Rumour Has it: Ijtehad and Ijma in Modern Times: Part 3

Nilofer Qazi

Feb 2012

How can we accommodate  ‘Sharia’ in a modern state which is also democratic and tolerant?  An-Na‘im a Sudanese American scholar argues the (traditional) Sharia must be marginalized in order to save it. More precisely, he asserts that no state has the right to enforce religious law, even if it is the religion of the majority: “By its nature and purpose, Sharia can only be freely observed by believers; its principles are lost, its religious authority and values lost, when enforced by the state.”  The origins of Islamic law, he argues is not exclusively divine or an unchanging element (Sharia, principles and values rooted in sacred sources). He writes: “both Sharia and fiqh are the products of human interpretation of the Qur’an and Sunna of the Prophet in a particular historical context. I read from this, our modern Shuras then need to continue to develop new (Fiqh) rules and principles which are relevant to our society continuously.  Hence modern Parliaments can be free from interpretations of past scholars. This is a very powerful and important idea which can free our Mujtahids and lawmakers in defining a contemporary modern state.

Our judiciary or legislature since the 1950s Munir Commission has offered little in terms of providing a framework for Pakistan.  We need to revisit what makes a ‘Pakistani’ ‘Pak’ or a Muslim a Muslim.  Similarly the ‘ideology of Pakistan ‘ continues to be muddled, for some us it is this vague idea of ‘ Quaid’s Pakistan’  or ‘Iqbal’s Pakistan’ seemingly tolerant while for some, a theological textual  ‘la illa ha il lil lah’ ;  our inability to define what defines us is also reflected in our body of laws-  we sanction violence against our own citizens on the basis of a vague undefined ideas that a state can determine who is or isn’t a Muslim while we simultaneously state in our constitution that life and liberty are guaranteed. Our Quaid e Azam was quite clear, and memory is short, that it is impossible to define in law a non Muslim.

Going back to Esposito’s group of (male) Islamic intellectuals and activists: Yusuf al-Qaradawi,(Egyptian),  Tariq al-Bishri, (Egyptian), Abdelwahab Elmessiri (Egyptian)  and Rachid al-Ghannouchi  (Tunisian) as well as more neo-modernists or post modernists voices, including Mustafa Ceric,( Bosnian) Tariq Ramadan,(Egyptian), Nurcholish Madjid, (Indonesian) , Abdulaziz Sachedina (Tanzania), and Abdullahi Ahmed An-Na‘im, (Sudan),   They all reflect the tensions and conflicts between theory/theology/and law and the political and historical realities of modern states.

Lets also look at pluralism in a state; the common definition of secularism is’ the exclusion of religion from civil and public affairs’. Religion is a set of ethical principles. All laws are informed by ‘ethical principles’ which have derived principles from various ‘faiths’.  In India and in the United Kingdom for examples, both profess to be secular democracies but also admit formally and informally to be ‘influenced’ by faith(s).  In Islam, we have Qu’anic Ayaats which also clear outline these principles, ‘let there be no compulsions in religion’ (2:256).

Pakistani must engage one another to begin clarifying what principles define our state, law and society. In this endevour the ‘Shura’ we choose cannot be tribal male elders excluding more than half the population.   Further, accepting the idea that all humanity are God’s children  we can also agree that ‘western’ or ‘ Muslim’ are not mutually exclusive groups . Lessons and experiences of one another can shape our development of a new just Pakistan.

Because we live in a democracy in which political parties exist. It is also important for our history to acknowledge the role of the established religious party (s) in formulating (not) the state of Pakistan and its continued battle against ‘democracy’. Our very own Maulana Maududi   argued emphatically that Islam only accepts the supremacy of god, and hence the very notion of a system which gives ‘the people’ absolute supremacy cannot be sanctioned in an Islamic state. This is a serious conundrum for Pakistan and those who support this ideology. Perhaps the enormous support of ‘anti democratic’ groups in Pakistan is influenced by these ideas?

Those Pakistanis who seek to create a common ground for all ideas, it is critical we find some clarity on this fundamental principle. Can Pakistan be democratic in the modern sense and also accommodate Islamic principles? I think I have provided sufficient evidence in these articles to support this idea.

Larry Diamond, co-editor of the Journal of Democracy, and Leonardo Morlino, a specialist in comparative politics at the University of Florence, ascribe seven features to any democracy: individual freedoms and civil liberties; rule of the law; sovereignty resting upon the people; equality of all citizens before the law; vertical and horizontal accountability for government officials; transparency of the ruling systems to the demands of the citizens; and equality of opportunity for citizens. This approach is important, since it emphasizes civil liberties, human rights and freedoms, instead of over-reliance on elections and the formal institutions of the state which has also become the hallmark of ‘democracy’ in Pakistan these days. We now arrive at a place in which Pakistanis of all hues, politically influenced by religious principles and otherwise, can agree and develop a ‘common ethical’ set of principles which they can own, defend and be proud of. Inshallah.