[jinnzaman]

II. Theoretical Issues

A. Subjecting the rule of God to human judgment is kufr, contradicting the basic tenets of Islamic aqeedah

The first theoretical issue with arguing that Islamic law should be subject to democratic vote is that it is a fundamental deviation from mainstream orthodox theology.. The totality of Islamic law can be reduced into actions that are deemed obligatory, recommended, neutral, detested, and prohibited. Many of the contentious legal issues pertaining to Islamic governance revolve around certain proscriptions that are deemed to be obligatory. Denying an obligation is considered a matter of theology because, under some circumstances, it would constitute kufr (disbelief). A perfect case example of the declaration of belief in the Qur’an is in the story of the fall of Iblis. The act that lead to the proclamation of kufr of Iblis was not his actual non-belief of Allah . “And when We said to the angels: “Prostrate before Adam” So, they prostrated, all but Iblis. He refused, and joined the infidels.” (2:34) Iblis believed in Allah (subhana wa ta’ala) as is evident in the fact that he directly addressed Allah in his speech. The source of kufr for Iblis was his denial of the explicit command of Allah (subhana wa ta’ala) to fulfill a particular obligation. This principle of denying obligations may constitute kufr if the obligation is established from conclusive, unambiguous sources such as the Qur’an or mutawattir hadeeth. Thus, subjecting specific aspects of the Shari’ah that apply to governance may result in communal acts of disbelief. If Muslims were to subject prohibitions such as the hudood to popular vote and the result was a denial of these obligations, then the society as a whole would either have committed disbelief or engaged in a major sin. Thus, for Islamists whose primary focus is the preservation of an Islamic polity that is rooted in a particular understanding of theology, it would be contradictory for them to participate in electoral politics on matters pertaining to the Shari’ah.


B. It would be contradictory for Islamists to do so because some of them (extreme Salafists, Hizb e Tehrir, Tanzeem e Islam, al-Muhajiroun) don’t deem democracy to be a valid political or legal system

The second reason, which emanates from the principles established above, that Islamists should not have to vote on the Shari’ah is because many of them do not deem democracy to be a valid form of government. Organizations such as Hizb e Tehrir, Tanzeem e Islam, al-Muhajiroun, and even some extreme Salafist organizations deem democracy as being either haram (impermissible) or kufr (disbelief) for intervening in matters of legislation that they deem belong solely to Allah (subhana wa ta’laa). which they do not deem to be in the realm of legislation for human beings, but for Allah (subhana wa ta’ala). "The attitude of true believers, when they are called toward Allah and His Messenger to judge between them, is to say: we hear and we obey; and such are successful." (24:51) For Islamists, this attitude of non-cooperation with deviant political systems is exemplified in the living embodiment of the Shari’ah, the Prophet Muhammad (sallahu alayhi wa sallam). From the Islamist perspective, while the Prophet was offered many political and economic accommodations ranging from power-sharing arrangements to offers of kingship, he rejected all of them as they had conditioned specific theological clauses such as the worshipping of other idols or alternating worship or at least sharing the authority of legislation. The social contract that existed in Madinah was predicated on many conditions, such as that Muslims would be ruled by the Shari’ah and none of the components of the Shari’ah were agreed upon by discussion, but by divine revelation. Since subjecting the Shari’ah to the vote would contradict the most basic fundamentals of the faith, Islamists would not advocate engaging in electoral politics on these matters.

C. It would also be contradictory for democrats to do so because if Islamists were to win in the elections, it would be contradictory for Islamists to win in elections and than abrogate the secularized nature of the state and certain rights

The third issue with the argument that the Shari’ah should be subjected to a popular vote through democratic processes is that it would undermine democracy itself. From the perspective of democrats, the authority of state power emanates from the people and all subsequent political actors, institutions, and laws must either arise from their consent or the consent of those who are given representative authority. However, if Islamists were to win in elections (in the foregoing paragraphs I will show that this is a very serious possibility in many Muslim countries) and they were to implement the Shari’ah, then democrats would be caught in a catch 22: either they would be forced to concede that the popular will desires the Shari’ah and democracy will have to be scrapped or they will have to engage in extralegal measures to subvert Islamists from taking power. Either proposal undermines democracy and illustrates that the challenge to submitting the Shari’ah to popular vote is being made in bad faith and is merely a rhetorical device for preserving the power of elites who have no desire to relinquish their power within Muslim countries.

D. Defining the relevant electorate

The fourth theoretical problem with subjecting the Shari’ah to popular vote is the issue of defining the relevant electorate. In deciding whether to accept the Shari’ah, should all adult Muslims be allowed to vote? What about non-Muslims or members of groups that have been deemed heretical and outside of the fold of Islam by orthodoxy? Why should non-Muslim minorities decision to vote on the Shari’ah carry any weight since they do not even deem the religion of Islam to be valid? Moreover, should people who have no knowledge of the Shari’ah except for what they’ve been told by hostile Western academia and reinforced by corporate media that is subservient to the national security states that are arising in the West be allowed to vote on this matter or should their first be a rigorous public debate and education of both Islamic and Western political and legal systems? Who would be in charge of these discussions? If no knowledge of Islamic law is required, then will children be allowed to participate in a vote since they can make a similar judgment? Should the vote be a “all or nothing” approach or should specific provisions of Islamic law be subject to vote? Should the vote be irrevocable or should be it be revocable? If it is revocable and based on specific provisions, then this will initiate the contradictory theological dilemma for Islamists described above as well as the human rights dilemma for democrats. If non-Muslims were allowed to vote, but the resulting vote was a victory for the reduction of rights for religious minorities, this would result in an ideological defeat for both Islamists and democrats. This would not end the present day schizophrenia within Muslim lands and might result in further sectarian tensions that may result in civil war.

E. Defining the relevant electoral districts

The fifth theoretical problem with subjecting the Shari’ah to popular vote is the issue of defining the relevant electoral districts. Since Islamists reject the nation-state system as being the by-product of colonialism, they would not recognize any votes in particular polities since they would not represent the true Islamic polity, the Caliphate. If electoral districts were defined within the present day nation-state construct, the votes would occur in political systems that are already biased towards Western ideologies since they were created, fostered, and sustained for that primary purpose. Thus, the only way to prevent gerrymandering and an imbalance of voting power resulting from electoral districts with varying populations, sectarian, and educated elements would be to ignore the nation-state system and instead create a new system of electoral districts that equalized the voting power of all Muslims that accurately represented the ethnic, sectarian, and ideological divisions with their societies. This problem alone would render such a vote next to impossible it is highly doubtful that any functional designation of electoral districts would be agreed upon by either Islamists or democrats.

This is a summary of the major theoretical issues with arguing that the Shari’ah should be subjected to democratic vote.