Sharia Reasoning, Political Legitimacy, and Democratic Visions

Simeon O. Ilesanmi

Islam as a Living Tradition of Arguments

No other major religion has been more misunderstood and mischaracterized in recent memory than Islam. The geographical location of its origin invites intuitive, often condescending, comparison with its putative cultural cousinsJudaism and Christianity; the mode and pattern of its evangelistic strategy, especially at its incipient stage, is often cited by some to call into question the authenticity of its spiritual message; the perception that the religion espouses an organicist view of life, in which both the sacred and the temporal spheres dissolve into a single and undifferentiated norm that is expressive of a divine mandate, has fed the suspicion that Islam is incompatible with modernity and its pluralist ethos. Although these stereotypical impositions have always existed in one form or the other, the tragic event of September 11, 2001, heightened their existential significance with instant global ramifications. The world, notably the West, has since been treated to a wide menu of explanatory models of the logic of Muslim faith and behavior. Predictably, extant explanations are not uniformly helpful; while some oversimplify in the bid to reach a broad public, others create outright confusion due to a very fragmented or even jaundiced understanding of the Islamic tradition. Kelsays Arguing the Just War in Islam retains the singular merit of combining theoretical

SIMEON O. ILESANMI (BA Hons., University of Ife; JD, Wake Forest School of Law; PhD, Southern Methodist University) is Washington M. Wingate Professor of Religion, Wake Forest University, Winston-Salem, North Carolina. He has contributed chapters to Religion and Poverty: Pan African Perspective and The Oxford Handbook of Methodist Studies. His articles have appeared in Human Rights Quarterly, Journal of Religious Ethics, African Affairs, Journal of Church and State, and Journal of the Society of Christian Ethics. Current research projects focus on human rights, ethics of war, and religion, law, and politics in Africa.
Journal of Church and State vol. 53 no. 1, pages 27 36; doi:10.1093/jcs/csq140 Advance Access publication January 29, 2011 # The Author 2011. Published by Oxford University Press on behalf of the J. M. Dawson Institute of Church-State Studies. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com

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Journal of Church and State sophistication with analytical rigor in its complex account of Islams self-representation through a discursive practice of Sharia reasoning, by which Muslims attempt to forge links between the wisdom of previous generations and the challenges posed by contemporary life, in hopes of acting in ways consistent with the guidance of God.1 Kelsay makes a strong and successful case against the reductionism of both blind partisanship for Islam and the ignorant caricature of the religion by its detractors. It is not just the contemporary relevance of the books thematic focus, namely, the moral quandary about war that underscores its scholarly significance; it is how Kelsay introduces the title of the book that I find most compelling. Wrongly or rightly, Islam is perceived in the West, as well as in other societies, as a conservative religion, by which it is meant that strict compliance with hierarchically decreed teachings is a precondition for continued participation in the life of the community. The fact that the religion has not been plagued by the kind of seismic schisms and a plethora of denominational expressions found in Christianity has reinforced the impression that Muslims are passive adherents to their faith, that debate is not just discouraged but frowned upon, and that pluralism is foreign to the social expression of Islam. By placing the discussion of Islams contribution to the just war in the context of a tradition and practice of argument, internal to Islam and ancient in origin, Kelsay not only rejects the kind of sociological exceptionalism commonly ascribed to Muslims but also gestures toward a definition of religion that is comprehensive in its reach and accents the dynamic character of religion. As he describes it, Islam is a living tradition,2 which, in the words of Alasdair MacIntyre, refers to a historically extended, socially embodied argument, and an argument precisely in part about the goods which constitute that tradition.3 Thus, while the essential features of Islam may be specified in any number of ways, it is its open-textured character, its encouragement and nurturing of a practice of a sustained argument, conducted anew by each generation, about the contemporary significance and meaning of the sources of sacred wisdom and revealed truth4 that constitutes it as a religious tradition. Kelsays choice of the language of reasoning to designate the activity or practice of exploring the contextual relevance of Sharia
1. John Kelsay, Arguing the Just War in Islam (Cambridge: Harvard University Press, 2007), 4. All in-text references are to Kelsays book except where names of other authors are supplied. 2. Ibid. 3. Quoted in R. Scott Appleby, The Ambivalence of the Sacred: Religion, Violence, and Reconciliation (Lanham: Rowman &Littlefield Publishers, Inc., 2000), 33. 4. Ibid.

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Sharia Reasoning, Political Legitimacy, and Democratic Visions is therefore deliberate. Reasoning implies a movement, both dynamic and dialectical, in which one draws inferences or conclusions from known or assumed facts. This is precisely how the ulema (learned ones or religious specialists) engaged in the practice of Sharia reasoning. Their arguments, which Kelsay characterized as conscientious, are a form of movement between precedent and new contexts. One proceeds with due respect to the judgments articulated in approved texts. It must never be assumed that the Sharia is closed, however. To take such a position is to deny the freedom of God. It is to render God static, whereas the voice speaking in the Quran, and to which the Prophets sunna bears witness, is very much dynamic and living ( p. 177). There is a sense, then, in which the dominant theme in the books titlethe just waractually constricts the breadth of success that Kelsay achieves in this monumental project. At its core, Sharia reasoning, whether understood as a hermeneutical framework with its self-referential rules of interpretation and authentication or as judgments pertaining to specific questions of right and wrong (p. 73), is really an intratradition debate about the very meaning of Islam and the criteria for determining and appraising its instantiations in each successive generation. While the central mission of the umma remains undisputed, which is to command the right and forbid the wrong (p. 23), what this means for each generation and in each context requires a careful balance between continuity and creativity (p. 73), involving not just a reliance upon and demonstrated knowledge of the Quran and the hadith but also a conscientious attempt at the comprehension of guidance (p. 60) through the application of reason (al-aql) or independent judgment (ijtihad) (p. 72).

Who Speaks for the Political Order?

Even after recognizing what is obligatory to be commanded or forbidden, there is the equally important question having to do with the appropriate agent, human or institutional, that will carry out this task. In every instance of moral prescription or moral prohibition, Kelsay argues, It is critical to know not only how to classify an act, but also how it applies to particular agents ( p. 69). The establishment of the right kind of political order is one of the ways by which the question of agency has been addressed in Islam. In fact, all other modes of expressing religious fidelity pale in comparison with the supreme obligation to refashion the world in line with Gods guidance ( p. 162), thereby transforming it from a condition of unrest and ignorance into dar al Islam. Resort to war and its conduct receive their raison de tre from the desire to achieve this objective: War is a means to a political end, 29

Journal of Church and State which is the establishment and governance of a political-territorial association governed by Islam ( p. 100). But the political order is not self-justifying; it exists to serve a cause of a more transcendent character. According to Kelsay, The establishment of an Islamic state is itself a means by which the Muslim community can carry out its divinely mandated mission of calling humanity to the relationship with God signified by submission, al-islam ( p. 100). Thus, as important as it is to seek an understanding of the history and development of the Muslim practice of normative reflection regarding the justification and conduct of war ( p. 99), to which this book understandably devotes considerable attention, it is of equal, if not greater, significance to recognize that this reflection has evolved in connection with broader issues of political life ( p. 155). In the remainder of this essay, I will highlight what is at stake in the competing articulations of the form of political life proper to an Islamic state ( p. 155). Chapter 5 of the book takes up this issue. Here Kelsay explicitly identifies those involved in the debate as Muslim militants and Muslim democrats, although there is also a third group, which, for lack of a better word, can be referred to as traditionalists. This is a group that disagrees with the militants indiscriminate bellicose and ultimately self-defeating tactics but shares their grievances and judgments about the injustice of present global and economic structures dominated and largely controlled by the West. As Kelsay puts it, Disagreements about the just war take place within a general agreement regarding the desirability of a particular kind of political structure ( p. 165), that is, a kind of structure that would bear resemblance to the defunct Ottoman Caliphate. On the issue of political philosophy, then, the real debate is between the militants and the democrats, and at the heart of this debate is how to resolve the issue that Max Weber captures in his notion of wertbeziehung or value relatedness,5 which is rendered in contemporary parlance of political science as a problem of legitimacy. Often distinguished from a related concern about institutional effectiveness, legitimacy involves the capacity of the system to engender and maintain the belief that the existing political institutions are the most appropriate ones for the society.6 Thus, groups regard a political system as legitimate or illegitimate according to the way in which its values fit with theirs.7 In the Islamic world, the crisis of legitimacy is primarily a recent historical
5. Max Weber, Legitimacy, Politics and the State, in Legitimacy and the State, ed. William Connolly (New York: New York University Press, 1984), 32 62. 6. Seymour Martin Lipset, Political Man: The Social Bases of Politics, expanded ed. (Baltimore: Johns Hopkins University Press, 1981), 64. 7. Ibid.

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Sharia Reasoning, Political Legitimacy, and Democratic Visions phenomenon, triggered by the onslaught of colonialism and reinforced by the perceived, even if real, weak responses of Muslim political establishments. It is therefore a crisis of changea change in the scale and composition of political society, in the values that should govern the relationship between leaders and citizens, and in the understanding of the scope of authority that historical precedents should exercise on present and future directions of the society. Although both militants and democrats appear to perceive this change as irreversible, they differ on how to engage it, especially on the indices to use for measuring the legitimacy of political arrangements. I have singled out three principal areas of disagreement between the two groups: (1) the identity of the political system, (2) the inclusiveness of citizens participation in the system, and (3) the scope of rights enjoyed by the citizens. The debate about Muslim political identity can be properly understood against the backdrop of what Kelsay refers to as the modern setting ( p. 72), although the meaning of what that setting includes is subject to a wide range of interpretations. Stuart Hall summarizes modernity as a conceptual model with the following features:
A political sphere dominated by secular forms of political power and authority and conceptions of authority and legitimacy, operating within defined territorial boundaries, which are characteristic of the large complex structures of the modern nation state. . . . A monetarized exchange economy, based on the large-scale production and consumption of commodities for the market, extensive ownership of private property and the accumulation of capital on a systematic, long term basis. . . . The decline of a traditional social order, with its fixed social hierarchies and overlapping allegiances. . . . The decline of the religious world-view typical of traditional societies and the rise of a secular and materialist culture.8

It can be argued that the introduction of extratextual elements, such as independent judgment and al-maslaha (that which is salutary with respect to public interest), into the practice of Sharia reasoning represents the earliest manifestations of modernity in Islam ( p. 74). These are features of cultural modernity, long associated, at least in the West, with the progress in the faith in scientific reason and a concomitant decline in a belief in religious explanations of the origin, development, and future of the universe. Their appropriation within Islam represents a paradigm shift; indeed, they were signs of positive development that would enable the tradition to cope and experiment with varied models of responses to the
8. Stuart Hall, Introduction, in Modernity: An Introduction to Modern Societies, ed. Stuart Hall, David Held, Don Hubert, and Kenneth Thompson (Cambridge: Blackwell, 1996), 8.

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Journal of Church and State disruptive changes it would later face in subsequent centuries. To the militants, it is not enough to blame external (western) forces or even their own corrupt and incompetent governments ( p. 163) for the collapse of Islamic hegemony; the root of the crisis of legitimacy lies in Muslim infidelity to their premodern precedent ( p. 162) and easy susceptibility to the siren of democracy, with its separation of religious and political institutions ( p. 160). This crisis is not without solution, however. An Islamic government, whose purpose is to establish the Sharia ( p. 159), committed to safeguarding the superintending role of the Islamic community ( p. 162) and under whom Muslims and non-Muslims alike may know the blessings of God ( p. 159), offers the best chance of rescuing the world from its current state of social and cultural dislocation. Arguing that a legitimate government must be guided by Gods law rather than a set of norms developed by human beings ( p. 162), they confined such a conception of government to the model they believed the Prophet Muhammad established in Medina. The fact that the world, including the one in which contemporary Muslims live, has changed is not a reason to dismiss the Medina model as simply a matter of historical record. [Rather], it is a living narrative, through which people should interpret current events ( p. 159). In short, the militants reject modernity and its attributes, notably, democracy, equality of citizenship, and diversity of opinions on common sources of guidance. On the latter, their reasoning is that texts do not require interpretation. The meaning of the Quran and of the reports of Muhammads practice is settled; to be faithful is to apply them, as strictly and forthrightly as possible. The Sharia is therefore not a matter of finding a fit between precedent and contemporary life, but a matter of remolding contemporary life so that it is governed by historical models ( p. 177).

Islam and Liberal Democracy

The democrats offer a different reading of the Islamic tradition to dismiss the militants argument. On the issue of political identity, for example, the Sudanese Muslim and legal scholar, Abdullahi An-Naim rejects the claim that Muslims seeking to fulfill their religious and political responsibilities have only one model of arrangement to draw upon. He offers evidence of a plurality of precedents ( p. 181) from the very early and paradigmatic example of the Prophet and Abu Bakr, as well as later developments, to show that there is, instead, a long narrative (or set of narratives) in which Muslims try to negotiate between models involving a complete separation of religion and a complete conflation or 32

Sharia Reasoning, Political Legitimacy, and Democratic Visions convergence of these two dimensions of life ( pp. 180 81). He asserts that the unique exception of the Prophet Muhammads career in Medina, during which politics and religion converged, is an unrepeatable event ( p. 181). Similarly, Abdulaziz Sachedina faults the militants for inaccurate representation of the past. Among their errors, the most basic is the failure to understand the mixed motives behind many of the landmark decisions in early Islamic history. For instance, political exigencies and legitimate security concerns, rather than demand for strict compliance with religious teachings, were largely behind some of the ostensible intolerant and punitive actions taken by the first generation of Muslim leaders against the tribal and cultural groups incorporated into the emerging dar al-Islam. But in circumstances in which Muslims find themselves free to practice their religion, to proclaim Gods word and to worship according to the dictates of their consciences, that is, in the kind of setting envisioned by the Universal Declaration of Human Rights ( p. 172), such measures may not be required because of the changed circumstance. The democrats apparent embrace of modernity was not intended to marginalize the contemporary relevance of Islamic values. In fact, as An-Naim points out, the idea that Islam can or should be kept out of the public life of the community of believers would be no less a dangerous illusion than the other extreme of seeking to establish an Islamic state that claims the right to enforce Sharia principles through the coercive power of the state ( p. 179). One need not be less Islamic in order to be a modern Muslim, democrats seem to claim. Properly understood, Islam espouses a particular view of the nature of faith, rooted in the Quran, according to which faith is a gift of God which can only be genuinely professed when not coerced. Thus, the tolerance of difference and the respect for voluntary religious decisions that are the hallmarks of modernity are not only anticipated in the Quran but have been strongly defended in various theological streams of Islam. In contrast to the militant vision of politics that holds that rights of conscience must be limited to the right of persons and groups to hear the message of Islam, Sachedina argues that Sharia reasoning supports a political order in which persons and groups are free to hear the word of God, to accept it, and to worship according to their deeply held convictions. Sharia reasoning also supports the converse: in order to protect the right of believers to practice their religion, it must be possible for others, nonbelievers, to hear the word of God, to reject it, and to live according to the dictates of conscience ( p. 169). On this reading of the tradition, Islam cannot be invoked to establish a state that operates without moral limits. Such a state would be guilty of apostasy or 33

Journal of Church and State turning from Islam by arrogating to itself the right that properly belongs to God in matters of faith and abdicating its responsibility to serve human needs ( pp. 170 73). Unfortunately, this is the very crime of which many innocent Muslims have been wrongly accused on the basis of questionable interpretation of historical precedents. Finally, Muslim democrats defend the equality of citizenship regardless of religious and gender identity, a requirement of not only democracy but of Islam itself. One crucial agreement among those Kelsay identifies as Muslim democrats is on the wide variety of precedents that exist in Islam and that the requirements imposed by diverse contexts suggest the importance of allowing a wide latitude in working out the political dimensions of the Sharia ( p. 184). Abou El Fadl, the third of the Muslim democrats extensively discussed by Kelsay, charges that the militants ignores this inherent diversity of normative options available to Muslims, and attributes their discriminatory and demeaning views about women and ahl al-dhimma ( protected peoples) to intellectual laziness, longstanding prejudices, and a selective or piecemeal approach to the judgments articulated by historical ulema ( pp. 182 88).

Conclusion
Like in all contests, it is appropriate to ask who ends up with the trophy or shows the most promise of accomplishing this feat. The contest between the militants and the advocates of democracy is a complex one. Even if it is not physical in nature, it is also not just a matter of interpretation of texts, or of accounts of the nature of precedent ( p. 200). Substantively and pragmatically, the contest has also to do with the ability of participants to articulate a fit between past and present, and to persuade others that this connection serves to enable the Muslim community to fulfill its mission of calling people to God.9 Which side, then, has the best chances of prevailing? And, has Kelsay refereed the contest between the militants and the democrats fairly? I will answer both questions in turn. If global prominence, large following, and the ability to intimidate others, including national governments, are a measure of victory, then Muslim democrats can be said to have lost, at least for now, in this seemingly titanic battle for the soul of Islam. Although their arguments are well known in the Muslim community and are clearly regarded as a direct challenge to the conception of Islamic government, the public effect of the arguments pale in
9. Ibid.

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Sharia Reasoning, Political Legitimacy, and Democratic Visions comparison with those made by their militant counterparts, not just because the latter are more strident but they are also widely distributed ( p. 167). Muslim advocates of democracy also suffer from what I will call guilt by association: the three scholars that Kelsay identified and discussed as spokespersons for progressive Islam reside in the West and are products of some of its best universities. They therefore occupy an awkward position of being accused of merely pandering to the society that caters to their material interests, or attacking their religion from the outside, geographically speaking, rather than returning to their homelands where they can have real impact. Their conduct amounts to nothing but toothless rhetorical performance, if not outright betrayal of the tradition! To levy this kind of ad hominem criticism against Muslim participants in democratic discourse, especially the representative scholars that Kelsay justifiably brought to our attention, would certainly be unfair. These are individuals with vast knowledge of and deep intellectual investment in the two traditions with which they are publicly identifiedIslam and liberal democracy. Their sojourn in the West can be said to have been imposed upon them by the intolerance and hostility of their home governments. That they continue to maintain a voice of loyal opposition (or better, voice of hope) in the face of real risks to their personal safety and comfort is itself a testimony to their moral courage and their abiding commitment to the faith tradition to which they belong. Only with such courage and passionate commitment can a tradition be a living one, as Kelsay appropriately characterizes Islam. Most significant, the democrats have what Kelsay calls the weight of tradition on their side because of their argument that historical precedents are open to interpretation ( p. 199). To the extent that this stance is warranted by the logic of Sharia reasoning, these scholars cannot be accused of trying to force Islam into the paradigmatic framework of Western democracy. To the contrary, the two traditions are united by the same animating impulsea practice of argument, in which human beings engage in the giving and taking of reasons ( p. 199) in hopes of ascertaining proper guidance, from God or some other sources. Nonetheless, is it fair to refer to the other side in this debate as militants? While Kelsay seems to identify the democrats by a vision of political order they espouse, the militants were identified by the tactics or means they employ to bring about the political arrangements they believe is proper to Muslim society. Perhaps this choice of label is inevitable, given the central focus of the book. Yet it is arguable whether the group would have embraced the label for self-representation. I acknowledge Kelsays preemption of this criticism in chapter 4 of the book where he noted that 35

Journal of Church and State Muslim discourse on war has to be understood in connection with broader issues of political ethics ( p. 99). In fact, I agree with his observation here, and it is precisely because of this that I would argue that the Muslim nondemocrats use of violence begs for greater attention to their concern for political and economic justice, not only within their own societies, but within the global arena as well. In effect, this would mean that we give equal regard to both the jus ad bellum and jus in bello aspects of the just war tradition. As to how this might be done, there is no better guide to turn to than Kelsay himself.

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