Thursday, September 19, 2013

Islam in a Modern State

Democracy and the Concept of Shura (Part 1)

By Fathi Osman
Saturday, 16 June 2012 00:00
Shura in Action
Human freedom and equality are fundamental in any democracy. Similarly, Islam considers “human dignity” fundamental to its guidance for the right way
Part 2
Islam: A Faith and Worship as Well as a Comprehensive Way of Life
Islam is a religion, not a mere political system; it appeals primarily to the inwardness of the human mind and spirit, and promises the whole fulfillment of every individual and absolute justice in the eternal life to come.
However, it requires that the individual's spiritual development be represented and reflected in reforming personal behavior and social relations, in order to prove innate change and achieve salvation with its eternal rewards.
Islam not only has a vision of a just society, but also presents general principles of a whole way of life for the individual, the family, the society, the state, and the world relations in order to secure balance and justice in the whole human sphere. It offers the basic moral and organization rules for relations between man and woman, between the elderly and the young in the nuclear and extended family, and in the society, between the haves and the have-nots, between the rulers and the ruled, and between Muslims and others within the local society and throughout the world.
Like ideologies, Islam does not provide detailed practicalities and programs, since such details are changeable to fit unceasing change in human circumstances in different times and places. Islam allows extensive room for the creativity of the human mind to cope with emerging changes, for the human mind is God's gift to be fully used and developed, it should not be restricted or crippled by that other gift of God, His guiding messages. It is the same one God who created the human being, and who grants him or her spiritual, moral, and intellectual faculties, and to whom He has sent His guiding messages as well, both are made in accordance with the all truth. Thus, no contradiction between both may exist:  
{And so set your face (and direct yourself) sincerely towards the faith, which is in accordance with the nature upon which God has originated human beings...} (Ar-Rum 30: 30)
God’s messages aim to develop the human being in his or her totality: spiritually, morally, intellectually, physically, individually and socially, and to guard him or her against egotism without suppressing or patternizing human individuality and personal creativity.
Divine guidance develops individuals through to their full spiritual potential instead of being deformed by selfish greed in a material civilization—as the American philosopher John Dewey has sharply pointed out. (Individualism, 10)
Therefore, Islam can be presented to and dealt with by a non-Muslim as an ideology, with some flexibility in using the term since it was coined for human ideas, or as general principles for a comprehensive way of life.
Naturally, however, the intellectual conviction cannot provide the same moral depth, width and constancy as a religious commitment, which looks for the acceptance of the Absolute Supreme and the reward of eternity. Freedom and equality for all human beings are, for the believers in God, definite results of the belief in the one who is the only distinctive and supreme: {the One to whom all greatness belongs,} (Al-Hashr 59: 23)
{There is nothing like unto him.} (Ash-Shura 42: 11)
{There is nothing that could be compared with Him.} (Al-Ikhlas 112: 4)
Islam presents the essential guidance that allows the creativity of the human mind to conceive, infer from, and build upon it.
All human beings are equally God’s creation, and each is free since he or she is only subject to God’s physical and moral laws, and each is equal to any other human being. Caliph ‘Umar tersely addressed the Muslim governor of Egypt whose son beat an Egyptian child: “Since when did you impose slavery on human beings while their mothers bore them free!” (Futuh, 224)
However, the religious dimension in the Islamic ideology or plan, of individual and social, local and global reform, does not mean the establishment of a theocracy. There is no clergy in Islam; any intelligent human being who knows the language and the style can understand and interpret God’s message and no supernatural or metaphysical power can be required or claimed for such a work.
God’s message has ‘been preserved and made known publicly through centuries; and no human being can add to it or detract from it. The ideology of Islam, if we may say so, is not totalitarian. It does not dictate details that dominate every moment or make an imperative for any human thought and move, nor does it claim to provide a definitive prescription in advance for every specific problem that may emerge at any time in the future.
Islam presents the essential guidance that allows the creativity of the human mind to conceive, infer from, and build upon it. The ruling authorities cannot monopolize providing the interpretation of the divine guidance or offer new solutions for emerging problems from above without involving the people, and every sane adult has the right to participate in such a process.
Human Dignity
Human freedom and equality are fundamental in any democracy. Similarly, Islam considers “human dignity” fundamental to its guidance for the right way of life. The Quran reads: {We have indeed conferred dignity on the children of Adam, and carried them on land and sea, and provided for them sustenance out of the good things of life, and favored them far above most of Our creation} (Al-Isra’ 17: 70)
All the children of Adam, whatever their race, ethnicity, gender, age, social status and beliefs may be, have been granted dignity by their Creator without any distinction, and this human dignity must be secured and maintained by His guidance and laws through the Muslim teachers and authorities, and should never be subjected to violation or declination. Human dignity is comprehensive; it encompasses all human dimensions: spiritual, moral, intellectual and physical. Sustenance from the good things of life must be secured for every human being through fair conditions of work and decent social welfare for those who cannot work temporarily or permanently.
Freedom to move from one place to another is an essential feature of human dignity that fulfills the universality of the human creature with his or her unique spiritual, moral, and intellectual potential. Any restrictions in this respect within the country or throughout the world must be considered against human dignity.
Human dignity comprises the fulfillment of obligations as well as the security of rights. Thus, the Quran uses the word “dignity” to underscore the correspondent human rights and obligations, which should be together carried out to secure the human dignity. Thus, a selfish view of freedom or human rights (which was noticed, for example, in French society after the 1789 revolution and in some Eastern European societies after the collapse of communism) can be avoided.
Early jurists gathered out from the various rules of Islamic Law (shari’ah) held that its goal is securing and developing the human being in these five basic areas: life, family and children, mind, freedom of faith, and rights of ownership whether private or public.
Human dignity is supported in Islam by educational and organizational measures, and is not presented as empty words, mere rhetoric or personal piety.
Shura in the Islamic Way of Life
Shura is not limited to the political field; it has to be developed starting with the family base to be a general way of life in all areas.
Islam teaches that God alone is the one who is All-knowing, All-powerful and must be obeyed unconditionally according to a genuine conviction and belief: {He shall not be questioned about what He does, but they shall be questioned.} (A-Anbiya’ 21: 23)
Human beings have relative knowledge and no absolute power. They are all equal and enjoy dignity granted to them by God since their creation, and each is accountable in this life and in the life to come for his or her deeds. Every matter, even the faith itself, should rely on one’s conviction about what is right and what is wrong without any coercion or intimidation.As the Quran says: {No coercion is [allowed] in matters of faith.} (Al-Baqarah 2: 256)
Based on these beliefs, any human being cannot decide arbitrarily and independently a matter that concerns others and not himself or herself alone, nor claim if he or she does so, an immunity from accountability. The Quran makes “shura” (participation with others in making a decision that concerns them,) subsequent to and a consequence of the faith in God. It represents the positive response to His message and comes next to making prayers to Him: {and those, who respond to [the call of] their Lord, and keep up the prayers, and whose rule in a matter [of  common concern] comes out of consultation among themselves...} (Ash-Shura 42: 38)
The initiative of involving others in making a decision of common interest has to come from those who are responsible for leadership and making such decisions. However, those concerned people take the initiative to offer their advice to the leadership in a suitable way when they find this necessary, since giving advice is an obligation of every individual towards leaders and the public as well according to a hadith of Prophet Muhammad. Enjoining the doing of what is right and good and forbidding the doing of what is wrong and evil is the responsibility of the state authorities as well as the people and any group of them.
Shura is not limited to the political field; it has to be developed starting with the family base to be a general way of life in all areas. Spouses, even in the case of divorce, have to conduct family matters: {…by mutual consent and counsel} (Al-Baqarah 2: 233)
Both requirements have to be fulfilled together without split, since consent must be based on mutual consultation and not taken for granted, and consultation should lead to mutual consent and not be exercised as a superficial formality. The child has to be educated to express himself or herself freely but properly about what ought to be done or avoided.
The family and the school have essential roles in developing shura as a way of life.
Shura means a serious and effective participation in making a decision, not merely a ceremonial procedure. The Quran addresses the Prophet who received divine revelation to rely on shura in making decisions concerning common matters for which no specific revelation had come: {…and take counsel with  them in all matters of common concern; then, when you have made a decision (accordingly), place your trust in God.} (Al-Imran 3: 159)
If the Prophet is addressed to involve the believers in decision-making regarding a common matter for which no specific revelation exists, all the believers must follow this teaching. The distinguished Andalusian Quranic commentator Ibn ‘Atiyya stated his commentary on this verse:
“Shura is one of the basics of Islamic law (shari’ah), and a mandatory rule; and any [who is entrusted with a public authority] who does not take the counsel of those who have knowledge and are conscious of God, should be dismissed from his [or her public] position, and there is no argument about that.” (al-Muharrar, 280-1)
reliance on majority opinion is the only reasonable and acceptable procedure
The Prophet consulted his companions when he confronted his enemies from Quraysh who challenged him and camped near Madinah. In accordance with their opinions, he decided to meet his enemies in the battle of Badr in the year 1 H./622 C. E. Later, the Prophet also consulted his companions about whether to go out of Madinah to meet the attacking army or to stay in and defend the city when they attacked; he followed the majority opinion and met them in the battle of Uhud in 3H./624 C.E. In the attack of a tribal coalition against Madinah in the year 5H./626 C.E., when the Prophet’s suggestion to give an attacking tribe some of its fruits to persuade their withdrawal was not approved by some of his companions, he went along with them.
Even in his private life, when his wife ‘Aisha faced a false accusation shortly afterwards, he asked his companions for their opinions. Later on, in the year 23 H./644 C.E., as soon as Caliph ‘Umar was stabbed, he appointed a committee to discuss, among themselves and with the people, who would succeed him; and their decision had to be made by the majority.
It is obvious from the previously-mentioned verse (3: 159), that any decision made should be based on the results of shura. It is evident in the historical events that the decisions taken were based on the opinions of the majority. Although the minority or even a single person may be right and the majority may be wrong, reliance on majority opinion is the only reasonable and acceptable procedure among human beings, for the risk of error in such a case is far less than in an individual or minority opinion. Freedom of expression and freedom of assembly are essential to determine the right decision among different views, and opposition is naturally indispensable for the life and efficiency of shura.
Besides, the courts, especially a supreme or constitutional court, can always check the constitutionality and legality of any decision. In case of any violation of the general principles of the Islamic Law (shari’ah), any decision made by any authority can be overturned by courts.
Shura in the Political Life
Everyone has the right and obligation to participate in deciding who will be their leaders and representatives by shura, and the elected public bodies must reach their decisions by shura. The Quran states that a majority of human beings may not always be on the right track (see, for example, 2:243, 6:116, 7:187, 11:17. 17:89, and 37:71), but it never teaches that a majority of reasonable and sincere people can be less reliable and more erring than an individual or a minority among them; this is sharply pointed out by Muhammad Abdu and Muhammad Rashid Rida in their prominent commentary on the Quran.
The majority can make mistakes, but making mistakes is human and humans are only required to make serious efforts to determine what is right and to avoid mistakes, making use of accumulated human knowledge and experience about the discussed matter.
Such requirements can be met far better in a majority decision. As previously mentioned, many precedents can be found in the life of the Prophet and the early Caliphs about decisions made according to the majority even if they differed from the leader’s view.
According to the Islamic historical precedents, there is a real binding contract—not a fictitious one—between the ruler and the ruled.
Islam teaches that an individual must adhere to the society or community and the majority can only be identified in such a case. A hadith urges one to follow the most overwhelming majority in case of a serious split:
Follow the way of the largest group of Muslims! For, he who deviates from this group will be thrown into Hell! (Ibn Majah)
The primary area for shura is in choosing the head of the state. In our times, the state leader may be directly chosen by the people or by their elected representatives, and may be the head of the executive branch, or just a symbol for the state while the actual authority is given to the prime minister. In the last case, the prime minister is the leader of the political party whose candidates have won the majority of the seats of the representative body, which may also be called the “parliament.”
The Quran states: {O you have attained to faith! Obey God, and obey the Conveyor of the Message [of God] and those from among you who have been entrusted with authority by you; and if you are at variance over any matter, refer it to God and the Conveyor of the Message [of God] if you believe in God and the Last Day; this is advantageous [for your human relations] and most appropriate for reaching what is right} (An-Nisa’ 4: 59)
The verse indicates that those who are in authority should be those {from among you who are entrusted with authority by you}
This may remind us of the characterization of democracy as establishing “the government of the people by the people for the people.”
While a democratic decision has to comply with “imagined” natural human rights or a social contact as a safeguard against any possible majority injustice, Muslims and those who are entrusted with authority “from among them, by them” are bound by the goals and general principles of shari’ah that secure human dignity, and guard and develop for all human beings: their life, families and children, minds, freedom of faith and ownership of private or public property.
According to the Islamic historical precedents, there is a real binding contract—not a fictitious one—between the ruler and the ruled. The mutual pledge, which was called “bay’a,” holds the ruler responsible for assuring the supremacy of God’s law and justice, securing human dignity, serving the public interest, and fulfilling the entire duties of the position, while it holds the people responsible for supporting the ruler, obeying his decisions that comply with God’s law, and fulfilling their obligations. (Nusus, 224)
The preceding verse implies that those who are entrusted with authority by the people form “organizational bodies” are not considered mere individuals, since they are always referred to in the Quran in the plural. Moreover, differences may naturally emerge within these bodies that are entrusted with authority, or between them and the people or groups of them. The parties at variance are referred to the guidance of God and the Conveyor of His message, which may be presented and decided in the most appropriate way, whenever this becomes necessary, by a supreme court.
The head of the state can be elected directly by the people or by the parliamentary representatives of the people, or can be nominated by these representatives and introduced to the public vote. Any procedure can be followed according to its own merits and to the given circumstances, and Islam accepts that which is in the interest of the people.
Early Caliphs were chosen primarily from a narrow circle and vested by bay’ah, then the chosen Caliphs would go to the public to get their acceptance through the public
bay’ah. As previously indicated, bay’ah is a mutual pledge: from the ruler to follow the Islamic Law and satisfy the public, and from the people to support the ruler and advise him.
Other Areas for Shura (Consultation)
- Shura has a role in the election of the people’s representatives in the parliamentary body (or bodies) and its practice of legislation, guarding the public interest through checking the executive exercise of power, and pursuing the people’s concerns. When the principle of “one person, one vote” fails to secure a fair representation of any group: ethnic, religious or social (i.e., women), justice (the main goal of shari’ah) has to be secured by appropriate means in the given circumstances, such as assigning for each of such groups a certain number of seats in proportion to their size, which would be exclusively contested in certain constituencies or in the country as a whole by those who are related to the group, as some democratic ideas or practices have indicated.
In addition, a limited number of seats, which should represent a minority in the whole parliament, may be occupied by elected representatives of professional or social organizations. Continuous democratic experiences always contribute ways for reaching the best possible representation of the people and their diverse structure and interests.
- Discussions, hearings, and reaching decisions by the representative body and its committees, within themselves, with the executive bodies or with other organizations or individuals in relation to any public concern, represent a vital area for the practice of shura.
- A significant practice of shura may occur if public referendum is found appropriate in certain matters of special importance, which may be decided by the legislature or by a required number of voters through an indicated procedure.
- In the executive branch and its departments, shura naturally has its place in the discussions and decisions.
- Shura has also to be practiced in the elections of leaders and boards in workers’, professionals’ and students’ unions, and in the discussions and decisions of these elected bodies, and in any wider conference they may arrange.
- Technical and professional shura ought to be conducted in schools, hospitals, factories, companies or any other business.
- In the courts, shura is followed when there is more than one judge ruling over the case, or when the jury system is applied.

Democracy and the Concept of Shura (Part 2)

By Fathi Osman
Thursday, 21 June 2012 00:00
Women are equal to men in public responsibilities
Part 1
The democratic mechanism in elections and decision-making is voting, and its known and accepted form is “one person, one vote.”
This procedure was suggested by Caliph ‘Umar for the committee that he appointed to determine who would succeed him as Caliph after being stabbed.
It was further evident from many historical precedents that Prophet Muhammad and the early Caliphs followed the visible majority in making their decisions. The above-mentioned tradition of the Prophet teaches that one has to follow the overwhelming majority when there is a serious spilt.
To those who argue that “one person, one vote” makes the judgment of the most knowledgeable person equal to that of the most ignorant one, one may reply by saying that, in relation to the common interest of the people, any adult with common sense and civic abilities and experience can make a judgment. Campaigns that support different candidates’ views and the mass media provide valuable information for a serious voter. Any discrimination in the votes, on whatever grounds, may be arbitrary.
Judgment about a public matter of an uneducated but experienced person may be sounder than that of an inexperienced university graduate.Women are equal to men in public responsibilities as the Quran explicitly states:
{And the believers, both men and women, are in charge of [and responsible for] one another: they all enjoin the doing of what is right and good and forbid the doing of what is wrong and evil...} (At-Tawbah 9: 71)

Women’s views regarding who should succeed Caliph ‘Umar were pursued, even those of women who were staying in their homes. (Al-Bidayah, 151)
The notable commentator on the Quran Ibn Jarir al-Tabari (d. 310H./922 C.E) and the prominent jurist Ibn Hazm (d. 450CH./668 C.E.) stated that: “A woman can occupy the distinguished position of a judge, if she is qualified for it.” (Bidayat, 384; al-Muhalla, 523)
The Quranic verse about making a male witness equal to two female witnesses in a credit contract indicates that this is meant when a woman might not be familiar with such transactions and their legal requirements: {so that if one of them should make a mistake the other could remind her} (Al-Baqarah 2: 82)
If some jurists stated that a woman could be a judge, then the verse about her testimony cannot be understood as a general rule
It is obvious from the Quranic text, the historical social context, and the jurisprudential principle that: “a legal rule follows its reason: if the reason continues to exist, the rule holds, and if the reason ceases to exist the rule is not applied”—all this makes it obvious that the verse does not address educated or business-experienced women, nor address common human interests which do not require specialization.
The distinguished jurist Ibn al-Qayyim (d. 751H./1350 C.E.) indicated in his book, al-Turuq al-Hukmiyya (Ways of Ruling), as well as other jurists, that “this rule does not apply to the testimony of a woman in other areas that she may know well”. (Bidayat, 348)
If some jurists stated that a woman could be a judge, then the verse about her testimony cannot be understood as a general rule for the whole gender in all times and places.
Elections require several candidates from whom to choose for a position. Caliph ‘Omar nominated six distinguished persons from which one might be chosen as a candidate for the caliphate to succeed him. Some argue against such a procedure from an Islamic point of view, arguing that Prophet Muhammad said:
By Allah, we do not appoint to this position one who asks for it, nor anyone who is covetous for it. (Muslim)
According to scholars in this field and jurists, this is interpreted as a warning against asking for a public position merely for a personal benefit without considering its responsibilities and the required capabilities for fulfilling them. One who is capable for a public position, fully aware of its responsibilities, and thinks that he or she can fulfill them and commits himself or herself to do so, can ask for the position and mention his or her qualifications for it, as the Prophets Joseph and Solomon did. Joseph said to the King of Egypt:  {Set me in charge of the store-houses of the land, I am a knowing and honest guardian} (Yusuf 12: 55), and Solomon prayed: {O my Lord! Forgive me and grant me a kingdom such as may not befall anyone after me} (Sad 38: 35)
It goes without saying that presenting the candidate’s merits and capability for the position, and criticizing others’ in capabilities should follow the legal and ethical principles of Islam. The requirements for a candidate, or what may bar a person from a candidacy can be decided in the light of Islamic legal and moral teachings, and according to social circumstances.
In Islam, women may be members of the parliament, ministers, judges, and-military and police officers, according to their merits and credentials, since they enjoy equal rights and responsibilities to men in joining the doing of what is right and good and forbidding what is wrong and evil.
Non-Muslims represent an inseparable part of the society and the state and have the right and duty to occupy positions in the executive, legislative and judicial branches and in the military and police as per their merits and credentials, according to the Prophet’s constitutional document in Madinah and several historical precedents.
A modern state is ruled by bodies, not by individuals, and non-Muslims would represent in any body their size and weight in the society. The prominent Shafi’i jurist al-Mawardi (d. 456H/1068 C.E.) stated that “a Caliph can have a non-Muslim executive minister.” (al-Ahkam, 27)
Non-Muslims were known as ministers and top officials in Islamic states such as Egypt and Muslim Spain. As for a non-Muslim judge, he or she has to apply the state code of laws according to whatever his or her beliefs may be. However, the areas that are related or close to the faith—such as family matters and waqf (a property of which the revenues are permanently allotted to charity or certain beneficiaries) can be assigned to a judge of the litigant’s faith.
Multi-Party System, the Opposition
the Quran urges that groups may be formed to enjoin the doing of what is right and good and forbid what is wrong and evil, which is the essence of politics
Political parties are essential for democracy, as they help people to form their views and choices about persons or policies. Besides, the individual finds himself or herself helpless to oppose governmental authority, especially in a modem state with its enormous power provided by advanced technology in suppressing opposition and in influencing public opinion. The multi-party system has proved to be the most—if not the only—democratic formula in this respect. The one-party system has never allowed any real or effective opposition within itself, and such an opposition can never grow outside from its individuals who have no vehicle to contact the masses, and no power as individuals to challenge the government with all its authorities and oppressive measures.
Islam secures the right of assembly, and the Quran urges that groups may be formed to enjoin the doing of what is right and good and forbid what is wrong and evil, which is the essence of politics:
{And let there be from among you a community (Ummah) that calls to good and enjoins the doing of what is right and forbids the doing of what is wrong} (Al-Imran 3: 104)
The word ummah used in the verse may not always mean the whole community but just a group of people, especially when the word is connected with the preposition “from,” as in the above mentioned verses: {from among you...}. This need not hurt the fundamental unity of the people, since political differences are human and inevitable, and thus should not affect the public unity if they are properly handled in objective and ethical ways. As politics represent an area of human thinking and judgment and discretion (ijtihad), the Quran assumes that Muslims may face differences and even disputes, and they have to settle them according to the guidance of the Quran and the Sunnah.
Different legitimate approaches towards the understanding and interpretation of the divine texts and implementing them may naturally arise. Early Muslims had their conceptual differences from time to time, and they argued about the state leadership after the Prophet’s death. Their political differences were represented in certain groups, which freely and openly expressed their diverse views on that occasion in a public meeting at al-Saqifa. Later, Muslims had several theological groups with different political concepts, as they had their different jurisprudent! All schools and such differences should not by any means hurt the public unity, when they are objectively and ethically tackled.Accordingly, Muslims can form several Islamic political parties: all of them are committed to Islam, but each with its own concepts or methods of political activity, or with different programs of reform when they rule. Although establishing parties on ethnic grounds or for personal or family considerations ought not to be encouraged from the Islamic point of view—especially among Muslims—this may be acceptable in given circumstances.
Opposition is indispensable in a democratic system, and should not raise doubts to the Muslim mind. It is needed to scrutinize the government’s activities
Non-Muslims and secularists can have their political parties to present their views, and defend their interests and guard the human rights and dignity of all the children of Adam as the Quran teaches. Women can join or form the party they like. Political fronts and alliances may involve Islamic parties and others whenever this may be beneficial for the Muslims and the entire people. As well, coalitions can gather various parties, including Islamic ones, to form a government. Such diversity in political thinking, concerns, and activities within the people’s unity represents a fundamental organizational tool for human pluralism, in order to secure and defend the dignity of all children of Adam.
Opposition is indispensable in a democratic system, and should not raise doubts to the Muslim mind. It is needed to scrutinize the government’s activities, and to be ready to replace it if it loses the confidence of the people. Opposition does not oppose for the sake of opposition; it should support the public unity during national crisis.
However, opposition may not be efficient or effective when the political parties become so many that forming a coalition to govern, or a weighty opposition would be problematic. This is a challenge for the multi-party system, which some contemporary democracies are facing and suffering from. It may be overcome through political prudence and moral responsibility rather than by any legal restriction that may be arbitrarily decided or executed.

Legislation and Separation of Powers

Some Muslims may argue that, since God is the Lawgiver, there should not be a legislative body in an Islamic state. In fact, the legislature specifies and puts in detail the required laws, while the Quran and Sunnah present general principles and certain rules. Even in the case of such particular rules in the Quran or the Sunnah, different interpretations and jurisprudential views might arise about a certain text on the grounds of its language and its relation to other relevant texts. It is essential that a certain interpretation or jurisprudential view should be adopted by the state as a law, and this has to be decided by the legislature, so that the courts may not be left to different rules that may be applied in the same case according to the views and discretion of different judges—a complaint the Egyptian well known writer Ibn al-Muqaffa’ (d. 142H./759 C.E.) made in his time. ( Duha, 174)
Besides, there is extensive room for what is allowed by shari’ah and such an enormous area of allowed matters ought to be organized in a certain way, making any of them mandatory, forbidden, or optional according to the changing circumstances in different times and places. Public interest has its consideration in introducing new laws, which were not specified in the Quran and Sunnah, but which are needed in a certain time or place, and which do not contradict any other specific rule in the divine sources, but can be supported by the general goals and principles of shari’ah.
Many laws are required in a modem state in various areas such as traffic, irrigation, construction, roads, transportation, industry, business, currency, importing and exporting, public health, education, and so on, and they must only be provided according to the consideration of public interest or in the light of the general goals and principles of shari’ah, as there are no specific texts in the Quran and Sunnah that directly deal with every emerging need in every time and place.
Changing circumstances influence the human understanding of the legal text, and develop new legitimate needs for legislation.
Prophet Muhammad himself expected that some cases, which may not have a particular corresponding rule in the Quran and Sunnah, would face a judge who has to use his own discretion and judgment “ijtihad”, which is naturally assisted by the essence of shari’ah and guided by its general goals and principles. Such a juristic or judicial discretion, ijtihad, may have to be generalized and codified as a state law, and not left to personal differences of the jurists or judges. Changing circumstances influence the human understanding of the legal text, and develop new legitimate needs for legislation. Considering the goals and general principles of the Islamic law in responding to changing social needs has been called in the Islamic law: the conduct of the state policies according to shari’ah “al-siyasa al-shari’iyya”. The distinguished jurist Ibn al-Qayyim wrote:“A debate took place between (the jurist) Ibn Aqil and another jurist. Ibn Aqil said: ‘Applying (discretionary) policies is prudence, and is needed and practiced by any leader (imam).’ Another (jurist) said, ‘No policy (siyasa) should be applied except what abides by shari’a. Ibn Aqil said, siyasa (which can be described as related to shari’a) represent actions that make people nearer to what is good and further from what is evil, even if such policies were not practiced by the Prophet or included in God’s revelation.”
Ibn al-Qayyim underlined the lack of true knowledge of shari’ah and how it copes with the existing realities, and made this fascinating statement:
“God only sent the conveyors of His message and sent down His revealed books so that people deal with one another with justice. Wherever a sign of truth appears, and an evidence of justice rises—by any way, there is God’s law and command. God has only indicated through the ways that he gave as laws [by revelation] that His purpose is to establish justice and to secure it in people’s behavior: and thus any way that makes the truth clear and justice recognized should be followed in ruling... We do not see that a just policy may differ from the comprehensive shari’a, but it is merely a part of shari’ah, and calling it policy, “siyasa” is merely a term, since it is just inseparable from shari’ah.” (I’lam, 37)
The legislature, then, is necessary and legitimate in a modern Islamic state. It also watches the practices of the executive body, enquires about any failure and introduces any necessary legislation for reform. The principle of “checks and balances” would be helpful in organizing the state bodies and their powers, and guarding the public interest. The separation of the legislative and the executive in their functions should allow channels of cooperation and should not create a climate of confrontation.
The moral and spiritual dimension in the politics of an Islamic state may help organizationally and psychologically to develop the essential co-operation between the two branches. As for the judiciary, it should be independent and protected against any interference or pressure.
Contemporary mass communications provide a valuable vehicle for public information, education and expression. Talk shows, panel discussions, movies, series, songs and other entertainment programs also have their impact on the public attitudes in the various areas of life. I limit myself here to the political side.
Any established means of mass communication must be secured for all. This right may be organized, but never restricted.
Freedom of searching for information from different sources including the governmental authorities should also be secured. Legal and ethical safeguards ought not to hinder creativity. The media can help the readers and the audience to become more aware of the political issues, especially during election campaigns, and this would make them more capable of a right decision. Any new legislation or any public measure may be more successful in achieving its objective if it is preceded, combined and followed by information and education of the people through the media.
According to the Quran, God’s guidance has to be clarified to a person before being responsible for a deliberate deviation from it (see 4:115; 47:25, 33) Those who are entrusted with authority by the people have to respond to people’s questions about their practices, while the people have the responsibility to look for the information from the proper sources and avoid rumor traps by using their common sense and moral values (see 4:83; 49:6-8). If any of the mass media is run by the government in a way or another, political parties and contestants for public offices should have equal opportunities to address the people.
However, rights go hand-in-hand with responsibilities. Modern technology has endowed the media, both within the country and universally, with a formidable power that ought to have ethical and legal safeguards. A universal document and supervision may be needed. Heavy pressures on the private media come from wealthy and influential contributors and advertisers. It is a real challenge for the modern world to benefit from this huge technical and psychological power and avoid its excessiveness and abuse. A combination of morality and creativity is essential in such a vital and sensitive area.
Works Cited:
Al-Mawardi, Ali ibn Muhammad. al-Ahkam al-Sultaniyya. Cairo: Mustafa al-Halabi, 1973
Amin, Ahmad. Duha al-Islam. Beirut: Dar al-Kitab al-Arabi. 11th Ed., 1975.
Ibn al-Qayyim al-Jawziyyah. I 'lam al-Muwaqqi‘een.  Vol. 3. Cairo: al-Maktabah al-Tijariyah al-Kubra, 1955
Ibn Kathir, lsma’il ibn ’Umar. Al-Bidayah wa-l-Nihayah. ed. by Ahmad abu Milhim et al. V. 7. Beirut: Dar al-Kutub al Ilmiyya, 1988
Ibn Rushd, Muhammad ibn Ahmad. Bidayat al-Mujtahid. Vol. 2. Beirut: Dar al-Fikr, n.d.; Ibn Hazm, Ali ibn Ahmad. al-Muhalla. ed. Muhammad Khalil al-Harras. Vol. 9. Cairo: Matba’at al-Imam, n.d.
This is an excerpt from the paper "Islam in a Modern State: Democracy and the Concept of Shura" by Fathi Osman. It first appeared at
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Dr. Fathi Osman is a professor of Islamic Studies and has taught in several universities around the world. Among these universities are Al-Azhar University in Egypt, Houran University in Algeria, Ibn Saud University in Saudi Arabia, International Islamic University in Malaysia, Temple University, USC, and Georgetown University in America. He is an author of several books and articles which include: Islamic Thought Vs. Change, Children of Adam: An Islamic perspective on Pluralism, Jihad: A legitimate struggle for moral development and human rights and Concepts of the Quran. He is currently retired and is a resident scholar at the Institute for the Study of Islam in the Contemporary World at the Omar Ibn Al Khattab Foundation in Los Angeles, USA

Works Cited:
Ibn ‘Abd al-Hakan, Abd al-Rahman ibn ‘Abd Allah. Futuh Misr wa-l-Maghrib. ed. Abd al-Manim Amir. Cairo: Ministry of Culture, 1961
Ibn Atiyya, Abd al-Haqq ibn Ghalib. Al-Muharrar al-Wajiz. vol. III. Fez: Ministry of Awqaf and Islamic Affairs, 1997
John Dewey, Individualism: Old and New. New York: Minton & Balch, 1930
Muhammad Abduh and Muhammad Rashid Rida, Tafsir al-Quran al-Hakim (Tafsir al-Manar), Cairo: Matba’at Subayh, 1374 H.
Abu Ya’la, Muhammad ibn al-Husayn al-Farra, al-Mu’tamadfi Usul al-Din, a chapter published in Yusuf Ibish, Nusus al-Fikr al-Siyasi al-Islami, Beirut: Dar al-Tali’a, 1966

This is an excerpt from the paper "Islam in a Modern State: Democracy and the Concept of Shura" by Fathi Osman. It first appeared at

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