidelining Islamic law. B. Practical Realities in the Legal Profession In addition to political rivalries among religious movements, and between these groups and Sudan’s authoritarian regimes, practical realities within the Sudanese legal profession also structured the continued acceptance of common law, and political rejection of Islamic law, during the first decade after Sudan’s independence. That is, many lawyers and judges felt it was simply not sensible to overhaul what they saw as an independent and smooth-running legal system at such delicate political moments as the transition to and preservation of self-rule. Many had also maintained connections with British lawyers, including by traveling to Britain for graduate law degrees or by inviting British lawyers to serve as consultants in Sudan’s postcolonial legal development. Common law allowed Sudanese legal professionals to draw on broad principles and norms, and to apply them to the distinctive facts of each dispute. Judges who sought to maintain the common law saw it easier to adapt common law to Sudan’s experiences than to build up a new system from scratch, or to enlarge the jurisdiction of Islamic law beyond private family matters.46 They would integrate Islamic law into Sudanese law if that was the natural progression of allowing common law to take its course. Galal Ali Lutfi, who would later become President Bashir’s first Chief Justice (head of the judiciary) after Bashir’s 1989 military coup, was in the 1960s among the strongest proponents of maintaining English common law in Sudan. Lutfi argued publicly that Muslims did not want Islamic jurisprudence to extend outside the realm of family law.47 Responding in 1967 to the question of the future role of English law in Sudan, he remarked rhetorically, “Is there any need for a change?” His claim was that a “small minority” sought change, but that “nearly all the lawyers in the judicial and teaching professions in the country” supported a continuation of common law, not only because they were trained in it but also “because they knew from their long experience that it is the most suitable law which can be modified to meet our requirements.”48 Muslim Sudanese jurists like Lufti saw English common law as a legal system that, over time, would become “Sudanized.” Though Muslims, these lawyers and judges did not feel a need to jettison Sudan’s colonial common law heritage and replace it with Islamic law. Judges of the High Court were resolving dozens of disputes each year and, along with lower court judges, they were adapting English common law to Sudanese disputes as judges interpreted and applied precedent to new cases they heard. Institutional inertia in the legal profession plagued the decision to maintain English common law in Sudan. Principles and practices from the English legal system were already entrenched in Sudan’s well-functioning judiciary. Going back on its rules or substantially changing or curtailing the sixty years of work of the judiciary would have been too disruptive for judges and lawyers who were well versed in it. English common law first entered Sudan by way of early colonial legislation. In 1900, the British in Sudan drafted the civil justice ordinance, which became the legal basis for civil-division judges and magistrates in Sudan to use English common law. Revised in 1929, section nine of the civil justice ordinance endowed these judges with the authority to “act according to justice, equity, and good conscience.”49 The breadth of these terms meant that where no suitable colonial legislation was available, judges in Sudan applied English precedent to the cases they heard. This “justice, equity, and good conscience” clause of the civil justice ordinance formed “the most important single provision in the [colonial] law of the Sudan.”50 It would become the basis of Sudanese property, tort, and contract law.51 In his ambitious book on Sudanese legal development until 1969, Zaki Mustafa uncovered how Sudanese judges ruled with “excessive resort to, and reliance upon, English books and treatises.”52 Court decisions were continuously “influenced by the views expressed in an English book on the subject.”53 Common law was so ingrained in the minds of Sudanese judges that they applied “principles of common law without [even] describing them as such.”54 British norms of “good conscience” guided judicial sensitivity to Sudanese customs and behaviors.55 As Sudanese judges trained at Gordon College and at law faculties in the United Kingdom applied these norms to new disputes by adhering to precedent, the Sudanese themselves began to cement British norms into Sudanese law. The idea was that English common law would guide judges and magistrates throughout Sudan. Over time, judges would cite to Sudanese precedent rather than the original British ruling, thereby applying a Sudanese veneer over the foundation of Western law. To a large extent the Sudanese judiciary succeeded in integrating English common law into Sudanese law, just as the British had done. But the project was imperfect. High Court judges at times went to lengths to distinguish between British rulings and Sudanese legal conclusions, particularly in property disputes.56 However, as the total number of annual cases in the Sudanese courts held steady, the number of citations to Sudanese cases rose from fifteen per year between 1946 and 1956 (the last decade of the colonial administration) to over fifty per year in the decade that followed (the first decade following independence).57 Mustafa summarized the work of Sudanese judges in the early post-independence period: “Although English law still remained the hard core of Sudanese law and still reigned supreme in most respects, the attitude of the courts [could] no longer be described as one of strict adherence [to English law].”58 In these ways the British largely succeeded in obtaining acceptance of English common law among Sudanese legal elites who saw it as the foundation of Sudanese common law. After independence, Sudanese lawyers and judges grew increasingly accustomed to the idea that they were applying Sudanese, not English, law. The idea of manufacturing a revised legal order according to Islamic law, then, was largely moot to many of them, since doing so could also have been a natural progression in the development of a Sudanese common law. In 1973 Zaki Mustafa articulated a series of reasons why he felt the Sudanese government should not have abandoned the country’s common law heritage in Nimeiri’s failed bid to annex Sudan to Egypt. Although communicated in the context of Nimeiri’s choice for civil law, Mustafa’s concerns also provide insight into why common law was not discarded or replaced by Islamic legal principles after Sudan’s independence. These include the practical issues of legal training in different systems, the extent to which justice could be administered in a new system, the lack of Sudanese sources for the change, and the implications of the change for non-Muslim or non-Arab minority populations living in Sudan.59 A sudden overhaul of the legal system may have also sent the judiciary, which relied on building Sudanese law on the foundation of English common law, out of control. The legislature stalled quickly after independence due to political fighting among the democratic parties and their followers. Legislative impasse led to Sudan’s first coup in 1958, just two years after independence. The judiciary, however, remained remarkably stable during this early period, continuing to operate in the same independent and formal manner that British officials had intended, with limited intervention from legislative and other elites.60 At least during the first decade after independence, common law was entrenched in Sudan’s judiciary, while Islamic law—including progressive and democratic interpretations of Islamic law—was sidelined. Legal professionals championed the common law, and even those who did not support the common law knew it was flexible enough that it could be reconditioned to incorporate new Sudanese forms of law. The colonial mindset was one that took decades to instill; decolonizing the law would have to be a gradual process if it were to be one at all.61 C. Demographic and Geographic Stratification That Sudanese elites were part of “Westernized” classes meant that they were less likely to abandon the skills of common law interpretation and English rhetoric that they were perfecting.62 Young Sudanese men used their English language skills to gain entry to the legal profession. “The law want[ed] good English and good Arabic,” one lawyer told me of the reasons he joined the legal profession a half century earlier, “because at that time we were a British colony.”63 Other lawyers did not want to alienate their European law professors under whom they had studied for law degrees in Sudan and, later, for advanced degrees in the United Kingdom. “I felt a great responsibility … not to put [my British professor] in an embarrassing situation. I must work hard and earn my [common law] degree,” one former senior judicial official told me of his experience pursuing an advanced degree in Britain prior to returning to Sudan.64 While much of Sudan’s Muslim intelligentsia belonged to a Sufi order, they were also educated by the British and “taught to regard” their religious norms as “old-fashioned and undemocratic.”65 Sudanese elites desired what they would continually tell me was a “modern” legal system; maintaining the common law (and restraining Islamic law’s influence) was the operative mode of modernity.66 To advocate a more prominent role for Shari’a in government would be to repudiate decades of British teaching in Sudan and, thus, to be anti-modern. These ethnic, linguistic, and other demographic divisions in Sudan, particularly among Muslims in northern Sudan and between northern and southern Sudanese, created a considerable obstacle for those promoting Islamic law.67 While Islam was “toyed with” early on by proponents of the Ansar and the Khatmiyya in Khartoum, non-Muslims outside of Khartoum—many of whom relied on diverse customary laws and norms to resolve community disputes—were much less keen on the idea of an Islamic state.68 That is, divisions between Khartoum and areas with comparatively less political power—the Sudanese south, east, and west—also shaped the choice to maintain common law and eschew Islam.69 Divisions among Sudan’s Islamic movements, their respective political wings, and other intellectuals were a layer over these broader demographic and geographic splits between northern and southern Sudanese. The British policy of “closed districts” allowing Christian missionaries to focus their attention on southern Sudan meant, for some, making Islamic law impractical as national law, particularly with Sudan’s first civil war beginning months before the nation’s independence. In the face of protracted civil war, minorities from southern Sudan and elsewhere were consistently mistrustful of promises of protection under an Islamic system.70 This social, political, religious, and ethnic plurality meant that few factors could unify the Sudanese after their 1956 independence, except the shared experiences of living under colonialism and resolving disputes under English common law and its limited toleration of Shari’a.71 (Though predominantly non-Muslim, South Sudan after its 2011 independence unsurprisingly also selected English common law as the primary source of its legal system—a choice nearly all former British colonies have also made.72) Conclusion Law is one component in the broader political machinery that manufactures the state’s legitimacy, including police powers, national defense, and public welfare spending. But the state’s legal order is also its backbone. Providing judges, courts, and other dispute resolution services to citizens is critical to governance and the rule of law. Doing so lends states both internal credibility and external legitimacy, in addition to facilitating political development, territorial expansion, and wealth or status accrual through foreign investment—all while enhancing control and surveillance over citizens.73 The choice of legal system and the role of courts, then, are central to governance matters, particularly in new states or those emerging from political violence or repression. This Article has uncovered a critical moment early on in the debate among Muslims over whether to choose Islamic law or common law in democratic constitutional development, and the political and social conditions structuring that debate. But this question of the role of Islamic law in political life must not be relegated merely to Sudan’s postcolonial moment or even to postcolonial comparative law scholarship. A 2013 Pew Forum poll found that 99% of Muslims in Afghanistan, 89% of Muslims in Palestine, and 74% of Muslims in Egypt wanted Shari’a “to be the official law of the land.”74 A 2011 Foreign Policy article cited half of Egyptian men and nearly half (44%) of Egyptian women favoring Shari’a as the only source of law. Debates over the source of legal order and the various interpretations of Shari’a have not quieted since the mid-twentieth century. They have instead increased in intensity, as progressive Muslim intellectuals in the diaspora engage with human rights principles while new social movements in Muslim-majority countries confront local political realities and adopt increasingly distinct visions of Islam in political and legal life.75 The decision in Sudan to leave common law largely intact as the British had left it for the Sudanese was a political and a practical one. While not obvious at the time given the colonial bureaucracy’s inertia following independence, the decision helped to alienate growing numbers of Sudanese elites who sought a deeper connection between Islam and the state, including both politically progressive and politically conservative elites interpreting how that connection would be made. The most prominent, vocal, and determined leaders of the Muslim Brothers were also legal professionals. They were transformed by both their close relationship with President Nimeiri and the charismatic leadership of Hassan al-Turabi, a lawyer and former dean of the University of Khartoum Faculty of Law. Distressed by decisions in the 1950s and 1960s to maintain common law, their efforts sought to recapture what they felt was both intrinsically Sudanese and lost in the choice for common law. By the 1970s, some Muslim judges in Sudan began to resign, citing an “uneasy” feeling from applying “Western law” in Sudan.76 Legal realist explanations of the adoption of English common law are not as simple as conventionally assumed—namely, that postcolonial societies are pushed to accept Western legal models with little domestic agency. Intellectuals in these societies were instead actively engaged in debates to determine the best course of action. In Sudan, the “victory of the nation-state” that arrived with independence in 1956 also brought with it a “disciplining [of] Islamic law.”77 As the Sudanese achieved independence and chose to restrict Islamic law in the manner that the British had intended for its former colony, something still happened to Shari’a at the same time. Its various interpretations—progressive, moderate, conservative, restrictive—were concealed under the broader political cloaks of sovereignty, legal practicality, and continuity for Khartoum elites who sought to achieve the promise of democratic governance. The quieting of progressive and democratic visions of Islam in particular does not seem to have begun with modern political Islamism in the 1970s; it began instead decades earlier during the struggle against colonialism and on the eve of independence. Similarly, political debates and decisions over what to do with Islamic law in contemporary Muslim-majority societies—including Tunisia, Libya, Iraq, Afghanistan, Egypt, and Somalia—will continue to have ramifications decades from now. This Article has called attention to how the seemingly innocuous choice to maintain English common law in former British colonies may have stunted the development of progressive Islamic law. Three areas of future research would add to this debate. First, additional examples from governments with European colonial legacies—for instance, in Nigeria, Pakistan, Senegal, Somalia, and Somaliland (formerly British Somaliland)—would shed light on decisions taken outside Sudan and the political, practical, and demographic conditions that animated religious law’s subservience to or dominance over European law. Second, continued research is needed to document the extent to which colonial administrators in these places expressed support for or distaste of postcolonial legal systems and constitutions adopting Islamic or other forms of transnational law. Finally, new studies might further illuminate how the distinction between taqleed (blind reproductions of tradition) and ijtihad (personal legal reasoning and interpretation) undergirds these debates over the power of Islamic law and efforts to create a “positive” Islamic law built upon Western statist conceptions of law.78 By incorporating Shari’a into colonial law, in however restricted a fashion, British colonial officials implemented a vision of law that made religion paradoxically both integral to the legal order and indentured to secular common law. Many nationalists acquiesced to the foreign laws and procedures imported by their colonial masters, giving foreign-imposed common law primacy over local formulations of religious and customary law. But some of these nationalists disavowed the common law and instead put forward a vision of a democratic Islamic state that would protect religious freedom, promote nondiscrimination, and ensure equality before the law. However, in Sudan this diverse and progressive view of Islam was eschewed in favor of maintaining the legal and bureaucratic order handed over by British colonial officials. The much-debated role of Shari’a in the twenty-first century, especially in societies confronting legacies of political violence, cannot be understood without framing the debate within the political history of colonialism and the decision to maintain common law in the immediate post-independence period. The fact that Shari’a was so restrained, and so compartmentalized, has added fuel to its more conservative and restrictive interpretations, as demands intensify to unite religion and the state once and for all. The political, practical, and demographic conditions animating the early choice for common law continue to shape the foundation upon which Islamic law rests in former British colonies today. Footnotes 1. See, e.g., David D. Kirkpatrick, Into the Hands of the Soldiers: Freedom and Chaos in Egypt and the Middle East (2018); Zaid Al-Ali, The Struggle for Iraq’s Future: How Corruption, Incompetence and Sectarianism Have Undermined Democracy (2014); The Rule of Law in Afghanistan: Missing in Inaction (Whit Mason ed., 2011). 2. Riding a Tiger: A Floundering Government Indulges Calls to Toughen Islamic Law, The Economist, Apr. 4, 2015, at 35. 3. Per the Bluebook citation system and the in-house style of the American Journal of Comparative Law, this Article transliterates, capitalizes, and does not italicize Shari’a. Simple apostrophes are used to represent diacritical marks for the Arabic ‘ayn, as in Shari’a; nisba endings are rendered “–iyya,” as in effendiyya, per the International Journal of Middle Eastern Studies (IJMES) transliteration system. This Article also uses Shari’a and Islamic law interchangeably. While there are some similarities between Shari’a and Western legal systems, Shari’a is a complex set of personal beliefs, community approaches, and legal principles that runs much deeper than statist conceptions of law in the global West. See, e.g., Wael B. Hallaq, What Is Shari’a?, 12 Y.B. Islamic & Middle Eastern L. 151 (2007); Shahab Ahmed, What Is Islam? The Importance of Being Islamic (2015); John L. Esposito & Natana J. DeLong-Bas, Shariah (2018). On the lived experience of Shari’a, see Mark Fathi Massoud & Kathleen M. Moore, Rethinking Shari’a: Voices of Islam in California, 5 Boom J. Cal. 94 (2015). 4. Legal and religious systems support diverse interpretations, and Shari’a is no exception. For alterative views on the relationship between Islam and human rights, see Abdullahi An-Na’im, Toward an Islamic Reformation: Civil Liberties, Human Rights, and International Law (1990); Mashood A. Baderin, International Human Rights and Islamic Law (2003); Ann Elizabeth Mayer, Islam and Human Rights: Tradition and Politics (5th ed. 2012). On how Muslim feminists use the sources of Shari’a, including Quranic text and prophetic teaching, to promote gender equality and political freedoms, see Tamir Moustafa, Islamic Law, Women’s Rights, and Popular Legal Consciousness in Malaysia, 38 Law & Soc. Inquiry 168 (2013); see alsoArzoo Osanloo, The Politics of Women’s Rights in Iran (2009). 5. See, e.g., Izhak Englard, Law and Religion in Israel, 35 Am. J. Comp. L. 185, 206–07 (1987). 6. On the uses of common law in British colonial administrations, see Nurfadzilah Yahaya, Craving Bureaucracy: Marriage, Islamic Law, and Arab Petitioners in the Straits Settlements, 105 Muslim World 496 (2015);see alsoIza R. Hussin, The Politics of Islamic Law: Local Elites, Colonial Authority, and the Making of the Muslim State (2016). On law and European colonial intervention in the Global South, see generally Lauren Benton, Law and Colonial Cultures: Legal Regimes in World History, 1400–1900 (2002); Nicholas B. Dirks, Castes of Mind: Colonialism and the Making of Modern India (2001); Jean Comaroff & John L. Comaroff, Of Revelation and Revolution: Christianity, Colonialism, and Consciousness in South Africa (1991). 7. See, e.g., Shamil Jeppie, The Making and Unmaking of Colonial Shari’a in the Sudan, inMuslim Family Law in Sub-Saharan Africa: Colonial Legacies and Post-colonial Challenges 165, 166 (Shamil Jeppie, Ebrahim Moosa & Richard Roberts eds., 2010). 8. While this Article uncovers debates among political elites over the role of Islam in Sudan’s post-independence legal system, “native courts” and civil courts, which heard low-level criminal and tort cases, occasionally turned to Islamic law and often did so in disguise. See, e.g., Zaki Mustafa, Common Law in the Sudan: An Account of the “Justice, Equity and Good Conscience” Provision (1971); see also Jeffrey Adam Sachs, Native Courts and the Limits of the Law in Colonial Sudan: Ambiguity as Strategy, 38 Law & Soc. Inquiry 973 (2013). 9. On the political cultures, practices, and discourses created by Sudan’s Islamic state after 1989, see Noah Salomon, For Love of the Prophet: An Ethnography of Sudan’s Islamic State (2016). 10. While this Article discusses Islamic law and state formation, related concerns have continued to emerge about integrating customary law into the legal systems of colonial, postcolonial, or post-conflict settings. On local government, native administration, and state formation in northern Sudanese societies, see Chris Vaughan, Reinventing the Wheel? Local Government and Neo-Traditional Authority in Late-Colonial Northern Sudan, 43 Int’l J. Afr. Hist. Stud. 255 (2010);see also Justin Willis, Tribal Gatherings: Colonial Spectacle, Native Administration and Local Government in Condominium Sudan, 211 Past & Present 243 (2011). On customary law and state formation in southern Sudanese societies, see Cherry Leonardi, Dealing with Government in South Sudan: Histories of Chiefship, Community and State (2013). 11. SeeHeather J. Sharkey, Living with Colonialism: Nationalism and Culture in the Anglo-Egyptian Sudan (2003). 12. See, e.g., Carolyn Fluehr-Lobban, Islamic Law and Society in the Sudan (1987). 13. Mustafa, supra note 8; see alsoAbdullahi Ali Ibrahim, Manichaean Delirium: Decolonizing the Judiciary and Islamic Renewal in Sudan, 1898–1985 (2008). 14. SeeMark Fathi Massoud, Law’s Fragile State: Colonial, Authoritarian, and Humanitarian Legacies in Sudan 44–84 (2013). 15. Local chiefs’ courts continued to operate throughout Sudan, which the British also attempted to bring under their control, creating another layer of legal plurality under the administration. See, e.g., Leonardi, supra note 10. 16. Massoud, supra note 14, at 56–57. 17. Hallaq, supra note 3, at 172. 18. SeeMahmood Mamdani, Saviors and Survivors: Darfur, Politics, and the War on Terror (2009). 19. Interview 61 with Lawyer and Civil Society Activist, in Khartoum, Sudan (Jan. 2007). See also Mark Fathi Massoud, Lawyers and the Disintegration of the Legal Complex in Sudan, inFates of Political Liberalism in the British Post-Colony: The Politics of the Legal Complex 193, 197 (Terence C. Halliday, Lucien Karpik & Malcolm M. Feeley eds., 2012). 20. Interview 45 with Former Government Minister, in Khartoum, Sudan (Nov. 2006). 21. Richard Hill, Egypt in the Sudan 1820–1881, at 43–45 (1959); see alsoMassoud, supra note 14, at 52. 22. The law school at Gordon College would, following Sudan’s independence, become the Faculty of Law of the University of Khartoum. 23. Annual Report on the Finances, Administration, and Condition of the Sudan (Legal Department Chapter) 78 (1902), cited inMassoud, supra note 14, at 73. 24. Sir Donald Hawley, Law in the Sudan Under the Anglo-Egyptian Condominium (unpublished paper presented at the Durham Sudan Historical Records Conference 6, Apr. 14–16, 1982) (on file with Sudan Archive, Durham University). 25. See alsoSharkey, supra note 11. 26. Memorandum from Hassan Muddathir, A Memorandum for the Enactment of a Sudan Law Derived from the Principles of Islam 1–2 (Nov. 1956) (on file with Sudan Library, Khartoum). 27. Interview 45 with Former Government Minister, supra note 20. On the political role of the northern Sudanese elite, including Hassan al-Turabi, see Mansour Khalid, The Government They Deserve: The Role of the Elite in Sudan’s Political Evolution (1990). 28. Sayyid Abu al-A’la, al-Mawdudi, Rights of Non-Muslims in an Islamic State (1961). 29. Memorandum from Hassan Muddathir, supra note 26, at 3. 30. Centuries prior to these moves proposing Islamic principles as the fundamental sources of democratic justice in Muslim-majority societies, the political philosopher John Locke discussed how Christian principles were similarly consistent with proposals for democratic legal order. SeeJohn Locke, The Reasonableness of Christianity and A Discourse on Miracles (Stanford Univ. Press 1958) (1695); John Locke, Two Treatises on Government and a Letter Concerning Toleration (Ian Shapiro ed., Yale Univ. Press 2003) (1689). 31. Ali Suleiman Fadlalla, Law Reform in the Sudan: A Brief History 3 (unpublished paper presented at the U.N. Dev. Programme/Ahfad Univ. for Women Workshop on Law Reform, Sept. 2006) (on file with author); see also Galal A. Lutfi, The Future of the English Law in the Sudan, Sudan L.J. & Rep. 219 (1967). 32. Shamil Jeppie, Ebrahim Moosa & Richard Roberts, Introduction to Muslim Family Law in Sub-Saharan Africa: Colonial Legacies and Post-colonial Challenges, supra note 7, at 13, 45. 33. Robert O. Collins, A History of Modern Sudan 150 (2008). While Sufism has been described as a set of values and practices focused on personal spiritual relationships with God, Sufi religious movements in Sudan have also been associated with major political parties. On the relationship between religious movements and the state in Sudan, see Noah Salomon, For Love of the Prophet: An Ethnography of Sudan’s Islamic State (2016). 34. Collins, supra note 33, at 150. 35. Fluehr-Lobban,supra note 12; Gabriel Warburg, Islam, Sectarianism, and Politics in Sudan Since the Mahdiyya (2002). 36. Massoud, supra note 19. 37. On colonial and early postcolonial politics in Sudan, see Collins, supra note 33. See alsoP.M. Holt & M.W. Daly, A History of the Sudan: From the Coming of Islam to the Present Day (6th ed. 2014); Peter Woodward, Sudan’s Fragile State, 1956–1989, inThe Sudan Handbook 149 (John Ryle, Justin Willis, Suliman Baldo & Jok Madut Jok eds., 2011). 38. Warburg,supra note 35. 39. Id. 40. Id. 41. On Sudan’s political uprisings in 1964 and 1985, see W.J. Berridge, Civil Uprisings in Modern Sudan: The “Khartoum Springs” of 1964 and 1985 (2016). 42. Salman Salman, Legal Profession in Sudan: A Study of Legal and Professional Pluralism, inLawyers in the Third World: Comparative and Developmental Perspectives 242 (C.J. Dias et al. eds., 1981). 43. Mustafa, supra note 8, at 147. 44. Abdelwahab El-Affendi, Good Orientalist, Bad Orientalist, 33 Rev. Afr. Pol. Econ. 773 (2006) (book review). 45. Huduud punishments are stipulated for seven crimes in Islam. Sudan adopted recognition of five of them in 1983: simple theft, aggravated theft, defamation or other libelous activities, consumption of alcohol, and adultery. Apostasy was later codified formally in Sudan’s 1991 criminal code. The seventh huduud punishment is for rebellion against the government. On the colonial history of the police and criminal justice bureaucracy in Sudan, see W.J. Berridge, Ambivalent Ideologies and the Limitations of the Colonial Prison in Sudan, 1898–1956, 6 J. Eastern Afr. Stud. 444 (2012);see also W.J. Berridge, “What the Men Are Crying Out for Is Leadership”: The Khartoum Police Strike of 1951 and the Battle for Administrative Control, 39 J. Imperial & Commonwealth Hist. 121 (2011). 46. See generallyMartin Lau, The Role of Islam in the Legal System of Pakistan (2006). 47. Lutfi, supra note 31. 48. Id. 49. Sudan Civil Justice Ord. § 9 (1929). 50. Mustafa, supra note 8, at 1–2. 51. Id.; Massoud, supra note 14, at 57. 52. Mustafa, supra note 8, at 189. 53. Id. at 190. 54. Id. at 189. 55. Massoud, supra note 14, at 69. 56. See, e.g., Alam Maximos v. Khadiga Mohammed El Brigdar, Sudan L.J. & Rep. 92 (1958); see alsoMassoud, supra note 14, at 98–99; Massoud, supra note 36. 57. SeeMustafa, supra note 8. 58. Id. at 210–11, cited inMassoud, supra note 14, at 99. 59. Zaki Mustafa, Opting Out of the Common Law: Recent Developments in the Legal System of the Sudan, 17 J. Afr. L. 133 (1973). 60. Separately, while is unclear what impact the Cold War had on Sudanese judges at the time of Sudan’s 1956 independence, it is likely that the Soviet Union’s influence in Africa during the 1960s, fallout from the Suez crisis, perceived hostilities related to the 1967 Middle East war, and other regional issues affected Sudanese elites’ willingness to explore alternative legal avenues. See, e.g., Alden Young, The Anglo-Egyptian Rivalry, the Cold War and Economic Development in Sudan, 1954–1958, inThe Middle East and the Cold War: Between Security and Development 29 (2012). 61. Frantz Fanon, The Wretched of the Earth (Richard Philcox trans., Grove Press 2005) (1961). 62. See, e.g., Talal Asad, Formations of the Secular: Christianity, Islam, Modernity (2003). 63. Interview 45 with Former Government Minister, supra note 20. 64. Interview 59 with Senior Judicial Official 3, in Khartoum, Sudan (Jan. 2007). 65. Warburg,supra note 35, at 143. 66. See generallyAsad, supra note 62, at 210. 67. SeeWarburg,supra note 35. 68. Id. 69. A British colonial policy of regionalism enshrined a legal divide between Sudanese who lived north of the twelfth parallel, where British colonial administrators governed, and Sudanese who lived south of it, where Christian missionaries proselytized. See generallyHolt & Daly, supra note 37. 70. SeeWarburg,supra note 35. 71. See generallyCollins,supra note 33; Sharkey, supra note 11; Warburg,supra note 35. 72. David Pimentel, Rule of Law Reform Without Cultural Imperialism? Reinforcing Customary Justice Through Collateral Review in Southern Sudan, 2 Hague J. Rule L. 1, 13 (2010); see also Kuyang Harriet Logo Mulukwat, The Formative Stages of Common Law in South Sudan: The Ensuing Consequences for the Judiciary (June 3, 2014), http://dx.doi.org/10.2139/ssrn.2445313. 73. See generallyLawrence M. Friedman, A History of American Law (1973); Martin Shapiro, Courts: A Comparative and Political Analysis (1981); Tamir Moustafa, The Struggle for Constitutional Power: Law, Politics, and Economic Development in Egypt (2007); Lisa Hilbink, Judges Beyond Politics in Democracy and Dictatorship: Lessons from Chile (2007); Rachel Stern, Environmental Litigation in China: A Study in Political Ambivalence (2013). 74. James Bell et al., The World’s Muslims: Religion, Politics, and Society (2013). 75. Abdullahi An-Na’im, Islam and the Secular State: Negotiating the Future of Shari’a (2008); see alsoAn-Na’im, supra note 4; Tariq Ramadan, Western Muslims and the Future of Islam (2004); Tamir Moustafa, Constituting Religion: Islam, Liberal Rights, and the Malaysian State (2018). 76. Interview 59 with Senior Judicial Official 3, supra note 64. 77. Hallaq, supra note 3, at 171. 78. See generallyWael B. Hallaq, The Impossible State: Islam, Politics, and Modernity’s Moral Predicament (2013). © The Author(s) [2018]. Published by Oxford University Press on behalf of the American Society of Comparative Law. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com. This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model)
Journal
American Journal of Comparative Law – Oxford University Press
Published: Nov 22, 2018