Rationality, Islamic Law and Egyptian New Constitution

Ways to Strengthen the Democratic Transformation in Egypt

A conference held in cooperation between

Cairo Institute for Human Rights Studies, the United Nations Democracy Fund (UNDEF) and Foundation for International Relations and Foreign Dialogue (FRIDE) – Spain

26 – 27 July 2011

Cairo, Egypt – Semiramis Hotel

Status of Islamic Law in the New Constitution

Gamal al-Banna

Islamic Thinker


As Article 2 of the constitution mandates that the principles of Islamic law are the prime source of legislation, it is natural when seeking to draft a new constitution, to return to these principles to see if they may clarify the status of Islam vis-à-vis the constitution or how a constitution written in accordance with the principles of Islamic law should look.

That is what we are seeking to do in this paper, but first we make an observation about our understanding of Islam. True Islam is the Quran and those parts of the Sunna that are consistent with it. The words of Quranic exegetes, hadith scholars, or jurisprudents may not be taken as Islam itself, but rather as indicative of their understanding of Islam in their own particular circumstances; their understanding might be sound, or it might not. Thus, we will not refer to Mawardi’s al-Ahkam al-Sultaniya or to Ibn Taymiyya’s al-Siyasa al-Sharaiya, although these constitute the two principle sources for studies of Islam and governance or political rule. Rather, our principal source of reference will be the Quran and those parts of the Sunna consistent with it.

We may also find an additional source in events in the golden period of Islam, from the Prophet’s rule in Medina (10 years), to Abu Bakr’s rule (2.5 years), and finally to Omar Ibn al-Khattab’s rule (10 years). When Omar was stabbed, the Rightly Guided Caliphate perished along with him. Here I disagree with the widespread opinion that the Rightly Guided Caliphate persisted until Ali Ibn Abi Taleb’s death, although the scope of this paper does not allow me to expound on this.

Meanings of governance in Islam

Islam is a call to guidance, aimed at guiding people by letting them know God, His prophets, His books, belief in resurrection after life, and a trial of judgment that will rectify the failure of human judgment to achieve perfect justice in this world. Islam issues its appeal to individuals using wisdom and gentle exhortation; when an individual believes, Islam has realized its goal.

This nature and this objective differ greatly from the nature of governance, which is a practice aimed at order. At times the means may be compulsion, while at other times they may be the blandishments of office or status. It is noteworthy that the Quran does not mention the word “state” (Dawla) in its political sense even once, whereas it speaks of “the nation” (Umma) in nearly 50 places.

Although Islam as a faith, which is paramount, does not comprise governance, Islamic law (Sharia), the second half of Islam, contains numerous references to rule, some of which carry the meaning of necessity or authorization, and others which refer to exclusion and prohibition, and usually only in the broadest terms. It is thus clear that Islam, though it did not aim to create a state, is not free of allusions to the state, to ensure that any governance should be wise governance.

However, these references are all part of law, not of doctrine. This distinction is important because Islamic law can be considered in light of the extent to which its tenets achieve the objective of revelation, which is justice or welfare. If it happens that the developments of an age have superseded these tenets, they must be altered in a way that achieves justice. This is what Omar Ibn al-Khatttab discovered at a very early date in Islam.

Quranic verses about rule indicate that it is concluded through a voluntary agreement between the nominee for office and the mass of people. A covenant between two parties regarding the performance of a certain deed, the term for this agreement (Bay’a) comes from the root meaning both to buy and to sell, or to exchange. An agreement between seller and buyer was customarily sealed by one striking the hands of the other.

Quranic verses also stipulate that governance should be managed through consultation; the ruler may not act independently according to his own will. This requires the creation of a mechanism by which consultation is practiced.

General principles of Islamic law

We can understand through references in the Quran and from the caliphate of Abu Bakr and Omar Ibn al-Khattab that the state inspired by Islam has the following features:

1.      The Islamic state is a state of sovereignty of the law, and the law is the Quran.

This means:

A.     The state is not an individual dictatorship, or a state of one party or one class, or a military state.

B.     No person is above the law or beyond its reaches.

C.     No person is denied the protection of the law.

D.    There is no discrimination before the law; all are equal before it.

E.     There is no regard for any measure or action issued in violation of the law.

F.      All forms of allegiance—professional, familial, national, sectoral, etc.—are subsumed by allegiance to the law.

G.    There is only one law to which all people are subject without discrimination.

2.      That the law is the Quran does not mean that the nation is not the source of authority. The sole limit on this traditional formulation, found in numerous democratic constitutions, is that authority be within the broad framework of the Quran. Sovereignty belongs to the Quran, as divine guidance, but the authority to understand, apply, practice, interpret, establish, etc. is the nation, which God has left as His successor on earth. There is a difference between authority and sovereignty, and it is a grave mistake to confuse the two.

This is important because God, through the sovereignty of the Quran, sought to guarantee the liberty of the Islamic nation and the Muslim individual from the authority of tyrants, rulers, and those who exploit claims and slogans such as “the sovereignty of the people.” In fact, the sovereignty of the law leads to the sovereignty of the individual who obeys the law. Without the stipulation that the nation is the source of authority, authority may devolve on to the ruler and he may become a dictator, even if he claims to rule by the Quran.

3.      Observance of the Quran does not mean observance of the opinions of exegetes, hadith scholars, and imams, but rather the faithful application of Quranic texts without force or mendaciousness in light of the Quran’s own interpretation and the interpretation of the hadith in light of the Quran.

Between rule by law and rule by votes

On the occasion of its 50th anniversary in 1955, the Egyptian National Bank invited the political writer F. A. Hayek, who had become famed in Europe following the publication of his book, The Road to Serfdom, to give a lecture to mark the occasion. He chose as his topic the political ideal of the rule of law.

He compared the rule of law to democracy, noting that the rule of law was the ideal for all philosophers and thinkers. In Athens the term used to describe, it was 'Isonomia'. A forgotten word that receded as “democracy” gained prominence. By the time the term democracy appeared in dictionaries of the sixteenth century, it was translated as “equality before the law,” “government of the law,” or “sovereignty of the law.”

Hayek went on to say:

We find isonomia used by Plato in quite deliberate contrast to democracy rather than in vindication of it. In the light of this development, the famous passages in Aristotles politics in which he discusses the different kinds of democracy appear in effect as a defense of the ideal of isonomia. It is well known how he stresses that it is more proper that the law should govern than any of the citizens. Moreover, that the persons holding supreme power, should be appointed only as guardians and servants of the law, and particularly how he condemns the kind of government under which, the people govern and not the law, and where, everything is determined by a majority vote and not by law. Such a government, according to him cannot be regarded as that of a free state, for when the government is not in the laws, and then there is no free state, for law ought to be supreme over all things. He even contended that any such establishment which centered all power in votes or people could not “properly speaking be called a democracy, for their decrees cannot be general in their extent”. Together with the equally famous passage in his Rhetoric’s in which he argues that “it is of great moment that well drawn laws should themselves define all the points they can, and leave as few as may be for the decision of the judges.”[1]

From this, it is clear the idea of the rule of law takes precedence over the idea of rule by votes, which is the genuine, practical guarantor of democracy. What led Europe to fail in the application of this ideal was its inability to achieve a positive law to act as a perfect judge, rather than as an advocate for the interests of the group that established it, as is seen in Roman law. This made all roads lead to Rome; or Napoleonic law, which embodied the interests of the rising bourgeoisie; or Soviet law, which made the party leadership the authority on the permitted and prohibited. Yet, this inability does not apply to Islam since the Quran provides this law, in the understanding discussed above and with the safeguards outlined.

Islamic safeguards to protect the civil nature of the state

The establishment of a state is not the role of Islam or its doctrine, which is an appeal to guidance. Such directives as are found in Islamic law, if taken from the Quran and the age of the first two caliphs, may be considered guarantees for the civil nature of the state because they do not aim for “Islamic rule” but rather good governance. Thus, it does much to guarantee the achievement of a civil state in a way that goes beyond even the most modern states. This includes:

1.      Following the Medina charter established by the Prophet upon his arrival to Medina, it is a state of citizenship. The charter states that the Ansar (the indigenous residents of Medina), the immigrants (the Muslim residents of Mecca who took refuge in Medina), and the Jews (who made an alliance with the Ansar) are one nation (umma), defending the city, Muslims with their religion and Jews with theirs. This charter made “one nation” out of these three groups. That is, both the immigrants and the Jew were members of this nation. There is no other meaning for this but citizenship.

2.      Freedom of thought and belief: In more than 100 verses, the Quran upheld the freedom of belief. For example “Say: ‘The truth is from your Lord; so let whosoever will believe, and let whosoever will disbelieve’”; “No compulsion is there in religion”; “And if thy Lord had willed, whoever is in the earth would have believed, all of them, all together. Wouldst thou then constrain the people, until they are believers?” Nor did the Quran give the Prophet authority over the believers. He is not the controller or even the trustee of believers; he is the messenger, the harbinger, the informer of God. The best evidence that Islam accepts freedom of belief is that the Quran mentioned apostasy repeatedly without specifying a worldly punishment for it, leaving the matter to God.

As for the claims and interpretations of jurisprudents, they cannot be taken as evidence because they are merely an expression of their understanding of the Quran in a particular circumstance and culture and under the rule of authoritarian tyrannies. As for the hadith related by Akrama, the protector of Ibn Abbas, which states, “He who alters his religion shall be killed,” it should not be accepted. Even before us, Imam Muslim excluded it from his hadith compendium; moreover, it is impossible for a hadith to contradict the Quran.

3.      Principle of religious pluralism: Among the directives—indeed, the rules—affirmed by the Quran are beliefs in all the prophets's existence, those mentioned by name in the Quran and those not mentioned. Islam is the only religion that requires believers to believe in all prophets and not distinguish among them. The Kafirun chapter of the Quran recognized and confirmed religious pluralism, stating:

A.     Non-Muslims (unbelievers) will not abandon their religion.

B.     Muslims will not enter the religion of the unbelievers.

C.     There remains only recognition of this pluralism: “To you your religion, and to me my religion.”

There are further appeals for pluralism in the Quran: “...and say, ‘We believe in what has been sent down to us, and what has been sent down to you; our God and your God is One, and to Him we have surrendered.’”

Finally, let us recall the speech given by Abu Bakr following his election as a way to link the present of the nation to its glorious past: “I have been given charge over you, but I am not the best of you. If I do right, support me; if I do wrong, resist me. Obey me as long as I obey God and His prophet, and if I disobey God and His prophet, you owe me no obedience.” This succinctly captures the right of the people to oppose the ruler if he does wrong. If he does right—if he rules by the law or a constitution and not by his own autonomous will—the people are bound to obedience, but if he does wrong by them, he is owed no obedience. These three sentences perfectly summarize the elements of democracy, and perhaps can be cited in the constitution when mentioning the relationship between the ruler and the ruled.

[1] F.A. Hayek, “The Political Ideal of the Rule of Law,” National Bank of Egypt, Fiftieth Anniversary, 1955, Commemoration Lectures, Cairo, p. 7.

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