How, exactly,
might Islam and democracy coexist?
The sine qua non of
democracy is collective self-government through popular elections. If one looks at the medieval
classics of Islamic political theory, though, such elections do not
figure. Nor have governments
in Islamic history, from the earliest period until today, relied on
popular elections when choosing their leaders. Yet in recent years, various
proposals for Islamic democracy built on consultation, consent of the
governed, and political pluralism have emerged. Islamic democrats--from
intellectuals like Tunisian exile Rachid Ghannouchi, to politicians like
President Mohammad Khatami of Iran, to ordinary Muslim would-be
voters--all have subtly different views about the nature of Islamic
democracy. But their
arguments converge at certain points, and can be combined to give an
overview of the theory of Islamic democracy.
The central element of all these proposals is
a rich conception of the Muslim community or umma. The first Muslim community was
organized out of tribes whose pre-Islamic identities derived from intense,
complicated structures of tribal solidarity. Tribes had their own poets who
sang the tribes’ history and glories. They had their own holy men and
gods, and their own tribal war-cries handed down for generations. The Prophet convinced the members
of these divided tribes to see themselves as united by a belief in God and
in Muhammad’s prophecy.
Adopting Islam meant transcending tribal solidarity to put one’s
identity as a Muslim and a member of the community of Muslims first. That the Prophet’s revolutionary
message of community-formation succeeded in such an inhospitable
environment is testament to its appeal, and to the early Muslims'
capacities to imagine themselves in new ways. The coalescence of the Arab tribes
under the banner of the Muslim community was as remarkable as it was
formidable.
As Islam spread through the Near and Middle
East, the idea of the community became ever more capacious, expanding
across ethnic, linguistic, and geographical boundaries. The community of the Muslims did
not eliminate these other forms of identity, nor seek to make them
disappear, but presented itself as a point of unification beyond and above
other kinds of identity. The
community of the Muslims was a community of faith, but also a political
community, governed during the Prophet’s life on the basis of legislative
direction provided by God.
After Muhammad’s death, however, prophecy ceased, leaving questions
of who would rule, and on what legal basis. In the voluminous and highly
speculative literature about the early years of Islam, there is a general
consensus that the first rulers of the community adopted the title
“Caliph” (Arabic khalifa),
which means a delegate or a viceroy or a replacement: someone who stands
in for someone else. Whether
the caliphs were stand-ins for the dead Prophet or delegates of God
Himself turns out to be a difficult historical question that remains
unresolved with respect to the early caliphate. In any case, from the beginning of
Muslim history, the caliphs were understood to be selected by people, not
God; they were subject to God’s law as described in the Qur’an and the
sayings of the Prophet; and they were expected to engage in some sort of
consultation with the community they governed. These features of early Islamic
political theory provide the basis for all modern theories of Islamic
democracy.
Early Muslims agreed that the caliph was not
to be chosen by God, but nominated and then approved by a group of people
with the power to “loose and bind.”
“Loosing” and “binding” are legal metaphors for binding people to
allegiance to a government, or absolving people of the responsibility to
obey. Once the caliph was
nominated, he then had to be approved through an “agreement” (the Arabic
word, bay'a, means any
contractual agreement, especially a commercial one) in which the binders
and loosers formally gave their agreement to his ascension to the position
of caliph. This
bound the community of the Muslims to obey the caliph; but as the concept
of “loosing” suggested, the people may in theory have retained the power
to displace the caliph if he did not keep his side of the
bargain.
Like any historical evidence of ancient
constitutional practices, the agreement between the caliph and the people
who loose and bind has been subjected to various interpretive strategies
over the years. Medieval
political theorists tried to make sense of the agreement in ways that
would legitimate caliphs and caliphal-aspirants who had no intention of
letting anyone but themselves have constitutional authority. Many Islamic modernists, however,
and some Islamists today, see the roots of modern democracy in the
nomination of the caliph and the agreement between the caliph and the
binders and loosers. The
caliph does not ascend the throne, but is selected--or if you will,
elected--by a group of people who represent the entire Muslim
community. His authority
therefore derives, they argue, from the consent of the Muslim people. This is the consent of the
governed in capsule form.
The caliph, or any other ruler who might be
appointed in the absence of a qualified and effective caliph, has the task
of administering Islamic law, not of making it. Islamic law derives ultimately
from God, but it is interpreted by the scholars and by the community as a
whole through the consensus of the community. The ruler is subject to the law,
not above it. The Islamic
state is a state of rights and law, not arbitrary or absolute power. In it, the ruler is
accountable to God and to the people who have assented to his
rule.
And once the ruler is in power, he must follow
the Qur’anic command to engage in consultation (shura). The nature of this consultation is
not specified in any detail in the Qur’an, which leaves a great deal of
room for speculation and argument.
Indeed the proceedings of a conference on the subject of shura and democracy held at
al-Azhar in 1997 fill three thick volumes. But in recent years, Muslim
political theorists have argued that it amounts to a robust exchange of
political views, expressed through elections that give bite to the
opinions expressed by the people.
In this process, opinions will differ, but this, too is anticipated
by the disagreement on questions of Islamic law that the community of the
Muslims has always tolerated as an inevitable result of human disagreement
about what God’s word means.
While some critics object that consultation can never be binding,
others try to make it obligatory for the ruler to follow the people’s
will, or lose his post. This
is particularly plausible if the ruler is not a caliph, but simply a
person chosen to lead by virtue of being elected to the job.
It is tempting to undermine this
sketch of the “binding and loosing” theory by asking how plausible it is
in historical terms, or by assessing the ways that contemporary Muslims
have distorted such classical theories in order to rationalize new forms
of governance. Historically
valuable as such an exercise might be, it would profoundly miss the
point--which is that many modern Muslims see in their tradition the seeds
of democratic structure. The
question is not whether that democratic structure is “really there” in
early Muslim history or classical Islamic political theory; that is an
interpretive question for Muslims to address. What matters is that potential
democratic readings of Islamic tradition are possible, and that Muslims
today are reading their tradition are their tradition that way.
This precis of the theory of Islamic democracy
is just the beginning of a full fledged account of Islamic democracy,
ruled by an elected leader responsible to law and the people. There are various ways in which
Islamic democracies might shape the relationship between elections,
legislatures, and Islamic governance, while remaining true both to some
form of democracy and to some form of Islam. All have been suggested by various
Muslim thinkers.
One possible Islamic state would guarantee
equal rights and freedom of religion to all its citizens, Muslims and
non-Muslims alike. What makes
such a state Islamic might be simply a declaration that Islam is the
official religion of the state, and perhaps some commitment to this ideal
in the symbolism of flags, oaths of office, prayers of invocation, and
state support of mosques. Assume all these activities were decided by a
large majority vote, and that Islamic law did not form the basis for the
laws of the state. The
state would be Islamic in much the same way that
Britain is
Anglican Christian.
Such a state could surely be counted as a
democracy. The
existence of an official religion does not necessarily infringe on any
basic right. That does
not mean that the declaration has no effect on non-Muslims, who are being
told that, in some sense, their state chooses to ally itself with beliefs
they do not share.
Non-Muslims will likely feel their minority status keenly. They may feel awkward,
uncomfortable, or even insecure.
But so long as the decision to make Islam the state religion
follows a democratic principle of collective self-government, the
declaration of Islam as the official religion is democratically
justified. The harm to
non-Muslims may be real, but it does not differ from the harms suffered by
religious minorities elsewhere, such as British Muslims.
A second possible Islamic democracy might
adopt a provision in its constitution announcing that classical Islamic
law shall be a source of law for the nation. This is a very popular suggestion
among Islamists as a step towards the creation of an Islamic state.
Pakistan
and Egypt
both have versions of such provisions in their constitutions. If the people have in fact
chosen this constitutional provision legitimately, then there is a sense
in which this is nothing more than a constitutional decision following
from electoral politics and expressing values shared by the great
majority. In another sense,
though, the injection of Islamic law or its values into the state’s legal
system creates a backdrop for laws that will be passed later. That shari‘a backdrop places Islam and
traditional or believing Muslims into a potential alliance with the state.
Muslims might be able to relate to the laws of the state differently from
non-Muslims. Even if we
assume that making shari‘a into
a formal source of law means that the people could choose not to adopt classical Islamic law
whenever they wanted, the constitutional provision still sets the default,
making it easier for Muslims than for other people to get laws passed that
accord with their preferred values. This places non-Muslims (as
well as secular Muslims, sectarian Muslims, or those who argue that shari‘a must evolve) at a distinct
disadvantage in the political sphere, even if they get to vote and
participate in elections.
This is a real problem for imagining Islamic
democracy, but it is not insurmountable. An Islamic state that
acknowledges classical Islamic law as one source of law among several is
still not embracing Islamic law in its totality. The state can still make sure that
basic rights are observed and that the state treats everyone equally. As I shall explore in a moment,
Islam itself does not need to be interpreted as insisting on the second
class citizenship of non-Muslims.
So long as the state protects non-Muslims and treats them equally,
this state, too, might be compatible with democracy.
A third possible Islamic state might adopt
Islamic law as its exclusive legal system. The legislature could accomplish
this by enacting, law by law, a code of rules that correspond to Islamic
law. There actually is
such a code in existence, enacted in the later phases of the
Ottoman Empire in an attempt to bring codified
order to the classical Islamic law.
This code, the Majalla,
was used as a model for many codes of law that exist in the Muslim world
today. In practice, the
legislature would have to choose just one interpretation of Islamic law
for each of the provisions that it chose. This approach sounds as if it is
consistent with democratic practice, since it involves a series of
decisions by a democratically elected legislature.
Alternatively, an Islamic democracy
might adopt Islamic law across the board by enacting a constitutional
provision stating that classical Islamic law shall be the law of the
land. Classical Islamic law
is more like old English common law than like statute law. Instead of statute books full of
hundreds or thousands of codified legal rules, classical Islamic law
consists of the opinions of scholars and judges throughout the ages,
recorded in everything from books of legal theory, to reports of actual
cases and decisions, to handbooks of hypothetical cases. The scholars disagree, and the
diversity of opinions on many legal questions is one of the glories of the
classical Islamic legal tradition.
All these legal sources reflect interpretations of the Qur’an and
the sayings and actions of Muhammad and his companions, but the
interpretations often differ.
Saudi
Arabia uses this full-blown system of
classical Islamic law, alongside a modern statute book that adopts just
one version of a rule of classical Islamic law. So when a Saudi judge considers a
difficult legal case, he (and it is always he) must make sense of this
broad body of knowledge, and distill it to its essence for the particular
case.
Such a system puts power in the hands of
unelected judges, not the people.
But the same is true of English or American common law in which the
law cannot be found in just one code or statute book, but must be
discovered or invented by judges who look to the body of received opinions
to decide the case before them. The common law still governs
many legal matters in the United
States, from traffic accidents to
breaches of contract and even some crimes, without our believing that it
upsets our democracy.
The reason is that the legislature has voted to adopt the common
law, just as the people have chosen to apply Islamic law across the board
in our imagined Islamic democracy.
So long as there are continuing elections and a changeable
constitution, the people could step in and change that rule if they wanted to, by
changing their constitution.
If the people never had a chance to decide whether to follow
Islamic law or not, then their choice was not democratic.
Saudi
Arabia is not a democracy, because there
was never a vote by the people to adopt Islamic law. But if a people
democratically enacted a constitution that provided for the use of
classical Islamic law, then we might be able to say that this choice was
democratic. This is true even
though the specific provisions of Islamic law derive from religious
tradition. Many laws that are
enacted by democracies have their roots in religious ideals and
values. Western laws against
murder, theft, and adultery (still on the books in many
U.S.
states) all can be traced to the Ten Commandments.
Once a basic picture of Islamic democracy is in place, it becomes
easier to see why Islam and democracy need not be incompatible if both are
conceived as flexible, simple, mobile ideas. Start with the essences of Islam
and democracy, which might appear to be incompatible. The word “democracy” means the
rule of the people. The
essence of Islam is often said to lie in its basic meaning: submission to
God, or more felicitously, recognition of God’s sovereignty. It would seem that either the
people or God could be sovereign, but not both. The title of one of the many
recent Arabic books on the topic of Islam and democracy nicely captures
this problem: The Rule of God, the
Rule of the People.
The key to resolving the apparent
incompatibility is to look more closely at what we mean by
sovereignty. Intriguingly,
even the U.S. Declaration of Independence does not expressly say that the
people are sovereign, but rather that all men are created equal, and
endowed by their Creator with certain unalienable rights. An unalienable right cannot be
eliminated even if the people vote to abrogate it. Unalienable rights therefore place
a limit on the sovereignty of the people, even in a democracy. If some rights come from God, and
the people cannot alienate or override those rights, then isn’t God
sovereign, and not the people?
Yet no one would say that the Declaration of Independence is
undemocratic.
The bottom line is that even in a democracy,
the place of sovereignty is complicated. The people may rule with respect
to some issues, but other issues are off the table, with the rules coming
from some other source, such as a theory of fundamental rights. Although the Constitution, which
the people can amend, never mentions unalienable rights or God, the Bill
of Rights does speak of certain pre-existing rights that are retained by
“the people.” Referring to
the U.S. Constitution does not absolutely prove that the essence of
democracy lies somewhere other than the sovereignty of the people--perhaps
the Constitution is undemocratic in some ways--but it does show that some
schemes that most observers would recognize as democratic acknowledge that
the people need not be sovereign in the sense of having the last word on
every question. That alone
opens up some space for us to see how the essences of democracy and Islam
might be compatible.
The word “Islam,” for its part, does imply recognition of God’s
sovereignty. But a Muslim
might acknowledge that God is sovereign over everything, and also believe,
at the same time, that God has left it up to humans to govern themselves
on every subject on which He has not provided a definite law or view. Suppose you are a Muslim, and you
accept that God said, in the Qur’an, that “there is no coercion in
religion,” so that religion must be chosen freely. If you believe that, then the
people cannot pass a law coercing Jews or Christians to accept Islam. God has spoken, and God is
sovereign. The same might be
true of the penalty for murder.
As a Muslim, you might believe that capital punishment is only
permissible for a murderer who has been tried and convicted based on the
eyewitness testimony of two reliable men. God has set this limit on the
penalty, through His message as interpreted by Islamic law, so the penalty
is off the table if there is only one witness, even if we know the culprit
is guilty. This belief is no
different in its structure than what some democrats think about basic
rights.
Acknowledging God’s sovereignty does not require believing that God
has left no room for people to rule themselves. A Muslim can believe that God
allows humans to rule themselves however they want so long as they adhere
to the basic rules on which He has spoken. If you believe this, and also
accept that democracy does not require the absolute sovereignty of the
people, then you have the makings of an Islamic democrat. Of course as a Muslim you might
also think that God’s sovereignty is only in the sphere of the personal,
not the collective. If you
have such a view, you may not feel a need for a distinctively Islamic
democracy. It will be enough
to be a democrat in public matters and a Muslim in private matters. But Muslims who accept God as
sovereign and think that God’s sovereignty extends beyond the private
sphere can be Islamic democrats in the way just described.
Another possible way for people who accept God’s sovereignty to
think about democracy is to think of the people as a whole as entrusted
with the collective power and responsibility to interpret and apply God’s
will on earth. This view does
not emphasize a particular sphere in which God has left
things up to the ruler.
Instead this view says that humans need to make sense of how God
wants us to govern. It is up
to the community of Muslims to perform that task, and they can and must do
so collectively. The Iranian writer Abdolkarim Soroush has expressed a
view similar to this one.
The appeal of this view for someone who wants
Islam and democratic theory to cohere is that the community has tremendous
discretion in interpreting Islam and enacting laws that embody its
spirit. Democratic
decisionmaking can extend to every area of life and of law. One limitation of this theory,
though, is that it is apparently the Muslim community alone that is
entrusted with the task of interpreting and applying God’s word. That is all well and good for
Muslims, but it excludes non-Muslims. If self-rule consists of figuring
out what God wants within the framework of Islam, then non-Muslims will
not be full-fledged participants.
The answer that minorities in any democracy are excluded when they
do not share the fundamental values of the majority may be unsatisfying to
someone who thinks that equality is a touchstone of democracy. But perhaps non-Muslims could be
permitted to participate in the democratic discussion of God’s will, even
if they are not full members of the community.
The essences of Islam and democracy can be seen as compatible
because both are flexible mobile ideas. If democracy were restricted to
requiring the absolute sovereignty of the people, it would lack the
ability to appeal to people and to cultures that do not place humans at
the center of the universe.
But democracy has flourished even where humanism was not the
dominant mode of thinking.
Modern Western democracy grew up among pious Christians, many of
them staunch Calvinists who emphasized man’s sinful and fallen nature, and
themselves grappled with the relationship between democracy and divine
sovereignty. Most Americans
today probably believe that God, not man, is the measure of all
things. It is doubtful
whether the majority of Indians place humans at the center of the
universe, yet democracy thrives in
India. The idea of the rule of the people
has been flexible enough to mean that the people or God or nature or
nothing is sovereign.
On any of these views, the people still govern themselves within
the area delineated by their capacities and rights.
Islam has demonstrated a comparable degree of
flexibility in its essence.
Acknowledging that God is sovereign turns out to mean different
things to different people.
It has encompassed the idea of free will for some people, while
others have thought that a sovereign God must leave nothing to chance or
choice. Rationalist Muslim
philosophers thought that God was sovereign in the sense that he was the
First Mover. Sufi mystics believed that God was sovereign in that God was
Truth itself. Islam has been
compatible with a number of different systems of government. The flexibility inherent in the
essential Muslim idea of acknowledging God’s sovereignty enables Islam to
be compatible the essence of democracy if defined flexibly
enough.
If the essences of Islam and democracy can be
compatible, what about the practical institutional arrangements required
by each? In particular,
Islam, on most views, requires that the state not exist in an entirely
separate sphere from religion.
Can a state that embraces religion be democratic?
Britain
has no separation of church and state. The Queen is Defender of the Faith
and head of the Church of England.
Anglican bishops sit in the House of Lords, and anyone who wants to
change the Book of Common Prayer must go through Parliament to do it. Yet
Britain is
the cradle of modern democracy.
To take another Western European example, in the German state of
Bavaria, the schools are
Catholic religious ones, and every classroom boasts a crucifix. No one seems to think that this
makes modern
Germany
into something other than a democracy.
On the other hand, some people object
vociferously to the suggestion that it might be possible to have
democracy--especially liberal democracy--without separation of church and
state. They argue that to be
just to everyone, democracy cannot impose one vision of the good
life. Liberal democracy
requires government to remain neutral about what values matter most, and
to leave that decision up to the individual. If religion and the state do not
remain separate, the state will inevitably impose or at least encourage
the version of the good life preferred by the official religion.
It is necessary for a democracy
worthy of the name to respect the individual’s right to worship as she
chooses, and to provide religious liberty for all its inhabitants. But individual religious liberty
does not necessarily mean that the government doesn't embrace, endorse,
support, or fund one religion in particular. The government can support one
particular view of the good life.
It can give money to synagogues or ashrams or mosques or all of the
above. But so long as
the government does not force anyone to adopt religious beliefs that he or
she rejects, or perform religious actions that are anathema, it has not
violated the basic right to religious liberty. Separation of church and state may
be very helpful to maintaining religious liberty, as in the
United
States, but it is not always necessary to
it.
Whether we notice it or not, governments are
already endorsing certain visions of the good life all the time. Our government gives medals
to heroes who embody the values we admire. It proclaims holidays to celebrate
things we care about. Public schools teach students what it means to be
polite and honest and sincere, although such values differ from place to
place and even family to family.
We sponsor some art and not other art, and we use our limited
resources to put some books in our public libraries but not others. We say that segregation is wrong
because it leads to some people feeling excluded. It would be naïve to claim that
all of these government activities are neutral. They all reflect ideas about the
right way to live. They all
affect us as citizens, but none of these activities imposes any one set of
values on us. We are still
free to choose and live as we like.
Another way to put it is to say that a democracy could try to separate law and morals if
it wanted to--although in practice it would be very difficult--but a
democracy does not have to
separate law and morality.
Islamic Equality
Can a state that embraces a single religion
really be counted on to recognize the equality of all its citizens,
including those who do not belong to the religion that the state has
embraced? Democracy requires
equality, both equal participation in democratic decision-making and equal
treatment before the law. So
this question is fundamental to assessing the plausibility of Islamic
democracy, as indeed it would be if one were thinking about the Jewish and
democratic state which
Israel
aspires to be.
In principle, the answer is that a
state with an official religion can recognize the equality of all its
citizens as long as the religion itself embraces equality for
everyone. Not every religion
recognizes the moral equality of all people. Some religions treat outsiders
badly, and others are especially bad about insiders who become outsiders
by abandoning the faith. So
the question then becomes, in practice, can an Islamic state fully respect
the moral equality of non-Muslim citizens? As it turns out, Islam professes a
deep commitment to the principle of equality. The logic lies in the structure of
Muslim theology: everyone is equal before God. All humans descend from Adam and
Eve. As the Qur’an puts it,
in a verse that is often quoted to prove Islam’s commitment to equality,
“O mankind! We created you from male and female, and placed you (into)
nations and tribes so that you would know one another.” The verse does not use the
word equality, but it suggests that God created everyone, and that human
diversity is meant to be a positive, not a negative feature of creation.
With respect to equal political participation,
there is no principled reason in Islam to suggest that anyone, Muslim or
non-Muslim, man or woman, regardless of race or any other characteristic,
should not be permitted to participate equally in collective
decision-making. Some Muslims
might argue for special participatory status for Muslims or for men. But aside from
Kuwait,
where the legislature refused to enact the emir’s decree granting women
the vote, women have the vote in every Muslim country where there are
elections. That includes
Iran, with
its Islamist constitution; Arab states like
Jordan,
Egypt,
Algeria,
Tunisia,
and
Morocco;
and now even
Bahrain, a
Gulf monarchy with traditional ways not unlike
Saudi
Arabia. As for Muslim women leaders,
Benazir Bhutto was elected Prime Minister of Pakistan (twice); Tansu
Ciller served as Prime Minister of Turkey; in
Bangladesh
both the current Prime Minister, Khaleda Zia, and the past Prime Minister,
now leader of the opposition, Sheikh Hasina Wajed, are women; and
Indonesia
has a woman president in Megawati Sukarnoputri. These women have mixed records
both in terms of effectiveness and honesty, but they have been neither
better nor worse than male leaders in their countries, and the fact they
were elected should dispel the stereotypes that unmitigated sexism
prevails everywhere in the Muslim world. There is, admittedly, a saying
attributed to the Prophet, according to which a nation that makes a woman
its ruler will not succeed; and some Muslims have argued that this bars
women from serving as heads of state. But this interpretation is
not widespread, and has not stopped Muslim women from being
elected.
Muslim women, then, generally have formal
equality of participation.
It is true that women’s political participation is far more limited
than men’s, in that women are rarely to be found in parliaments and
governments. Women
voted in the inaugural Bahraini elections of May 2002, but none of several
women candidates was elected.
This is a blot on democracy, to be sure, but unfortunately, the
under-representation of women in office remains a problem in the rest of
the democratic world, too.
The same is true for participation of minority non-Muslims in
government, which is not formally banned in any Muslim country including
Iran. And although non-Muslims’ actual
participation in government is small, that is true of religious and racial
minorities in countries we are accustomed to call democratic. What is more, it is
today rarer than it once was to hear Islamists argue that women or
non-Muslims ought to be barred from political participation. One is more likely to hear a
cleric like the Egyptian-born, Qatar-based Shaikh Yusuf al-Qaradawi urging
Islamist women to run for office to combat general female immorality. (Qaradawi is a complex
figure. He wrote an
influential fatwa declaring
Islam and democracy compatible, the scholarly authority of which convinced
many Islamists that democracy was a desirable direction for their
movement. And on
September 12, 2001,
Qaradawi was one of the first and most important voices of Muslim clerics
condemning the killing of civilians at the world
Trade
Center as a “heinous crime
against Islam.” But Qaradawi
also advises Hamas and holds that civilians may lawfully be killed in
occupied
Palestine.)
Equal treatment before the law poses greater
challenges than equal participation for Islamic democracy. Classical Islamic law generally
does treat men and women equally.
Women and men are meant to receive the same punishments for the
same misdeeds, and women can own property, which was not always true under
the Anglo-American common law.
But it is also important to acknowledge that classical Islamic law
sometimes treats women differently than men, and non-Muslims unequally to
Muslims. And even beyond
these legal inequalities, the law on the books differs from the practical
realities of life in many Muslim countries, which often place women at
much greater disadvantage than the law itself requires.
The most important instances of formal legal
inequality can be described briefly.
Under some circumstances, classical Islamic law formally weighs
women’s testimony more lightly than the testimony of men. This rule is based on a verse in
the Qur’an that calls for the testimony of either two men or a man and two
women in attestation of letters of credit: “If one of them shall forget
the other shall remind her.”
Some modern Muslims, feminists and otherwise, have argued that this
differentiation is not justified by the text of the Qur’an when taken in
context. Some argue that the
second woman is not a witness in her own right, but serves as a kind of
aide-memoire to the woman who is the witness. Others have other arguments
against the classical law’s interpretation of the verse. Without entering into the debate
about the “correct” reading of the Qur’anic verse, one can recognize both
that classical Islamic law does interpret the verse to weigh women’s
testimony differently in some cases, and that some modern Muslims disagree
with that interpretation. It
is also worth noting that classical Jewish law (halakha) bars women’s testimony
altogether under most circumstances.
Women’s share of inheritance in classical
Islamic law is also less than that of men, typically by half. Again, the comparison to classical
Jewish law provides context; in Jewish law, women normally do not inherit
at all unless there are no male heirs. And of course in the
Anglo-American common law until the modern era, the first-born male
inherited, to the exclusion of anyone else. Once again, modern Muslims offer a
variety of apologia for and arguments against women’s unequal treatment in
inheritance law. Not all
Muslims think that classical Islamic law ought to prevail on this
point. But some do. For those who think that a state
must apply classical Islamic law to be truly Islamic, there is no denying
that this provision institutionalizes inequality on the basis of
sex.
The law of divorce also place women at a
relative disadvantage. Muslim
women normally cannot initiate divorce nor compel their husbands to grant
it unless a prenuptial agreement so specifies. If they do manage to compel
divorce, they may lose the right to a lump sum alimony payment to which
they would otherwise be entitled by the standard Muslim marriage
contract. Efforts are
underway by Muslim women activists to improve these arrangements, but they
have met with real resistance, not only from scholars, but from men who
for extralegal reasons would like to preserve male prerogatives in the
context of family law.
These are real and troubling
examples of unequal treatment of women under classical Islamic law, but on
their own, they do not make classical Islamic law inherently incompatible
with democracy. Democracy can
still exist, albeit imperfectly, where sex equality before the law is
incomplete. After all, such
is the case in the United
States, where women gained the vote late
in constitutional history, and are still fighting for equality in other
legal areas.
Israel
sanctions unequal treatment of women in the religious courts on which it
confers sole jurisdiction over marriage and divorce. Furthermore, it is not the case
that a government that guarantees full sex equality before the law would
automatically be considered “un-Islamic” by the majority of Muslims.
The point is not to claim that women in
Saudi
Arabia, say, are treated equally. They cannot drive or move about
without male supervision.
A state applying strict Islamic law as it is currently interpreted
in much of the Muslim world would never be a perfect place for women. Conditions for women in much of
the Muslim world remain profoundly unequal, as indeed they do for the vast
majority of women in the world, especially outside Western
Europe and North America. And it would be misleading or even
dishonest to deny that Islamists frequently speak in terms of the natural
subordination of women, even as they claim that Islam can unleash women’s
full potential in the private and public spheres. I wish only to suggest that
Islamic law itself is less unequal in its treatment of women than is
imagined by many in the West and the Muslim world alike, and that unequal
treatment of women, while reprehensible, should not be seen as an
insurmountable barrier to democracy.
If it were, there would today be no democracies at all, because the
equality of the sexes remains unaccomplished everywhere.
The question of the veil and
covering becomes relevant here.
As a symbolic matter, the clothes that women wear have become one
of the central focal points for those who argue that Islam and democracy
are incompatible. This is
true both among Westerners who believe in incompatibility, and also among
some Islamists. Both groups
argue that a society is only Islamic if women go about garbed in head
scarves (hijab) or in even more
concealing clothing, like the full-body-and-face-covering burka or chador. Both also argue that a democratic
society is one in which women are free to wear anything they
choose.
The emphasis on clothing, however, obscures
more than it clarifies. It is
true that women’s clothing is a central symbol of the culture of
Islamism. Head scarves and
long, loose-fitting clothing serve as emblems of Islamism when they are
proudly worn by Islamists in places like Turkey or Indonesia and when they
are legally coerced by Islamist regimes, as in Iran. But there are many Muslims who
think that Islam requires only that everyone dress modestly, men and women
alike. Such a requirement is
certainly compatible with democracy.
Indeed most democracies have laws governing who can wear what and
where, including different standards for men and women. Perhaps democracy might even be
consistent with rather strict rules for dress, so long as they are roughly
equal in treatment of men and women. And Islam is, or can be, consistent
with restrictions that do not go so far as to demand that women wear hijab or chador. Obviously I do not mean to
endorse compulsory covering, or for that matter the compulsory uncovering
of the head that one finds in French schools or in the Turkish Assembly,
where secularists prevented the seating of an elected delegate who wore a
headscarf. Rather, while
acknowledging the tremendous symbolic importance of dress, I want to
maintain that our natural focus on clothing should not mislead us into
portraying Islam as so unequal that it cannot be democratic.
Beyond the equality of women, equality for
non-Muslims in an Islamic state also raises some difficult
challenges. If everyone in
the political sphere speaks in terms of Islamic values, that may in
practice exclude non-Muslims to a degree. But the same problem would arise
in a state that defines itself as “Jewish and democratic,” as Israel does;
in Britain, where the Church of England is the official church; or even in
the United States, where the Supreme Court implicitly excluded atheists
when it said not so very long ago that “We are a religious people, whose
institutions presuppose a Supreme Being.”
One sometimes hears the argument that
non-Muslims can never be equal participants in the Islamic state because
Islam does not recognize a distinction between the Islamic state and the
community (umma) of the
Muslims. Yet in the Prophet’s
lifetime, the Muslim community at
Medina coexisted with
non-Muslims in a state-like arrangement embodied in a compact that still
survives. Subsequent Islamic
states were also home to non-Muslims, who participated in government and
public life, sometimes in important positions. Samuel ibn Naghrela, the Jewish
politician-poet-philosopher known in Hebrew as Samuel the Prince, rose to
the viziership of medieval
Granada. Furthermore, from early in
Muslim history there were competing Muslim states, suggesting a difference
between the state and the community of Muslims. Today, some Islamists still dream
of a single pan-Islamic state, but most are more modest and realistic in
their aims, and hope only for a number of Islamic states covering
different geographical areas.
The Islamic state, then, no more overlaps with
the community of the Muslims than, say, the state of Israel overlaps with
Jews, or the Federal Republic of Germany overlaps with German
ethnicity.
Israel
has a law of return that gives Jews automatic citizenship if they want
it.
Germany
has a similar law for ethnic Germans, and indeed there are many ethnic
Turks born in
Germany to
guest-worker parents who cannot easily become German citizens.
As for equality of treatment before the law,
the Islamic state can treat non-Muslims as well as it treats Muslims. Islamic states traditionally
required Jews, Christians, and others non-pagans deemed “peoples of the
book” to pay a special tax and wear distinctive dress; legally, the state
accorded them special status as “protected persons.” Churches and synagogues had to be
modest in size relative to mosques.
The enforcement of these rules varied historically from rigorous to
lax, and treatment of non-Muslims ranged from highly tolerant to
repressive and even violent.
There is a large literature arguing about whether this protected
status must amount to a second class citizenship--a question that might
plausibly be answered either way.
But even if these discriminatory taxing and zoning requirements
were put in place--and they need not be adopted by an Islamic state that
is not fully Islamist--the Islamic state faces no theoretical barrier to
treating its non-Muslim citizens equally. And today’s Islamists, influenced
perhaps by mobile democracy, do not generally propose to treat non-Muslims
unequally, at least not in their published writings or official
pronouncements.
Islamic
Liberty
Not every definition of democracy requires all
the same individual liberties found in the constitutions of the
United
States and Western
Europe, but most democracies today embody some version of
liberalism. Would this be
true of Islamic democracy?
One challenge to the very idea of Islamic democracy is the claim
that liberal democracy restricts the sphere of government to the public
realm, while Islam thinks it necessary to extend government into the
private sphere as well. Yet
the divide between public and private, even in liberal democratic states,
is more permeable than the challenge assumes; and in Islam, there is a
greater distinction between the private and public realms than many
people, Muslim and non-Muslim, believe.
Just about every democracy in the world
regulates personal relationships to a striking degree, deciding how you
can get married, and whom you can marry; what counts as a good reason for
getting a divorce, and how the divorce will divide assets. What is more, no democracy,
however liberal, has ever adopted the pure liberal view that the state
must refrain from regulating conduct that does no harm to anyone except
the actor except. The law in
most democracies tells you to wear a seatbelt or a crash helmet. It tells you where and when you
can drink or buy alcohol.
It prohibits drugs, including drugs that a person might take
without bothering anyone.
Equipped with a warrant, the state can tap your phones or burst
into your house and search every nook and cranny. The tax man sees every detail of
your finances, and if you are audited, just about nothing is private. In short, even liberal
democracies do not strictly respect the public/private distinction.
For its part, Islam does not insist on the
erasure of the public/private distinction. The Qur’an says that there shall
be no coercion in religion.
Classical Islamic law and most modern Muslims think this means that
in theory, neither government nor anyone else can coerce you in matters of
private belief. On the other
hand, it would be difficult for a Muslim to abjure his religion publicly
in an Islamic state that had laws against apostacy. This problem poses a real
challenge to what Westerners consider freedom of religion and speech; and
a related problem arises where there are blasphemy laws on the books that
make it a crime to insult Islam or the Prophet. The reason this problem arises is
that to many Muslims, apostacy and blasphemy are public acts that the
state should be able to regulate, not private matters of faith that are
restricted to the individual realm.
This may explain also why the Saudi and Iranian governments think
it acceptable to coerce people to attend prayers when the Qur’an bans
coercion in religion. The
difference between the prevalent Western and Muslim views on this subject
derives not from any rejection of the public/private distinction, but from
the different places each tradition draws the line.
Classical Islamic law also enforces the right
to privacy in the home, in fact more strictly than do most legal systems
in Western democracies. The
Qur’an instructs its listeners, “O you who believe! Enter not houses other
than your own, until you have asked permission and greeted those in
them.” The earliest Muslim
reporters of hadith, traditions
associated with the Prophet, understood this injunction in terms of
privacy. The most important
hadith collectors report the
following explanation of the Qur’anic statement: “Sahl bin Sa‘d (may Allah be
pleased with him) reported: The Messenger of Allah, peace be upon him,
said, ‘Seeking permission to enter has been proscribed in order to
restrain the eyes.'“ This
evocative language of “restraining the eyes” suggests the existence of a
realm of privacy into which no one may enter without getting permission.
Classical Islamic law extended this mandated
privacy to the state itself.
The jurists interpreted the Qur’anic directive to mean that, even
in seeking evidence against a suspect, one must not enter his home without
receiving permission. A story
recounted about one of the earliest, “rightly guided” Caliphs, deals with
the legal implications of this rule. Investigating a theft, the
authorities entered a suspect’s home and discovered stolen goods. Brought before the Caliph for
judgment, the criminal argued that he could not be punished, because the
investigators had violated the Qur’anic injunction against entering his
home without permission. The
Caliph concluded that the criminal was correct--although he was guilty, he
could not be punished, but was permitted to go free.
This story partly shows how very different
legal systems sometimes converge on common outcomes. The United States Supreme Court
reached a decision similar to the Caliph’s some 1200 years later when it
adopted the exclusionary rule, excluding evidence obtained illegally from
a trial to prove the guilt of the person whose rights were violated. Unlike the Caliph, the Supreme
Court did not say that this rule was required by its own ground-rule, the
Constitution, but rather described the exclusionary rule as a prophylactic
measure that the Court adopted to discourage the police from searching
without authorization. The
Caliph, though, seems to have thought that the Qur’an itself prohibited
using evidence that was obtained in violation of God’s law. In this case, the distinction
between public and private spheres is even stronger in the Islamic legal
tradition than in the United
States.
There is one glaring difference between the
decision of the United States Supreme Court and the Islamic legal
principle protecting privacy in the home. The American decision functions as
the law of land, which does not mean that every American is in fact free
of unwarranted government intrusion in his home, but does mean that if he
is on trial, the fruits of an illegal search will not be used against
him. The Islamic legal
principle, however, is not presently enforced with consistency anywhere in
the Muslim world, including countries that purport to apply Islamic
law. I am not citing
it, though, to prove that the Muslim world presently demonstrates the
right to privacy, any more than I am claiming that the Muslim world today
is democratic. Rather,
the tradition refutes those who would attribute to Islam indifference
towards the public/private boundary.
Of course classical Islamic law, like other
religious law, extends to all sorts of personal and private areas of human
behavior. It prescribes the
right way to wash one’s hands and cut one’s fingernails and so forth. But the existence of this kind of
detailed law respecting personal matters does not mean that the Islamic state must pass laws requiring
these sorts of details or that it is anyone’s business but one’s own. Although Islamic law requires
daily prayer and fasting during Ramadan, that does not mean that a state
must enforce these laws in order to be legitimately Islamic. The reason is
that Islamic law does not
specify punishments for failing to perform many of these religious
obligations, and the government does not have the responsibility of
ensuring that all religious laws are carried out. It is enough for the
state to enforce the Islamic criminal law. The framework of “Islamic law”
thus includes both personal religious obligations and also laws governing
inter-personal relations, but an Islamic state can be Islamic even if it
does not enforce all of the personal religious obligations that are
imposed on individuals by Islamic law. Islamic law draws a basic
distinction between duties toward God and duties towards other human
beings. And even if this
distinction does not map exactly onto the distinction between the private
and the public spheres, most duties towards God do not need to be enforced
by a state that would be considered “Islamic” by just about all
Muslims. An Islamic state
therefore would not need laws enforcing every rule that is found within
Islam.
Almost all Islamists want to apply Islamic law
in many areas of life. But
there is widespread misconception, even in the Muslim world, about the
scope that classical Islamic law covers. In the criminal law, for example,
only a handful of crimes count as part of the required system of Islamic
law. These crimes of hudud are famous in the West
because of the harsh punishments associated with them: in theory, the
convicted thief would lose his hand; the murderer and the apostate their
heads; the adulterers their lives.
Punishments are also comparably harsh for those who falsely accuse
others of these crimes. What
is rarely added is that these punishments can only be meted out after
proof that reaches a standard that is extraordinarily difficult to
meet. Unless there is a
freely-given confession, there must be two eye-witnesses to the crime, men
of proven good character. For adultery there
must be four eye-witnesses to the act of adultery itself, a circumstance
by its nature very unusual indeed.
In the view of
most Islamists, hudud crimes
must be on the books for a state to be Islamic. But it is likely that almost no
one will be punished under these laws if they are applied correctly,
because the standard of proof is too high to meet. Judges who wanted to could almost
always find a way to acquit.
Historically, in fact, these laws were only rarely enforced, and
even then, were restricted to the most egregious cases of murder and the
like.
In the few cases and places where such laws
have been applied in the modern Muslim world, there are usually political
motivations involved that fall outside the strict ambit of Islamic
law. In
Afghanistan
under the Taliban, extreme punishments often were not even the ones
specified in Islamic law, but rather were Pashtun customs masquerading as
“Islamic.” In
Northern Nigeria, where Islamic law is being
introduced today, the threats of such punishments function as symbols of
the new order, to Islamists and non-Muslim opponents alike. Everyone
involved gets some benefit out of drawing attention to the possible
stoning of an adulteress. It
is free publicity for Islamists, and a good rallying point for
opponents. It would be a
horrible tragedy if anyone should be unlucky enough to be executed for
adultery there, but an Islamic system need not execute anyone for adultery
under normal circumstances.
There is almost always some legal way out. The existence of hudud punishments is therefore not
incompatible with democracy, unless we think that capital punishment makes
a country undemocratic.
Beyond the fact that these laws need never be
applied in practice in an Islamic state, it is important to realize that
the hudud punishments cover
just a small number of crimes, and therefore leave room for just about
every further law one could imagine to be made. The rest of the criminal laws can
be determined by the government, according to criteria that the government
specifies. That is the way
that the law always operated in Muslim countries in the past: a small
number of legal matters were regulated under the hudud or other shari‘a principles, but most
practical matters were regulated by the government, not by classical
Islamic law. An Islamic
democracy could, in other words, decide on just about every criminal law
by democratic means, and specify the punishments, too.
Islamists do not think that Islamic law must
govern family relations for everyone who lives in an Islamic state, just
the Muslims. Other religious
groups, like Christians or Jews, should be governed by their own religious
laws when it comes to family law.
Beginning in the earliest years of the Muslim polity, the Muslim
rulers reached accommodations with minority religious groups that allowed
those groups self-regulation in the area of communal affairs, including
family law. This formed the
model that all Islamic states have used, up to and including the
present. In
India, for
example, when the Muslim Mughal Empire ruled, the majority of the
population were Hindus. They
were never forcibly converted to Islam, and their personal life and laws
operated according to Hindu tradition. This was also the model under the
Ottoman Empire. In fact the Ottomans gave even
broader autonomy to minority religious communities, allowing them not only
to regulate their own family law, but to collect their own taxes and run
their own educational system.
It is instructive that modern
Israel
operates on precisely this Muslim-invented model of family law allocated
by religion. When it came
into being in 1948,
Israel
simply kept the Ottoman family law model that had prevailed even after the
British mandate took Palestine
from the Ottoman empire. This system has its problems. It assumes that everyone fits into
a religious group of one kind or another, making things hard on atheists
or religious individualists; these people cannot legally marry or divorce,
since the law does not provide for non-religious civil marriage to occur
within
Israel. An Israeli Jew who does not want
to a rabbi to officiate at her wedding flies to
Cyprus
(the Israeli’s Las Vegas) and
gets married there in a civil ceremony that Israeli law recognizes via a
loophole. This sounds like a
serious restriction on religious freedom; but if you want to get married
in New York
State, you must be married by a
judge, the clerk at city hall, or a member of the clergy as specified in
the state’s Domestic Relations Law.
If you want to get married on your own, in a field of daisies, with
no government sanction, you may not.
It is a class-C misdemeanor in New
York to purport to perform a wedding without legal
authorization.
Assigning legal power over marriage and
divorce to religious authorities also requires the state to choose among
denominations; and it makes it hard for people who want to marry across
religions. Many Catholic and
Protestant churches around the world permit such weddings nowadays; Islam
permits Muslim men to marry women who are not Muslims, though not the
other way around. The
overwhelming majority of Orthodox and Conservative rabbis will not
officiate at such ceremonies, nor will many (perhaps most) Reform
rabbis.
The constraints on personal choice that emerge
in the realm of family law are unfortunate, but not necessarily
undemocratic. After all,
liberal democratic states also restrict who can marry whom. Only the most liberal Western
European countries and now
Vermont permit same-sex
couples to form a partnership akin to marriage; the origin and continuing
basis for restricting marriage to the union of a man and a woman is
plainly religious, even in a country like the
United
States which has constitutional
separation of church and state. The ban on same sex marriage
may some day look discriminatory to a majority of Americans, as it does
today to some. But like
the allocation of marriage to religious authorities, this problem can be
addressed within the democratic framework.
Footnotes
60 For a sampling of Ghannouchi’s views, see Azzam Tamimi, Rachid Ghannouchi: A Democrat Within
Islamism (Oxford: Oxford
University Press, 2001).
For a sampling of Khatami’s views in English, see Mohammad
Khatami, Islam, Dialogue and Civil
Society (Canberra: Centre for Arab and Islamic Studies, Australian
National University, 2000); Islam,
Liberty, and Development (Binghamton: Institute of Global Cultural
Studies, Binghamton University, 1998); Hope and Challenge: The Iranian
President Speaks (Binghamton: Institute of Global Cultural Studies,
Binghamton University, 1997).
60 various proposals
One engaged treatment of some of these—and an undertaking in
its own right—is Ahmad S. Moussalli, The Islamic Quest for Democracy,
Pluralism, and Human Rights (Jacksonville: University Press of
Florida, 2001). See also Fathi Osman, Islam in a Modern State: Democracy and
the Concept of Shura (Washington
DC: Center for Muslim Christian
Understanding Occasional Papers, 2001). The final chapter of Nathan
J. Brown, Constitutions in a
Nonconstitutional World: Arab Basic Laws and the Prospects for Accountable
Government (Albany: State
University of New York Press, 2002), entitled “Islamic Constitutionalism,”
offers a good overview, with reference to specific countries.
61 remains unresolved
See the controversial and provocative book by Patricia Crone
and Martin Hinds, God's Caliph:
Religious Authority in the First Centuries of Islam (Cambridge:
Cambridge University Press, 1986).
61-62 For more on how Islamic governments have historically chosen
leaders, see L. Carl Brown, Religion and State: The Muslim
Approach to Politics (New
York: Columbia University Press, 2000); W.
Montgomery Watt, Islamic Political Thought
(Chicago: Edinburgh University Press, 1968).
62 On loosing and binding, see Brown, Constitutions in a Nonconstitutional
World, 172.
Medieval political theorists
Ghazzali prominent among them. See Noah Feldman,
"Religion and Political Authority as Brothers: the Islamic Constitution
and the Ethical Literature," in Islamic Constitutionalism, ed.
Chehabi and Hashmi (Cambridge:
Harvard University Press, forthcoming 2002).
63 Three thick volumes
The conference took place in
Cairo, 23-25 May 1997.
The volumes are: al-Shura fi-l-fikr
wa-l-mumarasa (Shura in Theory and Practice); 'Ishkaliyat al-‘alaqa bayna al-shura
wa-l-dimuqratiyya (Problematic of the relation between shura and
democracy); Tajarib mu‘asira fi
mumarasat al-shura wa-l-dimuqratiyya (Contemporary Experiments in the
Practice of Shura and Democracy), published jointly under the auspices of
al-Azhar and the World Center for the Study and Investigation of the Green
Book in Tripoli. N.b. Qadhafi was, in other words, behind the
publication and probably the funding of the conference; strange bedfellows
indeed, Qadhafi and al-Azhar.
See also Tawfiq Muhammad al-Shawi, al-Shura: a‘la maratib
al-dimuqratiyya (Shura: The Highest Level of Democracy) (Cairo:
al-Zahra’ li-li‘lam al- ‘arabi, 1994); 'Abd al-hamid Isma‘il al-Ansari,
al-‘Alam al-Islami al-mu‘asir bayna al-shura wa-l-dimuqratiyya: ru’ya
naqdiyya (The Contemporary Islamic World Between Shura and Democracy:
A Critical Perspective) (Cairo: Dar al-fikr al-‘arabi,
2001).
obligatory
See, for example, the very influential fatwa of Yusuf
al-Qaradawi on the compatibility of Islam and democracy, in Min fiqh al-dawla fi-l-’islam (Of
the Law of the State in Islam) (Cairo: Dar al-shuruq, 1997), at 146, where
he insists on the obligatory nature of shura by the binders and
loosers. If the ruler could ignore the consultation, he asks, then
in what sense would those who provided it have the power to bind and
loose? Qaradawi concludes that “Islamic consultation (shura) comes close to the spirit
of democracy; or if you prefer: the definition of democracy comes close to
the spirit of Islamic consultation.”
Id. See also 136 on shura. For an overview on
Qaradawi, see Armando Salvatore, Islam and the Political Discourse of
Modernity (London: Ithaca Press, 1997), 197-216
67 Saudi
Arabia uses
On Saudi law in action see Frank E. Vogel, Islamic Law and Legal System: Studies
of Saudi Arabia (Leiden:
Brill, 2000).
87 [???]
Rudolph Peters, Islamic Criminal Law: Theory and Practice from
the Sixteenth to the Twentieth Century, (New
York: Cambridge University Press, forthcoming
2004).
68 sovereignty of
God
For a review of various Islamist theories of sovereignty see
Ermin Sinanovic, “The Majority Principle in Islamic Legal and Political
Thought," in Center for the Study of Islam and Democracy Second Annual
Conference Proceedings, April 7,
2001, 72-90,
http://www.islam-democracy.org, accessed 22 August 2002.
See also Qaradawi’s fatwa at 140-41, where he analyzes the
differences between sovereignty and governance.
The Rule of God, the
Rule of the People
Bahlul, Hukm allah, hukm
al-sha‘b: hawla al-‘alaqa bayna al-dimuqratiyya wa-l-‘ilmaniyya (The
Rule of God, The Rule of the People: On the Relation Between Democracy and
Secularism) (Amman: Dar
al-shuruq li-li-nashr wa-l-tawzi‘, 2000). This sophisticated work
seeks to disentangle democracy from liberal democracy in the process of
its enquiry.
70 Soroush
See Reason, Freedom, and
Democracy in Islam: Essential Writings of Abdolkarim Soroush, trans.
and ed. Mahmoud Sadri &
Ahmad Sadri
(Oxford:
Oxford
University Press,
2000).
71 Sufi mystics
See Annemarie Schimmel, The Mystical Dimensions of Islam,
(Chapel Hill, NC: University of North Carolina Press, 1985); Idries Shah,
The Sufis (New York: Anchor
Books, 1971).
72 separation
There is a sizable Arabic literature on the relationship
between secularism, democracy, and Islam. See, as representative
examples, Ibrahim Bashir al-Ghawil (or al-Ghuwayyil), Al-Dimuqratiyya wa-l-‘almaniyya
wa-huquq al-insan: al-marji‘iyya al-gharbiyya wa-l-marji’iyya
al-islamiyya (Democracy and Secularism and Human Rights: Western
Authority and Islamic Authority) (Beirut: Dar al-Afaq al-Jadida, 1999);
Abd al-Razzaq ‘Id and Muhammad ‘Abd al-Jabbar, Al-Dimuqratiyya bayna al-‘almaniyya
wa-l-’islam (Democracy Between Secularism & Islam) (Beirut &
Damascus: Dar al-Fikr, 1999) (this is two books in one); Raja
Bahlul, Dawlat al-din, dawlat
al-dunya: hawla al-‘alaqa byana al-dimuqratiyya wa-l-‘almaniyya
(Theocratic State, Secular State: on the Relation Between Democracy
and Secularism) (Ramallah: Palestinian Institute for the Study of
Democracy, 2000) (like his Rule of
God, Rule of the People, an extraordinarily sophisticated treatment of
the issues); Munir Shafiq, al-Dimuqratiyya wa-l-‘almaniyya fi
tajriba al-gharbiyya: ru’ya islamiyya (Democracy and Secularism
in the Western Experience: An Islamic Perspective) (London: Maghreb
Center for Researche [sic] and Translation, 2001). One title that
leaves no doubt about its point of view is Ghazi ‘Anaya, Jahiliyyat al-dimuqratiyya (The
[non-Islamic] Ignorant Barbarism of Democracy) (Amman: Dar zahran
li-l-nashr wa-l-tawzi‘, 1999); and indeed the work abounds in rejection
not only of democracy but of all manner of peace or cooperation with
Israel.
72-73 The government can support
I explore these issues more fully in Noah Feldman, "From
Liberty to Equality: The Transformation of the Establishment Clause," 90
California Law Review 673 (May
2002).
74 Islamic equality
A useful treatment of issues concerning equality in Islam can
be found in Louise Marlow, Hierarchy and Egalitarianism in
Islamic Thought (Cambridge: Cambridge University Press, 1997).
See also Ann Elizabeth Meyer, Islam
and Human Rights: Tradition and Politics 3d ed. (Boulder: Westview,
1999).
O mankind!
Qur’an 49:13.
75 heads of state
Narrated on the authority of Abu Bakr: “During the battle of
Al-Jamal Allah benefited me with a word. When the Prophet heard the news
that the people of Persia had made the daughter of Khorsrau their queen
(ruler), he said, ‘Never will such a nation succeed as makes a woman their
ruler.'” See The Translation
of the Meanings of Sahih Al-Bukhari,
Arabic-English, Vol.
9, Muhammad Muhsin Khan trans. (Medina: Dar al-Fikr, 1981),
170-171.
For a general discussion of discrimination against women’s
political participation in Islam see Ann Elizabeth Meyer, Islam and Human Rights: Tradition and
Politics, 3d ed. (Boulder: Westview, 1999), 91 (“Conservative Muslims
generally claim that the shari‘a excludes women and
non-Muslims from most, if not all governmental
positions").
On Bahraini elections, see Neil MacFarrquharr, “In Bahrain,
Women Run, Women Vote, Women Lose,” New York Times, 21 May 2002;
“Bahrain Holds Elections, and Women are Included,” Washington Post, 10 May
2002.
76 For Qaradawi’s statement of September 12, 2001, see Reuven Paz, “Shaykh Dr Yousef
al-Qaradawi: Dr. Jekyll and Mr. Hyde,” Policywatch No. 576
(Washington,
D.C.: Washington Institute for Near
East Policy, 18 October
2001), available at
http://www.washingtoninstitute.org/watch/Policywatch/policywatch2001/576.htm,
accessed 22 August
2002.
77 If one of them shall forget
Qur’an 2:282.
77-78 On Islamic divorce and inheritance law, see Ziba Mir-Hosseini,
Marriage on Trial: Islamic Family
Law in Iran and Morocco (New
York: I.B. Tauris, 2000); Ziba Mir-Hosseini, Islam and Gender (Princeton, NJ:
Princeton University Press, 1999).
78 Muslim women
activists
See Susan Sachs,
"Egypt
Makes It Easier for Women to Divorce Husbands," New York. Times January 28, 2000.
80 compact
The so-called constitution of
Medina appears as an appendix
to W. Montgomery Watt, Islamic
Political Thought (Edinburgh: Edinburgh University Press,
1998).
On Islamist claims that Islam can unleash women’s full
potential, see Ahmed, Women and
Gender in Islam, passim.
headscarf
On l’affaire du
foulard see Kepel. There is a very large French literature on
the controversy and the court cases surrounding the Muslim girls’ desire
to wear headscarves and the response of French schools and
government.
"We are a religious people”
Zorach v. Clauson,
343 U.S.
306 at 313 (1952).
81 For more discussion on “protected persons,” see Bat Ye’Or, Tr.
David Maisel, The Dhimmi : a historical survey of Jews
and Christians under Islam, (Rutherford, NJ: Fairleigh Dickinson
University Press, 1984).
84 O you who believe!
Qur’an 24:27.
85 Sahl bin Sa‘d
See The Translation of
the Meanings of Sahih Al-Bukhari, Vol. 8, Book 74, no. 258:
Narrated Sahl bin Sa‘d: A man peeped through a round hole into
the dwelling place of the Prophet, while the Prophet had a Midray (an iron
comb) with which he was scratching his head. The Prophet said, “Had known
you were looking (through the hole), I would have pierced your eye with it
(i.e., the comb).” Verily! The order of taking permission to enter has
been enjoined because of that sight, (that one should not look unlawfully
at the state of others).
A story recounted
Sayyid Qutb, trans. John B. Hardie, Social Justice in Islam
(Oneonta,
NY: Islamic Publications International,
2000).
rightly guided Caliph
For an explanation of this term, see Watt, 36.
exclusionary rule
See Mapp v.
Ohio, 367
U.S. 643
(1961).
87 For more on hudud crimes, see Rudolph Peters, Islamic Criminal Law : Theory and Practice
from the Sixteenth to the Twentieth Century,
(New York: Cambridge
University Press, forthcoming 2004).
for more on how tribal customs and Islamic customs have become
enmeshed in
Afghanistan
and elsewhere, see Rashid.
88 symbols of the new order
See Ruud Peters, “The Reintroduction of Islamic Criminal Law in
Northern Nigeria,” Conducted on Behalf of the
European Commission (Lagos,
2001), available at
http://europa.eu.int/comm/europeaid/projects/eidhr/pdf/islamic-criminal-law-nigeria_en.pdf,
accessed 22 August
2002.
For examples of legal ways out, see Rudolph Peters, Islamic Criminal Law : Theory and Practice
from the Sixteenth to the Twentieth Century,
(New York: Cambridge
University Press, forthcoming 2004).
89 For more on the Ottoman millet system that allowed religious
communities some degree of self-government, see Bernard Lewis, Christians and Jews in the Ottoman
Empire: The Functioning of a Plural Society (New York: Holmes and
Meier, 1982).