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On constitutions, Sharia and Muslim political thought

Islam's calling is an ethical and moral one - not a search for codifying permanent power for Muslims.

Last updated: 31 Jan 2014 07:57
Hatem Bazian

Dr Hatem Bazian is co-editor and founder of the Islamophobia Studies Journal and director of the Islamophobia Research and Documentation Project, and a senior lecturer in the Departments of Near Eastern and Ethnic Studies at Berkeley.
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The Medina Charter gave rise to the concept of one Ummah [AP]

In the Arab Spring's aftermath, and the catastrophic divisions and violence in Egypt, Libya and Tunisia - not to forget ongoing debates in almost every Muslim majority country concerning citizenship, rights, responsibilities of citizens and the constitutional contestations in the modern nation state - Muslim political parties across the region are facing textual, interpretational and conceptual challenges.  

While public debates on TV and in the press across the region have simplistically focused on what aspects of Islamic law to be included, and whether the overarching objectives of Islamic Law should be the guiding principle, or to incorporate as many particulars as politically possible, if one has the power; the real challenge centres on the conceptualisation of a nation-state and how to constitute an inclusive polity

The larger debate in Muslim majority states with diverse religious and ethnic communities centres on defining the nature of citizenship. Who is a citizen, what rights do they have and what are the responsibilities of each in the modern nation-state? More critical at this juncture is whether a modern Islamic nation-state could be constituted with different classes of citizenship that are accorded unequal rights based on religious difference?

Finally, what is the nature of the constitution to be adopted and should "classical" Muslim state conceptualisation serve a prescriptive or descriptive role in this emerging period? While not forgetting or dismissing the problematic and constantly interventionist role played by external forces, the questions above set at the heart of the debates and contestations between various political forces in the modern Arab and Muslim worlds, and real and substantive answers must be developed to resolve these ticking political time bombs.

The challenge, in reality, is not in locating the past but how to understand it, how to extract the kernels of wisdom and build upon it for the future without instrumentalising it as the only source of legitimacy to extract power at the expense of others in the society.

Look to the past?

Muslim majority states, be it individually or collectively, cite classical and some late 18th and early 19th century sources to locate authority for the existing modern nation-state structure but this utilisation of earlier text has only managed to complicate the effort.  

We find the utilisation of sources, covering the full spectrum from monarchy to secular nationalist states, all locate their raison d'etre in "revelation and definitive texts" and the interpretations thereof. If the classical sources are any guide on this issue, they point to one fact that the constitutive elements of the state and political membership therein are all ijtihadi in nature, thus the actual structure, division of powers and responsibilities are subject to the determination of the community and its designated leadership at any given period.

Even though differences of opinion exist in the classical period and numerous interpretations are found in the sources, nevertheless we can assert that the presence of these, collectively point to a lack of definitive texts as to the actual structure, delegation of powers and the role of the population in it.

More importantly, when we examine the existing sources we arrive not at a revealed text per se but a negotiated and evolving set of rights and connected to it, a set of responsibilities for all those agreeing to membership in classical Muslim society and its foundational articles.  

An often cited text and deemed authoritative is the Medina Charter, which modern Muslim nation-state discourses have labelled as the "Constitution of Medina", a term that is a critical building block for establishing modern Islamic project by relocating the 20th and 21st century constitutional framing into a distant and authentic past. 

I am not against or challenging this formation process of locating wisdom in a distant past; on the contrary, since this is a process that formed the basis of renewal and rediscovery at every period for Muslims and can be readily ascertained for other religious and secular communities alike.

One Ummah?

The challenge, in reality, is not in locating the past, but how to understand it, how to extract the kernels of wisdom and build upon it for the future without instrumentalising it as the only source of legitimacy to extract power at the expense of others in the society. When the past becomes an instrument of power and leverage wielded to silence opposition in the present, then it is no longer a kernel of wisdom but a tool for a political inquisition and exclusion.

Indeed, historians of early Islamic period agree that the Medina Charter formed the first Muslim political community and - at the core of it-  helped in the articulation of the "one Ummah" concept, which at the time applied to all the city inhabitant and provided security of self and property to all, religious freedom and autonomy, and acceptance of a collective self-defence against outsiders intending to harm the city and its residents, as well as a commitment to provide financial provisions at a time of war. 

The Muslims, Jews and polytheistic Arabs in the city were included as members of the polity, one Ummah, and enjoyed rights and responsibilities which were negotiated before being accepted as the basis for governance.  

The search for Islam in the modern state should be located in ascertaining the ethical and moral principles that upholds the dignity and freedom of all persons.

I maintain that the confessional basis of citizenship in Medina was circumstantial and not revelatory, creating binding categories for membership in Muslim political structures. The Medina Charter created one Ummah between the eight Arab tribes of the city, the migrants from Mecca, the Jewish tribes in the city, non-Muslim Arabs and people of the book.

The basis of the defined rights, responsibilities and political relationships were subject to negotiations and reflected the power arrangements at the time and witnessed changes in subsequent years due to crisis. When we read the charter, it must be considered as a descriptive text and not a prescriptive one, while locating the deep wisdom and innovative political solutions and approaches it offered for the circumstances confronting the nascent community.

It is not easy or helpful to utilise the Medina Charter and constitute it as a revealed text with fixed categories when attempting to formulate a modern nation state in a Muslim majority setting. The nation-state and the Medina Charter emerged out of a unique set of circumstances and offered structures in response to them, thus lifting each and implementing it without clarity on their genesis does more harm and injustice to both.

It also resolves nothing of the problems and challenges facing Muslim majority states. In retrospect the Medina Charter ended the hostilities among the tribes in the city, provided equality for all members, and articulated a political, social and economic integration strategy.

Nationalist Muslim identity

How to revolve this foundational crisis is a major challenge for Muslim majority states and Muslim political parties. The constant imagining of the past and attempting to recreate it in the modern nation-state will only complicate and not resolve the basic tensions if membership in the state and rights accruing are set on the basis of fixed religious identities.

What complicates this question more is that it is being asked in a post-colonial and modern-colonial setting where religious identity is intertwined with a mode of preservationist and protectionist nationalist resistance. In this period, Muslim religious identity was formed as an anti-colonial and nationalist in nature, which meant these two strands were constitutive in thinking and imagining of an Islamic state.  

Furthermore, modernity has not been a neutral force when it comes to Muslim majority states and thinking about a modern nation-state is infected and spoiled by it. Yet, post-colonial and modern colonial are the circumstances that we must contend with and work to undo as we think of the state and the form it takes. However, it can't be defined only in reaction to it,  for doing so would only mean the ultimate victory for colonialism to be able not only to negate the past but also shape the future structure that confines our collective future.

I am not one that simply asks for all to dispose of the past or to imply that preservation and protection as a mode of resistance does not have a place; on the contrary, in response to a crisis sometimes it is the only mode of rational discourse, however, it is unsustainable and can be the only articulated response to pressing challenges.

The search for Islam in the modern state should be located in ascertaining the ethical and moral principles that upholds the dignity and freedom of all persons, providing a just and fair economics, preservation of the environment, celebrating human religious, ethnic, racial, cultural, gender and linguistic diversity and viewing them as signs of God in the world. (Qur'an Ch. 17, Verse 70 and Ch. 49, Verse 13) Islam's calling is an ethical and moral one - not a search for codifying permanent power for Muslims.

Dr Hatem Bazian is co-editor and founder of the Islamophobia Studies Journal and director of the Islamophobia Research and Documentation Project, and a senior lecturer in the Departments of Near Eastern and Ethnic Studies at Berkeley.

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The views expressed in this article are the author's own and do not necessarily reflect Al Jazeera's editorial policy.

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