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Shura and Democracy

Osman Fathi

Commentary

Egyptian-born scholar and a graduate of Cairo and of Al-Azhar University, he received a doctorate from Princeton University and taught in the Muslim world as well as in the United States. For many years, Fathi Osman was editor of Arabia magazine as well as Vice President of the American Association of Muslim Social Scientists. His publications include Islamic Legal Thinking Between the Permanent Divine Sources and the Changing Juristic Contributions, Islamic Thought and Human Change, The Muslim World: Issues and Challenges, Jihad: A Legitimate Struggle for Human Rights, and The Children of Adam.

Though the meaning of shura (consultation) is highly contested, here Fathi Osman simply asserts that it is “a serious and effective participation in making a decision.” He believes that the Prophet laid the groundwork for it when he asked the advice of his Companions regarding tactics in various battles against the Meccans in the period between 624 and 630 A.D. Muslims can materialize the principle of shura in their community through the modern mechanism of elections. In Osman’s opinion the early Muslims followed “majority opinion” in the matter of the selection of the original caliphs, who each received the oath of allegiance (bay‘ah) from leaders of the community: this act was a manifestation of consultation. Osman in turn finds Islamic, mainly Qurānic, justifications for such things as multiparty tendencies—as against the Islamists’ rejection of multiplicity of parties on the grounds that it conflicts with Islam’s requirement for unity to protect against sedition—legislation to clarify broad principles in the Qurān and Sunnah (traditions of the Prophet), and public oversight.

Shura means a serious and effective participation in making a decision, and the practices of the Prophet proved that it cannot be merely a formal or ceremonial exercise. The Muslim people and those “who are entrusted with authority from among them by them” (Quran 4:59) are bound by the goals and general principles of the Islamic law that secure human dignity and that sustain and develop all human beings: their life, families and children, minds, freedom of faith, and their private or public possessions. Those who are entrusted with authority by the people are always referred to in the Quran in the plural, which suggests that they form organizational bodies and are not considered as individuals (Quran 4:59, 83).

Differences may naturally emerge within these bodies which are entrusted with authority, or between them and the people or groups among them. The parties at variance are referred to the guidance of God and the Conveyor of His message which may be presented and decided in the most appropriate way, whenever this becomes necessary, by a supreme court.

Democratic mechanisms can provide the practical ways for implementing shura. Islam urges Muslims to adopt all human wisdom, as the Prophet's tradition reported by Tirmidhi indicates. Among the funda-mentals of jurisprudence is a valuable rule that states: “Whenever there is a certain means that can lead only to the fulfillment of an obligation, the practice of such a means becomes an obligation in itself.” The outstanding jurist Ibn al-Qayyim has stated that the ways of reaching a given goal are not necessarily limited to what the Quran and Sunna may indicate, and “whenever justice comes forth by any way, there is God's law and command and good acceptance.”1

Election

The head of a contemporary Muslim state can be elected directly by the people or by the parliamentary representatives of the people, or can be nomi-nated by those representatives as a candidate for or against whom the public then votes. Any procedure can be followed, depending on its merits and the given circumstances, and Islam can accept any that is in the interests of the people. The first four caliphs were chosen in different ways, but in the end they went to the public in the mosque to obtain their approval in the form of bay‘a. Bay‘a is a mutual pledge from the ruler to follow Shari’a and earn the public's approval and support through his services, and from the people to support the ruler and advise him.2 Abu Ya‘la Muhammad ibn al-Husayn al-Mutamad, text published in Ibish, 1966, p. 224. In a contemporary democratic procedure, the voting of the electorate and the oath made by the elected head of state take the place of the original bay‘a.

When several candidates contest a position, the public choice is determined by the majority of votes, another democratic mechanism. Even when one candidate for the position is nominated by the parliament or decides to be a candidate, a majority of voters may be required to elect the candidate.

The Quran frequently states most people lack knowledge or moral commitment and may fail to make the right decision (e.g., Quran 5:49, 6:116, 7:187, 10:60, 92, 11:17, 12:40, 68, 103, 13:1, 16:38, 17:89, 25:50, 30:6, 8, 30, 34:28, 36, 37:71, 40:57, 59, 61, 45:26). But, the Quran never teaches that a reliance on a few persons necessarily yields perfect decisions. A majority can make mistakes, but their mistakes are most likely fewer than the mistakes of one or a few. Making mistakes is human; all that is required from human beings is that they make a serious effort to find out what is right and use accumulated knowledge and experience to avoid error where possible. Cooperation in reaching these objectives saves time and energy, and it provides a reasonable chance for mutual correction and for a sen-sible revision of any decision that proves wrong when in practice. Many precedents can be found in the life of the Prophet and the early caliphs about decisions made according to the majority, even when they differed from the leader's view. When Caliph ‘Umar selected six candidates for the caliphate to succeed him after he was stabbed, he instructed them to follow the candidate from among themselves who would receive the majority of votes. A Prophet's tradition urges the individual to yield to greatest number (al-sawad al-a‘zam) when there is a serious split (reported by Ibn Hanbal and Ibn Majah).

One may ask: “Isn’t following the Quran and Sunna sufficient and the safest way?” To which one can easily answer, the Quran and Sunna provide the general laws, but the human mind is entrusted with the details and specifics for coping with the unceasing changes in human society. Human beings know what may be beneficial and fair for a given time and place, and the more people involved in such collective thinking and discretion, the fewer the mistakes made. Terms of reference and guidelines, in addition to procedural and ethical safeguards, reduce human error.

The election of the representatives of a people to a parliamentary body is also based on winning a majority of voters. If the principles of “one person one vote” fails to achieve a fair representation for an ethnic or religious minority or of women, each group can be allotted a certain number of seats in the parliament proportional to their numbers, which may be contested in broader constituencies or in the country as a whole. The parliament is responsible for legislation, as well as for guarding the interests of the execu-tive body. Decisions of the parliament and its committees are made by the majority of the voting members. A public referendum on matters of special importance may be decided by the legislature or by a given number of voters through an established procedure. Decisions of the executive body or any of its departments or branches are also determined by a majority of voting members.

Voting can be the means for choosing the governing boards for workers’ unions, professional and student associations, philanthropic and other organizations, as well as for making decisions on their boards. There is no better way of learning the public's views and interests than through a vote, in spite of its limitations or abuses. The same is true even of technical decisions among professionals, in schools, factories, companies, or other bodies, and even of reaching decisions in a court of several judges or judge and jury.

The argument that voting means giving the same value to the judgment of the most knowledgeable person and that of the most ignorant one can be answered by saying that the common interest of the people can be determined by any individual of ordinary civic abilities and experience. Campaigns for candidates and laws and the mass media provide valuable information for a serious voter. The judgment of an older experienced person who is uneducated may be more reasonable than of a young university graduate.

As women are equal to men in their social rights and responsibilities according to the Quran (9:71), and a woman can, according to prominent jurists, be a judge, she is naturally eligible to vote. The Quranic verse that makes a male witness equal to two female witnesses for documenting a credit contract is restricted to the special case where a woman might not be familiar with such a transaction and its legal requirements “so that if one of them should make a mistake, the other could remind her” (2:282). It is obvious from the Quranic text, from the historical context, and from the jurisprudential principle that “legal rule follows its reason: if the reason continues to exist, the legal rule continues to exist; and if the reason ceases to exist, the legal rule follows,” that the verse is not meant to apply to an educated business woman, nor to areas of common interest which do not require specific expertise of knowledge.

Non-Muslims enjoy equal human rights and dignity and are eligible for voting the same as Muslims as soon as they reach the required age and if they have no mental disability. A Muslim majority should have no misgivings about a non-Muslim voting, since votes are taken regarding matters related to common sense, not to a particular faith. In addition, voting would be proportional to the minority population and cannot hurt majority interests or beliefs. The right to vote should be equally shared by all ethnicities, whether Muslims or not.

Elections require several candidates to choose from, whether such a choice is for the parliament or for a board of a union, association or other organization. Some Muslims argue against such a procedure citing a Prophet's tradition that disqualifies anyone who asks for a public position (as reported by Ibn Hanbal, al-Bukhari, Muslim, Abu Dawud, and al-Nasa‘i). According to commentators and jurists, this can be interpreted as a warning against asking for a public position for personal benefit, without considering the responsibilities of the office or the ability of the seeker. Only someone fully aware of what the position entails and having the abilities to fulfill those tasks can seek office by indicating his or her credentials for it, as was done by the Prophets Yusuf (Joseph) and Sulayman (Solomon (12:55, 38:35). Caliph Umar nominated six candidates, from which one had to be chosen by the majority as a candidate for the caliphate. It goes without saying, that presenting the candidate's merits and qualifications for the position and criticizing others should follow legal and ethical principles. The requirements for a candidate and what may bar have to be decided in the light of social ideals and circumstances.

Women can be members of parliament, ministers in the government, judges, and military and police officers, according to their merits and credentials, since they share with men the right and responsibility to do what is right and avoid doing what is wrong (9:71). The Quran mentions the Queen of Sheba (27:28–44), with no indication of Quranic disapproval of a female head of state. On the contrary, the Quran describes her strong personality and capable leadership. She did not ignore the leading persons in her country when making important decisions, and they respected her wisdom and leadership. The tradition that says the Prophet expected a Persian failure because they had a queen (reported by Ibn Hanbal, al-Bukhari, al-Tirmidhi, al-Nasa‘i) was informative not legislative, and should not be taken out of context. However, nothing in the tradition indicates that it represented a law of God that must be observed by Muslims; it could simply have been a personal view. The Prophet expressed an opinion that was not meant to be binding as a part of God's teachings.

Non-Muslims have the right and the duty to occupy positions in the legislature, the government, and administration, the judiciary, and the military forces. A modern state is ruled by institutions not by individuals, and non-Muslims naturally work within these bodies. The non-Muslim is equal to a Muslim as a witness (5:106), and can be a minister with executive power (wazir tanfidh), according to al-Mawardi, but not a plenipotentiary minister (wazir tafwid) with absolute power. There were non-Muslim ministers and top officials in medieval Muslim states such as Egypt and Andalusia. No single person, even the head of the state, should have absolute power in a modern state; the non-Muslim judge has to apply the same state code of laws, whatever his or her beliefs may be. A non-Muslim can also be included with Muslim judges in a multi-judge court. Areas that are related or close to the faith such as family matters, inherit-ance, and charity endowments (awqaf) can be assigned to a judge of the litigant's own faith.

The Multi-Party System: The Opposition

Political parties are essential for democracy, as they help people establish their views about persons and policies. The individual can find himself or herself helpless to oppose those who enjoy governmental authority, es-pecially in a modern state where advanced technology provides a formidable tool for suppressing opponents and influencing public opinion. The multi-party system has proved to be the most if not the only democratic formula, since the one-party system has never produced any real or effective opposition, and such opposition has rarely been able to grow outside the party system through individuals contacting masses directly.

The Quran urges that groups be found to enjoin the doing of what is right and to forbid the doing of what is wrong (3:104). The word umma in the Quran does not always mean the whole universal body of believers, as is often assumed, but it can merely mean a group of people (e.g., 3:113, 5:66, 6:108, 7:38, 159, 164, 28:23), especially when the word is connected with the preposition “from,” as in the above-mentioned verse 3:104: “And let there be from among you a group (umma) that calls to good and enjoins the doing of what is right.” The Arabic word “umma” can be used for groups of different sizes, and it is sometimes used in the Quran for the whole Muslim community (e.g., 3:110, 2:113, 21:92, 23:52), but it is also used for limited groups (e.g., 5:66, 7:159, 164, 28:23), or even for one leading person who has his followers (16:120).

This does not deny the fundamental unity of the people, since political differences are human and inevitable and should not affect public unity if they are properly handled in an objective and ethical way. As politics often represents an area of human discretion (ijtihad), the Quran assumes that Muslims may face differences and even disputes (4:59), and they are guided to settle them conceptually and morally according to their terms of the Quran and Sunna. Various legitimate human approaches to interpret the divine texts may naturally emerge.

The early Muslims had their conceptual differences from time to time, beginning with the argument about who should become leader after the Prophet's death. Their political differences were represented in certain groups which openly expressed their views in a public meeting at “al-Saqifa,” a spacious area that had a sort of roof (saqf in Arabic) among the homes of the clan Banu Sa’ida in Medina which was apparently allocated for tribal gatherings. Later, Muslims have had their several theological groups (e.g., the Ahl al-Sunna, al-Shi‘a, al-Khawarij) with different political ideas and juristic schools. These differences should not in any way damage public unity.

Accordingly, Muslims can form several Islamic political parties, all of them committed to Islam, but with different concepts or different ways in carrying out their legitimate political activities, or they may have different programs of reform when they rule. Although establishing parties on ethnic grounds or out of personal or family considerations ought not be encouraged from the Islamic point of view, it may be acceptable in given circumstances, however, as a fact of life.

Non-Muslims and secularists, whether they are Muslims or not, can also have their own political parties to present their views, defend their interests, and guard the human rights and dignity of all the children of Adam, as the Quran teaches. The Quran indicates that all the People of the Book are responsible for enjoining the doing of what is right and forbidding the doing of what is wrong (3:114, 5:78–79).

Women can join any party or form their own. Political fronts and alliances may involve Islamic parties and others in certain circumstances or for certain issues, and various parties can join in coalitions to form a government. Diversity in political thinking and practice, against a background of unity, is a fundamental organizational requirement to achieve pluralism. An unreasonable number of parties can reduce the efficiency and effectiveness of governance, however, and create difficulties in gaining a majority in the parliament, in forming a coalition to secure such a majority, when no single party can secure it, and in presenting a strong opposition. This is a challenge for the multi-party system which some democracies face. It should be handled through political prudence and moral responsibility rather than by any legal restrictions arbitrarily decided or executed.

An opposition is indispensable to a democratic system, and should not raise any suspicion in the Muslim mind. It is needed to scrutinize the practices of the government and to provide an alternative if the party in power loses the confidence of the people. The opposition does not oppose for the sake of mere opposition; it should join in a united front during times of national crisis, and it should praise the government when it does something commendable. Under the early caliphs, opposing views were known and recorded. They have to be put forth even if they cannot prevail, for their validity and value may later be realized.

The Legislative Function

Some Muslims argue that since God is the Lawgiver, there should be no legislative body in an Islamic state. In fact, the legislature specifies and establishes the details of the required laws; the Quran and the Sunna provide only general principles and rules. In the case of the Quran and Sunna, different interpretations and jurisprudential views might appear regarding a certain text because of its language or its relation to other relevant texts. It is essential that a certain interpretation or jurisprudential view should be adopted by the state as a law, and what this is to be has to be decided by the legislature, so that the courts are not left to enforce inconsistent rules, according to the discretion of each different judge, something about which the well-known writer Ibn al-Muqaffa’ complained in his time.

What is allowed by the Islamic law al-mubah is extensive, and such a limitless number of allowed acts ought to be organized in a certain way: making them mandatory, or forbidden, or optional according to changing circumstances in different times and places. The public interest has also to introduce new laws not specified in the Quran and Sunna, which may be needed under new and different times or places. They must not contradict any other rule in the divine sources, nor the general goals and principles of Shari’a. Many laws are required in a modern state to regulate traffic, irrigation, construction, transportation, roads, industry, currency, importing and exporting, public health, education, etc; they have only to be provided according to considerations of public interest or in the light of the general goals and principles of Shari’a. No text in the Quran or the Sunna deals specifically with all the emerging human needs until the end of this life. Even the Prophet expected that some cases that may come before a judge would not find a specific solution in the Quran or Sunna, and the judge would then have to use his own discretion and judgment (ijtihad), which is naturally enlightened by the spirit of Shari’a and its general goals and principles. Such a juristic or judicial discretion (ijtihad) may have to be generalized and codified as state law and not left to the individual discretion of the judiciary.

Changing circumstances also influence understanding of a legal text and develop new needs that require new legislation. Applying the goals and general principles of Islamic law to changing social needs has been called in the Islamic law “the conduct of state policies according to Shari’a (al-siyasa al-shari‘iyya). The prominent jurist Ibn al-Qayyim stated that wherever a sign of justice appears there is God's law and command and good acceptance, since God only sent the conveyors of His messages and brought down His books to secure justice in people's dealings with one another, and thus any procedure that secures justice should be followed. This outstanding jurist states, “We do not see that a just policy can be different from the comprehensive Shari’a, but it is merely a part of it . . . since if it is just, it is inseparable from Shari’a.”3 See note 1.

A legislature, then, is a necessary and legitimate institution for a modern Islamic state, and it allows all components of the sociocultural and political pluralism to participate in making state laws. Democracy works within the dominant sociocultural circumstance, and the people will not accept a decision against their beliefs, as long as they are committed to them. As democracies assume that natural law or social contract or human rights supersede any human legislation, a modern Islamic state may always assume in general and with no need for explicit repetition in every case that God's guidance has supremacy over any legislation. This can be secured by the legal experts in the legislature and the administration, and through educational institutions and the information services of the media, in addition to judicial control of the supreme court.

Institutional and Public Supervision

The legislature also watches over the practices of the executive body, looks into any complaint or failure, and introduces any necessary legislation for reform. The principle of “checks and balances” organizes state powers and guards the public interest through an organizational and ethical climate of cooperation.

The Quran requires that even God's guidance has to be clarified to people before one becomes responsible for any deliberate deviation from it (e.g., 4:115, 47:25, 33). Those from among the people who are entrusted with authority by the people have to respond to people's questions about their practices, while the people have the responsibility to ask the auth-orities about any of their common concerns and worries (4:86). Mass communication has to be secured, together with its freedom in fulfilling its responsibilities to inform. Legal and ethical safeguards ought not to hinder creativity. If the mass media are within the public sector and controlled in any way by the government, political parties and candidates for public office should be given equal time to address the voters.

The supreme court has judicial control over the legislature and executive in order to secure Shari’a goals and principles and the constitutional provisions and framework (4:59). It and the whole judiciary as well should be independent and protected against any interference or pressure. Courts provide the strongest protection for the rights of the individuals and the different components of sociocultural and political pluralism against any violation of their rights, whether from any one against the other, or from the state authorities.

Bibliography references:

From The Children of Adam: An Islamic Perspective on Pluralism (Washington, D.C.: Center for Muslim-Christian Understanding, Occasional Paper Series, 1996), pp. 547–59.

1. Ibn Qayyim al Jawziyya, Abu Abd-Allah Muhammad ibn Abi Bakr, I‘lam al-Muwaqqi‘in (Cairo: al-Muniiriyya Press, n.d.), 4: 267–69.

Notes:

2. Abu Ya‘la Muhammad ibn al-Husayn al-Mutamad, text published in Ibish, 1966, p. 224.

3. See note 1.

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