Politics, religion, and culture where East meets West

Khan: Freedom to interpret Shari‘ah

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In Khaled Abou El Fadl’s collection of essays, Islam and the Challenge of Democracy, which I reviewed here, there was one essay response in particular that I thought worth posting. That was M. A. Muqtedar Khan’s “Primacy of Political Philosophy,” as it is titled in the collection. In a slightly more primitive form than in the book (from Khan’s website), it is reproduced below.

I recommend reading the original post as well as Abou El Fadl’s essay before continuing.

Instead of saying that liberal values are at the heart of Shari’ah, and potentially leaving it up to government jurists (ulema) to decide what that means, Khan gets rid of the jurists entirely, forcing the demos to interpret Shari’ah for themselves—individually. Khan maintains that if the jurists aren’t kicked out, there will be an inevitable regression to a government where the jurists, the privileged interpreters of Shari’ah, rule. The only answer is to remove them from government.

It is tempting to read Khan’s argument as “Shari’ah is not necessary for Islam, so let’s get rid of Shari’ah and make way for democracy.” Unfortunately, Khan is careless, perhaps relying on Abou El Fadl’s prior explanation of Shari’ah. So to understand Khan’s argument, one must think of Shari’ah as unquestionably divine and perfect, notwithstanding its earthly interpretation and practice. Indeed, its earthly interpretation and practice is what Khan takes issue with, claiming that when there is a monopoly on interpretation of Shari’ah, democracy is not possible. Instead, there must be individual freedom to interpret Shari’ah. Unlike Abou El Fadl, who attempted to liberalize Shari’ah itself for the sake of assigning rights (acting all the while as a jurist), Khan encourages the liberalization of interpretation.

In the space permitted, I think that Khan makes a good case for not only (1) the necessity of individual freedom of interpretation for the success of democracy, but also (2) the Islamic precedent for individual freedom of interpretation. But it’s about time I allow Khan to speak for himself, and the reader to decide.

The Priority of Politics: A Response to “Islam and the Challenge of Democracy”
M. A. Muqtedar Khan; Boston Review; Apr./May 2003

The Tyranny of Legalism

The Islamic intellectual tradition—which includes Islamic legal thought (Usul al-fiqh and fiqh), theology (Kalam), mysticism (Tasawwuf) and philosophy (falsafa)—is one of the most developed and profound traditions of human knowledge. In the area of political philosophy, however, this intellectual heritage remains strikingly underdeveloped. One of the reasons for this lacuna is the “colonial” tendency of Islamic legal thought. Many Islamic jurists simply equate Islam with Islamic law (Shari‘ah) and privilege the study of the latter. As a result we have only episodic exploration of the idea of a polity in Islam. Hundreds of Islamic schools and universities now produce hundreds of thousands of Islamic legal scholars but hardly any produce political theorists or philosophers. With some rare exceptions, this intellectual poverty has reduced Islamic thought to the status of a medieval legal tradition.

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 [sic].

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.


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