Interview With David Forte, a Vatican Consultor and Bush Adviser
CLEVELAND, Ohio, 9 MARCH 2005 (ZENIT)A pressing question on the
international scene is whether Islamic societies can embrace democratic
governance and political self-determination after centuries of
autocratic rule.
The elections in Iraq and Afghanistan, as well as the popular movements
in Iran and Lebanon, have made this question increasingly relevant.
David Forte, a consultor to the Pontifical Council for the Family and an
adviser to President George Bush on Islamic affairs, shared with ZENIT
why he believes there are facets of Islamic law that are hospitable to
the development of free societies.
Forte is a law professor at Cleveland-Marshall College of Law at
Cleveland State University and author of "Studies in Islamic Law:
Classical and Contemporary Application" (Austin & Winfield).
Q: What is Islamic law? What are its sources?
Forte: Taken as a whole, Islamic law comprehends the entire spectrum of
authoritative rules that guide various Islamic communities. That law
includes not only the classical Shariah, the holy law of Islam, but
state enactments, advisory opinions
or "fatwas"
custom and tribal norms.
More particularly, however, Islamic law is usually taken to refer to the
content and the methods of the Shariah, the developed code of laws that
arose in different parts of the Islamic empire.
There are variations in the particularities of the Shariah, both between
and within the two main divisions of Islam
Sunni and Shiite
but there are far more similarities than differences. Within Sunni
Islam, there are four surviving traditions, or schools, of law: Hanafi,
Maliki, Shafi'i and Hanbali.
There is great dispute among both Western and Islamic scholars over how
the Shariah actually developed.
After the legal tradition matured and bested most of its competitors
within Islam to be one of the dominant voices of the religion, their
writers told the story of the development of the Shariah in a version
that virtually no scholar believes is true, either in general or in many
of its details, although many fundamentalist Muslims still adhere to
this classical version of the development of the Shariah.
According to the classical view, the fundamental sources of the Shariah
are divine in origin. The law provides the vehicle for transmitting the
message heard by Mohammed to present-day believers in their daily lives.
The Shariah comprehends all rules textually derived or analytically
deduced from divine legislation that regulates the Muslim and his
community.
Of the four main sources of the Shariah
the Koran; the Sunna, the practice of the Prophet; "ijma," consensus of
the community; and "qiyas," analogical deduction
the Koran and the Sunna provide the fundamental basis for the commands
of the Shariah.
The Koran and the Sunna are the twin cornerstones upon which the whole
edifice of the Shariah is constructed. Together, "qiyas" and "ijma"
produce the bulk of the actual positive rules of law, but both
techniques may only be based on the commands of the Koran or the Sunna
and cannot produce regulations in contradiction to those two sources.
Nonetheless, even within the classical tradition of Islam, the
provisions of the Koran can be interpreted in divergent ways, and the
particular traditions ascribed to Mohammed's actions are validated by
human science, not by divine command. Thousands of purported traditions
were in fact rejected by early Muslim scholars as invalid.
Some legal scholars think that the remaining traditions were validated
by the method of "ijma," consensus, but there is great dispute among
Muslim scholars as to what properly constitutes a consensus. Thus, if
modern methods of investigation show that some of the ascribed
traditions are forgeries or apocryphal, then a Muslim might be justified
in not ascribing authority to them.
Most recent scholarship has contested the classical version of the
development of Islamic law, but there is wide and vigorous debate among
scholars as to what actually happened.
Many scholars believe that the law did not develop as neatly as the
classical version avers, but instead in a much more complex and nuanced
way, absorbing into its corpus rules and principles drawn from
pre-Islamic Arabia, the legal traditions of the Byzantine and Sassanid
empires, and the political and financial decrees of the various caliphs.
Nonetheless, it is fair to characterize the debate among Islam law
scholars as intense, and in which most of the alternative theories are
themselves hotly disputed.
Q: What elements in Islamic law are particularly compatible with
democratic government? What elements are hostile?
Forte: Let me answer the question more broadly and speak to what
elements in the Islamic tradition are or are not compatible with
democratic government.
The "umma," or people of the faith, is a fundamental principle within
Islam. All believers are equal, and thus legal or political
discriminations among them are improper.
The "shura," or consultation, refers to the covenant made between the
caliph and the elders of the Muslim community in which there is a
confirmatory "election" of the caliph who agrees to rule for the benefit
of the community.
Free enterprise has always been a hallmark of Islamic law and Muslim
economies.
Contrary to the opinion of some Muslim fundamentalists, the state in
Islam has always had a legitimate independence from the Shariah. The
state could constitutionally remove the religious judges, the "qadis,"
from certain jurisdictions, such as criminal jurisdiction, and
substitute state courts instead. A mixed regime of religious law and
state law has always been the norm in Islam.
There is also the tradition of the independence of states. Islam has
never been truly unified politically. In fact, it was the most divided
politically during its greatest era, from about 800 to 1000 AD.
Pluralism and a multiplicity of political regimes not only is present in
the history of Islam, it seems the key ingredient to Islam's
flourishing.
The rigorous application of Islamic law will stand in the way of a full
democracy, however, if it becomes the strict legal norm of the state.
Under classical Islamic law, the inequality of women, non-Muslims, and
slaves is accepted.
There is also a great deal of tribal values in the Middle East, and
tribalism, linked to religion, is a difficult force to contend with.
Further, the economic structure has to be made more honest,
market-oriented and transparent.
There is also a tradition of intolerance that decades of propaganda has
instilled. Finally, there is the memory of the Ottoman Empire, in which
Islam was territorial and strong. Many Muslims see that as the identity
of Islam over its spiritual content.
Q: Some scholars argue that democracy requires a particular cultural
framework to survive and thrive that respects both freedom and the rule
of law. Does Islamic law help foster this necessary foundation?
Forte: Islamic law was very advanced for its era in the area of
partnership law, property law, inheritance and, to some extent,
procedure, but unless it is reformed, the old structures of Islamic law
will be a barrier to the full emergence of democracy.
Q: Some natural-law thinkers have made the point that freedom is a
desire that is shared by all persons, irrespective of culture. How would
you respond to that claim in regard to Muslim societies in particular?
Forte: It is likely true. The vast majority of Muslims today live in
free or partly free countries. The experience of the Iraqi election
seems to have shown how fundamental it is to the human person to be in
charge of his individual destiny.
Q: How does Islamic law understand the concept of sovereignty? In
particular, in democracies the people are sovereign. How can Islam
navigate this tension when it declares that Allah is sovereign over all?
Wouldn't the notion of a sovereign people or state offend Muslim
sensibilities?
Forte: Not to the historical Muslim. But the fundamentalist Muslim may
wish Islamic law to be superior over the state.
The real danger is from the radicals who have married a politicized
Islam to the modern idea of the sovereign state to create a totalitarian
version of Islam at odds with Islamic tradition
even in authoritarian states
and with Islamic spirituality.
Q: Does democracy require secularism? If not, how will the rights of
minorities and minority religious groups be protected in Islamic
democracies?
Forte: Democracy requires a primarily secular state, even if it is
formally aligned with a religion. Democracy, however, does not require
secularism, which is itself a form of ideology. Democracy may be more
brittle in a secularist state, as opposed to a secular state.
Above all, democracy needs to be seen to be in harmony with underlying
religious values. Protestant Christianity allied with the American
Revolution; Shintoism, through the emperor, was allied with Japanese
democracy; and Catholic Christianity was the force behind Western
European democracy after World War II. That is why the United States
very much needs
and thus far has been obtaining the support
of al-Sistani, the spiritual leader of the Shiites in Iraq.
Q: Is democracy the form of government that Muslim nations should
pursue, or is it a republican form of government? Is there a real
difference?
Forte: While we have been speaking of "democracy," a "republican" form
of government is the better alternative, for it allows for
representation by region and group and is thus a better hedge against
the totalitarian designs of the radicals.
Q: Can democracy be imported to Muslim societies, or must it grow from
within?
Forte: Democracy can only be offered. To "impose" democracy is a
contradiction in terms.
Q: What does the experience of non-Middle Eastern Muslim nations such as
Malaysia and Indonesia tell us about the relationship between Islamic
law and democracy?
Forte: It tells us that an Islam unwedded to the structures of the
Shariah and more attuned to the spiritual strain of Islam
specifically Sufism
is a more hospitable milieu for the development of democracy. ZE05030923 |
