Khaled Abou El Fadl

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Summary of Khaled Abou El Fadl’s examination of Islam and Democracy, and as discussed in the 8th and 9th editions of the introductory philosophy textbook Voices of Wisdom, edited by Gary Kessler.

Gary Kessler – God and Justice

Theocracy – the theory that only God has the right to rule

Not mentioned by Aristotle
Hebrew Bible endorses a theocratic state in which a king rules with god’s proxy
Monarchs of the ancient world ruled as divine stand-ins
Emperors of China had the mandate of heaven as their charter
Middle Ages – divine right of kings, widely held political theory
Great monarchies of Europe supported by Catholic Church
Islam: a religious community that seeks to obey the commands of Allah.

Muhammad (570-632ACE) – considered by Muslims to be a prophet of Allah (God), who revealed His will to him, recorded in the Qur’an, the holy book of Islam.

Muslim: one who submits to the will of Allah

Five Pillars of Islam are central to Islamic practice:

Witnessing that there is no God but Allah, and that Muhammad is his Apostle
Mandatory prayers, or salat
Mandatory alms, or zakat
Fasting during the month of Ramadan
And hajj, or pilgrimage to Mecca

Debate about best type of government throughout history of Islam, especially the political implications of divine sovereignty. Death of Muhammad – development of various schools of thought. There are a wide variety of political theories found among Muslims. Indeed, there have been important attempts to develop Islamic versions of socialism and communism.

Sunni and Shi’I/Shi’a agree: since God does not rule human society directly, humans must devise governments that strive to realize as nearly as humans can the divine ideal of justice.

Sunni:

see political authority given to the whole community
a caliph (successor to the Prophet) should be selected or elected political and military leader
Limited religious power and
ideally a descendant of Muhammad or his tribe.

Shi’i/Shi’a:

political authority vested by Allah in religious leaders
leadership vested in imam (leader)
a direct decendant of the Prophet or of Ali
a divinely inspired religious and political leader

Ali – cousin and son-in-law of Muhammad – according to the Shi’i/Shi’a is the first true imam after the Prophet Himself

Islamic Philosophers take a different approach to issue of what makes a society just.

Abu al-Walid Ibn Rushid (Averroes) (April 14, 1126 – December 10, 1198). Introduced Aristotle and Plato

Criteria from reasonable reflection – just rulers are rational rulers (?)
Proper genealogy is not enough

Islam and Democracy – Khaled Abou El Fadl (b.1963 Kuwait) Professor of law at UCLA School of Law

Summary. Fadl begins by distinguishing between three historic approaches to political systems by Muslim jurists: tribal, monarchial and the rule of law in a caliphate. Only the latter is considered legitimate because only it disallows the arbitrary rule of one by another.

Democracy poses a formidable challenge to Islam insofar as the former substitutes human authority for God’s sovereignty. The Qur’an identifies three core values central to a Muslim polity: 1) pursuing justice 2) the rule of law 3) mercy and compassion. Fadl goes on to argue that constitutional democracy best promotes these values. He argues that since the Qur’an informs us that each is the viceroy of God on earth such doctrine is best captured by ascribing a basic set of foundational rights to each member of the polity.

Fadl then discusses the debate between the caliphate Ali and the Khawarji as a background to difficulties in interpreting God’s law. Ultimately Fadl wants to argue that God’s law or Shari’ah is a “symbolic construct” that forms a regulative ideal for every Muslim polity, but, given our inability to know with absolute certainty God’s will, state law or human law must be distinguished from religious law. Indeed, Fadl argues at length that the sort of radical theocracy espoused by the Taliban (although he does not use this example) simply has no logical place in the history of Islamic jurisprudence. The most formidable challenge to this position is espoused by those who believe that Shari’ah is unambiguously clear. Fadl concludes by noting that laws are in need of human interpretation.

Muslim jurist a few centuries ago on Islam and government:

3 types of political systems

Natural system – most powerful rule the rest, custom instead of law, tribal elders instead of government, obeyed as long as strongest
Rule by prince or king – Because law fixed by arbitrary will of ruler, people would obey out of necessity or compulsion, so would be tyrannical and illegitimate
The caliphate (best system) – based on Shari ‘ah Law – body of Muslim religious law founded on the Qur ‘an and the conduct and statements of the Prophet. Fulfills the criteria of justice and legitimacy and binds the governed and governor alike. Based on rule of law, thus deprives human beings of arbitrary authority over each other.

Rule of law, limited government – core elements of democratic practice

Democracy’s moral power: idea that the citizens of a nation are sovereign.

Modern representative democracies express sovereign will by electing representatives
People are the source of the law and law ensures the fundamental rights that protect the well being and interests of the individual members

Islam

Law made by a sovereign monarch is illegitimate because it substitutes human authority for God’s sovereignty…law made by sovereign citizens faces same problem

God is the only sovereign and ultimate source of legitimate law

Important and Difficult Q: How do we reconcile democratic conception of the people’s authority with Islamic understanding of God’s authority?

Political reasons for import and difficulty: Hurdles for democracy in Islamic countries: authoritarian political traditions, history of colonial and imperial rule, state domination of the economy and society.

Conceptual/philosophical/doctrinal reasons for import and difficulty (Focused on them here by El Fadl as the beginning of the discussion of the possibility for democracy in the Islamic world): Modern democracy evolved over centuries within the distinctive context of post-Reformation, market oriented Christian Europe.

El Fadl’s start of an answer: democracy and Islam are defined in the first instance by underlying moral values and attitudinal commitments of their adherents – not the way they have been applied. – Islamic political thought has interpretive and practical possibilities that can be developed into a democratic system…unrealized without willpower, an inspired vision, and moral commitment or no democracy in Islam.

Democracy and Divine Sovereignty

Qur’an doesn’t specify particular form of government. Does identify a set of social and political values central to Muslim polity.

3 values of political importance:

Pursuing justice through social cooperation and mutual assistance
Establishing a non-autocratic, consultive method of governance
Institutionalizing mercy and compassion in social interaction

Therefore, everything else being equal, Muslims ought to endorse the form of government most effective in helping them promote these values – constitutional democracy

The Case for Democracy

Protects basic individual rights
Equal rights of speech, association, and suffrage
Doesn’t make God responsible for injustice or degradation
Potential for justice and human dignity increases

Qur’an – God vested all humanity with a kind of divinity by making every person the viceroy of God on this earth – but does not share in god’s perfection of judgment and will.

Everyone is responsible for making the world more just.

Democracy assigns equal political rights to all adults, which Expresses the status of the human being, and

Enables them to discharge their responsibility.

Vice-Regents – imperfect in judgment and will

Constitutional democracy

acknowledges error of judgment with basic moral standards (expression of the dignity of the individual) in a constitutional document
doesn’t ensure justice but establishes a basis for pursuing it, fulfilling our responsibility

Representative democracy

Some individuals have greater authority BUT
They’re accountable to all, and not immune from judgment – consistent with imperative of justice in Islam

Possibility of redress (an intrinsic moral good)

Vote
Separation and Division of powers
Guarantee of pluralism

Case is provisional because: How can higher law of Shari‘ah founded on God’s sovereignty be reconciled with the democratic idea that people, as sovereign can be free to flout Shari‘ah law?

God as Sovereign

Haruriyya/Khwari:

Assassinated Ali and Mu’awiya established himself as the 1^st caliph of Umayad Dynasty
Raised issue of God’s political dominion (hakimiyyat Allah)
Reflect tension regarding the meaning of legality and the implications of the rule of law

A Dialogue between the first Ali of Islam and his people:

Ali – I Command the Qur’an and the institution to speak!
People – It’s not a human being!
Ali – My point exactly.

Human beings give effect to it according to their limited personal judgments

One interpretation of this story

dogmatic superficiality of proclamations of God’s sovereignty that sanctify human determinations
“Dominion belongs to God” (la hukam li’l Qur’an)
“The Qur’an is the judge” (al-hukmu li’l Qur’an)
Nearly identical to current fundamentalist slogans

Khawarij’s slogan

initially a call for the symbolism of legality and supremacy of law
Descended into unequivocal radicalized demand for fixed lines between lawful and unlawful
Believer – God is all powerful and ultimate owner, but

When it comes to laws in a political system – arguments that God is sole legislator endorse a fatal fiction indefensible from point of view of Islamic Theology: They pretend that some human agents have perfect access to God’s will, and that human beings could become the perfect executors of divine will without inserting their own human judgments and inclinations

Assumes that divine legislative will seeks to regulate all human interactions, and
That Shari’ah is a complete moral code prescribing for every eventuality

But maybe God does not seek this and leaves some latitude as long as they observe minimal standards of moral conduct –for example: preserve and promote human dignity and well being

Qur’anic discourse – God commanded creation to honor human beings because of miracle of human intellect (an expression of the divine): Justifies moral commitment to protect/preserve integrity and dignity of that symbol of divinity

BUT (Ali’s point) – God’s sovereignty provides no escape from the burdens of human agency

When hb search for ways to approximate God’s beauty and justice they honor it not deny it. try to safeguard moral values reflecting attributes of the divine

If we say the only legit source of the law is divine text and human experience and intellect are irrelevant in the pursuit of divine will then divine sov. stands as authoritarianism and denigrates God’s sovereignty

Shari’ah & The Democratic State

Case for democracy within Islam must

accept the idea of God’s Sovereignty, and
show how popular sovereignty (with rights and responsibility to pursue justice with mercy) expresses God’s authority, and
appreciate Centrality of Shari’ah (God’s way) To Muslim life

Shari’ah

Set of normative principles
Methods for production of legal injunctions
Set of positive legal rules
Mostly not explicitly dictated by God
Relies on interpretive act of human agent for production and execution

Tension between

Shari’ah as core value and obligation to live by it

And the facts that

Law is manifested only through subjective interpretive determinations
There is a vast array of possible executions and applications of the law

Resolved to some extend in Islamic discourses – distinguish between Shari’ah and fiqh

Shari’ah – divine ideal, eternal, unchanging, perfect
Fiqh – human attempt to understand and apply it

Part of doctrinal foundations for this discourse – Sunni jurists – Every mutjahid (jurist who strives to find the correct answer) is correct or every mutjahid will be (justly) rewarded – more than one correct answer to a single question

Raises issue or purpose or motive behind search for divine will – what is the purpose of setting out indicators of divine law and then requiring human beings to engage in the search? OR Is there a single correct legal response to all legal problems? Are Muslims charged with legal obligation of finding it?

Most Sunnis – good faith diligence in searching for the divine will is sufficient to protect a researcher from liability before God

Mukhatti’ah

All legal problems have a correct answer but only God knows it
Not revealed until the final day
All mutjahid are correct in searching – not all responses are equally valid

Musawwi-bah

No specific or correct answer (hukm mu’ayyan), OR
God would have made it clear. Can’t require human being with duty to fine without any objective means of discovering it.
Legal truth – mostly depends on belief and evidence, duty of human being is to investigate a problem and then follow the results of their own ijtihad (judgment or opinion)
Al-Juwayni explains:”the most a mutjahid would claim is a preponderance of belief (ghalabat al-zann) and the balancing of the evidence . . . charged with finding and forgiven for failing to find.” God wants humans to search – to live a life fully and engaged with the divine
If a person honestly and sincerely believes– preponderance of belief– then it is God’s law. [:-O]

Mukhatti’ah school

Whatever law the state applies is only potentially the law of God and we don’t find out until the Final Day
Suspends knowledge while alive

Musawwi-bah school

Difficult questions about application of Shari’ah in society implies God’s law is to search for God’s law,
Otherwise the legal charge (taklif) is entirely dependent on the subjectivity and sincerity of belief
Any law applied by the state is not the law of God unless the person to which it applies believes it to be God’s will and command
Hinges knowledge to validity of process and ultimate sincerity of belief

El Fadl suggests: Shari’ah ought to stand in an Islamic polity as a symbolic construct for the divine perfection that is unreachable by human effort

Shari’ah as conceived by God – flawless, as understood by humans – imperfect and contingent

Ibn Qayyim: epitome of justice, goodness and beauty as conceived and retained by God – mind of god is perfect but channeled through imperfect human beings

Jurists ought to continue to expand imperfect attempts to understand God’s perfection

Normative constructs don’t fulfill the potential to reach divine will – any law applied is necessarily an unrealized potential.

Shari’ah is a work in progress that is never complete

Collection of ahkam (set of positive rules)
Set of principles
Methodology
Discursive process that searches for divine ideals

If a law is adopted and enforced by the state,

it cannot be God’s law, it is state’s law
no longer potential but actual, applied and enforced
relies on subjective agency of the state
Therefore a religious state law is a contradiction

OR A failure of state is a failure of God and that is impossible.

Challenge to this – God and His Prophet gave us clear injunctions that can’t be ignored – are unambiguous to limit human agency and innovation

El Fadl: Regardless of how clear they are, they’re still regulated through human agency

Define: “thief”, “cut-off”, “hands”, and “recourse”
Iqta (cut off) is from qata‘a, which can mean: sever, cut off, deal firmly with, bring to an end, restrain, distance oneself

Can the interpreter be sure to choose the right meaning?

Can the law be enforced so that one may claim the result belongs to God?

Humans make mistakes, even if God doesn’t. This does not mean exploration of God’s law is pointless. State law is not actual fulfillment of divine will, just approximation

Institutionally consistent with Islamic experience:

That the ulema (jurists) can and do act as interpreters of the divine word, the custodians of the moral conscience of the community curators point nation toward ideal that is God
Law of state belongs to state

Therefore, no religious laws can or may be enforced by the state.

All state laws are human and should be treated as such.
Only a part of Shari’ah law to the extent that any set of human legal options can be said to be a part of it
Inspired by ≠ is
Rights and laws ≠ perfection of divine creation

Therefore democracy is an appropriate system for Islam

BECAUSE, Democracy both

Expresses – the special worth of human being as viceregents
Deprives the state of any pretense of divinity by locating ultimate authority in the hands of the people rather than the ulema (jurist)

Moral Educators must be vigilant in urging society to approximate God. But even will of the majority can’t embody it fully. And in the worst case scenario:

people not persuaded by ulema
people turn from God
people still respect right of individual
people ponder creation and call to god.

We still all have to answer to God.

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Links

Khaled Abou El Fadl:

Criticism of El Fadl: Questions for students – Are the critiques following the code of intellectual discourse? In the cases below, have they properly analyzed and represented the views of the speaker they critique? Or have they misinterpreted or misapplied the views of the speaker they critique? For example, has Daniel Pipes properly understood, represented, and applied El Fadl’s ideas? If not, where has he gone wrong? So, if El Fadl were to refer back to his own ideas how would he then respond to Pipes criticism?