Khaled Abou El Fadl is one of the most accomplished liberal Muslim legal scholars of our times. His present article argues for the compatibility of Islam and democracy on the basis that both are premised on, and aim for, the same fundamental moral value: the pursuit of justice, which entails guaranteeing human dignity and liberty. Abou El Fadl’s argument is ultimately centered on establishing a set of moral and ethical claims that are anchored more in theology than in law. In so doing, he appears to argue for a suspension of the injunctions that are constitutive of an Islamic legal order by claiming the Shari‘ah to be a hyper-phenomenon not fully comprehensible by man and therefore not completely enforceable. As such, he is able to interpret away certain texts of revelation that at face value seem to clash with democratic ideals. Abou El Fadl’s ideas are intensely stimulating and innovative and point to the fact that Muslims in the West are playing an increasingly important role in global Islamic political and intellectual life. Having said this, I find missing from his analysis the actual processes and mechanisms, both legal and extralegal, that might help bring about the desired reconciliation. I would therefore like to raise one or two issues that might address these lacunae and thereby further strengthen his case.
Let us consider slavery. Modern Muslims, other than a minority in the Sudan and Mauritania, roundly condemn the institution despite the fact that it is part of Islamic law. Evidence of its unacceptability can be gleaned from a recently translated and much referred to medieval Islamic legal manual, “The Reliance of the Traveler,” in which the modern translator does not provide an English translation for the laws pertaining to slaves. Another example is that modern Muslims have ceased to expound in writing or in sermons on these laws. One might therefore argue that a universal Islamic consensus, not merely of the jurists but of each and every Muslim, obtains at present and this makes slavery illegal in Islam forever. The basis for this consensus can be argued to be reason (‘aql) or even inspiration (ilham), and in either case one will find pre-modern authorities to back such an argument. Moreover, the law forbidding slavery would hold even if the claim to a universal consensus proves to be a legal fiction (as all arguments about consensus tend to be) because some group of strict constructionists (e.g., Salafis) would remain steadfast that slavery is a private entitlement that can never be revoked. What ultimately decides the matter is the force of mass adherence to the principle that slavery is illegal and this renders it so. Through this the Prophet’s statement that “my community shall not agree upon an error” acquires renewed significance. The question of democracy is in a number of respects analogous to slavery. First, the institution of the supreme leadership of the Muslim community, otherwise known as the caliphate, has fallen into abeyance since at least 1924 when the Turkish Republic deposed the last self-styled caliph. Some Islamist groups today claim to want to reestablish the post, but their discussions lack rigor, are desultory, and thus far have no wide appeal. In addition, many leading scholars in both the Sunni and Shi‘ite communities (e.g., Yusuf al-Qaradawi and Muhsin Kadivar to name but two) declare Islam and democracy to be compatible and argue that the Muslim ruler must be understood as a servant of the people (ajir), who is elected for a fixed term of office. Arab countries have yet to experience democracy in any real and sustained sense, and little more than anecdotal evidence can be relayed about their populations’ desire for it—though I have no doubt they do. The experience in Turkey, and in some respects in Iran, lead one to think that Muslims in both countries perceive democracy as not only being compatible with their beliefs but as a necessary aspect of political life, one which protects them from tyranny. Even the so-called hardliners in Iran are not able to stop the democratic process in their country, despite severe attempts at curtailing it through the Council of Guardians. In short, if sufficient numbers of Muslims deem democracy to be constitutive of their religion and institutionalize its processes, the question of the compatibility of Islam and democracy will become moot.
I look forward to the day when Muslim students look as perplexed when I mention that Muslim jurists once argued that tyranny, as a necessary evil, is an acceptable form of government as they do now when I mention the laws of slavery in Islam.