One of the thornier issues that conservative Muslims who live in liberal democracies face is the question of navigating a relationship between Sharī'ah and the laws of the land where they live. On the one hand, traditional Muslims believe in a Divine Law that dictates not only their rituals of worship, but also many aspects of their regular life, such as business transactions and family issues. On the other hand, for Muslims living as minorities in Western lands, the laws of the land typically also regulate these aspects of life.
In many areas, the two laws do not actually clash, and hence pose no problem at all. If the Divine Law permits legislation in a specific areas, then of course no conflict can possibly exist. Examples of this include traffic laws and most civic regulations (such as zoning and housing ordinances). A simple and valid argument can be made that in such areas, Muslims are obliged to uphold the law of the land since they have an agreement and mutually understood relationship with the authorities. A clash can also be avoided where both laws can simultaneously be applied, without compromising either. In Western democracies, the majority of our personal religious laws can easily be accommodated within the confines of secular law. So, for example, secular law does not dictate what food items I choose to eat and abstain from; it does not dictate how I worship my God; and it does not dictate who or how I choose to marry. A valid Islamic marriage contract might require some conditions that the law of the land does not, but the key point is that neither does an Islamic marriage contract contradict existing legal laws, nor do the legal laws in any way restrict the conditions of an Islamic marriage.
From the above examples, it is obvious that the vast majority of one’s personal religious laws can easily fit into and be accommodated by the laws of any secular democracy, and it is for this reason that many Muslims who come from religiously repressive regimes actually prefer to live in non-Muslim lands.
On the flip side of the coin, we also understand that if man-made laws theoretically commanded us to disobey the laws of God, we would not be obliged to follow such a law, and, depending on specific circumstances, perhaps would be required to immigrate to other lands where we would have the religious freedom to practice our faith. For example, if a country passed a law that required Muslims to bow to an idol or to drink alcohol, obviously Muslims would not be permitted to follow that law unless their very lives were threatened or other extenuating circumstances existed.
There are many situations, however, that fall in between these two extremes. It is here where navigation between these two laws becomes tricky, and a number of key theological, moral and legal dilemmas are presented.
Practicing Muslims many times overlook that they are not alone in this dilemma. We need to realize that the situation in which we find ourselves is not much different from that of Orthodox Jews, or, to a certain extent, conservative Christians. These other groups also believe in a moral law that originates from a Divine Being, and would not compromise what they believe is God’s law for man-made law.
The perfect example to illustrate this point is the extremely contentious issue of abortion. Most conservative Christians, of all denominations, view abortion as being nothing less than murder itself. If such Christians are told that the law of the land allows it, or that the Supreme Court itself has ruled in favor of it, they would not acknowledge the moral right of the Supreme Court to legislate in such a manner. When one Christian ministry was asked about which law should be followed: God’s Law or man’s law, it responded:
The simple answer is that Christians are to obey human law except where that human law violates God’s Law. Our supreme duty is to obey God. Since God tells us to also obey human laws, we should. But, when they come in conflict, we are to ”obey God rather than men.” (Acts 5:29).
Another Christian , which advertises that it answers questions based upon the Bible, states that it is permissible to disobey governmental authorities “…if they demand that we disobey something God has commanded.” Such sentiment is even more pronounced amongst Orthodox Jews, who, like Muslims, have a highly complex and intricate legal system that they consider divine (called the halacha). A contemporary Jewish Rabbi in response to a legal verdict regarding copyright laws, that “…the issue of interaction between halacha and civil law is complex. Indeed, there are times when the civil law, in conflict with the halacha, is not binding.” Even a popular kosher
has as its motto the tongue-in-cheek phrase, ‘We answer to a Higher Authority’. The Law of God, for all three religions, is of course ultimately supreme, and cannot be compared to the laws of men.
While such sentiments might be common to all religious people who believe in Divine Law, it is very easy for xenophobes and fear-mongers to misrepresent such feelings, and stir up public sentiment against such people. This fear-mongering becomes even more palpable when it is directed against a minority group that is already viewed as a potential fifth-column. A generation ago, mainstream America, which is predominantly Protestant, was worried that the election of John F. Kennedy, a Catholic, would be problematic because of his religious affiliations. Many were worried that he would take direct orders from the Papacy in Rome and stealthily catholicize the nation. Even in our era, when a member of the Kennedy family was refused communion by a Catholic priest because of his views on abortion, many people viewed this as an attempt to increase the presence of Catholic pressure in American politics.
This country of America was founded upon the basic principle of not wishing to interfere in personal religious laws, and of allowing those who chose to live here the ultimate freedom to morally oppose the decisions of its government and courts if they chose to do so, regardless of whether that disagreement stemmed from religious sentiment or other sources. The founders of this country did not wish to challenges its citizens’ loyalties – they did not wish to ask whether a citizen loved his Creator more or his country more. In short, they did not wish to make the new republic a totalitarian regime.
Yet, it is indeed ironic that most of those who identify with the political right and claim to champion the cause of America are actually the most active in opposing the principles and vision of the Founding Fathers. For such narrow-minded bigots, an American can only be an American if he happens to agree whole-heartedly with what they themselves have chosen to label as ‘American values’.
For many Muslims, the exact same sentiments that conservative Christians and Jews have about the law of God also ring true. No man has the right to morally challenge what God has decreed to be good and evil, and if someone does so, it should come as little surprise that religious people will always choose the law of God over the law of man. There is nothing wrong or illegal in saying this – this is quintessential manifestation of being American, even if certain agencies with well-known agendas try to spin it otherwise.
Fear-mongering and spin-jobs aside, the question that arises for us as Muslims is: how should we interact with the law of the land around us in areas where a conflict with our own Sharī'ah actually exists? Examples of this include laws pertaining to the penal system, child-care, and marriage and divorce – how should Muslim minorities interact with such laws in their daily lives?
There are no simple answers, and in this brief blog post I do not even claim to offer one! Rather, what I wish to do is jumpstart the discussion, and present background information regarding the primary models that currently exist amongst serious Muslim intellectuals. Knowledge of the current models is a necessary precondition for further dialogue, and, based on such knowledge, we can either further refine one of them or devise alternative models.
There is, of course, the rather basic and straightforward model of ‘Islamic law’ versus ‘jāhili law’, which was championed and popularized by both Abu al-`Ala al-Mawdudi (d. 1979) and Syed Qutb (d. 1966). Such a model, deriving from understandings of 5:45, posits that any law that is not Sharī'ah is a law of jāhiliyya (‘ignorance’). Thus, for those who subscribe to this view, democracy, socialism, communism, and any other –ism is instantaneously deemed as being a manifestation of disbelief. Allah alone has the right of judgment (called hākimyyah), and anyone who takes this right and abuses it has in fact attempted to challenge one of the Attributes of the Divine, and hence fallen into kufr.
While this straightforward, binary differentiation might be extremely appealing and easy to comprehend, the way that it has been presented in the writings of these two thinkers has potential problems as well. It is essential to take into account not only the historical and intellectual milieu in which these activists lived (a time when the very foundations of the Sharī'ah were being questioned and rejected), but also the audience they had in mind (Muslims living in Muslim-majority lands, some of which claimed to be Islamic in nature). To read such works without these factors in mind has many potential problems.
Firstly, such a simplistic dichotomy makes it very easy for some overzealous Muslims to claim that any hint of cooperation with jāhili laws expels one from Islam. In other words, while the concept of hākimiyyah has a legitimate basis to it, unless one understands and teaches it in a more nuanced fashion, it is extremely tempting to jump into the danger of takfir – claiming all those who oppose one’s understanding of Sharī'ah are kāfirs because they have rejected hākimiyyah. This is extremely problematic, especially in light of the fact that no Muslim country is ruled exclusively by the laws of the Sharī'ah. (As just one example, no Muslim country has yet resolved the dilemma of being connected to international trade systems and worldwide financial networks while avoiding interest – and once a country’s banks operate in interest, Sharī'ah courts no longer can have jurisdiction over them, which then leads to even more commercial transactions and financial dealings that take place beyond the pale of the Shariah). So what, then, is the verdict on pretty much all Muslim lands and their rulers? Surely one cannot make the rather grandiose and clearly Khārijite claim that they are all kāfirs?
Such a danger of takfir, unfortunately, is not a theoretical one. Historically, a number of political movements have formed in the last few decades on the basic premise of takfir. The most dramatic of these movements was the Jamā`at al-Takfir wa-l-hijra, which broke away from the Muslim Brotherhood (Ikhwān al-Muslimīn) in the 1960s. It gained prominence in 1977 when it kidnapped the erudite scholar and minister of Islamic Affairs in Egypt, Dr. Muhammad al-Dhahabi, from his home in front of his family, and eventually executed him. Even though the scholar was a well-known Islamic figure, the Jamā`at viewed him as being an apostate because he co-operated with the Egyptian government as a Minister of Islamic Affairs. And since there were only two systems, the system of Islam and the system of jāhiliyya, being on the side of the Egyptian government, in any fashion, automatically implied for the Jamā`at that Dr. al-Dhahabi was on the side of kufr. This group was also linked with the assassination of Anwar Sadat, and many researchers claim that Ayman al-Zawahiri, of al-Qaeda fame, was strongly influenced by them as well.
Whether either Qutb or Mawdudi would have actually agreed with these extremist understandings is something about which modern researchers can only theorize. Both of these figures died before the modern jihadist movements took root. However, it must be pointed out that the bulk of both Qutb’s and Mawdudi’s followers (meaning the modern movements of the ‘Ikhwān al-Muslimīn and the ‘Jamāt-e-Islami’) have eschewed both takfiri tendencies and militant methodologies, and have instead opted for mainstream political participation and effecting change in public opinion via educational activities.
The second major problem with these explanations of Qutb and Mawdudi, in my opinion, is that they presents ‘democracy’ and other ‘-isms’ as a complete and unanimously agreed-upon ‘whole’. It is as if the word only has one meaning, one system, one philosophy regardless of who uses it, or where it is used. Hence, if someone were to take even parts of such a system and adopt it for use within some type of Islamic model, it would be easy for simplistic followers to label such a model as being jāhili. Yet, there are many intellectuals who remain committed to the tradition of Islam and also believe that some aspects of democracy can be adopted. How is it un-Islamic, for example, to allow people living in an ideal Islamic state to vote for a specific candidate to be on a legislative body (call it a Parliament) that decides the affairs of the land in areas that the Sharī'ah does not legislate? Even if classical scholars did not devise such a method, is that grounds enough to reject it?
The third problem with the binary division given by Qutb and Mawdudi is that it fails to provide a realistic framework for Muslim minorities who live in liberal, secular democracies. In other words, even if Qutb and Mawdudi hold the entire system of man-made laws to be jāhili, what does that actually mean for Muslims living in America who needs to resort to the local courts or are otherwise under the jurisdiction of such laws? Does it mean that they are all kāfirs merely for living here (and some extremists have argued this)? Or would they only be kāfir if they resorted to local courts (yet another opinion held by some)? In their defense, it can be argued that neither Qutb nor Mawdudi were writing for these minorities in the first place, and were directing their writings to Muslims and countries that claimed to rule by Islamic Law. Be that as it may, the fact remains that such an understanding of a ‘God’s law’ versus ‘man’s law’ remains a theoretical division that does not manifest itself in practical means to the Muslim living under a man-made system of government.
To put this in realistic terms, suppose a Muslim has been the victim of a robbery or murder. What should the victim (or the heirs of the victim in the case of the latter) do? Even if the courts successfully prosecute the robber or murderer, the ‘justice’ meted out by the government will not be the same as the penalty dictated by the Sharī'ah (let us assume for this example that we know for a fact that the murderer will not get the death penalty). So, should a Muslim simply suffer in silence, (claiming, for example, that all man-made laws are jāhili and hence cannot be used?), or should a Muslim willingly prosecute the offenders, knowing full well that the punishment will not be one legislated by God? In another, more common example, what should a woman do who has legitimate grounds for a divorce but whose husband is unwilling to give her an Islamic one? Even if she gets an Islamic divorce from a ‘Sharī'ah Council’ (in those lands where such councils exist), local courts would not recognize such a divorce. So does a non-Muslim court ever have any jurisdiction over an Islamic nikāḥ? These are just some examples; hundreds of more complex issues can easily be mentioned here.
Much work is being done by our modern scholars, and much remains to be done, regarding how practicing Muslims can best live in liberal democracies. And its not just Muslims who are doing this research – quite a few non-Muslim political scientists are also curious about this issue. One researcher in this field is Professor Andrew March, of Yale University (disclaimer: he is a friend of mine as well). Oxford University Press recently published his PhD dissertation (which was, not surprisingly, done at Oxford, and for which Tariq Ramadan was one of the readers). It is entitled Islam and Liberal Citizenship: The Search for an Overlapping Consensus. (I encourage this work to all those who are interested in this subject). In addition to his thesis, Prof. March has also written a number of key articles regarding the issue of Muslims living as minorities in Western lands. March bases much of his work on John Rawls, the most famous liberal political legal theorist of our era. Rawls’ writings, and in particular his theories of ‘overlapping consensus’ and ‘public reason’, form the basis of much of the modern discourse that dominates liberal political thought. Most of the following paragraphs are taken (with kind permission) from Andrew March’s writings.
Prof. March states that modern Sunni scholars have given several models for Muslims living in non-Muslim lands. Primary amongst them are:
1) The Thin Social Contract Model.
Under this model, a Muslim views himself as being a loyal resident alien of the governing system, legally obliged to uphold its laws. This model posits that when the wider community (in our case, the American Constitution) guarantees certain rights of security and religious freedom, and when Muslims have agreed to take advantage of these rights, in return they will consent to obey laws even if they do not derive from Islamic principles.
This model is the dominant discourse amongst modern Sunni scholars, such as Yūsuf Qaradāwī and 'Abdullāh b. Bayyah; they argue that Muslims are legally obliged to obey the laws of the land as long as these laws don’t require them to do something haram, because they have agreed to do so in return for rights and privileges granted to them. And this is all in accordance with the Prophetic hadith, “Muslims must abide by their conditions” [Abū Dawūd].
2) The Internal Retreat Model.
This model can be considered a subset of the previous one, but with a caveat. In this model, the religious community tacitly accepts the existence of the wider secular community, but directs all of its powers and energies to forming a type of insular ‘bubble’ from within which it seeks to maximize reliance upon its own religious laws. Typically, those who subscribe to this model would try their best to internally regulate their matters and disputes, without appealing to the wider legal system (for example, in matters of marriage, divorce and child custody). This model of ‘partial citizenship’ is adopted by the Amish Christians, the Haredim Jews, and some fundamentalist Mormon communities, and was the model espoused by the Salafi movement in the 90’s.
The major problem with this model is that, due to its insular nature, it makes life extremely difficult for those who choose to follow it. This also explains the rather minority appeal that such a model holds amongst various groups. Lastly, it can also be said that no matter how ‘insular’ a community wishes to become, it is almost impossible to live a completely sheltered life, and what invariably ends up happening with most of this subset is a ‘pick-and-choose’ approach where certain elements (for example, dress codes) are very highly emphasized, but others (for example, opening bank accounts and paying taxes) are explained away as being ‘necessary evils’.
3) The Self-Governance Model.
This model relies on the situation where the larger governing body has legally delegated authority to each religious community to resolve specific issues. [Due to the Constitution, this model would not function in America]. For example, in India and Israel (and one can add, in classical Islamic law), each religious community operates semi-autonomously to resolve its own disputes in specific, limited areas (primarily family issues and disputes of inheritance). While some Muslims in Western lands aspire to such a model and wish to petition governments to adopt it, it seems highly unlikely (and, in the case of America, constitutionally impossible) for this to ever happen.
4) The Temporary Modus Vivendi Model.
Modus Vivendi’ is simply a Latin way of saying ‘agreeing to disagree’ or, basically, agreeing to live with each other despite the fact that the two parties might not see eye to eye in all areas of life. While this basic philosophy is inherent in all of the three preceding models, this fourth model envisions such a relationship as a temporary one, and aspires to somehow bring about conditions that would eventually allow for religious-based legislation to become dominant. In other words, in this model, religious constituents are not happy with status quo even if they accept it; while they do not seek to change matters via violent or militant means, they do strive from within the system to change laws to conform to their religious beliefs. Most Evangelical Christians who are involved in politics would come under this model. Efforts to mobilize religious people to vote against gay marriages are a perfect example of this model, but in this model it’s not just one or two issues that are of concern, but rather the entire legal structure.
The existence of Muslim groups in America that advocate such teachings is debatable. While many Islamophobes claim that this is the agenda of all mainstream groups (!!), such claims are known to be preposterous by those who are intimately aware of these groups. Personally, I have never come across any group in North America that aspires for such unrealistic and naïve goals. In other lectures, I have mentioned that I do not believe the Sharī'ah even asks Muslims to have such goals, and I mentioned the case of the Muslims of Abyssinia, in which it is patently clear that they did not have political aspirations to dominate the Kingdom of Najāshi.
However, if such a group were to exist, one must look at their tactics and methodologies. If they are peaceful and law-abiding, and wish to create such a demographic majority via preaching and teaching, they would not be any different from any Christian group that attempts to do the same. In fact, they would not be different from any lobbying group that seeks to educate citizens and convert them to a specific course of action. Only if such a group were to espouse illegal tactics should they be banned or prosecuted.
5) The Thicker Social Contract Model.
This is the model for which Prof. Andrew March himself argues (for those who are interested, it is based on Rawl’s concept of ‘Overlapping Consensus’). In this model, religious constituents would acknowledge and agree that while the existing system of government is not divine, it is sufficiently just or acceptably legitimate in many areas, and thus may be actively endorsed. March argues that we need to look at Western law in light of Islamic maqāṣid: if Western law is sufficiently protective of the five main ḍaruriyyat (i.e., the essential goals of the Sharī'ah, which are: protection of religion, life, intellect, property, and progeny), Muslims should in return endorse the system based on religious grounds. This model would not simply be an understanding to abide by an agreement, but would instead actively promote a level of participation and a degree of enthusiasm, and even grant a measure of legitimacy that would be absent from the ‘Thin Social Contract’ model.
To give an example, under this model, if a Muslim is murdered, the family should feel religiously motivated to pursue legal action and prosecute the criminal to the maximum possible capacity, even if the death penalty is not inflicted. The fact that murder is a crime, and a murderer is punished, is something that is in complete harmony with the goals (maqāṣid) of the Sharī'ah, even if the actual means to achieve them (i.e., the actual punishment meted out to the murderer) differ.
These five models are by no means the only models present. However, they do represent a healthy cross-section of ideas and trends found amongst Muslims as they struggle to find meaningful interpretations in reconciling their beliefs with the environment in which they find themselves in.
The first three models, in my opinion, each have their merits and problems (but of course, the third one would not be feasible in any Western liberal democracy). Between these, as of yet most Muslims (including myself) have been arguing from the ‘Thin Social Contract’ model, but it has its problems as well (and I plan to discuss some of them in future articles).
The fourth one is the one that most right-wing Islamophobes love to trumpet as being the ‘hidden Muslim agenda’, and while I personally do not subscribe to it (and in fact am not supportive of it), at the same time I am also opposed to the smear campaign that is directed against it. As long as Muslim groups follow legal tactics and proceed from within the confines of the law to convince people of the veracity of their moral positions, they are no different from Christian groups that attempt to do the same.
The fifth model is quite a novel one, and I feel hesitant to comment on it at this stage, for it does require some thought and research. Additionally, while the model works for some areas of law (e.g., prosecuting criminals), it becomes more difficult to extrapolate to other areas of law (e.g., rulings pertaining to divorce).
Muslims who believe in a Divine Law will face many of the same challenges that people of other religions face as they carve their way into the secular societies where they live. As with most of these topics that I discuss, while I do not claim to offer definitive answers, I do claim that we as a community must begin frank dialogue, and be prepared to ask some very tough questions, if we wish to move forward with our faith and lead productive lives in this world while we prepare ourselves for the next.
Such intricate problems and complicated situations cannot be resolved by a simple fatwa from an erudite scholar in a far away land. In fact, it cannot be resolved solely by religious scholars in the first place, even those who are living amongst us and fully aware of the ramifications of any fatwa they give. Rather, such a crucial situation – which in essence forms the religious basis and posits a practical methodology for our residing in these lands – requires the cooperation of numerous different specialists, both in the sciences of the Sharī'ah (some of whom might belong to theological groups different than our own, for in such matters, many abstract theological differences play no role whatsoever) and in various secular disciplines (some of whom might even be of other faiths, for we should benefit from the wisdom of all, regardless of religion). Only with such a comprehensive effort, and with the cooperation of specialists of many disciplines, will we be able to formulate a comprehensive and practical solution – one that remains faithful to our orthodox tradition and also takes into account the practical realities of the world that we live in.
Source URL: http://muslimmatters.org/2010/03/01/gods-law-and-man-made-laws-muslims-living-in-secular-democracies/