Too Far from Tradition

A response to “Islam and the Challenge of Democracy”

Mohammad H. Fadel

8Khaled Abou El Fadl argues passionately that democracy and Islam share certain fundamental moral notions, and that Muslims may, therefore, assimilate democratic norms without abandoning their religious beliefs. He marshals an impressive array of sources in support of his argument: verses from the Qur’an and sayings of the Prophet Muhammad, as well as medieval works of Islamic jurisprudence, treatises of Islamic substantive and constitutional law, and Islamic political philosophy. The sheer breadth of his argument precludes a detailed response here, and accordingly, I will address only some of the major points of his argument.

1. Abou El Fadl insists that democracy and Islam must be understood as “moral systems.” The affinity of Islam and democracy lies in the concept of “justice”—democracy is a system of government that “offers the greatest potential for promoting justice and protecting human dignity.” Because Islam is widely acknowledged to be concerned with justice, Abou El Fadl argues that “justice” is the “key” moral value by which the moral systems of democracy and Islam should interact.

But Abou El Fadl also points to a fundamental tension within the Islamic tradition: does justice exist independently of the norms of revelation, or is justice itself known only as a consequence of revelation? Unlike Abou El Fadl, most Muslim theologians settled on the latter position--that knowledge of what is just and good requires revelation. This position was not necessarily an indictment of human reason, which could, according to these same theologians, be relied upon to demonstrate the existence of God and distinguish truth from falsehood. Rather, it was a recognition that because the ultimate good is salvation, not justice (understood as a matter of how we interact with one another, and not as a matter of right conduct generally or of submitting oneself and one’s desires to the rule of reason), revelation has priority in matters of moral knowledge. It is somewhat surprising, then, that Abou El Fadl would partially ground the basis for democratic life among Muslims on a heretofore discredited theological argument, according to which justice is independent of relevation. His case would have been stronger if he had demonstrated that democracy is consistent with either theory of the good traditionally espoused by Muslim theologians.

2. Abou El Fadl’s focus on the relationship of justice to revelation also obscures some fundamental points about Islamic law. Islamic law is not simply a law derived from revelation, nor is it merely scriptural exegesis. Much of Islamic law, as Muslim jurists themselves understand it, is conventional. That is the case with rules of international law. In other areas, such as contract law, Islamic law provides a set of procedures that regulates the exchange of entitlements created by some other system—for example, property law. Accordingly, one can accept the orthodox theological position that revelation defines the good, while at the same time acknowledging that revelation answers only a limited number of cases. So the application of revealed principles requires human societies and conventions to establish baseline entitlements. How those entitlements are to be distributed requires some theory of the state and justice, even if only implicit.

Thus the Qur’an provides that, as a religious matter, a man may marry up to four wives simultaneously. Viewed from the perspective of salvation, then, plural marriage is not sinful. But revelation does not answer the legal question of whether, as a default matter, men should have an entitlement to multiple marriages, and if so, whether such an entitlement should be alienable or inalienable. These matters depend on social convention. This approach to Islamic law mirrors two terms used by the Qur’an for justice, ‘adl and ma‘ruf, the former denoting procedural justice and the latter meaning substantive justice. Significantly, the latter term literally means “that which is known” and thus suggests conventional (and hence) changing norms.

3. Abou El Fadl’s argument fails to address why, if the ultimate good is salvation, a Muslim should prefer a democratic state to a theocratic regime that teaches true doctrine. Medieval scholastic theology, which declared that the first moral obligation of a human being is inquiry, may provide a solid basis to explore this question: democracy permits members to fulfill that first obligation, whereas a theocratic regime does not. One could also point to the historical distaste exhibited by (at least) Sunni Muslims for regimes claiming infallible access to metaphysical truth as another factor privileging democratic life over life in an authoritarian regime. Finally, the well-established theological principal that human culpability before God arises only after an individual has had a sufficient opportunity to discover and reflect upon the proofs of God’s unicity and the truth of the prophets’ messages also provides a theological justification of diversity, by allowing for the possibility that persons may earn salvation, regardless of their belief, if they have spent their lives diligently pursuing truth.

4. Abou El Fadl aims to show that the Qur’an can be read to support democracy. But that does not go far enough. One must also show that fundamental principles of the Islamic tradition reinforce the existence of a democratic society and that such principles outweigh other readings that appear to contradict democratic notions. Abou El Fadl’s argument is weakest on this point. He pursues what some constitutional scholars might call a “top-down” approach, whereby one begins with abstract values (whether legal or religious/moral) and then, based on those values, designs the rules of a society. I advocate a “bottom-up” approach, whereby one begins with well-established legal rules, moral principles and theological truths, to demonstrate that these rules, principles and truths, taken as a whole, are more consistent with a democratic society than an authoritarian one.

Consider the case of human autonomy. Muslims may favor human autonomy as a political matter, not because of an abstract commitment to human dignity,¹ but rather because human autonomy is a requirement of living a moral life and thus is necessary for salvation. Muslims’ commitment to individual autonomy could be easily demonstrated by citations to numerous well-known medieval authors as well as particular rules of substantive rules that protect autonomy.² On this bottom-up approach, autonomy is deeply rooted in a wide range of rules and practices, not in a single value treated as a basic moral axiom.

5. Abou El Fadl argues, surprisingly, that the notion of enforcing God’s law is logically incoherent. Islamic law is indeterminate, he says. And he concludes that when its rules are enforced coercively, it is not the rule of God that is vindicated, but rather, “the state’s law.” The same objection could be raised against a secular legal system that derives its coercive legitimacy from the notion that it is enforcing the sovereign will of the people. Certainly the popular will is at least as indeterminate and subject to manipulation as revealed law. Does that mean that American judges, for example, only enforce their subjective notions of the law, and that the rule of law, because it is mediated by the subjective agency of fallible (and perhaps fickle) judges, conflicts with democratic ideals? Alternatively, one might argue that the language of revelation is particularly opaque in contrast to legislative statutes and judicial opinions. Such an argument would not garner much support among Muslims, however, because revelation, whether Qur’anic or in the form of Prophetic sayings, has always been deemed to be a model of literary excellence and clarity.

So Abou El Fadl’s argument suggests that no system of adjudication can effectively vindicate a moral vision, in which case, we are left with the question: Under what conditions are the coercive powers of the state legitimate? While Abou El Fadl has suggested possible answers to that question from the perspective of a Muslim liberal—in particular, that democracy provides a basis for legitimate law. But his answers raise their own difficult questions. I am convinced that the majority of Muslim intellectuals are, like me, convinced of the truth of Abou El Fadl’s conclusions. What is still open to debate, however, is whether his specific arguments for democracy are convincing in Islamic terms. <

Mohammad H. Fadel has clerked on the United States Court of Appeals for the Fourth Circuit and and currently practices law in Manhattan.

Notes

1. For example, the Qur’an states, “We have indeed created man in the most handsome of forms, then We reduced him to the lowest of the low, save for those who believe [in God] and perform good deeds. . .”

2. For example, a famous medieval Mamluk jurist, al-‘Izz b. ‘Abd al-Salam, noted in one of his works of jurisprudence that interference with the autonomy of a free person is itself a legal injury which can be justified only in limited circumstances.

Click here to return to the New Democracy Forum, “Islam and the Challenge of Democracy” with Khaled Abou El Fadl and respondents.