Baybers at Austrolabe hopes to start a discussion on Islam and democracy, which he believes has been either been rejected by 'proto-fascist' Muslim fundamentalists, or is a project only seriously engaged by those who want to 'dismantle Islam'. I would like to add some thoughts on this, if I may (I hope the Austrolabers will include this post in their 'Islamic and democracy' series, which I think is a very good idea).
Baybers lists some features of governments which he considers both Islamic and democratic:
- A constitution that clearly states the principles and system of governance;
- Legislation within this framework that can be tested at a constitutional court;
- Accountability of the executive to the population (shura) at all levels of government;
- Absolute transparency in the workings of the executive;
- The rule of law;
- The testing of that law before a judiciary independent of the executive and legislative branch of the state (another Islamic concept);
- A media free of influence from the executive;
- An independent investigative coroner into deaths. This would seem an odd choice to put into the mix , but it is often a public tragedy and the subsequent forced open enquiry, that forces governments’ to be more open and accountable to public demands that are a catalyst for better governance. This mechanism is especially lacking in the muslim world where we place no value at all on Muslim life.
If we consider point number 6, that is "[t]he testing of that law before a judiciary independent of the executive and legislative branch of the state", we have to ask who comprises the judiciary, for there is a fundamental difference between how a modern nation-state functions (whether it has civil law or common law)? In the case of the modern nation-state (on which most modern Islamic States base themselves) the authority to determine the law rests solely with the state. There is only one law in the land and that is interpreted and implemented through the individuals and institutions given formal authorisation and authority by the state. However, this stands in contrast to the Islamic legal tradition, where, in effect, private individuals either through reputation or through authorisation between teacher and student have developed (and guarded) the law (this also has implications for Muslim statists who think that without The Islamic State we have no Islam, or Islam does not properly exist):
[L]egal authority, or the ability to declare what is and what is not law, is not, in the tradition of classical Islamic law, the exclusive preserve of the state. It is acquired, rather, in the first instance informally by way of reputation [or formally for Shi'ites] and then via grants of authorization from individual to teacher to student. This proces [...] takes place totally outside the apparatus of the state [...] As such, even when the state conferred upon certain individuals the title and authority of judge, for example, this could not obliterate (nor in theory diminish) the authority of those jurists who remained outside of government. [Sherman Jackson, Islamic Law and the State: The Constitutional Jurisprudence of Shihab al-Din al-Qarafi, E. J. Brill, 1996, p.xv.]
How would a judiciary be chosen in a society which accepts a multitude of legal authorities, i.e. the different madhaib? This would be a problem requiring a uniquely Islamic solution. And this is before we consider that most Muslim political systems allow for recognised religious minorities to have their own legal systems. Sherman Jackson offers an answer in the monograph I cite above (he concentrates on the idea of "constitutionalism" and "corporate bodies" of law). Perhaps the list Baybers provides can be expanded to include a method of juristic disagreement (which is also an Islamic principle). However, what isn't clear is whether there can be any scope for expanding this institution of disagreement to include other opinions from outside both the state and the classical repositries of law, which today, despite being small in number, are still quite sizeable.
One other key question not raised by Baybers is the control and use of force, specifically control over the armed forces. Muslim states today suffer from the immoral use of force to suppress dissent and control of opinion through security services (police, intelligence etc.). Who would these services be loyal to? The state? The individual ruler (through the process of a bayah)? God? The logical implication of multiple legal authorities of law with a religious character is that loyalty and submission is, ultimately, only to God and not to the (temporal) state. (Incidentally, we could speculate whether this goes some way to explaining the weak Muslim nation-state today or why Muslim dictators and despots use such ruthless means in surpressing dissent.)
From my experiences, most Muslims, across the globe, are in favour of the use and maintenance of guns by private individuals (I admit I express reservation at such views, but let's put those aside). Perhaps this is the ultimate way to stop tyranny; afterall, constitutions are ultimately only pieces of paper.