The Ninth Amendment recognizes natural rights, but does not protect them as constitutional rights.
Sohail Hashmi makes what seems to be a very reasonable case for the compatibility of Islam and constitutional government, and for the role of a reformed sharia as the foundation for the development of constitutionalism today. However, his case founders upon his not having given sufficient weight to the obstacles to this development, though his prescription for its achievement is essentially correct.
Hashmi contends that “there is no obvious or inherent incompatibility between [constitutionalism] (or, for that matter, democracy) and Islamic political theory,” though he leaves unmentioned the Islamic teaching of dīn wa-dawla (religion and state inseparably combined). He then more or less admits that, in essence, there is no Islamic political theory. At the very least, this means that there is no support for constitutionalism, either.
The author bases his case that there is no inherent contradiction between Islam and constitutionalism on the definition of the latter as “adherence to the rule of law.” However, the problem arises as to the nature of law itself. Of what kind of law are we speaking? Hashmi gives a cogent explanation of the differences between the ideas of natural law and divine law as they developed respectively in the West and in the Muslim world. He rightly notes that Western constitutionalism is founded on natural law, which is grounded in and accessible to reason. As such, it is something that man can reason about. Law is reason, as John Courtney Murray said, which is why we discuss reasons for laws.
Hashmi believes that the development of natural law was in the face of “a relatively weak idea of divine law in Christianity.” This is not correct. Natural law is an emanation of divine law as it was understood in Christianity, as Christianity itself admitted to man sovereignty in the affairs of the world. There is nothing weak about this divine law; it is, by nature, substantially different from the Islamic understanding in recognizing the legitimacy of the secular sphere. There is a realm within which man is legitimately semi-autonomous and sovereign. Through his reason, he is called upon figure out how to rule it and himself. It is precisely the Judeo-Christian theological view of man as made in the image and likeness of God, possessing reason and free will, which led to the notion of inalienable human rights and the establishment of limited, constitutional government to protect those rights. Christianity reinforced the integrity and status of reason in its revelation in the Gospel of St. John that God is Logos. In other words, within this view, God speaks to man with equal force through his reason, as He does through revelation. Reason, therefore, is morally legitimate as a source of law. What is reasonable is morally good.
It is this theological understanding that is missing from Sunni Islam. Its omission has subverted the development of genuine constitutional government. Hashmi states that Islam had “a relatively weak idea of natural law, on the one hand, and a robust notion of divine law, on the other.” This surely is an understatement, though the author goes on to admit that the “higher law of the man-made constitution… has the potential to clash with the higher law of God, the shari‘a.” He adds that “this clash seriously limits the ability of Muslim reformers to revise the shari’a according to their understanding of what good government and human rights require.”
Hashmi then gives encapsulated accounts of the different schools of Islamic jurisprudence in Sunni Islam, and of the contending theological schools, insofar as their thinking affected the relative status of reason and revelation. He rightly highlights the struggle between the rationalist theologians, the Mu‘tazalites, who believed in the ability of reason to know morality, and the Ash‘arites, who insisted that moral knowledge comes exclusively from revelation. The Mu‘tazilites were known as the people of God’s rationality and justice. The Ash‘arites embraced a God of pure will and absolute power, above or beyond reason. The author states that the “Ash‘ari position had emerged as dominant in Sunni Islam” by the end of the 12th century. He then relates that “the ascendancy of the Ash‘ari position had profound consequences for the evolution of Islamic conceptions of law and ethics.”
Indeed, it did. It resulted in the extirpation of philosophy, moral or otherwise, from the Sunni Muslim world. These Ash‘arite ideas need to be spelled out more exactly to understand how extremely radical they were, how profound their consequences have been, and how they continue to inhibit the development of democratic constitutional rule to this day, especially in light of the Arab Spring. To be specific, the Ash‘arites denied the existence of natural law and of secondary causality in the natural world. There are no secondary causes, only God as the primary cause. Gravity does not make the rock fall; God does. Fire does not burn cotton; God does.
What about man’s actions? It is God who acts, not man. To give al-Ash‘ari’s own example, a man picks up a pen and writes. It is, however, God who creates in him the will to write, the power to write, and then the motion of the hand to the paper with the pen. Allah then also causes the figures to appear on the paper as the pen touches it. The figures appearing on the paper have nothing to do with the pen touching it. Each is a discrete, separately willed act by God, unrelated to what preceded it and to what follows it. The famous Ibn Taymiyya wrote that, “Creatures have no impact on God since it is God himself who creates their acts.” (Needless to say, such a theological view is inimical to the development of democratic, constitutional rule since it obviates man’s free will.)
Without the narrative of cause and effect, reality lapses into incomprehensibility. Though God seems to observe certain habits, there is no way to tell what might happen next, as God can do anything He wants.
The Ash‘arites also denied that reason is capable of knowing what is good and evil, what is just and unjust. According to them, nothing is good or evil in itself. There is no “in itself” in things or acts. Things have no nature that sustains them or makes them to be what they are from one moment to the next. Therefore, there is nothing to know from or about them in terms of morality. They are merely temporary agglomerations of time/space atoms that God chooses to configure in a specific way for the instant. Then, they pass out of existence. In the next instant, God may reconstitute things in much the same way, or He may not. That is entirely up to Him. Whatever God does is just because He is the strongest, and the strongest gets to decide. God does not forbid lying because it is evil; it is evil because He forbids it. At some point, He may change his mind and require it. God acts for no ends or purposes. Therefore, man cannot understand what He does or what He might do.
The problem with this metaphysical view, a combination of voluntarism and occasionalism, is that it makes reality unintelligible. This is on purpose. For instance, in the early 15th century, Muhammad Yousuf As-Sanusi reiterated this view by emphasizing that “intelligibility has no place at all in it [i.e. in the designation of acts as obligatory or forbidden] rather it can be known only by revealed law – sharia.” In the metaphysical wasteland that the Ash‘arites created, sharia is the last man standing. This was their goal.
The Ash‘arite view of reality led to the prevailing principle of Islamic jurisprudence that “reason is not a legislator.” Reason has not the competence or standing to make laws. It has no legitimacy. If reason is not a legislator, then why have legislatures? God alone is sovereign, which is why only his laws obtain. This is the basis of sharia’s claim to exclusive rule.
This also helps explain why the constitutions in the Muslim world have not been any more effective than their namesakes were in the former Soviet empire. Almost without exception, none of them seems to have prevented tyrannical rule. In addition to what has already been stated, what else has prevented constitutionalism from taking root in a meaningful way?
Most important is the part of Muslim revelation that counters the Judeo-Christian notion that man is made in the image and likeness of God. Islam emphatically denies any such likeness and considers the proposition blasphemous. Absent this likeness, however, man has no grounds for the exercise of sovereignty, which as a result belongs exclusively to God. In Islam, there is no such thing as natural man, as all men are born Muslim. This doctrine is fatal for the concept of natural law and natural rights that lies at the heart of constitutionalism.
Since for the majority of Sunni Muslims (who are Ash‘arites), revelation (no matter how variously interpreted) is the single source of legitimacy, how likely is it that they will, or can, even consider the ideas that historically have given rise to constitutionalism? At present, they do not have a theological framework within which to do so. They are in a theological prison.
Hashmi’s idea that the sharia can play the role of natural law in developing Muslim constitutionalism is problematic, to say the least, even though Hashmi is certainly correct in saying that it, at one time, served as the only brake against the otherwise absolute power of the caliph or emir. The problem is: If the sharia is divine, it cannot be changed. Since sharia codifies the inequality of men and women, and of Muslims and all others, how could it serve as the basis for a rule of law founded on the equality of all people?
Sharia would have to be de-divinized or historicized to be changed. It would have to be seen as embodying a moral principle, but contingent on the particular time and circumstances in which it was formulated. This, in fact, is what the late president of Indonesia, Abdurrahman Wahid, suggested when he said, “… Islamic law is man-made, and thus subject to human interpretation and revision.”
Hashmi thoroughly understands this. In fact, he states the prescription powerfully: “One of the first tasks in this process is to assert the possibility of natural law and natural rights within an Islamic framework area. This will require a resurrection and dissemination of the early Mu‘tazili emphasis on ethical objectivism, that is, that all human beings possess a rational faculty – as a God-given faculty – to discern right from wrong and to form moral conclusions on how to order their communal lives apart from reliance on one or another revelation.” I believe that this is absolutely correct. The problem is that there are very few places in the Muslim world where one can say what Wahid did and survive. In the Sunni Middle East today, to call someone a Mu‘tazilite is to him call a heretic. When the well-known Egyptian scholar, the late Nasr Hamid Abu Zayd, suggested that the Mu’tazilite views on the Qur’an needed to be revisited, he was declared an apostate and had to flee Egypt in order for his wife not to be forced to divorce him.
As Iranian philosopher, Abdulkarim Soroush, has said, “You need some philosophical underpinning, even theological underpinning in order to have a real democratic system. Your God cannot be a despotic God anymore. A despotic God would not be compatible with a democratic rule, with the idea of rights. So you even have to change your idea of God.” The idea of God that has prevailed in the Middle East is a product of the deformed theology of the Ash‘arites: He is a despot. This is what has to change for true constitutional development to take place. The problem exists at the theological level and, therefore, needs a theological solution. As the triumph of the Salafists and Islamists in the Arab Spring elections has shown, this necessary and indispensible change is nowhere on the horizon. Sadly enough, if only, one hopes, for the short term, things are headed in the opposite direction. As Azzam Tamimi, the biographer of Rashid Ghannouchi, has put it, “[the real struggle of the future] is going to be about who is Islamist and who is more Islamist, rather than about the secularists and the Islamists.” One can only wish that things were going in the direction that Hashmi recommends.