Islam and Constitutionalism

A Conversation with Sohail Hashmi Posted: Friday, June 6, 2003

Event transcript from the the November 22, 2002 conference with Professor of International Relations at Mount Holyoke College, Sohail Hashmi.

Hillel Fradkin: Our speaker today is Professor Sohail Hashmi. A graduate of Harvard and Princeton Universities, he is Professor of International Relations at Mount Holyoke College.

He has written a very great number and variety of articles on Islamic political thought and ethics, especially in the area of international affairs and international conflict. He is currently shepherding two and perhaps more books to publication.

Professor Hashmi has drawn attention in a number of his writings to one source of contemporary problems in Islamic history: Not only does Islamic political and intellectual culture lack a tradition of democratic political thought, but political thought altogether, once a vibrant field of Islamic intellectual endeavor, has fallen on hard times in the past several hundred years. Islamic political thought is ill prepared, in terms of its present resources, to guide Islamic political life period, let alone towards a democratic future.

Sohail Hashmi: What I would like to speak to you about today is Islamic constitutionalism and the prospects for democracy. This is a topic occupying a lot of my time at the moment, in the form of an edited volume entitled Islam and Constitutionalism. It’s an attempt by myself and my co-editor, Professor Houchang Chehabi, as well as some thirty-three other collaborators, to discuss the evolution of constitutional ideals in Islamic societies starting with the classical period of Islamic thought back in the time of the prophet Muhammad and the earliest community itself, then working our way up to the modern time and surveying in a very systematic way the experience of constitutionalism among Muslim peoples.

A Muslim engagement with formal constitutions and the ideology of constitutionalism dates back more than a century and a half. Today virtually all of the 57 or so Muslim majority states have promulgated written constitutions. Indeed the writing of a constitution is one of the first tasks upon which they embarked soon after independence.

But as we all know, its one thing to promulgate a constitution and quite another to develop a constitutionalist order able to support liberal democracy. Thus far in their political history, modern Muslim states have generally failed to realize either constitutionalism or liberal democracy. The record of those states that have sought to apply Islamic principles in their political structures -- for example by proclaiming that the Koran is our constitution, as in Saudi Arabia; or by declaring that sovereignty belongs to God, as in Pakistan and Iran -- is particularly disheartening for those who look to Islamic constitutionalism to provide a basis for liberal democracy.

These three countries’ experiences and those of many others -- for example, Sudan and Afghanistan -- prompts the question, "Is there something inherently authoritarian in the vision of an Islamic state?" This is something that can be illuminated by studying the process of writing a constitution and later in the struggle to interpret and apply it. This is a very complicated and indeed a very controversial question, a proper answer to which would take much more time than I have with you today. So I will, with your indulgence, examine this question with reference to the understanding and application of sharia, or divine law, as it is understood by many Muslims, and the tension that such an understanding creates with constitutionalism.

Before we look specifically at this issue, it may be useful to step back a bit and examine the relationship between constitutionalism and religion more generally. Constitutionalism is the idea that the political order is subject to a higher authority beyond arbitrary human changes -- either those of an autocrat or a democratic mob. Western constitutional theory may be traced back to roots in the natural law tradition of the ancient Greeks and Romans, particularly the Stoics. In medieval Christendom, this natural law was upheld by Catholic scholastics as being congruent with divine law, which was an aspect of the eternal reason, God, that nevertheless was discernable by all human beings exercising right reason.

Later theorists would diminish the divine element in natural law -- and instead of emphasizing the obligations inherent in natural law, they emphasized the rights of the individual in the face of society or the state. Still, constitutionalism remained wedded to natural law in the sense of holding human beings accountable to a relatively stable, one could say timeless, set of prescriptions on what government may or may not do toward its own people and what citizens may or may not do toward each other.

Although modern constitutionalism is often linked to liberal democratic regimes that operate according to the will of the majority while guaranteeing the equal rights of their citizens, this linkage does not theoretically have to be so. In the broadest sense, any regime that provides for limited and accountable government, adherence to the rule of law, and the protection of fundamental rights, may be said to embrace constitutionalism.

Today, formal written constitutions are so frequently an expression of democratic principles that we tend to forget the early democratic opposition to them. We tend to forget that it was an Anti-Federalist, Brutus, who defended popular sovereignty against the Federalist, Publius, who championed a constitution establishing a strong central state in the United States. It was Brutus who lobbied for the insertion of the Bill of Rights and thus strengthened the American Constitution as a genuine expression of constitutionalism. In general then, we could phrase the relationship thus: constitutionalism doesn’t require liberal democracy, but liberal democracy does require constitutionalism.

Now the relationship between constitutions, constitutionalism and democracy is one that has already been widely explored in the scholarly literature. The relationship between constitutionalism, democracy and religion, however, is one that has received scant scholarly attention. We don’t need to look far in the history of Western political thought or practice to understand the reasons why. Constitutionalism arose as part of a package of enlightenment ideals in which secularism occupied a very prominent place. Modern constitutionalism has generally been seen as a means of formalizing the secular quality of the political arena. The framers of the seminal documents of modern constitutionalism -- that is, the American constitution and the French revolutionary constitutions -- took great pains to either separate religion and politics or subordinate the church to the state. And political theory largely upheld the increasing secularization of politics as a defining characteristic of modernity.

Yet constitutionalism has never been entirely devoid of religious influences and significance. The debates in American constitutional law, centering on the interpretation of the First Amendment clauses respecting religion, testify amply to this fact. Even the apparent linkage between secularism and constitutionalism is extremely problematic in terms of both the process of constitution-making and the written constitutional documents themselves. This is because religiously motivated individuals and groups have frequently engaged in the process of constitutionalism in what we may characterize as both supportive and oppositional rules. And religion is frequently a part of written constitutional documents, again in both negative and positive expressions. This is true of some Western countries, but it is especially true for non-Western countries where constitutionalism spread along with other ideologies in the tracks of imperialism. In short, religion and constitutionalism have played extremely important inter-related roles in the political history of the past two centuries all over the world.

Based on the three characteristics of constitutionalism that I gave earlier, it’s not at all apparent or a given that religion and constitutionalism would necessarily conflict. The conflict arises to the extent that constitutionalism proposes a higher law, based upon rational deduction, that challenges the higher law based on divine command. The conflict is inevitable to the extent that divine law cannot be reconciled or accommodated with conceptions of natural law.

The legitimating appeal to religion reintroduces a source of tension which is perhaps the oldest in human nature: that between transcendent and manmade law. This tension between natural law and divine law -- or, phrased differently, between the conception of law and ethics as a sphere of rational interpretation versus more literal application of scripture -- is, of course, not at all unique to Islam. Controversies in Israel over the place of secular versus Jewish law in the life of the Jewish state have prevented, thus far, the adoption of a constitution in that country.

So now, I will turn to look specifically at the case of Islam. Controversies over this question that we have been discussing -- manmade versus divine law -- date back to the formative period of Islamic thought, perhaps to the time of the prophet Muhammad himself. The Koran was viewed in part as an expression of divine laws; as the Koran commands: "O believers, obey God, and obey the Messenger and those in authority among you." Naturally the problem that confronted the Muslim community immediately after the death of the prophet was how to interpret the Koran and the sunna, the traditions of the prophet, when they are silent, ambiguous or seemingly contradictory. The legal controversies that inevitably arose on this point in turn fueled a broader theological controversy centering on the question, "What makes God’s laws good or right?"

Although the debate was conducted by a range of writers over some two centuries, it centered by and large on the ethical objectivism favored by the school of Mutazilites, and the ethical voluntarism argued by their rivals, the Asharites. Let me say a little bit about this. The earliest schools of Islamic jurisprudence were established by men who advocated ijtihad al-ra’I -- that is, legal judgment based on reason, on human reason. The advocates of right found support in the ethical objectivism of the Mutazilites. Revelation could be supplemented by reason, the Mutazilites argued, because truth and falsehood, right and wrong, are objective categories independent of God’s will. Revelation supplements reason in confirming the value of certain actions, particularly those involving human beings obligations toward God, such as, for example, prayer, fasting, and other religious obligations. Nevertheless, reason unaided by revelation is adequate in confirming the specific dictates of revelation. And therefore, theoretically, even a conscientious non-Muslim could arrive at the right moral conclusions. It is clear that the Mutazilites were trying to reconcile Greco-Roman natural law arguments with Islamic conceptions of divine law.

This approach was challenged by later schools who espoused another form of ijtihad, another form of legal interpretation. This ijtihad was known as ijtihad al-qiyas, legal interpretation based on analogy. Instead of being guided by the public welfare, or principles of equity, the jurist according to this view was to deduce law through strict analogy with cases that were already to be found in the Koran and in the sunna of the prophet. This shift away from an emphasis on human reason and legal interpretation was mirrored by the rise of the Asharite school in theology, which fiercely denounced the ethical objectivism of the Mutazilites. The Asharites held that God’s power could not be subject to any objective ethical values; rather, ethical value was derived entirely from God’s command. Human beings discovered right action through God’s grace to his creation, through the scriptures, and the actions of divinely inspired prophets. These sources of divine law are the only arbiters of the moral content of specific actions. "He who does not validly know the law," Abu-l-Qasim al-Ansari wrote in the 12th century, "does not validly know that a bad action is bad."

By the end of the 12th century -- due in part to political reasons that had nothing to do with the intellectual merits of either of these contending viewpoints -- it was the Asharite position that emerged as the orthodoxy in Sunni intellectual circles. The triumph of the Asharites had profound consequences for the evolution of Islamic conceptions of ethics, of philosophy, and of law. Emphasis on revelation over reason places those most familiar with revelation -- the ulama, the religious scholars -- in an obviously privileged position, while increasing political instability coupled with pressures from various Abbasid Caliphs of the time forced these ulama toward greater and greater conservatism in their legal interpretations. In the 10th and 11th centuries, further development of the law was seriously curtailed with a fabled closing of the gates of ijtihad. This event is more mythical than real because of course legal interpretations certainly did continue, but the ethos that gripped Islamic scholarship was deeply resistant to change or critical inquiry.

As the sharia became more and more closed to fresh interpretation, while Muslim societies continued to change and encounter new problems, extra-sharia legislation developed parallel to it. This siyasa-sharia, or qanun as it was labeled, was treated by the jurists as the realm of manmade laws tolerated by them for pragmatic or utilitarian purposes. But their qualified acceptance of such manmade laws is clearly reflected in the statement of one of the greatest thinkers of his time, none other than Ibn Khaldun, who wrote in the 14th century, and I quote, "That state, therefore, whose law is based on violence and coercion, and gives full play to the irascible nature, is tyranny and injustice and, in the eyes of the law, blameworthy, a judgment in which political wisdom also concurs. Furthermore that state whose law is based upon rational statecraft and its principles, but lacks the supervision of the revealed law, is likewise blameworthy, since it is the product of speculation without the light of God. For the Lawgiver knows best the interest of men in all that relates to the other world, which is concealed from them. The principles of rational government aimed solely at apparent or worldly interests whereas the object of the Lawgiver (God) is man’s salvation in the hereafter. It is imperative therefore by the very nature of revealed laws to bring the whole people to conform themselves to their ordinances in all matters of this world and the next. And this rule is the rule of the Lawgivers (the prophets and of their successors, the Caliphs). And this is the true meaning of the Caliphate."

Beginning in the early 19th century, constitutional ideas began to creep into Muslim states as more and more Muslims traveled and studied in Europe. But what impressed early Muslim visitors about constitutionalism was not so much the secular foundations of Western constitutions as it was the orderly procedures of government, that constitutionalism provided. For example, one of my favorite examples, Mirza Abu Talib Khan -- I believe he is the third known Indian who visited Europe at the turn of the 19th century -- records in his famed travel log, the Masir-i-Talibi, how impressed he is with the rules for succession to the English throne. The wars of succession that had repeatedly racked the Mogul Empire no doubt influenced his views. He wasn’t however favorably impressed with Parliament, which reminded him of a flock of parrots incessantly squawking at each other as they debated. Mirza Abu Talib noted rather incredulously, that the British parliament legislated according to its own wits without the assistance or the constraints, as he observed it, of divine law.

As the 19th century wore on, the need to reopen the sharia to reinterpretation and reform was one of the driving forces underlying the advocacy of constitutionalism among various Muslim reformers. For these men, constitutionalism was the supreme manifestation of the new ijtihad; it was a legitimate vehicle for the reconceptualization of Islamic polity and the creation of new and more effective political institutions that reflected the true purposes of the Islamic ethical sources. But from the beginning, the reformers faced concerted opposition from the ulama and other conservatives who viewed constitutionalism as human tampering with the sacred law. According to this view, the sharia is the immutable Islamic constitution, so humans are limited to law-finding rather than law-making. Significant differences also arose over the credentials of those who may engage in this process of law-finding and the extent to which this effort may be taken.

These serious differences in understanding of the constitutional process and the meaning of the constitution in national life have obviously had profound consequences for Muslim societies. They have often stymied the development of genuine constitutionalism or they have led to the demise of the constitutional enterprise altogether. Let me provide some illustrative examples.

The first comes from Tunisia, which in 1861 became the first Muslim state to promulgate a constitution. The constitution itself was preceded by a document known as the `aqd al-aman, the Pact of Security, which enumerated the rights of Tunisian subjects -- particularly of those of non-Muslims. The committee set up to write this particular document, the Pact, initially consisted of both nonreligious scholars as well as a number of the leading Tunisian ulama. In the middle of the drafting process, the ulama bolted from the committee en masse. The reasons for their abrupt departure are still unclear and I know because I have probed them and asked various people to probe this issue on my behalf. The reasons are unclear, but one explanation that is widely given is that these ulama felt uncomfortable participating in an enterprise they considered alien to their role as defenders of the sharia. Some ulama did participate later in the judicial system that was created by the constitution, but the leading ulama made no attempt at ijtihad, no attempt to interpret Islamic laws according to their current conditions. Instead they persistently appealed to legal rulings that had been rendered by the classical jurists in earlier centuries. They thus undermined the spirit in which the constitution had been drafted and they contributed significantly -- through their acts of both omission as well as commission -- to the abrogation of the constitution in 1864.

The second example comes from Iran. The constitutional movement of 1905 to 1911 resulted in bitter disputes among the Shiite ulama over their role in the process of drafting the constitution and over the role of the constitution itself in the life of the faithful. A glimpse into the rival positions is provided in two tracts. The first by the pro-constitution alim Shaykh Muhammad Na’ini: "The soundness and completeness of the constitution," Na’ini writes, "arises from its dealing with all affairs necessary to the well being of society, with the proviso that none of the constitution’s provisions should be in contradiction of the holy law of Islam." For Na’ini, legislation under the constitution must be restricted to the limits established by the sharia. But he doesn’t specify exactly what those limits are. What’s really noteworthy about Na’ini’s tract is that he doesn’t limit the legislative function to any particular group. He writes only very generally, "There must be reliance on the elements of perfect stewardship or guardianship, calculation and responsibility and the entrusting of a group of people gathered in a consultative assembly which is composed of those who are the enlightened ones of the country and the good intentioned. Thus the whole intellectual power of the country is put into the service of the people within the official setting of the national consultative assembly."

In marked contrast to Na’ini’s views are the opinions of Shaykh Fazlullah Nuri, a leader of the anti-constitution camp among the ulama. What particularly aroused Nuri’s ire were the legislative provisions of the constitution. Nuri characterizes them as "an innovation and downright aberration," because in Islam no one is allowed to legislate or to establish a provision. Islam does not have any shortcoming that requires completion. Concerning new incidents that may emerge, it would be necessary to refer to the ulama, who would then deduce the relevant provision from the Koran and the sunna -- but they cannot make law.

Similar controversies erupted in 1979 when the constitution of the Islamic Republic of Iran was being drafted. This constitution was framed entirely in light of Ayatollah Khomeini’s notion of the vilayat-i faqih, the direct role of the Shiite jurisprudent. And so the Iranian constitution today incorporates into its framework an explicit guardianship role for not just the Shiite ulama as a whole, but for one of them in particular, the guide, as he is referred to in the constitution. The supreme guide is assisted in the task of insuring that no law passed by the parliament, the Majlis, contravenes the principles of Islam by a 12 member Council of Guardians. The council proves such an impediment to the Majlis’s legislative functions that Khomeini himself established what has come to be known as the Expediency Council to arbitrate disputes between these two institutions. Upon Khomeini’s death in 1989, this Expediency Council was formally instituted by amending the Iranian constitution, but its existence has not broken the logjam between the elected reformers in the Majlis and the appointed conservatives on the Council of Guardians.

Another prime example comes from Pakistan. Pakistani constitutionalism has grappled with the complexities of framing an Islamic constitution ever since the 1949 Objectives Resolution of the first Constituent Assembly proclaimed that the state would be built on Islamic principles. Very quickly, the reform of sharia emerged as one of the most contentious issues in the new Islamic republic. In 1955, by act of the Pakistani National Assembly -- which was still meeting without a constitution because the Pakistani constitution was not promulgated until 1956 -- a commission on marriage and family laws was formed consisting of six lay members, nonreligious experts and one representative of the ulama. Its purpose was exploratory and advisory. The commission was to consider the applicability and the possible revision of Islamic family law in light of the modern conditions of the Pakistani people. The commission’s investigations and recommendations were released the following year, but in two separate reports.

The majority report reflected the consensus of the committee’s lay members and it begins with the traditional acknowledgement of the "comprehensive and all embracing nature" of Islamic law, the sharia. But then it very quickly proceeds to argue that since no code of law can comprehend the infinite variety of human relations for all occasions and for all ethics, the commission was justified in proposing the reform of laws pertaining to such fundamental issues as marriage, divorce and inheritance. The Islamic rationale presented for this revision was, once again, the principle of ijtihad, which the majority report enshrines not only as the dynamic force underlying the sharia, but indeed as a basic right of each Muslim generation. The discussion of ijtihad concludes with a ringing expression of the modernist position: "No Muslim can believe that Islam is an outworn creed incapable of meeting the challenge of evolutionary forces. Its basic principles of justice and equity, its urge for universal knowledge, its acceptance of life and all its aspects, its worldview, its view of human relations and human destiny, and its demand for an all-around and harmonious development, stand firmly like a rock in the tempestuous sea of life."

Very poetic and eloquent, but it didn’t sway the sole religious representative on the committee. The lone dissenting opinion from the majority’s claimed right of legal revision came from the committee’s only religious scholar. Maulana Ihtisham ul Haq writes that the institution of a committee comprised of individuals ignorant of Islamic jurisprudence negates the very possibility that the commission’s detailed inquiry into technical points of the sharia could be valid. A far more vigorous attack on the majority position focuses upon the lay members’ claim to be conducting ijtihad. Ihtisham ul Haq writes, "To consider personal and individual whims to be a legitimate form of sharia interpretation is not ijtihad, it’s only a distortion of the religion of God and the worst type of heresy ... Certain recommendations, which reflect subservience to the West of some of the members and their displeasure with Islam, constitute an odious attempt to distort the holy Koran and sunna with a view to giving them a Western slant and a Western bias."

The majority report was eventually pushed through the Pakistani National Assembly, but it didn’t happen through any kind of democratic process. It happened under the dictatorship of General Ayub Khan. Under the Zia ul-Haq government, Muslim personal law had to be explicitly singled out as the one area of legislation beyond the purview of the federal sharia court. But the ulama and other conservative elements have lobbied incessantly that this exception to the court’s jurisdiction be lifted and the true sharia be applied. And many of the leading ulama in Pakistan with whom I’ve spoken are confident that it is only a matter of time before they are able to have this exception lifted.

So to conclude, how can we think about resolving this tension that I have been discussing? What possible ways are there to accommodate liberal constitutionalism with Islam when so many Muslims view sharia as divine law, in opposition to manmade law which is inherent in the notion of constitutionalism?

One obvious path is to embrace secularism outright. The experience of Turkey under the newly elected AKP and the politics of moderate Islamic parties in Malaysia and Indonesia will be quite important in the years to come, if these experiments are allowed to continue that long. It will be quite important to see if religious parties that are based on claims to be applying Islamic principles to their national life can, in fact, accommodate to secular politics. A number of prominent Muslim activists and theorists do in fact argue for precisely that. But I think that the secular path, the path that attempts to divorce Islam completely from political life, will be a difficult one if not an impossible one for other countries to follow. In other countries, the experience of the past fifty years has shown that Islam must be incorporated into the constitutional order or the risk is that it will be a source for agitation and challenges to that order. So in my opinion, the task for Muslim constitutionalists is not to discard Islam -- it is to find the resources within Islamic thought that permit the development and sustaining of constitutionalism.

How can we do that? One of the first tests in the process is to assert the possibility of natural law and especially natural rights within an Islamic framework. This will require, to some extent, a resurrection and a dissemination of the early Mutazilite emphasis on ethical objectivism -- that all human beings possess this important rational faculty as a God-given faculty to discern right from wrong and to form moral conclusions on how to order their lives apart from one or another revelation. Professor Abdulaziz Sachedina has recently suggested in a book called Islamic Roots of Democratic Pluralism that a conception of natural law is evident in the Koranic concept of fitra, which basically means that all human beings are united in sharing a basic moral awareness, a moral consciousness.

The second task is to develop a societal consensus that ijtihad is indeed the birthright of all Muslims. And that each Muslim generation has not only the right but the duty to understand the Koran and the sunna in light of their own needs and their own circumstances. Far from being heretical, some Muslim scholars -- such as the late Professor Fazlur Rahman -- have argued that this view was in fact the understanding of sharia for the earliest Muslim generations. It was certainly, as I’ve tried to show, the methodology embraced by the earliest legal scholars, the ones closest to the prophetic community. These scholars gave as much importance to istislah, the notion of public welfare, and istihsan, equity or fairness in law, as they did to custom or dogma.

The third possibility is to reopen an old, old idea and to give it new content in the twenty-first century. This is the idea of divine sovereignty as a check against human tyranny. I mentioned earlier that many of the classical ulama of the Abbasid period resisted tampering with the sharia because of the theological argument that to do so would be to tamper with divine law. Well that is certainly one motivation, the ideological, theological motivation. There was another very practical political reason involved as well. By upholding the immutability of the sharia, the jurists were not seeking to enforce any specific legal points that comprised the sharia; they were instead trying to uphold the rule of law. They were trying to prevent the transformation of the sharia into an instrument of tyranny at the hands of what were already widely considered at the time to be corrupt rulers.

Modern Muslims can likewise embrace the same conception of sharia and apply it to their own political realities, which are, objectively speaking, not so far removed from those of the early centuries. They must start by approaching the Koran as a book of practical morality, not as a compendium of legal minutiae. The sum total of the Koran’s morality can be conceived of as the sharia. So sharia must be disentangled from the notion that it is divine law, because divine law in this case is, as many Muslim modernists have pointed out, not God’s revelation but fiqh, the human interpretation provided by the early jurists that came over the centuries to be enshrined as God’s will. If the sharia is understood not as a law book or code of law, not as a set of detailed legal requirements, but as the moral foundation for constructing a political order, if it is understood as fundamentally enjoining the principles of justice, equality and the submission of human beings to a transcendent authority, then in fact it can serve as a check upon arbitrary human rule, upon authoritarian regimes that dictate laws to their people. Sharia in this conception can play the role that in fact constitutions play in a constitutional order.

DISCUSSION

Hillel Fradkin: You mentioned my teacher, Fazlur Rahman. He was appointed under Ayub Khan to mediate the tension between the sharia and the constitution by being head of Pakistan’s Central Institute of Islamic Research in the 1960s. That effort failed in a very dramatic way; he was driven out of the country and exiled. Is there something to be learned from that failure about how the modernizing change that you described might come about in the Islamic world?

Sohail Hashmi: I think the most profound and revolutionary changes are happening gradually on the so-called Islamic periphery. By that I mean Malaysia and Indonesia, where I really have high hopes for some kind of model to be developed over time. I would include in the periphery Muslims in Europe and the United States, where it is a whole brave new world for Islam. And here I think there are a number of Muslims who are very much American but feel strongly committed and grounded to their native societies. Certainly there are a number of potential candidates to aid the process of this intellectual revival who live in and were educated in the United States, but who could easily be influential back in their own countries. So as Fazlur Rahman said, the key is education. And he devoted the end of his life to discussing the problems of Islamic education.

And as we all know, constitutionalism itself is a very gradual process. We know that from our own experience here in the United States. Constitutionalism doesn’t spring full bloom into existence. It’s learned sometimes by very terrible mistakes.

Abdulwahab Alkebsi: There are other examples of Islamic constitutionalism, including the constitution of the prophet himself in Medina. It was a secular constitution -- a constitution for Muslims, Jews and atheists to live together as one nation under a secular regime.

Sohail Hashmi: The constitution of Medina is a very good example of a fusion of secular and religious ideas because it was not a single written document. More than likely, it was a series of contracts that the prophet forged first with the Muslims who had migrated from Mecca to Medina in 622, and later with the Jews and also some pagans who had not converted to Islam in Medina. So it’s a series of contracts which are compiled together in what is referred to by Muslim historians as the "Sahifa," the document -- that is, the foundational document of the community of the prophet.

It doesn’t really provide for details in terms of the political structure of the Medinan state, but it does fuse the Muslims into a transcendent sort of identity -- the identity of a Muslim umma, an umma that is superior to but does not necessarily destroy the tribal identities of the Muslims. Of course as you know, the tribal identities were paramount before the rise of Islam. So it creates an ethical basis for Muslim action.

In the past, the ethos of pre-Islamic Arabian tribes was "my tribe, right or wrong." The Islamic ethos is now: the umma when it is right, but go with your own conscience if the umma is wrong. The constitution of Medina is an assertion of a higher authority, divine law, above any kind of manmade assertions of what is right and wrong.

What is really quite intriguing is that the Jewish tribes were incorporated into this document. As the document itself says, the Muslims are an umma and the Jewish tribes are an umma. Muslim scholars have debated back and forth: Were the Jews integrated into the Muslim umma or were they conceived by the prophet as a separate community enjoying autonomy alongside the Muslim umma? My own view tends towards the latter conclusion because, as the document says, the Muslims had their religion and their laws, and the Jews had their religion and their laws -- but nevertheless they are all part of one overarching confederacy.

David Abramson: These sorts of transformations are also influenced by Western concepts. Would it be possible to discuss these matters in a way other than in terms of a West, anti-West dichotomy?

Sohail Hashmi: I think that is an important point that certainly Muslims should feel free to borrow from what is best in other traditions. And in the case of democracy, I think the strongest case that can be made for democracy by Muslims is not that the Koran is a democratic document, as we often hear. It strikes me as a very polite kind of statement that you can find in one verse of the Koran the notion of shura, or consultation and therefore claim that the Koran is a democratic document. That is a bit of a stretch. I think the way to really argue for compatibility of democracy and Islam is on the basis of what human experience is shown to be in the best interest of human beings. What allows them to flourish? What allows them to become good moral decent people? And I think democracy has shown itself, with all of its faults, to be the political system that allows that to happen.

So one can argue for that on utilitarian grounds as well as natural law. The resources are there. One of the exciting parts of our project on Islamic constitutionalism is that we have asked our contributors to try as much as they can to identify how classical Islamic thought might have influenced and greatly contributed to the development of constitutionalism among Muslims beginning in the nineteenth century. It’s obvious the West influenced constitutionalism in Islam but there are also indigenous sources that influenced the rise of these movements.

Participants

David Abramson, Office of International Religious Freedom, U.S. Department of State
Abdulwahab Alkebsi, Center for the Study of Islam and Democracy
Hillel Fradkin, Ethics and Public Policy Center
Sohail Hasmi, Mount Holyoke College