Understand the 'Law' behind the Schoolgirl Kidnapping and Dare to Redefine It
By Anver M. Emon, PhD
Professor of Law
University of Toronto’s Faculty of Law
Canada
Boko Haram, the group behind the horrific kidnapping of more than 300 schoolgirls in Nigeria, says its goal is to implement Islamic law - also known as Sharia. Meanwhile, in the small Southeast Asia nation of Brunei, the Sultan has declared Sharia law that calls for punishing adultery, abortions and same-sex relationships with flogging and stoning.
Both draw upon historical tradition that they believe reflects how things ought to be.
Boko Haram draws upon a legal tradition that permitted war captives (e.g. women and children) to be treated as slaves and sold as chattel. The legal context of this rule had to do with designating certain classes of people as protected in warfare, namely women, children and the elderly. Those who could not fight or posed no military threat were to be protected and not targeted in battle. But once the opponent was defeated, all that was theirs became part of the Muslim imperial coffers. Those who were protected in war subsequently became treated as the spoils of war, and thus relegated as slaves who could be sold. When Boko Haram, therefore, invokes Islamic legal rules to frame their abduction of schoolgirls and to justify their sale to others as wives, they are drawing upon a historical tradition about the economics of warfare and conquest.
Also drawing on historical tradition, the Sultan of Brunei's legislative program implements a punitive tradition that we would today call cruel if not outright torture. This tradition was developed in the early and late medieval periods (7-10th centuries) and shares with other medieval punitive traditions a brutality that we moderns consider grotesque. From being drawn and quartered, to having heads chopped off and posted on a spike, our shared history is replete with gruesome means of punishment that were, most importantly, put on display for others to watch.
The spectacle of such gruesome punishment, we are reminded by Michel Foucault, certainly had its deterrent effect. Deterrence was perhaps part of its point - to maintain control, order and security by horrifying spectators at the sheer brutality of the punishment. I'm sure we can understand the salience of that point, even today, as we hear Sarah Palin praise the "baptismal" virtue of water-boarding.
As for why they are doing this now, commentators will no doubt differ. In a country rife with religious strife between Muslims and Christians for decades, Boko Haram draws upon an Islamic legal tradition as a way to situate itself as the "Other" and in opposition to a ruling establishment it deems illegitimate. The Islamic legal tradition merely gives Boko Haram affirmative content both to justify its claims and, most importantly, to emphasize its distinctiveness (and by implication, its superiority) as against all others.
In the case of the Sultan of Brunei, it is perhaps not surprising. Like the rest of us, he has no doubt been watching the popular unrest that has displaced long-established rulers such as Hosni Mubarak in Egypt, Ben Ali in Tunisia and Qaddafi in Libya. He has thus far been able to placate his citizens by drawing upon the deep coffers of his oil-rich treasury, charging few taxes if at all, and providing for their wellbeing in various sectors of human development. In short, he has paid them off, and they are grateful for his largesse.
But in his religiously and ethnically diverse state, amid clamors for democracy across the Muslim majority world, even he must realize that this strategy is not a long-term one. The phased implementation of Sharia criminal laws allows him to bolster his legitimacy as an Islamic ruler without fully implementing the most brutal punitive sanctions. Recall that this is a phased implementation, with the most corporal punishments not yet being implemented.
And those criminal sanctions may never need to be implemented. In terms of the royal regime's survival, the Sultan's mere open-ended promise of future implementation may be all he needs to ensure popular support and trust. Religious minorities are likely too few to pose a real threat to the perpetuation of his regime, and any Muslim opponents can be refashioned as opposing the Sharia, and by extension, no less than God.
So what is the way forward? We may be comfortable hashtagging all over the Internet, but what does that really do for the girls that Boko Haram has captured? It certainly might make us feel better about ourselves, that we've done our part. But what have we really done, except spend time on Twitter that we would have spent time on Facebook anyway?
We might be comfortable boycotting the Beverly Hills Hotel, but how does that help anyone in Brunei, whether women or minorities? Perhaps all it does is help make Jay Leno feel like an active global citizen in retirement and avoid another rubber chicken dinner at a hotel that most Americans can't afford.
Certainly we can talk about military intervention, trade embargoes and human rights. Those have all been done before and will likely continue with outcomes that we can all predict - whether we look at Libya, Mali, Iran, Iraq and others. Military intervention is not a sustainable, long-term solution, as we see in Afghanistan, where the Taliban are as violent as ever.
A novel way forward needs some counter-factual thinking, some "what ifs" that push us outside our comfort zones. What if the invocation of "Sharia" were not such a conversation stopper. What if we could debate with the Sultan or Boko Haram about what Sharia demands?
Of course, the image of sitting down to tea with Boko Haram and talking legal history is humorous at best, ludicrous at worst. But it's a "what if" that forces us to confront our own approaches and their effectiveness. What if we could ask them to reflect on how their answers to those questions might be different given that our world is different? To ask such questions is not only to critically know and engage the Islamic tradition, but also to remove the monopoly that Boko Haram and the Sultan claim on defining what Sharia is for everyone.
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