This paper deals with the legal and moral themes upon which the ideals of an Islamic state are founded. It will be shown that the basis of such a government is sovereignty of God and a divine immutable law. By this, it is meant that the role of man and man-made institutions is limited, as far as law and rulership is concerned, to its interpretation and application. A brief analysis of the divine law is presented and investigated from the point of view of justice within the law, the scope of rights of the individual and of the community, the role of the ruler and government itself and the type of society that such rule is meant to foster. The role of morality and Islamic ethics is investigated, both in safeguarding individual rights as well as in providing an imperative to the rulership.
Human rights and personal freedom as applied to secular state are briefly reviewed and then discussed in the context of an Islamic state. Democracy is discussed in its contemporary application, its role in achieving the aspirations of society and state and the extent to which it is compatible with Islam.
It is important to state at the outset that the author does not believe that an idealised Islamic state exists in contemporary times. Whilst Iran, Saudi Arabia, Pakistan and other nations have attempted to create a framework of such a state, the author believes that they have only incorporated some Islamic rulings into their otherwise secular state machinery. The purpose of this study is not to provide the basis for such a framework, but to highlight certain specific features that an idealised Islamic state would have. For the purposes of this dissertation, the definitions of what constitutes Islamic theory and practice is taken from the Qur'an and other Islamic sources of the classical Islamic period1 that espouse the Shi'a Fatimi Isma'ili thought of Islam. This school known for an uncompromising development of the monotheist fundamentals of Islam and for the establishment of the Fatimid khalifat (caliphate) that ruled from Egypt in the 10th to 12th centuries. Thus the arguments put forward here may not all necessarily concur with the generally accepted view of Islam.
The idealised Islamic state is not utopian, in that it does not espouse near impossible themes that have little bearing to reality. Islamic states did once exist and can function again in contemporary times, provided the requirements of a contemporary Islamic state are understood and appropriately developed from the fundamentals that already exist within the Islamic polity.
A comparison between the modern secular state and the ideal Islamic state is unavoidable as an investigation of differences in the application of familiar themes in both systems is a useful way of understanding the basis of an Islamic state.
It is a well-known fact that Islam has a value-system applicable to government and politics. This is a powerful theme that raises spontaneous opposition from the West due to the West's own historical experience of the renaissance when the state and church were painfully separated. However, there a number of reasons which compel Muslims, even those who are aware of the Western experience, to consider politics, even modern politics, as being part of practical Islam. These are:
The most fundamental principle of Islam is tawhid, which means unity or oneness of God. This principle is the spirit behind all ideas and practices in Islam. Translated into political philosophy, it asserts that sovereignty belongs only to Allah. This means that the explicit commands of Allah, as laid down in the Qur'an cannot be changed and must be adhered to by all. The principle of oneness further asserts that the sovereignty of God is fulfilled by the vicegerency of a single person in each age, called the Imam. It is a principle of faith that such an Imam, a divinely appointed direct descendant of the Prophet, will always exist on the face of the earth. This is the source of the political legitimacy for the leadership of the head of state, who is charged to exercise divine authority within the limits prescribed by Allah.
Another principle that applies here is that of the khilafah, that is the representation of the lordship of Allah as His trustee. Humankind is the recipient of a lordship over other creatures of Allah and ultimately bears the responsibility towards Allah of how this duty is executed. This responsibility is epitomised in a complete and perfect way in the person of the Imam, who for that reason is also called the khalif. The later term, popularly written caliph, commonly denotes the Imam in his capacity as the successor of the Prophet and the head of the Islamic State.
There can be no doubt that the type of government espoused by Islam is a form of theocracy in which the head of state has ultimate decision-making powers. It is not a theocracy of the kind that once existed in Europe, as the suzerainty of God is not translated to an arbitrary rule of a priestly class but is invested in a single head whose rule operates within the divine injunctions of revelation, that is the Qur'an and the practice of the Prophet. He is the final interpreter and guardian of religion and its very embodiment, one to be emulated and one who provides the moral basis for law. His predecessor through an act of designation can only make his appointment.
The very basis for government in Islam is God-given morality and the ruler has to be the embodiment of that notion. Such high standards are demanded of the ruler that only such men as Prophets or Plato's Philosopher King in the Republic would do the post justice. In the Shi'a Fatimi Isma'ili faith, the ruler, that is the Imam, is at once the sinless and in-errant religious head of the ummah (Islamic community) and also the khalif, its political ruler.
The Imam represents the Prophet and commands the same authority in so far as obedience to him is concerned. The Qur'anic verses
"So accept what the Apostle assigns to you and deny yourselves that which he withholds from you. And fear Allah; for Allah is strict in Punishment."(59:7)
"But no by your Lord they can have no (real) Faith until they make you judge in all disputes between them and find in their souls no resistance against your decisions but accept them with the fullest conviction." (4:65)
apply equally for the Imam. The Imam therefore provides the dynamics within religion and law. He interprets religion in accordance with the requirements of the time. The authority inherent in the Imam deals with the question of antiquity and irrelevancy of historical perspectives or of developing classical Islamic institutions for a new age. The Imam in an Islamic state would have the authority to adopt laws, even divine laws and to enact constitutions and choose the administrative system to govern with according to the prevailing circumstances and needs of the times.
The subject of administrative systems allowable in Islam is vast and includes structure of government, taxation and wealth distribution, security etc. and will not be dealt with in this dissertation. This dissertation will limit itself to the judiciary, the philosophy of law and its ethics, the role of morality, human rights and democracy in an Islamic state, as these are also the principles upon which a contemporary secular state is based.
Almost all models of government all over the world follow the models that exist or once existed in Europe, whether they are dictatorships, monarchies or democracies. Western Europe defined nation-states and developed ideas that have shaped world governments, international politics and virtually all machinery required to run a contemporary state. There are a number of themes that such states aspire to. These can be classified as follows:
This dissertation will investigate the role of each of these themes in an ideal Islamic State.
One should note that these themes are not always fully applied even in the most ardent of liberal democracies. Often, even a democratically elected government acts against the wishes of the people for selfish or paternalistic reasons. In other cases, as in the case of the trade union acts in UK, the judiciary gives extreme interpretation to law and over-rules the intent of parliament. Prejudices sometimes allow different interpretations of the same law to be applied for different sets of people. Democracy often produces undesired governments and protection of one set of rights often lead to violation of others.
Islam is most known through its application of the Shari'ah, which is commonly interpreted as Islamic law and popularly associated with criminal law. This is an inadequate definition as the Shari'ah is much more than that. There is undoubtedly a pre-eminence of law in Islam, which stems from its view of revelation. This it regards as the manifested Will of Allah. The proper response of humankind is therefore to submit to this Will, accept the trusteeship inherent in this submission and be judged by it. Thus, every act, however humble or private, whether sacred or not, becomes charged with "legal" consequences. This judgement is based on a moral measure by which there is, in Islam, the approved (halal) and the forbidden (haraam) for almost all aspects of life.
The Shari'ah is however much more than law. It defines the way in which the submission to Allah is to be done in every conceivable human situation. It provides a means of understanding the Divine Will and a means of enacting that Will through an action-based system, both for the individual as well as the society. It encompasses, for example, the whole body of ethics and morality, rules of prayer and fasting and all other aspects of religion to the extent that it is sometimes confused with religion itself. The word literally means "way" and denotes an actualisation of Divine Will. Some scholars correctly regard it as the most powerful theme in the genius of Islamic monotheism precisely because it is a process by which the concept of tawhid in Islam is given form.
There can therefore be no doubt that an idealised Islamic state would derive its features almost entirely through the Shari'ah. In a short dissertation, the discussion of Shari'ah has been limited to only to ethics and criminal law as it would take too long to investigate all its aspects.
There is an over-riding importance of ethics4 in Islamic law. So much so that the core of Shari'ah is often described as nothing but ethics. The Qur'an repeatedly uses the phrase "those who believe and do righteous works" to denote those who are to achieve salvation, thereby showing that what is desired of man by God is not simply belief and worship but also righteous deeds.
The 10th century encyclopaedic work, Rasa'il Ikhwan al-Safa, makes ethics virtually the paramount purpose of existence of humankind5. There is no road to paradise except this world and to pursue this world for itself is the height of ethical evil, but to seek to realise value in this world is the height of ethical goodness. One of the remarkable features of the single-minded striving of ethics is the definition of what constitutes moral value. This is defined as the whole body of values, whatever they may be. A definition of evil is to promote one set of values at the expense of another. The realisation of the purpose of creation itself is the struggle to raise oneself to embrace all value. The importance of this philosophy cannot be underestimated. It means that moral values have an objective existence, which the Muslim is required to seek out and adhere to without regard to its source. This is pluralism right at the core of the Shari'ah, despite the supercedary status of morality themes revealed in the Qur'an. Such is the importance of ethics in Islam that it would form a natural cornerstone of the ideal Islamic state. It is conceivable that institutions of ethics and morality would form part of an ideal contemporary Islamic state and the force of morality would be relied upon much more than law for the running of society.
An important fact about Islamic ethics is that the theological and philosophical theories that were constructed to support ethics during the classical phase of Islam were based on Greek rationalism rather than any other eastern philosophy. This relationship of Islam to western intellectual history has not been recognised in the West and modern studies of ethics have largely ignored this period of its development. This also means that ethics of state espousing Islamic values would be amenable to analysis using contemporary tools developed by the West from Greek philosophy.
The Sharia'h law encompasses all laws pertaining to inter-personal and society relations, from marriage and inheritance to distribution of wealth and army etiquette. In effect, it has the potentiality of dealing with all that is the purview of the law in a contemporary state and more. Here, we shall deal with some aspects of Shari'ah law that can be regarded as criminal law.
Criminal law in any society has just one ultimate purpose, which is to protect the society from activity that society deems unacceptable for whatever reason, principally the causing of injury to others. The process of meting out justice to the crime may have a variety of reasons. The most liberal attitude would take the view that human nature is itself not criminal and that crime is only a symptom of an inequitable or unjust society. The criminal should therefore be punished only for rehabilitation purposes as the real cause of crime is the society itself. The view at the other extreme would be that crime is the responsibility of the perpetrator alone and the first function of criminal law is to protect the innocent society from the criminal. This group would favour capital punishment and jail sentences to prevent the criminal from repeating the crime. Latent in both procedures is the requirement that the aggrieved party should feel that justice has been done. Another element, especially found in religious societies is that each crime itself should attract an equivalent punishment in the objective sense, in which justice is seen to have been done in the eyes of God alone, regardless to its consequences to society.
The degree to which crime and punishment are to be viewed as being objective shapes the type of criminal law implemented in a particular state. Where the liberal and objective viewpoint outweighs the preventative, the state has necessarily to expend heavy resources in proving the crime and meting out justice accurately as its ultimate purpose is to identify the crime and deal with it accordingly. In a system where the primary purpose is prevention of crime, the emphasis is on the punishment that will have the highest deterring effect. The latter system is concerned more with the pragmatism than of attaching a value to the crime and accepts that the punishment may not always be commensurate with the crime. Although the former appears more humane and the latter more regimental, in practice it is almost impossible to practice the former which can lead to complicated and inefficient systems that still allow mis-carriages of justice.
One would think that a religious law would be inclined to define crime and punishment intrinsically; however Islam appears to do the opposite. What the Shari'ah does is leave the choice of criminal activity, indeed any sinful or merit worthy activity, to the individual by including ethics and morality within itself. The ideas of sin and retribution put justice and the objectivity of crime and punishment firmly in the spiritual domain, where Allah alone will apportion infallible justice. Punishing a crime on earth is therefore a social activity rather than a spiritual one and thus Islam attaches more importance to a practical and deterrent purpose to punishment than to its rehabilitating value. This is done by a rigid code of punishment attached to each crime, which is then deliberately rarely applied because of the following reasons:
The Islamic criminal system therefore relies heavily on ethics and moral teachings, makes crime a private matter between the individual and his Maker, prefers not to punish even those who would otherwise be found guilty and considers punishment necessary for its deterring rather than rehabilitating value8. Thus even when the crime is proven, the judge is instructed to look for mitigating circumstances or throw doubt upon the evidence that would allow the commuting of the sentence. Moreover, the sentence can be avoided if the injured party forgives the crime prior to taking the matter to court or through some restitution. Besides that, the Imam has the absolute authority to grant pardon. All these are overtures of mercy that are built-in within the Islamic Shari'ah. The sporadic application of severe laws in modern times by some regimes aspiring to implement Shari'ah law is not normative, goes against the very ethos of Islam and is a by-product of the local political and social upheavals.
Miscarriages of justice are accepted in Islam as a manifestation of human weakness. However, the believer does not see such miscarriages as miscarriages in the grand scheme of things. An apparent miscarriage is considered to be the result of a different previous crime that may have been committed by the perpetrator in secret, thereby validating the impeccable justice of Allah and assigning an objective value, albeit in the spiritual sense, to the crime9. Punishment, when applied is to be viewed by the criminal as not only rehabilitative but also redemptive as crime punished on earth shall not be punished in the hereafter. In this sense, mercy is in-built even in the application of punishment.
In summary, the themes pertaining to crime in Islam have the practical effect of limiting society's right to judge and attach stigma to crime and severity of punishment carried out in public provides a powerful deterrent to crime. In a secular state, the purpose and practical effect of the criminal law system is often unclear.
In a contemporary Islamic state, the courts could possibly operate with a system close to the Western magistrate court model, allowing each side professional support, with the exception that crime would be provable only upon the availability of the prescribed witnesses and secondly, the decision as to whether a crime was committed or not would not be delegated to a lay and dubious jury. The judiciary and police and all other institutions connected to the criminal law system would probably be highly streamlined, not only because crime instances would be fewer but also because the stringent witness requirement would reduce the number of cases that can reasonably be brought to court.
Like law, morality plays an important part in the shaping and regulation of societies. There is also a certain amount of overlap between law and morality as often law gives expression to the accepted standards of morality within the society, even if it does not directly legislate for it. This and the central importance of morality in Islam make a discussion on the relationship between law and morality pertinent to this dissertation.
The secular state is suited best to the agnostic and it is therefore natural that most secular states in the west are predominantly agnostic. However, the source of morality even in the most agnostic western state is primarily Christianity, which still provides the principal moral imperative to the secular society. Secular moralists consider this religio-historical source as irrelevant to the present day and busily apply themselves to producing other sources of morality such as Objectivism and Utilitarianism. However, these new moral philosophies have yet to influence the common man, who continues to be guided by some form of religious morality.
The function of law in a secular state, in as far as morality is concerned, is guided by the need not to interfere with the private lives of the individual. However, law has always had to make some moral judgement pertaining to private lives and it cannot remain completely morally neutral10. Despite morality's relegation to the private sphere, the need for morality to maintain the integrity of society is recognised.
Morality in Islam obviously has an objective value and permeates every aspect of life. It is not based on habit or ritual but has a divine source that has a connection with the soul as the ultimate purpose. There is a call of the Prophet which indicates not only that it is part of religion but that it has a position "before" it11, which in turn means it is impossible to be religious unless moral etiquette is inculcated first.
The intensity with which moral values are imbibed is amply demonstrated by the following verse of the Qur'an (49:12) which even prohibits ill-thought of others:
"O ye who believe! Avoid suspicion as much (as possible): for suspicion in some cases is a sin: and spy not on each other nor speak ill of each other behind their backs. Would any of you like to eat the flesh of his dead brother? Nay ye would abhor it...but fear Allah: for Allah is Oft-Returning Most Merciful".
In Islam, law and morality are both part of the body of Shari'ah, with morality having an important place in maintaining the integrity of society. There is no inhibition for legislating for morality to the extent that even what could be termed private morality is subject to law and is enforcable. This is because the danger of immorality in the eroding of the fabric of society and the need for adhering to a shared morality is well recognised. Law is designed not to pass moral judgements (as shown above in with criminal law) but to enforce morality.
In the western state model, law is there essentially to protect what is regarded by the state to represent citizen's rights. It provides a safeguard against exploitation and corruption, protects the weak from the strong and maintains public order and decency12. It is not for the law to legislate or interfere with personal morality as morality is relegated to the private life of the individual. Even public morality must not be enforced by law, though this is not always practical and the law, almost begrudgingly, has to adopt a moral stance in some moral situations.
In so doing, the secular state has virtually no choice. If it considers religion as a personal matter and accepts the plurality of moral values, to legislate to satisfy the standards of one group could be detrimental to the other and to legislate to a perceived common morality acceptable to all (based on natural or human values) would be an administrative nightmare, if possible at all. The complexity of this problem is demonstrated by the well known Devlin-Hart13 debate in which even Lord Devlin, who supported the legislation of moral crimes (even when they may not necessarily be immediately injurious to society), came to grossly unacceptable conclusions such as, the final arbiter as to what constitutes a moral value would, in the end, be left up to the thinking of the legislature.
In this way, morality, one of the most powerful forces that has shaped civilised society, is almost unused by the modern secular state. I say almost because the state does attempt to shape personal morality by the agencies of education and personal religion and hopes to influence the inculcation of decent behaviour by means outside the law. Even then, some law does exist that can only be said to enforce morality, such as the laws pertaining to marriage and sexual behaviour.
This loose relationship between law and morality is now beginning to be perceived as disadvantageous to the secular society whose moral standards have continuously dropped along with the entrenchment of secularism. Thus there is some lobbying to re-introduce some basic moral education in British schools.
In Islam, morality, ethics and law have a much closer relationship as shown above. The law and moral values have the same divine source. Morality is as fixed as the law itself and law enforces most moral values. Sin and crime have very little difference. The government itself operates by a moral authority. The essentials of moral values are largely deterministic and the pursuit of ethical value is the principle pursuit of man. One can see that the problems of contemporary relative morality and its relation to law and society are dealt with in a complete self-sustaining set of parameters in Islam.
We have seen that a secular state based on the Western model eschews legislation of any morality as it considers that an infringement of individual privacy. This is particularly true for private morality, which is a matter that does not affect society except in eroding its overall fabric. Whereas public morality is something the state has to legislate against. The difficulties in defining the boundaries between the two types of morality, the general reluctance to legislate morality and the Christian history of the West combine to generate anomalies that further mock the value of morality. For example, incest, sodomy, bestiality, bigamy, suicide etc. are all illegal although these are typical results of a degraded private morality, yet homosexuality is legal simply because of successful lobbying by the homosexual pressure groups. The freedom of choice argument put forward for homosexuality for an essentially private consenting practice applies equally to incest and bigamy but such anomalies continue to exist, implying that one is morally acceptable whereas the other is not.
In Islam, virtually all morality is legislated for. There is a narrower classification of what constitutes private morality as morality is seen as not only an essential ingredient in the creation of a virtuous society but the pursuit of an ethical life fulfils the purpose of creation itself. Morality, as Lord Devlin argues14, "forms a seamless web, so that deviating from any part is likely to cause deviation from the whole". Thus the state legislates against all acts of immorality, even at the cost of reducing personal freedom. The few acts which could be regarded as private, such as abuse and swearing obscenity are also not completely free of the law as they too are subject to a kind of civil law called taadib, which imposes lighter sentences on such acts of immorality.
The list of deeds which are immoral in Islam (and not in a secular state) and which would therefore be legislated against include:
One can see that the widespread use of any of these vices, when adopted by a sizeable section of the population would seriously degrade the society as a whole. An Islamic state would sacrifice personal freedom on these matters and favour a paternalistic approach.
The secular state has the problem that morality, one of the most essential ingredients of a civilised society, is left largely undetermined. Schools do not teach morality due to fear of disadvantaging some groups. The law fears legislating morality for similar reasons and will only legislate if absolutely necessary. The realm of personal morality is left entirely up to the individual in order to protect his personal freedom. In this environment, it is increasingly difficult to define human value, what determines right and wrong and ultimately, how to live in society as caring individuals. This in turn erodes the fabric of society, which the law in part is meant to preserve and strengthen.
In the UK, a MORI poll conducted in 1996 shows that 41% of 15 to 35 year olds thought that there was no absolute right or wrong and that right and wrong depended upon the circumstances of the situation15. Schools are reluctant to talk about values, as most values are culture dependent. Moral building influence is mainly from outside the school system. In particular, role models within the entertainment industry, and the culture associated with that industry have a bigger influence on their morality than any other single factor. One can see the obvious problem with this situation where morals are derived from areas hardly known for any moral standards. This is of course recognised and the re-introduction of the teaching of morality within the education system is being lobbied for. The proponents of morality teaching believe that it should be possible to identify common moral traits/trends and teach those in school. They are pushing for a National Forum. Holland, for example, teaches core moral values in schools16.
In Islam, there is a great emphasis on education17. If there was one single factor that could be regarded as the cause of the unprecedented flourishing of the classical Islamic civilisation, it was the insatiable thirst for knowledge inculcated in the believer. Thus, it is not difficult to see that the first role models of pupils in such an environment would be the teachers. Further, the study of ethics and the teaching of morality would be very much part of the education system. Besides core morality, which would have resonance in most cultures, Islam does recognise value per se as moral. Anything that is regarded as adding value to society would be taught, going some way towards solving the problem of plurality of morals.
Human Rights have become the principle moral theme of the modern contemporary state. The UN's Universal Declaration of Human Rights is regarded as one of its most important documents, providing guidance to all other UN activities. Legal systems of the world often base their ultimate judgement on perceived violations of human rights. It has become a spearhead of modern contemporary politics.
The call for human rights is an essential feature of a western society precisely because there is no other tangible ideal for the western state to uphold. Like most modern values, human rights are a product of a Christian historical experience of the West. Once Christianity had been displaced from the role of defining what was good for society, society had to fall back on their own devices to define its values and develop legal systems to protect such values.
Modern human rights, as enshrined in the UN charter and in many western constitutions are therefore an expression of western values, borne out of western history. Human is defined as a sovereign individual and his rights are limited to civil and political liberties. The individual has rights merely by virtue of being a human being and the protection of these individual rights take precedence over any other form of rights such as communal rights or the degradation of morality. In traditional moral systems, the concepts of duties far outweighed that of rights and the rights of the individual were only viewed as part of the overall rights of societies. The concept of modern human rights is thus a new idea, born out of a shifts in paradigms in Europe, but are nevertheless espoused by states all over the world as being indigenous to their own pasts.
Human rights as defined above are, however, just as elusive as they are noble and despite its global appeal, human rights are subject to many anomalies. Often, the privileged of society appear to have more rights and the legal system can be manipulated by the sheer force of the mind-power that money can buy. The rights themselves have to be continuously re-defined depending on the whims of the age and the value-system that has predominance. This fluidity and also its global appeal has caused a need for defining and refining these rights and enshrining them in documents such as the UN's Declaration of Human Rights.
This declaration, adopted within constitutions in most countries, guarantees many rights, including the freedom of religion. However, in most Western states, such as UK, this right is only fully accorded to freedom to hold religious opinions. As far as religious practice is concerned, the rights only exist in so far as they are perceived not conflict with other aims such as public interest. In some cases, the extent of that right too is accorded to Christianity more than to other religions despite the secular nature of the law in general. In some states, such as India, there has been a tradition of providing "personal laws" that allow certain family laws, such as those pertaining to marriage, divorce, inheritance etc. to be derived from the individual's religion. Thus, the Hindu and Muslim in India would, in such cases, apply a different set of laws for the same circumstance. However, the rights enshrined in the constitution often clash with religious practice and the state has then to agonise over which freedom or right it should uphold. Thus, the Hindu rite of sati, where the widow is (voluntarily) cremated with the deceased husband is illegal, despite its importance in the Hindu religion, for the paternalistic protection of the wife. Similarly, there are writ petitions in the supreme court of India that seek to withdraw the basic rights of Muslims to apply personal law, especially pertaining to perceived gender inequality.
Other areas of human rights definition and application pose similar difficulties of conflict and anomaly. For example, censorship for the rights of one set of people or values often conflict with the right to freedom of expression of others. Human rights are also all but abandoned when the state perceives a threat to itself because of those rights. For example, in war or emergency situations the rights of association and expression are usually curtailed in the interests of national security.
In Islam, the focus of rights is not the individual man but the man in his relation to Allah. Human duties take precedence over human rights. Human rights themselves are only what Allah chooses to bestow and are subservient to divine rights. The essential vitality in this thinking as is the shift of focus from "what rights do I have" to "what are my duties". In the modern secular society, the belief that every right has a concurrent duty is only an ideal practiced by the few whereas in Islam, the society has divine rights as its essential moral force. Mankind is bound by duty rather than endowed with rights. Equality of man, for example, is a divine injunction; to be respected that much more. The call of the Prophet:
"There can be no superiority of an Arab over a non-Arab in the sight of Allah; closeness to Him is measured only by piety"
effectively wiped out all forms of tribal, racial and national prejudices. It is thus a question of certainty of divine injunctions against the uncertainty derived from human ingenuity.
The vocabulary of the twentieth century western world that defines and gives expression to modern concepts itself has evolved along with these concepts in a way which makes it difficult to express in that language anything other than the secular values and concepts that the vocabulary evolved for. It is therefore difficult to define and categorise rights pertaining to Allah and man in the language of contemporary human rights.
Having said that, rights such as the right to free speech and opinion, the right not to be slandered or assaulted, the right not to be imprisoned without reason, etc. that are commonly found in contemporary human rights bills are amply provided for in Islam. Indeed, some scholars claim that the concepts of free will, which inspired the quest for freedom in the West and led to many of its cherished values, have themselves been derived from Islam18.
It is the extent and scope of prohibitions that form an obvious practical difference between the two systems. In western society, man is "free" to do as he likes provided he does not transgress equivalent "rights" of others; though this right is not as absolute as it seems. In Islam, man is free to do what he likes within the parameters provided by divine injunctions, whether those parameters define the rights of others or not. Thus, the right to freedom of expression, for example, is qualified by the parameter of not slandering Allah or His prophets or anyone else. Whilst the last of these has remedy under civil law, the former is made illegal by criminal law. The case of Salman Rushdie brought home the clash of these differing paradigms where the West upheld the right of free expression (and gave it accolade) at the expense of religious slander and the Muslims saw the freedom of expression having transgressed all bounds of decency and upheld the value of responsibility.
To the western liberal, nothing epitomises the lack of rights in Islam as much as the position of women. The main thrust of the accusation centres on 4 themes, vis. the dress code, polygamy, inheritance and witness status. Muslims are at pains to point out that the rights conferred to women by Islam far exceeded anything given to them by any other society at the time (7th century). That uncontrolled polygamy was reduced to a maximum of four wives, that the widespread practice of disposing female babies was terminated by the advent of Islam, that when Islam considered a woman to be man's equal partner in so far as the purpose of creation was concerned, other societies, including medieval Christian ones were debating whether women had souls! However, not withstanding the tremendous progress Islam fostered for women, the nature of equality advocated for women in contemporary times exceeds that provided for in Islam.
However, Islam does not regard women as inferior either in their soul's proximity to Allah or in their status on earth. Islam emphasises the differences between the sexes as being due to the roles each is to play in fostering a just, morale society. There are a number of principles upon which these differing roles are defined:
It is in the context of these principles that the laws of inheritance and social intercourse have been formulated. Their exact effect in a contemporary society would require a deeper research. However, one may note that Islam does not prevent women from taking up work or careers, it only insists on that such work being dignified in keeping with the status of women. Nor does Islam prevent women from occupying positions of importance in government, as history of the classical Islam amply demonstrates. Polygamy was one of the most humane ways of dealing with the imbalance in numbers between the sexes. War often caused widows who found a home as second wives. The ruling on polygamy, often forgotten, is that it should only be entered into if there is the possibility of equal treatment for the wives19 and even then marriage to widows is encouraged over single women. The romanticised kings' harem with hundreds of concubines and wives and the use of polygamy to pamper to male lusts has no foundation in Islamic law and would be outlawed in an ideal Islamic state, as would be the unfounded prevention of women from driving that exists in Saudi Arabia.
The concept of democracy is difficult to fully describe partly because almost any desirable value pertaining to the relationship between the individual and the state is regarded as part of democracy. Strictly speaking, democracy is a form of government in which sovereign power lies in the people as a whole and is exercised by their elected representatives. Although there can be more than one model in which this participation is possible, it is the western one, borne out of western history and as a cure of western ills, that contemporary democracy is known by.
One should remember that the purpose of democracy is to engender a society and government that allows people the freedom to live a peaceful and purposeful life, allowing them to direct that life in their own particular way without undue hindrance. In the West, however, there are two aspects of democracy that arise from the history of the West:
The Western democratic model is of course not an infallible system of regulation. It can sometimes produce the very types of government it opposes, such as the Nazi one in Germany. On the other hand, democratic results are sometimes ignored when they don't suit the purpose, as when the military, with Western support refused to acknowledge the results of an election that put the FIS in power in Algeria in 1991. These double standards indicate that even the ideals of Western democracy are sometimes discarded in favour of other interests.
Virtually every prescription for establishing a democratic regime involves the holding of free elections. This is regarded as the single most important component of the democratic system. However, even here, we find democratic systems such as that of Athens that have successfully existed in history without elections. Even today, there is criticism of the electoral process, such as this20:
"In order to have democracy, we must abandon elections... and revert to the ancient principle of choosing by lot those who are to hold various offices... Elections inherently breed oligarchies."
Elections induce vulnerability to be re-elected in the elected representatives. Whilst this may seem like a positive trait, it can also work against the process of democracy. This happens when parliamentarians are driven primarily by the fear of doing something that may render them unelectable. This over-riding concern and other requirements such as the need to tow the party line cause the representation of the views of the electorate to lose importance in their work agenda, thereby limiting the democratic nature of their representation.
Despite the ability of the common man to elect his representative, he has no say over who amongst the elected representatives should govern and in what capacity. In some cases, such as in UK, he is also unable to elect the effective leader, that is the Prime Minister. Party politics, unequal power of the elected representatives, inability to change their representative for a period of term, inability of representative to deal with the concerns of their electorate etc. limit the democratic process and compromise the purity of the democratic ideal.
Another ingredient that the West regards as essential is majority rule in a multi-party system. Multi-parties are regarded as essential to make reasonable choice and opposition available to the electorate and majority rule for effective government. However, neither is necessary for democracy. Many states, even in Western Europe, base their government on a consensus system and a number of African states have argued for and implemented democratic states on a single party system that is more indigenous21. Even in the US, there were serious suggestions by the 1992 presidential candidate Ross Perot to change the decision making process, including use of national electronic referenda.
Whilst a parliament theoretically allows the participation of the common man in the running of the state, in practice, this is hardly done. The affairs of the state are decided upon almost entirely by a governmental elite. An opposition in parliament subjects the ruling party to scrutiny and thereby provides a check on excessive authority but in practice, it has very little power and is privy to much less information. The head of state and centres of power are usually inaccessible to the common man.
Every ideology and every modern state aspires to have democracy, and each finds some indigenous expression of some aspect of modern democracy in their histories. This itself shows that the idea of public participation has been around in all societies in one way or another sometime in the past.
A similar exercise by some modern scholars has found themes of modern democracy in Islam. There is no doubt that Islam promotes egalitarianism, social welfare and human rights, but the reality is that the method of rulership and its selection in Islam cannot be termed democratic. In Islam, sovereignty belongs to Allah alone and a divinely appointed Imam runs His kingdom on earth. There is no requirement for popular sovereignty in Islam. The method of appointment to the positions of authority depend entirely on the Imam who can choose any system, even a full-fledged western style democracy to operate under him.
The primary difference, besides the all-encompassing power of the Imam would be the attitudes which allow the fulfilment of the purpose of government. The attitude of confrontation prevalent in party-politics in a secular Western democracy, for example, would be the anti-thesis of the unity espoused by Islam and would have no place in an Islamic government. Those in authority would be accountable to the people at one level but to the Imam at another. They would be participants in a system in which sovereignty lies in a power beyond their reach, all of which should provide a corrective moral imperative.
Consultation is obligatory at all levels of the Islamic government. The Qur'an requires even the Imam to engage in consultation as the following verse addressed to the Prophet states:
"Pardon them and ask forgiveness for them and consult with them upon the conduct of affairs, and having made your decision, place your trust in Allah" (Qur'an, 3:159)
This emphasis to consult even for one whose authority is absolute indicates the importance of the consultative process. The same obligation exists in lower tiers of government by extension, except that in this case, the head of state may choose to appoint an assembly for a particular ministry or function and insist on decisions being taken by majority decision. The Prophet repeatedly commanded Muslims to engage into consultation.
There is no doubt therefore that an Islamic democracy, if chosen by the Imam, would be consultative rather than majoritarian in nature.
The Qur'an and the practice of the Prophet provide broad outlines as to how a state should be governed, leaving it up the Imam to evolve institutions that would be appropriate for the times. However, some broad outlines are available that serve to indicate the type or government an ideal Islamic state would have. These have been obtained primarily from a celebrated letter from the successor of the Prophet, Ali ibn Abi Talib22, to his governor of Egypt, Malik al-Ashtar. The document23 was written less than three decades after the era of the Prophet and is widely considered to be based upon the teachings of the Qur'an and the practice of the Prophet himself.
This document asserts that the position of authority derives its legitimacy only from Allah through the Imam in a hierarchical system. The governor is told he is free to choose whatever system of administration under him but is advised as follows:
A modern secular state has certain worthy essentials that protect the rights of the citizen and institutions of the nation-state system and enable its governance through the interaction of such essentials. We have seen that most of these essentials have been shaped by Western thought and are outcomes of European history. That they have limitations and anomalies which the Western states can live with. However, they may not as readily be applicable to a state that does not share the West's historical experience notwithstanding the fact that such states themselves aspire to these themes.
The ideals of an Islamic state have been briefly considered. It has been shown that in an Islamic state, sovereignty belongs to Allah alone and that Divine Will is executed through the presence of the Imam, who has all the powers of head of state and is simultaneously the final authority in religion.
The Shari'ah law, popularly known in the West as medieval and excessively punitive, is shown to be a dynamic ethical force in its capacity as the realisation of the Divine Will. Despite its divine origins, the criminal and civil law of the Shari'ah is very much a practical, prescriptive one whose primary social purpose is the promotion of social justice and maintain the integrity of society. It acknowledges the fallibility of human nature and compensates for it. Its spirit is one of determent rather than the idealised meting out of justice in proportion to the crime. This is so despite the central importance of justice in Islam.
It has been shown that the purpose of government in Islam is the facilitation of worship, which in Islam encompasses all deeds that are defined as good, and thus to effect man's salvation; and to produce a morally upright, God-fearing society. Such a society would, it is claimed, also engender a just government in a symbiotic relationship. Neither government, nor its themes are viewed as ends in themselves.
Although the Islamic State is opposed to popular sovereignty, it has within it many of the themes of modern democracy. However, there is a far greater emphasis on human duties than human rights, public and communal welfare over individualism and the morality is far more strongly integrated into law than in a modern secular state. The basis of just government in Islam is founded upon its ethics.
The dissertation has attempted to show that Islam does have themes for a practical contemporary Islamic state that could even have advantages over a western secular one.
1. Ali, Ibn Abi Talib, Nahjul Balagha, 7th century sermons of Ali ibn Abi Talib compiled in the 10th century by Syed Ali Razi, translated into English by Syed Mohammed Askari Jafery, Khorasan, Islamic Centre Karachi, 1977.
2. Rasa'il Ikhwan al-Safa, 4th century 52-volume encyclopaedic work in Arabic, Darul Sadr, Beirut, 1957
3. al-Ansari, Jalal, Ed., Introduction to the Systems of Islam, Al-Khilafah Publications London, 1996.
4. Hourani, George F., Reason and Tradition in Islamic Ethics, Cambridge University press, 1985
5. Esposito, John L. & Voll, John, Islam and Democracy, Oxford University Press, 1996.
6. Esposito, John L. Ed., The Oxford Encyclopaedia of the Modern Islamic World, Oxford University Press, New York, 1995.
7. Mitchell, Basil, Law, Morality and Religion in a Secular Society, Oxford University Press, 1970.
8. More, Thomas, Utopia, edited by Logan G.M., & Adams, R.M., Cambridge, 1996.
9. al-Nu'man, Sayyidna Qadi, Da'a'im al-Islam, 10th century work on jurisprudence, edited by A.A.Fyzee, Dar ul Maarif, Cairo, 1961.
10. Rahman, A., Ed., Muhammad Encyclopaedia of Seerah, Seerah Foundation London, 1988.
11. Inquiry, monthly magazine, issues of 1986 to 1988, published by Tropvale Ltd, London.
1 The classical period of Islam, between the 7th and 13th Christian centuries saw Islamic law and theories of philosophy and religion form. What was then developed has been relied upon throughout the rest of history as the sound basis of religion. Islamic societies led the world in its patronage of arts and its study of sciences. It was the Islamic civilisation at its zenith.
2 "Rasa'il Ikhwan al-Safa" states that religion is not merely the acts of prayer and fasting but the striving of for betterment in this world as well as in the hereafter.
3 The ummah, a word difficult to render in English, applies to the community of believers, the whole body of Muslims.
4 By ethics, we mean mainly normative ethics that attempt to define the nature of human character and give a philosophical existence and form to ethics itself. It is in effect the philosophical study of the source of morality.
5 Rasa'il Ikhwan al-Safa, vol. 10, pp 54-5
6 Da'a'im al-Islam vol. II, page 449
7 Da'a'im al-Islam vol. II, page 450
8 There is a case of a man accused of illicit sexual advances against his slave, who on having been found guilty, repented to the extent of freely choosing for himself the worst of 3 punishments available to him. His repentance was so heart-rending that the Imam elected to forgive him, saying that the Imam had authority to forgive. From Al-Majalis al-Hatimiya.
9 Sayyidna Qadi al-Nu'man, in his "Kitab al-Himma", a 10th century work, edited by Mustafa Ghalib and published by Darul Maktab al-Hilal, Beirut, 1979 gives an account on page 97 of a person having committed an act of indecency on a woman at the sacred Ka'aba is later accused and punished for stealing of which he is innocent. The man realises that the punishment he received is for the previous crime.
10 Mitchell B., "Law, Morality, and Religion in a Secular State", page 134
11 "Moral etiquette is prior to religion and the Command (of God) has priority above etiquette"
12 Wolfenden Report: paragraphs 13-15
13 Mitchell, B., "Law, Morality, and Religion in a Secular Society".
14 Ibid, page 15
15 Charter D. & Sherman J., "School chief sets modern ten commandments...", Times, 15.1.96
16 As above.
17 Sayyidna Qadi al-Nu'man, in his celebrated work, Da'a'im al-Islam, says on page 83 that the Prophet has unequivocally stated that "Seeking of knowledge is obligatory upon every Muslim man and Muslim woman" and also "Seek knowledge even if you have to travel to China for it."
18 Ameer Ali, in the "Spirit of Islam" says on page 271 "Not until the recluse of Hira (Prophet Mohammed) sounded the note of freedom, not until he proclaimed the practical equality of mankind, not until he abolished every privilege of caste and emancipated labour did the chains that held in bondage sections of the earth fall to pieces."
19 "Ye will not be able to deal equally between (your) wives, however much ye wish (to do so): But turn not altogether away (from one), leaving her as in suspense. If ye do good and keep from evil, lo! Allah is ever Forgiving, Merciful.", the Qur'an 4:129.
20 Burnham, John, "Is democracy possible? The alternative to electoral politics", Berkeley, UCP, 1985, page 9.
21 For example, see "Ujamaa, an experiment in African Socialism", J.K. Nyerere, Tanzania Elimu Press, 1968.
22 Ali ibn Abi Talib, the prince of the faithful, is held in esteem only second to the Prophet by the Shi'a Fatimi Isma'ilis. He is revered as the seat of knowledge and wisdom by all Muslims whose words they consider, in value as well as in prose, as second only to the Word of Allah, spoken through the Prophet. His influence on the history of the Islam is enormous. All mystic orders of Islam trace their ancestry to him as do all Shi'a sects. Even modern-day Arab socialists trace the roots of Arab socialism to him.
23 Nahjul Balagha, the sermons of Ali ibn Abi Talib, page 246
24 The letter eloquently states "I want to caution you about the poor. Fear Allah about their condition and your attitude towards them. They have no support, no resources and no opportunities. They are poor, destitute and many are cripples unfit for work. Some beg openly whilst others do not beg out of self-respect though their conditions announce their distress, poverty, destitution and want. For the sake of Allah, Malik, protect them and their rights. He has laid this responsibility upon your shoulders. You must apportion a share for them from the government treasury and also benefit them from a share in kind from crops..."
25 The letter says "Let the judiciary be above every kind of executive pressure or influence, above fear of favour, intrigue or corruption"