Islamic Law and Its Democratic Potential

Interview With David Forte, a Vatican Consultor and Bush Adviser

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CLEVELAND, Ohio, MARCH 9, 2005 ( A pressing question on the international scene is whether Islamic societies can embrace democratic governance and political self-determination after centuries of autocratic rule.

The elections in Iraq and Afghanistan, as well as the popular movements in Iran and Lebanon, have made this question increasingly relevant.

David Forte, a consultor to the Pontifical Council for the Family and an adviser to President George Bush on Islamic affairs, shared with ZENIT why he believes there are facets of Islamic law that are hospitable to the development of free societies.

Forte is a law professor at Cleveland-Marshall College of Law at Cleveland State University and author of “Studies in Islamic Law: Classical and Contemporary Application” (Austin & Winfield).

Q: What is Islamic law? What are its sources?

Forte: Taken as a whole, Islamic law comprehends the entire spectrum of authoritative rules that guide various Islamic communities. That law includes not only the classical Shariah, the holy law of Islam, but state enactments, advisory opinions — or “fatwas” — custom and tribal norms.

More particularly, however, Islamic law is usually taken to refer to the content and the methods of the Shariah, the developed code of laws that arose in different parts of the Islamic empire.

There are variations in the particularities of the Shariah, both between and within the two main divisions of Islam — Sunni and Shiite — but there are far more similarities than differences. Within Sunni Islam, there are four surviving traditions, or schools, of law: Hanafi, Maliki, Shafi’i and Hanbali.

There is great dispute among both Western and Islamic scholars over how the Shariah actually developed.

After the legal tradition matured and bested most of its competitors within Islam to be one of the dominant voices of the religion, their writers told the story of the development of the Shariah in a version that virtually no scholar believes is true, either in general or in many of its details, although many fundamentalist Muslims still adhere to this classical version of the development of the Shariah.

According to the classical view, the fundamental sources of the Shariah are divine in origin. The law provides the vehicle for transmitting the message heard by Mohammed to present-day believers in their daily lives. The Shariah comprehends all rules textually derived or analytically deduced from divine legislation that regulates the Muslim and his community.

Of the four main sources of the Shariah — the Koran; the Sunna, the practice of the Prophet; “ijma,” consensus of the community; and “qiyas,” analogical deduction — the Koran and the Sunna provide the fundamental basis for the commands of the Shariah.

The Koran and the Sunna are the twin cornerstones upon which the whole edifice of the Shariah is constructed. Together, “qiyas” and “ijma” produce the bulk of the actual positive rules of law, but both techniques may only be based on the commands of the Koran or the Sunna and cannot produce regulations in contradiction to those two sources.

Nonetheless, even within the classical tradition of Islam, the provisions of the Koran can be interpreted in divergent ways, and the particular traditions ascribed to Mohammed’s actions are validated by human science, not by divine command. Thousands of purported traditions were in fact rejected by early Muslim scholars as invalid.

Some legal scholars think that the remaining traditions were validated by the method of “ijma,” consensus, but there is great dispute among Muslim scholars as to what properly constitutes a consensus. Thus, if modern methods of investigation show that some of the ascribed traditions are forgeries or apocryphal, then a Muslim might be justified in not ascribing authority to them.

Most recent scholarship has contested the classical version of the development of Islamic law, but there is wide and vigorous debate among scholars as to what actually happened.

Many scholars believe that the law did not develop as neatly as the classical version avers, but instead in a much more complex and nuanced way, absorbing into its corpus rules and principles drawn from pre-Islamic Arabia, the legal traditions of the Byzantine and Sassanid empires, and the political and financial decrees of the various caliphs.

Nonetheless, it is fair to characterize the debate among Islam law scholars as intense, and in which most of the alternative theories are themselves hotly disputed.

Q: What elements in Islamic law are particularly compatible with democratic government? What elements are hostile?

Forte: Let me answer the question more broadly and speak to what elements in the Islamic tradition are or are not compatible with democratic government.

The “umma,” or people of the faith, is a fundamental principle within Islam. All believers are equal, and thus legal or political discriminations among them are improper.

The “shura,” or consultation, refers to the covenant made between the caliph and the elders of the Muslim community in which there is a confirmatory “election” of the caliph who agrees to rule for the benefit of the community.

Free enterprise has always been a hallmark of Islamic law and Muslim economies.

Contrary to the opinion of some Muslim fundamentalists, the state in Islam has always had a legitimate independence from the Shariah. The state could constitutionally remove the religious judges, the “qadis,” from certain jurisdictions, such as criminal jurisdiction, and substitute state courts instead. A mixed regime of religious law and state law has always been the norm in Islam.

There is also the tradition of the independence of states. Islam has never been truly unified politically. In fact, it was the most divided politically during its greatest era, from about 800 to 1000 AD. Pluralism and a multiplicity of political regimes not only is present in the history of Islam, it seems the key ingredient to Islam’s flourishing.

The rigorous application of Islamic law will stand in the way of a full democracy, however, if it becomes the strict legal norm of the state. Under classical Islamic law, the inequality of women, non-Muslims, and slaves is accepted.

There is also a great deal of tribal values in the Middle East, and tribalism, linked to religion, is a difficult force to contend with. Further, the economic structure has to be made more honest, market-oriented and transparent.

There is also a tradition of intolerance that decades of propaganda has instilled. Finally, there is the memory of the Ottoman Empire, in which Islam was territorial and strong. Many Muslims see that as the identity of Islam over its spiritual content.

Q: Some scholars argue that democracy requires a particular cultural framework to survive and thrive that respects both freedom and the rule of law. Does Islamic law help foster this necessary foundation?

Forte: Islamic law was very advanced for its era in the area of partnership law, property law, inheritance and, to some extent, procedure, but unless it is reformed, the old structures of Islamic law will be a barrier to the full emergence of democracy.

Q: Some natural-law thinkers have made the point that freedom is a desire that is shared by all persons, irrespective of culture. How would you respond to that claim in regard to Muslim societies in particular?

Forte: It is likely true. The vast majority of Muslims today live in free or partly free countries. The experience of the Iraqi election seems to have shown how fundamental it is to the human person to be in charge of his individual destiny.

Q: How does Islamic law understand the concept of sovereignty? In particular, in democracies the people are sovereign. How can Islam navigate this tension when it declares that Allah is sovereign over all? Woul
dn’t the notion of a sovereign people or state offend Muslim sensibilities?

Forte: Not to the historical Muslim. But the fundamentalist Muslim may wish Islamic law to be superior over the state.

The real danger is from the radicals who have married a politicized Islam to the modern idea of the sovereign state to create a totalitarian version of Islam at odds with Islamic tradition — even in authoritarian states — and with Islamic spirituality.

Q: Does democracy require secularism? If not, how will the rights of minorities and minority religious groups be protected in Islamic democracies?

Forte: Democracy requires a primarily secular state, even if it is formally aligned with a religion. Democracy, however, does not require secularism, which is itself a form of ideology. Democracy may be more brittle in a secularist state, as opposed to a secular state.

Above all, democracy needs to be seen to be in harmony with underlying religious values. Protestant Christianity allied with the American Revolution; Shintoism, through the emperor, was allied with Japanese democracy; and Catholic Christianity was the force behind Western European democracy after World War II. That is why the United States very much needs — and thus far has been obtaining the support — of al-Sistani, the spiritual leader of the Shiites in Iraq.

Q: Is democracy the form of government that Muslim nations should pursue, or is it a republican form of government? Is there a real difference?

Forte: While we have been speaking of “democracy,” a “republican” form of government is the better alternative, for it allows for representation by region and group and is thus a better hedge against the totalitarian designs of the radicals.

Q: Can democracy be imported to Muslim societies, or must it grow from within?

Forte: Democracy can only be offered. To “impose” democracy is a contradiction in terms.

Q: What does the experience of non-Middle Eastern Muslim nations such as Malaysia and Indonesia tell us about the relationship between Islamic law and democracy?

Forte: It tells us that an Islam unwedded to the structures of the Shariah and more attuned to the spiritual strain of Islam — specifically Sufism — is a more hospitable milieu for the development of democracy.

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