Abstract
It would be an anachronism to search for modern democracy in the Qur’an that is the first among the other sources of Islam, i.e. Sunnah, ijma and the qiyas. To deduce the definition of Islam merely on the basis of the primary and secondary textual sources rather than the application of them as Muslim praxis would be an incomplete hermeneutic process in understanding it. We can see that the state and the religious society, which was represented by ulama, were separated from each other in an early stage of Islamic history. The members of ulama were in charge of the intellectual and social life, the law and its application. The values of the modern democracy such as law and order, separation of state authority from the public sphere, observing the fundamental rights and freedoms of individuals such as women and religious minorities as the inseparables of democracy were upgraded in Muslim societies. This structure of Muslim society, however, was spoiled by colonialist interventions and the adoption of the modern nation-state concept.
I should confess the fact that placing the Qur’an and democracy side by side cannot be a straightforward task. Such an attempt does not exclude, in the first place, an immediate anachronism. The Qur’an, the holy scripture of Muslims, historically belongs to the beginning of the 7th century AD. As we talk about the content of the Qur’an and that of modern democracy per se, therefore, we do not have much opportunity to build a direct and easy comparison between the two.
Before I proceed in the pursuit of dealing with the Qur’an and democracy together I think that it would be convenient to brief on the nature of the Qur’an and other principal sources of Islam beside it. The Qur’an is an interlocution that was directed by God, as Muslims believe, through the Prophet Muhammad to the people of the mid-western part of the Arabian Peninsula, namely Hijaz, on many different occasions in between AD 610 and AD 632. Hence, each of the qur’ānic statements had a specific historical context. The first interlocutor of the words, the Prophet, received and conveyed them, as they were, to his people. Muhammad and his Companions, therefore, learned the revelation pieces and kept them both in their minds and in written documents. Then, later Muslim generations could hold out the revealed and recorded speech of God, the Qur’an, to man. Beside the fact that the members of the first Muslim generation were the receivers of the speech they were also those who lived within the occasions of revelations. Their life-stories, their accounts on the historical setting of the revelation era and their particular descriptions of the revelation settings provide to later Muslims invaluable information about what really happened during the revelation and what later recorded words of the God really meant. With Paul Ricoeur’s approach, as soon as the revealed word passed from the Prophet’s lips to the ears of his audience it entered a process of removal both from its original nature as word and its historical context and the narrations from its interlocutors and witnesses are merely the way to recapture the moment of revelation itself. 1 Hence, the Qur’an is not a text in nature but rather it is a recorded compilation of many different interlocutions by God and to know what they meant to its listeners one needs to have their historical accounts from the Prophet and his Companions.
The other main sources of Islam took shape as the Qur’an was gaining the form of a book. The unique place and nature of the words and practice of the Prophet, the first receiver, preacher and interpreter of the Qur’an, vis-à-vis the word of God, is recognized. As the Prophet and his Companions were the first interpreters of the Qur’ānic revelation, their experience plays a defining role in the way in which the Qur’ān is understood. In the Islamic tradition this hermeneutic necessity has also been recognized theologically. Primary Islamic sources are arranged and listed in accordance with this very hermeneutic fact. According to the Muslim tradition the understanding and the practice of the Prophet as well as the first Muslim generation [Sunnah] determine how we as the members of the later generations would understand the Qur’an since the information provided by the first Muslim generation is the only way to reach the historical setting of the Qur’anic revelations. Hence, the Muslim scholarship holds that the Sunnah is authoritative over the Qur’ān in determining its meanings, not the other way around. 2 It is the way in which the Prophet and his Companions understood and practised the Qur’an that has exercised a strong role in the creation of the Islamic tradition.
The consented praxis of the first Muslim generation, the students of the Prophet, as community makes up another source of Islam, i.e. ijma [consensus]. First Muslims learned the word of God and its prophetic interpretation directly from the prophet himself and applied it in their community life. Therefore, the way in which the first generation, the constructive community of Islamic tradition, understood the Qur’anic revelation and practised as a whole was recorded and transmitted as the primeval practical sample for later Muslims.
Given the fixed and numerable status of the documented sources Muslims still had to deal with the task of addressing innumerably diverse cases that life brings about almost every moment. On the basis of all these documented sources the practical judgments needed are derived through analogy [qiyas] for new cases. Muslim tradition turned to analogy, as a fourth main source and method, in order to address countless developments in Muslim society on the basis the Qur’ān and the other documented primary sources. In order to deal with new issues various analogical methods [ijtihad] have been developed. What we call Islam, therefore, is, in a sense, what Muslim generations have lived or applied on the basis of the sources of Islam. It can be said that Islam is constituted by an interpretation of the sources, namely, Kitab, Sunnah, ijma and qiyas altogether by the disciplines tafsir [Qur’anic exegesis], hadith [discipline of narration from the Prophet], kalam [theology] and fiqh [jurisprudence], on the ground of a living tradition started with the first Muslim generation.
Before I come to the main topic of the work, I would like to refer to a crucial concept from H.-G. Gadamer’s hermeneutics. To him the understanding process ends eventually at the point of application. 3 Any earlier phase like the work of a historian or even that of a legal theorist does not exhaust the process. Rightly warning against the ideological and textualist reading of the sources regarding gender issue, for instance, Nikkie Keddie, a prominent scholar on Middle Eastern women’s studies besides other areas, refers to this very hermeneutic principle. For Keddie, one of the obstacles hindering the profound study of women's history in the Middle East has been a philosophically idealist bias which assumes that the Qur'an, hadith and the writings of theologians and jurists were the main determinants of women's position. 4 The documented sources such as the Qur’an and hadith including the massive secondary texts, therefore, fall short of providing any thorough picture of Islam and Muslims. The process of understanding, however, is only finalized by the praxis of a Muslim phronimos who translates the interpretation as a practical judgment into an actual human situation. Hence, in order to see the authentic position of Islam as regards law and order, civil society and minority groups as well as their relation to governmental authority, one should study the actual Muslim life-setting prior to the modern theories of the Islamic state, either liberal or totalitarian, which originally emerged within an extremely unauthentic situation as far as the Islamic tradition is concerned. Accordingly, a study of ‘cultural history’ that finds out what really took place at the ‘lowest’ possible level in a Muslim society would reveal a truer picture of it. 5
If we return to the main issue of how much democracy can be related to the Qur’an or, in a broader sense, to Islam we will need, then, something more than finding out some evidences and listing them from the primary or secondary Islamic sources. The question whether Islam is compatible with modern democracy has been repeatedly visited in the last two centuries or so. Muslim intellectuals from a wide geography having encountered western effects extensively discussed the compatibility of Islam and contemporary Muslim societies with the modern governing models such as constitutionalism, republicanism and democracy after one another. 6 Rushing to an apology for Islam they have taken it that the Qur’an has already heralded modern democracy from its first days. Presumably adopting the Protestant principle of sola scriptura they have chosen the way of swiftly showing that the Qur’an, which must be the sole textual source of Islam for them, simply affirms modern democracy. Shura [consultation] (Q.3:159; 42:38) and bay’ah [oath of allegiance] (Q. 48:10, 18; 60:13), as assured related Qur’anic terms to democracy, have been repeatedly treated mostly through semantic endeavors to show what matches to parliamentarian democracy in Islam. 7
If textual work, on its own, does not reflect a thoroughgoing understanding and any earlier phase than application like the work of a historian or even that of a legal theorist does not exhaust the process of understanding, then one should go to the praxis of Muslim society with a view to see some qualities of modern democracy rather than the texts of Islam. If law and order, separation of the state authority and the public sphere, observing the fundamental rights and freedoms of individuals, are to be counted as the inseparables of democracy, then, here, I will search whether the pre-modern Muslim societies developed their own model of having these very values as a result of an understanding of Islamic sources and tradition. Hence, in order to see the authentic position of Islam as regards law and order, civil society and minority groups as well as their relation to governmental authority, one should study the actual Muslim life-setting which originally emerged within an authentic situation. Accordingly, a study of ‘cultural history’ that finds out what really took place in a Muslim society would reveal a truer picture about how its members understood and applied the sources of their religion. What did actually take place in Muslim society as regards high values such as law and order, civil society and rights of minority groups as well as their relation to governmental authority? Through such a study, therefore, I aim at finding out the potentiality of a kind of democracy that Muslims societies instituted in their original settings.
A class between state and society: Ulama
A careful study of Muslim society reveals that, in a relatively early stage of Islamic history, the state and religious society separated from each other despite the hastily given idea of total integration of state and religion in Muslim states. In the middle of the 8th century ulama gained victory in a struggle against the authority of the caliphate. From then on the caliph would suffice with being the the official head of the Muslim community and the symbol of Muslim unity. No longer would he be accepted as a religious authority. Therefore, religious communities under the leadership of ulama evolved independently of the state. 8 Muslim communities developed independent forms of socio-religious life independent from that of states and empires. 9 The main character of the Abbasid, Seljuq and Ottoman states was the separation of the state and religious institutions and the central problem was to define the relations of the two in them. 10
The acknowledged constructive position of ulama, in an authentic Muslim society, has been on the top up until the modern age. The members of ulama were in charge of the intellectual and social life, the law and its application. They were the scholars, the qadis, i.e. the judges of a shariah court who were in charge of the application of Islam in day-to-day reality and the muftis, specialists in shariah who give authoritative legal opinions. 11
The ulama came from and had representatives in all segments of the society including the ruling elite. The heterogeneous character of ulama’s socio-economic background and networks, and their close ties with the urban populace, provided a strong position to them as intermediaries between the rulers and their subjects. 12 The moral influence of them was great in society, and their right to participate in matters of government was recognized. 13 The esteemed position for ulama was held in reserve within the ruling elite who sought their advice and support as well. 14 They also could act as leaders of local groups and spokesmen of the populace. Ulama, therefore, constituted a bridge between rulers and the ruled. 15
The position of ulama in Muslim society was a natural result of their independent and civic role in relation to the state machinery. The overwhelming majority of the 11th- and 12th-century Baghdadi ulama, for instance, was not employed by the state and did not hold any official religious or administrative position. Many of them lived on individual donations and gifts or sustained their teaching activities with other professions, notably trade. The authority of muftis was based on their reputation as learned and pious men. Their opinion had no official sanction, and a layman might resort to any scholar he knew and in whom he had confidence. Once a scholar was appointed to the post of mudarris in madrasa he seemed to enjoy complete freedom in the admission of students, the sequence and method of instruction, and the choice of treatises. 16
State patronage allowed the ulama to carry out their social roles independently of the official sphere. Due to their centrality in the public sphere, the ulama, both those who benefited from state patronage and those who refused any endowments or gifts from the rulers, could put pressure on the political authorities to enforce the norms of the Islamic community laid down in the shariah, of which they were the acknowledged interpreters. 17 Hence, their unique position in the society enabled them even to form an opposition to the ruling elite when this was needed. 18
Sultan, qadi and shariah
Cultural studies carried out on Muslim societies have done much to dispel such old theories as regard the pre-modern Muslim states as the product of unbridled oriental despotism. The sultan had total power and the entire state was his personal oikos. 19 What Max Weber (1864–1920) calls, for instance, the sultanic law is unstable, dependent on the whim of the ruler at any given moment, utterly despotic in nature. 20 In his eyes, a strong patrimonial law in the sultan’s state reveals only the will of the ruler. Weber’s type of qadi justice that is an informal adjudication based on generalized ethical-political considerations rather than on a systematic reasoning is more famous. 21 The picture that emerges from the documentation that reveals the Muslim praxis, however, exhibits that the application of Islamic law was neither sultanic nor patrimonial, but more reminiscent of Weber’s own model of bureaucracy that is characterized by objective rules and predictability. Contrary to the simplistic modern supposition the sultan was severely restricted by the concept of justice 22 since the imperial authority was by no means considered above the law. 23
With its long history the qadi’s office was an exception within Muslim state bureaucracy in comparison with other positions. Although more dependent than the mudarris on the political rulers for his employment and status, the qadi enjoyed no less freedom in the administration of the shariah court and the judicial procedures than did the mudarris in the instruction of the law in the madrasa. 24 Qadis had a greater freedom of action within the scope of their offices than did bureaucratic and military appointees whose positions were defined entirely by the writ of the sultan. 25 Every qadi had full authority to enforce the law and it was exempted from the intrusion of the sultan. 26
Though nominated by the sultan the qadi’s authority did not derive from the ruler but from much deeper cultural sources. The qadi is subject to the ruler only administratively; otherwise, as far as the law applicable in court was concerned, he was subject to the shariah alone. 27 The sources of the legitimacy of the qadi's authority were tripartite like the sources of the law he enforced. That the Islamic law is legitimized by the charisma, the tradition of Islam and the power of the sultan was the basis of the system. 28 Therefore, the authority of the qadi’s office partakes of all three kinds of ‘legitimate authority’, namely the rational-bureaucratic, the traditional and the charismatic as analysed by Max Weber. 29
The people knew that the legal system guaranteed them a number of divinely ordained inalienable rights like the right of life, liberty, the pursuit of happiness and rights of property which no official could take away. Every inhabitant had an unequivocal right to a public hearing before an impartial judge and to the due process of law. He or she was considered innocent until proven guilty. Even the fiat of the sultan did not alter these rights. The law was predictable and the qadi was charged with defending both the law and the people of his district against any transgressor. Hence the qadis dared to challenge high officials and even the imperial authority on the basis of the law. Consequently, the people were ruled by law, not by imperial prerogative. 30
The qadi not only had a monopoly over the judicial function, he was also the chief administrator of the Muslim city. 31 The qadi’s roles and prerogatives made him a crucial figure in the Muslim public sphere. Apart from his strictly judicial functions, the qadi was responsible for the administration of the affairs of orphans, widows and others legally incapacitated. Moreover, the chief qadi [qadi al-qudat] was usually entrusted with the ‘general supervision’ [nazar ′amm] of pious endowments, mosques and the estates of orphans and other persons as well as with the supervision of officials in the legal administration, notably the market inspector [muhtasib]. The qadi was also certainly a highly effective check on the power of the provincial governor. 32
The qadi records show that the qadi’s authority is supported both by the other members of the ulama and by the public in the city. 33 Documents indicate the judgments as having been reached bi ittifaqi cumhur, that is, ‘by agreement of the public’, as a tacit social contract. 34 That the courts were attended by public and enlightened men also provided a checking mechanism against abuses, graft, corruption and deviation from the law. 35
Waqfs or charitable foundations in the public sphere
The significant role played by charitable foundations, i.e. waqfs, lies in the fact that they constituted the main civic activity and provided the basic services to the society in a Muslim city. All aspects of the society and economy of the city were deeply affected by the operation of charitable foundations. 36 The services were provided in the form of personal bestowal rather than the faceless bureaucracy of the state. 37
In establishing a waqf and running it the role of ulama was simply substantial. First of all, the qadi’s acceptance was necessary to establish an endowment and the founding documents were kept at his office. All key activities in their functioning were smoothly supervised by the qadi later on. 38 On the basis of the Islamic law, once established the waqf could not be annulled nor did its funds divert to any purposes other than those set out in the founding deed. The local community, headed by the ulama, exercised a supervisory function in every step of running a waqf although the manager of a waqf was nominated by the central government. The discretion of the managers was severely restricted by the deed and by considerations of Islamic equity and decorum. If the manager failed to provide food measuring, for instance, up to the traditional standard in a waqf’s kitchen, he immediately found himself sued in court by a group of respectable citizens, invariably headed by ulama, usually teachers in madrasas, the real public opinion leaders in a city. To guard against accusations of corruption, managers carried out necessary renovations only with the prior detailed authorization of the court based on inspection of the site by a special committee in which ulama always took part. The qadi records overflow with cases where citizens brought cases involving the waqf. Local communities saw themselves as having the de facto right to ensure that the affairs of the sultanic waqfs were run in the interests of the city’s inhabitants by themselves. 39
The records of waqfs also show that they had been one of the platforms of community relations in the society. The close interrelationship of Muslims with non-Muslims in Muslim cities can be traced from the study of waqf documentations. 40 Some waqfs, especially in places where Muslims and dhimmis [protected non-Muslims] shared the use of common benefits such as water and the same neighborhood, received donations both from dhimmis and from Muslims. 41 Waqf documentations also exhibit that women were important donors of foundations in addition to their intelligent contributions to them as administrators and as executrixes of estates. 42
Women before the law
Again the stereotype regarding Islamic family life asserts that Muslim women have been deprived of possessions either by domineering husbands or by stronger male heirs and lived under the tyranny of heartless husbands and male members of the family that paved the way to forced marriages and divorces at the whim of husbands who were obsessive about virginity and chastity, etc. 43 However, the study of the Muslim societies where a strong court system was practised provides a drastically different picture. 44
The rights of women were protected by the court as in modern societies where the social and economic position of women is more dependent on protection by the legal system than that of men. The women of Ottoman cities, for instance, in very large numbers of cases could go to the court. 45 As a result of the protection of property provided by law women could accumulate property and wealth, enter legal contracts and demand their fulfillment by others. 46 This was the well-established case for Mamluk cities like Damascus, Cairo and Jerusalem. 47 A daughter who inherited a property had the full right to use it, to cultivate it, or to rent it out and receive the revenues it brought. When a woman’s property was sold by her husband or son without her consent the sale was rendered null and void and the property was returned to her immediately. 48 Husbands were brought to court to defend themselves against charges made by their wives. 49 Women could attach special favorable conditions to marriage contracts and might take the initiative in divorce. They were able to resist imposed marriages by their families. 50 Women could represent themselves in the court and make accusations, bring lawsuits and defenses against them, and take oaths in exactly the same way as men. 51 Dhimmi women like dhimmi men also used the courts in the same manner. 52 Women were also present in the market and had a considerable share in the economies of Muslim cities. 53 Then, it can be clearly shown through the court records that women enjoyed a remarkable participation in social life as a result of the active support of the shariah court. 54
Dhimmis – non-Muslims in qadi court
In the beginning of Muslim history the non-Muslim dhimmi population mostly was composed of Christians and Jews from different denominations in Muslim land. As the borders of Muslim geography expanded, Zoroastrians, Hindus, Buddhists and even the totemists were included in the dhimmi status. 55 It is the law that is applied to non-Muslims that enabled them to continue their existence in Muslim states in large proportions for centuries. It is due to the status given to non-Muslim communities that they could be inseparable parts of societies in Muslim states.
Court records of the city of Kayseri, as a sample of the implementation of shariah dhimmi law, show that the rights given by the law to non-Muslims were considerably observed by the actual law system. The qadi was strictly required to collect jizya [poll tax] only from the listed adult males who were physically capable of working. 56 The necessary exemption rules of shariah were also strictly implemented. We have the case records: the exemption applications by a blind dhimmi villager, a disabled person, a priest and an immature individual were accepted and implemented by the court. 57 Paying jizya did not also cause dhimmis a substantial economic disadvantage in their competition with Muslims and the amount of it was not a serious burden for the payers. 58
The records also show that the shariah court of Kayseri was used by both dhimmis and Muslims together and 59 there were no particular days or times for dhimmis in the court. Despite the communal pressure and even threat of excommunication from their own community the increasing number of individual dhimmis preferred the shariah court instead of their communal court because of their confidence in the shariah court’s handling its cases justly and fairly with patience in the 17th century and onwards. 60 It is remarkable that the proportion of dhimmi women (27%) who used the shariah court was greater than the proportion of the overall dhimmi population (20%) in the city. 61 Non-Muslims could make all kinds of claims against Muslims including the control of land and criminal cases. 62 The court system also protected Muslims and non-Muslims against the abuse and improper treatment of state police forces (spahis and janissaries). 63
The strong court and law system paved the way for strong inter-communal social life in the city of Kayseri. The records show that non-Muslims held a substantial amount of property there. 64 Muslims and dhimmis lived in the same neighborhood and there was no isolation from one another and no ghettos in 17th–century Kayseri. Muslims did not move out when a dhimmi moved into their neighborhood and vice versa. 65 Inter-communal exchange of residential and agricultural property was not rare at all. There were 22% of property and 14% of building transfers that were cross-faiths. Dhimmis owned and cultivated fields and vineyards next to Muslims’ lands as well as their living side by side. To see a dhimmi who was the neighbor of an imam, a muderris or even a qadi was always easy. The villages were no exception. Many villages were mixed or there were exclusively dhimmi ones besides Muslim villages. 66
Conclusion
Muslim societies, in their original setting and on their own historical journey, developed their own kind of structures on the basis of the main Islamic sources. The law and order, an inseparable character of pre-modern Muslim societies, was established mainly by ulama society that, in an early age of Muslim history, was separated from the state structure. Ulama had been the perpetuator of knowledge, the monitor and administrator of the civil charitable endowments, colleges and religious institutions, and the protector of the rights of the people, be they Muslims or non-Muslims, women and children through strong court organization. 67 The structure of the original Muslim society, however, has been deeply disturbed by the modern situation. The authoritarian administrative habits of colonialists and early-modern models of nation-states have been deeply influential on modern Muslim thinkers and politicians immediately after the Muslim classical era. The concept of the modern Islamic state and that of shariah, therefore, have been mostly formulated as the product of a modern nation-state that is by nature monolithic in society and statist in administration. 68 w’allahu_a’lam
Footnotes
A version of this article was presented at the Reset-Dialogues İstanbul Seminars 2012 (‘The Promises of Democracy in Troubled Times’) that took place at İstanbul Bilgi University from 19–24 May 2012.