The right to legislate

The second bone of contention between the secular and Islamist schools, is man's right to legislate; this is reference to a previous entry where I made the claim that the difference between the two political viewpoints are not be as insurmountable as they might first appear.

Whereas the first point addressed was fairly general, and related to the perceived jurisdiction of the Islamic Shariah, the point discussed here is more specific, and potentially more problematic, as it is portrayed as being a dispute about the the sovreignty of the Creator verses that of the creation. The proponents of political Islam maintain that legislation is the exclusive right of the Creator, and any attempt to allow man to legislate is seen as a direct challenge to the Creator's sole sovreign right to legislate.

The purpose here is not to comment on the validity or consistency of either argument, but rather to caputre the essence of what each party is claiming, in an effort to understand why they differ, and how their differences could be reconciled.

Evidence is presented by the proponents of political Islam, in support of the argument that it is disebelief/Kufr to knowingly rule by other than what the Creator has revealed, or to knowingly support such a ruling system. This is because in origin the rule should be with the Creator alone, and referring to other than the Creator in any matter of ruling or judgement constitutes idolisation of the Taghoot (anything worshipped or obeyed instead of Allah), and is tantamount to disbelief/Kufr. Wahhabi literature abounds with such arguments, thoroughly supported by textual evidence from the scriptures.

How then, can such a view be reconciled with a view that maintains it is perfectly acceptable for man to judge, rule, legislate and be obeyed, without reference to the Creator or to religion? At face value, their argument is both water-tight and non-negotiable. Probing further however, reveals otherwise.

The Islamists' objection to man's ruling by other than what the Creator revealed hinges on three implicit assumptions:

• that the business of ruling is one of passing legal judgement, as in a court,
• that for all matters of ruling there is a known judgement revealed by the Creator, and
• that these judgements are being ignored by not being explicitly referred to in ruling.

While each of these points warrants a separate discussion, it is sufficient at this point to find suitable loopholes in the above to enable the secularist argument to pass the Islamist validity test. With a little effort, a workaround can be found for each of the above pivotal points; however the second of the three points is what I shall address here.

As discussed in a previous posting, the Islamists, while insisting that all aspects of human relationships (including politics) are addressed by Divine revelation, they nevertheless concede that the bulk of these relations that relate to politics and ruling, fall under the category of permissible (Mubah) actions. In other words, for those aspects of ruling that are permissible , the ruler is permitted to pass legislation, but is under no Islamic obligation to do so. Furthermore, in passing this legislation, the ruler is permitted to adopt whatever position he sees fit, provided that such laws do not cause the public to become sinful by preventing them for carrying out their obligations or forcing them to engage in prohibited actions.

The ruler is thus at liberty to choose any such laws that are deemed to serve the public good, whether these laws are taken from Islam or elsewhere. The ruler may therefore adopt laws originally drafted by the French or the Brazilian parliament, with no reference to Islam whatsoever, provided that he is satisfied that he is permitted to legislate in this matter, and that he has not caused anyone to be sinful. The Islamists may well accuse him of "ruling by other than what Allah revealed", to which his defence would be that he had ruled in accordance to what Allah had revealed, as Allah's revelation in this matter indicated permissibility. It is imporant to note that the permissibility here refers to the act of legislating, and not to the actions themselves that are being regulated by the legislation.

Thus, even according to the Islamist argument, a secular ruler may be exonerated for adopting and implementing man-made laws, thus bridging the second of the three divides between the two schools of political thought. Man does, after all, have the right to legislate; even according to the Islamists!