Edraak Webinar Series #6 - Constitutionalism: The Missing Link in Muslim Democracies

I also want to thank my friend, and certainly the person in charge of the Iln with his vision moving forward. Brother Ali Salman. So, as Sister Noor has mentioned, my topic today is constitutionalism. the elusive Missing link for Muslim societies and their quest for democracy. And before I begin, I think it's a very important moment that we are facing, irrespective of where we live, and particularly when it comes to where I am based. In the United States.

where the Us. Constitution, being the supreme law of the land, is now being tested, and it is being challenged in ways that perhaps we haven't seen before with the new and incoming administration of of Donald Trump.

But at the same time, along with the stress tests that the Constitution is facing. There is an ideology that undergirds American society and has done so for almost 250 years, and that is the ideology of constitutionalism, the belief in a constitution then serving as a guide for, and a legal construct

for a society, and every society, of course, has to have those moorings in order to be functional in order to be just in order to create a sense of equitability, and also to create, then, a sense of confidence that the body politic will have in the State as a whole, and particularly in the government, to then serve its interests. And this, of course, is very critical when that government is a democracy, because democracies are

of by and for the people. So it'll be interesting to see over the next 4 years in the United States how Constitutionalism will both be tested, and whether there will be the kind of appetite, and I would even argue the insistence on it being perpetuated, and the ripple effect, of course, of this will play out in other so-called Western countries as well as in Muslim majority countries as well. Well. What is constitutionalism?

I would argue that it is the ideology that affirms the notion that governmental authority is derivative of and limited by a body of law, that not only checks the scope and scale of that authority, but also reinforces and guarantees the political will of the people. It represents a reconfiguration of the Social Contract between governmental authority and the individual by shifting the relationship from between sovereign and subject to one of state and citizen.

Many modern Muslim countries have a contentious engagement, unfortunately with constitutionalism, because they see constitutions as primarily, if not exclusively, human, constructs, thus prima facie as being incompatible with the Islamic presumption of the supremacy of the Quran.

Well, constitutions are a necessary sine qua non, without which nothing toward not just popular political enfranchisement. But I would argue also to serve as a guarantor for the Islamic imperative, for human dignity and human flourishing to impede the implementation of a constitution is essentially to impede the Muslim to fully be the Khilafit Allah, the vice regent on earth. For, alas! Vanatala!

Some Islamic scholars may be dismissive of the compatibility of constitutionalism within an Islamic paradigm, arguing that constitutionalism is purely a Western modern construct, and therefore at odds with Sharia, after all, the intervention and engagement of the West with the Muslim world is not one that can be seen as a positive one at its inception when it comes to the forces of colonialism, imperialism, and exploitation.

Unfortunately, this idea of the constitution and constitutional constitutionalism, being a Western modern construct, is an unfortunate, erroneous, and a dangerous presumption. According to Nader, Sia, Hussan, Sharia is compatible with constitutionalism. In fact, he argues that its principles can, in fact, serve as a formal source, or even an inspiration for a constitution. Thus the question of compatibility to the modern nation state is not.

if, as what dominates a fair amount of Islamic scholarly discourse. But how is that compatibility going to be there. The key elements of constitutionalism include the separation of powers within a government, a coherent system of checks and balances, a representative form of government and the centrality of a participatory form of citizenship.

Early Islamic history demonstrates that not only are the Quran, IE. The sources of Sharia and constitutionalism compatible, but that a constitution enacted in a Muslim state is the 1st such document in world history. The Medina charter of the year 622 of the common era, or, of course, year. One of the Hijabi calendar serves as an exemplar of social and political engineering.

It reorganized Medina society from a tribal centric model comprised of pagan and Jewish communities to one that included a refugee, migrant Muslim community into an unprecedented social contract, of mutual rights and reciprocal responsibilities among the inhabitants of Medina. The collective responsibility created within the charter gave the world the 1st example of true egalitarian and inclusive citizenship.

The Medina charter advanced the key priorities of constitutionalism, namely, the establishment of a social contract consisting of those reciprocal rights and responsibilities among its constituents, and the equally critical notion of protection for one another as well as for the polity. As a collective minority. Communities were granted the additional protection, or of their respective group identities and faith affiliations being preserved.

Furthermore, the Medina constitution or charter created a reimagination of the social compact that transformed Arab society to a post-tribal model that a constitution enfranchised various demographics that had differing religious and even socioeconomic backgrounds into equal members. Qua citizens of Medina was not only innovative in the Arabian Peninsula, but also in world history, especially because what was achieved at its inception

remained elusive even to many efforts for constitutionalism, where such inclusion and enfranchisement was an evolutionary, even glacial process. I see someone asking if I could share slides. Actually, I don't have slides. I'm just going to be, if you don't mind giving a straight lecture. The 11th century Islamic scholar, Abdelhamid Al-ghazali, enumerated the Maqasida Sharia.

The 5 foundational goals in Islam as focusing on the preservation of religion and faith, the Deen life or nafs, lineage and progeny, nasal intellect, Akal and property and wealth, or mal. As such, these goals are largely focused upon the individual. The question requiring assessment is, how many of these goals require the State as the primary, if not exclusive, vehicle of implementation and enforcement.

Some will, in fact contend that Sharia is not synonymous with Islamic law in the sense that the former is merely an interpretation of law, that legitimizes and mandates state authority to enforce, often for its own perpetuation within a State model. Islamic law may be applicable to all members of that society, irrespective of the religion to which they subscribe.

Each religious community arguably shares a common ideological affinity, vis-a-vis, the Maqas of their respective faith. Tradition, as it pertains to a functional, righteous, just society.

Even the German philosopher, Jurgen Habermas, concedes that quote ideally legal rules to regulate a matter of equal interest of all those affected, and to that extent give expression to generalizable interests unquote a key distinction in understanding the forces that govern humanity is the distinction between law which governs societies and ethics which governs the individual

for the purposes of the Muslim, in how he or she navigates everyday life. It is the ethical imperative that allows for adherence to divine edict. Moreover, this focus allows the believer to be a Muslim, even when operating outside a State that ostensibly codifies Islamic law.

This engagement is deeply rooted in Islamic history, as the prophet adhered to divinely prescribed tenets during the Meccan period, which, of course, was dominated by Pagan Qureshi authority. In the 12 years that commenced with the 1st divine transmission, according to Islamic tradition, in the year 610 ce.

The establishment of the 1st Muslim state in Medina, 12 years later, certainly allowed for Islam to be implemented and enforced by a government apparatus, but it was hardly a sine qua non for the aspects of religion, of greatest concern for the believer or for the furtherance of the Muqas Sharia. A large segment of Islamic law, especially that which is of chief concern to the vast majority of Muslims is what may best be described as personal law.

This includes liturgical requirements, such as prayer and fasting and giving Zakat. It also involves hygiene and matters of personal development, such as dietary guidelines. Perhaps the area of law that may be regarded as requiring state intervention is family law, with marriage, inheritance, divorce, and custody as critical issues.

It is difficult to justify the need for the State to involve itself in the 1st 2 categories. An argument may be made for family law to be arbitrated by the State. But this was not always the case in Islamic history. Much of family law was procured between families and individuals, often with clerical, not with State intervention.

Marriages, for example, did not necessarily require state sanction, as they did not involve a relationship with the State, as modern marriages do with distinctions of economic and political consideration made based upon marital status. For example, income tax rates, public benefits, etc. Clearly, the enforcement of Islamic law is not contingent upon State action. Muslims have, and continue to practice their faith in a self-policing manner.

while the implementation of Islamic law may not require State action, however, the historical development of Islamic law suggests that State involvement was inevitable from the inception of Islam as a religio-political phenomenon. The prophet sallallahi wasalem's establishment of the 1st Islamic state, in 622 ce. Represented the confluence of political, theological, and legal authority.

After his death, 10 years later the successor political leadership of the State worked with the religio-judicial authority, the Ulama, to codify and enforce the law for a polity that began to expand throughout the Arabian peninsula, and beyond, at what can best be described as a frenetic speed.

Historically, the law State nexus resembled the separation of powers evident in, for example, the American government system, with the Khalif, the titular head of the Muslim community, serving as the head of the executive branch, so to speak, being responsible for the enforcement of the law. The Ulama, by contrast, had a role in legislation, provided it was extraneous and not in violation with the sacred law. The cadis or judges were responsible for the interpretation of the law.

The unforeseeable rate of expansion of Islamic rule from the 7th to the 15th centuries of the common era brought with it a host of challenges and opportunities. It augured the absorption of new conquered peoples with a tremendous degree of cultural and religious diversity.

It also involved the appropriation of existing legal practices that were not considered to be anathema to Islamic tenets, as is the example of the adoption of the Byzantine tax system by the Khalif Omar. After his conquest of Damascus, in the year 635 of the common era. Islamic political expansion brought with it the concomitant extension of Islamic law and its enforcement in the Empire.

but it also created the obligation to protect and preserve the agency, authority, and authenticity of religious minority communities. Deference to these groups was best exemplified by the Millet system. During the Ottoman Empire, where each religious minority community, including minority, Islamic sects received the Sultan sanction, to designate its own leadership, and to maintain full authority over its own personal religious law.

The State would not interfere in matters of an intra-faith nature. Nor would it be responsible for legislating and imposing religious laws upon each respective faith community on issues that occurred between faith communities. However, the State would then be the arbiter of such disputes and or transactions.

Current discourse on the role of the constitutional system within society, particularly as the foundational architecture for the legal construct in which societies function is understandably located within the architecture of the modern nation state in culturally and religiously hybrid societies, John Rawls's notion of overlapping consensus has tremendous currency and influence, yet Rawls himself is subject to an Aporia symptomatic of liberal discourse, writ large

questions abound as to whom within a Rawlsian society has agency to participate in such legally related narratives as justice. After all, Rawls himself appeared to have constricted the scope of participatory eligibility from the person to the citizen. A subgroup of personhood. Inclusion, therefore, becomes a contested commodity even in so-called liberal, tolerant polities.

Inclusion, and its concomitant negotiation of tolerance is of great concern for those commenting on the future of modernity, and particularly Western modernity. For Habermas he accepts that in a post-secular society religions and even religious difference do exist within a shared secular space. Yet religion registers require religion requires limits within the social space, to the ethical, not political, imperative.

as a prerequisite for participation within the discursive space, the burden upon religious communities. To walk a fine, if at all existent tightrope between the ethical and the political, is precarious to the point of impossible. It is a religious narrative that must prove it can adapt to the surrounding society in order to earn its tolerance. Notwithstanding such a potential challenge and burden. Habermas also states that quote, there can be no inclusion without exclusion unquote.

This acknowledgment suggests latitude for the justification to exclude particular religious subgroups in favor of inclusion of religion in its broader abstraction. religions that espouse an ethical focus that is congruous to the particular society in which it is located, can find space and ideally agency within such a paradigm, provided other factors for exclusion, based on latest or overt prejudices are curbed and are overcome.

societies encourage and codify tolerance in the modern context via constitutionalism. A religious intervention is not inimical, therefore, or incompatible to such efforts. Now the essentialism and the eternality of the modern nation state. The fundamental sociopolitical entity of the modern era are actually now under scrutiny for their viability and necessity

for Habermas quote today, as the nation State finds itself challenged from within by the explosive potential of multiculturalism and from without by the pressure of globalization, the question arises of whether there exists a functional equivalent for the fusion of the nation of citizens with the ethnic. I'm sorry the ethnic nation.

unquote as haberma strives to make sense of the forces of globalization in the modern nation state, while simultaneously attempting to maintain a social, political model

whose elemental ontologies are now being scrutinized and even confronted. He fears that the battle may already have been lost, contending, the nation state, conscious of its historical achievements, stubbornly asserts its identity at the very moment when it is being overwhelmed and its power eroded by the presence of globalization unquote. Now the irony is not lost that Habermas accuses the nation state of a level of obduracy detected in his own stubborn effort to keep it buoyant.

Globalization and its impact on the nation state is a reality, and one that has implications well beyond the mere philosophical meditations of political engagement. Globalization brings 2 challenges to humanity. First, st the ability for peoples to address, acknowledge and adapt to cultural and civilizational pluralism. meaning essentially moving beyond cultural tribalism

as technology communications and migration catalyze diverse engagement. The recognition of human and civil rights will similarly increase all the while confronting the inevitable reactions of ethno-chauvinism, sectarianism and tribalism. Current lurches toward hypernationalism, neo-fascism and nativism are rejoinders to the post-national transnational nature of globalization.

In addition, globalization is facilitating the rise of a new dimension of science, including the development of artificial intelligence and automation on an unprecedented scale, scale. with the prospect of technological singularity occurring within a generation meaning artificial intelligence reaching and then surpassing human intelligence. The very definition of personhood will be called into question.

The impact on dignity and identity may be to reduce humankind to a polyglot machine measured only by a highly utilitarian calculus. Each of these issues will affect the Muslim world, and the need for Islamic law to address these weighty issues is critical.

The inquiry among many is whether Islamic law has the mechanisms to cope with and realign itself to paradigm shifts. That these emergencies will doubtless create as mentioned before, the purpose of law is to regulate society, and the purpose of ethics is to regulate the individual

societies that have highly structuralized mechanisms of law tend to provide clear and explicit parameters for what is expected of the individual, and that individual's engagement with society, with the concomitant apparatus for enforcement of that legal body. Conversely, in the absence or relatively minimal presence of such structure, the burden and the agency to adhere to the legal injunctions obligated upon the individual, rest upon that individual.

The ethical, therefore, eclipses the legal as the primary modality of regulation. Now, while ideally serving as a model for an ethical, productive life that adheres to divinely ordained principles of social and personal conduct, Islamic law has been deployed as the law of the community, but also has been enlisted by the State for its legitimizing power in support for political authority.

There is no dearth of evidence of regimes that cynically utilize Islamic law to further their own ends of social control under the guise of protecting the public ironically from itself. Currently religion and religiously related law is being leveraged by various State actors against the ever encroaching forces of globalization. In homogenizing cultural and legal modalities in their respective countries. The resulting expression is religious nationalism.

Several campaigns to reconcile the Quran with constitutional projects have yielded failed efforts chiefly as they lead to asymmetric and often unnecessary battles between the secular and the spiritual constitutions in the imagination of many in the Islamic are not only secular, but catalysts for secularization and by extension the removal of the Quran qua Islam from the public sphere they are viewed with suspicion as a Western creation design, as were so many aspects of the colonial project

to specifically undermine Muslim society and by extension Muslim identity. Similarly, Muslim societies that profess to be governed by the Quran as its supreme source of legal and political authority seldom offer space for popular representation, as if to erroneously imply that such a concept is antithetical to Islam itself.

but contemporary Muslim societies are not agnostic to constitutionalism. They have existed before the rupture of Muslim power by way of colonialism and the destructive forces of European intervention after World War one. the Ottoman Empire's, 1876. Constitution followed the inspiration of the Medina charter by enfranchising all subjects in the Empire, irrespective of their ethnic or religious affiliation. making them full and equal members of the realm.

That constitution introduced checks on the previously unlimited power of the sovereign or the Sultan in large part by creating a bicameral Parliament that included an elected Chamber of Deputies. Now, while the Constitution may have been suspended for 30 years, from 1878 to 19 0 8. It was reinstated in that year during the Young Turk movement, and served as a critical template for Turkish society. When Mustafa Kamal established the Turkish Republic in 1921 from the ashes of the Ottoman Empire.

along with the Ottoman Empire. The neighboring Persian Empire established constitutional rule in 19, 0. 6. Inspired both by the Turkish experience and by the 19 0. 5, constitutional crisis in Russia, Iranians sought to place curbs on the autocratic nature of the Shah's power. The Majlis was the vox Papuuli in the government, and was able to place constraints on dictatorial fiat.

The well-intended call to bridge the divide between State applied legal systems and religious communities is therefore predicated on the existing architecture of state and faith communities. Yet such proposals require foundational structures that are equipped to, if needed, redefine and recalibrate the very institutions and interactions involved in such interventions

as state authorities undergo various degrees of transformation ones that invariably affect their legal systems and the ability to interpret, apply, and enforce the law. So, too, are religious communities confronting how to engage the State when that State is itself facing an ontological reassessment. invoking the analogy of states of matter. Religious legal traditions may assume the bulky, inflexible structuralism of a solid.

while others may bear little more than an ethereal gas-like morphology in its interaction with societal constructs and concerns. Within the public sphere. Islamic constitutionalism, on the other hand, I would argue, appears to be most similar to a liquid possessing the flexibility to take on the shape of the cultural, social, and political vessel in which it is negotiated and deployed

as such. Perhaps Islamic constitutionalism is best positioned to adapt to the ever shifting ground in a world where globalization, among other factors, blurs, breaks, and rebuilds, boundaries and borders.

But yet perhaps the greatest hope and promise that Islamic constitutionalism provides in a world that is now moving through its transition with globalization forces, as well as negotiations and contestations regarding multiculturalism is the fact that, unlike other constitutions, particularly in the West. the Medina charter, the inspiration for the Islamic notion of constitutionalism was born of the kind of diversity that globalization and multiculturalism bring today.

If one takes an examination of the Western constitutions that develop after the Enlightenment period. particularly those in places like France as well as the United States, we find that enlightenment philosophy was actually based, not just on Liberalism and a focus on the individual, but was based on sameness.

As Europe reorganized itself in the aftermath of the 30 Years War, from 1618 to 1648. The peace of Westphalia then configures Europe into various nation states brought about by homogeneity, where you have people who are bonded by a common language, a common race or ethnicity, a common culture, or a common ethno-racial identity

as such. When the constitutions were being crafted in so many of these countries, they were predicated on the works of enlightenment. Philosophers like John Locke, Jean-jacques Rousseau, for whom the Social Contract was at least implicitly, if not explicitly, based on sameness and homogeneity.

Well, if that is the case upon which Western constitutions are predicated, then we find arguably the kinds of fault lines, weaknesses, and vulnerabilities in Western constitutions to face, confront, and accommodate their diversity, based on race ethnicity, or even on religious affiliation.

By contrast the Medina Charter was established out of hybridity. It was established out of a sense of multiculturalism and multi-faith communities, Jews, Muslims, and Pagans, coming together and forming a new social contract which reflected the reality in many ways, therefore, the Medina charter was a proto-modern constitutional construct in order to deal with

the multicultural, and of course, later, with the expansion of Islam globalizing impact of a phenomenon that then now has 2 billion adherents in every single part of the world. I would argue that not only, therefore, is Islamic constitutionalism a benefit for Muslim societies to implement more fully, but that Islamic constitutionalism more accurately reflects what is occurring in societies all over the world. Jazaku lachred, and I'd like to go ahead and welcome any questions that you have.

Noor | Islam & Liberty Network: Thank you so much, Dr. Said. That was a really insightful lecture, and I think that something that perhaps like maybe not everyone tends to think about is how constitutionalism is not some. It's not a Western concept.

Noor | Islam & Liberty Network: And you know, I think, as time has gone by, and as you mentioned also you talked about colonialism and how colonialism has kind of shaped our thinking. And it's really wonderful that you took us down the road of history to help drive this point, so I would like to welcome Dr. Ali Salman, who will be leading the moderated discussion.

Noor | Islam & Liberty Network: and of course, to our attendees. Please do not hesitate to raise your hand and contribute, since we're having a more intimate discussion today. Noor | Islam & Liberty Network: And of course, yeah. Without further ado, please, Dr. Ali, take the floor.

by recalling to another historical document in in the world's history. And that is the document we all know as Magna Carta as again a foundational document, which you know, according to a general understanding, define the limits or authorities of the sovereign over the subject, but also to to feudals right. And so there was this struggle, which then, according to Frederick Hayek, Book, constitution of liberty, also paved a rule of law, movement, or rule of law concept in the European context.

and for for many centuries I mean that that has remained a reference point in in European political discourse, and then it is believed that it also became a foundation for democratization in the urban context much later on. So we see more maturity, at least according to current conceptualization in the evolution of democracy, and is also the concept of rule of law.

And in when you compare it also, let's say, with the charter of Medina, with Misaki Medina. Of course you have referenced how it was also used as inspiration in the Ottoman history. but my understanding it is not an active source in Muslim political discourse in the way Magna Carta had been.

And perhaps that's that's why we lag behind in terms of Muslim society. Muslim majority societies in acceptance of democratization principle. That's why there is a democratic deficit. Or obviously, even today, we talk about in so many

countries. And and we have seen what has happened after the Arab spring, the reversal of Arab Spring in so many countries, despite the adoption of the democratic principles. So I was just relating, since we are today talking about a lot of history. I just wanted to know your thoughts on on on this, and I have a later question. But I'll I'll hold now and invite your thoughts, and maybe others can also join.

And really, Magna Carter, in 1215, then serves as particularly in England, and I would argue more in sort of broader Western society as the 1st domino that then needs to be toppled in order to get to what we now call democracy, where you have the popular representation of the people, I think what's really interesting about the limits on the sovereign that Magna Carter inevitably brings about is a very important limitation that.

And I'll get to this from the context of the Islamic hit in the middle in a minute. One of the limitations wasn't just on his temporal power, and taking away that absolutism, or what could also be regarded as tyrannical power. It also then breaks the sovereign's hold of the narrative of divine right. because when it came to sovereigns until Magna Carter. and perhaps this was what caused the reluctance of people to then challenge the the power of the sovereign was the weaponization

and the manipulation, and the exploitation of this idea, that the sovereign ruled by divine right. Now, take, for example, the royal seal of the former and now deceased monarch of England, Queen Elizabeth Ii. The descendant, of course, of King John. Her motto was, meaning God and my right. So she was claiming 2 sources of authority for her rule. One was basically saying that she was a descendant of King John, and the lineage that began in 1066, with William I. Or William the Conqueror.

but as the head of the Church of England, and as a defender of the Faith, or 2 other 2 of her other titles she was claiming at least, or implying some kind of divine sanction

for her rule. Magna Carta actually starts to tweeze that away, and that presumption is no longer there, and that apprehension, as I said, to go ahead and challenge the sovereign's authority was no longer there, and this then proceeds until you get to the situation of people like Charles I. Charles Ii. The establishment of the centrality of the Parliament under Cromwell, etc. Interestingly enough, that didn't exist in the Islamicate. Broadly the idea that the sovereign had to be placed in check

because he was claiming divine right, the closest that we have to. That, I would argue, comes under the Safavids with Shah Ismail I. When he establishes the Persian Empire in 15 0, 1, but that had a lot to do with culture as well, because in Persian culture the Shah or the Shahin Shah is seen as almost a supernatural figure, going all the way back to the Achaemenids with Darius and Cyrus and Xerxes, and certainly Ismael was leaning into that in order to claim legitimacy for his rule.

but I find that the lessons to to take from Magna Carta, which aren't really tweezed out as much is once you start to decouple the presumption of divine right as being the reason why sovereign power should not be challenged, that in its very nature is then the beginning of secularization.

That is the beginning for a society to then understand that you have distinctions of power that are not melded together between religious authority and state authority. And again, I would argue that when we look at particularly the Caliphate. it is very misunderstood as an institution by Muslims, that the Caliphate was somehow or the other a sacred institution, or that the Khalif was in charge of essentially helping enact religious law. He was simply enforcing the law.

Where Islam worked in its most elegant was these boundaries. The Ottoman Empire had, for example, the Sheikh Al Islam, who was, although within the government apparatus, operated with a high degree of autonomy from the sovereign himself. And so I think that in some ways Magna Carta was, as often as in the case of the Western Society. addressing a particular situation historically, politically as it emerges in the early 13th century.

But it is a history that did not occur in the Muslim world. And therefore, again, when we're looking for answers, for solutions in the Muslim world. Looking to the evolution of constitutionalism and the relationship between sovereign and subject which then evolves to state and citizen is not something that can easily, or perhaps even should be transferred and imposed upon an Islamicate, because the the genealogies of history, coming to that point are so very different.

and I think the other point that you made Dr. Ali is extremely important, too. The absence of the Medina Charter as an active component of political discourse in the Islamic. It I would actually argue that there's an even bigger problem. Dina Charter is really almost excluded from where it really belongs. Sunnah discourse.

I find it to be remarkable when people talk about the Sunnah, and they invoke it, whether it is in a Jumah khutbah or in scholarship. Such a critical, a critical document, and something which establishes the entire social contract of Medina. In which, then, Islamic. I guess we would. What we would call doctrinal elements are then applied, is completely left out of the conversation.

and of course, because the prophet establishes it, establishes it very early on in the Medina period one would have expected that this should be intuitively regarded as fitting within the Sunnah. but its erasure, or its exclusion from so much of the the conventional

religious discourse within the Muslim community seems almost willful. I wouldn't go ahead and say that it is. I think it's just, perhaps a form of neglect which is nonetheless problematic and even dangerous. As we tackle issues of political engagement in Muslim communities.

The whole idea of Secularism. Secularization of society is also very, very pertinent. I think it is particularly important when we talk about constitutionalism

with respect to Islamic societies and with reference to Islam. Now we understand that, you know Secularism, there is no agreement on the meaning of the word itself, although in in most of the Muslim societies this is a phrase which we don't like to refer to, and this is almost looked at, as we, you know, said something opposite to religion, like Ladiniya as we would refer.

But we understand that, let's say in the French tradition, it may be a complete exclusion of religion from the public's affair, while in an American context it is different. It is more of the state neutrality towards religion, where a state is actually supporting a religious expression, religious institutions for all, no. or just for one sect. And so so that's there are different notions of Secularism within the West itself.

And similarly, when we look today, there are, you know, in the constitutions, in Muslim societies, for instance, look, Indonesian and Malaysian experiences are quite different in that respect, both in Southeast Asia so very similar cultures in terms of how Islam arrived in that part of the world. But it's quite remarkable that in Malaysia Islam is a very integral part of the Statecraft

legislative institutions, and there are religious police, for instance, in in Malaysia, in Indonesia. We don't have that in Indonesia we have pancasela, and we have sort of neutrality. But but you know, dominant population is of Muslims. Yeah. So I would like to invite your thought on the understanding of Secularism or secularization in Muslim societies in particular. and how this may or may have any implications for future of democracy in our societies.

Secularism by its very and etymological construction is is means. It's an ideology. And once you have an ideology like that, and you yourself subscribe to one. they may not necessarily be compatible ideologies, especially if at the very foundational level. There is a problem, for example, structurally, this is why atheism and other religions aren't compatible, because at the very center. Their belief of God, or the absence of the belief of God, is essential to these ideologies.

I think that when we look at, then the secular. we realize that there's actually been quite a bit of secularity, as we would understand it in a Western construct within the Islamic hit. Historically, as I mentioned before, the Khalif was not responsible for making law, he was simply responsible for enforcing it as such. That means that the entire institution of the Caliphate was actually

a secular institution. Now, that doesn't mean that the people aren't motivated by guided by influenced by their own personal faith. Ethos. But I think we need to be a little bit more precise and accurate, by which, when we look back on our history. how we necessarily go ahead and characterize things, part of the reason. I would argue that we then.

as we look backwards, impose or impute upon history an imprecise lens is because of the trauma of colonialism and imperialism, and what was taken away from Muslim society, which is the agency to decide or choose on their own. I would suspect that a thousand years ago the discourse within the Muslim world was quite different. There wasn't the diffidence that you see a lot of Muslims facing today, and I would argue that, as you mentioned the examples of Malaysia and Indonesia.

some of the distinctions as to how things are negotiated in one country as opposed to the other, have to do with 3 factors. One is simple mathematics. The numbers of Muslims in each respective country as a percentage of the broader population. the level of syncretism and the acceptance of syncretism.

which, of course, is predicated on an idea of confidence that if you do not feel threatened, you are therefore not going to be threatened when it comes to appropriation, or a more permeable form of Islam.

And then the 3rd aspect which relates to that is the identity politics, identity. Politics are shaped with a sense of your confidence or the lack thereof. If you feel as though you are an insecure society, something may be taken away from you, then you then place certain markers in the sand as lines of demarcation

and lines of assertion, of identity, and in this sense Muslim-based authority. So I think those are some of the challenges that we face when it comes to understanding societies, and whether Muslims, who, in fact, have that agency. feel comfortable enough to deal with the dynamics of the demographics of those societies, and I would I would argue that that probably informs the way that Malaysia and Indonesia have different trajectories and different perspectives of this.

does then play on on the Psyche of Muslims, either individually or collectively. And you see, then, this idea of a nostalgia, of something that was lost the same way that there's as Professor Akbar Ahmad calls it, the Al-andalus syndrome, that when people visit Cordoba and the Mosquita. the sense of loss that the largest mosque outside the Middle East at the time had now become a church and an active church, not just simply a museum

or a secular space, that idea of of something being conquered, especially of a of a religious space. I would argue, then, that this idea of the nostalgia of the Caliphate has far more to do with identity than it has to do with the sense of somehow the other. There's going to be the reinvigoration of Islam as a potent political, economic, and civilizational force. If anyone looks at Caliphal history, one knows that the Khalif was also the Sultan, at least since 1517 in the Ottoman Empire.

After the Ottomans under Salim, I conquered Egypt, where the Caliphate was in this sort of strange limbo state since the fall of Baghdad in 1258, and the office of the Caliphate had been moved. But if you look at, then the fusion of political power with the office of the Caliphate, the last 150 years of the Ottoman Empire was a rather sclerotic institution of the Caliphate, leading to what became the period of the sick man of Europe as the Ottoman Empire was known.

I would say that, with the exception of Abdulhamid Ii. And the kind of revivalism of his of his era as being this Pan-islamic leader. and the Caliphate was already on life support, shall we say, if not really moribund and and terminally ill as an institution within the context of the Ottoman Empire?

But that didn't mean that the Caliphate as an institution could not be revived. It's just that people didn't want it at the time. Those who were the pretenders to the throne, including Sharif Hussein of the Hijaz was disqualified because he helped bring about the end of the Caliphate with his complicity with the British in the Arab revolt during World War. One others,

tried to perhaps assert or lay claim to the Caliphate as an institution, because they realized that it still holds space within the Muslim imagination as a revival of Muslim power and Muslim identity, more so than Muslim piety. So in that sense alone we could say that that's what makes the Caliphate, a secular institution.

Noor | Islam & Liberty Network: Yeah, you can hear me. Right? Okay? Then I'll continue.

Noor | Islam & Liberty Network: because there's also discussions about how, with the new leadership in Syria, there will be a new drafting of a new constitution. Do you see any potential prospects and opportunities basically for bringing these ideas into discussion in the context of Syria? And what thoughts do you have about it? As someone who Noor | Islam & Liberty Network: speaks and is very well versed on this area and subject.

in part because of the very tragic trauma that the country has faced, not only since, as Dr. Ali referred to it the Arab spring, but really from the very inception of Bathist rule in Syria. It's not just when Bashar Al-assad took over in the early 21st century. But of course, his father excuse me, Hafiz Al-assad, being there since 1970. This sort of secular, if you want fascistic state that the BA'ath party brought about

the marginalization. The persecution of of the Sunni population is reflected in the Sunni Assyrian population and its jubilation, and in some ways. I would argue also less than critical

view of the current regime that's there, and part of that is again born of trauma, that many who are most elated by the transition of power, are ones who were very personally affected by the brutality of the Assad regimes. So that's occurring there. At the same time. There's a lot of trepidation among religious minority communities within Syria who had backed.

for whatever reasons, either proactively, ideologically, or out of a sense of hedging their bets the BA'athist regime in in Syria. So right now we're finding that there is perhaps a sense of euphoria on the one hand and and downright fear on the other. There's also added to this the cynicism and the skepticism that many have, that this current regime, especially with the speed that they were able to

change the destiny of Syria must mean that there are strings and puppeteers that are involved, that there are hidden hands which means that there are hidden agendas that are involved. And we see this playing out with the kind of scrutiny that the Damascus regime has when it comes to, will it take a position on Gaza. Will it take a position on Israel? And it seems as though, while those are important questions, for for some they may be the wrong litmus tests.

because these are very ad hoc issues that are very temporal. What we're talking about here is having a constitution that needs to be proactive in then establishing not only what are the political dynamics of Syria. but also the identity of Syria moving forward. The biggest danger that will happen is if the Constitution is going to be negotiated in response to contemporary issues, and particularly contemporary issues that are happening outside Syria.

If that is the foundation upon which the country is going to move forward, then I fear that the Constitution is not going to be a stable document. If you see the 2 examples of where constitutions have worked very well. it is because, they reflected the proactive realities moving forward. One, as we've talked about, of course, is the Medina charter historically, where, as the prophet comes in. he recognizes that the demographic shift, with the inclusion of the Muslims or the Muhajiroun.

requires then, a realignment and a recalibration of the Demographic Social Contract, and is able to do so in perhaps such a revolutionary way, by convincing the various parties, the Muhajirun, the Ansar, and the Jews to think beyond the tribal model. to a trans-tribal model, where the Baya or the allegiance is given to something more transcendental to Medina and to each other as opposed to your Baya, being given to the blood of your genealogy, which is how tribal society was.

The other example, I would argue, is in the New South Africa. When Nelson Mandela comes in and is able to reorganize the political engagement between what had been the oppressor and the oppressed in a smooth transition that did not then bring about recrimination, or reprisal, or revenge, is one of the really best examples of a constitution which then exemplifies not only the principles of Western Liberalism and democracy, but also the Maqas.

If you see again what Ghazali had then enumerated, those are all protected by the South African Constitution. So here are models that can be used. But what both the Medina charter and the Constitution of South Africa did was they stayed focused within the borders and the boundaries of their polity.

The Prophet was not concerned about what was happening back in Mecca. He was not concerned about Taif. He was just concerned about that particular region, and Mandela was as well. He was not looking at his constitution as being an example for all of Africa or other countries in Africa. He was staying focused on what were the realities and the needs and the specificities of his own population.

Noor | Islam & Liberty Network: Thank you. If I could just like something that I'm personally curious about. You did share a couple of readings. And oh, okay, wait. We have a Noor | Islam & Liberty Network: we have a comment from Dr. Zatul, but Noor | Islam & Liberty Network: how about? I allow you to speak? And you could share your comment as well, Dr. Zetu, if you're willing.

The argument of those who support the secular constitution is that the Al-quran and Hadith are not the main source of the law. Therefore Islamization should not be the policy of the government. On the other hand, people who support the Federal Constitution provide the basis for the government to implement Islamic policy in the country.

So my question is based on this kind of example of the polemic. What is your opinion about the debate on Secularism versus Islam with regard with regard to the discussion of constitutionalism in general. So I mean that what do you think I mean, it's not. I'm I'm not asking you to provide the specific opinion regarding Malaysia, but based on this kind of the pandemic. What do you think? Thank you.

I'm going to be a little bit provocative here, so if you could indulge me, I would say that most debates dealing with Islamization of constitutions and governments in Muslim majority countries comes down to unfortunately, just a matter of semantics. The idea that to Islamicize a society, you just

put the word Islam, or the word Allah, or the word Quran, and the word Hadith, literally into something, and it makes it Islamic. Or, conversely, this is what, then, worries people, that the inclusion and insertion of these words makes something less than secular, and I would argue that the literalism that goes along with this Islamization process is absolutely dangerous. There is a very simple way for Muslims to operate that occurs when they feel a little bit more secure about themselves.

and that is to delve deeper into the Islamic ethos if you will, and recognize and to find the Islam in concepts that aren't necessarily explicitly badged or branded as Islam. There's a sort of corporatist mentality. I would argue that has gone forth now that Islam, Inc. Islam Incorporated, needs to then be on the cipher of everything.

but no one talks about the ethical constructs or the moral constructs or matters like, say, the Maslaha and the Muammulat. I mean the whole idea about what is the purpose of Islamic law? What are the objectives of the divine project that Muslims, as the Khalifa Tallah, that the vice regions on earth are obliged to and are faced with and tasked with implementing.

I think that if you were to look at various constitutions, secular or ones that are allegedly inspired by in Muslim countries, by Islam. And if you were to take the names off the the the, what country of origin they're from. and if you were to use a lens of looking at Islamic principles and Islamic ethics.

I think you would find that in many cases Muslims would, if they're not just simply looking for words like Quran and Sunnah, they would find it difficult to distinguish between constitutions in so-called Western countries and ones in so-called Muslim countries, because the underlying ethical construct and the kinds of spiritual objectives that are, and social objectives which are then being advanced are very Islamic in their construct, and we again, I think, do ourselves a disservice by

just slapping the name Islam on it, and I have to then question whether that is just being done as a way to otherize other peoples and other demographic groups by putting that in. If the language was more neutral when it comes to the so-called language literal language of Islam. I think that that would

provide for what Ibn Khaldun called Asabiya a kind of a social cohesion, because at that point, then there is not the the kind of copywriting or exclusivism that happens when you you place this kind of language. I mean. This is what Habermas talks about that in the process of inclusion. Are you also, then, inadvertently or intentionally excluding people?

I find that when it comes to again looking at the constitution of Pakistan people forget that one of the architects of it was the the great Justice Cornelius, who was a Christian. but the constitution of Pakistan. Probably when it was 1st conceived, was arguably more Islamic when it comes to its ethics than the rather clumsy and awkward efforts to make it more Islamic by putting in language that doesn't necessarily reflect or codify the ethical construct.

So in that sense, Dr. Zatoul, I would argue that when it comes to Malaysia, and of course, Malaysia's demographics play a very big role in this. If there was the highlighting or the assertion of the Islamic principles in the Constitution more so than the actual syntax that I think, would be perhaps a far better exercise to undertake. Noor | Islam & Liberty Network: Thank you.

Noor | Islam & Liberty Network: Thank you. Thank you for the great question, and a really great response as well. Do we have any more Noor | Islam & Liberty Network: questions, comments. Noor | Islam & Liberty Network: I have one quick one that I wanted to ask which was going back to Al-ghazali if anyone was interested to Noor | Islam & Liberty Network: learn a little bit more, and delving the text, what will be the ones that you recommend to understand on this subject?

Well, you know, I think that one of the things, and it's interesting that you mentioned that, Sister Noor, because I teach a graduate course on Islam and the challenge of modernity. And this week's reading has actually been Al-assad's book formations of the secular. But I find it to be really interesting because my students were grappling with, I think, some of the same questions that we have that we've been exploring today.

The distinction and the important distinction to be made between an ideology and a process and a state of being. So. I always talk about how there's a danger of equating the terms modernity, modernization and modernism. Modernity is simply the state in which we are. We are more modern now than we were when this conversation began, because it's a chronological thing. Modernization is an active process of moving things forward.

and modernism is an ideology that the modern is. Dare I even say sacred, and that all that we understand an ideology to have applies to it, including an ethical construct. Where modernism then becomes problematic for Muslims or for people of any faith, tradition, or any other ideology is that oftentimes these are competing or clashing because they're foundational elements, including the ethical.

are not in alignment with one another. So modernism, as it develops in the West, believes that a God-centric model is critical, that humankind has in many ways understood and has replicated and even conquered nature, which means that God is now irrelevant within that calculus. If you look at 19th century

philosophical works, especially by people like Friedrich Nietzsche, and all commenting on this well, similarly, when it comes to secular, we have to make the distinction between secular secularization and Secularism, Secularism being an ideology in the primacy or the exclusivity of of everything secular, which also then includes sort of a diluted negation or removal of your philosophical and ideological motivations toward the ethical which people of faith have.

I don't know how you shut that off, and you see, then it deploying itself in hypocritical ways, like, in the case of France. Dr. Ali mentioned the kind of secular Secularism that is there. Part of this was was on display with the re, the rededication of the Cathedral of Notre Dame.

Now for a country that's supposed to be militantly secular, and that eschews and even criminalizes religious symbols in public. Why, then, was there this jubilation? I mean? They tried to then make some kind of flimsy excuses. Oh, well, this isn't religion. This is our cultural heritage. I don't think that they even acted that way when it came to

the Eiffel Tower, which is, of course, cultural heritage. So there's something more basic that's going on there. And secondly, last week was the funeral of the far right

political activist, Jean Marie le Pen, with a full Catholic service. Well, I mean, if this is supposed to be again a country of why are you leaning into your religion? So? So I think that this is one of the contradictions and even the hypocrisies that Secularism brings. However, if you understand the secular to be a space that doesn't necessarily warrant a theological seal of approval on it.

Then that makes sense, I mean. And I challenged my students yesterday, and a very, very provocative question I asked the question, was the prophet secular? And of course Muslim students reflexively said, absolutely not. I think one might have even said Asthaq, for Allah. Such is then the stigma attached to the word secular. And so one of them asked. He said, Why would you say that the prophet is secular. I said, What was his opinion on eating onions?

And of course they could quote chapter and verse from the hadith, and they said, oh, he didn't like it. and I said, was this by divine edict? Did did Gabriel come down and say. Don't like don't eat onions? And they said, of course not. I said, Yeah, you're right, because it's not a revelation, I said. Is it possible that he acted in a way outside what we understand to be the theological and the spiritual, in deciding, as a matter of personal preference, that he didn't like to eat onions.

and then they had to concede that that would be the case. And so, if it's external to the spiritual, then the space that remains is the secular. And so I was able to then, by a certain level of Cartesian proof, show that the prophet was not only secular, but that that wasn't necessarily in any way taking away from his spirituality or the centrality of his position within within Islam.

But that took effort, and I think that we, as Muslims, given the trauma of what we have suffered from having our agency either put on hold or having it. Being stripped in making these deliberative processes is something that I think we need to restore. Noor | Islam & Liberty Network: That's very fascinating. Thank you so much. And and I would argue conversely to the point that Dr. Ali made.

Maybe it would serve Muslims in an ironic way, that by recognizing and acknowledging that the Medina charter is part of the Sunnah. it could actually serve a benefit by by sacralizing the Medina charter. because right now, one of the reasons why people don't engage with it as they do is because they don't see it falling within the sacred plane or space of of the Sunnah.

If they did, then perhaps they would have the kind of confidence of its religious bona fides and legitimacy which which seems to be a major concern for Muslims, in order to then legitimize any kind of political system or apparatus that they want to implement, especially in the name of Islam.

and you know as a reference of public policy, in fact, and you may already be aware, and you'll be pleased to know that last year we signed an mou with the Ieis in Malaysia to actually support research on the idea of Makassid and Free Society. In the 1st instance, these 2 phrases, the Free Society in makassid look quite not not just unrelated, but maybe opposite.

But they're not because, as you, I think, rightly mentioned in your lecture and later conversation that Makassid, as as a pillars of public policy and and of state craft.

actually ensures the protection of rights of individuals, of all individuals, of citizens of a state. And that's where I think we need to look. And I totally agree. When you also were talking about the Syrian context, I think that's important to refer to the local context, geographical context, the context of nation state in that sense, perhaps

and and and and stay focused rather than rather than actually, you know, trying to complicate a debate and going beyond the immediate challenge that that we have think we can now.

If you add the word, the right to deen the right to nafs the right to nasal the right to akal the right to mal. you find that these are concepts that are enshrined and enumerated in constitutions like, say the United States, where it is the right to life, liberty, and the pursuit of happiness and the preservation of property.

so that that idea, then, of linking the Makasa, the Sharia, with what the individual has as a right to these things to, as you mentioned before, the right to have them protected, the freedom of Deen, the freedom of nafs, the freedom of nasal, the freedom of Aqal, and the freedom of Mal, I think, would be a nice recalibration of how Muslims view not only the Muqas, but themselves and the rights that have already been given to them within Islam.

Noor | Islam & Liberty Network: All right. Thank you so much for this really interesting, very fascinating discourse about constitutionalism and Islamic history, and also, of course, the prospects and opportunities for reimagining futures in the Muslim world.

Noor | Islam & Liberty Network: We had just one small comment. Maybe I just want to share, just to make sure it's not left out from Usama Hassan that wraps up, thanking for the Webinar and appreciating the interpretation of Ibn Khaldun's Asabiy social cohesion.

Noor | Islam & Liberty Network: And it's that that's better than the classical translation of party spirit. So that he's been looking for a better translation for years. So thank you for that comment and that close Noor | Islam & Liberty Network: Oh, I see. Maybe also wants to say something he hears. Noor | Islam & Liberty Network: Yeah, I just sorry. I just noticed Noor | Islam & Liberty Network: we allow you to talk. Noor | Islam & Liberty Network: Okay.

Ibn Ashur and others, where they say that you know you have dozens of Accasad now, which don't include protection, because early was all about protection of those 5. But we can move to promotion of things like, you know, health, education, human rights, etc. So I think it's very important, actually, that we continue to not be kind of stuck with Hazali from a thousand years ago. I mean, that was brilliant work.

but it has moved on a long way. The muqas of today are really a very comprehensive set of dozens of principles, not just of protection of various things but promotion. which is very important, I think, for a modern Islamic, civil or Islamic secular state. So, though I would love your thoughts on that, if you have time. I think we have a minute left.

that they look at these works as being endpoints, whereas I think it's more healthy to see them as points of departure. This is a view, particularly with Ghazali, that Dr. Ibrahim Musa at the University of Notre Dame contends that we are not confined to a historical cul-de-sac, but to look at these as not only a way forward, but in some ways I would argue a way out of some rather stagnant thinking. So thank you for for that really wonderful comment.

Noor | Islam & Liberty Network: And if you are interested in learning more about Islam and liberty networks, activities and work publications do visit our website at islamandlibertynetwork.org. We also, we are also on social media. We have Linkedin. Noor | Islam & Liberty Network: Facebook, Instagram, and Twitter

Noor | Islam & Liberty Network: feel free to connect with us on any of these platforms, and if you have any questions, feel free to connect with us, and we can have more discussions, Inshallah! So I would like to thank Dr. Saeed Khan and Dr. Ali Salman for this wonderful session today. Noor | Islam & Liberty Network: Thank you and thank you to our audience for their questions and attendance.