There is no single and absolute reading of Islamic law that can guide an Islamic state. It is all open to debate.
The Taliban has been evasive about the details of the state its leadership wishes to establish in Afghanistan. Given the horror with which most Afghans, as well as the international community, remember the Taliban’s Islamic Emirate of the 1990s, Taliban leaders have been signaling that they have updated their views on governance.
A lot remains unknown as consultations about forming “an inclusive government” – as they have called it – are ongoing. It is expected that this government would fill in the current power vacuum allowing the state institutions to resume their functions until a more permanent political setup and possibly a new constitution is enacted.
However, given the Taliban’s virtually unequivocal military victory, the group’s views will be most influential in shaping the transitional and later permanent future political setup in Afghanistan. Its leaders have said they want an “Islamic” government but what does that mean?
The Taliban has generally rejected democracy and its key component, elections. Its representatives often put forward two types of arguments for their position. They often point to flaws in the democratic system and elections in Afghanistan across the past two decades and argue that these failures occurred because democracy and popular vote have “no base” in Afghanistan.
They also maintain that elections and democracy lack precedent in a pre-modern period of Islamic thought, the period which they see as being most authentically “Islamic”. They consider some methods of selection of rulers in the pre-modern Muslim world to be more authentically Islamic – for example, Shura Ahl al-Hall wa’l-Aqd, the council of those who are qualified to elect or depose a caliph on behalf of the Muslim community.
Regarding the laws of the state, the Taliban often claims that legal system they impose is “Sharia” and hence the issue of what kind of laws and political system it adopts will not be discussed. As a senior member of the group recently said, “We will not discuss what type of political system should we apply in Afghanistan because it is clear. It is Sharia law and that is it.” With regard to women’s rights in Sharia, a spokesman for the group recently said that there is no ambiguity about women’s rights in Sharia.
Now, let us examine each of these arguments more closely. Is the experience of the past 20 years conclusive proof that democracy and elections will not work in Afghanistan? I do not think so.
First, virtually all developed countries of the world are democracies. This shows that democracy as a way to organise a society has a lot of empirical merits.
Second, the struggle for democracy in Afghanistan did not start in 2001. Afghanistan had a constitutional monarchy with a popularly elected parliament in the 1960s. In fact, the constitutional movement in Afghanistan dates to the 1920s – the early years after independence.
Finally, the experience of the past 20 years in Afghanistan, despite all its shortcomings and flaws, on balance, produced better outcomes for most Afghans compared with the period of the Taliban’s Islamic Emirate in the 1990s. The failures of the last two decades can be better explained by denied promises of self-governance because the post-2001 leaders of the country centralised power and behaved as authoritarian rulers. The way to remedy the ills of the past two decades, while preserving the benefits, would be more self-governance and representative governance, not elitism, authoritarianism, and centralisation of power.
Is the lack of precedent for democracy based on popular elections in pre-modern Islamic thought conclusive proof that those concepts are not “Islamic”? I also do not think so.
First, democracy – as we know it today, based on popular elections – is a new phenomenon in the world. It was enabled by the technological and socioeconomic transformations that took place during the past few centuries. Therefore, there is nothing surprising about the fact that pre-modern Islamic thought did not encompass such institutions.
Second, if one observes the history of political rule in the Muslim world, even during the period that the Taliban tend to privilege, one can identify different types of governance and methods of selection of rulers.
The four righteous Caliphs were selected in different ways, including through open consultation with the community of believers. This suggests that early Islamic political thought was opened to a multitude of practices.
Finally, if one attempts to inductively articulate the basic principles of political governance in Islamic thought and political history, one is likely to include public consultation, promotion of social good, collective decision making, advice, and many similar principles. Not only are these principles not inherently incompatible with representative governance but many of them may also be better operationalised with representative governance. We do have empirical support from within and without the Muslim world to support this claim.
Regarding the laws of the state, is Sharia “law”? Is Sharia beyond debate? First, when Taliban representatives talk about Sharia, they are talking about Fiqh, which is the human understanding of Sharia and which is pluralistic and fallible.
Even in classical times, as the fundamentals of jurisprudence were consolidated and the debate over them declined, there were still multiple schools of jurisprudence within Fiqh and strong disagreements within each school (schools of jurisprudence emerged in 10th-11th century CE and they came to dominate the Fiqh discourse by the 12th century CE).
In modern times, faced with the transformative effects of modernity and colonialism, the rich diversity of opinions within Fiqh has reappeared, a development that is often considered a return to free juristic reasoning or Ijtihad. To take one example: mainstream views within Fiqh on women’s participation in public life ranges from women needing a chaperon to go outside, a view favoured by the Taliban in the past, to women being able to lead a state. Given this rich diversity of views within Fiqh, it is and should be the subject of discussion and deliberative mechanism of collective decision-making.
More importantly, Fiqh is not law. Fiqh seeks to elucidate the instructions of Allah regarding the outward behaviours of Muslims. As such, Fiqh encompasses all possible actions and inaction; every conceivable act has a moral weight in the Islamic worldview.
Within Fiqh discourse, every possible human action can be the object of certain moral demands falling on the spectrum of prohibited, reprehensible, permissible, commendable, and mandatory. A wide range of issues – from how Muslims should drink water to how Muslims should wage wars – is subject of Fiqh discourse.
Law, on the other hand, is state command backed by the state monopoly of violence. At the core of the law is coercion. If one equates Fiqh with state law, then it would mean that the state coercive apparatus can be used to shape every aspect of human life, which basically constitutes totalitarianism. Most areas of human life should always remain outside the scope of state power. State law and Fiqh should remain apart.
Of course, there are areas of human life where the state should intervene. Fiqh is not neutral about public affairs and governance. However, Muslims should debate when state intervention is appropriate and how state intervention should relate to the pluralistic Fiqh discourse.
Those debates should result in choices made through a deliberative, collective mechanism by representatives who are accountable to the population affected by them. In other words, these choices are political, not jurisprudential. Are there no jurisprudential constraints on these political choices? Of course, there are, but these constraints are arguably few and themselves subject to debate.
Most Muslims countries in the world today have accepted that state through a deliberative, collective mechanism of decision-making accountable to the population, ie, an elected legislature can enact laws to help the Muslim community prosper as long as they do not contradict certain commonly agreed-upon basic principles within the universe of Islamic jurisprudence. Legislations can and often do draw upon the rich Fiqh discourse.
Article 3 of Afghanistan’s constitution conveyed this principle by stating “No law shall contravene the tenets and provisions of the holy religion of Islam in Afghanistan”. Article 121 empowered Afghanistan’s Supreme Court to enforce the limits of Article 3 through judicial review of legislation. The legislature of the Islamic Republic, too, adopted and rejected legislations based on the legislators’ understanding of what the limits of an elected legislature are.
In short, how Muslims should live their lives to please Allah and obtain salvation, and what rules the state should be allowed to enforce are not the same question. When there is overlap, then the state legislature should be guided by the best interest of the community, as determined through a deliberative, collective mechanism of decision-making accountable to the community, ie, elected legislature. Most Muslim countries of the world do this. We should, too.
In the absence of such representative institutions, no group can claim to represent Afghans while making unaccountable political choices disguising them as undebatable jurisprudential pronouncements.
Author – Haroun Rahimi