The Great Theft: Wrestling Islam From the Extremists (24 page)

The classical scholars did not define what exactly qualifies as a necessity, need, or luxury. However, in principle, they sought to differentiate between things that must be guaranteed to people because they are essential for a healthy, respectable, and dignified life, and things that are less important or essen- tial. The classical scholars contended that it falls upon each generation of Muslims to explore and define
in accordance with the shifting demands of the circumstances and changing times
what ought to be defined as the necessities, needs, and luxuries. Therefore, it was considered unwise to set out a spe- cific list of inflexible necessities, needs, and luxuries that are constant and unchanging.

According to the classical theory, an equitable and just soci- ety would treat the necessities as sacrosanct and not subject to

compromise. A society that could protect the needs of people in addition to the necessities would be considered even more just and equitable. Finally, a society that could provide people with the luxuries of life, in addition to protecting the necessi- ties and needs, would be the most just and equitable of all.

In the classical sources, there were exhaustive debates about what ought to be required to best protect the five protected in- terests—life, intellect, lineage, reputation, and property. Un- fortunately, all of these classical debates have been forgotten in the modern age. In fact, a large number of governments in Mus- lim countries today neglect both the necessities and the needs of the people they govern. For example, there are countless arbi- trary executions at the hands of the Saudi government, which is a clear violation of the first human interest—namely, the inter- est of life. Furthermore, the very widespread use of arbitrary de- tention and torture in Muslim countries arguably constitutes violations against life and mind and perhaps reputation.

Moderates wish to build upon this valuable tradition that tried to figure out what is necessary for human beings to thrive, and that also tried to explore what might not be a ne- cessity for existence but would still be considered important enough to count as a need or a luxury. Moderates argue that, at a minimum, these classical debates over necessities and needs ought to be translated in the modern age to rights that can safeguard the interests of individuals. The values that emerge from the classical tradition, such as dignity, liberty, the five protected interests, and the discourse against subjugation and oppression, can be translated into a coherent set of human rights for the modern age that emerge as natural ex- tensions of the Islamic heritage. These rights would bolster the principle of democracy in Islam.

Moderates believe that there are several other concepts and practices in the Islamic heritage that support the principle of

democracy. The Qur’an clearly commands Muslims to con- duct all their affairs through consultation (
shura
). Moderates read this as a Divine command that reemphasizes the unde- sirability of oppression and authoritarianism. The decision- making process must not be usurped by a despotic individual or a despotic elite. Rather, Muslims must find a way to make decisions as the outcome of a democratic interaction among the many.

In addition to the principle of consultation, when the Prophet first entered the city of Medina, he drafted a constitu- tion that clearly set out the obligations, duties, and rights of each tribal group (as well as the non-Muslims of Medina).

The Prophet Muhammad grew up and began preaching his message in the city of Mecca (in today’s Saudi Arabia). The Prohpet preached his message for about ten years in Mecca, but he suffered increasing persecution from the nobility and elite of the city, who refused to accept his message. Finally, the Prophet decided to migrate to a city that was willing to embrace him, his message, and his followers. This city was Medina, but at that time Medina was divided into several Arab and Jewish tribes. In addition, there were those in Me- dina who converted to Islam and joined the Prophet’s reli- gious community, and there were those who remained polytheists, and did not convert to Islam. After negotiating with the elders of the city, the Prophet Muhammad led a mi- gration of the Muslim community from Mecca to Medina (a migration known as the
hijra
), and the Prophet was chosen as the ruler of that city. Shortly after the Prophet became the ruler of Medina, he carefully worked with the elders of the city on drafting what became known as the Constitution of Medina. This historical precedent supports the idea that the legitimate political system in Islam must be a constitutional government.

Another precedent that moderates frequently cite and rely upon is the establishment in early Islamic history of a repre- sentative body known as the People Who Loosen and Bind (
ahl al-hal wa al-aqd
). Before he died, the second caliph ‘Umar appointed a body of the most notable elders representing the various communities in the Islamic state and charged them with temporarily governing the state after his death and also with selecting the third caliph who would rule the Muslim state. The reason they were called the People Who Loosen and Bind was to signify that as representatives of the community, they had the power to bind and unbind the community with their decisions. In later stages of Islamic history, this body gained a largely consultative function. When it existed, this body rendered advice to various caliphs but no longer pos- sessed the power to decide matters.

Finally, many moderates also rely on the concept of consen- sus (
‘ijma’
), or the general agreement of a group of people that a particular issue is wrong or right. The classical scholars uti- lized consensus in the jurisprudential context, and they often disagreed about the requisites and conditions for a valid con- sensus. The classical scholars debated a wide variety of mat- ters, including, for the purposes of assessing the existence of a valid consensus, whether only the opinions of jurists should count or whether the views of laypeople should be considered. Some argued that only proof of consensus of the Companions of the Prophet could decisively settle any contentious theolog- ical or legal dispute. The classical scholars also debated the ap- propriate subject matter for consensus. For instance, they disagreed on whether the concept of consensus ought to be utilized to resolve theological disputes alone or whether it should be used to resolve legal disputes as well. Furthermore, the classical scholars debated the appropriate effect of consen- sus, asking: Should any purported consensus forever close a

matter for debate? What happens if a consensus exists at one time but eventually breaks down and disappears? One of the most hotly debated issues was: Assuming that a consensus in fact exists, is it sinful or in any way wrongful to break ranks and disagree with the purported consensus? Many classical ju- rists were skeptical that consensus could ever be achieved, or that even if it were achieved, its existence could be verified.

Moderate Muslims have tried to reinterpret the concept of consensus to support the idea of democracy that is governed by the will of the majority. Moderates contend that for the purposes of governing a country, the will of the people repre- sents the will of the political sovereign, and this will is binding and obligatory. Moderates argue that
‘ijma’
should not mean consensus or unanimity, but that it should mean the existence of a simple majority. In addition, they assert that the views or vote of any citizen, Muslim or not, should count for the pur- poses of ascertaining the will of the majority, and thus, the will of the people. However, most moderates argue that in order to avoid the tyranny of the majority—or the oppression of the minority by the majority—it is imperative to have a constitutional system that guarantees the basic rights of all in- dividuals. Therefore, the will of the majority is honored, but within certain constitutional parameters; if the will of the ma- jority trumps these constitutional boundaries, it will not be honored. In other words, the will of the majority will be de- clared unconstitutional. Some moderates argue that the consti- tutional parameters should not be limited to individual rights, but should include ethical and moral Islamic principles as well. Consequently, if the majority desires a law that runs afoul of Islamic ethical and moral principles, the law would be voided as unconstitutional.

Typically, when speaking about democracy, one of the most central, if not
the
most central, questions is the issue of

sovereignty. Who is the sovereign in a democracy? This is con- nected to the question of who is the possessor of the ultimate and final authority? Moderates have given various responses to this question, but they all seem to have the same effect.

Some moderates have argued that final authority rests with God, and so God is the sovereign. However, God has dele- gated total authority to human beings to conduct their affairs according to their free will. God retains the right to reward or punish whomever God wishes in the Hereafter. Others have argued that people are sovereign as far as human law is con- cerned. God is sovereign as far as the eternal law is concerned. Since the duty of human beings is to manage human law, and not eternal law, human beings are free to legislate as long as the legislation attempts to achieve Godliness on earth (that is, attempts to fulfill the eternal law). If the legislation fails the test of trying to achieve Godliness on earth, such a law must be declared unconstitutional. Another view offered by moder- ates is that the people are sovereign because the affairs of God are left to God, and the affairs of the state are left to the people. This last approach comes the closest to being an out- right secular position.

Another topic that has been the subject of considerable de- bate among moderates has been the expected role of Shari’a law or religious law in a Muslim democracy. This issue has proven to be particularly challenging, and therefore there is a considerable range of views. I have categorized the views on this issue into four main positions:

Some moderates have argued that most of the laws should be in the hands of the people, except for a core group of laws known as the
hudud.
The
hudud
are a particular set of laws that were explicitly set out in the Qur’an. They include, for in- stance, the punishment for fornication and theft. Although the
hudud
laws include harsh criminal penalties, they are miti-

gated by the fact that the evidentiary requirements for the en- forcement of these penalties are very technical and demanding. This makes the application of the penalties difficult and even rare. For instance, in order to prove a case of fornication, which is punished by one hundred lashes, four witnesses must be able to testify that they saw the penis fully inserted in the vagina. This is already a demanding evidentiary standard, but what makes it even more demanding is that if some of the four wit- nesses testify they saw the full insertion while one or more witnesses testify they did not see the full insertion those who claimed to have seen the full act (the former group) are pun- ished for slander. Thus, if anyone comes forward with an alle- gation that is not substantiated by others, he/she does so at his/her own risk. Naturally, this acts as a deterrent against making unsubstantiated accusations of sexual misconduct. In any case, according to this approach, people are free to get rid of the
hudud
laws by voting for a non-Islamic government but an Islamic government, if elected, must apply the
hudud
laws. Some moderate thinkers have rejected this position and ar- gued that a Muslim democracy should not attempt to apply any part of the Shari’a law, and that the only relevant law is the law of the legislature. In this approach, the Shari’a serves as a moral and ethical guide, but the citizenry should be the sole source of legislation. A third group of moderate thinkers have argued that in a Muslim democracy, the legislature should pass whatever law it deems appropriate, but that there should be a supreme court that strikes down any law inconsis- tent with the Qur’an. The final view holds that the law be- longs to the people, and so legislatures must be free to pass whatever laws they deem appropriate. However, the law must meet certain basic moral standards that are inspired from the Shari’a. Immoral laws, even if willed by a legislature, should

be declared unconstitutional and void.

What unites these various approaches is that they all reject theocratic forms of government, and to various extents, they reject a model in which the state exists to enforce a Divine code of laws that is beyond human accountability or change. It is not that moderate Muslims believe that Divine guidance is not necessary or helpful for human beings. They do. But they believe that God speaks to the
hearts
of people, not to their
in- stitutions
. Once institutions pretend to represent God, they of- fend God and abuse human beings. Divinity is too awesome and immutable to be represented by human institutions or a single individual.

In addition, moderate Muslims argue that the jurists who study and search the Divine law should continue to play their historical role as advisers and teachers of the people. In Is- lamic history, jurists never assumed power directly but were always a part of civic society. Their real power base was not the position given to them by the state, but their popularity and ability to appeal to the hearts and minds of the people through reason and knowledge, and a solid grounding in ju- risprudence. In a Muslim country, jurists may be able to con- vince the majority of the citizens to pass one law or another. But when a law is passed by the legislature, it is a human law and not a Divine law. It is passed as law because the represen- tatives of the people believe the law to be good, desirable, and in the best interests of their constituency. Those representa- tives are also free to change the law if that is the will of their constituency. Importantly, moderates believe that Godliness cannot be achieved by a state commanding it to be so. Thus, when the state plays the role of an enforcer for God, the state ends up replacing God altogether, and in this is an absolute absence of Godliness.