Sharia, Justice and the Law

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    Fikrun wa Fann was a cultural magazine published by the Goethe Institute from 1963 to 2016 that supported and shaped the cultural exchange between Germany and Islamic countries. Together with the publishing of the last issue, “Flight and Displacement” (issue 105), in autumn of 2016 the maintenance and updating of this online portal was ceased.

    Islam, Human Rights and Democracy

    Mehraneh Atashi: From the series Bodyless, Tehran 2004. From the book Iranian Photography Now, Verlag Hatje Cantz 2008There has recently been a revival of the debate about the chances of the democratisation of Muslim societies. In the Islamic world, too, the call for ‘good governance’, the rule of law, and respect for human rights is getting louder, even in Islamist circles, which are known above all for their rejection of all that is foreign and ‘inauthentic’. But how do Islamists envisage an effectual ‘Islamic order’ that would be suited to the conditions of modern life? Can we recognise in it elements of a free, democratic constitution?

    Islam and Islamism

    One of the many difficulties in dealing with Islam and the Islamic world is that different value systems, modes of behaviour, societal structures and political actions are often described by Muslims themselves as ‘Islamic’ or as an expression of ‘Islam’ (of ‘true’ or occasionally also of ‘false’ Islam), so that even unprejudiced observers acquire the impression that ‘Islam’ is the cause and purpose of every possible phenomenon, from close family ties to the repression of women, from reverence for political leaders to criticism of the West. It can therefore scarcely come as a surprise when the question is repeatedly asked whether the reason for societal anomalies, authoritarian structures and all forms of violence that come to the attention of an international audience through the media is not also to be sought in Islam: violence against unbelievers, violence against minorities, violence against women.

    This, however, is precisely the sort of essentialistic observation that has been roundly condemned by critics of Orientalism from Edward Said onwards. Scholars engage in vehement argument about what Islam means, and whether it is at all legitimate or useful to explain social and cultural phenomena in Muslim societies with reference to ‘Islam’. It is indeed wise to differentiate between various dimensions of Islamic thought and Muslim behaviour, which in a concrete example could be connected in a number of quite different ways: Islam as a historically ingrained – because developed by human beings (the vast majority of them men) – normative tradition, founded on a corpus of sacred scriptures; the praxis of Muslim men and women throughout history and in the present day, a praxis conditioned by the place, time and milieu in which they found themselves and one which certainly does not have to be determined by the normative tradition as laid down in the scriptures; and finally, the equally varied concepts that Muslim women and men have of a ‘righteous’ Islamic life, which may be guided by the normative tradition and the way they lead their own lives, but which not infrequently also deviate from these. Islam, quite clearly, can mean different things to different people, and this is as true of the doctrine as it is of the practice. It should also be said at this point that however it is lived and comprehended, Islam alone is not an explanation for the conditions that exist in the various different Muslim societies; it represents at best one defining factor among many.

    Normative tradition

    In the case before us, which deals with the relationship between Islam, human rights and democracy, initially it is the normative tradition that is being addressed, which is essentially established on the basis of two texts: the Koran, which according to Muslim understanding is the direct word of God (the ‘Revelation’), and the Sunna, which is considered to be the words and actions of the Prophet as inspired by the divine revelation (the ‘Prophetic Tradition’). Both are regarded by Muslims as sacred and therefore broadly sacrosanct: in many parts of the Islamic world it is at present more or less impossible publicly to discuss the status of the Koran as the word of God, or even to analyse it as a literary text, in the way the Bible has historically been examined. Less burdened by taboos, if not entirely free from dangers, is the treatment of the Sunna as the collection of those statements and actions of the Prophet Muhammad that are binding, some of them even legally binding, for future generations. Unlike the Koran, the Prophetic Tradition does not exist in the form of a single book but in several collections, which consist of numerous individual reports about the words and deeds of the Prophet that have been deemed reliable (hadiths), and which were compiled by Islamic scholars in the eighth and ninth centuries of the Christian calendar. In terms of its language, composition and structure the Koran is very challenging and therefore requires interpretation of every point, even when what it is saying seems at first glance clear and unambiguous. This is true of both dogmatic questions and those with legal relevance. It is something that was and is generally well known to Islamic scholars; Islamists, however, prefer to overlook it, if not simply to deny it altogether.

    Both the Koran and the Sunna claim to be the truth. They constitute the foundation on which not only fundamentalists base their faith. They supply binding terms of reference and at the same time offer a repertoire of testimonies, rules, instructions, images and metaphors to which Muslims refer when seeking orientation for leading an Islamic life. However, interpretation remains a necessity, and it cannot manage without selecting and prioritising the various statements in the Koran and the Sunna. It is impossible to do without exegesis. This also raises the question of religious authority and authorities ‘in Islam’, one that has presented itself since the very beginning and to which a consistent answer has seldom been given. It is currently more topical than ever, in view of the rapid spread of educational opportunities and ever-closer communication, thanks to which more and more people are acquiring relevant religious knowledge and claiming for themselves the authority to interpret on the basis of this knowledge.

    Enquiring into the relationship between Islam, human rights and democracy means reading the Koran and the Sunna with contemporary eyes. That would still be true even if the holy scriptures made clear statements on these subjects. However, this is not the case. It is true that the Koran does indeed contain instructions on how to behave ‘correctly’ and on the principles of a ‘just’ order, but it does not offer any comprehensive concept of the relationship between individual, state, and society, and it does not prescribe for Muslims a particular form of governance. Contrary to the conviction of many Muslims today, the Koran cannot therefore serve as the ‘constitution’ of an Islamic state. This applies even more to the Sunna, from which one can at best take certain maxims that can also be used in a political context, but not a blueprint for a constitution. We can therefore only ask what contemporary Muslim men and women say about human rights and democracy in reference to the Koran and the Sunna – and this is not everywhere the same.

    Islamic order?

    Particularly worthy of attention are those theoreticians and activists among them who are explicitly trying to bring about an ‘Islamic order’ and who are therefore labelled ‘Islamists’, in order to distinguish them from the majority of those Muslims who orientate themselves, broadly speaking, according to Islamic norms and values but who do not necessarily want to see the foundation of an Islamic state. The characteristics of the ‘Islamic order’ should be, in the Islamists’ opinion, that in it religion, law and politics are indivisibly bound together (in a nutshell, ‘Islam is religion and state’) and ‘divine law’ forms the sole basis for individual behaviour and public order (the motto for this is ‘the application of Sharia’). The slogans are big and crude and contentious. They are best understood as part of a cultural and socio-political confrontation in which Islamists are demarcating themselves from both their internal and external adversaries. On the inside there are critics who reject such a link between religious conviction and public order, whether in reference to the Koran and Sunna – thus simultaneously arguing on a religious level – or in an openly secular way, without summoning Islamic tradition to shore up their own position. ‘Outside’ is ‘the West’, with all the norms and values it propagates (but does not always rigorously and credibly represent), from tolerance to human rights to democracy – the West that sternly calls for enlightenment and declares a secular order to be the essential basis of a free modern age.

    The ‘Islamists’ (among whom fundamentalists in the generally accepted sense of the word play an important but not always the dominant role) have for years set the tone in internal Muslim debate about the appropriate relationship between religion, law and politics. From Mauretania to Malaysia they influence life in society and the legal and constitutional order of their societies. They count among their number academics and intellectuals, doctors, lawyers and teachers, businessmen and managers. In most Muslim countries today, Islamism constitutes a wide current that originates in the heart of the society and is certainly not limited to excluded and frustrated young people lacking in opportunities – the familiar picture above all in Algeria and Palestine. Islamism is not simply the product of poverty and underdevelopment, which could sooner or later be eliminated with sensible social and economic policies. Furthermore, internal demarcation is not always easy, as Islamist positions are not only represented in opposition circles, but frequently also in those of the religious, even occasionally of the political, establishment. And while there are also radical groups within this wide current that wage, or want to wage, ‘holy war’ (jihad) against the enemies of Islam, nonetheless the majority pursue a non-violent strategy that relies on efforts at persuasion and social work (referred to as ‘mission’, da’wa), not on the armed struggle.

    People in Islamist circles have for years been considering the form and content of an ‘Islamic order’, with the intention of realising, on a purely Islamic basis, the Islamists’ great concern: cultural authenticity, social justice, collective unity and strength. This would take the place of ‘imported’ and thus, according to the conventional thesis, ‘inauthentic’ Western models of social and political order. Constitutional principles and political participation play a greater role in this than one might at first think; after all, the Islamists, who insist so vehemently on ‘authenticity’ in the name of Islam, are generally considered to be sworn opponents of Western values and concepts of order. This must surely also include democracy and the idea of human rights. All the more interesting, then, are all the considerations aimed at an integration of democratic-constitutional principles in an explicitly Islamic framework. Significantly, what is central for the Islamists is less the question of the efficiency of the democratic model in overcoming the enormous social, cultural and political problems with which their societies are confronted, but rather its legitimacy in the context of the Islamists’ religious and legal tradition. In the age of globalisation, cultural authenticity is writ larger than ever. For Islamists, at any rate, Islam is the yardstick by which everything must be measured – not the other way round.

    The Islamists have frequently been charged with contenting themselves with general calls for moral reversion (‘Islam is the solution’), without presenting a coherent concept for an ‘Islamic order’ that has been thought through in detail and does justice to modern requirements. Most Muslims do not consider the Islamic Republic of Iran to be a model (this is true even for Shiites); the Kingdom of Saudi Arabia even less so; Sudan, Pakistan or Mauretania, which also present themselves as Islamic states, are not even up for discussion. A generally accepted model of an ‘Islamic order’ that has proved itself in practice does not, therefore, exist. Where some of the themes and theses of the internal Muslim discussion about Islam, human rights and democracy are presented in the text that follows, these are based primarily on the contributions of Sunni Islamists, among whom the Egyptian Brotherhood of Islam is prominently represented. Other Muslims may contradict them at any time, either as a whole or with regard to individual questions. They certainly do not represent a ‘single’ Islam – even though they firmly claim to do so.

    The ‘Islamic order’ and the ‘application of the Sharia’

    Islam – these days all Muslims agree on this point – is more than the mere declaration of faith in the One God and his Prophet Muhammad. Faith requires actions. It lays the foundations for a specific way of life, in which religious values and norms are translated into intramundane actions; religious ethics cannot and may not remain without social impact. It must have an effect of one kind or another in the political realm, which will always be based on certain values and reflect certain world views. In this, however, Islamists go further. They claim that the correct lifestyle, as ordained by God, cannot be realised on the individual level alone but only in the context of an ‘Islamic order’ (nizam islami), in which the divine commandments and prohibitions can unreservedly be enforced. They believe that Islam calls for the ‘application of the Sharia’ as an all-encompassing system of laws and values decreed by God, which is usually described, not only in German, by the abbreviation ‘Islamic law’. They believe that an Islamic state authority is a prerequisite for the application of the Sharia. However, it must be stated quite clearly that there is by no means consensus on this in the worldwide community of Muslims. It is true that all Muslims assume that faith and action should be linked in a recognisable way and that they therefore have a duty to, among other things, keep the ‘five pillars’ of Islam: to pray five times a day, to fast during Ramadan, to give alms, and if possible to make the pilgrimage to Mecca at least once in their lives. But not all demand an Islamic state. The Islamists’ fixation on worldly action, on questions of law and politics, and thus, ultimately, of power is often noted very critically, also in Muslim circles.

    The Koran and the Sunna contain, as mentioned above, no clear instructions for the shaping of the political order. There is therefore also no binding Islamic political theory. The Islamic governmental teachings of medieval Sunni theoreticians, which are still cited today, centre upon two poles: the Sharia on the one side and the person of the ruler (caliph, imam) on the other. The ruler might appear as the ‘shadow of God upon the Earth’ and as such claim for himself a form of divine grace; he was also in reality an absolute ruler, since his sovereign power was, according to classical teachings, undivided and could at most be delegated to various others. The Caliph, however, was, like every other Muslim, subject to divine law, and this divine law was interpreted by religious and legal scholars (ulama), who considered themselves the ‘heirs of the Prophet’. His noblest task was the implementation of the Sharia within his sphere of control, and in this regard he also had far-reaching responsibilities in the organisation of the justice system. From the theoretical point of view, however, he had no legislative power. Institutions such as parties, estates or parliaments were, both in theory and in practice, meaningless. In Sunni Islam there is in any case no such thing as the institution of the church, and in Shiite Islam too, although one can speak of a clergy during certain periods, one cannot refer to a church.

    Because of its universal obligation to the divine law to which all are subject – both ‘rulers’ and ‘the ruled’ – Islam is occasionally referred to as a nomocracy. This has far-reaching consequences for the establishment of civil and political rights and duties: the idea of the sovereignty of the people, for example, from which civil and political rights and duties could be derived, has no place in a nomocratic and theocentric order based on God’s law and His will. According to Islam(ist)ic understanding, God alone has sovereignty, as he has laid down binding values, standards and laws that govern human life and cannot be modified or annulled by any ruler or any parliamentary majority. However, the derivation of rights and laws does not necessarily express anything about their content. In principle, it would still be possible to fit elements of a democratic, constitutional order into this context of religious justification. Among them are the idea of human rights, the principle of equality, the majority principle and the division of power, which are based on the autonomy and freedom of the individual as well as the – institutionally consolidated – pluralism of opinions, interests and societal groups, and which are firmly established in a constitutional state. Democracy cannot be reduced to formal procedures and structures (elections, parliaments, the limitation of periods in office); it requires certain legal concepts and value systems. These, however, can also thrive in lands beyond the Christian West.

    The question of human rights?

    Muslims (avowed Islamists among them) can find starting points for all these above-named elements in the Islamic tradition. However, the adjustment of Islamic basic values like justice, equality and the common good to modern standards requires a fundamental redefinition of these traditional values, or values that have been found in the tradition. This involves new interpretations that are not generally accepted by all Muslims, let alone by all Islamists. Much is still in flux in this area, but it is certainly under discussion. This is true of human rights as well as for the definition of a constitutional order.

    The idea of human rights is often derived from the Koran, where sura 17:70 speaks of the ‘dignity’ of people (plural), who are moreover referred to elsewhere as the ‘representatives’ and ‘custodians’ of God. The fundamental recognition of human dignity, which can without too much difficulty be transferred from all people to one person in order to emphasise the dignity of the individual, does of course not necessarily lead to a particular concept of a human right or rights. Many Islamists, however, are attempting to derive ‘Islamic’ human rights from the Koranic instructions. Generally speaking, these tend to emphasise a person’s responsibilities more than his freedom: Islamist theoreticians in particular underline the religious and societal responsibilities of the individual, which they derive from the statements of the Koran, according to which people were put upon Earth by God as his representatives or custodians. The Arabic term is ‘khalifa’, and in this sense all people are ‘caliphs’ of God upon Earth, not only, as in the classical caliphate teachings, the legitimate head of the Muslim community.

    So it is not the case that according to traditional Islamic teachings and modern Islamist under-standing the individual is entirely subordinated to, if not entirely sacrificed for, the community of Muslims, the Umma. The duties and rights of individuals are carefully formulated. Classical Islamic law takes as its starting point the individual legal subject, who has a responsibility towards God and individual human beings, not towards the collective of the Umma. The individuals should however fit harmoniously into the community and if in doubt should subordinate their individual interests and wishes to the ‘common weal’: the common good comes before self-interest. This corresponds to pre-modern ideas of ‘justice’ arising from the balanced interaction of unequal parts, in which each has its own place – and must keep this place if order and justice are to be upheld. (‘To each his own’, as summarised by the Roman lawyer Ulpian.) There is certainly space for the individual in this concept. Individualism, however, is rejected as egotistical, divisive and destructive. The idea of the autonomous individual, detached from divine law, and of his free ‘development’, is alien to this way of thought. Freedom should be constrained by the internal barrier of conscience, and by the external barrier of the law, which stands above all individual rights.

    The borderlines are particularly narrowly drawn in the realm of sexual, artistic and academic freedom. The Islamists accord great importance to morality, and they present themselves as correspondingly committed to the fight against every form of ‘immorality’, ‘lack of morals’, and ‘corruption’ (fasad), which they view in far wider terms than just economic corruption. It can certainly be said that ‘moral politics’ is one of the Islamists’ central concerns; they are especially active in this area. This also explains why the relationship between the sexes in general and the role of the women in particular is of such overwhelming significance for Islamist teachings and practice. Freedom is basically approved of, as the basis of an Islamic order. In practice, however, it is, to a great extent, restricted – not only by the Islamists, but also by many ‘ordinary’, non-Islamist-orientated Muslim men and women, who also defend very strict views on questions of sexual morality and completely reject extra-marital or same-sex relationships, which in the West are tolerated, or even legalised, as expressions of individual freedom.

    Equality before God

    In defining what constitutes legitimate freedom there are, therefore, differences in comparison with the modern understanding of human rights, which is no longer simply a ‘Western’ idea. The same is true of the principle of equality. According to Islamic teachings, which can draw upon various sayings in the Koran and the Sunna, all people (at least, all the faithful) are equal before God: they have all been appointed as his trustees or representatives and as such are, at least initially, equally worthy (whether unbelievers forfeit this worthiness through their unbelief is the subject of argument among Muslim scholars and Islamist theoreticians). Equality before God, however, does not necessarily mean equality before the law. In some areas of Islamic law, non-Muslims, slaves and women are not put into the same category as free male Muslims, particularly on issues of family or inheritance law, or as witnesses before a court. For obvious reasons the relationship between the sexes is central to the public interest. Attempts are being made in many Muslim states to break down existing inequalities, for example by altering divorce laws in a way that will benefit women; not infrequently, Islamist women and men also have similar aims. However, the prevailing opinion remains that while men and women are of equal worth, they do not have equality before the law: men and women fulfil complementary roles, in which the woman is seen primarily in the classical role of housewife and mother; she should only take on other tasks after she has fulfilled her domestic and marital duties, and with her husband’s agreement. This view is of their relationship as a partnership, and constitutes a break with traditional role models according to which men and wo-men moved for the most part in separate spheres – however, it still clings to the man’s position as head of both household and family. Here the Koran serves as a reference: at one point it expressly states that men are ‘more important’ than women, or at least that they are ‘put first’ (the Arabic term ‘qawwamuna’ in sura 4:34 can be interpreted both ways). Not all Muslim women (not even all Islamist women) are content with this assignment of roles; some are trying to prove, on the basis of the Koran, that men and women have full equality before the law in all areas of both private and public life. Nevertheless, the emancipation of women according the Western model is not one that most Islamist women find desirable – and many Muslim women who do not lean towards Islamism also see in this model the danger of the dissolution of marriage, family, social order and morality.

    Alongside the gender subject matter, the position of non-Muslims in an ‘Islamic order’ plays a large part, although consideration is generally only given to Jews and Christians, whose status as ‘People of the Book’ (i.e. followers of a monotheistic religion based on revelation) is more or less precisely defined within Islamic law. By contrast, Hindus, Buddhists or Confucians, who are of far greater practical importance outside the Middle East for the coexistence of Muslims and non-Muslims, are almost never referred to. Those who belong to ‘new religious communities’ are also not mentioned in theoretical discussions, with the exception of the Baha’i and the Ahmadiyya movement, which developed from an Islamic foundation in the nineteenth century: they are categorised as ‘apostates’ by the majority of Muslims and are therefore not tolerated. Islamists frequently accord non-Muslims (generally meaning Christians and Jews) the same civic and political rights, including the active right to vote; however, they remain excluded from certain offices which are considered to be, in the broadest sense, ‘religious’. These include judicial office, because it applies the Sharia, and the office of head of state, because it represents and leads the Islamic community. All this goes far beyond pre-modern concepts of tolerance – and for a long time Muslim societies upheld this to a far greater extent than the Christian West, which likes to pride itself on its tolerance. Nonetheless, it does not comply with the principle of equality.

    Can an Islamic order be democratically drawn up?

    As indispensable as the Islamists believe an Islamic state is in order to live a truly Islamic life, they do not regard its concrete form as necessarily being fixed as that of the historical caliphate. At least, this is true of the majority of Sunni Islamists. The Shiites have developed their own ideas about religious and political authority in the form of the so-called Imamate theories, which differ in certain fundamental points from those of the Sunnis. So-called Twelver Shiites or Imamis believe certain things to be essential elements of a legitimate Islamic order: belief in the inherited charisma of the family of the Prophet, which they restrict to the male successors of his daughter Fatima from her marriage with Ali ibn Abi Talib; the infallibility of the Imams, of whom the twelfth was ‘enraptured’ into seclusion at the end of the ninth century (hence the appellation ‘Twelver’ Shiites) and who will return at the end of days as the Mahdi/Messiah to usher in the kingdom of justice; specific competencies expected of scholars of religion and law as leaders of the community; and so on. Other Shiite groups such as the Ismailis (‘Sevener Shia’) and the Zaidis (‘Fiver Shia’) each repre-sent their own concepts of Islamic legitimacy.

    In this the Sunnis are different. Today, Sunni Islamists are primarily involved in getting the Sharia accepted in individual countries rather than in unifying all Muslims in the global Umma and re-establishing a global caliphate. As long as the Sharia is accepted, the form of government appears to be of secondary importance. The majority represent the view that, for Muslims, the Koran and the Sunna only stipulated a few general principles regarding political matters: the principle of consultation (shura), which is taken by some as an Islamic justification for joint political decision-making, if not for an actual parliamentary democracy; the responsibility of the ruler before God and his people, which would serve as the basis for a regulated obligation of accountability, even in some cases for the peaceful replacement of the ‘ruler’ (president, imam, caliph); and the independence of the judiciary, which is derived from the unavailability of the divine law, which temporal authorities are not allowed to meddle with. All these things address the foundations of good governance which international organisations from the World Bank to the International Monetary Fund have been pro-pagating for years, and which are here, to an extent, formulated, legitimised, and secured in Islamic form. The maxims and essential values that are laid down in the Koran and the Sunna, and which Muslims can merely ‘discover’, must – the argumentation continues – be adjusted in response to changes in the prevailing circumstances, and appropriately applied in each case. This can take place in the context of a revived caliphate; it is, however, also possible in an Islamic republic or a monarchy.

    The principle of consultation

    The orientation towards the Sharia certainly allows changing societal conditions and needs more room for manoeuvre than the fixation on a caliphate. It allows for more flexible adaptation to the given circumstances, and even the incorporation of new forms of political articulation and organisation initially developed outside Islam. As indicated, however, a sovereignty of the people can only exist to the limited extent that God confers upon people a certain degree of authority to deal with their affairs, which the people in turn delegate to a ‘ruler’, an idea which, if further extended, can be reconciled with parliamentary principles. The Islamic tradition actually has some excellent starting points from which to derive the principle of political co-determination. Central to these is the principle of consultation (shura), which is already commended to Muslims in the Koran. This refers to reciprocal consultation in all areas of life, including consultation of the ruler, which is treated in the Koran and in the historical practice as a procedure and only very rarely as an institution Nowadays internal Muslim discussion centres on the relationship between shura and democracy, whereby modernist interpreters understand shura to be a binding practice to be equated with parliamentary committees. According to this view, a multiparty parliamentary democracy can be regarded as a contemporary form of shura, as long as it exists on a foundation of Islam or within the framework of the Sharia.

    There has always been in the Islamic world a pluralism of opinions, interests and societal groups. According to a saying of the Prophet Muhammad, the variety of opinions can even be considered a ‘blessing’ for the community. In jurisprudence, where in principle (if not always in practice) several schools of law hold equal ranking, as in the great Sunni and Shia movements which for the most part mutually recognise each other, the pluralist principle has assumed concrete form. In fact, as far as the practice of pluralism and the application of tolerance are concerned, the historical balance is more positive than in Europe. There was no systematic persecution of dissenters and religious minorities in the Arab world like those carried out in Europe from the Middle Ages to the present day. There were no witch-hunts or persecutions of heretics led by either Church or state, no Inquisition. However, contemporary Islamists want to see differences of opinion limited to the ‘framework of Islam’ – which must in each case be defined, a definition which is of course an expression of the social and political balance of power. Unbelief, doubt and atheism are, however, to be tolerated, if this is considered expedient in the circles of power; they are not recognised as legitimate expressions of the freedom of individual choice or expression. Freedom of speech, freedom of assembly and freedom of association can be granted within the ‘framework of Islam’, although this excludes forces generally designated ‘enemies of Islam’. For a modern society that consists not only of devout citizens, this naturally raises problems. Furthermore, beyond the schools of law the various interpretations of Islamic values and norms have in the past hardly ever been institutionalised. In the present, too, many Islamists reject political associations, parties and unions; consultation and a share in political decision-making should in their opinion be limited to individuals. The ideal of the unity of the Muslim community remains overpowering – perhaps not least because of its actual diversity, which cannot and could not always be managed without tensions.

    The principle of majority rule has no tradition in Islam; it is however advocated by many contemporary theoreticians, as long as the majority does not make any decisions that are ‘contrary to Islam’ (what is contrary to Islam is of course something that has yet to be defined). A genuine division of power is not permissible, according to the classical teachings, but the ruler may delegate his own, essentially indivisible power to subordinates. This is the starting point for contemporary theoreticians who hold that a consistent division of power is both legitimate and necessary. Strictly speaking, according to Islamic teachings there is no legislature, since God as the highest sovereign has set down binding standards, values and laws for earthly life for all time; human beings can only interpret them individually and apply them to their concrete everyday circumstances. That can, however, according to modern interpretation, certainly be done in the context of a parliamentary order, by elected representatives, not only by Muslim scholars of religion and law. After all, within the framework of an Islamic order, which is based on the foundation of the Sharia, the rule of law is fundamentally assured; though as indicated it does not necessarily include the accomplishment of civic freedom and equality.

    Unpolitical understanding of politics

    All in all, politics serves the Islamists as a means to an end, and the end consists of the realisation of an Islamic order based on the Sharia, which can be comprehended as a ‘virtuous state’ – with all that that implies. This reflects a strangely unpolitical understanding of politics, in which the genuine political categories of power, interest and competition are for the most part faded out (this is true at least of their theoretical expressions – in this respect the practice often looks rather different). They are replaced by religious-moral categories such as good and reprehensible (ma’ruf and munkar), right and wrong (haqq and batil), permissible and inadmissible (halal and haram), and the common good, which is also given a religious definition (al-maslaha al-‘amma), against which the value and legitimacy of political convictions, procedures and decisions are to be measured – Islam is for them the measure of all things. The mechanisms and procedures of the exercise of power, parliamentary control and democratic participation are still neglected; the function and limitation of the opposition are not dealt with systematically; the attitude towards the multiparty system remains mixed: thus to a great extent a moral discourse replaces political analysis.

    A final observation on the relationship between theory and practice, in this instance Islamist theory and political reality. Generally speaking, Islamist argumentation makes constant reference to the Koran and the Sunna and presents the Islamists’ own points of view as the position ‘of Islam’. However, they too are naturally formed by their environment, just like all other societal forces. Their ideas about an ‘Islamic order’, good governance, the rule of law and participation are influenced by the prevailing political circumstances just like those of their critics, who appeal to non-religious, sometimes even to openly secular principles. They all live under authoritarian regimes, which – even if they co-operate with the West in the fields of economics, foreign and security policy – only afford their citizens limited constitutional protection, and often refuse them the right to a say in political decision-making. The fight against terrorism that is currently being fought with such intensity tends to have a tense relationship with free, constitutional principles; and this, as we know, is true not only in the Muslim world. There are many difficulties facing all those who fight for democracy and human rights – not only ‘in Islam’.
    Gudrun Krämer
    holds the Chair of Oriental Studies at the Free University of Berlin. She has been a visiting professor in Cairo, Bologna, Paris and Jakarta. This article is the text of Gudrun Krämer’s Bertha Benz Lecture

    Translated by Charlotte Collins
    Copyright: Goethe-Institut e.V., Fikrun wa Fann
    January 2009

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