Vol. 32 No. 6 (June 2022) pp. 79-83 SHARIA, INSHALLAH: FINDING GOD IN SOMALI POLITICS, by Mark Fathi Massoud. Cambridge: Cambridge University Press, 2021. pp. 250. Paperback $34.99. ISBN: 978-1-108-96570-5.
Reviewed by Ricardo René Larémont, Department of Political Science, Binghamton University (SUNY). Email: laremont@binghamton.edu.
In SHARIA, INSHALLAH: FINDING GOD IN SOMALI POLITICS, Mark Fathi Massoud provides a thoroughgoing analysis of the role that Islamic law and customary law (xeer) have played in precolonial, colonial, and postcolonial Somalia. By examining the role of sharia and customary law in Somalia, Massoud may offer the proposition that sharia, perhaps when combined with customary law, may serve as the basis for establishing an effective rule of law that builds the foundations of peace and limits the arbitrary use of governmental power. Because his book more accurately describes how sharia and customary law work in tandem, I have some quarrel with the title of the book, which in my view is imprecise. More accurately, this is an analysis of how sharia and customary law work in combination to establish legitimacy, peace, and order. Massoud understands that the West, for the most part, opposes sharia and vilifies it. With evidence from the Somalia and Somaliland cases, Massoud challenges prevailing western assumptions that sharia undergirds authoritarianism and misogyny. He argues finally that sharia, because it is viewed as a legitimate source of law and conflict resolution in majority-Muslim countries, should be considered as a basis for creating law and stabilizing society.
Massoud starts from the premise that sharia is variable; it is understood and applied differently across diverse societies and states. He claims additionally that sharia is understood and utilized differently by grassroots residents and political elites. Elites, whether in the pre-colonial, colonial, or postcolonial contexts, have tried to apply sharia through state-controlled courts as part of the state building process. In many societies, however, particularly clan-based societies like Somalia, both sharia and customary law are used to mediate disputes in venues that are not controlled by the state. In Somalia, these community and clan-based methods of dispute resolution have been long-standing and have enjoyed widespread legitimacy among litigants because of their efficacy, equity, speed, and perceived lack of corruption. Furthermore, and this is important from the perspective of stabilizing societies, in many Muslim-majority societies the legitimacy of the legal process is inextricable from religion, which provides the society with statutes, processes of dispute resolution conducted by those learned in the law or who are esteemed within the community, and an ethical structure that informs the norms of acceptable and unacceptable behavior. Because the law emerges from sacred texts and ancillary procedures of dispute resolution administered by those learned in the law or esteemed in community, this legal process has legitimacy in the ethical, political, and legal realms. The constructed modern state, by contrast, inorganically tries to build court systems and impose them on residents. The state process necessarily is a top-down process, which is logical from the perspective of state building. Nevertheless, these state-created systems of law may be viewed as illegitimate because they may be perceived as being “foreign” and not fully grounded in Islam or Islamic law, which partially delegitimates them.
These different processes of dispute resolution can lead to dialectical conflict. The State aims to be modern and powerful, which requires the creation of a court system that is under its control. The residents of Somalia and Somaliland, however, where clan- and community-based systems of dispute resolution have been long-standing and have legitimacy, have often resisted state-based efforts to create court systems. In part, this can be viewed as illegitimate and irreligious. This creates a profound contradiction for the stabilization of society. The experiences in Somalia and Somaliland reveal repeated grassroots efforts to resist the creation of these state-controlled courts. In the struggle for power and legitimacy, sharia – mixed with customary law or xeer – has won the contest.
In this book, Massoud extensively and comprehensively explains this dynamic tension across time, with particular attention being given to the British and Italian colonial periods, the Siad Barre regime, and the post-Barre decline to civil war. He addresses state building, the disintegration of the state, and the attempts at state regeneration in both British Somaliland and Somalia Italia.
This book has seven chapters. In the first chapter, Massoud provides the explanation that four different sets of law operate in Somalia: customary law or xeer, colonial law, post-colonial law and Islamic law. From the colonial period that began in the 1880s until the present, various regimes have tried to harmonize the application of these systems of law to resolve disputes. This has been a daunting task. All regimes from the colonial period onwards attempted to use the law for a particular purpose: to consolidate the state. By contrast, the residents and citizens of Somalia and Somaliland have understood and have appreciated the utility of the law from a different perspective. A combination of sharia and customary law, which are administered by well-regarded sheikhs that are based in the community rather than working for the state, provide for the effective and expeditious administration of justice. Thus state-created and state-administered courts become less relevant.
The British went to considerable lengths during their colonial sovereignty in British Somaliland to co-opt local sheikhs and qadis to administer sharia and customary law to further British interests. Rather than imposing British law that would have been perceived as foreign and illegitimate, the British, as was their practice in their other colonies in which Islam was the principal religion, attempted to respect Islamic law and Islamic law judges while nonetheless trying to bring them under British supervision. The Italians in Somalia Italia approached the law differently, reserving sharia and customary law for family law and property transactions while applying the Italian penal code in criminal cases. While the British and Italian approaches varied somewhat, they both permitted the application of sharia and customary law because it would enable their colonial projects to proceed more smoothly. Both colonial regimes, therefore, legitimized the sharia and customary law processes while still trying to control them.
Chapter 2 elaborates on these themes about the British and Italian colonial periods. The British became interested in having a military presence in Somalia to enable them to deploy forces west of their important port of Aden in Yemen, which was Britain’s key refueling point for their naval vessels. Via a series of negotiated arrangements with local clan leaders in northern Somalia, the British agreed to provide military protection to local Somalis while obtaining the military and naval bases they needed. These series of negotiated arrangements, or “treaties”, were signed during the 1880s. The British were not interested in developing northern Somalia as an agricultural colony, or for the placement of settler colonists (as in Kenya); their preoccupation was military. The Italians by contrast had a different objective for Italia Somalia. Beginning in 1893 and continuing until 1941, the Italians wanted to settle Somalia as an agricultural colony with plantations near Mogadishu where they sent Italian settlers and Italian administrators. Because of this different objective, the Italians established a more formal state presence in Somalia Italia.
In their other colonies or protectorates where Muslims were prominent, the British in Somaliland pursued a policy of indirect rule. This colonial policy elevated Muslim clerics or political leaders to rule ostensibly over resident subjects (particularly in the administration of law) while the British asserted control over coercion of subjects by use of the military or the police. In addition, in Somaliland, the British appointed aqils to collect taxes. These aqils and guurti (clan leaders) were co-opted into the colonial regime to administer the law since their salaries were being paide by the British government. This was tru particularly in the case of the aqils. In Somaliland, the British set up two court systems that dealt with non-penal issues. In these systems, the aqils used xeer, or customary law, for personal injury cases while qadis applied sharia for divorce, marriage, and inheritance. In the domain of criminal law, the British imported the Indian penal code that was administered by British agents.
The Italians in Italia Somalia initiated their colonial project by using two private companies before officially occupying the territory. The Folonari Copany ruled from 1893 until 1896 and the Benadir Company ruled from 1899 until 1905. When the Italian state undertook full control, their approach was different from that of the British. Rather than resortin to indriect rule, the Italians tried to replace sharia and xeer with Italian law.
In Chapter 3 Massoud reveals that post-colonial leaders, just like their colonial predecessors, confronted the question of what to do with sharia and xeer. During the period of Siad Barre’s dictatorship (1969-1991), he created an extensive bureaucratic and legal apparatus to constrain sharia and xeer. However, before the ascension of Barre, in the period between 1950 and 1960, those preparing for independence sought to deal with the question of the legal systems created by the British and the Italians. With the promulgation of the 1956 judiciary law, appeals to courts in Italy were disallowed and a Supreme Court was established in Mogadishu. The 1956 law also established intermediate appellate courts hearing both civil and criminal cases. Nevertheless, just before the period of independence that began in 1960, most Somalis mostly relied upon guurti (village elders) to administer xeer whenever they had legal claims.
Upon independence in 1960, the leaders of the newly independent state promulgated a constitution that declared Islam would be the state’s official religion. Furthermore, the new leaders closed the pre-existing sharia courts and established a new judiciary under the control of the new state. This was the state’s modus operandi until 1969 when Siad Barre staged a coup. Barre was an authoritarian and a socialist who argued that Islam and socialism were compatible because both espoused classless and egalitarian societies. Barre tried to create a socialist state by referring to Islamic principles. In 1973, he abolished the 1960 Constitution and existing legal institutions. He dismissed members of the Supreme Court and other courts, and filled them with his own men. Barre created an authoritarian legal system that stifled political dissent, eliminated independent civic groups, and used firing squads to eliminate his enemies. While Barre was clearly an authoritarian ruler, he did try to interpret Islamic law to expand women’s rights. Under his regime, women obtained the right to initiate divorce, men were discouraged from practicing polygyny, males’ obligations to support ex-wives and children financially were expanded, and also included equal inheritance rights between men and women. This decision to expand women’s rights along with military reversals in the Ogaden region of Ethiopia led to the mobilization of clerical and clan opposition to his rule. In 1999, he was ousted from power.
Chapter 4 deals with the restoration of sharia and xeer law after the ousting of Siad Barre. After Barre’s removal from office in 1991, clerics within Somalia began creating a system of courts to settle disputes. For the administration of the law, they relied upon Islamic law and xeer. The clerically-led courts movement moved from being a system of ad hoc courts to a more formal political organization known as the Islamic Courts Union in 2000. By first creating a system of law and a quasi-state, the clerics restored effective governance in Somalia. The Islamic Courts Union had both hardline elements that were aligned with al-Shabaab and al-Qaeda and more moderate elements that were often inspired by Sufism. Fearing the rise of the influence of al-Shabaab and al-Qaeda in Somalia, western interests instigated a military invasion of Somalia by Kenya that was aimed at eliminating these two elements. The Kenyan invasion was partially and temporarily successful. Al-Shabaab and al-Qaeda forces were weakened. At the same time, however, the Kenyan military incursion severely undermined the Islamic Courts Union’s efforts to create a quasi-state through its courts system. Chaotic conditions returned, further rendering Somalia unstable.
In Chapter 5 Massoud returns to discussion of Somaliland, which had separated de facto from Somalia. Massoud argues that clerics, or “sheikhs”, established substantial order in Somaliland by establishing district courts where they applied sharia and xeer to resolve disputes. The sheikhs operated beyond the purview of the state by establishing private offices where they practiced mediation. These sheikhs were respected by the populace. They had legitimacy. Also, by applying sharia and xeer, they were able to keep more radical jihadists at bay because the jihadists could not say that the sheikhs were not applying sharia. The residents of Somaliland resorted to the sheikhs rather than state courts because the dispute mediation processes provided were speedy and lacked corruption. Residents viewed these sheikhs as having legitimacy because they administered a system of law based upon sharia and xeer. By contrast, residents did not have confidence in the courts that were established by the state.
The question of how women have used sharia to empower themselves is discussed in Chapter 6. Like their sisters in other majority-Muslim countries, women in Somaliland have reverted towards the interpretation of the Qur’an, sharia, and hadith to fight for women’s rights. This approach has led to limited success. Women within Somaliland have used sharia to espouse education for girls and women, set a minimum quota for women in parliament, end forced clitoridectomy, halt forced marriages, and curb sexual violence. However, patriarchal power has been difficult to overcome in Somaliland. The women’s rights movement has found it difficult to get sheikhs to cooperate with their initiatives. The sheikhs have opposed the ending of clitoridectomy, have combatted the ending of child marriage, and have often demanded that women who have been raped marry their rapists. The sheikhs uphold a patriarchal system that the women have challenged but have largely failed in their efforts to do so.
In his conclusion, Massoud argues that western antagonism towards sharia is misplaced. Islam, sharia,and xeer are essential to establishing legitimacy in government in Somalia and Somaliland. At the same time, Massoud argues that sharia is a flexible concept that means different things to different people. Jihadists, moderates, and feminists all argue that sharia is essential, yet they have all different understandings of what sharia really means. The essential point, however, is that sharia is unavoidable. Massoud argues that sharia can lead to peace building. He claims, however, that sharia is understood in various ways by common people, or it is instrumentalized by elites, with each community agreeing on its salience while resorting to it for different purposes. Islam or sharia can be used as a basis for resistance in the pursuit of equity and better governance.t can also be used to suppress local aspirations. Sharia is a dialectical concept. It can be used for liberation or oppression, or it can be used for good or for ill. In the final analysis, however, it cannot be avoided in Muslim-majority societies and states.
In summary, Massoud’s monograph is thoroughly documented, well researched, and effectively argued. It is an admirable addition to the literature that examines sharia. More accurately, this work is an analysis that examines the interaction of sharia and customary law in Somalia and Somaliland. It is not solely an examination of the role that sharia plays in creating ethical norms or judicial procedures. In some societies where clan affiliations permeate the society and are vibrant, it may be profitable to pursue Massoud’s line of inquiry, which is an examination of the interaction of Sharia and customary law rather than just an assessment of sharia.
© Copyright 2022 by author, Ricardo René Larémont.
