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Islamic Law and Its Democratic Potential

3/10/2005 - 6:00 AM PST

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Interview With David Forte, a Vatican Consultor and Bush Adviser

CLEVELAND, Ohio, MARCH 10, 2005 (Zenit) - A pressing question on the international scene is whether Islamic societies can embrace democratic governance and political self-determination after centuries of autocratic rule.

The elections in Iraq and Afghanistan, as well as the popular movements in Iran and Lebanon, have made this question increasingly relevant.

David Forte, a consultor to the Pontifical Council for the Family and an adviser to President George Bush on Islamic affairs, shared with us why he believes there are facets of Islamic law that are hospitable to the development of free societies.

Forte is a law professor at Cleveland-Marshall College of Law at Cleveland State University and author of "Studies in Islamic Law: Classical and Contemporary Application" (Austin & Winfield).

Q: What is Islamic law? What are its sources?

Forte: Taken as a whole, Islamic law comprehends the entire spectrum of authoritative rules that guide various Islamic communities. That law includes not only the classical Shariah, the holy law of Islam, but state enactments, advisory opinions -- or "fatwas" -- custom and tribal norms.

More particularly, however, Islamic law is usually taken to refer to the content and the methods of the Shariah, the developed code of laws that arose in different parts of the Islamic empire.

There are variations in the particularities of the Shariah, both between and within the two main divisions of Islam -- Sunni and Shiite -- but there are far more similarities than differences. Within Sunni Islam, there are four surviving traditions, or schools, of law: Hanafi, Maliki, Shafi'i and Hanbali.

There is great dispute among both Western and Islamic scholars over how the Shariah actually developed.

After the legal tradition matured and bested most of its competitors within Islam to be one of the dominant voices of the religion, their writers told the story of the development of the Shariah in a version that virtually no scholar believes is true, either in general or in many of its details, although many fundamentalist Muslims still adhere to this classical version of the development of the Shariah.

According to the classical view, the fundamental sources of the Shariah are divine in origin. The law provides the vehicle for transmitting the message heard by Mohammed to present-day believers in their daily lives. The Shariah comprehends all rules textually derived or analytically deduced from divine legislation that regulates the Muslim and his community.

Of the four main sources of the Shariah -- the Koran; the Sunna, the practice of the Prophet; "ijma," consensus of the community; and "qiyas," analogical deduction -- the Koran and the Sunna provide the fundamental basis for the commands of the Shariah.

The Koran and the Sunna are the twin cornerstones upon which the whole edifice of the Shariah is constructed. Together, "qiyas" and "ijma" produce the bulk of the actual positive rules of law, but both techniques may only be based on the commands of the Koran or the Sunna and cannot produce regulations in contradiction to those two sources.

Nonetheless, even within the classical tradition of Islam, the provisions of the Koran can be interpreted in divergent ways, and the particular traditions ascribed to Mohammed's actions are validated by human science, not by divine command. Thousands of purported traditions were in fact rejected by early Muslim scholars as invalid.

Some legal scholars think that the remaining traditions were validated by the method of "ijma," consensus, but there is great dispute among Muslim scholars as to what properly constitutes a consensus. Thus, if modern methods of investigation show that some of the ascribed traditions are forgeries or apocryphal, then a Muslim might be justified in not ascribing authority to them.

Most recent scholarship has contested the classical version of the development of Islamic law, but there is wide and vigorous debate among scholars as to what actually happened.

Many scholars believe that the law did not develop as neatly as the classical version avers, but instead in a much more complex and nuanced way, absorbing into its corpus rules and principles drawn from pre-Islamic Arabia, the legal traditions of the Byzantine and Sassanid empires, and the political and financial decrees of the various caliphs.

Nonetheless, it is fair to characterize the debate among Islam law scholars as intense, and in which most of the alternative theories are themselves hotly disputed.

Q: What elements in Islamic law are particularly compatible with democratic government? What elements are hostile?

Forte: Let me answer the question ...

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