Rule of Law Promotion in Islamic Environments: A Call for True Dialogue

07 February 2019   ·   Siraj Khan, Patrick Schneider

Western countries have an unspoken suspicion that violent extremism is rooted in Islam as a religion. However, the necessary precondition of rule of law assistance is a profound, unprejudiced understanding of these societies’ legal and moral traditions. Thus, the German government should openly enter in a respectful dialogue, particularly with unfamiliar and possibly even uncomfortable partners, to learn and to address their concerns.

In Germany’s “Guidelines on Preventing Crises, Resolving Conflicts, Building Peace,” the term “Islam(ic)” appears only three times, two times in the context of “Islamic State”, and once in the term “Islamists” in connection with the situation in the North of Mali. The search term “Muslim” did not generate any hits. This simple search result might be indicative of how one of the major rule of law debates and security concerns is currently being addressed. The issues at stake are two-fold and comprise two dimensions:

The security dimension from a Western perspective

First, the tacit fear of being perceived as offensive towards followers of the Islamic faith seems to prevent a much-needed open dialogue with the Islamic world. The elephant in the room is the Western suspicion that violent extremist Islamic groups represent only the tip of the iceberg of Islam as a religion which promotes violent ideologies, whereas recent studies have shown the direct correlation between social exclusion, socio-economic, historical, and political conditions worldwide and an increased risk of radicalization and extremism. Under the heading of “Nationalism, religious fanaticism and violent extremism,” the above-mentioned guidelines make explicit reference to “economic growth, (…) scarce educational opportunities and limited political, social and cultural participation”. However, the elephant in the room is present yet again when one may, only in silent thoughts, amend in brackets “religious fanaticism and violent extremism (in Muslim majority societies)”. That’s what we mainly mean, but do not dare say.

Therefore, in order to address these genuine concerns, the German government’s planned strategy could perhaps contain an explicit chapter on “Rule of Law and Security Dialogue with the Islamic world”. Such an initiative, conducted in an open and respectful manner, will be much appreciated by the very addressees themselves. It provides an opportunity for both sides to speak, to express, to explain, and to listen. It can easily be predicted that shared values and concerns will by far outweigh points of division and thus build common ground for addressing rule of law and security issues more efficiently. It transforms the proverbial elephant into an object of open discussion in the interest of both parties, whilst preventing the dominance of public discussion by malevolent movements and actors. Additionally, such a forum would provide relevant actors an opportunity to openly express their ideas of how Western states have variously helped or hindered the development of security and a state of the rule of law in their respective countries and societies.

The dimension of conflict resolution in a broader sense

Second, whether intended or not, the apparent reduction of “Islam” and “Islamic” dictates the entire discourse and context about conflict resolution purely in terms of violent groups that are associated with, or misuse the terms, and the conflicts they are involved in. In doing so, it ignores the more common challenges that exist in resolution of conflicts: the vast majority of them are not the result of the actions of religious groups, but rather of communities suffering under differing legal, political, cultural and ethnic paradigms.

Much of the above is conjugated using presuppositions and assumptions of otherness, built on top of a fear of the unknown. How much do we really understand about Muslim beliefs, practices and how they relate to differing conceptions and worldviews? How much of this is driven by faith, scripture or dogma, and how much of it is driven by political theology?

Talking to each other, not past each other

The answers to these questions require deep engagement with all relevant parts of society. This includes not only those we most often speak to and rely upon for ease of access as well as commonality of purpose (moderates, urban elites, exiles) but also and in particular those we are not used or willing to speak to, such as conservative/orthodox Muslims, tribal groups, and even those who promote ideas that might not accord to models of secular or western liberal statehood. And we must engage with them – to better understand what drives their vision of a particular model and engage with them on objective analyses of their own traditions for mutual understanding and cooperation.

Critiquing alternative viewpoints by presenting our own models as a standard is no objective means to measure legitimacy or progress – particularly since many European and Western States are beginning to show signs of a deficit in democracy, or ‘democratic decay’ and a rise in populist and even far-right movements. We must speak from a perspective of humility and as equals; each with a tradition and experience to offer. In this context, the German Government’s strategy could make efforts to prioritize engaging with non-urban, traditional, tribal and otherwise excluded, yet still influential or popular actors – as a way to enhance legitimacy, but mainly to learn.

Organically Growing the Rule of Law

When it comes to aspects of Islamic culture, law or practice, there is a huge question around the extent to which Western States can acknowledge or, at the very least, tolerate a different legal tradition. This is essential for mapping the possible extent of legal space for the development of the rule of law. An obvious fact – if ever one was needed – is that Islamic republics and states apply Islamic laws and traditions. Societies in such states practice and observe Islamic legal, moral, ethical and cultural traditions. Anyone who wants to assist in enhancing the rule of law in such countries, must recognize Islamic laws, customs and traditions that apply in those jurisdictions. For the rule of law to develop and sustain, the more organic the process is, the better the investment will be from indigenous communities.

Here, the Government’s strategy should note the importance of tailoring language and conceptual terminology to the host communities to achieve optimal results. Legal transplants and translations have a checkered history. Much of the Islamic world is still reeling from the negative effects of inadequately transplanted foreign legal principles, codes, terminology and laws. Nuance and intelligence in organic design can be married to the overriding principles of fairness, justice, equity and sincerity that form the skeletal structure of legal principles and maxims of Islamic Law to cater for a more intuitive process and engagement.

Local ownership ‘by our rules’ is tantamount to clientelism

The German guidelines, while noting local ownership, omit any mentions of the utility of traditional justice mechanisms and the informal justice sector. However, local ownership ‘by our rules’ is tantamount to clientelism. At the same time, discussing traditional or informal mechanisms would not mean fully embracing them. Against widespread prejudice it must be noted that Islamic law is not written in stone. Both the law and schools of legal thought are dynamic in their methodology, offering ample tools to assist jurists to deal with both ordinary and exceptional circumstances.

In the long run, sincerely engaging in a dialogue amongst equals could well lead to new and creative forms of justice, amalgamating or hybridizing formal and informal mechanisms by, for example, including an oversight function by the formal justice sector. Thus, the Government’s strategy should highlight the use of this dynamism and flexibility to engage in a dialogue between legal traditions to – in its words – ‘improve gaps’ by bringing divergent conceptions of justice and fairness closer. In any case, the vast majority of Muslim societies would certainly prefer such a dialogue to being tacitly and unilaterally accused of more or less hidden extremist tendencies. 

(Responsibility for the information and views set out in this contribution lies entirely with the authors.)

Naher Osten & Nordafrika Rechtsstaatsförderung

Siraj Khan

Siraj Khan is Country Manager for Jordan and Research Fellow (Middle East & North Africa) at the Max Planck Foundation for International Peace and the Rule of Law.

Patrick Schneider

Patrick Schneider is the Head of the Middle East and North Africa Projects at the Max Planck Foundation for International Peace and the Rule of Law.