Acceso usuarios
Mark Fathi Massoud
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.
