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Islam, the Law, and The Sovereignty of God

Monday, June 2, 2008

A central tenet of the Islamist position is that Shari’a (or sometimes the Qur’an and Sunna) can function as a constitution in Islamic states, promoting good and forbidding evil, ensuring, when embodied institutionally, that law is in accord with Muslim precepts. This viewpoint runs counter to post-Enlightenment legal positivism, where constitutional provisions are reduced to procedures and where parliaments, perhaps representing the people, may pass any law that is justified procedurally. I argue that the positivist position is misguided, that valid laws must be both procedurally justified and legitimated in light of constitutional values and where the procedures themselves are legitimate. If this argument is sensible, the Shari’a might well make up a set of substantive values and still be able to constitute constitutional principles. The substantive regulation of legislation does not, in itself, rule out an “Islamic constitution.”

This conclusion is not, however, dispositive of the question of the viability of a constitution rooted in the Shari’a. We have to ask whether there are structural constraints on the type of substantive regulation consistent with a constitutional system. If so, is Shari’a consistent with these structural constraints? To some degree, our answer to these questions depends on our characterization of constitutions and constitutionalism. If we associate the two and suggest that they require the construction of a limited government accountable to the people, we may be limiting “constitutionalism” to a form of governance found in the “West,” and we may preclude, by definition, the possibility of any other form of constitutionalism. This model of a “liberal constitution” appears to be “culture bound.” The regulation of political activities by Shari’a might entail a different form of “constitutionalism” from the one found in the West.

A constitutional regime makes the formulation of new laws that are accepted as procedurally valid both possible and legitimate.

In contrast to arguments for a robust model of liberal constitutionalism, this paper argues for a minimal notion of constitutionalism, one that is not culture bound. Constitutionalism minimally enables the “constitution”/construction of a procedural system where new law is accepted as valid. If the capacity to validate new law is a necessary attribute of a constitutional government, a Shari’a grounded in, even if not always manifesting, the sovereign and unalterable will of God is incapable of fulfilling this universal constitutional task.

Some will criticize even this second argument as presupposing, if only implicitly, the type of liberal constitutionalism found in the modern West. I argue, in contrast, that if we are to label a regime constitutional, the regime must enable a positivist legal system, one where legislation, the formulation of new laws that are accepted as procedurally valid, is both possible and legitimate. While the cultural content of these laws is variable and might well differ in Christian-dominated and Islam-dominated states (or in the umma), the possibility of lawmaking, and not simply law finding, is a universal requisite for a constitutional system. All constitutional regimes constitute mechanisms allowing for reasoned legislation and adjudication, where the procedures regulating them must be legitimate in terms of the legal regime ’s constitutional values and the society’s conscience collective, the society’s civil religion, if they are to justify successfully. 1  Simply, constitutions must legitimate the capacity to create new law in a manner akin to the positivist portrait of legislation.

To make this argument, I distinguish between political legitimation, the subsumption of norms and activities under value commitments, and political justification, where appropriate procedures are followed, where due process is manifest. The latter, justification, is fundamental in the positivist conceptualization of the law and is manifest most clearly in H.L.A. Hart ’s notion that legal duties are constituted through secondary, procedural, rules; any primary rule constituted through the due process application of such secondary, procedural, rules is a valid obligation. For legal positivists, there can be no substantive regulation of legal obligations. Constitutional adjudication is restricted, as in the writings of John Hart Ely and J ürgen Habermas, to ensuring that the appropriate (democratic) procedures are respected. The imposition of substantive regulations, the materialization of the law, is understood to undermine its integrity. 2

Islam’s inherently egalitarian values may allow for its integration into a liberal constitutional regime.

In contrast, I contend that both the value legitimation and the procedural justification of primary rules are necessary for their validation, and this validation is necessary for their stable implementation. Further, not all procedures are capable of justifying outcomes; procedures justify only when they are themselves legitimate in terms of shared values, when they are deemed consistent with those values.

I make my argument in an analysis of the logic of religious commitment in Islam and Christianity. I contend that Islam is rooted in an eschatology that requires adherence to a set of precepts delineated, in the first instance, in the Qur ’an and the Sunna. Islam presumes the affinity of people with God, enabling them to adhere to God’s precepts as revealed by his prophets and, finally, by the last prophet, Muhammad. Christianity, in contrast, is grounded in the notion of original sin, which gives rise to a soteriology of grace. Original sin means that people cannot be saved due to their own efforts; God ’s grace is essential for salvation, which remains uncertain for the individual believer.

Islam constructs an orthopraxy, a set of precepts that each person must follow to be judged favorably at the Day of Judgment; Christianity constructs an orthodoxy grounded in faith, a set of principles that are sometimes used to problematize the precepts that regulate the activities of believers ( “It is written, but I say unto you”). Ultimately, the individual’s commitment to these principles becomes the source of authority in a community of believers. The focus on principles and their construction, in Protestantism, of an institutionalized individualism allows for the integration of Christianity into a civil religion, where moral values transcend particular denominations; the focus on precepts requires the implementation of the rules of a particular denomination.3

I conclude not by speculating on the prospects for a constitutional regime grounded in Islam, but instead on the capacity of Islam to be integrated into a liberal constitutional regime, where the religious precepts of Islam might be generalized within a larger civil religion. Here, I argue, the prospects are brighter that the inherently egalitarian values embedded in Islam may allow for this integration in the United States, where Islam is a minority religion, Muslims are diffused widely throughout society, and Muslims can have no reasonable hope of establishing an Islamic state enforcing Shari’a’s precepts. This is not an argument for Islamic constitutionalism, but for the full inclusion of Muslims within a viable constitutional system.

Constitutionalism and substantive values

In the “west,”  a standard but by no means universally accepted theory of constitutional adjudication argues that its goal is to support the democratic procedures that ground liberal constitutional states. This viewpoint may be explicated conveniently in a discussion of procedural justification (often labeled, erroneously, “legitimation”), which is paradigmatic of the view that constitutions and constitutionalism develop in tandem with, and are the public law manifestations of, formally rational legal procedures.

Max Weber’s discussion4 of “rational-legal legitimation” may be taken as paradigmatic. There laws are treated as “legitimate,” i.e., as justified, when they are the due-process outcome of formally rational procedures. This is a form of “legitimation” through procedures. Here the mechanism of “legitimation” differs completely from the one Weber adopted in his discussion of traditional legitimation, where laws are accepted as legitimate when consistent with traditional values that constitute tradition as sacred. Weber implicitly presumes that as traditional values wane in importance they are replaced by procedures that facilitate innovation, that allow for legislation that articulates new laws that are accepted as obligations.5

Instead of tracing the development of moral value-commitments and at the same time the development of the norms of procedural justification, Weber created a social theory that substitutes the one for the other, substitutes rational-legal procedures for traditional values. Thus, moral obligation appears to give way to procedural rationality, while rational values and non- or irrational procedures take a back place in his analysis. As important, the relationship between justification through procedures and legitimation through values is not analyzed. Consequently, Weber fails to recognize that the structure of legitimating values and justifying norms alters in the social development of societies, as does their interrelationship. Activities must be both legitimate and justified if they are to be accepted as valid and continually and effectively reproduced. If the system is to function smoothly, constitutive procedural norms must themselves be legitimate; if rational-legal procedures are to justify successfully, values must emerge that are compatible with those procedures. These values legitimate the procedures’ capacity to justify.

Why do these analytical distinctions matter? The importance of maintaining the analytical autonomy of legitimation and justification is manifest in the fact that they may be empirically independent. A norm may be justified procedurally while at the same time it may be incompatible with institutionalized societal values. Judicial review embodies this principle, recognizing that procedurally justified outcomes may be constitutionally illegitimate. For example, in procedurally correct ways, Congress could pass and the president could sign a law imprisoning all Muslim-Americans for the duration of the war on terror. Such a law would be unconstitutional, illegitimate, and, we may hope and expect, overturned in the courts.

Crucial for my argument is the recognition that traditional values, which treat tradition as sacred, are incompatible (at least in the long run) with rational-legal procedures that facilitate discussion and allow for innovation in the formulation of primary rules. Constitutional orders allow for innovations that may be explicitly contrary to tradition; such innovations must be legitimated by values that are both rational and, since, in such procedures innovations are often justified by majority rule of all participants (citizens), universalistic.

I will return to these issues later in a discussion of the capacity of Islamic religious commitments to legitimate a procedurally rational governmental system. First, I characterize briefly the logic of religious commitment in Islam and Christianity.

Religious commitment in Islam and Christianity

Islam is a multifarious religious tradition. Here I focus on the dominant Sunni tradition. I do not deal with variations in that tradition in the many social and cultural circumstances where it has been and is found. 6 I characterize the logic of religious commitments, the obligations that motivate and legitimate activities, not religious dogma.

Eschatology and soteriology. While soteriology, the theology of salvation, is of paramount importance in Christianity, eschatology, the theology of the last judgment, is of primary significance in Islam. Christians believe in original sin. No Christian, on her own, has the capacity to be saved. God sacrificed his Son to enable salvation; people are saved, or not, through God ’s grace.

In Islam, humans are created with a sound nature, a natural understanding of their obligations to God. They are, however, forgetful and subject to Satan ’s temptations. God’s messengers, and most especially his last and final messenger, Muhammad, remind them of their obligations. Thus God has informed believers how they must act to be saved. God has requested nothing that believers cannot do. If they follow his commandments, on the Day of Judgment God will judge them fairly, weighing the good against the bad, including them among the saved.

These rules are not easy to follow, but Muslims believe that God does not want to create hardship and asks nothing that cannot be accomplished by men and women endowed with a sound constitution, a fitra, which guides each person to God. Unlike in Christianity, where original sin precludes salvation without God ’s grace, here each person’s nature enables her to act in ways that merit God’s grace.

The concern with one’s eternal fate is as manifest in Islam as in Christianity, but its manifestation is different. The Early Meccan suras, those learned first by most Muslims, focus on the Day of Judgment, on God ’s judgment of people in light of his commandments (which are codified in the later suras to be revealed, in the Hadith and in the Shari’a). God is merciful, but believers are told to fear his wrath if they fail to conform to the duties he has revealed for them; thus Muslims are highly motivated to fulfill God ’s commandments, knowing that at the Last Judgment, “Whoever does an atom’s weight of good will see it, and whoever does an atom’s weight of evil will see it also” ( q 99, 8–9). The structure of their religious commitment is embedded in this eschatology. In Christianity, in contrast, a soteriology of grace is enunciated which requires deeds but which centers more concretely in faith. The incarnation of God in Jesus, not in a text articulating a set of rules and regulations, embodies men ’s hopes even as it increases their uncertainty.

Principles and precepts. One consequence of the differential emphasis on a soteriology of grace versus an eschatology of works is that Christianity emphasizes principles, while Islam stresses rules. Christianity evokes a set of values that regulate actions but often does not specify them in legal detail. In Christianity, rules are, in turn, subject to discussion and re-evaluation. 7 In contrast, Islam functions more in terms of precepts, which are, for most Muslims, not subject to lay interpretation, while for some the interpretation stopped over a thousand years ago. For almost all Muslims, the interpretive process stops at the point of revelation. While principles can be found in the Qur ’an and the Hadith, more often than not, in those texts norms are manifest in legalistic regulations, e.g., social justice in the giving of charity. Traditionally these precepts have not been generalized into principles.

The conviction that became dominant in Islam, to put it very simply, was that whatever God commanded was just; this — and this was Pope Benedict’s central point in his recent remarks at the University of Regensburg8— is very different from the contention that God commands what is just. “[T]hings,” according to the Islamic tradition, “are neither good nor bad in themselves[;] theybecome so by Divine declaration” (Rahman, Islamic Methodology, 156). As Khaled Abou El Fadl puts it, in Islam, Divine law defines justice as adherence to a set of precepts; “The Divine law provides particularized positive enactments that exemplify, but do not analytically explore, the notion of justice. ”9

While Shari’a is much broader than “law,” it is codified in legal terms. While law always embodies both rules and principles, the Shari’a emphasizes rules and is articulated within an interpretive framework deeply suspicious of innovations that might be legitimated through the evocation of principles.

Constitutionalism and legitimation

Frederick denny writes: “Islamic orthopraxy has always emphasized law over theology, the consequences of actions over the merely theoretical dimensions of intellect. Intellect is essential, but it should be cultivated only in the service of ‘enjoining the right and prohibiting the wrong.’ Learning beyond the practical needs of the faith has very often been suspect among Muslims. ”10 This contention is similar to Qutb’s view, but he does not downplay the importance of reason; instead he limits its effect: “In the context of rabaniyah [the principle of lordship] — and its historical outcome of revelation — Qutb elaborates on his understanding of reason as a human faculty par excellence which is endowed with a unique mission: spreading and abetting the divine revelation. Notwithstanding this unique role, reason is limited and is, thus, unable, in Qutb ’s view, to provide eternal foundations for the human and religious quest. Although man can transcend the universe with his mind and spirituality, ‘he is limited in his function — that of viceregency [sic] whose purpose is to realize the servitude of man to God. ’ In other words, man cannot play the role of God. Revelation must be his guide in the complexity of life. ” 11 As we have seen, revelation takes the form of precepts to be followed; to legislate would be to usurp God ’s role.

Rahman believes a principle extracted from the specifics of the Qur’an can generate a meaningful rule in a contemporary situation.

Rahman argues that principles that might be specified innovatively as situations change may be generalized from the precepts enunciated in the Qur ’an, but that this process has never been dominant in Muslim exegesis. He presumes the eternal validity of the Qur ’an and thus takes for granted that a principle extracted from the specifics of the Qur ’an can be applied to generate a meaningful rule in a contemporary situation. Following Gadamer, he articulates a mode of interpretation, “ ijtihad, which means ‘the effort to understand the meaning of a relevant text or precedent in the past, containing a rule, and to alter that rule by extending or restricting or otherwise modifying it in such a manner that the new situation can be subsumed under it by a new solution. ’ This definition itself implies that a text or precedent can be generalized as a principle and that the principle can then be formulated as a new rule. ”12 Within this interpretive method, “the process of questioning and changing a tradition — in the interests of preserving or restoring its normative quality in the case of its normative elements — can continue indefinitely and that there is no fixed or privileged point at which the predetermining effective history is immune from such questioning and then being consciously confirmed or consciously changed. This is what is required for an adequate hermeneutical method of the Qur’an” (11).

I have quoted Rahman at such length to make the point that believing Muslims might extract out of the Qur ’an a set of more general principles maintaining fidelity to the revelation, but it is crucial to understand that this is not the strategy that has been adopted generally. 13 “Indeed, they [Qur’anic commentators] enunciated the principle that ‘although an injunction might have been occasioned by a certain situation, it is nevertheless universal in its general application. ’ This principle is sound enough provided it means by an ‘injunction’ the value underlying that injunction and not merely its literal wording. But the value can be yielded only by understanding well not only the language, but above all the situational context of a given injunction. This, however, was generally not done ” ( Islam and Modernity, 17).14 Rahman goes on to contend, “Once an absolutely normative revealed document like the Qur’an became established . . . given the habit of adherence to set patterns, the Arabs were naturally loath to deviate from its literal meaning ” (Islam and Modernity, 18) Even recognizing the many variations on this common theme, Rahman’s comment need not be restricted in its applicability to “the Arabs.” The problem was not “habit”; it was religious conviction, the obligation to adhere to divine precepts, as manifest not only in the Qur ’an, but in the Hadith as well.

The concern with one’s eternal fate is as manifest in Islam as in Christianity, but its manifestation is different.

Put somewhat differently, the Qur’an “does not in fact give many general principles: for the most part it gives solutions to and rulings upon specific and concrete historical issues; but, as I have said, it provides, either explicitly or implicitly, the rationales behind these solutions and rulings, from which one can deduce general principles. In fact, this is the only sure way to obtain the real truth about the Qur’anic teaching. One must generalize on the basis of Qur’anic treatment of actual cases” (20). To move from “the concrete case treatments in the Qur’an . . . to the general principles upon which the entire teaching converges,” principles of socioeconomic justice and essential human egalitarianism, requires seeing the Qur ’an as a unity, “that is, as a set of coherent principles or values where the total teaching will converge. . . . ” This, Rahman suggests, “might appear shocking to many Muslims who have been for centuries habituated to think of the laws of the Qur ’an in a discrete, atomistic, and totally unintegrated manner (even though the Qur ’an loudly proclaims that it is a highly integrated and cohesive body of teaching) ” ( 20; some italics have been dropped).

Constitutional interpretation. Rahman never quite suggests that if principles are generalized from the Qur’an, these principles may function autonomously and may warrant challenges to the precepts enunciated within the Qur ’an. It would be hard for him to make this contention, because for him “the Qur’an is revealed in its entirety” (20). It is, however, a conclusion we would have to draw to suggest that they might give rise to constitutional values. 15

In contrast, we may take Ronald Dworkin as exemplary of constitutional jurisprudence. 16 Dworkin’s jurisprudence is best understood as an attempt to justify his contention that the Supreme Court ’s 1954 decision in Brown v. Board of Education declared what was law instead of articulating new law. If past Supreme Court decisions indicated that “separate, but equal” segregation of the races was “legal,” in what sense may Dworkin argue that the Brown decision declared that the “law,” properly understood, barred segregated schooling? Dworkin contends that courts interpret the Constitution, statutes, and past court decisions constructively; courts “show legal practice as a whole in its best light, to achieve equilibrium between legal practice as they find it and the best justification of that practice. ”17 Courts extract from past legal practices the principles, the legal obligations, which make them coherent and, at the same time, provide the best legitimation for them. Rights and responsibilities flow from past decisions; they count as legal not only when they are stated explicitly in those decisions, but also when they follow from principles of morality that the decisions presuppose by way of legitimation ( 96). Such interpretative arguments, when applied to the equal protection clause of the Fourteenth Amendment, lead Dworkin to the conclusion that the Constitution as a matter of law prohibits racial segregation ( 30); thus, the Warren Court, in adjudicating Brown, simply declared the law because the decision was embodied in accepted constitutional principles, even if Plessy v. Ferguson had misapplied them.

There are several important contentions implicit in this argument. First, it partially constitutes the law in terms of legal values 18 while at the same time contending that those values legitimate the law. Dworkin’s jurisprudence integrates a descriptive with a normative argument. Second, policies, questions of social welfare, are trumped by the legal principles that fabricate legal rights; policies have no legitimating force. 19  Third, Dworkin’s argument depends on an interpretation that makes the law a coherent whole. As such, his understanding may read out of the law cases and statutes that are inconsistent with the principles that make the law the best that it can be. Mistakes, according to Dworkin, do happen; we must recognize them for what they are, errors in judgment that have no legal force. Fourth, Dworkin presumes that the moral values that evaluate when the law is the best it can be are implicit in the law of the United States and the United Kingdom. The tension that others find between what is and what ought to be is largely absent in Dworkin ’s discussions.

Constitutional states must be understood in light of the principles that (partially) constitute the law.

The crucial points for my argument in this paper are the following: Constitutional states must be understood in light of the principles that (partially) constitute the law. Principles do not fade with modernity; instead, certain principles emerge and characterize modern constitutional states. Dworkin characterizes these principles as egalitarian. Contrary to what Dworkin sometimes suggests, such principles are not contradictory to the secondary rules that H.L.A. Hart analyzes. Instead, secondary rules capable of justifying constituted rules, primary rules, must be consistent with, legitimated by, the principles dominant in the legal system. While Dworkin sees these principles as embedded in the legal tradition of the United States and Great Britain, we must recognize that these principles themselves might be challenged; in many contemporary legal fields they are today being reconstructed as equitable values. Here it is not crucial to explicate this argument; what matters is that while precepts may be challenged by principles, it is also true that the principles themselves might be transcended.

In contrast to the picture Rahman has painted for us of historical Islam, where precepts grasped atomistically are embedded in sacred texts and where interpretation must stop at the doorstep of revelation, in Dworkin primary rules may be transformed when in conflict with dominant principles; for Dworkin, the dominant principles enable legislation. In contrast to the Muslim worry about bid’a, innovation, within a constitutional state, the very notion of legislation implies the creation of never previously thought-of rules that are, nonetheless, valid; they are valid when justified through the implementation of legitimate procedures and when the rules themselves are legitimate, when they are consistent with the dominant legal principles.

Insofar as an “Islamic constitutionalism” is understood as the implementation of Shari’a, understood as a set of divinely revealed precepts, it is not constitutionalism in any meaningful sense of the term. This judgment is not a restriction of “constitutionalism” to its liberal variant; instead it is a recognition that constitutionalism emerges with the capacity to legislate new rules when, in McIlwain ’s sense, “Parliament” ceases to be “a high court,” finding law in precepts that are sacred traditionally, and instead becomes a truly legislative body. 20

Correlative with this conclusion is the recognition that in modern constitutional states, the principles that regulate legislation have most often been universalistic and egalitarian, enunciating, if only over time, the conviction that the warrant for new laws stems from the people — and that the people must be understood universally within the state. 21 It is, of course, correct that the implementation of these principles has been slow in coming and, arguably, has not been manifest completely in any constitutional state. Even so, the nature of the principles, which ultimately place sovereignty in the hands of the people and indicate that law is justified in terms of the will of the people, is in direct contradiction to a notion of the sovereignty of God. In the latter case, what God is understood to will (for Muslims, Shari’a, understood as an expression of the Qur’an and Sunna) must be specified to the concrete situation and implemented. Any other form of government is the subjugation of men to men and not to God, “an imposition upon God of what a certain number of men regard as truth and justice ” (see fn. 11). In a constitutional state, what is may be problematized in light of the will of the people and new rules are valid if procedurally justified and substantively legitimate. These two notions are in fundamental contradiction. One of them, the constitutional, facilitates positive, new law; the other, the Islamic, prohibits it.

In the final section of this paper, I suggest that the absorption of Muslim communities into liberal democracies may facilitate the transformation of Islamic norms into principles consistent with constitutionalism. This would not result in an Islamic state, but it would entail a revivified civil religion as the source of constitutional principles, as civil religion in the United States is reconstructed owing to the contributions of Muslims and Islam.

Civil religion

Christianity, because it is rooted in principles, has facilitated the development of civil religions that generalize and transform denominational precepts and encompass diverse religious traditions. Islam, which was more tolerant than Christianity for much of its history, created a space for other religions only within the context of the implementation of the precepts constitutive of Shari’a; this place entailed second-class citizenship for non-Muslim peoples of the book and thus is unacceptable in the contemporary world. The question I pose here is whether it is possible for Islam to be incorporated into a civil religion that transcends denominational conviction. I will not, in this context, attempt to answer this question by specifying the conditions in which this incorporation might take place; 22 instead, harkening back to aspects of Rahman’s argument, I will suggest simply that the resources for this incorporation might be found in the Islamic tradition and that this incorporation is a prerequisite for the full inclusion of Muslims in the United States.

The themes of equality of believers and social justice are omnipresent in the writings of those favoring an Islamic state.

The themes of equality of believers and social justice are omnipresent in the writings of those favoring an Islamic state. Qutb, for example, explains that Islam is an ideological religion, that all of those who share the religious commitments that constitute Islam are equal in the eyes of God. A fundamental notion in Islam is each individual ’s responsibility for her own salvation; at the Day of Judgment, each person stands alone before God to be judged in light of her deeds. These notions imply the sanctity of all believers.

The universalism manifest in traditional Islam is the availability of belief to all persons. 23 Traditionally, equality has been accorded only to believers, with others occupying positions in Muslim societies that denied them full inclusion. Here universalism is present, but only for those incorporated into the particular group. Particularism was primary, while universalism was subordinate to it, meaningful only for members of the umma, the Muslim community.

In contrast, in Christianity, the universalistic creed that is embedded not only in contemporary notions of human rights, but also in notions of citizenship, emerged alongside a set of (or better, sets of) particular commitments. The universal was generalized out of the particular, while for many the particular was left in place. Here universalism is primary; particular groups are included within a set of universal values. 24 

The question, then, is whether the generalization of Islamic principles of which Rahman speaks, without specifying them in any detail, can come to encompass all persons who share a set of fundamental values, even when they reject the specific concrete beliefs that identify people as Muslim. This requires a Muslim form of double consciousness.

I use the term “double consciousness” intentionally.25 In the United States, some of us learned from the Black Power Movement that particular and universalistic convictions and/or identities were not contradictory. One could take pride in being black and in being “American.” Being a black American, an African-American, did not mean melting into a homogeneous body; universalistic values, more general than particular ethnic or religious convictions, enabled people to maintain and develop particular, different, ethnic or religious identities. But this was possible only when no group sought (successfully) to impose its particular convictions on others. 26

Analogously, we may argue that one can retain an Islamic religious identity and be part of a universal community, where the more general values emerge from particular convictions. This is the process Rahman describes, but here the more general values must transcend Islam itself. With the incorporation of Islam into a universal civil religion, it will contribute to a reconfiguration of the more general values.

Of course, the reconciliation of particular and universal convictions is not transparent even if we exclude Muslims. The process of inclusion for Muslims within U.S. civil religion will not be easy. It will be impossible if Muslims are unable to incorporate themselves into a set of social values that is more general than the particular denominational values of their creed. It is to be hoped that Muslims, in situations where they have no hope of imposing an Islamic state and “constitution,” may be both desirous and capable of embracing the double consciousness that allows them to derive the particular benefits of living in societies regulated by values mandating universal inclusion.

If so, one aspect of this development will entail the ideological recognition of the division between religion and society. Muslims, like other believers, will have the ability to act on their religious convictions (insofar as they are consistent with the society ’s civil religion) in the sphere of civil society, but they will not be able to impose them in the state. If God retains his sovereignty, it must be in a public sphere constituted by believers, not in the public sphere regulated by state action. The part of the double consciousness that regulates state action must allow for the sovereignty of the people, which is to say, for the legislation of new laws, and sometimes for laws that contradict precepts embedded in Shari’a, if not the principles of civil religion. Perhaps this is not too much to expect in a situation where Muslims can only expect, as they fully deserve, full inclusion into their home societies. 27

In conclusion, there is hope that Muslims in the West will work towards the generalization of their religious precepts into more universal moral principles, principles capable of problematizing certain of the precepts commonly understood to be part of Shari’a. Muslims living in the United States can have no realistic hope of establishing an Islamic state to rule the majority of the population. Even if they were able to do so, the notion of “Islamic constitutionalism,” where God is sovereign, is an oxymoron. Constitutional systems allow for the regulation of legislation by shared principles, but they must allow for legislation, new law, to be valid when procedurally justified and when legitimated by the principles shared within a society. Where Muslims cannot expect to enforce Shari’a they will, hopefully, work to accommodate Islam to the civil religion we find, for example, in the United States. In this civil religion, moral precepts from many denominations are found, but they are abstracted from the denominational precepts that may be in force for believers, precepts that are not enforced politically. The resources for such an accommodation can be found in Islam, in its concern for equality and social justice. If this accommodation occurs in the United States, perhaps it will have an effect on the larger umma, spurring an understanding of Islam that will enable its development in a way to facilitate the construction of viable constitutional states in Muslim majority countries.

1 We might further contend, although I do not discuss this question here, that the constitutional principles must themselves be capable of revision, even if that process is usually laborious and cumbersome.

  For the notion of “civil religion,” see Robert N. Bellah, “Civil Religion in America,” reprinted in his Beyond Belief: Essays on Religion in a Post-Traditional World (Harper & Row, 1970).

2  H.L.A. Hart, The Concept of Law (Oxford University Press, 1997 [1961]); John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (Harvard University Press, 1980); Jürgen Habermas. Between Facts and Values: Contributions to a Discourse Theory of Law and Democracy , trans. by William Rehg (mit Press, 1996 [1992]). On Habermas, see my “Law and Philosophy: Some Consequences For the Law Deriving From the Sociological Reconstruction of Philosophical Theory, ” Cardozo Law Review17: 4–5 (1996).

3 This characterization is more apposite to ascetic Protestantism than it is to Catholicism, which is closer to Islam in these respects. Even so, while the emphasis in Catholicism has often been on the rules laid down by the institutional Church, its focus on Jesus as redeemer in contrast to an emphasis on the law allows for the same development.

4  Max Weber, Economy and Society(Bedminster Press, 1968 [1926]), Chapters 1 and 3.

5 The most important discussion is Niklas Luhmann’s Legitimation durch Verfahren (Frankfurt: Suhrkamp, 1983 [1969]); there is also a relevant discussion, in English, in his A Sociological Theory of Law, trans. by Elizabeth King and Martin Albrow (London: Routledge & Kegan Paul, 1985 [1972]). Cf. my “Legitimation and Justification: The Logic of Moral and Contractual Solidarity in Weber and Durkheim, ” Current Perspectives in Social Theory 13 (1993).

6  The discussion that follows in this and the following section draws on Mark Gould, “Understanding Jihad,” Policy Review129 (February/March 2005). A more comprehensive analysis is found in the earlier paper.

7 This is true of what we may label “post-Enlightenment” Christianity. In the contemporary period, however, forms of fundamentalist and Evangelical Christianity are growing more rapidly in most parts of the world than are Christianity ’s “post-Enlightenment” forms.

  Fazlur Rahman presents a picture of Islam moving from a more to a less enlightened status. He contends that a living Sunna, “a progressive interpretation and formulation of the Prophetic Sunnah,” which allowed early Muslims “to derive norms from it for . . . [themselves] through an adequate ethical theory and its legal embodiment, ” solidified into a codified set of Hadith that enunciated precepts taken as valid at all times and in all places. Fazlur Rahman (Rehman on the cover), Islamic Methodology in History (New Delhi: Adam Publishers, 2005 [1965]), 80 and passim.

8   See my “Religion Within Reason: Pope Benedict’s Critique of Islam,” Policy Review146 (December 2007/January 2008). The revised version of the pope’s remarks, complete with footnotes, is available at: http://www.vatican.va/holy_father/benedict_xvi/speeches/ 2006/september/documents/hf_ben-xvi_spe_20060912_university-regensburg_en.html (accessed May 15, 2008).

9  Khaled Abou El Fadl, “Constitutionalism and the Islamic Sunni Legacy,” UCLA Journal of Islamic and Near Eastern Law, 1 (2001); “Islam and the Challenge of Democratic Commitment,” Fordham International Law Journal,  27 (2003).

10  Frederick M. Denny, Islam and the Muslim Community (Waveland, 1987), 68.

11  Ibrahim M. Abu-Rabi, Intellectual Origins of Islamic Resurgence in the Modern Arab World (State University of New York Press, 1996), 149. Cf. Rahman’s comment: “Besides, the Mu’tazilah rationalism appeared to the religious-minded [the orthodox — M.G.] to be a form of gross humanism, an imposition upon God of what a certain number of men regard as truth and justice ” (Islamic Methodology, 62).

12  Fazlur Rahman, Islam and Modernity: Transformation of an Intellectual Tradition (University of Chicago Press,1994 [1980]), 8. Ijtihad, of course, precedes Gadamer by over a millennium; it is Rahman’s understanding of ijtihad that is indebted to Gadamer.

13  For my characterization of an exception, see the discussion in “Kemal A. Faruki: An Islamist, a Modernist,” Muslim World, forthcoming.

14  Rahman also comments as follows: “[E]arly schools sometimes went too far in using this freedom [ijtihad]. For this reason in the late eighth century C.E. al-Shafi’i successfully fought for the general acceptance of ‘traditions from the Prophet’ as a basis for interpretation instead of ijtihad or qiyas. Yet the real solution lay only in understanding the Qur ’anic injunctions strictly in their context and background and trying to extrapolate the principles or values that lay behind the injunctions of the Qur ’an and the Prophetic Sunna. But this line was never developed systematically, at least by Muslim jurists ” ( Islam and Modernity, 18). See, more generally, his Islamic Methodology.

15  Rahman does suggest the necessity of problematizing conventional understandings of Hadith. See Islamic Methodology.

16 It is, of course, true that Dworkin represents one position among many, and, I have argued elsewhere, a position that is problematic in many respects. Even so, in this brief discussion, I will use him to make certain points that I take to be exemplary of constitutional adjudication.

17  Ronald Dworkin, Law’s Empire (Harvard University Press, 1986), 90.

18 Social values define what is morally obligatory and desirable for a system as a whole and, ideally, for all of its members, not what is desired, preferred, by individuals.

19  A partial exception is found when courts interpret statutes.

20  Charles Howard McIlwain, The High Court of Parliament and Its Supremacy (Yale University Press, 1910).

21  For the institutional origins of this understanding in the English Revolutions of the Seventeenth Century, see my Revolution in the Development of Capitalism(University of California Press, 1987).

22 See my “Kemal A. Faruki: An Islamist, a Modernist,” Muslim World, where I argue that Faruki provides the rudiments of a characterization of Islam that would facilitate this incorporation.

23 In this context, we may ignore the Arab particularism that infects some forms of Islam.

24 Christianity is also universalistic in the sense that all who accept Jesus as their savior may become Christians. Significant here, however, is its role in the constitution of universal values that transcend any particular denomination and the capacity of multiple Christian and non-Christian denominations to live reciprocally under those shared values.

25  While I am, of course, taking the term “double consciousness” from W.E.B. Du Bois, I use it in a different sense. As Mahmoud Sadri pointed out in his commentary at the American Sociological Association Annual Meeting where an earlier version of this paper was delivered, Du Bois was at best ambivalent about this notion. Du Bois wrote, “It is a peculiar sensation, this double-consciousness, this sense of always looking at one ’s self through the eyes of others, of measuring one’s soul by the tape of a world that looks on in amused contempt and pity. One ever feels his two-ness, — an American, a Negro; two souls, two thoughts, two unreconciled strivings; two warring ideals in one dark body, whose dogged strength alone keeps it from being torn asunder. ” W.E.B. Du Bois, The Souls of Black Folk (A.C. McClurg & Co. 1903), available at http://www.bartleby.com/114/1.html (accessed May 18, 2008). In contrast, I characterize “double consciousness” without this ambivalence, as the positive affirmation of both one’s own creed and the more general set of principles, a civil religion, that might be generalized from one ’s own and from other creeds, one identity that is particular and one that is universal, each compatible with the other. At the same time, I recognize, as a number of African-American and Muslim friends have commented to me, currently this ambivalence is often present phenomenologically for both Muslims and African-Americans. ”

26 I do not discuss Europe in this paper because the social conditions for the full inclusion of Muslims, their dispersion across class and status lines, and the tradition of “hyphenated Americans,” a double consciousness without Du Bois’s negative connotations, are absent. Thus the question of the possibility of inclusion is both different and more difficult.

27  I discuss this process of inclusion a bit more thoroughly in my “Double Consciousness: Full Inclusion for the Muslim American!” Islamica Magazine, forthcoming.

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