THE CHALLENGE OF INSTITUTIONAL GOVERNANCE IN ISLAM: JUSTICE, DEMOCRACY AND SHARIAH:IMAD AL-DIN AHMAD-MINARET OF FREEDOM INSTITUTE

THE CHALLENGE OF INSTITUTIONAL GOVERNANCE IN ISLAM:
JUSTICE, DEMOCRACY, AND SHARIAH
by Imad-ad-Dean Ahmad, Ph.D.
Minaret of Freedom Institute
www.minaret.org
A Paper for the 5th Annual Conference of the Center for the Study of Islam and
Democracy: Defining & Establishing Justice in Muslim Societies
May 28, 2004 - Washington D.C.
ABSTRACT
Justice is an absolute standard for the conduct of human relations while
democracy is a formalism by which decisions are made. In modern times,
Western societies have had more success in establishing a degree of domestic
justice within a democratic formalism than have Muslim societies. Assertions
that this is because Islam is inherently unjust or undemocratic are fallacious. I
shall argue instead that Muslims face two special challenges.
Democracy is a contentious term with conflicting definitions. Although attracted
to the concept, the Muslim world has had insufficient familiarity with its nuances
and insufficient experience with its practice. We may compare the turns and
upheavals faced by the British in the centuries it took to establish their
democracy with the difficult and painful progress of Iran in establishing an
Islamic republican government. We may also compare the obstacles faced by the
Americans in moving from the Declaration of Independence to the Constitution
with the constitutional issues facing the Iraqis today.
Muslims have preferred to take a personal rather than corporate approach to
social issues. While this has certain advantages over the Western approach, it has
had the undesirable consequence that Muslims have paid insufficient attention to
questions of sound institutional governance. The only serious modern corporate
institution in the Muslim world has been the state, but because it has been
unconstrained by sound institutional governance, the state has been neither just
nor democratic. I argue that by viewing shari`ah in the same manner that
Western jurists approached natural law, it is possible for Muslim legal scholars to
accept a formal role for democratic processes and in a manner consistent with
original conception of shari`ah. Finally, I shall show how such processes can
protect rather than threaten the centrality of the traditional sources of Islamic law
even as they offer hope to solve the problem of the inflexibility of Muslim
jurisprudence in modern times. Sound governance must incorporate shurah and
ijma` while respecting justice as both a means and a goal.
INTRODUCTION
Justice is an absolute standard for the conduct of human relations while democracy is a
formalism by which decisions are made. Achieving the former within the structure of the
latter is a challenge for any society. In modern times, Western societies have had more
success in establishing a degree of domestic justice within a democratic formalism than
have Muslim societies. Assertions that this is because Islam is inherently unjust or
undemocratic are fallacious. I shall argue instead that Muslims face two special
challenges.
First, although Muslims are attracted to the concept of democracy, it is a contentious term
with conflicting definitions, and the Muslim world has had insufficient familiarity with
its nuances and insufficient experience with its practice. For instruction we shall compare
the turns and upheavals faced by the British in the centuries it took to establish their
democracy with the difficult and painful progress of Iran in establishing an Islamic
republican government. We shall also compare the obstacles faced by the Americans in
moving from the Declaration of Independence to the Constitution with the constitutional
issues facing the Iraqis today.
Second, I shall argue that Muslims have preferred to take a personal rather than corporate
approach to social issues. While this has certain advantages over the Western approach, it
has had the undesirable consequence that Muslims have paid insufficient attention to
questions of sound institutional governance. The only serious modern corporate
institution in the Muslim World has been the state, but because it has been unconstrained
by sound institutional governance, the state has been neither just nor democratic. I shall
argue that by viewing shari`ah in the same manner that Western jurists approached
natural law, it is possible for Muslim legal scholars to accept a formal role for democratic
processes and that such a view is consistent with original conception of shari`ah. Finally,
I shall show how such processes can protect rather than threaten the centrality of the
traditional sources of Islamic law even as they offer hope to solve the problem of the
inflexibility of Muslim jurisprudence in modern times.
Because fiqh is only the human attempt to map the reality of divine law, differences of
interpretation in the formulation of the law is inevitable. Yet Islamic principles require
individual responsibility of each of God’s servants to the Creator. Thus, sound
governance must incorporate shurah and ijma` while respecting justice as both a means
and a goal.
THE CONTENTIOUSNESS OF DEMOCRACY
I will waste no time arguing the popularity of democracy before a meeting of the Center
for the Study of Islam and Democracy. Instead I shall review the reasons why the
meaning of democracy has been so hotly contested. In its least contentious form, the
democratic principle is that legitimate rule requires the consent of the governed.
According to the Qur’an even Allah asked the children of Adam to assent to His Lordship
over them: “When thy Lord drew forth from the children of Adam from their loins their
descendants and made them testify concerning themselves (saying): ‘Am I not your Lord
(who cherishes and sustains you)?’”1 Once we attempt to move beyond that simple
conception of democracy, agreement on a definition of democracy becomes hopeless.
Must every individual consent to the choice of the leader? Such a requirement will serve
for very small groups or even for medium size groups at their initial formation, but
becomes impossible for groups of any large size. Does it mean that legislation requires
unanimous consent? Then nothing will ever be legislated. Even if we admit of a
representative democracy in which legislation is the function of a popularly elected elite,
those elite will rarely agree unanimously on any legislation of significance. Then shall we
permit the majority to rule in all cases? This is rightly called the “tyranny of the majority”
and will appeal only to crude populists with no concern for the rights of minorities or the
wisdom of the learned.
When we examine the democracies of the Western world, we see they come in a wide
variety of forms and flavors. Americans, with their two-party system have contempt for
the multi-party democracies because of the leverage those systems give to small splinter
groups. On the other hand, third parties in the United States condemn the two-party
system as a shared monopoly of power by which the elites exclude those with new ideas
and leave unrepresented the disenfranchised minorities.
Yet, we cannot deny that most Western countries have working democracies, which few
Muslim countries do.2 Since Britain and America are the most commonly advanced
examples of successful democracies, let us focus not on the details of their systems, but
on the history of their origin.
The creation of a working democracy in Britain was not due to the imposition of a
completed structure, nor was it an instantaneous epiphany. The establishment of the
British democratic system began with the Magna Carta in 1215 C.E., a document that
established the supremacy of the law above the king. The nobility that imposed this
concept on King John had just returned from the Crusades where they had witnessed that
the ruler of the Muslims, Salahuddin, was subject to the same laws as governed his
citizens. The British barons demanded that John submit, not to Islamic law, but to a
notion of an English traditional law that they imagined but until that moment had never
been explicit.
Significant as the rights established in the Magna Carta may be, they are far short of
anything we would call a democracy. While it established the rule of law as an abstract
principle and specified some particular limits on the king’s authority, that authority was
still very sweeping. It was 33 years before the House of Commons was established and it
was not until the 14th century that the current parliamentary structure was developed and
the feudal system began to erode as taxation of commerce and exports began to replace
the land tax. The tilt of the balance of legislative power from king to parliament remained
1 Qur’an 7:172 from the translation of Abdullah Yusuf Ali, The Holy Qur'an (Elmhurst, NY: Tahrikr
Tarsile Qur'an 1988).
2 The democracies of Malaysia, Bangladesh, Indonesia and Iran have serious flaws, but they do work. Even
the democratic structures of Turkey and Pakistan work when not interrupted by military interventions.
a contentious and drawn out process, with frequent violent and authoritarian climaxes,
such as the reign of Oliver Cromwell.
Nor was the establishment of the free market and the protection of property rights a rapid
process. England developed an entrenched Mercantalist system supporting huge
monopolies and with strong protectionist tariffs aimed at sustaining an imperial system. It
was not until the “Glorious Revolution” of 1688 instituted reforms inspired by natural
law and pro-property philosopher John Locke—himself inspired by Ibn Tufayl.3 Yet, as
late as 1815, Britain adopted the infamous Corn Laws preventing the importation of corn
unless the price of domestic corn rose to such a high level that the working classes were
faced with an unmanageably high cost of food. It was in the atmosphere of discontent
under these laws that the reform act of 1832 more fairly reapportioned representation in
the parliament and doubled the size of the electorate from 217,000 to 435,000—although
only one man in five yet had the right to vote and no woman did.4 The repeal of the corn
laws in 1846 delayed the enfranchisement movement, but could not stop it and by 1876
the franchise had been extended to “every male adult householder living in a borough
constituency” and “[m]ale lodgers paying £10 for unfurnished rooms,” a total of about
1,500,000 men.
If we look at Iran with a tolerance for extremely loose comparisons, we might see
parallels between Mossadeq and development of the British parliament, between the
viliyat i fiqh and Cromwell, between the English reform acts and the extension of the
franchise in Iran today. How strong the parallels are in the uneven development of these
democracies are may be debated, yet we should be impressed by the speed with which
Iran is going through its development compared to the timescale of the evolution of
British democracy. One should not read too much into this comparison, for obviously
Britain trod this road first. Yet it is unreasonable to be impatient that Iran is taking
decades to travel the road that took Britain centuries.
One might argue that it is not unreasonable to expect new nations using man-made
constitutions to solve these problems faster than those that, traveling the road first, had to
solve by an evolutionary process. Yet we must ask how much faster will a designed
constitution be? Surely the United States of America was in a better position to take
advantage of the mistakes of Britain than anyone, since the colonists were mainly of
British stock, well-versed in the history of that land, and comfortable with its culture—
more so than one should expect of Iraq or Iran. Yet, when the Americans sought to
rationally create a written constitution (unlike Britain’s unwritten one) they botched up
the first attempt. The articles of Confederation were adopted by Congress in 1777,
ratified four years later, and abandoned—to be replaced by the Constitution—in 1788.
There were twelve years between the Declaration of Independence and the Constitution.
3 See G. A. Russell, "The Impact of the Philosophus Autodidactus: Pocockes, John Locke, and the Society
of Friends," The "Arabick" Interest of the Natural Philosophers in Seventeenth Century England
(Brill's Studies in Seventeenth Century England; Leiden: E.J. Brill, 1994), pp. 224-265.
4 Glenn Evrett, “The Reform Acts,” (10/14/2002) http://www.victorianweb.org/history/hist2.html, accessed
5/25/04.
Perhaps the Iraqis also will need two attempts to get their constitution right. However, to
be on an equal footing with the American Founding Fathers, the Iraqis would need to be
free to elect their constitutional representatives. Perhaps they also should be allowed to
elect their local and provincial governments even before a national constitution is
adopted, as did the Americans. Finally, we note that the American Constitution still
required amendment after 80 more years to give the vote to blacks, another 52 years to
give the vote to women, and another 41 years to give the vote to young adults 18-20.
Fifteen to seventeen year olds, adults under Muslim law, are already allowed to vote in
Iran.5 It is these young people who are the driving force pressing for further democratic
reform and liberalization. We note that the clause in the Iraqi constitution that gives
women 25% of the seats in parliament—a considerably larger percentage than enjoyed by
women in the U.S. Congress—received no objections from the Iraqi public.
PERSONALISM VS. CORPORATISM
We have elsewhere6 noted that Islam is a “nomocratic” system, in which law is
discovered, rather than a system of positive law, in which law is invented. There is,
however, no scriptural obstacle for democratic reform, since an elected legislature is one
means for settling disagreements over interpretation of the law. (Another means, well
established in Islamic jurisprudents, is the existence of competing schools of law among
which the individual is free to choose). However, there is a serious albeit indirect obstacle
to meaningful democratic reform in the cultural preference among Muslims for
personalism over corporatism.
What I mean by personalism is encapsulated in T.E. Lawrence’s observation that “Arabs
believe in individuals, not institutions.”7 The idea is that we will do business with people
we trust. An institution will be judged by the person at its head. It is for this reason that
Middle Eastern Muslims want to sit down and socialize with potential business
associates, while Americans don’t see why the need even to meet the directors of a
company in which they invest money, but are satisfied to read the prospectus.
The virtues of personalism are that it avoids bureaucracy, red tape, and the high overhead
costs that are associated with institutional record keeping and oversight. The problem of
personalism is that in relying completely on trust in the morality of the trustee, it neglects
the elements of procedural protections aimed at insuring good governance of corporate
structures, and too easily opens the door for corruption. In treating the head of state as the
owner of the state, it opens the doorway to tyranny.
5 Robin Rowland, “Iran: Facing a Demographic Revolution,” CBC News Online (June 18, 2003)
http://www.cbc.ca/news/background/iran/. Accessed 5/27/04.
6 See, e.g., Imad-ad-Dean Ahmad, “Definitions of Democracy,” Muslim Democrat 1 #2 (Sept. 1999) , 2.
7 Quoted in Lawrence Rosen, The Anthropology of Justice: Law as Culture in Islamic Society (Cambridge:
Cambridge Univ. Press, 1989; the Henry Morgan Lewis lectures 1985), p. 14.
Personalism is the best way for dealing with small institutions, but public choice theory
has demonstrated why it becomes unmanageable in dealing with large organizations.
Consider the family-owned business. The workers, the owners and the managers are all
the same people. There is no conflict between their individual success and the success of
the business. A son, say, has too much incentive to avoid losing the respect of his father
to slack off or otherwise cheat the business. If he does act in ways that go against the
good of the family, the father soon knows it and acts as necessary. Compare this to a
large international corporation with thousands of branch offices. The stockholders, the
managers, and the workers are completely different sets of people. Their interests are
wildly divergent, and it is extremely difficult to detect when any one is working at odds
to the interests of the others. Thus, regulations and bureaucratic monitoring and
procedures are necessary.
Islam has heavily based its culture on precedents from the early ummah where
bureaucratic complications were unnecessary. To give an example, consider a problem
faced by modern zakat institutions when applicants resent having to fill out application
forms and give the names of references. They object that the Prophet (as) never asked for
application forms and references. They are correct, but they overlook the fact that the
Prophet knew the people whom he was assisting. He was their reference and he already
knew their situation.
The only serious modern corporate institution in the Muslim world has been the state, but
because it has been unconstrained by sound institutional governance, the state has been
neither just nor democratic. The modern nation state is the institution least amenable to
personalization. It suffers from the public choice problem of large corporations on an
even grander scale because of its sheer size. In addition it is divorced from accountability
in a way no business corporation can be because of its monopoly on the use force. Thus
the state can defend itself from criticism by controlling the media, the election process,
and the people themselves in ways no business would dare. Rather than avoid corruption,
such states repress those who would seek to take action to reform it. The only possible
way of limiting such a state is by the institutionalization of democratic processes that
guarantee the freedom to criticize it and peaceful means for attempting to change it.
I want to argue that there is a role for democratic processes in the original conception of
shari`a. To do so, we must clarify that meaning of shariah, which too often is confused
with the fiqh. Sharî`a literally means “the path to the well.” What does “the path to the
well” have to do with Islamic law? The path to the well is whatever it is as the Islamic
law is whatever God has made it. Thus, the fiqh is to th e shariah as a map of the path to
the well is to the path itself. It is a human conception of a divine fact. In other words the
shariah is like the laws of nature, eternal and unchanging, while the fiqh is like our
scientific theories, scholarly human attempts to understand the divine law.
Islamists who speak of “imposing the shariah” then are making an extreme error, since
the shariah can no more be imposed by man than can the law of gravity. And man has no
more right to impose a particular school of fiqh on others than he has to impose Newton’s
law of gravity as opposed to Einstein’s or vice versa. That is why the Prophet told his
companions: “It is incumbent upon those who are present to inform those who are absent
because those who are absent might comprehend (the message) better than the present
audience.”8 Notice how this is a forward-looking view of the shariah, in contrast to the
backward-looking view that denies the possibility that the shariah might be better
understood by later generations than earlier one.9 Within this concept of shariah,
democratic process can play a role in circumventing violence due to different
understandings of shariah.
In the end it is insufficient to fall back on generalities, asserting that we want to use
shurah and ijmâ’ to resolve our differences. We must formalize the rules of consultation
and consensus so that people may know how to use them and give their consent to the
processes by which we propose to implement them.
Such processes can protect rather than threaten the centrality of the traditional sources of
Islamic law even as they offer hope to solve the problem of the inflexibility of Muslim
jurisprudence in modern times. When violent means are relied on to resolve disputes
about the law, too many people end up believing that it is the law itself that causes
violence. This is what led Europe to abandon the belief in absolute law altogether and to
plunge into moral relativism. Those who want to give some humans the ability to dictate
to other humans what only Allah may dictate set the stage for a similar misdirected
rebellion in the Muslim world. Anger that should be directed against human tyrants is
turned against the Law and perhaps against Allah (saws) Himself.
Because fiqh is only the human attempt to map the reality of divine law, interpretation in
the formulation of the law is inevitable. Yet Islamic principles require individual
responsibility of each of God’s servants to the Creator. Thus, sound governance must
incorporate shurah and ijma` while respecting justice as both a means and a goal.
We may use the issue of women’s rights as an example of the problem and its solution.
Consider the difference between of Umar and the Prophet on the matter of hijab:
When 'Umar asked for the permission to enter [where the Prophet was meeting
with some Quraishi women], the women quickly put on their hijab. ... The
Prophet said, “These women who have been here, roused my wonder, for as soon
as they heard your voice, they quickly put on their hijab.” Umar said, “O Allah's
Apostle! You have more right to be feared by them than I.” Then 'Umar
addressed the women saying, “O enemies of yourselves! You fear me more than
you do Allah's Apostle?” They said, “Yes, for you are harsher and sterner than
Allah's Apostle.”10
8 Sahih Bukhari 1:67.
9 A critique of the backward view was presented at this conference by Kamran Ashgar Bokhari, “Poverty of
Islamic Thought as an Obstacle to Justice.”
10 Sahih Bukhari 5:32.
Discretion by managers and ministers is unavoidable, but a discretionary authority that
can deprive women of their right to khula divorce, as happened in Egypt11 requires
institutional safeguards. Political circumstances will affect the legal interpretations of
those empowered to interpret. The Islamist politicians in Jordan initially opposed women
voting, until they realized that they needed the votes of women in their own ranks to win
seats whereupon they decided that it is the Islamic duty of women to vote. The best
protection against a counter-productive corporatism is personal inclusion in the process
of establishing the governing documents. Involve women in the writing of the
constitutions and bylaws of Muslim organizations and states. This is no innovation as
women were involved in the transmission of hadith literature. Anyone who studies hadith
literature will clearly see the importance of the inclusion in the relative fairness of hadith
to women. Exclusion of hadith transmitted by women would substantially alter the
balance of the picture of the sunnah we have received. Example of Aisha’s correction to
those who said that the presence of a women in front of a man will invalidate his prayer:
“It is not good that you people have made us (women) equal to dogs and
donkeys. No doubt I saw Allah's Apostle praying while I used to lie between him
and the Qibla and when he wanted to prostrate, he pushed my legs and I
withdrew them.”12
CONCLUSIONS
We have argued for a reconciliation of the modern concepts of corporate governance with
the traditional Muslim preference for personalism. The traditional Muslim view that all
relationships are contractual is not antagonistic to good corporate governance provided
certain principles (that happen to be principles of good corporate governance are
observed.
To the largest degree possible, decentralize authority so that personalism in decisionmaking
is least subject to corruption. If the individual is responsible for all decisions that
affect only the individual, then no problem of public choice conflicts arise.
Where decision affect others in small groups allow all members of the group to
voluntarily and contractually set the terms of their interaction. Respect the autonomy of
natural groups like the family and only intervene when a decision may adversely impose
consequences on others outside the group or when a member of the group (for example
an infant in the case of the family) is unjustly harmed by a disadvantage of power.
Where decisions must be made in large groups obtain the consent of all members of the
group to a due process of decision-making. To this we submit the proposal of the Islamic
11 See, e.g., Amira El-Azhari Sonbol, The New Mamlukes: Egyptian Society and Modern Feudalism,
(Syracuse, NY: Syracuse Univ. Press, 2000), p. 184-186.
12 Bukhari, vol. 1, #498.
Rules of Order.13 All corporate structures whether governmental, civil, or commercial,
must be governed by rules that are fair, simple and understandable. Rules of
accountability must also be put in place.
Establish nation-states, like Iraq, on a federal structure so that the subsidiary groups,
whether geographical, ethnic, linguistic, or sectarian, will be autonomous and at minimal
risk of adverse intrusion. The laws of such states should not be biased towards
preferential treatment of large corporations which must rely on burdensome
accountability checks, so that individuals may elect to organize in smaller familiar groups
where personal trust will suffice.
The main problem with attempts at both democratization and liberalization in the
Muslims world has been that they have been long on generalities and short on specifics.14
The process of writing documents of institutional governance forces Muslims to deal with
specifics.15
13 Imad-ad-Dean Ahmad, Islamic Rules of Order, in preparation.
14 See, e.g., “Arab Leaders Adopt Reform Plan.... Or Do They?” Democracy Digest 1 #4 (May 28, 2004)
15 An example of a specific project in which the Minaret of Freedom Institute is involved is a proposal for a
workshop in Jordan for Iraqi civics educators by which we may encourage them to incorporate the ideas to
which I allude in my talk in the still-to-be-constructed civics curriculum in Iraq. All interested in this effort
should contact the Minaret of Freedom Institute at mfi@minaret.org.