Islam and the Challenge of Democracy, Boston Review, April-May 2003 Issue http://www.scholarofthehouse.org/isandchofdeb.html

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Can individual rights and popular sovereignty take root in faith?

Khaled Abou El Fadl

A Muslim jurist writing a few centuries ago on the subject of Islam and government would have commenced his treatise by distinguishing three types of political systems. The first he would have described as a natural system—like a primitive state of nature, an uncivilized, anarchic world where the most powerful tyrannize the rest. Instead of law there would be custom; instead of government there would be tribal elders who would be obeyed only as long as they remained the strongest.

The jurist would then describe a second system, ruled by a prince or king whose word is the law. Because the law is fixed by the arbitrary will of the ruler and the people obey out of necessity or compulsion, this system, too, is tyrannical and illegitimate.

The third and best system would have been the , based on Shari‘ah law—the body of Muslim religious law founded on the Qur’an and the conduct and statements of the Prophet. Shari‘ah law, according to Muslim jurists, fulfills the criteria of justice and legitimacy and binds governed and governor alike. Because it is based on the rule of law and thus deprives human beings of arbitrary authority over other human beings, the caliphate system was considered superior to any other.

In espousing the rule of law and limited government, classical Muslim scholars embraced core elements of modern democratic practice. Limited government and the rule of law, however, are only two elements of the system of government with the most compelling claim to legitimacy today. Democracy’s moral power lies in the idea that the citizens of a nation are the sovereign, and—in modern representative democracies—they express their sovereign will by electing representatives. In a democracy, the people are the source of the law and the law in turn is to ensure fundamental rights that protect the well-being and interests of the individual members of the sovereign.

For Islam, democracy poses a formidable challenge. Muslim jurists argued that law made by a sovereign monarch is illegitimate because it substitutes human authority for God’s sovereignty. But law made by sovereign citizens faces the same problem of legitimacy. In Islam, God is the only sovereign and ultimate source of legitimate law. How, then, can a democratic conception of the people’s authority be reconciled with an Islamic understanding of God’s authority?

Answering this question is extraordinarily important but also extraordinarily difficult, for both political and conceptual reasons. On the political side, it must be said at the outset that democracy faces a number of practical hurdles in Islamic countries—authoritarian political traditions, a history of colonial and imperial rule, and state domination of economy and society. But philosophical and doctrinal questions are important, and I propose to focus on them here as the beginning of a discussion of the possibilities for democracy in the Islamic world.

A central conceptual problem is that modern democracy evolved over centuries within the distinctive context of post-Reformation, market-oriented Christian Europe. Does it make sense to look for points of contact in a remarkably different context? My answer begins from the premise that democracy and Islam are defined in the first instance by their underlying moral values and the attitudinal commitments of their adherents—not by the ways that those values and commitments have been applied. If we focus on those fundamental moral values, I believe, we will see that the tradition of 1 of 13 11/5/2009 6:48 PM Islam and the Challenge of Democracy, Boston Review, April-May 2003 Issue http://www.scholarofthehouse.org/isandchofdeb.html Islamic political thought contains both interpretive and practical possibilities that can be developed into a democratic system. To be sure, these doctrinal potentialities may remain unrealized: without will power, inspired vision, and moral commitment there can be no democracy in Islam. But Muslims, for whom Islam is the authoritative frame of reference, can come to the conviction that democracy is an ethical good, and that the pursuit of this good does not require abandoning Islam.

Democracy and Divine Sovereignty

Although Muslim jurists debated political systems, the Qur’an itself did not specify a particular form of government. But it did identify a set of social and political values that are central to a Muslim polity. Three values are of particular importance: pursuing justice through social cooperation and mutual assistance (Qur’an 49:13; 11:119); establishing a non-autocratic, consultative method of governance; and institutionalizing mercy and compassion in social interactions (6:12, 54; 21:107; 27:77; 29:51; 45.20). So, all else equal, Muslims today ought to endorse the form of government that is most effective in helping them promote these values.

The Case for Democracy

Several considerations suggest that democracy—and especially a constitutional democracy that protects basic individual rights—is that form. My central argument (others will emerge later) is that democracy—by assigning equal rights of speech, association, and suffrage to all—offers the greatest potential for promoting justice and protecting human dignity, without making God responsible for human injustice or the degradation of human beings by one another. A fundamental Qur’anic idea is that God vested all of humanity with a kind of divinity by making all human beings the viceroys of God on this earth: “Remember, when your Lord said to the angels: ‘I have to place a vicegerent on earth,’ they said: ‘Will you place one there who will create disorder and shed blood, while we intone Your litanies and sanctify Your name?’ And God said: ‘I know what you do not know’” (2:30). In particular, human beings are responsible, as God’s vicegerents, for making the world more just. By assigning equal political rights to all adults, democracy expresses that special status of human beings in God’s creation and enables them to discharge that responsibility.

Of course God’s vicegerent does not share God’s perfection of judgment and will. A constitutional democracy, then, acknowledges the errors of judgment, temptations, and vices associated with human fallibility by enshrining some basic moral standards in a constitutional document—moral standards that express the dignity of individuals. To be sure, democracy does not ensure justice. But it does establish a basis for pursuing justice and thus for fulfilling a fundamental responsibility assigned by God to each of us.

Of course, in a representative democracy some individuals have greater authority than others. But a democratic system makes those authorities accountable to all and thus resists the tendency of the powerful to render themselves immune from judgment. This requirement of accountability is consistent with the imperative of justice in Islam. If a political system has no institutional mechanisms to call the unjust to account, then the system is itself unjust, regardless of whether injustice is actually committed or not. If the criminal law does not assign punishment for rape, then it is unjust, quite apart from whether that crime is ever committed or not. It is a moral good in and of itself that a democracy, through the institutions of the vote, separation and division of power, and guarantee of pluralism at least offers the possibility of redress.

We have a provisional case for democracy, then, founded on a fundamental Islamic idea about the special status of human beings in God’s creation. It is provisional because we have not yet considered the great challenge to that case: how can the higher law of Shari‘ah, founded on God’s sovereignty, be reconciled with the democratic idea that the people, as the sovereign, can be free to flout Shari‘ah law?

God as the Sovereign

Early in Islamic history the issue of God’s political dominion (hakimiyyat Allah) was raised by a group known as the Haruriyya (later known as the Khawarij) when they rebelled against the fourth Rightly Guided Caliph ‘Ali Ibn Abi Talib. Initially supporters of ‘Ali, the Haruriyya turned against him when he agreed to arbitrate his political dispute with a competing political faction led by a man named Mu‘awiya.

‘Ali himself had agreed to the arbitration on condition that the arbitrators be bound by the Qur’an and give full consideration to the supremacy of the Shari‘ah. But the Khawarij—pious, puritanical, and fanatical—believed that God’s law clearly supported ‘Ali. So they rejected arbitration as inherently unlawful and, in effect, a challenge to God’s sovereignty. According to the Khawarij, ‘Ali’s behavior showed that he was willing to compromise God’s supremacy by transferring decision making to human actors. They declared ‘Ali a traitor to God, and after efforts to reach a peaceful resolution failed they assassinated him. After ‘Ali’s death, Mu‘awiya seized power and established himself as the first caliph of the Umayyad Dynasty.

Anecdotal reports about the debates between ‘Ali and the Khawarij reflect an unmistakable tension about the meaning of legality and the implications of the rule of law. In one such report members of the Khawarij accused ‘Ali of accepting the judgment and dominion (hakimiyya) of human beings instead of abiding by the dominion of God’s law. Upon hearing of this accusation, ‘Ali called upon the people to gather around him and brought a large copy of the Qur’an. ‘Ali touched the Qur’an while instructing it to speak to the people and inform them about God’s law. Surprised, the people gathered around ‘Ali exclaimed, “What are you doing? The Qur’an cannot speak, for it is not a human being!” Upon hearing this, ‘Ali exclaimed that this was exactly his point. The Qur’an, ‘Ali explained, is but ink and paper, and it does not speak for itself. Instead, it is human beings who give effect to it according to their limited personal judgments and opinions.1 2 of 13 11/5/2009 6:48 PM Islam and the Challenge of Democracy, Boston Review, April-May 2003 Issue http://www.scholarofthehouse.org/isandchofdeb.html

Such stories are subject to multiple interpretations, but this one points most importantly to the dogmatic superficiality of proclamations of God’s sovereignty that sanctify human determinations. Notably, the Khawarij’s rallying cry of “dominion belongs to God” or “the Qur’an is the judge” (la hukma illa li’llah or al-hukmu li’l-Qur’an) is nearly identical to the slogans invoked by contemporary fundamentalist groups.2 But considering the historical context, the Khawarij’s sloganeering was initially a call for the symbolism of legality and the supremacy of law that descended into an unequivocal radicalized demand for fixed lines of demarcation between what is lawful and unlawful.

To a believer, God is all-powerful and the ultimate owner of the heavens and earth. But when it comes to the laws in a political system, arguments claiming that God is the sole legislator endorse a fatal fiction that is indefensible from the point of view of Islamic theology. Such arguments pretend that (some) human agents have perfect access to God’s will, and that human beings could become the perfect executors of the divine will without inserting their own human judgements and inclinations in the process.

Moreover, claims about God’s sovereignty assume that the divine legislative will seeks to regulate all human interactions, that Shari‘ah is a complete moral code that prescribes for every eventuality. But perhaps God does not seek to regulate all human affairs, and instead leaves human beings considerable latitude in regulating their own affairs as long as they observe certain minimal standards of moral conduct, including the preservation and promotion of human dignity and well-being. In the Qur’anic discourse, God commanded creation to honor human beings because of the miracle of the human intellect—an expression of the abilities of the divine. Arguably, the fact that God honored the miracle of the human intellect and the human being as a symbol of divinity is sufficient to justify a moral commitment to protecting and preserving the integrity and dignity of that symbol of divinity. But—and this is ‘Ali’s central point—God’s sovereignty provides no escape from the burdens of human agency.

When human beings search for ways to approximate God’s beauty and justice, then, they do not deny God’s sovereignty; they honor it. It is honored as well in the attempt to safeguard the moral values that reflect the attributes of the divine. If we say that the only legitimate source of law is the divine text and that human experience and intellect are irrelevant to the pursuit of the divine will, then divine sovereignty will always stand as an instrument of authoritarianism and an obstacle to democracy. But that authoritarian view denigrates God’s sovereignty.

I will further develop this argument below, but to make the case more compelling and accessible, I need first to lay a broader foundation for Islamic political and legal doctrines.

Government and Law

If, as many Muslim fundamentalists and Western orientalists contend, God’s dominion or sovereignty means that God is the sole legislator, then one would expect that a caliph or Muslim ruler would be treated as God’s agent or representative. If God is the only sovereign within a political system, then the ruler ought to be appointed by the divine sovereign, serve at His pleasure, and implement His will. But just as the meaning and implications of God’s sovereignty were the subject of an intense debate in pre-modern Islam, so were the powers of the ruler and the place of law in circumscribing those powers. And some lines of argument in the debate resonate with modern democratic ideas.

Ruler and Ruled

It is well established, at least in Sunni Islam, that the Prophet died without naming a successor to lead the Muslim community. The Prophet intentionally left the choice of leadership to the Muslim nation as a whole. A statement attributed to the Rightly Guided Caliph Abu Bakr asserts, “God has left people to manage their own affairs so that they will choose a leader who will serve their interests.”3

The word khalifa (caliph), the title given to the Muslim leader, literally means successor or deputy. Early on Muslims debated whether it was appropriate to name the leader the Caliph of God (khalifat Allah), but most scholars preferred the designation Caliph of the Prophet of God (khalifat rasul Allah). But the Caliph—whether the Prophet’s successor or God’s deputy—did not enjoy the authority of either the Prophet or God whose powers of legislation, revelation, absolution, and punishment cannot be delegated to any other. But how much of the Prophet’s authority does the Caliph enjoy? And to whom does the Caliph answer?

If the Caliph’s primary obligation is to implement divine law, then arguably the Caliph answers only to God. So long as the Caliph’s actions are plausible interpretations of God’s mandates, then such interpretations must be accepted and the Caliph has fulfilled his duties to the people. Only God can assess the Caliph’s intentions, and—most Sunni jurists argued—a ruler is not removable from power unless he commits a clear, visible, and major infraction against God (i.e., a major sin).

Muslim jurists did not, however, completely sever the connection between ruler and people. In Sunni theory the Caliphate must be based on a contract (‘aqd) between the Caliph and ahl al-hall wa al-‘aqd (the people who have the power of contract) who give their bay‘a (allegiance or consent to the Caliph): the Caliph is to receive the bay‘a in return for his promise to discharge the terms of the contract. The terms of the contract were not extensively discussed in Islamic sources. Typically, jurists would include the obligation to apply God’s law and to protect Muslims and the territory of Islam; in return the ruler was promised the people’s support and obedience. The assumption has been that Shari‘ah law defines the terms of the contract.

Who are the people that have the power to choose and remove the ruler? The Mu‘tazili4 scholar Abu Bakr al-Asam (d. 200/816) argued that the public at large must have this power: there must be a 3 of 13 11/5/2009 6:48 PM Islam and the Challenge of Democracy, Boston Review, April-May 2003 Issue http://www.scholarofthehouse.org/isandchofdeb.html general consensus over the ruler and each person must individually give his consent.5 The vast majority of Muslim jurists argued more pragmatically that ahl al-hall wa al-‘aqd are those who possess the necessary shawka (power or strength) to insure the obedience or, in the alternative, the consent of the public.

The idea of the consent of the governed, despite its democratic resonance, ought not to be equated with conceptions of delegated powers or government by the people. Consent in pre-modern Muslim discourses appears to be the equivalent of acquiescence. Underlying these discussions is a certain amount of distrust towards the laity (al-‘amma): “They [the laity] tend to float with every ebb and flow, and maybe [the laity] will be more content with choosing [to the Caliphate] the wrong-doers instead of the righteous [rulers] . . .”6 This type of attitude was widespread among Muslim jurists, and considering the historical period in which they wrote—well before any experience with mass democracy or broad literacy—it is not surprising. As a result many of the concepts employed in political discourses suggest an idea of representative government but never fully endorse it. In the dominant paradigm both ruler and ruled are God’s agents (khulafa’ Allah) in implementing the divine law.

The Rule of Law

As noted above, an essential characteristic of a legitimate Islamic government is that it is subject to and limited by Shari‘ah law. Although this concept does offer support for the rule of law, we must distinguish between the supremacy of law and the supremacy of a set of legal rules. The two are quite distinct, and both are suggested in the Islamic legal tradition. Once again, Islamic political thought contains a range of interpretive possibilities. And once again, some of those possibilities resonate more strongly with democratic principles.

In asserting the supremacy of Shari‘ah, Muslim scholars typically were arguing that its positive commandments, such as punishment for adultery or the drinking of alcohol, ought to be honored by the government. But a government that declares its intention to abide by all the positive commandments of Shari‘ah may nevertheless manipulate the rules in order to obtain desired results. Under the pretense of guarding public modesty the government could pass arbitrary laws forbidding many forms of public assembly; under the guise of protection of orthodoxy it could pass arbitrary laws to punish creative expression; under the guise of protecting individuals from slander, it could suppress many forms of political and social criticism; and a government could imprison or execute political dissenters, claiming that they are sowing fitnah (discord and social turmoil). Arguably, all these governmental actions are Shari‘ah-compliant unless there is a clear sense of the limits imposed upon the ability of the government to service and promote even the Shari‘ah.

But the rule of law need not be taken to mean that government is bound by a codebook of specific regulations. Instead, it might be interpreted as requiring a government bound by processes of making and interpreting laws, and even more importantly as requiring that those processes themselves be bound by fundamental moral commitments—in particular to human dignity and freedom.

We find some evidence for this alternative conception of the rule of law in the pre-modern juristic literature. Jurists discussed the limits to be placed on the lawmaking power of the state, in part under the rubric of public interest (al-masalih al-mursalah) and blocking the means to illegality (sadd al-dhari‘ah). Both jurisprudential concepts enabled the state to extend its law making powers in order to fulfill a good or avoid an evil. For instance, pursuant to the principle of blocking the means, the lawmaker could claim that behavior that is lawful ought to be considered unlawful because it leads to the commission of illegal acts. In essence, both public interest and blocking the means made law more flexible and adaptive. Of course, they could be employed to expand the law not only in the service of the public good but at the expense of individual autonomy as well. In particular, blocking the means to evil, founded on the idea of preventive or precautionary measures (al-ihtiyat), could be exploited to expand the power of the state under the guise of protecting the Shari‘ah. This type of dynamic can be avoided in part by adopting procedural guarantees, but more importantly by understanding that the rule of law is as ensuring the dignity and freedoms of human beings, which the Shari‘ah can be utilized to justify but not to undermine.

An important dimension to the challenge of establishing the rule of law is the complex relationship between Shari‘ah law, as articulated by jurists, and the administrative practices of the state or expediency laws (al-ahkam al-siyasiyyah). While in the first two centuries of Islam it was possible to find jurists citing the practices of the state as a normative precedent, this became increasingly rare. By the fourth/tenth century Muslim jurists had established themselves as the only legitimate authority empowered to expound the law of God. The practice of the state was not considered illegitimate, but only the Muslim jurists could settle the law. The state was expected to enforce divine laws, not to determine their content.

Still, as the enforcer of divine laws the state was granted broad discretion over matters of public interest (known as the field of al-siyasah al-Shar‘iyyah). State regulations were lawful and enforceable as long as they did not contravene the divine law, as expounded by the jurists, or constitute an abusive use of discretion (al-ta‘assuf fi masa’il al-khiyar). For this reason jurisprudential works meticulously documented the determinations of jurists but did not document state regulations, which were documented by state functionaries in works on the administrative practices of the state. In the dictum of Muslim jurists, Shari‘ah is considered the foundation of law and politics is its protector. (Similarly, Muslim jurists often would assert that religion is the foundation and the political authorities are its protector.) This paradigm, however, leaves unresolved the core problem of how to clearly delineate the limits of government power. To what extent can the government extend the reach of its laws under the guise of guarding or properly fulfilling purposes of Shari‘ah?

Concerns about the reach of the government’s power under Shari‘ah have antecedents in Islamic 4 of 13 11/5/2009 6:48 PM Islam and the Challenge of Democracy, Boston Review, April-May 2003 Issue http://www.scholarofthehouse.org/isandchofdeb.html history and so, by the standards of the modern age, this is not an entirely novel issue. But such concerns are nearly absent from the framework of contemporary Islamists. To date, Islamist models, whether in Iran, Saudi Arabia, or Pakistan, have endowed the state with legislative power over the divine law. For instance, the claim of precautionary measures (blocking the means) is used today in Saudi Arabia to justify a wide range of restrictive laws against women, including the prohibition against driving cars. This is a relatively novel invention in Islamic state practices and in many instances amounts to the use of Shari‘ah to undermine Shari‘ah.

Traditionally, Muslim jurists insisted that the rulers ought to consult with the jurists on all matters related to law, but the jurists themselves never demanded the right to rule the Islamic state directly. In fact, until recently neither Sunni nor Shi‘i jurists ever assumed direct rule in the political sphere.7 Throughout Islamic history the jurists (‘ulama) performed a wide range of economic, political, and administrative functions but most importantly acted as negotiative mediators between the ruling classes and the laity. As Afaf Marsot states: “[The ‘ulama] were the purveyors of Islam, the guardians of its tradition, the depository of ancestral wisdom, and the moral tutors of the population.”8 While they legitimated and often explained the rulers to the ruled, the jurists also used their moral weight to thwart tyrannous measures and at times led or legitimated rebellions against the ruling classes. Modernity, however, has turned the ‘ulama from “vociferous spokesmen of the masses” into salaried state functionaries who play a primarily conservative, legitimist role for the ruling regimes in the Islamic world.9 The disintegration of the role of the ‘ulama and their co-optation by the modern praetorian state, with its hybrid practices of secularism, have opened the door for the state to become the maker and enforcer of the divine law; in so doing the state has acquired formidable power that has further ingrained the practice of authoritarianism in various Islamic states.

Consultative Government

The Qur’an instructs the Prophet to consult regularly with Muslims on all significant matters and indicates that a society that conducts its affairs through some form of deliberative process is considered praiseworthy in the eyes of God (3:159; 42:38). There are many historical reports suggesting that the Prophet consulted regularly with his Companions regarding the affairs of the state. In addition, shortly after the death of the Prophet the concept of shura (consultative deliberations) had become a symbol signifying participatory politics and legitimacy. The failure to enforce or adhere to shura became a common theme invoked in narratives of oppression and rebellion. For example, it is reported that the Prophet’s cousin ‘Ali reproached Umar b. al-Khattab, the second caliph, and Abu Bakr, the first caliph, for not respecting the shura by nominating Abu Bakr to the caliphate in the absence of the Prophet’s family.10 And the opposition to ‘Uthman b. ‘Affan (r. 23–35/644–656), the third Rightly Guided Caliph, accused him of destroying the rule of shura because of his alleged nepotistic and autocratic policies.

Although the precise meaning of shura in these historical narratives is unclear, the concept most certainly did not refer merely to a ruler’s solicitation of opinions from notables in society; it signified, more broadly, resistance to autocracy, government by force, or oppression. This is consistent with the juristic hostility towards despotism (al-istibdad) and whimsical and autocratic governance (al-hukm bi’l hawa wa al-tasallut). Even when Muslim jurists prohibited rebellions against despotic rulers, they tolerated despotism as a necessary evil, not as a desirable good.

After the third/ninth century the concept of shura took more concrete institutional shape in the discourses of Muslim jurists. Shura became the formal act of consulting ahl al-shura (the people of consultation), who according to the juristic sources are the same group of people who constitute ahl al-‘aqd (the people who choose the ruler). Sunni jurists debated whether the results of the consultative process are binding (shura mulzima) or non-binding (ghayr mulzima). If the shura is binding then the ruler must abide by the determinations made by ahl al-shura. The majority of jurists, however, concluded that the determinations of ahl al-shura are advisory and not compulsory. But, rather inconsistently, many jurists asserted that after consultation the ruler must follow the opinion that is most consistent with the Qur’an, , and the consensus of jurists. Al-Ghazali expressed the general consensus when he said that “[d]espotic, non-consultative, decision-making, even if from a wise and learned person is objectionable and unacceptable.”11

Modern reformists have seized upon the ideal of a consultative government as a way of arguing for the basic compatibility between . But even if the ethic of shura is expanded into a broader concept of a participatory government, concerns about majority tyranny underscore that the moral commitments informing the lawmaking process are as important as the process itself. So even if shura is transformed into an instrument of participatory representation, it must itself be limited by a scheme of private and individual rights that serve an overriding moral goal such as justice. In other words, shura must be valued not because of the results it produces but because it represents a moral value in itself. As a result, regardless of the value of specific dissenting views, dissent would be tolerated because doing so is seen as a basic part of the mandate of justice.

The Islamic tradition of legal-political thought, then, suggests ideas of representation, consultation, and legal process. But the precise content of those ideas remains contested and provides no direct link between Islam and democracy. To understand the democratic possibilities of Islam we must look more deeply into the role of human beings in God’s creation and the central importance of justice in human life assigned by the Qur’an.

Justice and Mercy

Justice plays a central role in the Qur’anic discourse: it is an obligation we owe to God, and also to one another. In addition, the imperative of justice is tied to the obligations of enjoining the good and forbidding the evil, and the necessity of bearing witness on God’s behalf. Although the Qur’an does not define the constituent elements of justice, it emphasizes the ability to achieve justice as a unique human charge and necessity—an obligation that falls on all of us in our capacity as vicegerents. In 5 of 13 11/5/2009 6:48 PM Islam and the Challenge of Democracy, Boston Review, April-May 2003 Issue http://www.scholarofthehouse.org/isandchofdeb.html essence the Qur’an requires a commitment to a moral imperative that is vague but recognizable through intuition, reason, and human experience.

The Islamic debate about how government might serve justice is remarkably similar to seventeenth- century Western discourse on the state of nature or the original condition of human beings. One view—advanced by Ibn Khaldun and al-Ghazali—argued that human beings are by nature fractious, contentious, and not inclined towards cooperation. So, government is necessary to force people to cooperate with each other, contrary to their natures, and to promote justice and the general interest.

Another school of thought, exemplified by al-Mawardi and Ibn Abi al-Rabi‘, argued that God created human beings weak and in need so that they would cooperate by necessity; cooperation would limit injustice by restraining the strong and safeguarding the rights of the weak. Furthermore, God created human beings different from one another so that they would need each other to achieve their aims. In this school of thought, human beings by nature desire justice and will tend to cooperate in order to achieve it. Even if human beings exploit the divine gift of intellect and the guidance of the law of God, through cooperation they are bound to reach a greater level of justice and moral fulfillment. And the ruler ascends to power through a contract with the people, pursuant to which he undertakes to further the cooperation of the people with the ultimate goal of achieving a just society.

In reflecting on the demands of justice the juristic argument about human diversity and cooperation is especially important. The Qur’an says that God created people different and grouped them into nations and tribes so that they would come to know one another. Muslim jurists reasoned that the expression “come to know one another” indicates the need for social cooperation and mutual assistance in order to achieve justice (49:13). The Qur’an also notes that people will remain different from one another until the end of human existence. It also states that the reality of human diversity is part of the divine wisdom and an intentional purpose of creation: “If thy Lord had so willed, He could have made mankind one people, but they will not cease to dispute . . .” (11:118).

The Qur’anic celebration and sanctification of human diversity incorporates that diversity into the purposeful pursuit of justice and creates various possibilities for pluralistic commitment in modern Islam. That commitment could be developed into an ethic that respects dissent and honors the right of human beings to be different, including the right to adhere to different religious or nonreligious convictions. At the political level it could be appropriated into a normative stance that considers justice and diversity to be core values that a democratic constitutional order is bound to protect. Furthermore, it could be developed into a notion of delegated powers, where the ruler is entrusted to serve the core value of justice by ensuring rights of assembly, cooperation, and dissent. Even more, a notion of limits could be developed that would restrain the government from derailing the quest for justice or from hampering the right of the people to cooperate, or dissent, in this quest. Importantly, if the government fails to discharge the obligations of its covenant, then it loses its legitimate claim to power.

Unfortunately, however, several factors militate against the fulfillment of these possibilities in modern Islam. At the theological and philosophical level the constituents of justice have not been subject to close examination in Islamic doctrine. And part of the explanation for that limitation lies in a basic tension in understanding the nature of justice. Does the divine law define justice or does justice define the divine law? If it is the former then whatever one concludes is the divine law therein is justice. If it is the latter, then whatever justice demands is, in fact, the demand of the divine.

If we can know what justice requires by first determining what the divine law is, then there is no point in investigating the demands of justice—whether justice means equality of opportunities or results, or fostering personal autonomy, or maximizing collective utility, or guarding basic human dignity. If the divine law is prior to justice, then the just society is no longer about rights of speech and assembly, or the right to explore the means to justice, but simply about the implementation of the divine law.

Suppose instead that we accept the primacy of justice in the Qur’anic discourse, the notion of human vicegerency, and the idea that the duty to foster justice has been assigned to humanity at large. A reasonable conclusion would be that the value of justice ought to control and guide all efforts at interpreting and understanding divine law. This requires a serious paradigm shift in Islamic thinking. In my view, justice is a divine imperative, and represents the sovereignty of the divine. God describes God’s self as inherently just, and the Qur’an asserts that God has decreed mercy upon God’s self (6:12, 54). Furthermore, the very purpose of entrusting the divine message to the Prophet Muhammad was as a gift of mercy to human beings.12

In the Qur’anic discourse mercy is not simply forgiveness, nor the willingness to ignore the faults and sins of people,13 but a state in which the individual is able to be just with him- or herself and others, by giving each individual person his or her due. Fundamentally, mercy is tied to a state of genuine perception of others—that is why in the Qur’an mercy is coupled with the need for human beings to be patient and tolerant with each other.14 Most significantly, diversity and differences among human beings are claimed in the Qur’anic discourse as merciful divine gifts to humankind (11:119).15 Genuine perception that enables persons to understand, appreciate, and become enriched by the diversity of humanity is one of the constituent elements for founding a just society and achieving justice. The divine charge to human beings at large and Muslims in particular is, as the Qur’an puts it, “to know one another,” and to utilize this genuine knowledge in an effort to pursue justice.

On this view, then, the divine mandate for a Muslim polity is to pursue justice by adhering to the need for mercy. Although coexistence is a basic necessity for mercy, in order to pursue genuine knowledge of the other and aspire to a state of justice, human beings need to cooperate in seeking the good and beautiful, and do so by engaging in a purposeful moral discourse. Implementing legalistic rules, even if such rules are the product of the interpretation of divine texts, is not sufficient for mercy—genuine perception of the other—or, ultimately, for justice. 6 of 13 11/5/2009 6:48 PM Islam and the Challenge of Democracy, Boston Review, April-May 2003 Issue http://www.scholarofthehouse.org/isandchofdeb.html

So principles of mercy and justice are the primary divine charge, and God’s sovereignty lies in the fact that God is the authority that delegated to human beings the charge to achieve justice on earth by fulfilling the virtues that approximate divinity.16 This conception of divine sovereignty does not negate human agency by requiring a mechanical enforcement of rules; instead, it accommodates our agency and even promotes it insofar as it contributes to the fulfillment of justice. Significantly, according to the juristic discourses it is not possible to achieve justice unless every possessor of a right (haqq) is granted his or her right. The challenge for human vicegerents is to recognize that a right exists, to understand who is the possessor of such a right, and ultimately to ensure that the possessor enjoys the right. A society that fails in this task—no matter how many rules it applies—is neither merciful nor just. This puts us in a position to explore the possibility of individual rights in Islam.

Individual Rights

All constitutional democracies afford strong protections to certain individual interests through rights of free speech and assembly, equality before the law, rights to property, and guarantees of due process. But which rights ought to be protected, and to what extent, is subject to a large measure of variation in theory and practice. Here I will suppose that whatever the precise nature of rights, some individual interests ought to be treated as unassailable. These unassailable interests are those whose violation communicates to the individual in question a sense of worthlessness and tends to destroy the faculty of a human being to comprehend the necessary elements for a dignified existence. So, use of torture and denial of food, shelter, or means of sustenance, such as employment, are always unacceptable.

To understand the traditional place of protected interests in Islamic law it is important to note that the purpose of Shari‘ah in jurisprudential theory is to assure the welfare of the people (tahqiq masalih al-‘ibad). Typically, Muslim jurists divided the welfare of the people into three categories: necessities (daruriyyat), needs (hajiyyat), and luxuries (kamaliyyat or tahsiniyyat). According to Muslim jurists the law and policies of the government must fulfill these interests, in descending order of importance —first necessities, then needs, then luxuries. The necessities are further divided into five basic values —al-daruriyyat al-khamsah: religion, life, intellect, lineage or honor, and property. But Muslim jurists did not develop the five basic values as broad categories and then explore the theoretical implications of each value. Rather, in a positivistic spirit, they examined existing legal injunctions that could be said to serve each value and concluded that by their codification of these specific injunctions, the five values would be sufficiently served. So, for example, Muslim jurists contended that the prohibition of murder in Islamic law served the basic value of life, the law of apostasy protected religion, the prohibition of intoxicants protected the intellect, the prohibition of fornication and adultery protected lineage, and the right of compensation protected the right to property. But limiting the protection of the intellect to a prohibition of alcohol or the protection of life to the prohibition of murder is hardly thorough. Unfortunately, it appears that the juristic tradition reduced these five values to technical objectives. Still, the broad values asserted could serve as a foundation for a systematic theory of individual rights in the modern age.17

To be sure, the juristic tradition articulated a wealth of positions that exhibit an orientation toward protections for individuals. For instance, Muslim jurists developed the idea of presumption of innocence in criminal and civil proceedings and argued that the accuser always carries the burden of proof (al-bayyina ‘ala man idda‘a). In matters related to heresy, Muslim jurists repeatedly argued that it is better to let a thousand heretics go free than to wrongfully punish a single sincere Muslim. In criminal cases the jurists argued that it is always better to release a guilty person than to run the risk of punishing an innocent one. Moreover, many jurists condemned the practice of detaining or incarcerating heterodox groups even when such groups openly advocated and proselytized their heterodoxy (such as the Khawarij) and argued that such groups may not be harassed or molested until they carry arms and form a clear intent to rebel against the government. Muslim jurists also condemned the use of torture, arguing that the Prophet forbade the use of muthla (the use of mutilations) in all situations,18 and opposed the use of coerced confessions in all legal and political matters.19 In fact, a large number of jurists articulated a doctrine similar to the American exculpatory doctrine—confessions or evidence obtained under coercion are inadmissible at trial. Interestingly, some jurists even asserted that judges who rely on a coerced confession in a criminal conviction are to be held liable for the wrongful conviction. Most argued that the defendant or his family may bring an action for compensation against the judge individually, and the caliph and his representatives generally, because the government is deemed vicariously liable for the unlawful behavior of its judges.

But perhaps the most intriguing discourse on the subject in the juristic tradition concerns the rights of God and the rights of people. The rights of God (huquq Allah) are rights retained by God in the sense that only God can say how the violation of these rights may be punished and only God has the right to forgive such violations. But all rights not explicitly retained by God are retained by people. And while violations of God’s rights are only forgiven by God through adequate acts of repentance, the rights of people may be forgiven only by the people. Thus, a right to compensation is retained individually by a human being and may only be forgiven by the aggrieved individual. Neither the government nor even God have the right to forgive or compromise such a right of compensation if it is designated as part of the rights of human beings.

Muslim jurists did not imagine a set of unwavering and generalizable rights that are to be held by each individual at all times. Rather, they thought of individual rights as arising from a legal cause brought about by the suffering of a legal wrong. A person does not possess a right until he or she has been wronged and obtains a claim for retribution or compensation as a result. To shift paradigms would require transformation of traditional conceptions of rights, so that rights become the property of individual holders, regardless of whether there is a legal cause of action. The set of rights recognized as immutable are those that are necessary to achieve a just society while promoting the 7 of 13 11/5/2009 6:48 PM Islam and the Challenge of Democracy, Boston Review, April-May 2003 Issue http://www.scholarofthehouse.org/isandchofdeb.html element of mercy. In my view these must be the rights that guarantee the physical safety and moral dignity of a human being. It is quite possible that the relevant individual rights are the five values mentioned above, but this issue needs to be re-analyzed in light of the current diversity of human existence. In this context, the commitment to human rights does not signify a lack of commitment to God but is instead a necessary part of celebrating human diversity, honoring God’s vicegerents, achieving mercy, and pursuing the ultimate goal of justice.

Interestingly enough, it is not the pre-modern juristic tradition that poses the greatest barrier to the development of individual rights in Islam. Rather, the most serious obstacle comes from modern Muslims themselves. Especially in the second half of the last century, a considerable number of Muslims have made the unfounded assumption that Islamic law is concerned primarily with duties, not rights, and that the Islamic conception of rights is collectivist, not individualistic. Both assumptions, however, are based only on cultural assumptions about the non-Western “other.” It is as if these interpreters fixed on a Judeo-Christian or perhaps Western conception of rights and assumed that Islam must be different.

In reality, claims about both individual and collectivist rights are largely anachronistic. Pre-modern Muslim jurists did not assert a collectivist vision of rights or an individualistic vision. They did speak of al-haqq al-‘amm (public rights), and often asserted that public rights ought to be given preference over private entitlements. But this amounted to no more than an assertion that the many should not be made to suffer for the entitlements of the few. For example, as a legal maxim this was utilized to justify the notion of public takings or the right to public easements over private property. This principle was also utilized in prohibiting unqualified doctors from practicing medicine.20 But as noted above, Muslim jurists did not, for instance, justify the killing or the torture of individuals in order to promote the welfare of the state or the public interest.

Perhaps the widespread assertion of a primacy of collectivist and duty-based perspectives in Islam points to the reactive nature of much contemporary discourse on Islamic law. But the notion of individual rights is actually easier to justify in Islam than a collectivist orientation. God created human beings as individuals, and their liability in the Hereafter is individually determined as well. To commit oneself to safeguarding and protecting the well-being of individuals is to take God’s creation seriously. Each individual embodies a virtual universe of divine miracles. Why should a Muslim commit him- or herself to the rights and well-being of a fellow human being? The answer is that God already made such a commitment when God invested so much of the God-self in each and every person. This is why the Qur’an asserts that whomever kills a fellow human being unjustly has in effect murdered all of humanity; it is as if the killer has murdered the divine sanctity and defiled the very meaning of divinity (5:32).

Moreover, the Qur’an does not differentiate between the sanctity of a Muslim or non-Muslim.21 As the Qur’an repeatedly asserts, no human being can limit the divine mercy in any way, or even regulate who is entitled to it (2:105; 3:74; 35:2, 38:9, 39.38; 40:7, 43:32). I take this to mean that non-Muslims as well as Muslims could be recipients and givers of divine mercy. The measure of moral virtue on this earth is a person’s proximity to divinity through justice, not a religious label. The measure in the Hereafter is a different matter, but that matter is God’s exclusive jurisdiction. God will most certainly vindicate God’s rights in the Hereafter in the fashion that God deems most fitting. But our primary moral responsibility on earth is the vindication of the rights of human beings. A commitment in favor of human rights is a commitment in favor of God’s creation and ultimately a commitment in favor of God.

Shari‘ah and the Democratic State

A case for democracy presented from within Islam must accept the idea of God’s sovereignty: it cannot substitute popular sovereignty for divine sovereignty, but must instead show how popular sovereignty—with its idea that citizens have rights and a correlative responsibility to pursue justice with mercy—expresses God’s authority, properly understood. Similarly, it cannot reject the idea that God’s law is given prior to human action, but must show how democratic lawmaking respects that priority. I have reserved the issue of Shari‘ah and the State for the end because it was necessary to first lay the foundation for addressing it. As part of this foundation, it is important to appreciate the centrality of Shari‘ah to Muslim life. Shari‘ah is God’s Way; it is represented by a set of normative principles, methodologies for the production of legal injunctions, and a set of positive legal rules. As is well known, Shari‘ah encompasses a variety of schools of thought and approaches, all of which are equally valid and equally orthodox.22 Nevertheless, Shari‘ah as a whole, with all its schools and variant points of view, remains the Way and Law of God.

The Shari‘ah, for the most part, is not explicitly dictated by God. Rather, Shari‘ah relies on the interpretive act of the human agent for its production and execution. Paradoxically, however, Shari‘ah is the core value that society must serve. The paradox here is exemplified in the tension between the obligation to live by God’s law and the fact that this law is manifested only through subjective interpretive determinations. Even if there is a unified realization that a particular positive command does express the divine law, there is still a vast array of possible subjective executions and applications. This dilemma was resolved somewhat in Islamic discourses by distinguishing between Shari‘ah and . Shari‘ah, it was argued, is the Divine Ideal, standing as if suspended in midair, unaffected and uncorrupted by life’s vagaries. The fiqh is the human attempt to understand and apply the ideal. Therefore, Shari‘ah is immutable, immaculate, and flawless—fiqh is not.23

As part of the doctrinal foundations for this discourse, Sunni jurists focused on the tradition attributed to the Prophet, stating: “Every mujtahid (jurist who strives to find the correct answer) is correct” or “Every mujtahid will be [justly] rewarded.” This implied that there could be more than a single correct answer to the same question. For Sunni jurists this raised the issue of the purpose or motivation behind the search for the Divine Will. What is the Divine Purpose behind setting out indicators to the divine law and then requiring that human beings engage in a search? If the Divine 8 of 13 11/5/2009 6:48 PM Islam and the Challenge of Democracy, Boston Review, April-May 2003 Issue http://www.scholarofthehouse.org/isandchofdeb.html wants human beings to reach the correct understanding, then how could every interpreter or jurist be correct? Put differently, is there a correct legal response to all legal problems, and are Muslims charged with the legal obligation of finding that response?

The overwhelming majority of Sunni jurists agreed that goodfaith diligence in searching for the Divine Will is sufficient to protect a researcher from liability before God. Beyond this, the jurists were divided into two main camps. The first school, known as the mukhatti’ah, argued that every legal problem ultimately has a correct answer; however, only God knows the correct response, and the truth will not be revealed until the Final Day. Human beings for the most part cannot conclusively know whether they have found that correct response. In this sense every mujtahid is correct in trying to find the answer; however, one reader might reach the truth while the rest might mistake it. God, on the Final Day, will inform all readers of who was right and who was wrong. Correctness here means that the mujtahid is to be commended for putting in the effort, but it does not mean that all responses are equally valid.

The second school, known as the musawwibah, argued that there is no specific and correct answer (hukm mu‘ayyan) that God wants human beings to discover: after all, if there were a correct answer, God would have made the evidence indicating a divine rule conclusive and clear. God cannot charge human beings with the duty to find the correct answer when there is no objective means to discover the correctness of a textual or legal problem. If there were an objective truth to everything, God would have made such a truth ascertainable in this life. Legal truth, or correctness, in most circumstances depends on belief and evidence, and the validity of a legal rule or act is often contingent on the rules of recognition that provide for its existence. Human beings are not charged with the obligation of finding some abstract or inaccessible, legally correct result. Rather, they are charged with the duty to diligently investigate a problem and then follow the results of their own ijtihad. According to al-Juwayni, for example, what God wants or intends is for human beings to search—to live a life fully and thoroughly engaged with the divine. Al-Juwayni explains: it is as if God has said to human beings, “My command to My servants is in accordance with the preponderance of their beliefs. So whoever preponderantly believes that they are obligated to do something, acting upon it becomes My command.”24 God’s command to human beings is to diligently search and God’s law is suspended until a human being forms a preponderance of belief about the law. At the point that a preponderance of belief is formed, God’s law becomes in accordance with the preponderance of belief formed by that particular individual. In summary, if a person honestly and sincerely believes that such and such is the law of God, then as to that person it is in fact God’s law.

The position of the second school in particular raises difficult questions about the application of the Shari‘ah in society. This position implies that God’s law is to search for God’s law; otherwise the legal charge (taklif) is entirely dependent on the subjectivity and sincerity of belief. Under the first school of thought, whatever law the state applies, that law is only potentially the law of God, and we will not find out until the Final Day. Under the second school of thought, any law applied by the state is not the law of God unless the person to which the law applies believes it to be God’s will and command. The first school suspends knowledge until we are done living and the second school hinges knowledge on the validity of the process and ultimate sincerity of belief.

Building upon this intellectual heritage, I would suggest Shari‘ah ought to stand in an Islamic polity as a symbolic construct for the divine perfection that is unreachable by human effort. As Ibn Qayyim stated, it is the epitome of justice, goodness, and beauty as conceived and retained by God. Its perfection is preserved, so to speak, in the Mind of God, but anything that is channeled through human agency is necessarily marred by human imperfection. Put differently, Shari‘ah as conceived by God is flawless, but as understood by human beings Shari‘ah is imperfect and contingent. Jurists ought to continue to explore the ideal of Shari‘ah and to expound their imperfect attempts at understanding God’s perfection. As long as the argument constructed is normative it is unfulfilled potential to reach the Divine Will. Significantly, any law applied is necessarily a potential-unrealized. Shari‘ah is not simply a collection of ahkam (a set of positive rules) but also a set of principles, a methodology, and a discoursive process that searches for the divine ideals. As such, Shari‘ah is a work in progress that is never complete.

To put it more concretely: if a legal opinion is adopted and enforced by the state, it cannot be said to be God’s law. By passing through the determinative and enforcement processes of the state, the legal opinion is no longer simply a potential—it has become an actual law, applied and enforced. But what has been applied and enforced is not God’s law—it is the state’s law. Effectively, a religious state law is a contradiction in terms. Either the law belongs to the state or it belongs to God, and as long as the law relies on the subjective agency of the state for its articulation and enforcement, any law enforced by the state is necessarily not God’s law. Otherwise, we must be willing to admit that the failure of the law of the state is in fact the failure of God’s law and, ultimately, of God Himself. In Islamic theology, this possibility cannot be entertained.25

Of course, the most formidable challenge to this position is the argument that God and His Prophet have set out clear legal injunctions that cannot be ignored. Arguably, God provided unambiguous laws precisely because God wished to limit the role of human agency and foreclose the possibility of innovations. But—to return one last time to a point I have emphasized throughout—regardless of how clear and precise the statements of the Qur’an and Sunna, the meaning derived from these sources is negotiated through human agency. For example, the Qur’an states: “As to the thief, male or female, cut off (faqta‘u) their hands as a recompense for that which they committed, a punishment from God, and God is all-powerful and all-wise” (5:38). Although the legal import of the verse seems to be clear, it requires at minimum that human agents struggle with the meaning of “thief,” “cut off,” “hands,” and “recompense.” The Qur’an uses the expression iqta‘u, from the root word qata‘a, which could mean to sever or cut off, but it could also mean to deal firmly, to bring to an end, to restrain, or to distance oneself from.26 Whatever the meaning derived from the text, can the human interpreter claim with certainty that the determination reached is identical to God’s? And even when the issue of meaning is resolved, can the law be enforced in such a fashion that one can claim that the result 9 of 13 11/5/2009 6:48 PM Islam and the Challenge of Democracy, Boston Review, April-May 2003 Issue http://www.scholarofthehouse.org/isandchofdeb.html belongs to God? God’s knowledge and justice are perfect, but it is impossible for human beings to determine or enforce the law in such a fashion that the possibility of a wrongful result is entirely excluded. This does not mean that the exploration of God’s law is pointless; it only means that the interpretations of jurists are potential fulfillments of the Divine Will, but the laws as codified and implemented by the state cannot be considered as the actual fulfillment of these potentialities.

Institutionally, it is consistent with the Islamic experience that the ‘ulama, the jurists, can and do act as the interpreters of the Divine Word, the custodians of the moral conscience of the community, and the curators reminding and pointing the nation towards the Ideal that is God.27 But the law of the state, regardless of its origins or basis, belongs to the state. Under this conception, no religious laws can or may be enforced by the state. All laws articulated and applied in a state are thoroughly human and should be treated as such. These laws are a part of Shari‘ah law only to the extent that any set of human legal opinions can be said to be a part of Shari‘ah. A code, even if inspired by Shari‘ah, is not Shari‘ah. Put differently, creation, with all its textual and nontextual richness, can and should produce foundational rights and organizational laws that honor and promote those rights. But the rights and laws do not mirror the perfection of divine creation. According to this paradigm, democracy is an appropriate system for Islam because it both expresses the special worth of human beings—the status of vicegerency—and at the same time deprives the state of any pretense of divinity by locating ultimate authority in the hands of the people rather than the ‘ulama. Moral educators have a serious role to play because they must be vigilant in urging society to approximate God. But not even the will of the majority—no matter how well educated morally—can embody the full majesty of God. And in the worst case—if the majority is not persuaded by the ‘ulama, if the majority insists on turning away from God but still respects the fundamental rights of individuals, including the right to ponder creation and call to the way of God—those individuals who constituted the majority will still have to answer, in the Hereafter, to God. <

Khaled Abou El Fadl is the Omar and Azmeralda Alfi Distinguished Fellow in Islamic Law at UCLA and author most recently of The Place of Tolerance in Islam.

Notes

1. Muhammad b. ‘Ali b. Muhammad al-Shawkani, Nayl al-Awtar Sharh Muntaqa al-Akhbar (Cairo: Dar al-Hadith, n.d.), 7:166; Shihab al-Din Ibn Hajar al-‘Asqalani, Fath al-Bari bi Sharh Sahih al-Bukhari (Beirut: Dar al-Fikr, 1993), 14:303.

2. Ironically, Shi ‘i and Sunni fundamentalist groups detest the Khawarij and consider them heretics, but this is not because these modern groups disagree with the Khawarij’s political slogans, but because the Khawarij murdered ‘Ali, the cousin of the Prophet.

3. ’Abd Allah b. Muslim b. Qutayba (attributed), al-Imama wa al-Siyasa, ed. Zini Taha (Cairo: Mu’assasat al-Halabi, 1967), 21. This book is traditionally known as Ta’rikh al-Khulafa’.

4. The Mu‘tazilah was a theological school of thought whose adherents called themselves ahl al-‘adl wa al-tawhid (the people of justice and unity). The school traces its origins to the thought of Wasil b. ‘Ata’ (d. 131/748) in Basra. The Mu‘tazilah are often described as rationalists for their emphasis on rational theology. They also considered justice and enjoining the good and forbidding the evil to be among the five basic principles of faith. The Mu‘tazilah’s five principles of faith were: (1) tawhid (believing in the unity and singularity of God); (2) ‘adl (justice); (3) al-wa‘d wa al-wa‘id (the promise of reward and threat of punishment); (4) al-manzilah bayna al-manzilatayn (those who commit a major sin are neither believers nor non-believers); (5) al-amr bi al-ma‘ruf wa al-nahy ‘an al-munkar (commanding the good and prohibiting the evil).

5. Citing the precedent of the Prophet in Medina, al-Asam maintained that this included free Muslim women, but not non-Muslims nor slaves. Reportedly, upon migrating to Medina, the Prophet took the bay‘a from a number of native women as well as men. Muhammad ‘Imara, al-Islam wa Falsafat al-Hukm (Beirut: n.p., 1979), 431-432.

6. ‘Imara, al-Islam, 435.

7. After the evacuation of the French in in 1801, ‘Umar Makram with the assistance of the jurists overthrew the French agent left behind. Instead of assuming power directly, the jurists offered the government to the Egyptianized Albanian Muhammad ‘Ali.

8. Afaf Lutfi al-Sayyid Marsot, “The Ulama of Cairo in the Eighteenth and Nineteenth Century,” in Scholars, Saints, and Sufis, ed. Nikki Keddi (Berkeley: University of California Press, 1972), 149.

9. Daniel Crecelius, “Egyptian Ulama and Modernization,” in Scholars, 167-209, 168.

10. Jalal al-Din al-Suyuti, Ta’rikh al-Khulafa’, ed. Ibrahim Abu al-Fadl (Cairo: Dar al-Nahda, 1976), 109.

11. Abu Hamid Al-Ghazali, Fada’ih al-Batiniyya, ed. ‘Abd al-Rahman (Cairo: Dar al-Qawmiyya, 1964), 186, 191; Muhammad Jalal Sharaf and ‘Ali Abd al-Mu’ti Muhammad, al-Fikr al-Siyasi fi al-Islam: Shakhsiyyat wa Madhahib, (Alexandria: dar al-jami’at al-Msriyya, 1978) 399-403.

12. Qur’an 21:107, which addressing the Prophet states: “We have not sent you except as a mercy to human beings.” Also, see Qur’an, 16:89. In fact, the Qur’an describes the whole of the Islamic message as based on mercy and compassion. Islam was sent to teach and establish these virtues among human beings. I believe that as to Muslims, as opposed to Islam, this creates a normative 10 of 13 11/5/2009 6:48 PM Islam and the Challenge of Democracy, Boston Review, April-May 2003 Issue http://www.scholarofthehouse.org/isandchofdeb.html imperative of teaching mercy (27:77; 29:51; 45:20). But to teach mercy is impossible unless one learns it, and such knowledge cannot be limited to text. It is ta‘aruf (the knowledge of the other), which is premised on an ethic of care that opens the door to learning mercy, and in turn teaching it.

13. In Qur’anic terms, rahma (mercy) is not limited to maghfira (forgiveness).

14. The Qur’an explicitly commands human beings to deal with one another with patience and mercy (90:17) and not to transgress their bounds by presuming to know who deserves God’s mercy and who does not (43:32). An Islamic moral theory focused on mercy as a virtue will overlap with the ethic of care developed in Western moral theory.

15. This idea is also exemplified in a tradition attributed to the Prophet asserting that the disagreement and diversity of opinion of the umma (Muslim nation) is a source of divine mercy for Muslims.

16. Of course, approximating the divine does not mean aspiring to become divine. Approximating the divine means visualizing the beauty and virtue of the divine, and striving to internalize as much as possible of this beauty and virtue. I start with the theological assumption that God cannot be comprehended or understood by the human mind. God, however, teaches moral virtues that emanate from the divine nature, and that are also reflected in creation. By imagining the possible magnitudes of beauty and its nature, human beings can better relate to the divine. The more humans are able to relate to the ultimate sense of goodness, justice, mercy, and balance, which embody divinity, the more they are able to visualize, or imagine the nature of divinity, and the more they are able to model their own sense of beauty and virtue as approximations of divinity.

17. I would argue that the protection of religion should be developed to mean protecting the freedom of religious belief; the protection of life should mean that the taking of life must be for a just cause and the result of a just process; the protection of the intellect should mean the right to free thinking, expression and belief; the protection of honor should mean the protecting of the dignity of a human being; and the protection of property should mean the right to compensation for the taking of property.

18. Muslim jurists, however, did not consider the severing of hands or feet as punishment for theft and banditry to be mutilation.

19. A considerable number of jurists in Islamic history were persecuted and murdered for holding that a political endorsement (bay‘a) obtained under duress is invalid. Muslim jurists described the death of these scholars under such circumstances as a death of musabara. This had become an important discourse because caliphs were in the habit of either bribing or threatening notables and jurists to obtain their bay‘a.

20. Muslim jurists also asserted that specific rights and duties should be given priority over general rights and duties. But, again, this was a legal principle that applied to laws of agency and trust. Although the principle could be expanded and developed to support individual rights in the modern age, historically, it was given a far more technical and legalistic connotation.

21. Some pre-modern jurists did differentiate between Muslim and non-Muslim especially in matters pertaining to criminal liability and compensation for torts.

22. The four surviving Sunni schools of law and legal thought are the Hanafi, Maliki, Shafi‘I, and Hanbali schools.

23. I am simplifying this sophisticated doctrine in order to make a point. Muslim jurists engaged in lengthy attempts to differentiate between the two concepts of Shari‘ah and fiqh.

24. Al-Juwayni, Kitab al-Ijtihad, 61.

25. Contemporary Islamic discourses suffer from a certain amount of hypocrisy in this regard. Often, Muslims confront an existential crisis if the enforced, so-called, Islamic laws result in social suffering and misery. In order to solve this crisis, Muslims will often claim that there has been a failure in the circumstances of implementation. This indulgence in embarrassing apologetics could be avoided if Muslims would abandon the incoherent idea of Shari‘ah state law.

26. Ahmed Ali argues in Al-ur’an: A Contemporary Translation ( Press, 2001) that the word used in the Qur’an does not mean to amputate a limb, but means to “stop their hands from stealing by adopting deterrent means . . .” (113). Classical jurists placed conditions that were practically impossible to fulfill before a limb could be amputated.

27. In order for the ‘ulama to play a meaningful role in civil society they must first regain their institutional and moral independence.

Originally published in the April/May 2003 issue of Boston Review

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November 9, 2009 Complications Grow for Muslims Serving in U.S. Military

By ANDREA ELLIOTT

Abdi Akgun joined the Marines in August of 2000, fresh out of high school and eager to serve his country. As a Muslim, the attacks of Sept. 11 only steeled his resolve to fight terrorism.

But two years later, when Mr. Akgun was deployed to Iraq with the 26th Marine Expeditionary Unit, the thought of confronting Muslims in battle gave him pause.

He was haunted by the possibility that he might end up killing innocent civilians.

“It’s kind of like the Civil War, where brothers fought each other across the Mason-Dixon line,” Mr. Akgun, 28, of Lindenhurst, N.Y., who returned from Iraq without ever pulling the trigger. “I don’t want to stain my faith, I don’t want to stain my fellow Muslims, and I also don’t want to stain my country’s flag.”

Thousands of Muslims have served in the United States military — a legacy that some trace to the First World War. But in the years since Sept. 11, 2001, as the United States has become mired in two wars on Muslim lands, the service of Muslim-Americans is more necessary and more complicated than ever before.

In the aftermath of the shootings at Fort Hood on Thursday by Maj. Nidal Malik Hasan of the Army, a psychiatrist, many Muslim soldiers and their commanders say they fear that the relationship between the military and its Muslim service members will only grow more difficult.

On Sunday, the Army’s chief of staff, Gen. George W. Casey Jr., said he worried about a backlash against Muslims in the armed forces and emphasized the military’s reliance on those men and women.

“Our diversity, not only in our Army but in our country, is a strength,” General Casey said Sunday on “Meet the Press” on NBC. “And as horrific as this tragedy was, if our diversity becomes a casualty, I think that’s worse.”

It is unclear what might have motivated Major Hasan, who is suspected of killing 13 people. Senior military and law enforcement officials said they had tentatively dismissed the possibility that he was carrying out a terrorist plot. He seems to have been influenced by a mixture of political, religious and psychological factors, the officials said.

Muslim leaders, advocates and military service members have taken pains to denounce the shooting and distance themselves from Major Hasan. They make the point that his violence is no more representative of them than it is of other groups to which he belongs, including Army psychiatrists.

“I don’t understand why the Muslim-American community has to take responsibility for him,” said Ingrid

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Mattson, the president of the Islamic Society of North America. “The Army has had at least as much time and opportunity to form and shape this person as the Muslim community.”

That sentiment was echoed by Senator Lindsey Graham, Republican of South Carolina, who told “Face the Nation” on CBS that the shooting was “not about his religion — the fact that this man was a Muslim.”

Yet also Sunday, Senator Joseph I. Lieberman, independent of Connecticut, announced on “Fox News Sunday” that he would hold hearings to explore whether Major Hasan’s actions constituted terrorism.

Whatever his possible motives, the emerging portrait of Major Hasan’s life in the military casts light on some of the struggles and frustrations felt by other Muslims in the services. He was disillusioned with the wars in Afghanistan and Iraq, which he perceived to be part of a war on Islam, according to interviews with friends and relatives.

He had been the subject of taunts and felt singled out by his fellow soldiers for being Muslim, friends and relatives said. His uncle in Ramallah, West Bank, Rafik Hamad, said Major Hasan’s fellow soldiers had once called him a “camel jockey.”

That term, like “haaji” and “raghead,” has become a more common part of the lexicon among soldiers on the frontlines of the wars in Iraq and Afghanistan, several Muslim servicemen said in interviews. They spoke about the epithets philosophically, saying they understood using them was a survival tactic to dehumanize the enemy.

But for Muslim soldiers, particularly those who speak Arabic, the struggle to distance themselves from those they fight has often proved more difficult in these wars.

Amjad Khan, who served in the Army for eight years and was deployed to Iraq, said he had tried to get used to the way his fellow soldiers talked about Iraqis.

“It gets to you sometimes,” said Mr. Khan, 32, from Queens, who is of Pakistani descent. “But the more personally you take things, the more you’re going to have a hard time surviving.”

For Mr. Khan, the most difficult part of his wartime service came before he was deployed, when a senior officer found his Islamic faith cause for suspicion.

“He said, ‘I have to watch my back because you might go nuts,’ ” Mr. Khan recalled.

Since Sept. 11, the nation’s military has actively recruited Muslim-Americans, eager to have people with linguistic skills and a cultural understanding of the Middle East. Some 3,557 military personnel identify themselves as Muslim among 1.4 million people in the active-duty population, according to official figures. Muslim advocacy groups estimate the number to be far higher, as listing one’s religious preference is voluntary.

Many Muslims are drawn to the military for the same reasons as other recruits. In interviews, they cited patriotism, a search for discipline and their dreams of attending college. Some Muslims said they had also enlisted to win new respect in a country where people of their faith have struggled for acceptance.

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But if military service has brought approval among non-Muslims, it has sometimes invited a markedly different response among Muslims.

In the South Asian and Arab immigrant communities where the wars in Afghanistan and Iraq are deeply unpopular, Muslim military members have often felt criticized for their service, Muslim chaplains, military members, veterans advocates and others said in interviews.

Some return exhausted and traumatized from their tours, only to hear at their local mosques that they will go to hell for “killing Muslims,” said Qaseem A. Uqdah, the executive director of the American Muslim Armed Forces and Veterans Affairs Council.

“Imagine you are 20 years old and you hear you’re going to purgatory,” Mr. Uqdah said. He argued that Muslim groups must work harder to help their veterans cope with coming home. “We are failing as a community here in America.”

During the first gulf war, Muslim scholars in the United States debated whether members of their faith could righteously engage in combat in a Muslim country on behalf of the United States military. The consensus was yes, provided the conflict met the Islamic standard of a “just war.”

“In the Koran it says that war is to end the state of oppression and to uplift the oppressed,” said Khaled Abou El Fadl, a professor at the law school at the University of California, Los Angeles.

But he and others interviewed said it has been increasingly difficult for Muslims to support the wars in Iraq and Afghanistan, as accounts have emerged of the killing of civilians, the corruption of American-backed local governments, and prisoner abuses like that of the Abu Ghraib scandal .

“Is it an army that defends the oppressed, or have you slipped into becoming the oppressor?” asked Mr. El Fadl, who has counseled Muslims conflicted about enlisting. “People from the military who contact me, that’s what I find they’re torn up about.”

And yet more than 3,500 Muslims have deployed to Iraq and Afghanistan, according to Defense Department figures provided to The Times. As of 2006, some 212 Muslim-American soldiers had been awarded Combat Action Ribbons for their service in Iraq and Afghanistan, and seven had been killed.

Too many Americans overlook the heroic efforts of Arab-Americans in uniform, said Capt. Eric Rahman, 35, an Army reservist who was awarded the Bronze Star for his service in Iraq at the start of the war. He cited the example of Lieutenant Michael A. Monsoor, a Navy Seal who was awarded the Medal of Honor after pulling a team member to safety during firefight in 2006, in Ramadi, Iraq.

Lieutenant Monsoor died saving another American, yet he will never be remembered like Major Hasan, said Captain Rahman.

Regardless, he said, Muslim- and Arab-Americans are crucial to the military’s success in Afghanistan and Iraq.

“Take a look at these conflicts,” he said. “We need those skill sets, we need those backgrounds, we need those perspectives.”

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Eric Schmitt, Damien Cave and Catrina Stewart contributed reporting.

Copyright 2009 The New York Times Company

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4 of 4 11/9/2009 12:27 PM TIME Magazine: The Moderate Majority http://www.time.com/time/asia/covers/1101021028/vpt_raslan.html

COVER STORY The Moderate Majority October 12, 2002 promotion Bombs turned Southeast Asia's progressive Islam can be a strong heaven into hell, and the result was weapon against extremism death, pain—and By Karim Raslan heroism

Taking Action Despite the efforts of police, no I am lucky to have two homes: one in the Malaysian capital Kuala one is close to catching the Bali Lumpur, the other on the island of Bali. The first is an apartment assailants overlooking a city in which a dizzying array of tongues—Malay, A Failed State? Mandarin, Cantonese, Hokkien, Hindi, Tamil, Malayalam and The attacks could strike hard at English—are heard against the backdrop of the muezzin's call to Indonesia's already troubled prayer. The second is a ramshackle villa in the artist's retreat of Ubud, economy surrounded by Hindu temples and shrines, within hailing distance of Javanese and Madurese street peddlers hawking satay, banana The Rage Culture fritters and mee bakso. It's all so richly mixed and, given the potential Was Bali an aberration, or has for ethnic and religious strife, remarkably harmonious. This is extremesim come to the world's Southeast Asia—my Southeast Asia—a world that extremist Islamic largest Muslim country? forces are attempting to subvert and destroy.

At this difficult and emotional time, when the brutal and horrifying bomb attacks in Bali appear to have turned Southeast Asia (and especially Indonesia) into the second front in the war against terrorism, it is worth Islands of Strife remembering that there is much more to the region than Jemaah The Bali attacks hit Islamiah and al-Qaeda. Though these fanatical groups have now an Indonesia apparently taken root here, Southeast Asia has for centuries been a already torn by crossroads for five of the world's great belief systems: Islam, violence and instability Buddhism, Hinduism, Christianity and Confucianism.

Blow by Blow In Southeast Asia, Islam has engaged with the other faiths, adapting The events of Oct and adopting the cultural traditions of the diverse peoples who practice 12, 2002 them. Moreover, most of the region's Muslims have had no problem coping with the demands of the modern world. In Malaysia, for Reading the Signs example—a combination of good governance (albeit strained at times), A pattern of violence pragmatic race relations and moderate Islam—has created a politically in Southeast Asia? stable economic powerhouse that out-exports Iran, Turkey and Israel combined.

The Nation of In Indonesia in particular, Islamic expression is very different from the Islam puritanical brand that has been nurtured in Saudi Arabia, germinating While most Muslims in Indonesia are the likes of Osama bin Laden. Jakarta is not Jeddah: Islamic moderate, some groups take a expression in Southeast Asia is overwhelmingly moderate, tolerant and harder line progressive. It bears no common cause with the terrible twins of radicalism and terrorism. In fact, the region can help defeat them.

All this is due in part to geography but more importantly to history—both medieval and modern. First, while much of the rest of the Muslim world was won by conquest, Islam's spread in Southeast Asia was by dint of example, with peaceful traders and preachers (often Silent Witness Megawati Sukarnoputri must non-Arab Muslim converts from the Indian subcontinent) illustrating the tackle the roots of Islamic Prophet Muhammad's message during the 14th and 15th centuries. radicalism Second, in Indonesia, home to the vast majority of Southeast Asia's 230 million Muslims, there is a yearning for education and for reform The Moderate Majority —mostly religious but political too—not least because Islam was Southeast Asia's progressive suppressed for three decades under former strongman Suharto, who Islam can be a strong weapon feared it would challenge his New Order regime. against extremism Indonesia boasts thriving centers of Islamic scholarship, which have

1 of 2 11/6/2009 5:49 PM TIME Magazine: The Moderate Majority http://www.time.com/time/asia/covers/1101021028/vpt_raslan.html

revived a historic task now abandoned by much of the Muslim world, especially the Middle East: ijtihad—the spirit of questioning, self-criticism and renewal that once placed Islam at the vanguard of science, technology and civil society, but which is now a dirty word in 'The Outlook is Gloomy' the seminaries of Medina and Cairo. Indonesia's moderate scholars An interview with Indonesian are devout, conversant with the Koran, fluent in Arabic, familiar with legislative chairman Amien Rais classical Islamic works, trained in fiqh (Islamic jurisprudence) and have sometimes studied at Western universities. In short, they have the 'Bali Was a Wake-up Call to Indonesia' confidence to debate and confront their own ultra-conservative U.S. Deputy Defense Secretary co-religionists on anything from to women's rights. Paul Wolfowitz talks to TIME These scholars are humble and compassionate. They acknowledge that what often passes for dogma is little more than human affectation, not written in stone, and that there often is no one clear answer to any given question. All this has a trickle-down effect. Some 70 million of Indonesia's Muslims belong to just two Islamic organizations—the Bali in the Muhammadiyah and the Nahdlatul Ulama—which run schools, Aftermath universities, madrasahs and hospitals. While these associations are Images of an island reeling from dedicated to upholding and propagating Islamic values, they do not destruction and seek to establish a theocracy. Instead, they fervently believe that mourning loss modernization, democracy and human rights can be reconciled with Islam.

The war against terrorism essentially boils down to a conflict between moderation and extremism, between what is decent and what isn't. Southeast Asia's moderate Muslims are doing their bit. They are Confessions of an engaged in a titanic struggle to wrest the mantle of religious authority Al-Qaeda Terrorist from those who would seek to recreate eighth century Arabia in the An exclusive investigation reveals region. Because of their efforts, and because of Southeast Asia's detailed plans for tradition of tolerance, I am lucky to call it home. terror in Southeast Malaysian Karim Raslan is a lawyer and writer who is a regular contributor to several Asia (September 23, 2002) Asian newspapers. His latest book is Journeys Through Southeast Asia: Ceritalah 2 Taking the Hard Road Indonesia must speed up its terror crackdown to avoid America's wrath (September 30, 2002) Get the Asia's Terror Kingpin Magazine — Try TIME investigates terrorist 4 Issues Free! mastermind Hambali, possibly the most dangerous man in Asia (April 1, 2002)

INDIA/PAKISTAN NORTH KOREA Back from the Brink Look Who's Got the Bomb On both sides, forces pull pack from the Confronted by the U.S., North India-Pakistan border. How long can Korea brazenly admits it's this thaw last? building nukes. Now what does President Bush do? MOVIES A Sigh for Old Saigon TRAVEL The made-in-Vietnam film of Graham Homestay on the Range Greene's The Quiet American looks at In the former Soviet Republic love and war, and the strange of Kyrgyzstan, My Yurt is Your bedfellows they make Yurt

QUICK LINKS: Home | The Victims | The Investigation | The Fallout | The Causes | Back to TIME Asia Home

FROM THE OCT 28, 2002 ISSUE OF TIME MAGAZINE; POSTED MONDAY, OCT 21, 2002

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2 of 2 11/6/2009 5:49 PM Learning to Live With Radical Islam | Print Article | Newsweek.com http://www.newsweek.com/id/187093/output/print

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COVER STORY: INTERNATIONAL Learning to Live With Radical Islam We don't have to accept the stoning of criminals. But it's time to stop treating all Islamists as potential terrorists.

By Fareed Zakaria | NEWSWEEK Published Feb 28, 2009 From the magazine issue dated Mar 9, 2009

Pakistan's Swat valley is quiet once again. Often compared to Switzerland for its stunning landscape of mountains and meadows, Swat became a war zone over the past two years as fighters waged fierce battles against Army troops. No longer, but only because the Pakistani government has agreed to some of the militants' key demands, chiefly that Islamic courts be established in the region. Fears abound that this means women's schools will be destroyed, movies will be banned and public beheadings will become a regular occurrence.

The militants are bad people and this is bad news. But the more difficult question is, what should we—the outside world—do about it? That we are utterly opposed to such people, and their ideas and practices, is obvious. But how exactly should we oppose them? In Pakistan and Afghanistan, we have done so in large measure by attacking them—directly with Western troops and Predator strikes, and indirectly in alliance with Pakistani and Afghan forces. Is the answer to pour in more of our troops, train more Afghan soldiers, ask that the Pakistani military deploy more battalions, and expand the Predator program to hit more of the bad guys? Perhaps—in some cases, emphatically yes—but I think it's also worth stepping back and trying to understand the phenomenon of Islamic radicalism.

It is not just in the Swat valley that Islamists are on the rise. In Afghanistan the Taliban have been gaining ground for the past two years as well. In Somalia last week, Al-Shabab, a local group of Islamic militants, captured yet another town from government forces. Reports from Nigeria to Bosnia to Indonesia show that Islamic fundamentalists are finding support within their communities for their agenda, which usually involves the introduction of some form of —Islamic law—reflecting a puritanical interpretation of Islam. No music, no liquor, no smoking, no female emancipation.

The groups that advocate these policies are ugly, reactionary forces that will stunt their countries and bring

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dishonor to their religion. But not all these Islamists advocate global jihad, host terrorists or launch operations against the outside world—in fact, most do not. Consider, for example, the most difficult example, the Taliban. The Taliban have done all kinds of terrible things in Afghanistan. But so far, no Afghan Taliban has participated at any significant level in a global terrorist attack over the past 10 years—including 9/11. There are certainly elements of the Taliban that are closely associated with Al Qaeda. But the Taliban is large, and many factions have little connection to Osama bin Laden. Most Taliban want Islamic rule locally, not violent jihad globally.

How would you describe Faisal Ahmad Shinwari, a judge in Afghanistan? He has banned women from singing on television and called for an end to cable television altogether. He has spoken out against women and men being educated in the same schools at any age. He has upheld the death penalty for two journalists who were convicted of blasphemy. (Their crime: writing that Afghanistan's turn toward Islam was "reactionary.") Shinwari sounds like an Islamic militant, right? Actually, he was appointed chief justice of the Afghan Supreme Court after the American invasion, administered Hamid Karzai's oath of office and remained in his position until three years ago.

Were he to hold Western, liberal views, Shinwari would have little credibility within his country. The reality—for the worse, in my view—is that radical Islam has gained a powerful foothold in the Muslim imagination. It has done so for a variety of complex reasons that I have written about before. But the chief reason is the failure of Muslim countries to develop, politically or economically. Look at Pakistan. It cannot provide security, justice or education for many of its citizens. Its elected politicians have spent all of their time in office conspiring to have their opponents thrown in jail and their own corruption charges tossed out of court. As a result, President Asif Ali Zardari's approval rating barely a month into office was around half that enjoyed by President Pervez Musharraf during most of his term. The state is losing legitimacy as well as the capacity to actually govern.

Consider Swat. The valley was historically a peaceful place that had autonomy within Pakistan (under a loose federal arrangement) and practiced a moderate version of Sharia in its courts. In 1969 Pakistan's laws were formally extended to the region. Over the years, the new courts functioned poorly, with long delays, and were plagued by corruption. Dysfunctional rule meant that the government lost credibility. Some people grew nostalgic for the simple, if sometimes brutal, justice of the old Sharia courts. A movement demanding their restitution began in the early 1990s, and Benazir Bhutto's government signed an agreement to reintroduce some aspects of the Sharia court system with Sufi Muhammed, the same cleric with whom the current government has struck a deal. (The Bhutto arrangement never really worked, and the protests started up again in a few years.) Few people in the valley would say that the current truce is their preferred outcome. In the recent election, they voted for a secular party. But if the secularists produce chaos and corruption, people settle for order.

The militants who were battling the Army (led by Sufi Muhammed's son-in-law) have had to go along with the deal. The Pakistani government is hoping that this agreement will isolate the jihadists and win the public back to its side. This may not work, but at least it represents an effort to divide the camps of the Islamists between those who are violent and those who are merely extreme.

Over the past eight years such distinctions have been regarded as naive. In the Bush administration's original

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view, all Islamist groups were one and the same; any distinctions or nuances were regarded as a form of appeasement. If they weren't terrorists themselves, they were probably harboring terrorists. But how to understand Afghanistan and Pakistan, where the countries "harbor" terrorists but are not themselves terrorist states?

To be clear, where there are Qaeda cells and fighters, force is the only answer. But most estimates of the number of Qaeda fighters in Pakistan range well under a few thousand. Are those the only people we are bombing? Is bombing—by Americans—the best solution? The Predator strikes have convinced much of the local population that it's under attack from America and produced a nationalist backlash. A few Qaeda operatives die, but public support for the battle against extremism drops in the vital Pashtun areas of Pakistan. Is this a good exchange?

We have placed ourselves in armed opposition to Muslim fundamentalists stretching from North Africa to Indonesia, which has made this whole enterprise feel very much like a clash of civilizations, and a violent one at that. Certainly, many local despots would prefer to enlist the American armed forces to defeat their enemies, some of whom may be jihadists but others may not. Across the entire North African region, the United States and other Western powers are supporting secular autocrats who claim to be battling Islamist opposition forces. In return, those rulers have done little to advance genuine reform, state building or political openness. In Algeria, after the Islamists won an election in 1992, the military staged a coup, the Islamists were banned and a long civil war ensued in which 200,000 people died. The opposition has since become more militant, and where once it had no global interests, some elements are now aligned with Al Qaeda.

Events have taken a different course in Nigeria, where the Islamists came to power locally. After the end of military rule in 1999, 12 of Nigeria's 36 states chose to adopt Sharia. Radical clerics arrived from the Middle East to spread their draconian interpretation of Islam. Religious militias such as the Hisbah of Kano state patrolled the streets, attacking those who shirked prayers, disobeyed religious dress codes or drank alcohol. Several women accused of adultery were sentenced to death by stoning. In 2002 The Weekly Standard decried "the Talibanization of West Africa" and worried that Nigeria, a "giant of sub-Saharan Africa," could become "a haven for , linked to foreign extremists."

But when The New York Times sent a reporter to Kano state in late 2007, she found an entirely different picture from the one that had been fretted over by State Department policy analysts. "The Islamic revolution that seemed so destined to transform northern Nigeria in recent years appears to have come and gone," the reporter, Lydia Polgreen, concluded. The Hisbah had become "little more than glorified crossing guards" and were "largely confined to their barracks and assigned anodyne tasks like directing traffic and helping fans to their seats at soccer games." The widely publicized sentences of mutilation and stoning rarely came to pass (although floggings were common). Other news reports have confirmed this basic picture.

Residents hadn't become less religious; mosques still overflowed with the devout during prayer time, and virtually all Muslim women went veiled. But the government had helped push Sharia in a tamer direction by outlawing religious militias; the regular police had no interest in enforcing the law's strictest tenets. In addition, over time some of the loudest proponents of Sharia had been exposed as hypocrites. Some were under investigation for embezzling millions.

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We have an instant, violent reaction to anyone who sounds like an Islamic bigot. This is understandable. Many Islamists are bigots, reactionaries and extremists (others are charlatans and opportunists). But this can sometimes blind us to the ways they might prove useful in the broader struggle against Islamic terror. The Bush administration spent its first term engaged in a largely abstract, theoretical conversation about radical Islam and its evils—and conservative intellectuals still spout this kind of unyielding rhetoric. By its second term, though, the administration was grappling with the complexities of Islam on the ground. It is instructive that Bush ended up pursuing a most sophisticated and nuanced policy toward political Islam in the one country where reality was unavoidable—Iraq.

Having invaded Iraq, the Americans searched for local allies, in particular political groups that could become the Iraqi face of the occupation. The administration came to recognize that 30 years of Saddam—a secular, failed tyrant—had left only hard-core Islamists as the opposition. It partnered with these groups, most of which were Shiite parties founded on the model of Iran's ultra-religious organizations, and acquiesced as they took over most of southern Iraq, the Shiite heartland. In this area, the strict version of Islam that they implemented was quite similar to—in some cases more extreme than—what one would find in Iran today. Liquor was banned; women had to cover themselves from head to toe; Christians were persecuted; religious affiliations became the only way to get a government job, including college professorships.

While some of this puritanism is now mellowing, southern Iraq remains a dark place. But it is not a hotbed of jihad. And as the democratic process matures, one might even hope that some version of the Nigerian story will play out there. "It's hard to hand over authority to people who are illiberal," says former CIA analyst Reuel Marc Gerecht. "What you have to realize is that the objective is to defeat bin Ladenism, and you have to start the evolution. Moderate Muslims are not the answer. Shiite clerics and Sunni fundamentalists are our salvation from future 9/11s."

The Bush administration partnered with fundamentalists once more in the Iraq War, in the Sunni belt. When the fighting was at its worst, administration officials began talking to some in the Sunni community who were involved in the insurgency. Many of them were classic Islamic militants, though others were simply former Baathists or tribal chiefs. Gen. David Petraeus's counterinsurgency strategy ramped up this process. "We won the war in Iraq chiefly because we separated the local militants from the global jihadists," says Fawaz Gerges, a scholar at Sarah Lawrence College, who has interviewed hundreds of Muslim militants. "Yet around the world we are still unwilling to make the distinction between these two groups."

Would a strategy like this work in Afghanistan? David Kilcullen, a counterinsurgency expert who has advised Petraeus, says, "I've had tribal leaders and Afghan government officials at the province and district level tell me that 90 percent of the people we call the Taliban are actually tribal fighters or Pashtun nationalists or people pursuing their own agendas. Less than 10 percent are ideologically aligned with the Quetta Shura [Mullah Omar's leadership group] or Al Qaeda." These people are, in his view, "almost certainly reconcilable under some circumstances." Kilcullen adds, "That's very much what we did in Iraq. We negotiated with 90 percent of the people we were fighting."

Beyond Afghanistan, too, it is crucial that we adopt a more sophisticated strategy toward radical Islam. This should come naturally to President Obama, who spoke often on the campaign trail of the need for just such a differentiated approach toward Muslim countries. Even the Washington Institute, a think tank often

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associated with conservatives, appears onboard. It is issuing a report this week that recommends, among other points, that the United States use more "nuanced, noncombative rhetoric" that avoids sweeping declarations like "war on terror," "global insurgency," even "the Muslim world." Anything that emphasizes the variety of groups, movements and motives within that world strengthens the case that this is not a battle between Islam and the West. Bin Laden constantly argues that all these different groups are part of the same global movement. We should not play into his hands, and emphasize instead that many of these forces are local, have specific grievances and don't have much in common.

That does not mean we should accept the burning of girls' schools, or the stoning of criminals. Recognizing the reality of radical Islam is entirely different from accepting its ideas. We should mount a spirited defense of our views and values. We should pursue aggressively policies that will make these values succeed. Such efforts are often difficult and take time—rebuilding state structures, providing secular education, reducing corruption—but we should help societies making these efforts. The mere fact that we are working in these countries on these issues—and not simply bombing, killing and capturing—might change the atmosphere surrounding the U.S. involvement in this struggle.

The veil is not the same as the suicide belt. We can better pursue our values if we recognize the local and cultural context, and appreciate that people want to find their own balance between freedom and order, liberty and license. In the end, time is on our side. Bin Ladenism has already lost ground in almost every Muslim country. Radical Islam will follow the same path. Wherever it is tried—in Afghanistan, in Iraq, in parts of Nigeria and Pakistan—people weary of its charms very quickly. The truth is that all Islamists, violent or not, lack answers to the problems of the modern world. They do not have a world view that can satisfy the aspirations of modern men and women. We do. That's the most powerful weapon of all.

Find this article at http://www.newsweek.com/id/187093

© 2009

5 of 5 11/9/2009 12:40 PM Executive Summary SESSION 1 The Role of Islam in Multicultural Asia

Coming in the midst of a very heated U.S. presidential election campaign, where the U.S. is faced with numerous foreign policy challenges in the Asia-Pacifi c Th e opening session of the Williamsburg Conference focused on discussing the region and at a critical juncture in Islam’s relationship with the rest of the world, role of Islam in Multicultural Asia in a broad and general context. Conference the Asia Society convened over 50 Asian and American leaders at a very participants assessed the following questions: What are the particular characteristics opportune time in Bali, Indonesia from April 3-6, 2008. Delegates discussed the of Islam in Asian countries like India, Indonesia, Malaysia, and the Philippines? characteristics of Islam in Asian countries with multiethnic or multireligious What is the relationship between Islam and democracy in these countries? How populations like India, Indonesia, Malaysia, and the Philippines. Th ey also is the experience of Islam in the multi-cultural societies of Asia diff erent from suggested ways of tackling radicalism and extremism by alleviating poverty, elsewhere in the world, particularly the Middle East? It is important to note that improving education, and reforming prisons and rehabilitation Centres, to name while some delegates were experts in the fi eld, others had almost no knowledge or a few. During the second half of the conference, delegates engaged in a conversation background of Islam in Asia. Th erefore, panelists and discussants were encouraged about the evolving U.S. role in Asia. Contemporary aff airs like the protests in to talk about and explore “big picture” topics like the political implications and Myanmar and Tibet, engagement with North Korea, and the impact of the Iraq current trends in the Asian Muslim world. war on U.S. foreign policy towards Asia were analyzed in light of the coming Given the widening gulf between the West and the Muslim world, the focus of presidential election. Asian leaders were invited to give advice to the new U.S. this year’s conference was particular timely and important. A Pew Survey on Global president. Finally, young leaders from the Asia Pacifi c region shared their thoughts Attitudes found that America’s image of much of the Muslim world is abysmal. on what kinds of leadership and values are needed in the future. Indeed, panelists overwhelmingly believed that Asian Islam is fundamentally misunderstood or outright ignored by those in the West. As one illustrative example, Th e New York Times Book Review in January 2008 presented an Indeed, panelists overwhelmingly entire issue dedicated to Islam. Not one article believed that Asian Islam is mentioned Islam in Asia. Considering Asia is an fundamentally misunderstood extremely critical part of the Muslim world with or outright ignored by those over 65 percent of the world’s Muslim population, in the West. conference participants expressed concern and felt motivated to bring this issue to the forefront of this year’s conference.

12 13 Islam in Multicultural Asia Islam in Malaysia was briefl y discussed during this session as well. Malaysia is a Th e conference started off with a broad discussion of Islam in Multicultural Asia multiethnic and multireligious country. Ethnic Malays, who are viewed as Muslims between panelists and participants. Panelists gave an overview of Islam in Asia by the state, make up about 65 percent of the population, while ethnic Chinese by focusing country-specifi c comments on Indonesia, India, and Malaysia. Th ese and Indians, mostly Buddhist, Christian or Hindu, account for most of the other countries served as an excellent starting point because while all three countries have 35 percent. One panelist talked about how the recent election in Malaysia in May many similarities like growing economies and multiethnic societies, the history and 2008 signaled an unprecedented moment in history. Th e Barisan Nasional (National current state of Islam in each is very diff erent. Front), which has led the country since its independence 51 years ago, suff ered major Naturally, a large part of the conversation focused on Islam in Indonesia, the host electoral losses to opposition parties, both in national parliamentary elections and country of this year’s conference. Islam came to the archipelago of Indonesia in a in votes for state legislatures. Some commentators view this as a reaction to the major way in the late 12th and 13th centuries, brought mainly by Sufi teachers who growing Islamism occurring in society and in politics. Anwar Ibrahim, a former were open to accommodating local customs and traditions. Because of this, deputy prime minister and now one of the leaders of the opposition, even said Indonesian Muslims are largely inclusive of other followers of Islam. With that, “Th ere is a wave, an outcry for democratic reform.” Time will tell if these 17,000 islands and hundreds of ethnic groups, Indonesia is a multicultural and election results bring about change in Malaysia. multireligious society. Th ere are many diff erent types of Islam such as Java Islam, Delegates mentioned other parts of Asia with Muslim populations such as China but in general Indonesian Islam is Sunni Islam with its strong Sufi tradition. (around 1-2 percent of the population) and the Philippines (about 5 percent of the It is important to underline that while a majority of Indonesians are Muslim (86 population). Th ey agreed that Islam in Asia is a complex topic because it is extremely percent according to the 2000 census), Indonesia is not an Islamic state. In fact, it localized. Each country has individual needs and challenges. But, they suggested offi cially recognizes six religions including Islam, Protestantism, Roman Catholicism, that countries should universally treat their Muslim minority populations with Hinduism, Buddhism, and Confucianism. respect, accord them with equal rights, and involve them in whatever political Like Indonesia, India is an example of a country that tries to promote religious process they may have. diversity and tolerance. India has a diversity of religious followers including those that practice Hinduism, Islam, Christianity, Buddhism, Jainism, Sikhism, Parsis, Issues in the Muslim World and Indian Jews. Muslims in India, who total around 151 million (according to a At this point in the conversation, delegates turned to broader issues in the Muslim 2007 government census), make up around 13.4 percent of India’s population. world and relations of Islam with the Middle East and the West. An Indian participant pointed out that India is a Most delegates inquired about the growing number of devout Muslims especially “secular” state, but not in the Western traditional Pointing to a verse in the Koran in Southeast Asia (demonstrated by the increasing number of Southeast Asian hajj hijab sense which defi nes secularism as a clear separation that states “your religion for you Muslims making the pilgrimage or to Mecca, wearing the , enrolling of church and state. Instead, it is a secular state and my religion for me (109:6),” children in Islamic schools, and so forth). Some panelists argued in response that in that it makes space for religion. Pointing to a the panelist argued that tolerance this should not necessarily be construed as something negative in the Western verse in the Koran that states “your religion for world. In fact, the trend of growing religiosity has the potential to bring about for religion is paramount. you and my religion for me (109:6),” the panelist positive developments. argued that tolerance for religion is paramount. While participants had a generally positive view about India’s religious diversity, some mentioned the problems that Muslim Indians face like economic stagnation. One delegate expressed optimism that this minority group will be lifted up through education and the democratic process.

14 15 For example, participants talked about sharia and how it is seen through Relations with the Middle East a distorted prism. Westerners view sharia, as popularized in the media, simply as Participants were interested in discussing the interaction of Asian Muslims with a brutal law that stones people for adultery. But, quoting a piece by Harvard Law the larger Muslim world. Participants, particularly those from the West, expressed Professor Noah Feldman, it was noted that, “for most of its history, Islamic law hopes that Muslims in Southeast Asia could have a greater infl uence on the Middle off ered the most liberal and humane legal principles available anywhere in the East, especially with the power of globalization and the infl uence of the Internet. world.” Nostalgia for sharia comes from the past when it was the only way people Southeast Asia has been a great model of democratic could be protected from the brutality of rulers. Participants agreed that sharia development, and could perhaps spread these Participants were interested in (and Islam in general) needs reform in the way it deals with gender issues. However, values to the larger Muslim world. Southeast Asian discussing the interaction of it was pointed out that Islam arguably preaches democratic tenets like justice and Muslims mightalso assist in taking the fi rst step in Asian Muslims with the larger equality more so than any other religion. resolving confl ict. For instance, a delegate suggested Muslim world. Th e hijab was also an issue brought up frequently in the conversation. Th e hijab, that Indonesia might consider opening an Israeli which refers to women’s head and sometimes body covering, has become a symbol representative offi ce. to the West of the repression of Muslim women. To the contrary, an Asian panelist Indonesian delegates felt somewhat pessimistic about this suggestion. Th e explained that many women in Asia are wearing the hijab because it is part of a Indonesian government has tried to play a far greater role in resolving confl ict in greater personal consciousness. It is also a way to reject modernization which the Middle East. Th e President invited Hamas leaders and Al Fata leaders from Muslims feel might be destroying traditional values and culture. In other words, Palestine to come to Jakarta to discuss possible peace settlements between the the hijab has become a symbol of identity for Muslim women, like those in secular factions. Indonesian political and religious leaders are strongly interested in helping universities like Jakarta University and high-level female government offi cials. to promote democracy to fellow Muslims. Listening to these comments, American participants wanted to know whether However, many hurdles stand in the way. First, one delegate commented wearing the headscarf symbolizes women’s growing strength and power in that most Arabs do not traditionally look to Southeast Asian Muslims for society. One of the delegates commented that it is neither empowerment nor advice. Second, Indonesia has limited political capital and resources, which disempowerment, but a matter of choice. It was also noted by this delegate that must be used for their own ends, such as engaging with China and India. Indonesia is trying to promote the rights and power of women by requiring all Developing countries in Asia simply cannot devote the time to take a lead parties to include women in their political structure. Furthermore, the growing in resolving larger international issues. Th ird, they are wary that if Asian infl uence of political Islam does not appear to be correlated to the growing number Muslims try to get involved in Middle East aff airs, their counterparts will lower of women wearing the hijab. For example, in the last two Indonesian elections in haj allocations to Asian Muslims. 1999 and 2004, the Islamic parties failed with only 14 percent of the total vote. Lastly, language has proven to be a major problem in promoting Islam One of the most conservative parties, the Welfare and Justice Party, only received in Asia. While some are trying to popularize the development of Indonesian 7 percent of the vote in 2004. In the next election in 2009, the Islamic parties are Islamic thinking, it takes a long time to translate. However, it was put forth that not expected to increase their share of seats. various organizations like the Asia Society, Asia Foundation, and others could start to promote greater dialogue by engaging in such a translation and dissemination project.

16 17 Relations with the United States SESSION 2 Towards the end of the session, an American delegate commented that while most people consider Indonesia anti-American it is perhaps the most democratic The Challenge of Islamic Radicalism country in the region. As such, America should be supporting Indonesia’s eff orts, and the two countries should have a better relationship. An Indonesian participant and Extremism in Asia countered that anti-Americanism is fueled by the Bush administration, but Indonesian people have good will towards the American people. For example, After speaking about Islam in Asia in a broad sense during the opening since Barack Obama spent his childhood in the country, Indonesians are closely session, this session off ered delegates a chance to look more deeply at the following the U.S. elections and are interested in U.S. politics. In addition, challenges of Islamic radicalism and extremism. In this eff ort, they discussed many Indonesians are very interested in sending their children abroad to the following questions: What is the nature and scope of the phenomenon American schools. of radical Islamism and extremism? To what extent should we be scared of it? Violent extremism is a problem. What are the causes of it? Are they local in The Internal Struggle in the Muslim World character? Is it being provoked by the West? What are the solutions to these Some of the participants, especially those with Muslim backgrounds, problems? What should we be looking at? emphasized how destructive the war in Iraq has been on the “Muslim street.” Th ey expressed their view that the legitimacy of any foreign invasion must Understanding Islamism be based in international law and opinion. Muslims unanimously supported An International Crisis Group report entitled “Understanding Islamism” provided the war in Afghanistan because Bush was going after the Taliban. On the other the basis for delegates in defi ning the distinct strands of Sunni Islamism. Political hand, Iraq was viewed as an unjust war and is now seen as an occupation. Islam, generally speaking, eschews violence and refers to a reformist and not A participant cautioned that the West must understand that the Muslim world revolutionary agenda. Some examples are the Muslim Brothers in Egypt, and its is caught in a massive internal struggle – between the “moderate” and “radical” off shoots elsewhere (like Algeria, Jordan, , Palestine, Sudan, and Syria). camps, or between the Asian Muslim and Arab Muslim world – it is not one Missionary Islam proselytizes on behalf of the Islamic faith and is not interested unifi ed place or religion. in political power or violence. Th ere are two main variants: the highly structured Tablighi movement and the highly diff use Salafi yya on the other. Jihad is the last strand and represents the Islamic armed struggle – what many see as the violent dimension. Th e delegates used these categories in the context of discussing radical and extremist groups in parts of Asia.

18 19 Proposed Solutions Protecting minorities is important in fi ghting Finally, delegates felt that the Extremism and radicalism do seem to be on the rise throughout Asia. Participants extremism and radicalism. Th is advice was repeated West should be encouraging pointed out that minority Muslim groups such as the Muslims in southern Th ailand throughout the conference. Many of the radical Muslim Muslims who stand up for groups in Asia represent local separatist movements or in the Philippines tend to be the ones who turn to violence to achieve their ends. progressive and moderate A large portion of the discussion in this session focused on trying to think of who do not have ties to global terrorist organizations. ideas. Along these lines, the solutions to this problem. While delegates did not necessarily agree with each other Governments can play a role by better protecting West should recognize that on these approaches, the conversation was very constructive. the rights of minorities in their country. In addition, Participants expressed the need to combat poverty, which is a major underlying better law enforcement is needed in cracking down on this is a war of ideas and cause of terrorism. However, they stressed that the current development model extremist and radical groups. In this eff ort, developed support the good ones. created by the World Bank and international aid organizations is not working. governments could off er intelligence and security Th e world needs development models based on indigenous communities. In other training to other countries. Retired military offi cials from developed or third world words, seeing what works on the ground and implementing a tailored course countries that have historically dealt with terrorist issues could be involved in an of action. exchange program. Participants felt that education is key in combating violent radicalism and Delegates seemed to disagree on what should be done to assist terrorists who extremism. Education does not have to be limited to secular teaching. One panelist are jailed and whether prison reform is a worthwhile or lost cause. One participant pointed out that some madrassas and schools are spreading good values and argued that governments need to re-habilitate prisoners while they are detained providing a social good to citizens. Indonesia has around 30,000 Islamic schools or jailed, and help re-integrate them back into communities if they are released. educating a fi fth of the population. Of these, only about 36 schools are directly Another participant disagreed and thought these eff orts would be in vain, pointing linked to Jemaah Islamia. (Jemaah Islamia is a Southeast Asian militant Islamic out that prisons in Afghanistan are breeding grounds for terrorists. organization dedicated to the establishment of a Daulah Islamiyah or Islamic State Th e Internet has also played an integral role in allowing extremists to disseminate in Southeast Asia. It was added to the United Nations list of terrorist organizations violent ideology. Th is issue was complex because delegates were not in favor of in 2002.) About 100-200 schools teach radical ideology. Around 300-350 schools limiting freedom of expression, but felt that extremist ideas are being spread easily teach Wahabi thought (a name sometimes applied to the conservative 18th century and widely. A participant off ered the suggestion that those engaged in fi ghting reformist call of Sunni Islam attributed to Muhammad ibn Abd-al-Wahhab). A vast these kinds of groups should enter the chat rooms and have debates with those majority of schools are not a problem, and are producing upstanding citizens. espousing radical ideas. Finally, delegates felt that the West should be encouraging Muslims who stand up for progressive and moderate ideas. Along these lines, the West should recognize that this is a war of ideas and support the good ones.

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