The Origins of Repugnancy
Those loyal readers who know my work know that I have spent some amount of time thinking about the so-called "repugnancy clauses" in the modern constitutions of the Muslim world. At one point not long ago, as I was sort of waffling around, I decided to figure out where the term "repugnancy" comes from. One does not hear it in legal discourse among Arab lawyers I know, such that I don't even really know how I would translate it. Just seems like an odd phrase for Western academics to come up with.
My original theory was that it was merely based on the language of Pakistan's constitutional provision, which prohibits the enactment of law "repugnant" to Islam, and the name sort of just transported itself. Which may be sort of true, but there's more depth to it than that. (Some of you who are more practiced in English colonial law might well be shaking their heads in disbelief at this point, but forgive me, my field is Islamic and Middle Eastern law in the modern era, as practiced by modern courts. In the primarily Arab jurisdictions in which I work, this phrasing is odd enough that I've more or less replicated the academic terminology without ever having even thought about where it came from).
"Repugnancy" is a longstanding English colonial doctrine pursuant to which local law could not be repugnant to English law if it was to stand. There's much criticism of it in the African context (some discussed here) but it actually applied in places like New Zealand and the United States as well. But again, it's local law applies, and then when and if that law seems not to be to the English liking because it makes them, to use Santorum's phrasing, "want to throw up", then it is deemed void. One can certainly see why any local population would find this principle somewhat offensive.
Yet what is ironic, to my mind, is how precisely in modern Muslim law, as the Islamists would have it, the principle of repugnancy is flipped on its head. Before, it was the LOCAL law that was acceptable unless repugnant. Now it is the TRANSPLANT that is acceptable unless deemed offensive to Islam. In other words, we're not even trying to apply shari'a as a meaningful part of a legal system, we're retreating to allow the foreign inspired legal system to operate, so long as not repugnant.
The foreign is now local, the imported thoroughly domesticated. What's left to be foreign, outsider, colonial, irrelevant as constraint on positive, secular, state legislation unless its vomit reflex is induced? Shari'a. Rather ironic, isn't it?
HAH
My original theory was that it was merely based on the language of Pakistan's constitutional provision, which prohibits the enactment of law "repugnant" to Islam, and the name sort of just transported itself. Which may be sort of true, but there's more depth to it than that. (Some of you who are more practiced in English colonial law might well be shaking their heads in disbelief at this point, but forgive me, my field is Islamic and Middle Eastern law in the modern era, as practiced by modern courts. In the primarily Arab jurisdictions in which I work, this phrasing is odd enough that I've more or less replicated the academic terminology without ever having even thought about where it came from).
"Repugnancy" is a longstanding English colonial doctrine pursuant to which local law could not be repugnant to English law if it was to stand. There's much criticism of it in the African context (some discussed here) but it actually applied in places like New Zealand and the United States as well. But again, it's local law applies, and then when and if that law seems not to be to the English liking because it makes them, to use Santorum's phrasing, "want to throw up", then it is deemed void. One can certainly see why any local population would find this principle somewhat offensive.
Yet what is ironic, to my mind, is how precisely in modern Muslim law, as the Islamists would have it, the principle of repugnancy is flipped on its head. Before, it was the LOCAL law that was acceptable unless repugnant. Now it is the TRANSPLANT that is acceptable unless deemed offensive to Islam. In other words, we're not even trying to apply shari'a as a meaningful part of a legal system, we're retreating to allow the foreign inspired legal system to operate, so long as not repugnant.
The foreign is now local, the imported thoroughly domesticated. What's left to be foreign, outsider, colonial, irrelevant as constraint on positive, secular, state legislation unless its vomit reflex is induced? Shari'a. Rather ironic, isn't it?
HAH
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