The extraordinary influence of the idea of “Islam as Shari‘ah”
has made law prior to the state and political life. Instead of thinking
of law as serving the changing needs of the political community,
the polity is said to be legitimate only if it properly implements
Shari‘ah. Abou El Fadl’s own erudite discussion of the
compatibility of Islam and democracy reflects this mistaken view
of law and politics. Thus instead of concluding with a sketch of
an Islamic democracy, he ends by imposing Shari‘ah-based limitations
on democracy. He claims that a case for democracy from within Islam
should not substitute popular sovereignty for divine sovereignty
and should recognize that democratic lawmaking respects the priority
of Shari‘ah. He begins his essay as a political philosopher
and ends it as an ayatollah laying down the edict—you can have
democracy but only as long as people are not sovereign and Shari‘ah
is not violated.
Abou El Fadl presents a brilliant discussion of the Islamic moral
and ethical principles that can help make a case for democracy.
But, ultimately, he reinforces traditional barriers rather than
deconstructing them. One of the most prominent Islamic theologians,
Sheikh Ibn Taymiyyah (1263–1328)—a source of great inspiration
to conservative Muslims who advocate authoritarianism—argued
for an Islamic leviathan that would defend the Islamic world from
external military threats and Islamic doctrines from internal heresies.
He claimed that the object of an Islamic state was to impose the
Shari‘ah.
Abou El Fadl, too, argues that an Islamic democracy should recognize
the centrality of Shari‘ah in Muslim life. This claim is scary,
and prompts several questions. Who gets to articulate what constitutes
the Shari‘ah? Islamic jurists? Who determines who an Islamic
jurist is? Who determines which schools can provide the education
that will produce jurists? Who determines when a specific democratically
passed law is in violation of the Shari‘ah? Who determines
the issues on which people will have freedom of thought and action
and the issues on which the so-called Shari‘ah will be unquestionable?
The answer to all of these questions is the same—the Muslim
jurist. A close reading of Abou El Fadl’s arguments suggests
that an Islamic democracy is essentially a dictatorship of the Muslim
jurists. It is much like contemporary Iranian democracy, which is
often held hostage by the clerics.
There will be no Islamic democracy unless jurists permit the democratization
of interpretation. Let every citizen be a jurist and let her
interpret Islam and Shari‘ah when she votes. In a democracy
the vote/opinion/fatwa of every individual must be considered equal
since ontologically all humans are equals. Insisting on the centrality
of a fixed Shari‘ah is a recipe for authoritarianism. Abou
El Fadl is interpretively more liberal than his traditional colleagues
and his vision of the Shari‘ah is more inclusive, but as long
as the commanding authority of jurists remains in place, and the
jurists retain a monopoly on interpretation (Ijtihad), there
can be no Islamic democracy. To be sure, the moral quality of this
Islamic democracy will depend on the extent of Islamic knowledge
and commitment of the citizens. But attempts to guarantee “Islamic
outcomes” by requiring that, for example, “the essential
Shari‘ah must be applied” will inevitably subvert democracy
by handing authority over to jurists. Also, the Prophet of Islam
(pbuh) reportedly said that “My Ummah will not unite
upon error.” But no comparable claim is made about the infallibility
of the opinions of the jurists. We are left, then, with the democratic
idea that only public opinion should be trusted.
In short: the content of law in an Islamic democracy should be
a democratically negotiated conclusion emerging in a democratic
society. In the absence of this free and open negotiation, Islamic
democracy will be a procedural sham that confines voting mechanisms
to secondary matters.
Divine Sovereignty and Human Agency
The idea that God is
the lawgiver in an Islamic state, whereas human agents are the source
of law in a democracy originates with Maulana Maududi. Maududi coined
the term Al-Hakimiyyah (sovereignty) and argued that in Islamic
states only God was sovereign whereas in a democracy the will or
whim of the majority rules. This misunderstanding of both sovereignty
and democracy has become a slogan for Islamists opposed to democracy.
Democracy implies more than mere majority rule. Constitutional
democracies have guarantees that protect individuals from majority
tyranny. The articulation of human rights as inviolable—as
rights that cannot be taken away even by the will of the majority—is
a clear example that democracy is not just mob rule.
Moreover, Islamists who talk of God’s sovereignty have a narrow
conception of sovereignty. Muslims must understand that while sovereignty
belongs to God it has already been delegated in the form of human
agency (Qur’an 2:30). The political task at the moment is to
reflect on how this God-given agency can be best employed in creating
a society that will bring welfare and the good life to people in
the here and now and in the hereafter.
Muslims as individuals and as a community cannot be held accountable
for what they do unless they have some freedom, agency, or sovereignty
to act on their own judgments and preferences. The Day of Judgment
is the natural consequence of human sovereignty; there cannot be
one without the other. Although God is sovereign in all affairs,
he has exercised his sovereignty by delegating some of it in the
form of human agency.
To appreciate the nature of this delegation, one has to recognize
the difference between sovereignty in principle (de jure)
and sovereignty in fact (de facto). De facto sovereignty
is always human whether in a democracy or in an Islamic State. The
effect of claiming simply that God is sovereign and has the sole
right to legislate is to privilege the few who will act in God’s
name. In an Islamic democracy every individual is a vicegerent of
God (Qur’an 2:30) and therefore has the legitimate authority
to act in God’s name. Thus every citizen has the right to interpret
and claim what is law (divine or otherwise). Though sovereignty
is always God’s in principle, human agency is what matters
in practice. So we must assume that sovereignty is essentially human
agency that must be both channeled and limited to establish just
polities.
Ideas such as the primacy of Shari‘ah and God’s sovereignty—which
make states accountable to God alone and free them from accountability
to the people—give power to a social elite. These are age-old
canards that undermine freedom and encourage authoritarian states
and totalitarian Ulema. To establish an Islamic democracy
we must first create a free society where all Muslims can debate
what constitutes the Shari‘ah. Critics will say that God’s
will is not up for negotiation. But the imposition of law is against
the spirit of Islam. God wants free submission. He wants
his believers to worship him and obey out of free faith, not from
fear of some state. Freedom comes first, and only faith that is
found in freedom has any meaning. Practice of religion under duress
violates Qur’an, which is against compulsion (2:256), and is
manifestly worthless.
I share Abou El Fadl’s conviction that Islam and democracy
are fundamentally compatible. To me, democracy is essentially intimidation-free
political space which accepts the necessary evil of government and
allows for a limited state that rules through consent, consultation,
and accountability while recognizing the inalienability of certain
principles and values (rights and duties). But a proper appreciation
of these political-theoretical issues requires that the Muslim mind
free itself from its legalistic tendencies and stop privileging
Shari‘ah as given. We must first seek to establish a
polity that is Islamic/democratic and then negotiate what its laws
will be.
The Constitution of Medina as a Social
Contract
If we bypass the legalist
tradition and return to the original sources of Islam we will find
in the Prophet’s example an excellent model for an Islamic
democracy.
After Prophet Muhammad (peace be upon him) migrated from Mecca
to Yathrib in 622 CE, he established the first Islamic state. For
ten years Prophet Muhammad was not only the leader of the emerging
Muslim Ummah in Arabia but also the political head of Medina. As
the leader of Medina, Prophet Muhammad exercised jurisdiction over
Muslims as well as non-Muslims within the city. The legitimacy of
his rule over Medina was based on his status as the Prophet of Islam
as well as on the basis of the compact of Medina.
As Prophet of God he had authority over all Muslims by divine decree
(64:12, 47:33). He ruled over the non-Muslims of Medina by virtue
of the tripartite compact that was signed by the Muhajirun (Muslim
immigrants from Mecca), the Ansar (indigenous Muslims of Medina)
and the Yahud (Jews). This compact was the basis of the polity of
Medina. It established a federation of communities that were equal
in rights as well as duties. Thus the Jews of Medina were constitutional
partners in the making of the first Islamic state.
The compact of Medina provides an excellent historical example
of two theoretical constructs that have shaped contemporary democratic
theory—constitutions and social contracts—and should therefore
be of great value to theoretical reflection on the Islamic state.
In the state of nature people are free and are not obliged to follow
any rules or laws. They are essentially sovereign individuals. Through
social contracts they surrender their individual sovereignty to
the collective and create states. The state then acts as an agent
of the sovereign people, exercising the sovereignty that has been
delegated to it through the social contract. The state is accountable
to the people who constitute it and derives both legitimacy and
power from the contract. Constitutions are the explicit articulations
of the social contract and act as the legal basis of the polity.
On the basis of the Compact of Medina, Muhammad ruled Medina by
the consent of its citizens and in consultation with them. The Compact
of Medina, which served the dual function of a social contract and
a constitution, legitimized his authority over Medina. Muhammad
in his great wisdom demonstrated a democratic spirit quite unlike
the authoritarian tendencies of many of those who claim to imitate
him today. He chose to draw up a historically specific constitution
based on the eternal and transcendent principles revealed to him
and sought the consent of all who would be affected by its implementation.
The Compact of Medina did not impose the Shari‘ah on anyone,
and no laws were understood as given prior to the Compact.
Prophet Muhammad’s divine mission or the divine message of
the Qur’an did not in any way undermine the principles of the
Compact, though of course the values enshrined in it echo Islamic
values of equality, consultation and consent in governance. As long
as Islamic jurists focus on the post-Muhammad development in the
discipline of Islamic legal thought and privilege it over Muhammad’s
own practice, authoritarianism will always trump democracy in the
Muslim milieu.
Several Challenges Remain
Democracy must triumph
in theory before it can be realized in practice. Muslims must widely
and unambiguously accept that Islam and democracy are compatible
and that meaningful faith requires freedom. Once we accept these
principles we can address the political issues more easily.
But before Muslims can accept democracy as an Islamic principle,
Islamic political philosophy must accomplish the following tasks:
1. Link political legitimacy not to the application of a legal
code that is prior to politics, but to the binding character of
Shura (consultation).
2. Reject the idea of a fixed Shari‘ah in favor of keeping
Shari‘ah open and dependent on negotiated understanding.
3. Explain how talk of divine sovereignty works to free rulers
from accountability to the ruled.
4. Acknowledge the limits of the Islamic legal tradition and eschew
it in favor of the Compact of Medina as a basis for Islamic democracy.
5. Treat Islam as a fountain of values that guide conduct rather
than a system of ready-made solutions to problems.
6. Past legal opinions must not subvert contemporary political
reflections. We will be free only when we can freely determine for
ourselves what is the Shari‘ah. There is no mediation in Islam
and the Islamic jurists must step aside. As long as the colonial
tendencies of Islamic jurisprudence persist there will be no Islamic
democracy. <
M. A. Muqtedar Khan, director of international studies,
assistant professor and chair, department of political science at
Adrian College, is author of American Muslims.
Click here to return to
the New Democracy Forum, “Islam and the
Challenge of Democracy” with Khaled Abou El Fadl and respondents.
Originally published in the April/May
2003 issue of Boston Review
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