Seeing Like an Islamic State: Shari‘a and Political Power in Sudan

• Published date: 01 September 2018
• Date: 01 September 2018
• DOI: http://doi.org/10.1111/lasr.12352

Seeing Like an Islamic State: Shari‘a and Political

Power in Sudan

Jeffrey Adam Sachs

Islamic law, or shari‘a, has been incorporated into the legal systems of many

states. In much of the existing literature, this process is understood as part

of the colonial and postcolonial state’s attempt to render law legible—that is,

codified, standardized, and abstract. In this article, I show how some state

actors chose to move in the opposite direction, actively discouraging the

transformation of shari‘a into a formal and codified system of law. Using the

case of colonial and postcolonial Sudan, I argue that these actors viewed

legal legibility as a threat to state power, recognizing the jurisgenerative

potential of an informal and uncodified law.

What does it mean to see like an Islamic state? In his influen-

tial work, Seeing Like a State, James Scott (1998) argues that the

modern state acquires its distinctive form of power by rendering

social life legible—that is, standardized, abstract, and calculable. For

scholars of Islamic law, this story has the ring of truth. Prior to

European colonization, we are told, shari‘a was a largely uncodified

and flexible system of norms, practices, and authoritative texts.

This flexibility was one of the principal reasons for its success, as it

allowed shari‘a to adapt itself to the needs of the local populace.

Under colonialism, however, that flexibility was lost. As part of the

larger project of colonial state building, shari‘a was transformed

into a codified, rigid, and formalized system of law, one whose

jurisdiction was typically limited to family and personal disputes. In

this way, shari‘a was rendered legible to colonial rulers, and while

some postcolonial states have sought to “restore” the scope of

Islamic law to encompass civil, criminal, and constitutional matters,

those colonial-era reforms, we are told, remain largely intact.

But is this all there is to the story? My goal in this article is not

to reject this account of Islamic legal history, but rather to explore

its exceptions and lay out a scholarly agenda for their study.

The author would like to thank Tamir Moustafa, Andrew March, Khalid Moustafa

Medani, and Margot Youngfor their help in the various stages ofthis article.

Please direct all correspondence to Jeffrey Adam Sachs; Department of Politics, Aca-

dia University, 15 University Avenue, Wolfville, Nova Scotia, B4P 236, Canada. e-mail:

jeffrey.sachs@acadiau.ca

Law & Society Review, Volume 52, Number 3 (2018)

©2018 Law and Society Association. All rights reserved.

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Because there are exceptions, instances of both a precolonial sha-

ri‘a that was codified and incorporated into state structures, and a

colonial and postcolonial shari‘a that has, with the state’s support,

remained uncodified, flexible, and informal. These exceptions

expand our understanding of the relationship between shari‘a and

the state, a relationship that is presented in much of the literature

as one of tension and conflict. Indeed, some scholars have gone

so far as to posit an “incompatibility” between shari‘a and the state,

owing to the latter’s supposed hostility toward the flexibility and

informality of the former (Abou El Fadl 2001; Hallaq 2013;

Hamoudi 2010). I argue that this need not be the case.

In doing so, I build on two intuitions. The first is the recogni-

tion that the colonial and postcolonial state is a complex multivocal

collection of institutions, ideologies, and interests. For example,

within many colonial states, there was no straightforward distinction

between colonizer and colonized; on the contrary, as recent scholar-

ship has shown, European and North American governments were

heavily dependent on “native” partners to establish and perpetuate

colonial rule. These partners served as intermediaries, indispens-

able middle(wo)men capable of translating the social life of the col-

ony into the language of the state (Benton 2002; Hussin 2016). As

such, they were participants in projects of colonial legibility, but

often for reasons of their own and using methods that were at cross-

purposes to those of the metropole. Not only does this diversity

mean that the state—colonial or otherwise—had no single way of

“seeing,” but it also means that not every actor engaged in projects

of legibility was doing so in order to strengthen those in power.

The second intuition guiding this inquiry comes out of scholar-

ship on legal pluralism. Rather than understanding legal diversity,

redundancy, and contradiction exclusively as obstacles to state power,

this literature views them as potential solutions to the problem of

governing a normatively complex space. This can be especially true

in colonial and postcolonial contexts, where ethnic, religious, and

economic divides can be especially salient. In such contexts, projects

designed to render the law legible may actually undermine other

state objectives, such as security, social reform, or economic growth.

Given the alternatives, the interests of those in power may be best

served by keeping law flexible, ambiguous, and informal.

Taken together, these intuitions urge a rethinking of the rela-

tionship between shari‘a and the modern state. In this approach,

Islamic law as deployed by state institutions may be a jurisgenerative

force, one capable of responding creatively to new problems or

exploiting new opportunities, and, as such, it can act as a corrective

to narratives of tension, conflict, and incompatibility that character-

ize much of the scholarship on Islamic law and the modern state.

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