“The ethics of procedure: traffic laws, modern technology and the reconfiguration of Privacy in the Arabian Gulf” by Alexandre Caeiro

Image by Paasikivi on Wikimedia (CC BY-SA 4.0)

The implementation of Islamic criminal law has been characterized as a paradox. Muslims are scripturally instructed to apply the Qur’anic punishments for “crimes against God” (murder, theft, slander, adultery). Nevertheless, prophetic practice, legal canons, and the evidentiary rules elaborated by Muslim jurists often appear designed to prevent the application of the relevant penalties. The juristic reluctance to apply the Qur’anic penalties has been read as proof of the deterrent nature of Islamic criminal law. Building on earlier work, I suggest in this essay that Islamic procedural law sustained historically-specific distinctions between crime/sin and public/private. These distinctions are connected to understandings of sincerity and shame which neither map onto their Western counterparts nor fit into dominant accounts of religion and the secular. I thus join a growing number of scholars in arguing that changes in Islamic procedural law allow us to track broader transformations in the moral and legal landscape of modern Muslim societies. In order to illustrate the heuristic value of procedure, I take a rarely examined case – traffic laws in mid-twentieth century Qatar – as my focus. 

Cars were integrated into the exchange of gifts that characterized Arabian politics of protection in the interwar period, but automobility as a social phenomenon began in earnest only in the 1950s. The expansion of cars and roads was accompanied by a process of legal codification designed to extend the authority of emerging state institutions and to facilitate the integration of the sheikhdoms into the global structures of capitalism. This process set in motion struggles for jurisdictional authority which mobilized members of the ruling family, tribal shaykhs, local merchants, sharia judges, Egyptian legal advisors, pan-Arab political activists, and British officials. 

The Gulf sheikhdoms, which were integrated into British imperial structures in the nineteenth century, remained under British “protection” until 1971. In the 1950s, British authorities spearheaded efforts to codify traffic laws as part of their attempts to reform local legal systems. In the aftermath of World War, British officials identified “the rule of law” as a more effective means of guaranteeing their long-term hegemony than the formal structures of the protectorate. They targeted traffic as a strategic area due to the perceived silences and limitations of Islamic law on the matter. 

Traffic laws became a contentious flashpoint between sharia judges, civil lawyers and British officials in the 1960s. Part of the controversy revolved around substantive issues. How is legal responsibility and criminal liability to be divided between drivers and pedestrians? How is compensation or blood money to be calculated? Who exactly constitutes the solidarity group liable for accidental deaths? But procedural matters became an object of conflict too. The inadmissibility of photographs in sharia courts was depicted by British authorities in 1965 as a clear sign of the superiority of “modern Traffic courts” over Islamic legal institutions.  

A 1968 fatwa which brought together the authority of modern medicine, the biopolitical state, and Islamic procedural law provides a particularly instructive case-study of the ways in which traffic matters challenged conventional public – private distinctions. The two-pronged question that prompted it came from the Deputy Emir, Shaykh Khalīfa b. Ḥamad Āl Thānī (1932-2016), at a time already de facto ruler of the emirate. After noting the recurrence of traffic accidents linked to speeding and alcohol, Shaykh Khalīfa asked the Chief Qāḍī two interconnected questions: Can state authorities perform blood tests on drivers suspected of drunk driving? And is the doctor’s report sufficient evidence for the implementation of the relevant ḥadd punishment?

Qatar’s 1953 traffic law criminalized driving under the influence of drinking –imprisonment not exceeding two years, a fine not exceeding 1,000 rupees, or both–, but failed to specify the method through which drunkenness may be ascertained and whether a drunk driver may be flogged according to Islamic law in addition to being fined and imprisoned. 

When Shaykh Khalīfa posed his question, speeding and alcohol consumption were already the objects of lively public debate in the press and on television. Participants in the debate agreed that drinking was a social problem affecting the male youth. Alcohol harmed the minds and bodies of the youth, causing marital strains in the family. The problem was not just moralized as the symptom of the youth’s weak ill and moral failure; it was also replaced in the broader context of “the vacuum” in which the youth were living – a vacuum presumably caused by the displacement of traditions which ceased to make sense in the context of oil wealth, modern education, urbanization, and rapid socio-economic transformation. The question was directed at Shaykh ‘Abd Allāh b. Zayd Al Maḥmūd (1911-1997), a Najdi religious scholar who is known as the founder of Qatar’s sharia judiciary. As a judge and judicial activist, Ibn Maḥmūd played an important role in these societal debates. In the 1970s, traffic cases represented between 25% – 40% of the criminal cases settled in the sharia courts, while alcohol consumption constituted an additional 10-20% of the criminal cases adjudicated by Ibn Maḥmūd and his peers. 

In his sermons, Ibn Maḥmūd used the sharia punishment for drinking as a sign of the superiority of the Islamic legal philosophy. Unlike the ineffective man-made laws, Islam does not seek to merely punish the perpetrators of an illegal act (punitive justice). Rather, it seeks to rehabilitate him through the pain caused by flogging (rehabilitative justice). Ibn Maḥmūd asserted that imprisonment does not serve as adequate punishment because it invites complacency. Only flogging can properly work as a deterrent and atonement.

Despite Ibn Maḥmūd’s categorical views on alcohol, the Chief Qāḍī refused to countenance the integration of medical procedures into legal proceedings. In his response to Shaykh Khalīfa’s questions, Ibn Maḥmūd argued that the state cannot perform blood tests on the basis of a suspicion of drunk driving and that a medical report is invalid evidence for the implementation of a ḥadd punishment. Sharia rulings, he reasoned, are based on clearly apparent actions because God deliberately conceals the secrets and sins of individuals when they are done in private. Hidden sins affect only the status of the moral agent. They should not be subject to state prosecution. Blood tests should be blocked because they fall under the category of doubtful evidence (al-shubuhāt). This “doubt canon” has played a central role in the juristic avoidance of the Qur’anic punishments. 

Ibn Maḥmūd’s reasons for this categorization are moral rather than epistemic. Ibn Maḥmūd did not question the truthful nature of blood test results. Rather, he associated them with the sinful quality of spying on others (tajassus). In reality, Ibn Maḥmūd’s reasoning simplified a more complex engagement with the concept of tajassus in the Islamic legal tradition. Muslim jurists outline three distinct rulings on tajassus: prohibition, permissibility, and obligation. Spying on other Muslims is forbidden prima facie due to a clear Qur’anic prohibition. In Muslim scriptural texts, spying is associated with suspicion, backbiting, the violation of modesty, corruption, and a lack of sincere faith. Classical jurists exempted some actors (political officials, market inspectors) and some cases (robbery, banditry, and war) from the general prohibition against spying. A central juristic question pertained to the conditions under which the invasion of the individual’s private space by public authorities may be allowed. The prohibition against spying here runs against the moral imperative of commanding good and forbidding evil. 

Jurists tended to assume that the state does not initiate spying. Instead, they considered whether state officials may act upon witness reports pertaining to a man’s acts and intentions –the intentions to kill or commit adultery or the presence of wine and music in someone’s house. The permissibility of acting upon such reports seems to hinge on the social reputation of the witness and of the suspect. If the informant is reliable, the ruler should do his utmost to prevent the evil man’s plans. If the suspect is known for engaging in alcohol consumption, then a policeman may inspect his premises; if not, the policeman should not act upon the witness report. “Social capital”, as Marion Katz has argued recently, “is an asset rightly protected by law”. Social rank shaped the way Muslim jurists incorporated customary practice into Islamic normativity and determined appropriate forms of discretionary punishment (ta‘zīr). Part of the problem with alcohol is precisely the fact that it undermines social rank. As Ibn Maḥmūd put it, under the influence of drink, “the lowly and fallen man imagines he is a powerful king.” Society needs to be able to protect its secrets, but alcohol divulges them. 

Ibn Maḥmūd’s fatwa thus displays both continuities and discontinuities with the terms of the classical legal debate. Ibn Maḥmūd’s reasoning overlooked the imperative of commanding good and forbidding evil, as well as the public benefit and the deterrent effect that may accrue from the generalization of blood tests. Maḥmūd could easily have invoked “public interest” to legitimize the deputy-ruler’s discretionary action, especially since considerations of public interest framed traffic laws in Qatar. The refusal to give free rein to rulers seems nevertheless in line with the way Ibn Maḥmūd engaged state authorities in the second half of the twentieth century.   

Instead, the Chief Qāḍī re-described and parochialized modern medical practices in light of classical Islamic legal categories and, in doing so, protected a private space of Muslim freedom from the intrusive powers of the modern state. The indiscriminate use of a new medical technology risked undermining the social reputation of moral subjects – especially perhaps the male elite (members of the ruling family and prominent merchants) who owned most cars in the 1960s. The preservation of social reputation required the experienced exercise of a judge’s gaze, not the indiscriminate use of modern technology by an increasingly anonymous state. By rendering the social and legal distinctions that were central to the operations of the sharia obsolete, Ibn Maḥmūd appears to be saying, modern technology allows the state to engage in governmental aims and extend its regulatory ambitions into previously protected private spaces. 

Ibn Maḥmūd’s fatwa thus appears to conceptualize the car as “a sanctuary” and a “zone of protection” between the individual driver and the outside world – an extension of the private sphere into the public domain. The fatwa extended the belief in privacy which individuals have regarding their homes to the automobile. Both the questioner and the mufti assumed that automobile use is ethical, and that autonomy and mobility outweigh personal dangers and environmental threats. As “portable private spaces dependent on public rights”, cars complicated the neat dichotomies of classical legal thought – both Muslim and Western. In the Gulf as elsewhere, the automobile progressively undermined the distinction between public and private space upon which Ibn Maḥmūd’s reasoning rested. The 1968 fatwa can therefore be read as a product of the “fundamental incongruity” of traditional Islamic jurisprudence in the age of automobility. 

In the aftermath of the 1971 British departure from the Gulf, Ibn Maḥmūd and his colleagues in the sharia courts continued to uphold the concept of tajassus occasionally. As the Presidency of Sharia Courts became progressively integrated into a dense network of state institutions, however, sharia judges came to accept the validity of blood tests in legal procedures. In 1997, a Qatari man was sentenced to eighty lashes and one-month imprisonment for possession of wine bottles and testing positive for alcohol in his blood. The defendant appealed the decision to the Sharia Appeal Court on two grounds. Firstly, since the consumption of wine took place in his private home, the conviction was based on the illicit and blameworthy act of spying (tajassus) condemned by God and His Prophet. Secondly, the First Instance Court failed to adequately consider the man’s health status and social condition. The Sharia Appellate Court summarily dismissed both claims and upheld the condemnation of the first-instance court. It ruled that the inspection of the appellant’s premises was conducted in accordance with the sharia court’s procedures and that the sentence was aligned with its regulations regarding discretionary punishment. 

The Islamic legal concepts which had grounded Ibn Maḥmūd’s opposition to blood tests became increasingly unintelligible for a new generation of legal scholars keener to offer comprehensive legal doctrines instead. The traditional distinction between private and public spheres was further undermined by the logic of modern state-building and by the adoption of new normative frameworks and social imaginaries. Rather than an example of “the many amoral decisions confronting Muslim states” or the type of policy matters where sharia knowledge becomes irrelevant, traffic turns out to provide privileged insights into national sovereignty, jurisdictional politics, and the reconfiguration of public and private space. Contestations over traffic laws provide concrete perspectives for re-examining conventional assumptions regarding modernization processes and religious versus secular divides, highlighting the value of procedure for tracking and explaining changes in the moral and legal imagination of contemporary Muslim societies.  ♦

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Recommended Citation

Caeiro, Alexandre. “The Ethics of Procedure: Traffic Laws, Modern Technology and the Reconfiguration of Privacy in the Arabian Gulf.” Canopy Forum, May 6, 2025. https://canopyforum.org/2025/05/06/the-ethics-of-procedure-traffic-laws-modern-technology-and-the-reconfiguration-of-privacy-in-the-arabian-gulf/.

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