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
