Islam And the American System of Governance: An Application of the Theories and Principles Set Forth in Khaled Abou El Fadl’s Article on Islam and the Democratic Commitment
By Mahmoud Fadli
Many fundamentalists in the Muslim world, most notably Osama Bin Laden, believe that America is the antithesis of Islam, blaming it for the constant state of instability in the Middle East and other parts of the world. Indeed, Osama Bin Laden himself stated in an interview with Time Magazine in 1999, two years before the attacks of September 11, 2001, that “[h]ostility toward America is a religious duty, and we hope to be rewarded for it by God.” Moreover, these same fundamentalists claim that the only legitimate law and structure of government is that based on the Shari’a, and that anything short of a purely Islamic state is blasphemous, and forbidden. However, there are many who would stand in disagreement with these fundamentalists, with the most notable voice being that of Dr. Khaled Abou El Fadl. According to Dr. Abou El Fadl’s paper entitled “Islam and the Challenge of Democratic Commitment,” classical Muslim Jurists of the Sunni Tradition would claim that the essence of the state itself is a realm separate from religion. Classical Sunni Jurisprudence separated the realm of religious understanding and political (societal) necessity. Debates pertaining to the origins of the powers of the sovereign, the ability to bind them to certain codes and contracts, and who holds the true power to change the government and or the sovereign mirrored debates held by the founding fathers of the United States. While modern concepts of federalism and democracy did not exist in the classical Islamic era, many debates between classical Muslim jurists arguably planted the seed for further reconciliation with these concepts.
In this paper, I will give a broad overview of the system of government and law in the United States, through its Constitution. I will further give a brief overview of the points and theories posited by Dr. Abou El Fadl, as well as shed light on various concepts of Sunni Islamic thought that pertain to citizenship, structure of government, and values in society. I will argue that principles like the freedom of religion, the separation of “Church and State,” the independent judiciary, and representative democracy are not incompatible with Islam, and that the government and legal structure of the United States would be plausible in an Islamic context. This will necessarily require that I look at the foundations of the American model of Government, its Constitution, and underlying values and compare them to that of Classical Sunni Islamic jurisprudence. In the end, I will conclude that while there are differences between the institutions and perspectives advocated by Classical Jurists and the Founding Fathers, the underlying principles, structures, and values actually find themselves standing on common ground.
A Brief Overview of the Political System In The United States
It is important to first look at the structure of the Government of the United States as it will be essential to this review. The purpose of this section is to highlight the elements that will be pertinent to the analysis - elements that will be compared to those postulated in Classical Sunni Islamic thought. This includes the concept of federalism, constitutional government, and the democratic process. Just as the American model of government values a separation of powers, consultation through the legislative process, the binding of the branches of government to the values codified in the constitution, Sunni Islamic Jurisprudence bases the legitimacy of government on the sovereign’s ability to gain meaningful consent from society, abide by certain values and principles codified in the ‘aqd (contract of rule) and the Quran, and has a means for which the sovereign is held to account by the society for actions in violation of the principles laid down in Sunni Islamic Jurisprudence and the ‘adq. These similarities will highlight the values that both the American model of government and the Sunni Islamic view of governance share, and will go to show that these seemingly distinct worlds share more than is readily discerned from an on-the-surface glance.
The American system of governance is defined by the Constitution, which was ratified in a series of Constitutional conventions in Annapolis, Maryland and Philadelphia, Pennsylvania from 1786 to 1787. It specified that there would be three branches of the federal government: the legislative branch to pass and codify laws, the executive branch to act as the figurehead of the country and enforce the laws, and a judiciary to interpret the laws and ensure that they do not run afoul of the Constitution. Moreover, the Constitution, taking into account the make up of the United States, incorporated a concept known as Federalism, which allowed the various states to maintain sovereignty over themselves to a limited extent, while operating under the guise of a larger, centralized Federal Government. The three branches of the federal government would be independent of one another, although they would have varying levels of influence on the interpretations and actions of the other, with the purpose being that they would act in a manner that would produce “checks and balances” to ensure one branch did not become too powerful and rule over the others.
Taking this into consideration, the United States Constitution specified that where there are matters of conflict between federal law and state law, the law of the land would be that of the central, federal government. Moreover, the Bill of Rights, or the first ten amendments to the Constitution, specified protections afforded to the people of the United States against certain transgressions that the Federal Government may make, with Thomas Jefferson, in a letter to James Madison, stated that the bill of rights was “what the people are entitled to against every government on earth.” While originally intended to cover actions by the Federal Government, over time, and through judicial interpretation, the Bill of Rights has been interpreted to protect citizens from transgressions by State Governments.
This paper seeks to rationalize these concepts within established principles of Classical Sunni Islamic Jurisprudence noted by Dr. Abou El Fadl, arriving at the conclusion that if a government system which mirrors that of the United States were to be applied in an Islamic context, the protections and structures therein would be in line with Islamic thought and valid within the Classical Sunni Islamic framework. To engage in this analysis, it is imperative that I begin by breaking down theories within Classical Sunni Islamic thought that are relevant to the protections mentioned above. These include evaluating how Classical Sunni Jurists viewed various types of government, specifically the “state of nature,” the “dynastic system,” and lastly, the “Caliphate.” This will lead to an evaluation of what the purpose of government is under these theories, concepts of consultative governance, the rights and protections afforded to peoples within the jurisdiction of an “Islamic” state, finally concluding with examples of certain rights and protections available in the American model of governance in the Islamic framework.
Fundamentals Of Islamic Jurisprudence Through The Sunni Perspective
I. A Historical Account
Sunni Islamic Jurisprudence is very complex, and like other systems of legal thought, has a rich and intriguing history. The general principles in Sunni Islamic Jurisprudence noted by Dr. Abou El Fadl will be my guide throughout the rest of this paper as it will be essential to rationalizing the United States system in the Islamic Context. These include views on governance, concepts of consent to rule by the sovereign, and consultative governance. As with all things in Islamic Jurisprudence, the strength of reasoning and the various mechanisms used will determine the strength of my argument presented herein. Without the fundamentals, it would be very difficult to attempt this feat. Given that the fundamentals of Sunni Islamic Jurisprudence create a strong foundation for the creation and maintenance of the American Government Model in the Islamic framework, I will conclude that the concepts are inherently compatible and practical.
Islamic thought viewed governance through three broad categories: the primitive state of nature, the dynastic system, and the Caliphate. According to the first category, the primitive state of nature, life was perceived to be uncivilized, in which people would live in a constant state of lawlessness and anarchy. This system was one in which the strongest in the society would rule, often dominating and tyrannizing the majority, maintaining power only if they remained strong and physically able. Surprisingly enough, this was similar to the theories of the theories of the 17th century western philosopher Thomas Hobbes, who posited that in the “state of nature,” there would be no rule of law, and men would live, in essence, whimsically and according to general propositions of nature. In both the Western and Islamic conceptualization of the state of nature, the primitive and rather undeterminable affairs of human beings in such a state was frowned upon and rejected as viable state of being, with Thomas Hobbes’ postulations being influential in American and English thought.
The second type of governance, the dynastic system, was based “not on custom, but on laws issued by a king or prince.” Jurists believed that since the king or prince was the source of the law, the system would be seen as “baseless,” if not “whimsical and capricious.” Jurists reasoned that the people subject to such a system would obey the laws out of necessity and or compulsion, and that the laws themselves are considered “illegitimate and tyrannical.” It is of great significance that “illegitimate and tyrannical” themes of governance were rejected in Islamic jurisprudence, as now jurists have explicitly rejected both the “state of nature” and the dynastic system. Given that democracy as practiced in the American system is neither “the state of nature” nor “dynastic” in practice, this preference for something other than the two aforementioned systems could be interpreted as leaning towards a “democratic” system of government.
Lastly, the third system, and the one that was seen as the most legitimate, was that of the Caliphate. Jurists reasoned that this system fulfilled the “criteria of justice and legitimacy,” binding the “governor and governed alike” through the use of Shari’a law, which was seen to be a higher law that could not be altered or changed. Shari’a law was seen by jurists to be a higher law that could not be modified with regards to its underlying principles, and offered protections for the governed due to the fact that the “government may not act whimsically or outside the pale of the law.” In other words, it was the concept of superiority of governance through the rule of an incorruptible law that made this system appealing to jurists as it was not based on the often tyrannical or whimsical decisions of the sovereigns of other systems of governance. It is this distinction, based upon the incorruptible nature of the underlying law, which set the Caliphate system apart from the dynastic and “natural” systems noted above. This necessarily meant that the underlying assumption was that Shari’a is a perfect system, and that if a sovereign were to whimsically change the law, or core of the government’s legitimacy, it would be done based on the view that the Shari’a was imperfect. For reasons to be mentioned supra, this was in direct contrast to the “divine right of kings,” exemplified by King James I of England (1567 – 1625 A.D.), a theory that was based upon the concept that a “king's power to rule was derived from his ancestors who, as monarchs, were appointed to serve by God.” According to the “divine right of kings,” “a king or his heir could not be forced to forfeit the right to the obedience of subjects or the right to succeed to the throne,” irrespective of any misconduct. However, in summary, the Caliph, by virtue of the fact that they are selected by a highly specialized group of scholars and held to rule by the ‘aqd, or contract of rule, has no such right to immunity from judgment, and is even subject to removal for violating the ‘aqd. Moreover, given that Shari’a law, which binds even the terms of the ‘aqd, is perfect and holds even the sovereign to account, the Caliph system, in the eyes of the Jurists, was the most accountable.
While Shari’a law was derived from the Quran (the Islamic Holy Book) and the Sunnah (the historical accounts of the life of the Prophet Mohammad, a central figure in the Muslim Faith), it was evident that the Qur’an itself did not specify any particular form of government. However, the Qur’an did specify certain values that Muslims, in their polities, should fulfill, which included the “promotion of social cooperation and mutual assistance in [the] pursuit of justice, the establishment of a consultative and non-autocratic method of governance, and the institutionalization of mercy and compassion in social interactions.” It is these principles that lay the foundation for the next sections of analysis.
A. The Purpose of Government in Sunni Islamic Jurisprudence
In order to properly analogize the American Model of Governance in the Islamic framework through the work of Dr. Abou El Fadl, analyzing the purpose of government in the Sunni Islamic framework would be a logical first step. A particular view of the classical Sunni Islamic view of governance from Dr. Abou El Fadl’s work comes from a statement by Imam al-Haramayn al-Juwayni (1085), who reasoned that
[the] imama (government) is a total governorship and general leadership that relates to the special and common in the affairs of religion and this early life. It includes guarding the land and protecting the subjects, and the spread of the message [of Islam] by the word and the sword. It includes the correcting of deviation and the redressing of injustice, the aiding of the wronged against the wrongdoer, and taking the right from the obstinate and giving it to those who are entitled to it.”
This meant, according to some conceptualizations, that justice itself was the core value that “justifies the existence of government,” predicated on the notion that the Muslim faith was revealed to the umah with justice in mind. The end result was that Muslims should follow the road that establishes what is “right and just.” The basis of this formulation, according to Khaled Abou El Fadl, was similar to that of “seventeenth century Western discourse on the state of nature or the original condition of human beings.” The belief was that human beings, even married couples and parents and children, often had conflicts and were unwilling to work together at times in a mutually beneficial manner, thus necessitating the intervention of the authorities to maintain the harmony of society. This view, however, was not the only one presented.
Some scholars stated that human beings were created intentionally weak by God, thus making cooperation necessary in order to “limit the ability of human beings to commit injustice.” Without cooperation, these scholars reasoned, humanity will be unable to overcome injustice, with the strongest in society being bound to violate the rights of the weak. This school of thought harmonized the concept of the ruler ascending to power through a control with the people, undertaking to further such cooperation with the ultimate goal of “achieving a just society,” or at the very least, maximizing the “potential for justice." Moreover, the Quran provides further need for the establishment of a state, in general, when attempting to explain the reason human beings are prone to conflict and war. The view is straight forward: “human nature is not sufficiently strong [enough] to resist the temptation [of] evil, [and as a result], it is necessary for man to establish a human agency, that is, a state, to mitigate the effects of anarchy and enforce divine law.”
Given that human nature, according to the view posited above, necessitates the creation and maintenance of a state, a question still remains: how is this state to be formed, and who is to be brought under its jurisdiction? Naturally, this brings about questions of democracy versus despotism, and various conflicting views on the theories of government. The next section attempts to deal with this in a more focused manner, analyzing the necessity of having a sovereign rule with the consent of the governed, as well as determining who the governed is to be. This necessarily requires that I evaluate concepts of consent to rule and citizenship from the perspective of Classical Sunni Jurisprudence.
B. Citizenship – Who is to be considered a ‘Citizen’ in the Islamic Context?
The question of who is a citizen of a polity is key to continuing the application of Dr. Abou El Fadl’s theories and postulations. In the United States Constitution, the words “people” and “citizen” are used in varying contexts when discussing the various rights, privileges and or immunities granted to them. For example, Article IV, § 2 cl. 1 states that “[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” Moreover, the Fourteenth Amendment to the United States Constitution expressly defines citizenship to mean “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof…” This is in contrast to the preamble of the United States Constitution, which states that “[w]e the people of the United States,” and the Second Amendment to the United States Constitution states that it is the “right of the people to keep and bear arms,” going further to say that such a right cannot be infringed upon by the government. While this distinction has created considerable debate with regards to Second Amendment Jurisprudence, the general issue to be considered here is who is a citizen, and what rights are granted to them as opposed to non-citizens. I will use principles noted by Dr. Abou El Fadl to rationalize the concept of citizenship in an Islamic framework.
Traditionally, it can be assumed that a Muslim who resided in the territorial jurisdiction of an Islamic polity was considered subject to its rule and subject to taxation. In Islamic practice, rulers of Muslims lands who had non-Muslim inhabitants required that they pay a poll tax, or jizya, in order to be protected by the Islamic State. This concept of jizya, at least in this paper and through a view on modern questions of citizenship, will be attributed not to non-Muslims, but instead to operate in a manner similar to that of immigration status. Based upon this analogy, I will conclude that anyone within the territorial jurisdiction of a Muslim polity who meets the criteria of citizenship set forth in the governing principles and documents of the state.
The jizya, in essence, was rationalized to operate in lieu of the zakat, or obligatory public alms, tax that was placed upon Muslims. By paying the jizya, a non-Muslim, or dhimmi, “enjoyed the same rights to the protection of his person and property as a Muslim, whether inside the territory of the Islamic state or outside of it.” This even extended to times of war, where just as the state was “obliged to redeem Muslim prisoners [that] the enemy [had] seized, so too was [the state] obliged to redeem dhimmis the enemies [have] seized.” But even this was based upon the fact that Islamic societies, in general, looked to abide by the broad principles of justice set fourth in the Shari’a and Qur’an – principles such as justice, equality before the laws, and the promotion of social good.
While traditional notions of citizenship based upon religion seemed to be widespread in Islamic polities, such notions, at least today, are undoubtedly more complicated. Given the vast and diverse nature of societies today, I am of the opinion that a more even-handed and temporal approach to citizenship should be taken. Given that Islamic law looks to the preservation and establishing of justice, the manner in which citizenship is analyzed should conform to the five necessities that are prevalent in Islamic Jurisprudence: the rights to religion, life, intellect, lineage and honor, and property. When viewed in this light, I believe that concepts of citizenship can be defined in a manner not inconsistent with the Fourteenth Amendment of the United States Constitution, which states that “[a]ll persons born or naturalized in the United States” are subject to the jurisdiction thereof.
This, however, is no attempt to belittle Islamic practice pertaining to classical forms of citizenship – if anything, I believe the true essence of the question is not who is a citizen, but rather to whom does Shari’a, or Islamic conceptualizations of God’s law, apply. Noting Surat Al-Baqara’s clear statement that “there is to be no compulsion in religion,” it would seem that a default application of Shari’a, an inherently religious form of law, would be compelled and thus in conflict with the prohibition. However, if citizenship were to be generally defined as either based on birth, naturalization, or even paternity, there would be no issue as to the application of Shari’a if a form of “privatized diversity,” or alternative dispute resolution where the Shari’a were applied based on voluntary consent by the parties involved, were to be allowed. And this does not necessarily need to be just Shari’a law, but can include the legal systems of other faiths and communities. The purpose behind this is, in and of itself, to meet the burden of responsibility and purpose that a government based on Islamic principles would need to have in order to legitimately manage its society. In that regard, by broadly defining citizenship to encompass the greatest and most diverse array of citizens, an Islamic polity could be preserving the right of intellect by offering the widest potential for growth and perspectives in a democratic society. Moreover, non-citizens can be required to pay a “tax,” perhaps in the form of certain fees required for a visa or other travel document, to ensure that they are “protected” under the laws of the state. Even that, based upon the jizya, is only a form of equality – given that Muslims in classical Islamic states were required to pay the zakat tax, or alms used in a manner akin to social welfare, dhimmi communities were required to pay the jizya so that the temporal ruler of an Islamic polity could use the tax to ensure that these communities operated with their own laws and their own customs in tact. Even with the tax, however, they were still protected as full citizens, although they were not subject to the Shari’a.
In that regard, the rights of the citizenry in a modern, democratic Islamic polity could plausibly be determined by the founding documents, which are based upon the political, or siyasa, necessities of the modern times. Given that there is no compulsion in religion, and given that the state must act in a manner that protects the fundamental principles of Islam in its activities, I conclude that there is nothing in Islamic Jurisprudence that would obstruct a broad definition of citizenship that is drawn not upon religion, but upon factors such as place of birth, naturalization, and paternity. Definitions of who may be subject to the territorial jurisdiction of a particular nation are questions that the people, through founding documents, should answer and amend as the times call for it. Moreover, it is of consequence that the Quranic Surah called “al-Baqara” references God’s intent of creating humanity into groups that they would know each other, and given that there was no specification of whether the groups themselves could or would be all Muslim, there is nothing that would imply that a diverse body of human beings could not be considered citizens in the Islamic context. If anything, based on a general reading of Surat al-Baqara, it can be said that such a proposition is Islamically possible.
Thus, with regards to citizenship, the definition can truly be said to be one that only the polity itself can make. Given that this paper seeks to rationalize the concept of citizenship in the context of Islamic Jurisprudence and the American model of governance, I conclude that there is nothing in Islamic Jurisprudence that would not allow for definitions of citizenship to be based upon birth, naturalization, or paternity, or any manner not inconsistent with the Fourteenth Amendment to the United States Constitution.
Given that citizenship has now been defined, there still remains the question of consent to the sovereign’s rule. While this consent is implied to be that of the people, securing that consent, and questions of who can secure such consent, remain unanswered. The next section seeks to both explain the Classical Sunni Islamic jurisprudence on the subject, as well as draw a comparison to the American experience.
C. The Sovereign and the Consent of the Governed, And the ‘Dead Hand’ Problem
Given that in the American Model of Governance the Head of State is elected through the democratic process (however defined), it would be worthwhile to examine how Sunni Islamic Jurisprudence treats the legitimacy of the sovereign and whether a democratic model can be rationalized through the Sunni Islamic Framework. Given that democracy invites discussion about popular sovereignty (as opposed to the sovereignty of a higher deity or being), concepts of consent must be brought to the surface and analyzed in order to smooth over many potential rough edges in the application of an American style system of government in the Islamic context. Moreover, I will touch on the ‘Dead Hand’ problem, which is the theory that “the dead hand of the past ought not to govern, … and any theory of interpretation” of a founding document, like the United States Constitution, should be seen in light of the current circumstances. In other words, the debate centers around whether or not interpreting a document based on its original meaning at the time of ratification would undermine “democratic legitimacy.” The underlying principle is that every democratic society and polity should consent to the founding documents and give legitimacy to its supremacy as a codification of the terms of governance, necessarily raising issues of how the society would be bound by a document ratified hundreds of years ago. This is important because Islamic Jurisprudence, as noted by Dr. Abou El Fadl, requires that the current leadership secure the consent of the ruled in order to rule, with such a principle needing to be applied not only to the individual sovereign, but to the government structure as a whole. I will argue that the issue cannot be seen as a “dead hand” problem, but as a broader, principled argument that has to do with commonly held values of society and the ability of the polity to take the founding document and interpret it in a manner that would allow it to be tailored more appropriately to the current needs that the times require.
There has always been a lively debate in Islamic Jurisprudence with regards to where the source of sovereignty in an Islamic polity is derived. As early as 661, a group known as the Haruriyya, later known as the infamous Khawarij, declared that God’s dominance and sovereignty was, and should be, present in the political sphere. In essence, this concept of “dominion belongs to God and the Qur’an is the judge,” implicitly rejected human sovereignty, and is a slogan and perspective that is advocated today by many extremists groups in the Muslim world. It represents a view in Islamic jurisprudence that devalues the agency of human beings to the extent that they cannot legitimately determine the true structure of their government without first acknowledging that they have no sovereignty to do so. In other words, if God is not the head of state, in essence, then there is absolutely no legitimacy or purpose behind the conceptualized government, and thus, the entire system would necessarily have to be removed in favor of a theocracy of sorts. This would directly oppose any legitimacy gained by having a popular democracy, as any determination of government structure outside the narrow bounds of this line of thought would be illegitimate. It is essential to note, however, that the Khawarij took power through rebellion, murdering the cousin of the Prophet Mohammad, Ali, who was a very influential figure in Islamic history. In that regard, the Khawarij, while loud and far reaching both historically and today in the form of extremism, were minorities in Islamic jurisprudence.
There is, however a more tempered, and widely accepted, view that would eventually give way to the concept of popular, human sovereignty, albeit on earth. Given that according to the Qur’an human beings are “vicegerents of God, the inheritors of the earth, and the most valued invention of God’s creation[s],” there remained a question of whether or not the notion of God’s sovereignty can be exploited to “overcome and marginalize the agency of most human beings in conducting the affairs of their polity.” In other words, there still remained the theoretical justifications for human sovereignty as the issue was not whether or not God was sovereign over humanity, but how humanity was to conduct its affairs on earth. This necessarily ran afoul of the Khawarij’s perspective, which resulted in their marginalization in Islamic society.
The conceptualizations and debates in the Sunni Islamic Tradition with regards to the concept of human agency and sovereignty are rich and filled with many fascinating debates. The Sunni Islamic account of the Prophet’s death stated that the Prophet died without naming a successor to lead the Muslim community. Many contend that the Prophet did so intentionally, leading the choice of leadership to the Umah, or Muslim nation, as a whole, with the chosen individual being the “successor” in the leadership of the community. The Caliph, literally meaning successor or deputy, did not enjoy the same type of authority granted to the Prophet or that attributed to God. The Caliph was seen to represent the “historical, not the moral, successor of the Prophet,” which assumed that the “moral and legal authority of the Prophet (or God) does not vest in a person carrying the title of Caliph.” According to the jurist al-Baqillani (1013), the authority of the Caliph was most like a “[n]ation’s trustee and representative,” implying that the “nation was behind him, correcting him and reminding him” of his (or her) duties and obligations. Moreover, Al-Baqillani went further to say that the nation could remove and replace the Caliph when “he does what calls for his removal.” In that regard, it would seem that since the people, by however one elects to define the following term, “chose” their Caliph or successor to leadership, it would necessarily imply that the people were free to do so, and that such a practice was not explicitly commanded to them by God. The fact that such a practice, according to Sunni Islamic Jurisprudence and historical account, was laid down by the Prophet Mohammad, further gives credence to the concept of popular human sovereignty on earth.
This, however, begs the question of who exactly the ruler, or Caliph, is answerable to: are they answerable to God? To the people? Or a select, and assigned, few? The answer came after a series of lengthy debates which resulted in the adherence to the concept of the ‘aqd, or contract, between the Caliph and ahl al-hall wa l-‘aqd, or the people who have the power of contract (also known as ahl al-ikhtiyar, or ‘the people who [can] choose.). Jurists valued the concept of consent to ruler and ruled perhaps because the first two types of government, the state of nature and dynastic system, were both tyrannical and whimsical – it would have appeared that anything short of consent would violate such commonly held principles. This necessarily meant that ahl al ‘aqd consented to the rule of the Caliph. This assumption was conceptualized by the term bay’a, or allegiance to the Caliph’s rule. In some degree, this was very similar to John Locke’s social contract theory, wherein he stated “[w]hen any number of men have so consented to make one community or government, they are thereby presently incorporated, and make one body politic, wherein the majority have a right to act and conclude the rest.” The very purpose behind this concept is to bind the sovereign to the polity, as in Islamic Jurisprudence the sovereign was seen as a representative of the broader community. Just as Locke’s theories of consent to governance were prevalent in the formulation of the American model of governance, the concepts of the ‘aqd and the bay’a were linchpins of legitimacy in Classical Sunni Governance.
While the concept that would lead to the legitimacy of the sovereign’s rule was determined, there remained the question of who exactly ahl al ‘aqd was to be: was it to be the Muslim nation (or by extension, the country/polity), or a group of specified individuals who would act as representatives of the nation or polity? The Mu’tazili scholar Abu Bakr al-Asam (d. 816) posited that it should be the public at large that would constitute the group known as ahl al ‘aqd, reasoning that there must be a “general consensus over the ruler, and [that] each person must individually give his [or her] vote of allegiance to the ruler.” Al-Asam, having aligned himself with the Mu’tazilah school of theological thought, based his views on five principles of faith, which were the noted to be the unity of God, justice, the promise of reward and the threat of punishment, the refrain from labeling those who commit sin as believes or disbelievers, and the principle of commanding the good and prohibiting the evil. As purely democratic as it may seem, this perspective, however, was rejected by the vast majority of Sunni Muslim jurists.
The majority of Sunni Muslim jurists posited that a more pragmatic approach to power was required, arguing that ahl al ‘aqd were “those who possess the necessary shawka [power or strength] to insure the obedience, or, in the alternative, the consent of the public.” The concept of shawka, and what it truly meant, however, was debated. Jurists like al-Ghazzali focused on consent as the material issue, arguing that shawka means the “ability to deliver the consent of the people,” meaning, by extension, that ahl al ‘aqd “must represent the consent of the governed,” in this case, the Muslim polity at large. In other words, ahl al ‘aqd would necessarily have to have some form of legitimacy with the masses. While this may sound to many like representative government similar to that of a legislature, the consent with al-Ghazzali, and others at the time, spoke of was posited to be that of acquiescence and not necessarily deliberate choice in who the ahl al ‘aqd was to be. Nonetheless, the scholars or individuals who comprised ahl al ‘aqd would have to fulfill certain criterion of decency, “probity, knowledge” and wisdom in their community, which would likely include, according to jurists, notables of society, known as shurafa’ al-umma, or the prominent jurists.
What is most notable is the seeming distrust that the jurists had with the commoners, or the laity, of the polity. The concern was primarily with the tendency to “float with every ebb and flow,” which, in the jurists’ mind, would inevitably result in the decision to endorse an unworthy ruler. While it may seem pessimistic today, such conceptions were not uncommon, and given the political and social turmoil of the times in which these debates occurred, it was not surprising. In the history of the United States, such views were brought to the surface by James Madison, writing under the pseudonym Publius, who wrote in Federalist Paper No. 10 that a pure democracy, wherein every individual citizen votes, cannot provide a cure for “the mischiefs of faction.” In essence, Madison viewed factions as “a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.” In Madison’s view, factions represented a danger to the society at large if they had interests or motives that were considered contrary to the best interests of the society. It was because of this that concepts of republicanism were hailed to be one of the protections afforded to the rights of the citizenry, protecting them against the tyranny of the majority and the disintegration of the values of the newly formed government and society.
In the end, however, Classical Sunni Jurists elected to bind the ruler by the ‘aqd, or contract, and to rule in accordance with the interpretations of divine law provided by the jurists themselves. This was not to mean, however, that the jurists had free reign – there was a need to continue to ensure that the Muslim polity as a whole trusted them, for without the element of trust, the Jurists would have no real ability to interpret the divine texts, or hold the ruler to account for their actions. In that regard, as will be argued, it can be said that these concepts of ‘aqd and ahl al ‘aqd can be the foundations for rationalizing the American framework in the Islamic context, which find themselves at play in the American system.
However, there still remains the “dead hand” problem, and what necessarily binds successive generations to founding documents, or even the ‘aqd, once those who have written and ratified the original documents pass away. Reva B. Siegel, in the article Heller & Originalism’s Dead Hand – In Theory and Practice, writes that critics of originalism object to interpreting founding documents, like a constitution, in a manner not inconsistent with the original meaning of the words because it would grant past generations control over the living and undermine the democratic authority of the founding document.
As with any form of government, successive generations are necessarily bound by the laws and overarching principles of the society through the use of the various tools that governments possess. These include, among other things, the judiciary and the police force. While this may necessarily include some degree of compulsion, it is not the only means of attaining, or showing, consent. Originalists like Randy Barnett have cited that the “Constitution’s legitimacy must flow from the justice of the political community it establishes,” noting that, at least in the context of the United States Constitution, “the conditions necessary for ‘We the People’ actually to consent to anything like the Constitution or amendments thereto have never existed and could never exist.”
However, there are views that note that the “dead hand” problem can be alleviated by giving legitimacy not just to the founding documents, but to the “‘constitutional construction’ by the representative branches of government,” and that democratic politics and the institutions therein, if accepted, could imply consent if they were founded by the constitution. In that regard, by virtue of being a citizen and participating in, and benefiting from, the institutions and political processes of the polity itself, consent to the founding documents can be implied. Such a view would be buttressed if, as a result of the institutions noted in the founding documents, a stable and just political community is established wherein the interests of the various sectors of society are adequately represented. If such is the case, then consent to the founding document, and the government structure as a whole, can be implied, and the “dead hand” problem can be averted and left to the political branches who, by virtue of election, gain the legitimacy and acceptance of the polity.
It is these political institutions, most notably the elected legislatures, that are essential to ensuring society’s acceptance of the structure of governance and the legitimacy of the founding documents. Given that the American system is based upon representative government, a brief look into Sunni Islamic Jurisprudential views on shura, or consultative governance, would be appropriate. The next section briefly outlines the concept of shura.
1. Consultative Governance in Islamic Jurisprudence – A Hint of Representation
The concept of consultative governance, or shura, which literally means consultative deliberations, is not foreign to Islamic Jurisprudence. It is often noted that the Quran instructs the Prophet Mohammad to consult regularly with “Muslims on all significant matters,” indicating that a “society that conducts its affairs through some form of deliberative process is considered praiseworthy in the eyes of God.” While indicative of a legislature on its surface, the concept of shura, and who would be subject to consultation by the sovereign, was debated in Islamic jurisprudence. Like with the contract, or ‘aqd, there had to be a determination of what group would constitute the people of consultation, or ahl al-shura, and whether or not they had to be separate from ahl al ‘aqd. The importance of this practice cannot be understated: it is one of the essential requirements in the American model of governance, and in order to apply Dr. Abou El Fadl’s theories, I must evaluate the concept in light of Classical Sunni Islamic Jurisprudence. I will conclude that the concept of shura is sufficiently adaptable to meet the demands of a modern, democratic society and its need to have a legislative process that enjoys the consent of the people it represents.
Many jurists agreed that ahl al-shura would constitute the same group as ahl al ‘aqd, or the “people who choose the ruler.” It can be posited that the reasons for keeping ahl al-shura and ahl al ‘aqd consistent with one another would be premised on the same arguments made during the debates regarding whether the people as a whole should constitute a particular authority, or whether certain, notable scholars within the community have the power to bind the sovereign. Given the gravity of the responsibilities assigned to both ahl al-shura and ahl al ‘aqd, it would be sensible to extend the requirements of “decency, probity, knowledge” and wisdom to ahl al-shura to ensure that the sovereign continues to rule in a manner not inconsistent with the central values of the Quran and Sunna. Moreover, jurists at the time could have reasoned that to bifurcate the process of gaining legitimacy with the polity would create unnecessary hazards for the sovereign, especially if, assuming that ahl al-shura were a separate group from ahl al ‘aqd, they [the sovereign] had to seek the counsel and approval of two separate groups who in turn had to secure the approval and trust of the masses in order for the sovereign to reign. By consolidating the ahl al ‘aqd and the ahl al-shura into one group, jurists essentially streamlined the process of gaining legitimacy and consultation while still maintaining a small yet powerful group of intellectuals and scholars who had the continued trust of the governed.
While shura was explicitly mentioned in the Quranic text, questions as to the authority of ahl al-shura were hotly debated. Sunni jurists debated whether the “results of the consultative process are binding or non-binding” on the sovereign, with the former requirement meaning that the sovereign must comply with the results of the deliberation, and the latter meaning the sovereign was free to decide as they wished. While the majority of jurists eventually concluded that the determinations of ahl al-shura are advisory as opposed to compulsory, the traditions of Islamic governance indicated that many jurists claimed that the sovereign must follow the opinion most consistent with the Quran, Sunna, and the “consensus of the jurists;” by extension, this essentially meant that while the majority agreed the results of consultation were nonbinding, the sovereign was not free to disregard the opinions presented to them.
In practice, this meant that, at least to a large degree, the determinations of ahl al-shura were binding upon the sovereign, though jurists did not date state so explicitly. Certain jurists, such as Ibn Taymiyah, maintained that the “ruler should attempt to ascertain the general consensus of Muslims, and not simply the consensus of the jurists...” In any event, the principle was clear: “[d]espotic, non-consultative, decision-making, even if from a wise and learned person[,] is objectionable and unacceptable.” According to contemporary Islamic scholars like Khaled Abou Al-Fadel, the process of consultation, not just the fruits thereof, are, thus, a moral value in and of itself in Islamic Jurisprudence – one that should be transplanted into any form of Islamic government. When seen as a value as opposed to highly specified and procedural requirement to legitimate governance, the concept of shura can be a powerful tool in the establishment of an American-style government in the Islamic concept.
Given that the concept of consultative government has been discussed throughout the history of Sunni Islamic Jurisprudence, and also given the fact that there is not set way of implementing shura if viewed as a value, the concept of a binding, and even bifurcated “legislature” can be woven into the realm of Islamic Jurisprudence. However, a central tenent in the American system of government is the many rights enjoyed by the people. The next section attempts to show the parallels between the various values of the United States Constitution and Islamic Jurisprudence. Instead of viewing these as rights that are derived from the written word of man and that of God, respectively, I urge the reader to consider the views as coming form a perspective oriented towards the necessities of a growing and diverse society and the interest of maintaining social harmony and stability.
2. The Rights of the People in an Islamic State
Islamic Jurisprudence gives many rights to the subjects within an Islamic Polity. While positive rights exist, the most important were the negative rights, or “qualified immunities,” as Khaled Abou El Fadl notes. These rights began with the fundamental premise that particular interests “related to the well being of an individual ought to be protected from infringements” by the state or other “members of the social order,” only to be temporarily given up for the most “overwhelming” necessity, if at all. As the purpose of Islamic Jurisprudence is to “fulfill the welfare of the people,” jurists divided these interests into three categories: the necessities, needs, and luxuries, with the former being the most important and the latter being the least. Divided further, the “necessities” could be viewed under five different categories: the rights to religion, life, intellect, lineage and honor, and property.
While the rights of necessity were often conceptualized together, they were never truly analyzed individually. In fact, as Khaled Abou El Fadl argues, jurists saw these rights from a positivistic perspective: certain laws, such as forbidding and criminalizing murder, were seen as a way to protect the right to life, and the prohibition of alcoholic beverages was seen to preserve the right to intellect. In sum, it was a practice to evaluate the laws in a particular society to see if, in some way, they served to protect the aforementioned rights – so long as the laws did, they were considered legitimate within Islamic Jurisprudence. While many contemporary jurists conceded that the examples provided were not adequate protections, in the aggregate, for these rights, many scholars, like Khaled Abou El Fadl, postulate that such does not “preclude the possibility that the five basic values could act as a foundation for a systematic theory of individual rights in the modern age.”
Despite the fact that it is notable to see many fundamental rights such as life and property to be explicitly acknowledged by jurists, the question still remains as to how these rights would be protected today in a modern and constantly progressing society. The next sections will begin the process of exemplifying various rights attributed to the United States Constitution in an Islamic context. The intent of this section is to give the reader a glimpse into the possible application and articulation of these theories in an Islamic Context, giving weight and credence to Dr. Abou El Fadl’s article and the theories noted therein. I begin first with the right to privacy, which is meant to highlight the viability of incorporating certain aspects of the United States Constitution into the Islamic Framework – most notably, the right to privacy.
The Right to Privacy
The right to privacy in the United States was debated in many important cases throughout the country’s history, with one of the most famous cases being that of Lawrence v. Texas, argued before the Supreme Court of the United States in 2003. While the Lawrence case was brought up in the context of private sexual relations between consenting adults, more specifically homosexual sodomy which was outlawed in various jurisdictions, the discussions of privacy and the state’s inability to infringe upon it were essential to the further development of the right in American jurisprudence. I will specifically use the example of the hadd (mandatorily punished) crime of zina (extramarital sex) as a basis for showing how Islamic Jurisprudence protects the privacy of peoples under the jurisdiction of a state founded upon Islamic principles. Moreover, I will discuss the protections afforded through a Sura (verse) in the Qur’an called al-Hujraat, which discusses the privacy afforded to a Muslim in the context of their dwellings and interactions with society. I will concluded that Islamic Jurisprudence can afford the same protections as the United States Constitution, further exemplifying the common values shared by both systems.
It must be noted, however, that the protections against unlawful searches and seizures and of privacy in American Jurisprudence, under the Fourth and Ninth Amendments respectively, discusses intrusions by the government and not by private individuals. This is in contrast to Islamic Jurisprudence, where emphasis is placed upon the prohibition against invasions of privacy by private individuals, especially when there is pure suspicion. While there is no mention of intrusions of privacy by the government, the concepts and sources can nonetheless be rationalized to imply that a government too is bound by these principles by the operation of Shari’a law, which derives its core values from the Qur’an.
Islamic Jurisprudence, specifically with regards to prosecutions for the hadd (mandatory) crime of zina (adultery and extra-marital sex), proscribes high evidentiary standards of proof be applied in courts. These requirements, apart from a willful, un-coerced admission of guilt by the accused, require that “four persons who witness two undressed individuals engaging in presumably intimate behavior” be brought forth before the court and testify, with their testimonies being compared to ensure that they do not contradict. The requirements necessitated that these same four witnesses view the same act of zina, right up to and including penetration. This necessarily meant that proof of zina was “virtually impossible to establish through eyewitness testimony unless two individuals were having sex completely uncovered in a public space.” Moreover, failure to meet these strict standards of evidence, the four witnesses and event the prosecutor could be liable for slander, known as qadhf, which is itself a hadd crime. Thus, many scholars have posited that the crime of zina is one of “public indecency rather than private sexual activity.”
By extension, and through the lens of the Quran in Chapter 49 verse 12, known as Al-Hujraat (the private apartments, the inner apartments), there is an implication of a right to privacy within the confines of one’s own home or dwelling. The verse is clear: “…spy not on each other nor speak ill of each other behind their backs,” even if there is suspicion. This carries with it the implication that the privacy of one’s affairs and home must be respected – indeed, subsequent verses “exhort Muslims to respect each other’s dignity and to refrain from derision, defamation, insult, sarcasm, backbiting, and invasions of privacy.” While this seemingly solidifies the concept of privacy within Islamic Jurisprudence against violations by the individual, there still remains the question of whether or not it can be reasoned that the government itself cannot infringe on the same privacy interest. The answer may be found through another source of Islamic Law known as qiyas, or reason by analogy.
Before this reasoning can commence, the concept of government must be defined. Webster’s dictionary defines government as the following:
“[T]he body of persons that constitutes the governing authority of a political unit or organization: as a : the officials comprising the governing body of a political unit and constituting the organization as an active agency b capitalized : the executive branch of the United States federal government c capitalized : a small group of persons holding simultaneously the principal political executive offices of a nation or other political unit and being responsible for the direction and supervision of public affairs: (1) : such a group in a parliamentary system constituted by the cabinet or by the ministry (2) : administration 4b[.]”
This definition does not contradict the purpose of government in Islamic Jurisprudence. Given that government is necessarily comprised of a collection of individuals, legitimized through the concepts of shura, ‘adq and the bay’a, it can be reasoned that as each and every individual has both the right to privacy and the right to not have such an interest violated by others. Following this reasoning, the government, as a collective unit, cannot act in a manner not inconsistent with the fundamental principles of privacy noted above, nor can it deviate from the principles derived from the Qur’an through the hadd punishments and Surat Al-Hujraat. This necessarily means what is applicable to the individual as a right that cannot be violated by other individuals, even if they are organized into a political group for the sake of managing the affairs of a polity. Indeed, given that Sunni Muslim Jurists valued highly a system based on the rule of law, with the implication that none are above the law, it would follow that every member of government, and by extension the government itself, would have to be bound by the laws as well. This would not just be applicable to each and every individual member of the government alone, but to the governing body as a whole through the operation of the law itself through the Qur’an and the Shari’a.
This does not mean, however, that such rights cannot be infringed under any circumstances. As the Fourth Amendment to the United States Constitution stipulates that “persons, houses, papers, and effects” are safeguarded from “unreasonable searches and seizures” if the government fails meets certain conditions, there is nothing in Islamic Jurisprudence that says that a government cannot impose upon itself high standards of proof required to invade the privacy interest of an individual. As Khald Abou El Fadl states in his article, there are some rights that should never be given up, while there are others that may have to yield to state interests such as security. Given that Islamic Jurisprudence historically divided the realms of religious understanding (fiqh) and political necessity (siyasa), it would not be beyond the powers of the government to have standards that must be met with regards to invasions of privacy. Given that the Constitution of the United States can be viewed as a political instrument that codifies certain values held by the American polity, such an instrument can also be created by an Islamic Government for the purposes of securing both bay’a and codifying the ‘aqd of the ruler.
In that regard, the privacy protections afforded by the current system of Government in the United States can theoretically be transplanted into an Islamic System with little, if any, adjustment. Thus, the right to privacy in American and Islamic Jurisprudence stand on common ground. However, there still remains the right to religion and how that relates to citizenship in the Islamic context, which in the American context is protected by the First Amendment to the United States Constitution which guarantees the freedom of religion and the inability for the state to interfere or establish a state religion. This distinction between the freedom of religion as a personal preference, as is viewed in the American model, and the use of religion as a means of attaining citizenship in the Islamic context, must be evaluated in order to reconcile two divergent views on religion and citizenship.
The next sections will go to that discussion, for without the protection and adherence to these fundamental values the transplanting of the American system of governance in the Islamic context would be futile. The next section discusses the Right to Religion and its valued place in Islamic Jurisprudence, and argues that despite the modern misconceptions of the religion’s treatment of other faiths, Islamic Jurisprudence values, if not protects and authorizes the forceful protection of, the right to the free and peaceful worship of any faith. I will extend this principle to mean that within the Islamic framework, classical practices tolerating religious minority groups by attributing to them the jizya, or poll tax, can be adapted to function more like citizenship status for those who, irrespective of their faith, can integrate and attain full citizenship and protection in a Muslim polity. This will first require that I break down misconceptions of apostasy. Given that apostasy has been attributed with punishments of death and banishment from the Muslim community, a result of a possible misinterpretation of riddah (apostasy in addition to hostile acts against the Muslim community), an analysis of the concept, as well as a comparison with treason as codified in the American system is warranted.
The Right to Religion – In Relation to Classical Conceptions of Islamic Citizenship & Private Choice
The modern conception of Islam and its views towards other religions is wrought with misconception and inaccuracies. While undoubtedly a discussion pertaining to Islam’s treatment of other faiths would be helpful, I am of the belief that it would entirely miss the point. In order to understand Islam’s treatment of other faiths, I believe it is essential to first evaluate how Islam looks at Muslims and their religious convictions. By looking inward and analyzing how Islam internally deals with Muslims, specifically with regards to apostasy (converting out of Islam), the religion’s treatment of other faiths and belief systems would become more evident.
The Arabic word for apostasy is riddah, which literally means defection or “backsliding.” Legally speaking, according to Dr. Badawi, it means “denouncing Islam as one’s religion by a Muslim.” Whether or not this is an actual crime has been hotly debated in the Muslim word. For instance, some scholars believe that a solitary hadith stating one must “[k]ill the one who changes his religion” implies that all those who are guilty of apostasy from Islam must be killed. However, many other scholars believe that there are fundamental weaknesses in the transmission of the hadith in question, making it unreliable. However, even if the transmission was reliable, it would be contracted by ample evidence in both other hadith and the Qur’an itself when dealing with the freedom of religion.
The Quran in Surat al-Baqarah states that “there is to be no compulsion in religion,” and that the “right direction has been made clear and distinct from error.” The implication of this surah is quite clear – if there is to be no compulsion, and if the “right direction has been made clear and distinct from error,” one would literally have to choose to follow such a path. The lack of compulsion and the “clear” distinction from “error” necessarily requires that one willingly perceive it. Moreover, the context in which this surah was revealed lends credence to this interpretation. At the time this part of the surah was handed down, companions among the prophet Mohammad asked him “for permission to compel their relatives to profess Islam,” despite having practiced “Christianity or Judaism since their early childhood.” The prophet Mohammad ordered his Companions “not to compel anyone, but to give them the choice to decide what religion they wished to follow.”
While Surat al-Baqarah can effectively be used to allow for the free practice of religion by all groups, there still remains the question of compulsion within the Islamic polity. Given that people are condemned to death for leaving Islam, a sense of hypocrisy is created, which is seen as a “greater danger to the community than apostasy itself,” carrying the potential to “implode the Muslim community from within.” In dealing with this issue, it is important to note that there is “no single verse in the Qur’an that prescribes an earthy punishment for apostasy.” However, the argument presented by many “scholars” who condone the penalty of death for apostasy is best summarized b Dr. Jamal Badawi, who scorned that “[y]es, no one is forced to become a Muslim, but once he or she accepts Islam willingly, it is forbidden to reject it.” This, however, flies in the face of Islam’s focus upon human agency and free will, with a central value of the Qur’an itself being the “freedom of conscious[ness] and rejection of any compulsion in matters of faith.”
Moreover, according to Dr. Mohammad Hasim Kamali’s review and interpretation of Surat al-Baqarah, a broad [prohibition against] compulsion in religion exists, with the foundational principle being that “no one is to be compelled to abandon the religion he [or she] professes nor must anyone be exposed to punishment and torture for the sake of religion.” Historical examples like the Treaty of Hudaybiyah, wherein the Prophet stipulated that if a Muslim were to join the community in Medina at the time and wished to leave Islam and go back to their previous religion, the Prophet was obliged to let the person return to Makkah,” are evidence of such a prohibition.
But if such is the case, then what, exactly, is the issue with apostasy? As Dr. Jamal Badawi posited, there is more than just a renunciation of religion that occurs when apostasy is committed: in the traditional sense, it requires the individual leave Islam and then fight against it. In other words, the true focus of the apostasy provisions in early Islamic History were that pertaining to political crimes, such as treason. In that regard, the concern is not the change of religion but the overt act of treason, a political crime meant to harm the state, and not the religion. Treason, as is known, is a crime under Article III § 3 of the United States Constitution, and is currently punishable by the death penalty.
When understood in the Islamic context, it would be reasonable to attribute “apostasy” with the political crime of “treason.” The importance of this distinction becomes apparent when looking that the nature of how Islam treats Muslims and their conscious choices to adhere to a faith of their choosing: by embracing acceptance irrespective of what faith one belongs to, the freedom of religion can easily be preserved. Since Islam principles itself on forgiveness and the pursuit of justice, it would be contrary to the principles of Islam to impose or harbor state-sanction ill-will against any particular religious group.
Transplanting Fundamentals: Taking the Government Structure of the United States and, Using the Values Noted In Dr. Abou El Fadli’s Article, And Applying Them to an Islamic Polity
Given that Islamic Jurisprudence, as has been shown, has many similarities to the American system of government, there still remains questions of how exactly this can be implemented. After all, the constitution is not the Quran, and the values in the former are “man made,” as opposed to the latter which are divine. Reconciling this fundamental difference, on the surface, may seem difficult – however, when looking at the central values of Islamic Jurisprudence, it would seem that the two conceptualizations of governance may stand on common ground.
Given that Islamic Jurisprudence sought to establish a form of governance that promoted “social cooperation and mutual assistance in the pursuit of justice, the establishment of a consultative and non-autocratic form of [government], and the institutionalization of mercy and compassion in social interactions,” it would not be difficult to rationalize the American style of governance in the Islamic framework. Moreover, it was clear in classical Sunni Islamic Jurisprudence that “[d]espotic, non-consultative, decision-making, even if from a wise and learned person[,] is objectionable and unacceptable,” meaning that dictatorships, monarchies and any system of government which did not derive its legitimacy from ahl al ‘aqd was, per se, illegitimate. In addition, given that there are five “necessary” values in Islamic Jurisprudence that every law created must be intended to protect (religion, life, intellect, lineage and honor, and property), and also given that such laws were analyzed from a broad, “positivistic” perspective, the foundation for rationalization of the American system of governance becomes more evident.
For example, the legislature of the United States is divided into two chambers, with the House of Representatives being the largest body and the senate being the smallest. Their compositions were determined as a result of a compromise between the larger, more populous states that wished to have representation based on population, and the smaller, less populous states that wished to have equal representation. Given that consultative governance is a value in Islamic Jurisprudence, and given further that there were debates regarding the nature of the finality and legal status of any advice given by the process of consultation, it can be reasoned that there can be situations where the consultative process is mandatory, and situations where it can be up to the discretion of the sovereign. In other words, there is no clear answer from scripture – so long as the value of consultative governance is upheld, there would theoretically be no problem with implementing such a bicameral system in the Islamic Framework.
This necessarily, however, brings up the question of the ‘aqd and bay’a. It can be argued that the ‘aqd, or contract to which the sovereign is bound, is the founding document and principles from which the nation receives its legitimacy. In the American system, the Constitution can be said to be such a document. For example, the First Amendment of the United States Constitution guarantees an individual’s right to choose their own religion free from the influence of the state. In the Islamic context, this can be interpreted as a “term” of the contract, becoming legally binding upon the sovereign, a term that they must uphold and abide by during their time in office. This necessarily fulfills the right of religion, one of the five necessary rights in Islamic Jurisprudence. In that regard, the argument can be extended to all aspects of the United States Constitution that forms the very foundation of nation’s government. Of course, this begs the question of what happens in a situation where the application of a certain principle or amendment becomes contested. In that regard, as with all contracts, judicial intervention may be needed, and given that in the American system of governance there is an independent judiciary ready to interpret the constitution in lieu of state action, such potential issues can be clarified and dealt with. As in the American system the judges are appointed by the executive and confirmed by the legislature, in the Islamic system, so long as the parties which appoint the judiciary have the allegiance of the masses they represent, their appointments would be legitimate.
Moreover, in the modern conceptualization of an “Islamic” state based on the American model, the question of who exactly is to be considered ahl al ‘aqd must be answered. Moreover, one must consider who can hold with them the necessary power (shawka) to secure the allegiance of the people to the sovereign (bay’a). Given that the ahl al ‘aqd would have to fulfill certain criterion of decency, “probity, knowledge” and wisdom in their communities, it can be argued that such criterion are socially mandated based upon the values and beliefs of the society. If the laws in an Islamic society must be created to fulfill the five “necessities,” then the creation of the legislature and the requirements of who exactly is to serve in the legislature must also serve a purpose. It can be argued, plausibly in my opinion, that if the Constitution is representative of the underlying values of the polity (irrespective of where these values come from, be it religion or otherwise), then the requirements set therein for who is eligible to serve on these representative bodies would be legitimate. For example, by allowing the general population to vote for a representative of this shura council, it can be argued that it would be protecting all the rights as the government’s main responsibility is to abide by the necessary rights of the polity.
In addition, given that Islamic Jurisprudence separated what is religious in nature and political in nature, it can be argued that given the changes in modern society, specifically with the advent of mass media and the free flow of information between societies, the arguments presented by classical jurists like Abu Bakr al-Asam (d. 816), who postulated that the community at large should have such power, certainly carry more weight today than they did during the time in which they were presented. Popular uprisings and demands from a more educated society, like in the case of Iran, are proof of the innovations in technologies and mentalities that would allow for a more enlightened view of the world and the internal politics of society. And even if the approach noted by James Madison in Federalist Paper No. 10 is followed, the people would nonetheless have such a power through the election of the legislature, who will act in a manner not inconsistent with the values of society so long as the polity as a whole is willing to hold them to account. In that regard, and given that one of the foundations in Islamic Jurisprudence is the right to intellect, popular sovereignty would be more applicable to a greater extent. Moreover, as humanity acts collectively as “vicegerents of God, [and] inheritors of the earth,” it would seem more appropriate for humanity, or the communities which manage certain areas of the earth (alluding the modern concept of the “nation-state”) to be the sovereign in determining who their leader is to be, or at the very least, who will have the power to hold the leader accountable to the values that they share.
In that regard, popular elections for the head of state, like that which occur in the American system, would be legitimate as the general population would give their consent to the sovereign, binding them to the contract (constitution) in the rule. Such would be a legitimate exercise in the quest for allegiance from the masses towards the sovereign – and this principle can apply throughout the various branches of government, from the legislature to the executive themselves. Furthermore, if there was an instance that the ‘aqd (contract/constitution) necessitated that certain “terms” be changed through the amendment process, such changes would be legitimate if the legislature was also elected, in effect giving them the consent of the governed to act on their behalf. In that regard, the contract, if times necessitate it be changed, can be adjusted to meet the changing times. In some instances, if societal pressure is little to none, the contract would be the same for all sovereign’s – but irrespective of the content of the contract, the fact that it would be possible to adjust it if the circumstances required it would grant legitimacy to the entire process. While “the dead hand” problem noted by Professors Siegal and Katzenbach may be present, such issues are for society, through the legislative process, to handle per the necessities of the circumstances.
In essence, the principle values of Islam are based in human free will and accountability, and the acknowledgement of the diversity of not just Muslims, but of humanity as a whole. The Qur’an itself mentions that God “created [humanity] from male and female and made [humanity into] peoples and tribes that [they] may know one another.” While interpretations of this Surah will inevitably vary, its acknowledgement of human diversity is clear on the surface. Whatever perspective one wishes to place upon the interpretation, one thing remains clear: whenever you have different groups and circumstances, you will have different perspectives, ideas, and approaches to the same situation. In that regard, all the challenges that various societies and polities face will have a specific and workable approach to solving its dilemmas – but always, there will be the question of how best to ensure that all perspectives and approaches are heard, understood, and discussed by people. Perhaps that is where democracy, federalism, and representative government come into play, and provide us with the opportunity to both progress and give meaningful homage to the rich history that the Muslim faith calls its own.
The beauty of Islam is its acknowledgement of human agency, and the necessitation of human determination of their own affairs. Given that the rich history of Sunni Islamic Jurisprudence would allow for innovations and flexibility in government, it would be difficult to state that such a system would not be compatible with the American system of governance. While it may have to be rationalized to ensure its compliance with norms in Islamic Jurisprudence and thought, the entire process of doing so is part of the purpose of Islam. While the meaning of Islam varies from Muslim to Muslim, very few can disagree with the belief that Islam was sent to humanity in order to bring about the very best in their experience on earth. If one were to believe that all is as God wills it, and that change is a constant in life, then it would be improper to say that the “Islamic system of government” would be rigid, inflexible, and based upon out-dated notions of theocratic despotism that must always be applied even in societies where Muslims, while the majority, do not necessarily constitute the entire picture of the polity. Whatever one’s notion of justice may be, it can be agreed, and Islam clearly states, that compulsion to abide by a set of religious values would be improper, and contrary to the spirit of human agency and free will. The beauty of Islamic Jurisprudence is not just in its theories, but in the process of looking critically not only at one’s self, but at the society in which one resides, and asking questions about what is truly the most beneficial, and just, method of managing the affairs of humanity.
While there are many forms of government and theories of political organization in this world, I firmly believe that the American system would be one of the most efficient models of governance to implement in the Islamic framework, so long as the people choose to implement it, and so long as the society in which it is applies truly believes in the underlying values that the two views on governance undoubtedly share.