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Democracy and the Concept of Shura (Part 2)

Islam in a Modern State
egyptian-elections2
Women are equal to men in public responsibilities
Voting

Part 1

Voting

The democratic mechanism in elections and decision-making is voting, and its known and accepted form is “one person, one vote.”

This procedure was suggested by Caliph ‘Umar for the committee that he appointed to determine who would succeed him as Caliph after being stabbed.

It was further evident from many historical precedents that Prophet Muhammad and the early Caliphs followed the visible majority in making their decisions. The above-mentioned tradition of the Prophet teaches that one has to follow the overwhelming majority when there is a serious spilt.

To those who argue that “one person, one vote” makes the judgment of the most knowledgeable person equal to that of the most ignorant one, one may reply by saying that, in relation to the common interest of the people, any adult with common sense and civic abilities and experience can make a judgment. Campaigns that support different candidates’ views and the mass media provide valuable information for a serious voter. Any discrimination in the votes, on whatever grounds, may be arbitrary.

Judgment about a public matter of an uneducated but experienced person may be sounder than that of an inexperienced university graduate.

Women are equal to men in public responsibilities as the Quran explicitly states:

{And the believers, both men and women, are in charge of [and responsible for] one another: they all enjoin the doing of what is right and good and forbid the doing of what is wrong and evil...} (At-Tawbah 9: 71)

Women’s views regarding who should succeed Caliph ‘Umar were pursued, even those of women who were staying in their homes. (Al-Bidayah, 151)

The notable commentator on the Quran Ibn Jarir al-Tabari (d. 310H./922 C.E) and the prominent jurist Ibn Hazm (d. 450CH./668 C.E.) stated that: “A woman can occupy the distinguished position of a judge, if she is qualified for it.” (Bidayat, 384; al-Muhalla, 523)

The Quranic verse about making a male witness equal to two female witnesses in a credit contract indicates that this is meant when a woman might not be familiar with such transactions and their legal requirements: {so that if one of them should make a mistake the other could remind her} (Al-Baqarah 2: 82)

If some jurists stated that a woman could be a judge, then the verse about her testimony cannot be understood as a general rule

It is obvious from the Quranic text, the historical social context, and the jurisprudential principle that: “a legal rule follows its reason: if the reason continues to exist, the rule holds, and if the reason ceases to exist the rule is not applied”—all this makes it obvious that the verse does not address educated or business-experienced women, nor address common human interests which do not require specialization.

The distinguished jurist Ibn al-Qayyim (d. 751H./1350 C.E.) indicated in his book, al-Turuq al-Hukmiyya (Ways of Ruling), as well as other jurists, that “this rule does not apply to the testimony of a woman in other areas that she may know well”. (Bidayat, 348)

If some jurists stated that a woman could be a judge, then the verse about her testimony cannot be understood as a general rule for the whole gender in all times and places.

Candidacy

Elections require several candidates from whom to choose for a position. Caliph ‘Omar nominated six distinguished persons from which one might be chosen as a candidate for the caliphate to succeed him. Some argue against such a procedure from an Islamic point of view, arguing that Prophet Muhammad said:

By Allah, we do not appoint to this position one who asks for it, nor anyone who is covetous for it. (Muslim)

According to scholars in this field and jurists, this is interpreted as a warning against asking for a public position merely for a personal benefit without considering its responsibilities and the required capabilities for fulfilling them. One who is capable for a public position, fully aware of its responsibilities, and thinks that he or she can fulfill them and commits himself or herself to do so, can ask for the position and mention his or her qualifications for it, as the Prophets Joseph and Solomon did. Joseph said to the King of Egypt:  

{Set me in charge of the store-houses of the land, I am a knowing and honest guardian} (Yusuf 12: 55), and Solomon prayed: {O my Lord! Forgive me and grant me a kingdom such as may not befall anyone after me} (Sad 38: 35)

It goes without saying that presenting the candidate’s merits and capability for the position, and criticizing others’ in capabilities should follow the legal and ethical principles of Islam. The requirements for a candidate, or what may bar a person from a candidacy can be decided in the light of Islamic legal and moral teachings, and according to social circumstances.

In Islam, women may be members of the parliament, ministers, judges, and-military and police officers, according to their merits and credentials, since they enjoy equal rights and responsibilities to men in joining the doing of what is right and good and forbidding what is wrong and evil.

Non-Muslims represent an inseparable part of the society and the state and have the right and duty to occupy positions in the executive, legislative and judicial branches and in the military and police as per their merits and credentials, according to the Prophet’s constitutional document in Madinah and several historical precedents.

A modern state is ruled by bodies, not by individuals, and non-Muslims would represent in any body their size and weight in the society. The prominent Shafi’i jurist al-Mawardi (d. 456H/1068 C.E.) stated that “a Caliph can have a non-Muslim executive minister.” (al-Ahkam, 27)

Non-Muslims were known as ministers and top officials in Islamic states such as Egypt and Muslim Spain. As for a non-Muslim judge, he or she has to apply the state code of laws according to whatever his or her beliefs may be. However, the areas that are related or close to the faith—such as family matters and waqf (a property of which the revenues are permanently allotted to charity or certain beneficiaries) can be assigned to a judge of the litigant’s faith.

Multi-Party System, the Opposition

the Quran urges that groups may be formed to enjoin the doing of what is right and good and forbid what is wrong and evil, which is the essence of politics

Political parties are essential for democracy, as they help people to form their views and choices about persons or policies. Besides, the individual finds himself or herself helpless to oppose governmental authority, especially in a modem state with its enormous power provided by advanced technology in suppressing opposition and in influencing public opinion. The multi-party system has proved to be the most—if not the only—democratic formula in this respect. The one-party system has never allowed any real or effective opposition within itself, and such an opposition can never grow outside from its individuals who have no vehicle to contact the masses, and no power as individuals to challenge the government with all its authorities and oppressive measures.

Islam secures the right of assembly, and the Quran urges that groups may be formed to enjoin the doing of what is right and good and forbid what is wrong and evil, which is the essence of politics:

{And let there be from among you a community (Ummah) that calls to good and enjoins the doing of what is right and forbids the doing of what is wrong} (Al-Imran 3: 104)

The word ummah used in the verse may not always mean the whole community but just a group of people, especially when the word is connected with the preposition “from,” as in the above mentioned verses: {from among you...}. This need not hurt the fundamental unity of the people, since political differences are human and inevitable, and thus should not affect the public unity if they are properly handled in objective and ethical ways. As politics represent an area of human thinking and judgment and discretion (ijtihad), the Quran assumes that Muslims may face differences and even disputes, and they have to settle them according to the guidance of the Quran and the Sunnah.

Different legitimate approaches towards the understanding and interpretation of the divine texts and implementing them may naturally arise. Early Muslims had their conceptual differences from time to time, and they argued about the state leadership after the Prophet’s death. Their political differences were represented in certain groups, which freely and openly expressed their diverse views on that occasion in a public meeting at al-Saqifa. Later, Muslims had several theological groups with different political concepts, as they had their different jurisprudent! All schools and such differences should not by any means hurt the public unity, when they are objectively and ethically tackled.

Accordingly, Muslims can form several Islamic political parties: all of them are committed to Islam, but each with its own concepts or methods of political activity, or with different programs of reform when they rule. Although establishing parties on ethnic grounds or for personal or family considerations ought not to be encouraged from the Islamic point of view—especially among Muslims—this may be acceptable in given circumstances.

Opposition is indispensable in a democratic system, and should not raise doubts to the Muslim mind. It is needed to scrutinize the government’s activities

Non-Muslims and secularists can have their political parties to present their views, and defend their interests and guard the human rights and dignity of all the children of Adam as the Quran teaches. Women can join or form the party they like. Political fronts and alliances may involve Islamic parties and others whenever this may be beneficial for the Muslims and the entire people. As well, coalitions can gather various parties, including Islamic ones, to form a government. Such diversity in political thinking, concerns, and activities within the people’s unity represents a fundamental organizational tool for human pluralism, in order to secure and defend the dignity of all children of Adam.

Opposition is indispensable in a democratic system, and should not raise doubts to the Muslim mind. It is needed to scrutinize the government’s activities, and to be ready to replace it if it loses the confidence of the people. Opposition does not oppose for the sake of opposition; it should support the public unity during national crisis.

However, opposition may not be efficient or effective when the political parties become so many that forming a coalition to govern, or a weighty opposition would be problematic. This is a challenge for the multi-party system, which some contemporary democracies are facing and suffering from. It may be overcome through political prudence and moral responsibility rather than by any legal restriction that may be arbitrarily decided or executed.

Legislation and Separation of Powers

Some Muslims may argue that, since God is the Lawgiver, there should not be a legislative body in an Islamic state. In fact, the legislature specifies and puts in detail the required laws, while the Quran and Sunnah present general principles and certain rules. Even in the case of such particular rules in the Quran or the Sunnah, different interpretations and jurisprudential views might arise about a certain text on the grounds of its language and its relation to other relevant texts. It is essential that a certain interpretation or jurisprudential view should be adopted by the state as a law, and this has to be decided by the legislature, so that the courts may not be left to different rules that may be applied in the same case according to the views and discretion of different judges—a complaint the Egyptian well known writer Ibn al-Muqaffa’ (d. 142H./759 C.E.) made in his time. (Qtd.in Duha, 174)

Besides, there is extensive room for what is allowed by shari’ah and such an enormous area of allowed matters ought to be organized in a certain way, making any of them mandatory, forbidden, or optional according to the changing circumstances in different times and places. Public interest has its consideration in introducing new laws, which were not specified in the Quran and Sunnah, but which are needed in a certain time or place, and which do not contradict any other specific rule in the divine sources, but can be supported by the general goals and principles of shari’ah.

Many laws are required in a modem state in various areas such as traffic, irrigation, construction, roads, transportation, industry, business, currency, importing and exporting, public health, education, and so on, and they must only be provided according to the consideration of public interest or in the light of the general goals and principles of shari’ah, as there are no specific texts in the Quran and Sunnah that directly deal with every emerging need in every time and place.

Changing circumstances influence the human understanding of the legal text, and develop new legitimate needs for legislation.
Prophet Muhammad himself expected that some cases, which may not have a particular corresponding rule in the Quran and Sunnah, would face a judge who has to use his own discretion and judgment “ijtihad”, which is naturally assisted by the essence of shari’ah and guided by its general goals and principles. Such a juristic or judicial discretion, ijtihad, may have to be generalized and codified as a state law, and not left to personal differences of the jurists or judges. Changing circumstances influence the human understanding of the legal text, and develop new legitimate needs for legislation. Considering the goals and general principles of the Islamic law in responding to changing social needs has been called in the Islamic law: the conduct of the state policies according to shari’ah “al-siyasa al-shari’iyya”. The distinguished jurist Ibn al-Qayyim wrote:

“A debate took place between (the jurist) Ibn Aqil and another jurist. Ibn Aqil said: ‘Applying (discretionary) policies is prudence, and is needed and practiced by any leader (imam).’ Another (jurist) said, ‘No policy (siyasa) should be applied except what abides by shari’a. Ibn Aqil said, siyasa (which can be described as related to shari’a) represent actions that make people nearer to what is good and further from what is evil, even if such policies were not practiced by the Prophet or included in God’s revelation.”

Ibn al-Qayyim underlined the lack of true knowledge of shari’ah and how it copes with the existing realities, and made this fascinating statement:

“God only sent the conveyors of His message and sent down His revealed books so that people deal with one another with justice. Wherever a sign of truth appears, and an evidence of justice rises—by any way, there is God’s law and command. God has only indicated through the ways that he gave as laws [by revelation] that His purpose is to establish justice and to secure it in people’s behavior: and thus any way that makes the truth clear and justice recognized should be followed in ruling... We do not see that a just policy may differ from the comprehensive shari’a, but it is merely a part of shari’ah, and calling it policy, “siyasa” is merely a term, since it is just inseparable from shari’ah.” (I’lam, 37)

The legislature, then, is necessary and legitimate in a modern Islamic state. It also watches the practices of the executive body, enquires about any failure and introduces any necessary legislation for reform. The principle of “checks and balances” would be helpful in organizing the state bodies and their powers, and guarding the public interest. The separation of the legislative and the executive in their functions should allow channels of cooperation and should not create a climate of confrontation.

The moral and spiritual dimension in the politics of an Islamic state may help organizationally and psychologically to develop the essential co-operation between the two branches. As for the judiciary, it should be independent and protected against any interference or pressure.

Contemporary mass communications provide a valuable vehicle for public information, education and expression. Talk shows, panel discussions, movies, series, songs and other entertainment programs also have their impact on the public attitudes in the various areas of life. I limit myself here to the political side.

Any established means of mass communication must be secured for all. This right may be organized, but never restricted.

Freedom of searching for information from different sources including the governmental authorities should also be secured. Legal and ethical safeguards ought not to hinder creativity. The media can help the readers and the audience to become more aware of the political issues, especially during election campaigns, and this would make them more capable of a right decision. Any new legislation or any public measure may be more successful in achieving its objective if it is preceded, combined and followed by information and education of the people through the media.

According to the Quran, God’s guidance has to be clarified to a person before being responsible for a deliberate deviation from it (see 4:115; 47:25, 33) Those who are entrusted with authority by the people have to respond to people’s questions about their practices, while the people have the responsibility to look for the information from the proper sources and avoid rumor traps by using their common sense and moral values (see 4:83; 49:6-8). If any of the mass media is run by the government in a way or another, political parties and contestants for public offices should have equal opportunities to address the people.

However, rights go hand-in-hand with responsibilities. Modern technology has endowed the media, both within the country and universally, with a formidable power that ought to have ethical and legal safeguards. A universal document and supervision may be needed. Heavy pressures on the private media come from wealthy and influential contributors and advertisers. It is a real challenge for the modern world to benefit from this huge technical and psychological power and avoid its excessiveness and abuse. A combination of morality and creativity is essential in such a vital and sensitive area.

Works Cited:

Al-Mawardi, Ali ibn Muhammad. al-Ahkam al-Sultaniyya. Cairo: Mustafa al-Halabi, 1973

Amin, Ahmad. Duha al-Islam. Beirut: Dar al-Kitab al-Arabi. 11th Ed., 1975.

Ibn al-Qayyim al-Jawziyyah. I 'lam al-Muwaqqi‘een.  Vol. 3. Cairo: al-Maktabah al-Tijariyah al-Kubra, 1955

Ibn Kathir, lsma’il ibn ’Umar. Al-Bidayah wa-l-Nihayah. ed. by Ahmad abu Milhim et al. V. 7. Beirut: Dar al-Kutub al Ilmiyya, 1988

Ibn Rushd, Muhammad ibn Ahmad. Bidayat al-Mujtahid. Vol. 2. Beirut: Dar al-Fikr, n.d.; Ibn Hazm, Ali ibn Ahmad. al-Muhalla. ed. Muhammad Khalil al-Harras. Vol. 9. Cairo: Matba’at al-Imam, n.d.

This is an excerpt from the paper "Islam in a Modern State: Democracy and the Concept of Shura" by Fathi Osman. It first appeared at http://www.usc.edu
Related Links:
Following the Quran and Sunnah: Solidifying Unity
Binding Shura: A Key for Muslim Unity and Success?
Freedom Comes First
Problems of Autocracy and Corruption
Human Rights in Islam

Dr. Fathi Osman is a professor of Islamic Studies and has taught in several universities around the world. Among these universities are Al-Azhar University in Egypt, Houran University in Algeria, Ibn Saud University in Saudi Arabia, International Islamic University in Malaysia, Temple University, USC, and Georgetown University in America. He is an author of several books and articles which include: Islamic Thought Vs. Change, Children of Adam: An Islamic perspective on Pluralism, Jihad: A legitimate struggle for moral development and human rights and Concepts of the Quran. He is currently retired and is a resident scholar at the Institute for the Study of Islam in the Contemporary World at the Omar Ibn Al Khattab Foundation in Los Angeles, USA

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