Rethinking Sharia and democracy
Secularist regimes dominated the Muslim world in the 1970s. The Islamic Revolution of 1979 in Iran emerged as both the symptom and trigger of a new trend – legal Islamisation. Today, Muslim-majority countries find themselves at another critical juncture as a new secularist trend gathers momentum. And, once again, Iran is the symbol of change, as recent protests show. These protests have deep social roots. Iran’s semi-republican theocracy has produced the least religious society in the Muslim world, as evidenced by a survey carried out by Gamaan.org in June 2020.
Nineteen seventies secularism failed to produce democracy in the Muslim world, and the current trend will be no different unless secularists change their authoritarian attitude. Whether they will truly embrace democratic pluralism remains uncertain. What is certain is that the promotion of Islamic law, or Sharia, as the state law has exacerbated the problem of authoritarianism in many countries.
Of the 50 Muslim countries in existence today, three-fifths either have constitutions referring to Sharia as the sole legal source or mixed systems that combine both Sharia and secular laws. All of these countries are authoritarian. They follow the provisions of Islamic criminal law, such as those punishing apostasy and blasphemy, and Islamic family law, favouring men over women in marriage, divorce and inheritance.
The remaining two-fifths of Muslim countries have constitutions that display varying degrees of secularism. They do not have apostasy/blasphemy laws and they are less discriminatory towards women. Nonetheless, only six of these secular states are electoral democracies. Hence, a secular constitution is necessary but insufficient for democratisation. From Iran to Turkey, Islamists rose to power by criticising secularist autocrats. Yet, their Islamic agendas now appear even more authoritarian, especially when they promote Sharia.
Sharia: law of the ulema
The tension between Sharia and democracy derives from the dominant method of Islamic law, which defines Islam as a set of legal rules guiding Muslims' lives entirely. Formulated by a ninth-century scholar, this method defines the sources of Islamic law as four: the Koran, hadiths (records of Prophet Muhammad’s words and actions), consensus (ijma) of the Islamic scholars, and analogical reasoning (qiyas). All Sunni schools of law embrace this method, and so do Shia Muslims, bar a few details.Hadiths play a vital role in the dominant Islamic legal method since they deal with a broad range of topics on which the Koran is silent. For most Sunnis, the two main hadith books, Buhari and Muslim, are canonical and their records are taken as words of the Prophet as if he is speaking today. Based on thousands of hadiths, the Islamic scholars – the ulema – have produced a large number of legal opinions (fatwas) that interfere with all spheres of life despite lacking sufficient expertise in fields such as politics, economy, science, and arts.
Since the Koran and hadiths are open to interpretation, the crucial criterion of the dominant method of Islamic law is ulema consensus. Once the ulema reach a consensus on a particular legal rule, it becomes almost impossible to change it. So, Sharia implies the ulema’s – not God’s – law. The fourth criterion, analogical reasoning, restricts the role of reason to making analogies. Rationalism or empirical observation is not taken into consideration. These two criteria of consensus and analogical reasoning cause a hierarchical and literalist formation of Islamic law.
The ulema’s alliance with the state
The ulema’s hierarchical authority and literalism makes Sharia incompatible with democracy. In a democracy, laws are created as a result of popular participation, taking into account the changing needs of the people. According to the dominant Islamic legal method, however, the law is produced by a group of men – the ulema – based on their understanding of religious texts. There is no place for popular participation when shaping the Sharia.
Since the eleventh century, only one factor – the coercive power of the state – has been able to challenge the ulema’s claim to a law-making monopoly. This combination of the ulema’s religious authority and the sultan’s sword is what produced the duality of sharia and sultan’s law (kanun) from history to the present. This reciprocal relationship also created an alliance between the ulema and the state. As a result, the implementation of Sharia differs from country to country based on the specific characteristics of this alliance.
In Saudi Arabia, Sharia is enforced by the alliance between the Wahhabi ulema and the Saudi dynasty, although Crown Prince Mohammed Bin Salman is currently trying to reconfigure the alliance to give more power to the state. Following its Islamic Revolution in 1979, Iran became the exception. There the ulema was given not only legislative and judicial, but executive power as well. It was based on Ayatollah Ruhollah Khomeini’s idea of the guardianship of the jurist (velayat-e faqih). Recently, the Taliban’s renewed takeover of Afghanistan has shown that such a system, where the ulema say “we are the state” is even possible in a Sunni-majority country.
Is a new legal method possible?
Bearing in mind the strong association between the dominant method of Sharia and authoritarianism, Muslim countries have two options for democratisation. One would be full legal secularisation, consigning Sharia to the history books, except for rules relating to worship (prayers, fasting, almsgiving and pilgrimage). The other option would be to produce new methods of Islamic law based on rationalism and empirical observation.
There are two reasons to be optimistic about potential new methods. Firstly, diverse methods of Islamic law already existed between the eighth and eleven centuries, when Muslims produced a scientific and economic "golden era". The method of Abu Hanifa (d. 767), for example, encouraged legal judgements based on reason. After the eleventh century, however, the ulema-state alliance consistently favoured the method of Shafii (d. 820) with its emphasis on the Koran, hadiths, the ulema consensus and analogical reasoning. There is no reason early Islamic history could not inspire new methods today.
Another reason to be optimistic is that there is nothing in the Koran or hadiths legitimising the ulema’s alliance with the state or favouring their consensus. Some ulema use a single phrase in the Koran (4:49) "uli’l-amr" ("those who have authority") to justify the ulema-state alliance, despite the fact that the verse refers neither to the ulema nor the rulers. They also use a hadith, "My community will never agree upon an error", to highlight the ulema’s consensus, yet the hadith refers to the Muslim community at large, not the ulema.
In democracies, laws are made by popular participation and public discussion. New Islamic legal methods that embrace rationalism and empiricism can form part of democratic discussions. If Muslim societies fail to develop such new legal methods, democratisation will only be possible through complete legal secularisation – thereby consigning Sharia to the history books. It remains to be seen what path the Iranians and other Muslim societies decide to take.
© Qantara.de 2022
Ahmet T. Kuru is professor of political science and director of The Center for Islamic and Arabic Studies at San Diego State University, and the author of Islam, Authoritarianism, and Underdevelopment: A Global and Historical Comparison (Cambridge University Press