Shari’ah and Constitutionalism

2/17/2011—On Tuesday my students in Secularism, Religion and the Public Square and I discussed the relationships among Democracy, Religion, Science and Capitalism. (See post below). Naturally, one issue that arose was the compatibility of Democracy with a religious system, such as Islam. This is the question that worries some people both in America and elsewhere about events in Egypt.

Now, on one level, the incompatibility of religion and democracy is clear. The religious believer is committed to a truth other than democracy. Democracy can be nothing more than a means to an end. Thus, as perhaps occurred in Gaza with the elections in 2005, a religious party comes to power and then ends democracy. “One and done democracy”. Hamas just the other day rejected a call for municipal elections in Gaza. (story here) This is a controversial assertion with regard to Gaza only because America and Israel never accepted the election of Hamas as de jure and thus contributed to the end of democracy in Gaza.

The opposition of religion and democracy is not a new criticism. For many years the Catholic Church was accused of just such duplicity: using democracy to achieve Church goals but committed to neither democracy nor individual liberty in principle. This criticism has ended only because the Church has come to embrace democracy and religious liberty.

But what about a political system that guarantees full and fair elections but also contains an official role for religion in its constitution? Is such a system undemocratic? Certainly, any popular constitution in Egypt would have to contain a role for Islam because that is what most Egyptians appear to want.

The answer to the above question of course depends on what we mean by democracy. If democracy means that everyone above a certain age votes about everything, then having any sort of constitutional rights is inconsistent with democracy. In that case, Islam would be unconstitutional but so would the first amendment, about which we don’t vote. For example, even if a majority in a state wants to make it a crime to burn the American flag, the United States Supreme Court will rule such a law unconstitutional, thus trumping democracy.

If the complete separation of Church and State is a necessary element in democracy, as some people in America believe, then any popular Egyptian system is certain to be undemocratic. But then Israel would also not be a democracy.

Israel’s Prime Minister, Benjamin Netanyahu, described what he hopes for in a democratic Egypt in a speech to the Knesset on February 2:

“In Israel, we know the value of democratic institutions and the significance of liberty. We know the value of independent courts that protect the rights of individuals and the rule of law; we appreciate of the value of a free press, and of a parliamentary system with a coalition and an opposition.

It is clear that an Egypt that rests on these institutions, an Egypt that is anchored in democratic values, would never be a threat to peace. On the contrary, if we have learned anything from modern history, it is that the stronger the foundations of democracy, the stronger the foundations of peace. Peace among democracies is strong, and democracy strengthens the peace.”

You notice Netanyahu said nothing about the separation of church and state. I think he is right that these are the elements of a constitutional democracy and that such a system would eventually yield a stronger peace between Egypt and Israel than exists now. On the other hand, the popular will in Egypt may today favor stronger support for the Palestinian cause and there is nothing in Netanyahu’s list that would render such a change undemocratic.

It is obvious that a role for Islam in Egypt is not in principle undemocratic, any more than the presence of constitutional rights in the American system renders it undemocratic. Yet in both systems, there is the possibility that democracy can be threatened by what are extra-democratic commitments. Plenty of Americans consider Roe v. Wade undemocratic, for example. One would have to see precisely what a presence for Islam in a future Egyptian political system entails.