Jeremy Waldron

8Reading Khaled Abou El Fadl’s exploration of the prospects for a theory of Islamic democracy, I was struck by the similarity between the way these issues are posed in the Islamic tradition and the way ideas about politics and the rule of law were posed in the context of medieval and early modern thought in the Christian West. There, too, ideas about law, good governance, individual rights, and consultative decision-making had to struggle to make themselves heard in the context of scriptural authority and theocratic rule. And the remarkable thing was that these ideas not only grew up in what appears now to have been a most unpromising environment, but they were actually energized by religious ideas and ecclesiastical practices. Harold Berman has described the role of canon law as a model for the formation of the Western legal tradition in his book Law and Revolution; and those who read medieval and early modern theories of natural law know that one of their major contributions was to sustain the idea of the rule of law—paradoxically, the rule of human law—and to limit the pretensions of earthly sovereigns. Religious conceptions of the dignity and basic equality of all those created in God’s image also played an indispensable role in the emergence of natural rights.

We can see well enough that Christendom might have nurtured instead doctrines of closed and implacable authority, of arbitrary bulls and canons presented as decrees from on high, of law as a harsh body of commandment and discipline, of the intolerant suppression of anything that might be deemed heretical, and of the abject subordination of most people under the authority of bishops and kings consecrated with divine right. And God knows there was enough of that. Nevertheless there turned out to be a way in which ideas at the very foundation of this intolerance and authoritarianism were able to nourish what we can now recognize as the rule of law and human rights. And this should be heartening to those exploring similar possibilities in an adjacent Abrahamic tradition of Biblical and potentially theocratic thought.

I say that not as part of a discourse of backwardness and development, as though Islamic thought now needs to undergo processes that Christian thought went through five hundred years ago—that would be preposterous as well as insulting. Apart from anything else, it would neglect the role of Islam as a sponsor of Western development, for example in preserving and reintroducing the works of Aristotle into the Christian West in the twelfth century. Moreover such a discourse would underrate the role of contingency in all of this. At any stage, the balance of Christian political philosophy might have tilted decisively in favor of authoritarianism (and, for all we can say, it still might). The point can only be that, as a matter of fact, a path was navigated through these obstacles and conundrums. There turned out to be a way of thinking about the rule of law and individual rights that did not involve repudiating the Christian heritage. And if Abou El Fadl is right, Islamic scholars are now exploring a path that is remarkably similar.

As Abou El Fadl himself notes at the beginning of his essay, liberal constitutionalism, respect for rights, and the rule of law are one site of ideas, but they do not add up to democracy. Democracy depends on the rule of law, to be sure, both for its constitutive procedures and for the respect that its outcomes command (respect for legislation enacted by a representative assembly, for example). But the rule of law can exist without democracy. And the same is true of respect for rights. A society can uphold individual rights (to various liberties, due process, toleration, and guarantees against abuse) without being democratic. There cannot be a democracy without respect for rights, but rights have to have a particular content and flavor before they can define processes of democratic decision-making. I wish Abou El Fadl had drawn these connections more clearly. For example, it is not enough in a democracy that people have rights of free speech or that dissidents are tolerated. In a democracy we have to tolerate dissidents attempting to replace the government. And we have to set up procedures that will allow them to do just that under certain conditions. Toleration may be an admirable human rights ideal, but it is not the same as a principle of loyal opposition, nor is it the same as a system that empowers dissident parties regularly to test the extent of their support in free and fair elections.

For these essentially democratic ideas to emerge in Western thought, it was not sufficient that the rule of law and the dignity of the individual be shown to be compatible with religious foundations. Three additional ideas were necessary: first, the idea that when people disagreed about fundamentals, any of the opposed ideas might reasonably become the basis of policy or law; second, the idea that a society was composed of different interests capable of generating diverse perspectives and opinions; and third, the idea that reasonable controversy might be so pervasive that decisions would have to be taken through processes of deliberation and voting rather than through the individual reflection and pronouncements of an authoritative ruler. It is customary to invoke the Reformation in our account of how these ideas caught on in Christendom, and Abou El Fadl touches on this when he notes “the distinctive context of post-Reformation, market-oriented Christian Europe.” However, I am inclined to think that the role of the Reformation has been exaggerated. Protestant societies are not in fact noted for their acceptance of principles of reasonable disagreement and loyal opposition; often they have been more self-righteously authoritarian than their Catholic counterparts. Instead, what were important in the Judaeo-Christian tradition were some older ideas and practices: conciliar decision-making within the Church; the sort of recognition that people could differ on fundamentals and still regard one another as reasonable that we see, for example, in Talmudic debate; and above all an awareness that the diverse interests in a heterogeneous society are entitled to be heard in their own voice when important political decisions are being made. Abou El Fadl touches on all three points in his article, but I would suggest that more emphasis is needed on each of them in an Islamic theory of democracy, as part of a recognition that the “democracy” we are aiming at is not just a system of constitutional rights but a system of open decision-making empowering and facilitating the confrontation between opposed ideas and interests in the context of representation, debate, and voting. <

Jeremy Waldron is Maurice and Hilda Friedman Professor of Law at Columbia University. His most recent books are The Dignity of Legislation and God, Locke, and Equality.

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