God’s Rule and the People’s Rule
• Sep 30th, 2002 • Category: Works On SoroushExcerpted from draft of Noah Feldman, After Jihad: America and the Struggle for Islamic Democracy (forthcoming Farrar, Straus & Giroux Spring ’03). Not for quotation.
How, exactly, might Islam and democracy coexist? The sine qua non of democracy is collective self-government through popular elections. If one looks at the medieval classics of Islamic political theory, though, such elections do not figure. Nor have governments in Islamic history, from the earliest period until today, relied on popular elections when choosing their leaders. Yet in recent years, various proposals for Islamic democracy built on consultation, consent of the governed, and political pluralism have emerged. Islamic democrats–from intellectuals like Tunisian exile Rachid Ghannouchi, to politicians like President Mohammad Khatami of Iran, to ordinary Muslim would-be voters–all have subtly different views about the nature of Islamic democracy. But their arguments converge at certain points, and can be combined to give an overview of the theory of Islamic democracy.
The central element of all these proposals is a rich conception of the Muslim community or umma. The first Muslim community was organized out of tribes whose pre-Islamic identities derived from intense, complicated structures of tribal solidarity. Tribes had their own poets who sang the tribes’ history and glories. They had their own holy men and gods, and their own tribal war-cries handed down for generations. The Prophet convinced the members of these divided tribes to see themselves as united by a belief in God and in Muhammad’s prophecy. Adopting Islam meant transcending tribal solidarity to put one’s identity as a Muslim and a member of the community of Muslims first. That the Prophet’s revolutionary message of community-formation succeeded in such an inhospitable environment is testament to its appeal, and to the early Muslims’ capacities to imagine themselves in new ways. The coalescence of the Arab tribes under the banner of the Muslim community was as remarkable as it was formidable.
As Islam spread through the Near and Middle East, the idea of the community became ever more capacious, expanding across ethnic, linguistic, and geographical boundaries. The community of the Muslims did not eliminate these other forms of identity, nor seek to make them disappear, but presented itself as a point of unification beyond and above other kinds of identity. The community of the Muslims was a community of faith, but also a political community, governed during the Prophet’s life on the basis of legislative direction provided by God. After Muhammad’s death, however, prophecy ceased, leaving questions of who would rule, and on what legal basis. In the voluminous and highly speculative literature about the early years of Islam, there is a general consensus that the first rulers of the community adopted the title “Caliph” (Arabic khalifa), which means a delegate or a viceroy or a replacement: someone who stands in for someone else. Whether the caliphs were stand-ins for the dead Prophet or delegates of God Himself turns out to be a difficult historical question that remains unresolved with respect to the early caliphate. In any case, from the beginning of Muslim history, the caliphs were understood to be selected by people, not God; they were subject to God’s law as described in the Qur’an and the sayings of the Prophet; and they were expected to engage in some sort of consultation with the community they governed. These features of early Islamic political theory provide the basis for all modern theories of Islamic democracy.
Early Muslims agreed that the caliph was not to be chosen by God, but nominated and then approved by a group of people with the power to “loose and bind.” “Loosing” and “binding” are legal metaphors for binding people to allegiance to a government, or absolving people of the responsibility to obey. Once the caliph was nominated, he then had to be approved through an “agreement” (the Arabic word, bay’a, means any contractual agreement, especially a commercial one) in which the binders and loosers formally gave their agreement to his ascension to the position of caliph. This bound the community of the Muslims to obey the caliph; but as the concept of “loosing” suggested, the people may in theory have retained the power to displace the caliph if he did not keep his side of the bargain.
Like any historical evidence of ancient constitutional practices, the agreement between the caliph and the people who loose and bind has been subjected to various interpretive strategies over the years. Medieval political theorists tried to make sense of the agreement in ways that would legitimate caliphs and caliphal-aspirants who had no intention of letting anyone but themselves have constitutional authority. Many Islamic modernists, however, and some Islamists today, see the roots of modern democracy in the nomination of the caliph and the agreement between the caliph and the binders and loosers. The caliph does not ascend the throne, but is selected–or if you will, elected–by a group of people who represent the entire Muslim community. His authority therefore derives, they argue, from the consent of the Muslim people. This is the consent of the governed in capsule form.
The caliph, or any other ruler who might be appointed in the absence of a qualified and effective caliph, has the task of administering Islamic law, not of making it. Islamic law derives ultimately from God, but it is interpreted by the scholars and by the community as a whole through the consensus of the community. The ruler is subject to the law, not above it. The Islamic state is a state of rights and law, not arbitrary or absolute power. In it, the ruler is accountable to God and to the people who have assented to his rule.
And once the ruler is in power, he must follow the Qur’anic command to engage in consultation (shura). The nature of this consultation is not specified in any detail in the Qur’an, which leaves a great deal of room for speculation and argument. Indeed the proceedings of a conference on the subject of shura and democracy held at al-Azhar in 1997 fill three thick volumes. But in recent years, Muslim political theorists have argued that it amounts to a robust exchange of political views, expressed through elections that give bite to the opinions expressed by the people. In this process, opinions will differ, but this, too is anticipated by the disagreement on questions of Islamic law that the community of the Muslims has always tolerated as an inevitable result of human disagreement about what God’s word means. While some critics object that consultation can never be binding, others try to make it obligatory for the ruler to follow the people’s will, or lose his post. This is particularly plausible if the ruler is not a caliph, but simply a person chosen to lead by virtue of being elected to the job.
It is tempting to undermine this sketch of the “binding and loosing” theory by asking how plausible it is in historical terms, or by assessing the ways that contemporary Muslims have distorted such classical theories in order to rationalize new forms of governance. Historically valuable as such an exercise might be, it would profoundly miss the point–which is that many modern Muslims see in their tradition the seeds of democratic structure. The question is not whether that democratic structure is “really there” in early Muslim history or classical Islamic political theory; that is an interpretive question for Muslims to address. What matters is that potential democratic readings of Islamic tradition are possible, and that Muslims today are reading their tradition are their tradition that way.
This precis of the theory of Islamic democracy is just the beginning of a full fledged account of Islamic democracy, ruled by an elected leader responsible to law and the people. There are various ways in which Islamic democracies might shape the relationship between elections, legislatures, and Islamic governance, while remaining true both to some form of democracy and to some form of Islam. All have been suggested by various Muslim thinkers.
One possible Islamic state would guarantee equal rights and freedom of religion to all its citizens, Muslims and non-Muslims alike. What makes such a state Islamic might be simply a declaration that Islam is the official religion of the state, and perhaps some commitment to this ideal in the symbolism of flags, oaths of office, prayers of invocation, and state support of mosques. Assume all these activities were decided by a large majority vote, and that Islamic law did not form the basis for the laws of the state. The state would be Islamic in much the same way that Britain is Anglican Christian.
Such a state could surely be counted as a democracy. The existence of an official religion does not necessarily infringe on any basic right. That does not mean that the declaration has no effect on non-Muslims, who are being told that, in some sense, their state chooses to ally itself with beliefs they do not share. Non-Muslims will likely feel their minority status keenly. They may feel awkward, uncomfortable, or even insecure. But so long as the decision to make Islam the state religion follows a democratic principle of collective self-government, the declaration of Islam as the official religion is democratically justified. The harm to non-Muslims may be real, but it does not differ from the harms suffered by religious minorities elsewhere, such as British Muslims.
A second possible Islamic democracy might adopt a provision in its constitution announcing that classical Islamic law shall be a source of law for the nation. This is a very popular suggestion among Islamists as a step towards the creation of an Islamic state. Pakistan and Egypt both have versions of such provisions in their constitutions. If the people have in fact chosen this constitutional provision legitimately, then there is a sense in which this is nothing more than a constitutional decision following from electoral politics and expressing values shared by the great majority. In another sense, though, the injection of Islamic law or its values into the state’s legal system creates a backdrop for laws that will be passed later. That shari‘a backdrop places Islam and traditional or believing Muslims into a potential alliance with the state. Muslims might be able to relate to the laws of the state differently from non-Muslims. Even if we assume that making shari‘a into a formal source of law means that the people could choose not to adopt classical Islamic law whenever they wanted, the constitutional provision still sets the default, making it easier for Muslims than for other people to get laws passed that accord with their preferred values. This places non-Muslims (as well as secular Muslims, sectarian Muslims, or those who argue that shari‘a must evolve) at a distinct disadvantage in the political sphere, even if they get to vote and participate in elections.
This is a real problem for imagining Islamic democracy, but it is not insurmountable. An Islamic state that acknowledges classical Islamic law as one source of law among several is still not embracing Islamic law in its totality. The state can still make sure that basic rights are observed and that the state treats everyone equally. As I shall explore in a moment, Islam itself does not need to be interpreted as insisting on the second class citizenship of non-Muslims. So long as the state protects non-Muslims and treats them equally, this state, too, might be compatible with democracy.
A third possible Islamic state might adopt Islamic law as its exclusive legal system. The legislature could accomplish this by enacting, law by law, a code of rules that correspond to Islamic law. There actually is such a code in existence, enacted in the later phases of the Ottoman Empire in an attempt to bring codified order to the classical Islamic law. This code, the Majalla, was used as a model for many codes of law that exist in the Muslim world today. In practice, the legislature would have to choose just one interpretation of Islamic law for each of the provisions that it chose. This approach sounds as if it is consistent with democratic practice, since it involves a series of decisions by a democratically elected legislature.
Alternatively, an Islamic democracy might adopt Islamic law across the board by enacting a constitutional provision stating that classical Islamic law shall be the law of the land. Classical Islamic law is more like old English common law than like statute law. Instead of statute books full of hundreds or thousands of codified legal rules, classical Islamic law consists of the opinions of scholars and judges throughout the ages, recorded in everything from books of legal theory, to reports of actual cases and decisions, to handbooks of hypothetical cases. The scholars disagree, and the diversity of opinions on many legal questions is one of the glories of the classical Islamic legal tradition. All these legal sources reflect interpretations of the Qur’an and the sayings and actions of Muhammad and his companions, but the interpretations often differ. Saudi Arabia uses this full-blown system of classical Islamic law, alongside a modern statute book that adopts just one version of a rule of classical Islamic law. So when a Saudi judge considers a difficult legal case, he (and it is always he) must make sense of this broad body of knowledge, and distill it to its essence for the particular case.
Such a system puts power in the hands of unelected judges, not the people. But the same is true of English or American common law in which the law cannot be found in just one code or statute book, but must be discovered or invented by judges who look to the body of received opinions to decide the case before them. The common law still governs many legal matters in the United States, from traffic accidents to breaches of contract and even some crimes, without our believing that it upsets our democracy. The reason is that the legislature has voted to adopt the common law, just as the people have chosen to apply Islamic law across the board in our imagined Islamic democracy. So long as there are continuing elections and a changeable constitution, the people could step in and change that rule if they wanted to, by changing their constitution. If the people never had a chance to decide whether to follow Islamic law or not, then their choice was not democratic. Saudi Arabia is not a democracy, because there was never a vote by the people to adopt Islamic law. But if a people democratically enacted a constitution that provided for the use of classical Islamic law, then we might be able to say that this choice was democratic. This is true even though the specific provisions of Islamic law derive from religious tradition. Many laws that are enacted by democracies have their roots in religious ideals and values. Western laws against murder, theft, and adultery (still on the books in many U.S. states) all can be traced to the Ten Commandments.
Once a basic picture of Islamic democracy is in place, it becomes easier to see why Islam and democracy need not be incompatible if both are conceived as flexible, simple, mobile ideas. Start with the essences of Islam and democracy, which might appear to be incompatible. The word “democracy” means the rule of the people. The essence of Islam is often said to lie in its basic meaning: submission to God, or more felicitously, recognition of God’s sovereignty. It would seem that either the people or God could be sovereign, but not both. The title of one of the many recent Arabic books on the topic of Islam and democracy nicely captures this problem: The Rule of God, the Rule of the People.
The key to resolving the apparent incompatibility is to look more closely at what we mean by sovereignty. Intriguingly, even the U.S. Declaration of Independence does not expressly say that the people are sovereign, but rather that all men are created equal, and endowed by their Creator with certain unalienable rights. An unalienable right cannot be eliminated even if the people vote to abrogate it. Unalienable rights therefore place a limit on the sovereignty of the people, even in a democracy. If some rights come from God, and the people cannot alienate or override those rights, then isn’t God sovereign, and not the people? Yet no one would say that the Declaration of Independence is undemocratic.
The bottom line is that even in a democracy, the place of sovereignty is complicated. The people may rule with respect to some issues, but other issues are off the table, with the rules coming from some other source, such as a theory of fundamental rights. Although the Constitution, which the people can amend, never mentions unalienable rights or God, the Bill of Rights does speak of certain pre-existing rights that are retained by “the people.” Referring to the U.S. Constitution does not absolutely prove that the essence of democracy lies somewhere other than the sovereignty of the people–perhaps the Constitution is undemocratic in some ways–but it does show that some schemes that most observers would recognize as democratic acknowledge that the people need not be sovereign in the sense of having the last word on every question. That alone opens up some space for us to see how the essences of democracy and Islam might be compatible.
The word “Islam,” for its part, does imply recognition of God’s sovereignty. But a Muslim might acknowledge that God is sovereign over everything, and also believe, at the same time, that God has left it up to humans to govern themselves on every subject on which He has not provided a definite law or view. Suppose you are a Muslim, and you accept that God said, in the Qur’an, that “there is no coercion in religion,” so that religion must be chosen freely. If you believe that, then the people cannot pass a law coercing Jews or Christians to accept Islam. God has spoken, and God is sovereign. The same might be true of the penalty for murder. As a Muslim, you might believe that capital punishment is only permissible for a murderer who has been tried and convicted based on the eyewitness testimony of two reliable men. God has set this limit on the penalty, through His message as interpreted by Islamic law, so the penalty is off the table if there is only one witness, even if we know the culprit is guilty. This belief is no different in its structure than what some democrats think about basic rights.
Acknowledging God’s sovereignty does not require believing that God has left no room for people to rule themselves. A Muslim can believe that God allows humans to rule themselves however they want so long as they adhere to the basic rules on which He has spoken. If you believe this, and also accept that democracy does not require the absolute sovereignty of the people, then you have the makings of an Islamic democrat. Of course as a Muslim you might also think that God’s sovereignty is only in the sphere of the personal, not the collective. If you have such a view, you may not feel a need for a distinctively Islamic democracy. It will be enough to be a democrat in public matters and a Muslim in private matters. But Muslims who accept God as sovereign and think that God’s sovereignty extends beyond the private sphere can be Islamic democrats in the way just described.
Another possible way for people who accept God’s sovereignty to think about democracy is to think of the people as a whole as entrusted with the collective power and responsibility to interpret and apply God’s will on earth. This view does not emphasize a particular sphere in which God has left things up to the ruler. Instead this view says that humans need to make sense of how God wants us to govern. It is up to the community of Muslims to perform that task, and they can and must do so collectively. The Iranian writer Abdolkarim Soroush has expressed a view similar to this one.
The appeal of this view for someone who wants Islam and democratic theory to cohere is that the community has tremendous discretion in interpreting Islam and enacting laws that embody its spirit. Democratic decisionmaking can extend to every area of life and of law. One limitation of this theory, though, is that it is apparently the Muslim community alone that is entrusted with the task of interpreting and applying God’s word. That is all well and good for Muslims, but it excludes non-Muslims. If self-rule consists of figuring out what God wants within the framework of Islam, then non-Muslims will not be full-fledged participants. The answer that minorities in any democracy are excluded when they do not share the fundamental values of the majority may be unsatisfying to someone who thinks that equality is a touchstone of democracy. But perhaps non-Muslims could be permitted to participate in the democratic discussion of God’s will, even if they are not full members of the community.
The essences of Islam and democracy can be seen as compatible because both are flexible mobile ideas. If democracy were restricted to requiring the absolute sovereignty of the people, it would lack the ability to appeal to people and to cultures that do not place humans at the center of the universe. But democracy has flourished even where humanism was not the dominant mode of thinking. Modern Western democracy grew up among pious Christians, many of them staunch Calvinists who emphasized man’s sinful and fallen nature, and themselves grappled with the relationship between democracy and divine sovereignty. Most Americans today probably believe that God, not man, is the measure of all things. It is doubtful whether the majority of Indians place humans at the center of the universe, yet democracy thrives in India. The idea of the rule of the people has been flexible enough to mean that the people or God or nature or nothing is sovereign. On any of these views, the people still govern themselves within the area delineated by their capacities and rights.
Islam has demonstrated a comparable degree of flexibility in its essence. Acknowledging that God is sovereign turns out to mean different things to different people. It has encompassed the idea of free will for some people, while others have thought that a sovereign God must leave nothing to chance or choice. Rationalist Muslim philosophers thought that God was sovereign in the sense that he was the First Mover. Sufi mystics believed that God was sovereign in that God was Truth itself. Islam has been compatible with a number of different systems of government. The flexibility inherent in the essential Muslim idea of acknowledging God’s sovereignty enables Islam to be compatible the essence of democracy if defined flexibly enough.
If the essences of Islam and democracy can be compatible, what about the practical institutional arrangements required by each? In particular, Islam, on most views, requires that the state not exist in an entirely separate sphere from religion. Can a state that embraces religion be democratic? Britain has no separation of church and state. The Queen is Defender of the Faith and head of the Church of England. Anglican bishops sit in the House of Lords, and anyone who wants to change the Book of Common Prayer must go through Parliament to do it. Yet Britain is the cradle of modern democracy. To take another Western European example, in the German state of Bavaria, the schools are Catholic religious ones, and every classroom boasts a crucifix. No one seems to think that this makes modern Germany into something other than a democracy.
On the other hand, some people object vociferously to the suggestion that it might be possible to have democracy–especially liberal democracy–without separation of church and state. They argue that to be just to everyone, democracy cannot impose one vision of the good life. Liberal democracy requires government to remain neutral about what values matter most, and to leave that decision up to the individual. If religion and the state do not remain separate, the state will inevitably impose or at least encourage the version of the good life preferred by the official religion.
It is necessary for a democracy worthy of the name to respect the individual’s right to worship as she chooses, and to provide religious liberty for all its inhabitants. But individual religious liberty does not necessarily mean that the government doesn’t embrace, endorse, support, or fund one religion in particular. The government can support one particular view of the good life. It can give money to synagogues or ashrams or mosques or all of the above. But so long as the government does not force anyone to adopt religious beliefs that he or she rejects, or perform religious actions that are anathema, it has not violated the basic right to religious liberty. Separation of church and state may be very helpful to maintaining religious liberty, as in the United States, but it is not always necessary to it.
Whether we notice it or not, governments are already endorsing certain visions of the good life all the time. Our government gives medals to heroes who embody the values we admire. It proclaims holidays to celebrate things we care about. Public schools teach students what it means to be polite and honest and sincere, although such values differ from place to place and even family to family. We sponsor some art and not other art, and we use our limited resources to put some books in our public libraries but not others. We say that segregation is wrong because it leads to some people feeling excluded. It would be naïve to claim that all of these government activities are neutral. They all reflect ideas about the right way to live. They all affect us as citizens, but none of these activities imposes any one set of values on us. We are still free to choose and live as we like. Another way to put it is to say that a democracy could try to separate law and morals if it wanted to–although in practice it would be very difficult–but a democracy does not have to separate law and morality.
Islamic Equality
Can a state that embraces a single religion really be counted on to recognize the equality of all its citizens, including those who do not belong to the religion that the state has embraced? Democracy requires equality, both equal participation in democratic decision-making and equal treatment before the law. So this question is fundamental to assessing the plausibility of Islamic democracy, as indeed it would be if one were thinking about the Jewish and democratic state which Israel aspires to be.
In principle, the answer is that a state with an official religion can recognize the equality of all its citizens as long as the religion itself embraces equality for everyone. Not every religion recognizes the moral equality of all people. Some religions treat outsiders badly, and others are especially bad about insiders who become outsiders by abandoning the faith. So the question then becomes, in practice, can an Islamic state fully respect the moral equality of non-Muslim citizens? As it turns out, Islam professes a deep commitment to the principle of equality. The logic lies in the structure of Muslim theology: everyone is equal before God. All humans descend from Adam and Eve. As the Qur’an puts it, in a verse that is often quoted to prove Islam’s commitment to equality, “O mankind! We created you from male and female, and placed you (into) nations and tribes so that you would know one another.” The verse does not use the word equality, but it suggests that God created everyone, and that human diversity is meant to be a positive, not a negative feature of creation.
With respect to equal political participation, there is no principled reason in Islam to suggest that anyone, Muslim or non-Muslim, man or woman, regardless of race or any other characteristic, should not be permitted to participate equally in collective decision-making. Some Muslims might argue for special participatory status for Muslims or for men. But aside from Kuwait, where the legislature refused to enact the emir’s decree granting women the vote, women have the vote in every Muslim country where there are elections. That includes Iran, with its Islamist constitution; Arab states like Jordan, Egypt, Algeria, Tunisia, and Morocco; and now even Bahrain, a Gulf monarchy with traditional ways not unlike Saudi Arabia. As for Muslim women leaders, Benazir Bhutto was elected Prime Minister of Pakistan (twice); Tansu Ciller served as Prime Minister of Turkey; in Bangladesh both the current Prime Minister, Khaleda Zia, and the past Prime Minister, now leader of the opposition, Sheikh Hasina Wajed, are women; and Indonesia has a woman president in Megawati Sukarnoputri. These women have mixed records both in terms of effectiveness and honesty, but they have been neither better nor worse than male leaders in their countries, and the fact they were elected should dispel the stereotypes that unmitigated sexism prevails everywhere in the Muslim world. There is, admittedly, a saying attributed to the Prophet, according to which a nation that makes a woman its ruler will not succeed; and some Muslims have argued that this bars women from serving as heads of state. But this interpretation is not widespread, and has not stopped Muslim women from being elected.
Muslim women, then, generally have formal equality of participation. It is true that women’s political participation is far more limited than men’s, in that women are rarely to be found in parliaments and governments. Women voted in the inaugural Bahraini elections of May 2002, but none of several women candidates was elected. This is a blot on democracy, to be sure, but unfortunately, the under-representation of women in office remains a problem in the rest of the democratic world, too. The same is true for participation of minority non-Muslims in government, which is not formally banned in any Muslim country including Iran. And although non-Muslims’ actual participation in government is small, that is true of religious and racial minorities in countries we are accustomed to call democratic. What is more, it is today rarer than it once was to hear Islamists argue that women or non-Muslims ought to be barred from political participation. One is more likely to hear a cleric like the Egyptian-born, Qatar-based Shaikh Yusuf al-Qaradawi urging Islamist women to run for office to combat general female immorality. (Qaradawi is a complex figure. He wrote an influential fatwa declaring Islam and democracy compatible, the scholarly authority of which convinced many Islamists that democracy was a desirable direction for their movement. And on September 12, 2001, Qaradawi was one of the first and most important voices of Muslim clerics condemning the killing of civilians at the world Trade Center as a “heinous crime against Islam.” But Qaradawi also advises Hamas and holds that civilians may lawfully be killed in occupied Palestine.)
Equal treatment before the law poses greater challenges than equal participation for Islamic democracy. Classical Islamic law generally does treat men and women equally. Women and men are meant to receive the same punishments for the same misdeeds, and women can own property, which was not always true under the Anglo-American common law. But it is also important to acknowledge that classical Islamic law sometimes treats women differently than men, and non-Muslims unequally to Muslims. And even beyond these legal inequalities, the law on the books differs from the practical realities of life in many Muslim countries, which often place women at much greater disadvantage than the law itself requires.
The most important instances of formal legal inequality can be described briefly. Under some circumstances, classical Islamic law formally weighs women’s testimony more lightly than the testimony of men. This rule is based on a verse in the Qur’an that calls for the testimony of either two men or a man and two women in attestation of letters of credit: “If one of them shall forget the other shall remind her.” Some modern Muslims, feminists and otherwise, have argued that this differentiation is not justified by the text of the Qur’an when taken in context. Some argue that the second woman is not a witness in her own right, but serves as a kind of aide-memoire to the woman who is the witness. Others have other arguments against the classical law’s interpretation of the verse. Without entering into the debate about the “correct” reading of the Qur’anic verse, one can recognize both that classical Islamic law does interpret the verse to weigh women’s testimony differently in some cases, and that some modern Muslims disagree with that interpretation. It is also worth noting that classical Jewish law (halakha) bars women’s testimony altogether under most circumstances.
Women’s share of inheritance in classical Islamic law is also less than that of men, typically by half. Again, the comparison to classical Jewish law provides context; in Jewish law, women normally do not inherit at all unless there are no male heirs. And of course in the Anglo-American common law until the modern era, the first-born male inherited, to the exclusion of anyone else. Once again, modern Muslims offer a variety of apologia for and arguments against women’s unequal treatment in inheritance law. Not all Muslims think that classical Islamic law ought to prevail on this point. But some do. For those who think that a state must apply classical Islamic law to be truly Islamic, there is no denying that this provision institutionalizes inequality on the basis of sex.
The law of divorce also place women at a relative disadvantage. Muslim women normally cannot initiate divorce nor compel their husbands to grant it unless a prenuptial agreement so specifies. If they do manage to compel divorce, they may lose the right to a lump sum alimony payment to which they would otherwise be entitled by the standard Muslim marriage contract. Efforts are underway by Muslim women activists to improve these arrangements, but they have met with real resistance, not only from scholars, but from men who for extralegal reasons would like to preserve male prerogatives in the context of family law.
These are real and troubling examples of unequal treatment of women under classical Islamic law, but on their own, they do not make classical Islamic law inherently incompatible with democracy. Democracy can still exist, albeit imperfectly, where sex equality before the law is incomplete. After all, such is the case in the United States, where women gained the vote late in constitutional history, and are still fighting for equality in other legal areas. Israel sanctions unequal treatment of women in the religious courts on which it confers sole jurisdiction over marriage and divorce. Furthermore, it is not the case that a government that guarantees full sex equality before the law would automatically be considered “un-Islamic” by the majority of Muslims.
The point is not to claim that women in Saudi Arabia, say, are treated equally. They cannot drive or move about without male supervision. A state applying strict Islamic law as it is currently interpreted in much of the Muslim world would never be a perfect place for women. Conditions for women in much of the Muslim world remain profoundly unequal, as indeed they do for the vast majority of women in the world, especially outside Western Europe and North America. And it would be misleading or even dishonest to deny that Islamists frequently speak in terms of the natural subordination of women, even as they claim that Islam can unleash women’s full potential in the private and public spheres. I wish only to suggest that Islamic law itself is less unequal in its treatment of women than is imagined by many in the West and the Muslim world alike, and that unequal treatment of women, while reprehensible, should not be seen as an insurmountable barrier to democracy. If it were, there would today be no democracies at all, because the equality of the sexes remains unaccomplished everywhere.
The question of the veil and covering becomes relevant here. As a symbolic matter, the clothes that women wear have become one of the central focal points for those who argue that Islam and democracy are incompatible. This is true both among Westerners who believe in incompatibility, and also among some Islamists. Both groups argue that a society is only Islamic if women go about garbed in head scarves (hijab) or in even more concealing clothing, like the full-body-and-face-covering burka or chador. Both also argue that a democratic society is one in which women are free to wear anything they choose.
The emphasis on clothing, however, obscures more than it clarifies. It is true that women’s clothing is a central symbol of the culture of Islamism. Head scarves and long, loose-fitting clothing serve as emblems of Islamism when they are proudly worn by Islamists in places like Turkey or Indonesia and when they are legally coerced by Islamist regimes, as in Iran. But there are many Muslims who think that Islam requires only that everyone dress modestly, men and women alike. Such a requirement is certainly compatible with democracy. Indeed most democracies have laws governing who can wear what and where, including different standards for men and women. Perhaps democracy might even be consistent with rather strict rules for dress, so long as they are roughly equal in treatment of men and women. And Islam is, or can be, consistent with restrictions that do not go so far as to demand that women wear hijab or chador. Obviously I do not mean to endorse compulsory covering, or for that matter the compulsory uncovering of the head that one finds in French schools or in the Turkish Assembly, where secularists prevented the seating of an elected delegate who wore a headscarf. Rather, while acknowledging the tremendous symbolic importance of dress, I want to maintain that our natural focus on clothing should not mislead us into portraying Islam as so unequal that it cannot be democratic.
Beyond the equality of women, equality for non-Muslims in an Islamic state also raises some difficult challenges. If everyone in the political sphere speaks in terms of Islamic values, that may in practice exclude non-Muslims to a degree. But the same problem would arise in a state that defines itself as “Jewish and democratic,” as Israel does; in Britain, where the Church of England is the official church; or even in the United States, where the Supreme Court implicitly excluded atheists when it said not so very long ago that “We are a religious people, whose institutions presuppose a Supreme Being.”
One sometimes hears the argument that non-Muslims can never be equal participants in the Islamic state because Islam does not recognize a distinction between the Islamic state and the community (umma) of the Muslims. Yet in the Prophet’s lifetime, the Muslim community at Medina coexisted with non-Muslims in a state-like arrangement embodied in a compact that still survives. Subsequent Islamic states were also home to non-Muslims, who participated in government and public life, sometimes in important positions. Samuel ibn Naghrela, the Jewish politician-poet-philosopher known in Hebrew as Samuel the Prince, rose to the viziership of medieval Granada. Furthermore, from early in Muslim history there were competing Muslim states, suggesting a difference between the state and the community of Muslims. Today, some Islamists still dream of a single pan-Islamic state, but most are more modest and realistic in their aims, and hope only for a number of Islamic states covering different geographical areas.
The Islamic state, then, no more overlaps with the community of the Muslims than, say, the state of Israel overlaps with Jews, or the Federal Republic of Germany overlaps with German ethnicity. Israel has a law of return that gives Jews automatic citizenship if they want it. Germany has a similar law for ethnic Germans, and indeed there are many ethnic Turks born in Germany to guest-worker parents who cannot easily become German citizens.
As for equality of treatment before the law, the Islamic state can treat non-Muslims as well as it treats Muslims. Islamic states traditionally required Jews, Christians, and others non-pagans deemed “peoples of the book” to pay a special tax and wear distinctive dress; legally, the state accorded them special status as “protected persons.” Churches and synagogues had to be modest in size relative to mosques. The enforcement of these rules varied historically from rigorous to lax, and treatment of non-Muslims ranged from highly tolerant to repressive and even violent. There is a large literature arguing about whether this protected status must amount to a second class citizenship–a question that might plausibly be answered either way. But even if these discriminatory taxing and zoning requirements were put in place–and they need not be adopted by an Islamic state that is not fully Islamist–the Islamic state faces no theoretical barrier to treating its non-Muslim citizens equally. And today’s Islamists, influenced perhaps by mobile democracy, do not generally propose to treat non-Muslims unequally, at least not in their published writings or official pronouncements.
Islamic Liberty
Not every definition of democracy requires all the same individual liberties found in the constitutions of the United States and Western Europe, but most democracies today embody some version of liberalism. Would this be true of Islamic democracy? One challenge to the very idea of Islamic democracy is the claim that liberal democracy restricts the sphere of government to the public realm, while Islam thinks it necessary to extend government into the private sphere as well. Yet the divide between public and private, even in liberal democratic states, is more permeable than the challenge assumes; and in Islam, there is a greater distinction between the private and public realms than many people, Muslim and non-Muslim, believe.
Just about every democracy in the world regulates personal relationships to a striking degree, deciding how you can get married, and whom you can marry; what counts as a good reason for getting a divorce, and how the divorce will divide assets. What is more, no democracy, however liberal, has ever adopted the pure liberal view that the state must refrain from regulating conduct that does no harm to anyone except the actor except. The law in most democracies tells you to wear a seatbelt or a crash helmet. It tells you where and when you can drink or buy alcohol. It prohibits drugs, including drugs that a person might take without bothering anyone. Equipped with a warrant, the state can tap your phones or burst into your house and search every nook and cranny. The tax man sees every detail of your finances, and if you are audited, just about nothing is private. In short, even liberal democracies do not strictly respect the public/private distinction.
For its part, Islam does not insist on the erasure of the public/private distinction. The Qur’an says that there shall be no coercion in religion. Classical Islamic law and most modern Muslims think this means that in theory, neither government nor anyone else can coerce you in matters of private belief. On the other hand, it would be difficult for a Muslim to abjure his religion publicly in an Islamic state that had laws against apostacy. This problem poses a real challenge to what Westerners consider freedom of religion and speech; and a related problem arises where there are blasphemy laws on the books that make it a crime to insult Islam or the Prophet. The reason this problem arises is that to many Muslims, apostacy and blasphemy are public acts that the state should be able to regulate, not private matters of faith that are restricted to the individual realm. This may explain also why the Saudi and Iranian governments think it acceptable to coerce people to attend prayers when the Qur’an bans coercion in religion. The difference between the prevalent Western and Muslim views on this subject derives not from any rejection of the public/private distinction, but from the different places each tradition draws the line.
Classical Islamic law also enforces the right to privacy in the home, in fact more strictly than do most legal systems in Western democracies. The Qur’an instructs its listeners, “O you who believe! Enter not houses other than your own, until you have asked permission and greeted those in them.” The earliest Muslim reporters of hadith, traditions associated with the Prophet, understood this injunction in terms of privacy. The most important hadith collectors report the following explanation of the Qur’anic statement: “Sahl bin Sa‘d (may Allah be pleased with him) reported: The Messenger of Allah, peace be upon him, said, ‘Seeking permission to enter has been proscribed in order to restrain the eyes.’“ This evocative language of “restraining the eyes” suggests the existence of a realm of privacy into which no one may enter without getting permission.
Classical Islamic law extended this mandated privacy to the state itself. The jurists interpreted the Qur’anic directive to mean that, even in seeking evidence against a suspect, one must not enter his home without receiving permission. A story recounted about one of the earliest, “rightly guided” Caliphs, deals with the legal implications of this rule. Investigating a theft, the authorities entered a suspect’s home and discovered stolen goods. Brought before the Caliph for judgment, the criminal argued that he could not be punished, because the investigators had violated the Qur’anic injunction against entering his home without permission. The Caliph concluded that the criminal was correct–although he was guilty, he could not be punished, but was permitted to go free.
This story partly shows how very different legal systems sometimes converge on common outcomes. The United States Supreme Court reached a decision similar to the Caliph’s some 1200 years later when it adopted the exclusionary rule, excluding evidence obtained illegally from a trial to prove the guilt of the person whose rights were violated. Unlike the Caliph, the Supreme Court did not say that this rule was required by its own ground-rule, the Constitution, but rather described the exclusionary rule as a prophylactic measure that the Court adopted to discourage the police from searching without authorization. The Caliph, though, seems to have thought that the Qur’an itself prohibited using evidence that was obtained in violation of God’s law. In this case, the distinction between public and private spheres is even stronger in the Islamic legal tradition than in the United States.
There is one glaring difference between the decision of the United States Supreme Court and the Islamic legal principle protecting privacy in the home. The American decision functions as the law of land, which does not mean that every American is in fact free of unwarranted government intrusion in his home, but does mean that if he is on trial, the fruits of an illegal search will not be used against him. The Islamic legal principle, however, is not presently enforced with consistency anywhere in the Muslim world, including countries that purport to apply Islamic law. I am not citing it, though, to prove that the Muslim world presently demonstrates the right to privacy, any more than I am claiming that the Muslim world today is democratic. Rather, the tradition refutes those who would attribute to Islam indifference towards the public/private boundary.
Of course classical Islamic law, like other religious law, extends to all sorts of personal and private areas of human behavior. It prescribes the right way to wash one’s hands and cut one’s fingernails and so forth. But the existence of this kind of detailed law respecting personal matters does not mean that the Islamic state must pass laws requiring these sorts of details or that it is anyone’s business but one’s own. Although Islamic law requires daily prayer and fasting during Ramadan, that does not mean that a state must enforce these laws in order to be legitimately Islamic. The reason is that Islamic law does not specify punishments for failing to perform many of these religious obligations, and the government does not have the responsibility of ensuring that all religious laws are carried out. It is enough for the state to enforce the Islamic criminal law. The framework of “Islamic law” thus includes both personal religious obligations and also laws governing inter-personal relations, but an Islamic state can be Islamic even if it does not enforce all of the personal religious obligations that are imposed on individuals by Islamic law. Islamic law draws a basic distinction between duties toward God and duties towards other human beings. And even if this distinction does not map exactly onto the distinction between the private and the public spheres, most duties towards God do not need to be enforced by a state that would be considered “Islamic” by just about all Muslims. An Islamic state therefore would not need laws enforcing every rule that is found within Islam.
Almost all Islamists want to apply Islamic law in many areas of life. But there is widespread misconception, even in the Muslim world, about the scope that classical Islamic law covers. In the criminal law, for example, only a handful of crimes count as part of the required system of Islamic law. These crimes of hudud are famous in the West because of the harsh punishments associated with them: in theory, the convicted thief would lose his hand; the murderer and the apostate their heads; the adulterers their lives. Punishments are also comparably harsh for those who falsely accuse others of these crimes. What is rarely added is that these punishments can only be meted out after proof that reaches a standard that is extraordinarily difficult to meet. Unless there is a freely-given confession, there must be two eye-witnesses to the crime, men of proven good character. For adultery there must be four eye-witnesses to the act of adultery itself, a circumstance by its nature very unusual indeed.
In the view of most Islamists, hudud crimes must be on the books for a state to be Islamic. But it is likely that almost no one will be punished under these laws if they are applied correctly, because the standard of proof is too high to meet. Judges who wanted to could almost always find a way to acquit. Historically, in fact, these laws were only rarely enforced, and even then, were restricted to the most egregious cases of murder and the like.
In the few cases and places where such laws have been applied in the modern Muslim world, there are usually political motivations involved that fall outside the strict ambit of Islamic law. In Afghanistan under the Taliban, extreme punishments often were not even the ones specified in Islamic law, but rather were Pashtun customs masquerading as “Islamic.” In Northern Nigeria, where Islamic law is being introduced today, the threats of such punishments function as symbols of the new order, to Islamists and non-Muslim opponents alike. Everyone involved gets some benefit out of drawing attention to the possible stoning of an adulteress. It is free publicity for Islamists, and a good rallying point for opponents. It would be a horrible tragedy if anyone should be unlucky enough to be executed for adultery there, but an Islamic system need not execute anyone for adultery under normal circumstances. There is almost always some legal way out. The existence of hudud punishments is therefore not incompatible with democracy, unless we think that capital punishment makes a country undemocratic.
Beyond the fact that these laws need never be applied in practice in an Islamic state, it is important to realize that the hudud punishments cover just a small number of crimes, and therefore leave room for just about every further law one could imagine to be made. The rest of the criminal laws can be determined by the government, according to criteria that the government specifies. That is the way that the law always operated in Muslim countries in the past: a small number of legal matters were regulated under the hudud or other shari‘a principles, but most practical matters were regulated by the government, not by classical Islamic law. An Islamic democracy could, in other words, decide on just about every criminal law by democratic means, and specify the punishments, too.
Islamists do not think that Islamic law must govern family relations for everyone who lives in an Islamic state, just the Muslims. Other religious groups, like Christians or Jews, should be governed by their own religious laws when it comes to family law. Beginning in the earliest years of the Muslim polity, the Muslim rulers reached accommodations with minority religious groups that allowed those groups self-regulation in the area of communal affairs, including family law. This formed the model that all Islamic states have used, up to and including the present. In India, for example, when the Muslim Mughal Empire ruled, the majority of the population were Hindus. They were never forcibly converted to Islam, and their personal life and laws operated according to Hindu tradition. This was also the model under the Ottoman Empire. In fact the Ottomans gave even broader autonomy to minority religious communities, allowing them not only to regulate their own family law, but to collect their own taxes and run their own educational system.
It is instructive that modern Israel operates on precisely this Muslim-invented model of family law allocated by religion. When it came into being in 1948, Israel simply kept the Ottoman family law model that had prevailed even after the British mandate took Palestine from the Ottoman empire. This system has its problems. It assumes that everyone fits into a religious group of one kind or another, making things hard on atheists or religious individualists; these people cannot legally marry or divorce, since the law does not provide for non-religious civil marriage to occur within Israel. An Israeli Jew who does not want to a rabbi to officiate at her wedding flies to Cyprus (the Israeli’s Las Vegas) and gets married there in a civil ceremony that Israeli law recognizes via a loophole. This sounds like a serious restriction on religious freedom; but if you want to get married in New York State, you must be married by a judge, the clerk at city hall, or a member of the clergy as specified in the state’s Domestic Relations Law. If you want to get married on your own, in a field of daisies, with no government sanction, you may not. It is a class-C misdemeanor in New York to purport to perform a wedding without legal authorization.
Assigning legal power over marriage and divorce to religious authorities also requires the state to choose among denominations; and it makes it hard for people who want to marry across religions. Many Catholic and Protestant churches around the world permit such weddings nowadays; Islam permits Muslim men to marry women who are not Muslims, though not the other way around. The overwhelming majority of Orthodox and Conservative rabbis will not officiate at such ceremonies, nor will many (perhaps most) Reform rabbis.
The constraints on personal choice that emerge in the realm of family law are unfortunate, but not necessarily undemocratic. After all, liberal democratic states also restrict who can marry whom. Only the most liberal Western European countries and now Vermont permit same-sex couples to form a partnership akin to marriage; the origin and continuing basis for restricting marriage to the union of a man and a woman is plainly religious, even in a country like the United States which has constitutional separation of church and state. The ban on same sex marriage may some day look discriminatory to a majority of Americans, as it does today to some. But like the allocation of marriage to religious authorities, this problem can be addressed within the democratic framework.
Footnotes
60 For a sampling of Ghannouchi’s views, see Azzam Tamimi, Rachid Ghannouchi: A Democrat Within Islamism (Oxford: Oxford University Press, 2001).
For a sampling of Khatami’s views in English, see Mohammad Khatami, Islam, Dialogue and Civil Society (Canberra: Centre for Arab and Islamic Studies, Australian National University, 2000); Islam, Liberty, and Development (Binghamton: Institute of Global Cultural Studies, Binghamton University, 1998); Hope and Challenge: The Iranian President Speaks (Binghamton: Institute of Global Cultural Studies, Binghamton University, 1997).
60 various proposals
One engaged treatment of some of these—and an undertaking in its own right—is Ahmad S. Moussalli, The Islamic Quest for Democracy, Pluralism, and Human Rights (Jacksonville: University Press of Florida, 2001). See also Fathi Osman, Islam in a Modern State: Democracy and the Concept of Shura (Washington DC: Center for Muslim Christian Understanding Occasional Papers, 2001). The final chapter of Nathan J. Brown, Constitutions in a Nonconstitutional World: Arab Basic Laws and the Prospects for Accountable Government (Albany: State University of New York Press, 2002), entitled “Islamic Constitutionalism,” offers a good overview, with reference to specific countries.
61 remains unresolved
See the controversial and provocative book by Patricia Crone and Martin Hinds, God’s Caliph: Religious Authority in the First Centuries of Islam (Cambridge: Cambridge University Press, 1986).
61-62 For more on how Islamic governments have historically chosen leaders, see L. Carl Brown, Religion and State: The Muslim Approach to Politics (New York: Columbia University Press, 2000); W. Montgomery Watt, Islamic Political Thought (Chicago: Edinburgh University Press, 1968).
62 On loosing and binding, see Brown, Constitutions in a Nonconstitutional World, 172.
Medieval political theorists
Ghazzali prominent among them. See Noah Feldman, “Religion and Political Authority as Brothers: the Islamic Constitution and the Ethical Literature,” in Islamic Constitutionalism, ed. Chehabi and Hashmi (Cambridge: Harvard University Press, forthcoming 2002).
63 Three thick volumes
The conference took place in Cairo, 23-25 May 1997. The volumes are: al-Shura fi-l-fikr wa-l-mumarasa (Shura in Theory and Practice); ‘Ishkaliyat al-‘alaqa bayna al-shura wa-l-dimuqratiyya (Problematic of the relation between shura and democracy); Tajarib mu‘asira fi mumarasat al-shura wa-l-dimuqratiyya (Contemporary Experiments in the Practice of Shura and Democracy), published jointly under the auspices of al-Azhar and the World Center for the Study and Investigation of the Green Book in Tripoli. N.b. Qadhafi was, in other words, behind the publication and probably the funding of the conference; strange bedfellows indeed, Qadhafi and al-Azhar.
See also Tawfiq Muhammad al-Shawi, al-Shura: a‘la maratib al-dimuqratiyya (Shura: The Highest Level of Democracy) (Cairo: al-Zahra’ li-li‘lam al- ‘arabi, 1994); ‘Abd al-hamid Isma‘il al-Ansari, al-‘Alam al-Islami al-mu‘asir bayna al-shura wa-l-dimuqratiyya: ru’ya naqdiyya (The Contemporary Islamic World Between Shura and Democracy: A Critical Perspective) (Cairo: Dar al-fikr al-‘arabi, 2001).
obligatory
See, for example, the very influential fatwa of Yusuf al-Qaradawi on the compatibility of Islam and democracy, in Min fiqh al-dawla fi-l-’islam (Of the Law of the State in Islam) (Cairo: Dar al-shuruq, 1997), at 146, where he insists on the obligatory nature of shura by the binders and loosers. If the ruler could ignore the consultation, he asks, then in what sense would those who provided it have the power to bind and loose? Qaradawi concludes that “Islamic consultation (shura) comes close to the spirit of democracy; or if you prefer: the definition of democracy comes close to the spirit of Islamic consultation.” Id. See also 136 on shura. For an overview on Qaradawi, see Armando Salvatore, Islam and the Political Discourse of Modernity (London: Ithaca Press, 1997), 197-216
67 Saudi Arabia uses
On Saudi law in action see Frank E. Vogel, Islamic Law and Legal System: Studies of Saudi Arabia (Leiden: Brill, 2000).
87 [???]
Rudolph Peters, Islamic Criminal Law: Theory and Practice from the Sixteenth to the Twentieth Century, (New York: Cambridge University Press, forthcoming 2004).
68 sovereignty of God
For a review of various Islamist theories of sovereignty see Ermin Sinanovic, “The Majority Principle in Islamic Legal and Political Thought,” in Center for the Study of Islam and Democracy Second Annual Conference Proceedings, April 7, 2001, 72-90,
http://www.islam-democracy.org, accessed 22 August 2002.
See also Qaradawi’s fatwa at 140-41, where he analyzes the differences between sovereignty and governance.
The Rule of God, the Rule of the People
Bahlul, Hukm allah, hukm al-sha‘b: hawla al-‘alaqa bayna al-dimuqratiyya wa-l-‘ilmaniyya (The Rule of God, The Rule of the People: On the Relation Between Democracy and Secularism) (Amman: Dar al-shuruq li-li-nashr wa-l-tawzi‘, 2000). This sophisticated work seeks to disentangle democracy from liberal democracy in the process of its enquiry.
70 Soroush
See Reason, Freedom, and Democracy in Islam: Essential Writings of Abdolkarim Soroush, trans. and ed. Mahmoud Sadri & Ahmad Sadri (Oxford: Oxford University Press, 2000).
71 Sufi mystics
See Annemarie Schimmel, The Mystical Dimensions of Islam, (Chapel Hill, NC: University of North Carolina Press, 1985); Idries Shah, The Sufis (New York: Anchor Books, 1971).
72 separation
There is a sizable Arabic literature on the relationship between secularism, democracy, and Islam. See, as representative examples, Ibrahim Bashir al-Ghawil (or al-Ghuwayyil), Al-Dimuqratiyya wa-l-‘almaniyya wa-huquq al-insan: al-marji‘iyya al-gharbiyya wa-l-marji’iyya al-islamiyya (Democracy and Secularism and Human Rights: Western Authority and Islamic Authority) (Beirut: Dar al-Afaq al-Jadida, 1999); Abd al-Razzaq ‘Id and Muhammad ‘Abd al-Jabbar, Al-Dimuqratiyya bayna al-‘almaniyya wa-l-’islam (Democracy Between Secularism & Islam) (Beirut & Damascus: Dar al-Fikr, 1999) (this is two books in one); Raja Bahlul, Dawlat al-din, dawlat al-dunya: hawla al-‘alaqa byana al-dimuqratiyya wa-l-‘almaniyya (Theocratic State, Secular State: on the Relation Between Democracy and Secularism) (Ramallah: Palestinian Institute for the Study of Democracy, 2000) (like his Rule of God, Rule of the People, an extraordinarily sophisticated treatment of the issues); Munir Shafiq, al-Dimuqratiyya wa-l-‘almaniyya fi tajriba al-gharbiyya: ru’ya islamiyya (Democracy and Secularism in the Western Experience: An Islamic Perspective) (London: Maghreb Center for Researche [sic] and Translation, 2001). One title that leaves no doubt about its point of view is Ghazi ‘Anaya, Jahiliyyat al-dimuqratiyya (The [non-Islamic] Ignorant Barbarism of Democracy) (Amman: Dar zahran li-l-nashr wa-l-tawzi‘, 1999); and indeed the work abounds in rejection not only of democracy but of all manner of peace or cooperation with Israel.
72-73 The government can support
I explore these issues more fully in Noah Feldman, “From Liberty to Equality: The Transformation of the Establishment Clause,” 90 California Law Review 673 (May 2002).
74 Islamic equality
A useful treatment of issues concerning equality in Islam can be found in Louise Marlow, Hierarchy and Egalitarianism in Islamic Thought (Cambridge: Cambridge University Press, 1997). See also Ann Elizabeth Meyer, Islam and Human Rights: Tradition and Politics 3d ed. (Boulder: Westview, 1999).
O mankind!
Qur’an 49:13.
75 heads of state
Narrated on the authority of Abu Bakr: “During the battle of Al-Jamal Allah benefited me with a word. When the Prophet heard the news that the people of Persia had made the daughter of Khorsrau their queen (ruler), he said, ‘Never will such a nation succeed as makes a woman their ruler.’” See The Translation of the Meanings of Sahih Al-Bukhari, Arabic-English, Vol. 9, Muhammad Muhsin Khan trans. (Medina: Dar al-Fikr, 1981), 170-171.
For a general discussion of discrimination against women’s political participation in Islam see Ann Elizabeth Meyer, Islam and Human Rights: Tradition and Politics, 3d ed. (Boulder: Westview, 1999), 91 (“Conservative Muslims generally claim that the shari‘a excludes women and non-Muslims from most, if not all governmental positions”).
On Bahraini elections, see Neil MacFarrquharr, “In Bahrain, Women Run, Women Vote, Women Lose,” New York Times, 21 May 2002; “Bahrain Holds Elections, and Women are Included,” Washington Post, 10 May 2002.
76 For Qaradawi’s statement of September 12, 2001, see Reuven Paz, “Shaykh Dr Yousef al-Qaradawi: Dr. Jekyll and Mr. Hyde,” Policywatch No. 576 (Washington, D.C.: Washington Institute for Near East Policy, 18 October 2001), available at http://www.washingtoninstitute.org/watch/Policywatch/policywatch2001/576.htm, accessed 22 August 2002.
77 If one of them shall forget
Qur’an 2:282.
77-78 On Islamic divorce and inheritance law, see Ziba Mir-Hosseini, Marriage on Trial: Islamic Family Law in Iran and Morocco (New York: I.B. Tauris, 2000); Ziba Mir-Hosseini, Islam and Gender (Princeton, NJ: Princeton University Press, 1999).
78 Muslim women activists
See Susan Sachs, “Egypt Makes It Easier for Women to Divorce Husbands,” New York. Times January 28, 2000.
80 compact
The so-called constitution of Medina appears as an appendix to W. Montgomery Watt, Islamic Political Thought (Edinburgh: Edinburgh University Press, 1998).
On Islamist claims that Islam can unleash women’s full potential, see Ahmed, Women and Gender in Islam, passim.
headscarf
On l’affaire du foulard see Kepel. There is a very large French literature on the controversy and the court cases surrounding the Muslim girls’ desire to wear headscarves and the response of French schools and government.
“We are a religious people”
Zorach v. Clauson, 343 U.S. 306 at 313 (1952).
81 For more discussion on “protected persons,” see Bat Ye’Or, Tr. David Maisel, The Dhimmi : a historical survey of Jews and Christians under Islam, (Rutherford, NJ: Fairleigh Dickinson University Press, 1984).
84 O you who believe!
Qur’an 24:27.
85 Sahl bin Sa‘d
See The Translation of the Meanings of Sahih Al-Bukhari, Vol. 8, Book 74, no. 258:
Narrated Sahl bin Sa‘d: A man peeped through a round hole into the dwelling place of the Prophet, while the Prophet had a Midray (an iron comb) with which he was scratching his head. The Prophet said, “Had known you were looking (through the hole), I would have pierced your eye with it (i.e., the comb).” Verily! The order of taking permission to enter has been enjoined because of that sight, (that one should not look unlawfully at the state of others).
A story recounted
Sayyid Qutb, trans. John B. Hardie, Social Justice in Islam (Oneonta, NY: Islamic Publications International, 2000).
rightly guided Caliph
For an explanation of this term, see Watt, 36.
exclusionary rule
See Mapp v. Ohio, 367 U.S. 643 (1961).
87 For more on hudud crimes, see Rudolph Peters, Islamic Criminal Law : Theory and Practice from the Sixteenth to the Twentieth Century, (New York: Cambridge University Press, forthcoming 2004).
for more on how tribal customs and Islamic customs have become enmeshed in Afghanistan and elsewhere, see Rashid.
88 symbols of the new order
See Ruud Peters, “The Reintroduction of Islamic Criminal Law in Northern Nigeria,” Conducted on Behalf of the European Commission (Lagos, 2001), available at http://europa.eu.int/comm/europeaid/projects/eidhr/pdf/islamic-criminal-law-nigeria_en.pdf, accessed 22 August 2002.
For examples of legal ways out, see Rudolph Peters, Islamic Criminal Law : Theory and Practice from the Sixteenth to the Twentieth Century, (New York: Cambridge University Press, forthcoming 2004).
89 For more on the Ottoman millet system that allowed religious communities some degree of self-government, see Bernard Lewis, Christians and Jews in the Ottoman Empire: The Functioning of a Plural Society (New York: Holmes and Meier, 1982).
