The tolerance level for a rational discussion on any topic relating to Islam has never been so minimal as it is now. Admitted that during the course of Muslim history certain rulers made a divergence from the official doctrine punishable, but the punishment was accorded by the state. As for today, groups of self righteous religious zealots consider it their religious duty to take law in their own hands and enforce punishments on those they consider to be erring Muslims, wherever possible.
Some views expressed in this brief essay may not be in accord with the platitudes purported to be self evident truths, but these views are shared not only by many Muslim scholars living in the West who want to reinterpret Islam to make it a workable system in the 21st century but also by some classical Islamic scholars. Unfortunately almost all attempts of modernity to understand Islamic religion as a social phenomenon with the intention of entering into a dialogical discourse with the Western academia is looked upon with disdain by the Muslim clergy. The Western Muslims’ main motivation is to retain their religion as something valuable to their existence and provide a bedrock for keeping their identity intact. As against some westernized minds they do not want to discard their religion but want to readdress the paradigmatic basis of Islam for developing an authentic Islamic identity. But the madarassahulema look at their attempts with contempt, branding them as westernized deviants, bordering to apostasy notwithstanding this, when want to look modern, they themselves use modern terminology and concepts and assume that they have subsumed all of modernity within the classical Islamic doctrine or Islam per se.
One prevalent attempt of pseudo-modernism is to proclaim Islam to an ‘ideological system’ rather than a religion and to use phrases like Islamic Economic System or Islamic Political System in the same fashion as the socialists used the terms of democracy or socialist economy. Following suit, though unsupported by the necessary philosophical underpinnings, the Islamic pseudo-modernists want to make us believe that Islam has a well defined economic system; a political system and a pervasive social philosophy ; that ‘Islamic state’ is a well defined concept in the modern sense of constitutional democracies etc. This characterization of Islam gained currency during the struggle for independence (in India) under the influence of the nineteenth and early twenty century ideologies and philosophical doctrines. The systemizing thought of Maulana Maudoodi, as well as the language and party structure of Jamat Islami, conforms to Marxist ideologism. In their eagerness to prove that Islam has a systematic theory of state, they articulated Islamic concepts in modern terminology, without giving much thought as to the nature of such concepts. For instance, the platitude that “sovereignty belongs to Allah” was sneaked into Muslim constitutionalism without critical insights of the concepts of political and legal sovereignty as against cosmic and ontological sovereignty. Political sovereign in a modern state, in addition to its legal responsibility, has to fulfil the day to day requirements of the state as an efficacious agent. In point of fact the Imamiyyah theory is much closer to this concept of religious sovereignty.
It is plausible to assume that the pretext of God’s political sovereignty was required to make room for theocracy in Islam, a concept which is otherwise derided by religious scholars as a characteristic of Jewish or Christian religions. The claim that only an alim can decipher God’s intentions as given in the Quran and Sunna in order to implement the politico-legal sovereignty of God provides a privileged status to a certain class of people against others. The same muddle headedness can be seen in describing the higera of the Prophet to Medina as if its sole purpose was to establish an ‘Islamic state’ with a constitution necessitated by the new political theory.
Indeed, Medina eventually became a state, but to say that the mithâq was a ‘constitution’ of the state is to stretch the point beyond reasonable limits. Medina was a supra tribal society put together under the patronage of the Prophet. Had Medina been a ‘state’ in the modern sense of the word, as we are required to believe, it would be unexplainable as to why all the essential components of the state were left undefined, making it possible for all types of states to be termed as Islamic. The procedures and methods of establishing a khilafah also remained undetermined and eventually brute force or power became the deciding element for establishing the Caliphal authority. The ‘election’ of the first four caliphs left the so-called concept of an ‘Islamic state’ very equivocal. Later theorizing by Muslim political thinkers was more often than not an attempt to justify the status-quo without propounding a clear, cogent and workable constitutional theory.
The migration of the Prophet to Medina should be read in the total context of a tribal society, to trade, its system of arbitration, its pacts and alliances. It was basically to transform the tribal social structures which were impediments to social development and to evolve a supra tribal structure, i.e., umma or ‘Pax Islamica’ where all members, even those who should not accept the new religion would belong to one organization on equal footings. The Prophet did not establish a ‘state’, nor did he unite the Arabs; He took over the existing established regime and modified it, introducing as few changes as possible. He never lost sight of his ultimate goal, i.e. ensuring justice and salvation of his followers, and promoting peace and prosperity. Seen in this perspective the aim of a modern Muslim state can also be summed up around these eternal values. The form that a state would adopt may be relative to the spatio temporal situation.
The modern apologists are only trained in classical hermeneutics which normally operates through a deductive method, converting oral or written statements into propositional structures and drawing conclusions syllogistically. The meanings of the major premises are normally determined through sentences similar in syntax in a formal structure of subjects and predicates. The new hermeneutical understanding of the nature of language and its structure has yet to seep into the minds of contemporary clergy as did Greek logic into the minds of their predecessors. One reason for a quick absorptions of Greek philosophy by the early Muslim scholars could have been the availability of a scholastic paradigm of Christianity or Judaism. Contemporary hermeneutics has not made such an impact even in Western religious thinking probably because they are not confronted with problems similar to those faced by Copernicus or Galileo. But in the Muslim world religious edicts become problematic when they deal with contemporaneous socio-legal issues, which the modern west has solved by a two pronged strategy. They classified language into various categories and developed criteria for their validity separately. Two syntactically similar statements may belong to two different logical categories and the nature of predicate in one may not be the same as in the other, making their rules of verification different. Secondly, they separated religious beliefs from political structures. The legal issues no more rest on edicts from God or clergy, but are formulated on the basis of their utility, practicality and their moral value.
The Islamic polity, as it developed later performed three distinct functions. One of these was to maintain law and order within the jurisdiction of the state. This was done by the rulers who, more often than not, performed the function of making laws and enforcing their authority with, or without reference to any religious edict, especially in cases where certain ‘groups’ posed a threat to the authority of the ruler. The tort cases were normally decided by the qazi courts according to the fiqh commonly accepted in the reign of the ruler. Matters regarding international conflicts were decided by the rulers for which purpose they normally had a hand picked council. Support from the ulema class was normally available in such cases. A centrally codified law for the state was rigorously rejected by the Muslim rulers, and a central legislature was never constituted for their realms.
No doubt the polity remained within the legal parameters of the decisions taken by the Prophet during his days and later by the four pious caliphs, but what we now understand by terms like constitutionalism and legalism were never a forte of Muslim society. It may be noted that during the time of the Prophet and the four caliphs there was much more creativeness in legal matters. This creativity, due to historical and psychological reasons, came to an end during the 2nd & 3rd centuries of hijera, when a very useful tool in the form of Greek logic became available to Muslim ulema. From then onwards this creativity was circumscribed within a deductive system of logical reasoning, on the basis of which civil society evolved sets of laws, along with a number of sub-sets to be known as sharia. The term sharia in the sense of a system of legal propositions is of a later origin; Earlier it was used in a general non legal sense.
In a modern state like Pakistan, if one wants to replicate the classical sharia then a functional demarcation of the various authorities of the state has to be replicated also. In other words the ruler’s authenticity would rest on the force and power they posses, an implicit justification of which is available within the sharia parameters. The responsibility of the ruler then would be to maintain law and order in the society for which use of coercive force would be justifiable. The same rulers, along with their Council, would be responsible to take decisions in international matters as long as they do not violate any explicit legal edict (like breaking a promise or waging war without justification or committing war crimes as explicated by Islamic Sharia). Even if they transgress, organizations of the civil society, like courts, or a group of ulema, would hardly have any power to stop them. In so far as tort cases are concerned, they would be decided by courts established by the rulers and supported by its executive authority. In a sense such a state would be a peculiar combination of secular and religious strands working together and be a replica of classical Muslim states. If this is not what we mean by a modern Islamic state, with a constitution, a legislative assembly, an executive system of civil services, a standing army and at the same time a just, normal and value oriented democracy then the functional parameters of each authority have to be redefined and understood very clearly.
For any state to be termed Islamic in the modern sense it has to function within the universal moral parameters which are also shared by Islam. If a state in its behaviour is not moral then it can’t be termed Islamic. These moral values are expressed in the form of spatio-temporal systems which guarantee social justice, equality and basic human rights. The state authorities should have the freedom to make, amend or repeal laws as long as they safeguard the value system. Laws are made to attain certain purposes and if, due to changed social structures a particular law becomes inefficacious in achieving the goal for which it was made, it can be amended, repealed or kept in abeyance by the legislative assembly. No person or group of persons should possess veto rights to declare any law Islamic or unIslamic. Law making is a process, which starts as a civil society activity, and opinions expressed and measures suggested by knowledgeable persons of the society which eventually permeate into legislative assemblies which may then legislate as they deem appropriate. As Against theocracy, in which authority rests only with a class of people who could declare any law valid or invalid, in an Islamic state this authority rests with the people. The Islamic ethical system demands that laws should be made to be universally and equally applicable to all members of the state irrespective of their personal beliefs.
In Islam the raison-detre of establishing a state, as has been enunciated by Islamic political thinkers, is to maintain law and order; to facilitate the persons living within the state to perform their religious rites and duties ; to establish a system which could do justice to each and every section of the society. It is indeed true that the spirit of Islamic system is democratic rather than authoritarian. During the early days this democratic spirit was imbibed by the system through tribal structures which were replaced later by monarchies. In modern times the Islamic moral ethos can best be expressed in terms of elections, limited terms of offices, and universal franchise.
One of the functions of the state is to provide the basic necessities of life. In order to do so it may levy taxes and if necessary promulgate ceilings to land holdings and wealth. It is a moot point whether Islamic state should control religious education and places of worship specially mosque and madarsas. Nevertheless, the curricula taught in educational institutions should have the sanction either of the government or of autonomous bodies created for this purpose by the government. The government should also have the duty and control of the construction of all types of buildings in the sense that they fulfil the requirements of a civilized society and should be in the larger interest of the public. The building of religious institutions including mosques, temples, churches and madarssahs should also be approved by relevant authorities keeping in view public interests. The operative part of a modern state should be strictly governed by explicit laws and it is the duty of the authorities to see to it that these laws are not to be violated.
The Head of state in the classical period combined in him all executive powers, civil, military and religious. In practice Muslim rulers operated through a practical bifurcation between religious and state functions. Religion did not play any part in waging wars, signing peace treaties, laying down the modalities of the selection of the Head of the state, determination and collection of taxes, bestowing honours or money on individuals, etc. These depended on the fiat of the ruler. Such a modality would not work under the present circumstances. The state affairs were dealt with mostly in consultation with selected individuals, an improvement of the old Arab system of nadi (Assembly) where the elders of the tribe or city ran the affairs by mutual consultation. As the Islamic concept of shura was a developed form of the Arab nadi system so a new system can be evolved where all such functions can be performed by an elected parliament, drawing its powers from the people who are the real sovereign. The cosmic sovereignty of Allah thus is not disputed but is enshrined in an eternal contract whereby sovereignty is delegated to the people for running their own affairs in whatever way they like.
