Journal of Law, Religion and State - Volume 3, Issue 2, 2014

It is often claimed that a democratic state ought to be secular, a claim labeled here as the secular requirement. The claim is regularly treated as axiomatic by scholars and intellectuals. In the present paper, the secular requirement is challenged, and an extensive critique of the five most frequent arguments used in its support is offered. It is argued that the foundation of the secular requirement is much weaker than is commonly perceived, and that a secular state may not always be warranted.

The growing numbers of Muslims in the West have ignited a debate about the compatibility of Sharī‘a with state law. The present article explores the issue from a historical perspective by providing a brief survey of Islamic legal history. It specifically focuses on the interaction of Sharī‘a with the English legal system in colonial India. The main argument of the article is that during its long history, Sharī‘a co-existed with the ruler’s law (siyāsa) and customary law (‘urf). It was formally incorporated into the structure of the state with the active participation of Muslim legal commentators, judges, lawyers, politicians, and the ‘ulamā’ in colonial India. The incorporation of Sharī‘a into the state law was facilitated through the transplantation of legislative and hierarchical judicial institutions, which provided venues for a legal discourse among various stakeholders. Historical evidence suggests the feasibility of incorporating Sharī‘a into state law in Western democratic countries.

The recent “ethical turn” in the study of Islamic law has directed much attention to the cultivation of “virtuous passions” as central to the project of the classical Sharīʿa. This model has been particularly salient in the study of normative rituals, and some scholars have extended it to encompass much broader social and disciplinary aspects of the ideal Sharʿī order. The present paper focuses on the concept of ḥayāʾ (shame), understood as the fear of moral or social disapprobation, which is arguably the affective trait Muslim thinkers saw as most fundamental to proper social functioning and adherence to the law. The article compares the treatment of ḥayāʾ in ethical and legal works of scholars of the Shāfiʿī legal school in the 11th to early 12th centuries and argues that works of substantive law pursued a deliberately minimal approach to the role of affect.

Although there is a rich legal literature on whether remorse should play a role in the criminal justice system, there is little discussion of how remorse can be evaluated in the legal context. There is ample evidence that perceptions of remorse play a powerful role in criminal cases. Yet the most basic question about the evaluation of remorse has received little attention: is remorse something that can be accurately evaluated in a courtroom? This article argues that evaluation of remorse requires a deep assessment of character, or of the condition of the soul, and that the legal system may not be capable of such evaluation. At the same time, the article acknowledges that remorse is so closely intertwined with judgments of culpability, it may not be feasible to bar decision-makers from considering it. Assuming that evaluation of remorse is ineradicable, the question becomes: what can be done to improve upon an evaluative process riddled with error and bias?