Editorial-Twin Pillars for Islam?

Shariah and Constitution: Twin Pillars for Islamic Societies?

By: Dr. Charles McDaniel, Baylor University

Revelations of Iraqi prisoner abuse by coalition forces have underscored what Westerners have always conceded but often blotted out of the collective consciousness: constitutional government is no guarantee against violations of human rights. It is rather both a philosophical and institutional construct that promotes balance in power structures capable of minimizing abuses and, in those regrettable instances when they do occur, of systematizing society's response to and correction of injustices. Ironically, in light of the appalling acts committed at the Abu Ghraib prison complex and elsewhere, Muslim nations will now likely contend that the system of Islamic law (Shariah) is at least as potent in preventing the violation of individual freedoms as Western-style constitutional government.

Perhaps no single institution or political principle so dramatically frames the contemporary "debate" between Muslim and Western societies over theories of governance as does the philosophy of constitutionalism. Many of the fundamental values that divide liberal from Islamic societies-women's rights, religious liberty, and separation of powers to name a few-are embodied within this single concept. In truly Islamic societies, where no principles of social order may eclipse those instituted by Shariah, the very conception of human liberty critically differentiates the "first principles" of Islam from those of Western culture.

The constitution as a foundational document of most Western nations prescribes specific rights and liberties due all citizens. Yet it also determines certain limits to institutional power and individual conduct in the secular context and, more often than is generally acknowledged, in the religious realm as well. Religious groups may engage in myriad traditional practices, yet in some cases these are circumscribed by constitutional constraints that restrict individual or collective behavior as when, for example, certain actions are thought to harm individuals against their will or considered to debase or destabilize the society as a whole. The U.S. Supreme Court case, U.S. v. Reynolds (1879), determined that polygamy "has always been odious among the Northern and Western Nations of Europe and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and African people." Thus, polygamy was considered to degrade the moral basis of American society and was legally proscribed despite the fact that "celestial marriage" had "soteriological significance" for members of the Church of Jesus Christ of Latter-Day Saints.

In many Islamic societies, a reversal in the order of authority between religious law and constitution is in effect such that constitutional protections must be located within the pervasive reach of Shariah. Islamic constitutions are often muted concerning the separation of powers among institutions of government and religion for the reason that any law that would contravene or even temper the power of an institution designed for the development and application of Shariah would violate basic tenets of Islam. Similarly, neither can "Islamic" constitutions call for the establishment of human rights that would go against the canons of the Koran, the Muslim holy book that serves as a principal source for Islamic law. The critical question is whether seeds of Western constitutionalism can take root in societies where Shariah is the law of the land.

Scholars who assert the compatibility of Islam and constitutionalism often put forward historical (some would claim "revisionist") arguments to demonstrate that past "golden ages" of Islam were in fact more pluralistic and open to conceptions of individual rights. They claim that Islam, as all religious traditions, is to some extent culturally and historically conditioned such that its institutions adapt to modern conceptions of governance and to unique cultural contexts. Scholars have pointed to the "Meccan model," for example, as representing a period in which women's rights, as well as those of kafirs (unbelievers) and dhimmis (protected classes of Jews and Christians as "People of the Book") were respected. This foundational but quite brief period (13 years) was also a time in which the nascent faith was fighting for its very survival. It was in no position to be repressive; in fact, Mohammad was busily forging alliances with Jews, Christians, and other persecuted religions to combat the dominant pagan tribes that threatened the existence of his fledgling religious movement.

Reflecting on this history, Western Christians might be tempted to claim that Muslims are ignorant of their own traditions or that they hypocritically ignore them by advancing intolerance. Yet Christians can more easily grasp the theological basis of Islam's contentious relationship with ideals of Western constitutionalism by observing the writings of major thinkers in their own tradition. St. Augustine, for example, perhaps the most influential figure outside of the Apostle Paul and Christ himself in the first millennium of Christianity, was inclined to alternate his views between tolerance and repression of unbelievers based on the particular cultural and historical circumstances of the Christian community. Augustine acknowledged the necessity for tolerance during periods in which truth is in minority status; however, he conceded in his writings against the Donatists that "liberty for error" means "death for the soul." He acknowledged that coercion might be necessary in directing non-believers and heretics toward "Truth." Thomas Aquinas and, remarkably, even Martin Luther would also concede the necessity for some measure of coercion in the interest of saving souls. It is the realization of a Christian heritage of religious repression that demonstrates the significance of the Enlightenment to Western constitutionalism and, coequally, illustrates the difficulty of achieving a constitutionally modeled society in Islamic countries.

Encouragingly, however, many Muslim nations of diverse ethnic compositions and political persuasions from secular to theocratic have instituted constitutions that are unique to their particular cultural milieus. Asghar Schirazi's detailed exploration of Iranian constitutional development in his book, The Constitution of Iran (1997), illustrates the attempt of an Islamist government to grapple with the perceived dictates of modernity and its dominant religious tradition. He notes the "contradiction between the constitution's Islamic legalist and non-Islamic secular elements which flows largely from the claim that a state set up on the basis of Shi'I law and ruled by Islamic jurists (foqaha) is capable of offering solutions to all problems, not only in Iran, but throughout the world even though the constitution itself incorporates many non-Islamic and non-legalist elements" (p. I). These seeming "contradictions" are being manifested in the expansion of hybrid constitution- and Shariah-based systems throughout the Muslim world. If nothing else the architects of these governance structures should be credited for creativity in their attempts to synthesize liberal ideals with the perceived dictates of Islam; and, as will be shown subsequently, Americans are assuming a substantial role in this process.

Abdullahi Ahmed An-Naim is one those scholars who perceives a greater diversity of political structures in the history of Islamic society and is likely encouraged by recent developments. In Toward an Islamic Reformation, An-Na'im suggests that with respect to constitutionalism in an Islamic context, the possibilities are as dire as most Westerners suspect when seen in light of what he calls "historical Shari'a." In other words, there is little possibility of approaching anything like Western constitutionalism in Islamic societies that take as their legal starting points the interpretations of Islam's major jurist schools (e.g. Shafii, Hanafi, Maliki). He notes the obvious and inherent conflicts between historical Shariah and modern standards of international law and human rights, including women's rights, popular sovereignty, and separation of powers.

Where an-Na'im does see hope is through the potential for "reinterpretation" of Shariah from its four principle sources: the Koran, Sunna (traditions), ijma (consensus), qiyas (reasoning through analogy). In brief, An-Na'im suggests that Shariah is somewhat malleable in contradistinction to strict Islamist groups that return to particular periods in the history of Islamic legal development for their more austere interpretations of Islamic law.

Certain societies already are exhibiting this capacity for Koranic reinterpretation. Tunisia, for example, reinterpreted Shariah so as to outlaw polygamy in 1956. Even more dramatic is the abolishment of slavery in most Muslim states even though technically it can be justified (within limitations) by the text of the Koran. Moreover, An-Na'im notes that various groups in Islam vary in their "potential" receptivity to constitutional forms of government. Sufi mystics, for example, are highly accepting of syntheses between Islam and other philosophical and political systems. Sunnis are less favorable to such adaptations than Sufis but more so than Shiites-in this way he constructs a definite hierarchy of "constitutional potential."

In this context the world is witnessing two remarkable experiments that will impact the global order for the foreseeable future. Attempts to implement hybrid constitutional systems in both Iraq and Afghanistan that allow for the application of Islamic law in certain situations are aggressive (perhaps desperate) efforts to bring Muslim countries into the community of nations in ways that honor their religious beliefs while imposing standards of modern governance. Noah Feldman, a Harvard law professor who has assisted the State Department in these efforts, offers a measured optimism toward the accomplishments to date. He recognizes that critical questions remain-the most important being the determination of when and in what circumstances Shariah is to be enforced in lieu of a constitution. In Afghanistan, for example, a high court composed of both secular and Islamic judges has been constructed to assist in those decisions. Complicating this effort, however, is a constitutional guarantee that "where Shariah is applied, the particular school of Shariah that a given person belongs to will be respected." According to Feldman, the Afghan Constitution has been left intentionally vague in certain areas to allow the Afghanis to sort out their unique applications of its provisions in specific areas. For example, it guarantees equality for women, "but doesn't address the question of what would happen if some particular provisions of Islamic law were seen to be incompatible with their equality."

In the case of Iraq, the interim constitution also guarantees certain freedoms including equality for all persons under the law, freedom of conscience, the right to due process of law and, ironically, prohibitions against torture. Feldman acknowledges the fluidity of this document and anticipates widespread debate over its provisions not only in Iraq but throughout the Muslim world. He believes that its impact will extend to other countries by "throw[ing] into relief the lack of freedom and democracy in some of the neighboring countries" such as Iran, which had made considerable gains that now seem to have been "short-circuited."

For an-Na'im, the "main issues underlying all the problems of Constitutionalism under Shariah is a certain ambivalence regarding sovereignty." The question is whether that ambivalence regarding sovereignty as expressed in Shariah extends to ambivalence in society with regard to its governance as a whole. Is there really ambivalence in Islamic societies regarding sovereignty? This might well explain the flight of newly trained Iraqi defenses around Falluja and Sadr in the face attacks by opposition forces. A similar indifference regarding sovereignty was likely noted in observations by American veterans of the Vietnam War that South Vietnamese soldiers were less determined fighters for their own freedom than were the Americans. For a people who lack passion for the principle of sovereignty, concerns undoubtedly turn to the perceived justice or injustice of immediate rule.

Sadly, this suggests that Iraqis will have difficulty overcoming the images that have emerged in recent days. They will be reluctant to "see through" the acts of their occupiers to the underlying philosophical principles devised to correct abuses and to prevent them from occurring in the future. It also points out what has become all too obvious in recent months-that American notions that constitutional government is a self-evident good capable of "selling itself" to an entire population are grossly oversimplified. This is a likely reason why many pundits are declaring democracy in Iraq a lost cause. For if a culture seeks only more humane treatment and is largely indifferent regarding its philosophical foundations, then the willingness to fight for a particular instantiation of government is highly conditioned by the perceived righteousness of its institutions. In a sense, the actions of a few may have only reinforced the hard lessons of history-that all politics abandons principle for pragmatism during periods of crisis.

Can a hybrid system of Shariah and constitution be employed in a country in which there is ambivalence regarding sovereignty? Will a people place themselves at risk for a system they don't fully understand or may consider hostile to their religious tradition. A constitution can be no exogenously supplied silver bullet employed to exorcise the demons of autocracy or theocracy. In many ways it is derived from the ethos of a culture that has experienced an epiphany regarding sovereignty. For those that have not undergone such a transformation, a constitution likely will be viewed as a foreign ideal imposed on an unwilling culture. Moreover, it is ironic indeed that Americans appear willing to relinquish some of their own liberties in the interest of security even as we vigorously promote constitutional government abroad.

While President Bush has stated repeatedly that we are not at war with Islam, a strong case can be made that we are at war with an Islamist social order that is perceived as fostering hatred of the West and turning a blind eye to terrorism. Constructing hybrid systems that blend elements of Islamic and constitutional law are attempts to attenuate a monolithic Islamism that is perceived as nurturing anti-Western sentiment. The outcomes of these experiments in Afghanistan and Iraq are critical in determining whether a peaceful resolution to the modern crisis is possible, and in securing the future stability of the global order.