The Civil State and a New Fiqh of Citizenship

NOTES FROM THE IIIT CONFERENCE ON GOOD GOVERNANCE IN ISLAM: CLASSICAL AND CONTEMPORARY APPROACHES #3

[This is the third in a series of my notes on the International Institute of Islamic Thought conference on Good Governance in Islam: Classical and Contemporary Approaches held in Herndon, VA. These notes have only been lightly edited and represent my perception of the discussion. The proceedings will be published by IIIT at a later time. Responsibility for any errors in the notes is mine alone. Names of participants (other than mine) in the general discussion have been omitted by request of the organizers.]

“The Civil State and a New Fiqh of Citizenship”

David Warren, Doctoral Candidate, Islamic Studies, University of Manchester, UK

This talk will focus on a loose collection of scholars headed by Yusuf Qaradawi, who is the unofficial figurehead of hizb-al-wasat, which is the school of the middle way, and his search for a notion of citizenship in a civil state. What is the future of non-Muslims in new Islamic states? Will they pay the jizyah? Is the rejection of secularism at odds with democracy? Is there authentic precedent for a citizenship bond that will include non-Muslims? The Charter of Medina is such a precedent. Normally ummah refers to a Muslim community, but in Medina it referred to Jews as well, based on their geographical location. Further, the notions of maqâsid allow for flexibility. In particular, Qaradawi’s notion of secularism is not that different from his notion of citizenship in a civil state.  Not secularism, but the laicism of Turkey and France is at odds with Muslim civil state. We note that Tunisians have retained the family laws of the previous secular state.

Qaradawi’s influence is not formal, but it is enormous, as witnessed in the popularity of his TV program. Weber distinguishes between power and leadership. Qaradawi is a charismatic leader. He speaks with real authority as a faqîh, a Muslim jurist. This is relevant to his notion of a Muslim civil state. He says there is no difference between a state governed by the Sharia and a state governed by the people, because it is the people who interpret the Sharia.

The significance of the “constitution” of Medina is that it was a negotiated agreement between Jews and Muslims as equals and it refers to the Jews and Muslims as one ummah.  The Jewish and Muslim residents of Medina had an equal bond to the land. For Qaradawi this shows that shared ties to a homeland are a valid bond apart from the bond of religion. Medina is distinct from Najran, which was to coordinate relations between people of different nations while the Medina charter was for people with something like a shared nationhood.

The Islamic civilization concept allows that Muslims and Christians share in the Muslim civilization. This is to say that there is a difference between a Muslim civil state and Islamic state. Qaradawi’s notion of citizenship, national belonging and patriotism, seem at odds with the Western notion, yet Qaradawi writes approvingly of certain aspects of Western liberal philosophy, praising its neutrality. He sounds surprisingly secular, but the tone is not constant, especially when one jumps from one language to another.

Secular notions can be expressed in religious terms. Qaradawi says to have the Sharia as a reference is to have the people as a reference, since it is the people who interpret the Sharia. We need to be aware of al-Ghazali’s distinction between Sharia and fiqh. It invalidates non-jurists’ interpretation of Sharia. Qaradawi says that while a few things from the legal legacy are beneficial, most of it is not binding in its entirety.

Ghannouchi is perhaps Qaradawi’s most prominent student. The VP of the Constituent Assembly, writing the new Tunisian constitution, says there is no need to mention Sharia in the constitution since it already is a source of Tunisian law. The ultimate objective is for modern notions of dignity, social justice, etc., to merge with the Qur’anic notions. Not only has the personal status act that is credited with advancing women’s rights (e.g., abolition of polygyny) been incorporated into the new constitution, but it has been elevated so that its repeal would be more difficult.

The Christian Democrats in Europe also provide a model, like the Islamic parties, more defined by what they oppose than what they favor, and claiming to represent a third way that rejects both capitalism and state socialism.

Three common principles between Qaradawi and liberal democracy are neutrality, shared bond of patriotism, shared commitment to the nation’s prosperity. They also share a rejection of chauvinistic nationalism, a widespread institutional base, and a qualified endorsement of democracy.

Dr. Jasser Auda, Faculty of Islamic Studies, Qatar Foundation

David has given a precise and deep presentation of ideas that are quickly becoming mainstream in the Islamist movement in the Middle East. I would like to add some clarity to ideas in currency these days. There is still vagueness in ad-dîni al-madanî. If you view ad-dîni and al-madanî as circles, laicité says these circles can have no intersection, even to the point that some have argued that brothers and sisters should be allowed to marry one another. For many Salafi groups the circles overlap heavily, even to the point where they deny any validity to the notion of civil state. The wasati approach admits the circles overlap, but there is reinterpretation of the governing scripts of Islamic history, such as reinterpreting dawîla [statehood] in a modern form.

I will present some ideas of an Islamic way of looking at ad-dîni al-madanî in a way that takes the discourse forward rather than Islamizing it by stagnating it as concentric or congruent. We should instead see the circles as overlapping, with some areas of each not intersecting with the other. Calling a view in Islam as secular is misleading; it is like calling a Western political party mu`tazila. We see Islamists and liberals cooperating on what the Islamists call Islamic values and the liberals call civil values. While leftists exist in the Arab world, among the Islamists everyone is on the right on economic issues.

Some of the ahkâm (values or ordinances) called for law or government organizations or projects in their own right. Apart from the clearly dîni and the clearly madini, there are three contested areas. People have no problem with capital punishment. Parallel legislation includes family legislation, so that Islamic, Christian, and other laws can coexist under an Islamic framework. In Egypt there is a call to return to the pre-Suzanne-Mubarak family laws, while others call for yet more reform. The third area includes hudûd and riba (or transformation to an Islamic economy).

There are many new ijtihads in the area of hudûd. One is the call for changing the hadd on ridda (apostacy). Recently it has been proposed to enlarge the civil service in order to give it powers in the gray area. For example, there are plans to separate the awqâf from the government and Islamic affairs from the government to free the Islamic groups from the state. There are also plans to separate the media from the government and to abolish the ministry of information. There are calls for education to promote chastity rather than for government enforcement of morals. There is a move from ahkâm towards maqâsid. Sadat kept Islam as a source rather than the source of Egyptian law. The move now is to make the maqâsid the source of Egyptian law. This is both an Islamization and a liberalization. The Salafis are not happy since they want he ahkâm to rule every area, even the “uncontested” areas. Letting the people develop the maqâsid is itself a maqsid. More common ground is being formed between the Islamic trend and the serious liberals. There is still contestation in the area of family law, however, as the liberals seek more liberalization and the Islamists want to go back to earlier forms of family law.

A new development is “politics to the left” which is not the typical liberal or capitalist approach. The Labor Party is back and growing. Many who left the Islamic groups to join Aboul-Fatouh’s campaign are forming new parties and trend very much to the left on economic policies, and I think that is where the future lies.

Discussant: Yahya Michot

I know little about the modern era. I see Muslim societies fighting with concepts that are very foreign to those societies, trying their best to accommodate concepts imported during colonization. We have to go back a little bit to the medieval period. In Mawardi and ibn Taymiyyah we see what are really treaties, rather than the organization of civil society, being called politics, although they have little to do with what the Greeks called politics and have little to do with the modern period. You can’t speak of second class citizenship when there is no citizenship, which is a modern concept. Those who had the power and the ability to kill had no other responsibility in society. Sending the military back to the barracks invokes the image of the Mamluks in their citadels. That is what the Turks are doing. It is a first step in undoing a state in which those who have the power to kill insinuate themselves into every aspect of society. Deconstructing the state may be the way forward, with one exception: control of the economy. We are more in the classical texts when we talk about the economy than about politics. I think the Islamists bet on the wrong horse by focusing on political power rather than economic power. If you control the economy you are in a better position to control those who have the power to kill. We see this in Turkey.

One of our problems is that we do not have a historical dictionary of the Arabic language, so we think dawla, that now means state, meant state to the Ottomans or in the tenth century. We must do work of conceptual archeology.

Disussant: Abdallah al Sheikh Sidahmad

The nation state came out of the Treaty of Westphalia in the 15^th century. The state is giving way to transnational organizations. When the Prophet was driven from Mecca he confessed his attachment to the land and said he would not have left it had he not been driven out. The homeland of the Muslim is where his `aqîda is. The Ottomans had the millat system that gave each denomination the right to self-governance.

General Discussion

The notion of what’s authentic in the Islamic tradition requires acknowledging that the constitution of Medina was a failure, with the Jews expelled or killed. The notion that America is closer to Greece than Egypt doesn’t ring true to me.

Islamists are divided between revolutionaries and reformers. Reform takes concepts like the state and Islamizes it, but the state itself hasn’t been redefined. There is a minority that I call the revolutionaries (Islamic and not) who believe in the redefinition of state rather than its Islamization, but the redefinition is a work in progress.

What is the difference between an Islamic state and a nonalcoholic beer?

The big states are similar to empires. The compact of Medina lost its point of reference with the expansion of the Muslim state. In my view deconstructing the state is a rather far-fetched dream. With all its flaws people have chosen the Western parliamentary system.

This is a problem of hermeneutics. Bernard Russell says there is misunderstanding between Muslims and the West: dîn does not mean religion, Jesus does not man Muhammad, Allah does not mean God, etc. Why did I hate secularism in Iraq and love it America? In America, it means  separation of church and state; in France, it means Denial of religion; in the Arab world government literally fights religion.

It would helpful if IIIT would commit itself to the development of the historical Arabic dictionary and add to it a substantive meanings beyond nomenclature. There tyranny of the majority is not a new concern. Are we Americans Muslims part of the Muslim world? In what sense?

We can’t take the Muslims into the pre-modern era. We live here. Whatever heritage we have is not binding except what we glean from the Qur’an and sunnah. The rest is theorizing. The Egyptians said down with hukm al-murshid (the Muslim Brotherhood’s shaikh) as well as down with the regime. The oath of allegiance to the Muslim Brotherhood says they will be loyal soldiers who will listen and obey except if there is a violation of the rule of Allah. From a political science perspective this is a claim of political legitimacy. Murshid said he would release Mursi from his bay`a to him when he became president. What of the civil servants in the Muslim Brotherhood? Why not just do away with the bay`a.

There is a lot of internal debate in the Muslim Brotherhood not only about bay`a but about all kinds of things that may be moot since the revolution, including secrecy, rankings, and hierarchal structure. But it is not that serious.

I don’t remember the complete wording of the sahîfa madaniyya but I seem to recall pagan Arabs included. Qardawy and Ghazali were not the first to make the distinction between Safiha and fiqh. Is Tariq Ramadan part of this discussion in Egypt?

Every single tribe is mentioned in the Medina Compact, not just Muslims and Jews.

Tariq Ramadan is part of the debate but not allowed in Egypt.

I tied to include the Christian experience. It was not long ago that notions of loyalty to the Pope was an issue.

Even in America, with Kennedy.

Ahmad: And even now with Romney and the living prophet of the Mormons.

I don’t think IIIT should try to take control over the meanings of words.

Edward Said said beginnings are choices. When you describe something as authentic, that is a choice you make that enables you to build a structure on a foundation. It is legitimate for IIIT to say we have a scheme that describes important terms in particular periods. The West has made choices in the definition of disciplines. Knowledge is always a contested terrain.

My proposal was not to make a choice but to show how choices are made.

We are talking about how people conceptualize Islam and the state and identity politics, but, especially in the case of Egypt, the problem of military must be addressed, especially in a state built on kleptocracy.

The notion of ummah is transnational until the Day of Judgment. I think we have been misguided by the discourse of dîni and madani. Rather we should compare dawla madani (civil state) and dawla askari (military state). Notions of civil, religious, and military states have been manipulated by those in power. In internal Muslim discourse we should distinguish between Shariah, fiqh, and law. “People will not be governed by a law until it is their own law.”

Given your optimism for civil society in Egypt, can they articulate these principles of Sharia? How important in the world of modern states is the place of the universal declaration of human rights. Is this what we should aspire to rather going back in history to reinvent the wheel.

A state has a monopoly on violence within a border. That violence must be used wisely and within the rule of law. Another issue is that the violence should be at the borders and not in the streets. People must elbow the armies sometimes. There can be a consensus, although some people have a problem with anything called Sharia. Al-azhar is rising above the differences among Islamic opinions. History is about identity.

Argentina and Brazil put the generals on trial and sent them to jail. I’m more tempted to agree that the words ummah and Sharia can have a positive effect and we need a balance between identity and history.

Are we constrained by the existing model to degree that the reforms are unrealistic? Although states evolve, today’s states are more redefined by economics than anything else.

Is Qaradawi’s model more consistent with group or individual rights? How does this inform and be informed by his emphasis on diversity.

It has been said an Islamic state is for everyone and a Muslim state is for Muslims. In archeology you must be careful not to contaminate your samples.

I think the priority for the Arab spring is not redefining the state but dealing with problems left by the previous regime like corruption and militarization.

I feel sorry for the Christian churches here for their low profile in policy debates like immigration and health care. There are some things we never would have thought of were it not for Western dominance. When you were trying to limit hudûd were you limiting yourself to a single category? I think the A HISTORICAL DICTIONARY WAS not needed until now because the Qur’an stabalized the language.

It was said, “Please give us the Sharia because the Sharia says the robber should only have his hand cut and not be crucified.”

The book on migrants speaks about both Muslim minorities and majorities. Qaradawi is a migrant. He has Qatari citizenship but not Egyptian.

Justice is not happening so you MUST reform and it can come only from the principles, not the politics. Pressure is from the unfair reality on the ground. A moratorium on hudûd is the best response you can have until you re-establish justice. The principles could be Western principles. There is an intersection between the European view and the Islamic view. You must be as revolutionary as you can without violence. Reformists without revolution are toothless; what is happening is perfect. Tunisians before were considered insufficiently ikhwâni but now they have more of a hearing, although they are still thought of as too French.

Imad-ad-Dean Ahmad, Ph.D.
Minaret of Freedom Institute
www.minaret.org