This is the second of a projected ten part series on Islamic law and democracy. The first post in the series discussed the normative role of God’s sovereignty in Islamic law, and the subsequent fundamentalist argument that Islamic Law must be incompatible with democracy at the symbolic level. Today, I will describe the alleged substantive contradiction between Shari’ah (God’s law) and democracy. Fortunately, this will likely be by far the shortest of my entries on Islamic law. I am not of the Islamic faith, so I welcome any corrections, especially those coming from practicing Muslims.

In Islamic theology, Shari’ah is often held to establish the basis of Islamic government in principles that are immutable for all times and in all circumstances. In a democracy, by contrast, the will of the people forms the basis of the government and permits governmental principles to change with the times. If the popular will conflicts with the Divine will, then the law of the State must accept one and reject the other. Thus, some have argued that liberal democracy and Islamic law may conflict in substance.

Sa’id Hawwa of Syria therefore expressed the tension between Islam and democracy in terms of the necessary primacy of Shari’ah, holding that in a democracy the people govern themselves by laws they make on their own, but in Islam the people are “governed by a regime and a set of laws imposed by God, which they cannot change or modify in any case.” Dannawi expressed the contradiction more tersely: “The state in Islam obeys Divine Law, not the people”, a distinction which is important because God’s divine sovereignty liberates “the state from subservience to human passions, whims and fancies… be they of the majority or the minority.” Similarly, Sayyid Qutb held that the source of injustice is the power of humans over other humans, and therefore that society must rely on the sovereignty of God rather than on the sovereignty of the people, as in a democracy.

Interestingly, these Islamic arguments against democracy are often presented as adhering to quasi-democratic principles: given that all people are equal before God, it follows that no person has the right to impose his will on others. And given that humans are fallible, and therefore unable to keep their passions in check (hawa), it follows that a higher authority is needed to control human behavior. This higher authority is God’s law, which is binding on all: rich and poor, ruler and ruled. Thus, the primacy of Shari’ah is the only genuine liberation from tyranny, including the democratic tyranny of the majority. This argument builds upon historical Islamic arguments about the proper role of government: the classical jurists frequently warned that the great danger to the community was fitna, or disorder, and that a strong government which upheld Shari’ah was needed to prevent it.

But is this conflict necessary? In requiring an affirmation of God’s sovereignty, must Islamic principles of governance be fundamentally undemocratic?

Not necessarily. Many Muslims have affirmed the compatibility of Islamic law and democracy. Because contemporary fundamentalists still grant the rules of classical Islamic law a prima facie presumption of correctness and authenticity, an examination of the history of Islamic law may help to clarify and advance the debate. On tomorrow or Wednesday, then, we will turn to the meat of my argument, and we will begin to examine some ways in which democracy and Islamic law might be reconciled.