John Rawls and the Islamic Constitutional model

Islamic Constitutional model by relying on John Rawls’ theory of “overlapping consensus” and the notion of constructively engaging with the moderate Islamists (including Islamic feminists) who should be encouraged and enabled to internally work out and negotiate their own consensus on their societal values.

Rawls utilizes the social contract device, asking what principles of justice would individuals agree to when designing society. Justice as fairness offers an account of human nature beyond the traditions of saintly altruists or greedy egoists: human beings are to Rawls both rational and reasonable. Because we are rational we have ends we want to achieve, but we are reasonable insofar as we are happy to achieve these ends cooperatively if possible by adhering to mutually acceptable regulatory principles. Individuals hold, however, quite different needs and aspirations of individuals: the individual conception of the good.

Obviously, there are serious criticisms that can be lobbed at these arguments, especially when there has been no opportunity to detail them out in any substantive way. In any event, I hope to address these in the fully articulated version of this paper.

There is enough in the interaction between the two ideas and the existing doctrinal and conceptual tools within Islamic legal and political theory for us to work with. These three considerations provide us with a workable starting point in theorizing a more tolerable yet robust model of Islamic Constitutionalism. Such a model must be acceptable to both the Western and Islamist perspective. This of course envisions a role for both the moderates among us in the west and the moderates in the Muslim world.

The “overlapping consensus” thesis set out in Rawls’ Political Liberalism refers to how proponents and adherents of different ideologies or world views can concur on a political agreement based on justice. This consensus is reached, in part, by avoiding the deepest religious and philosophical divides between the various camps. This of course assumes that there are core commitments common to “reasonable” people and that people can, in fact, keep their deepest subjective beliefs and convictions to themselves. Rawls argued that citizens who held diverse religious and moral beliefs could agree on the constitutional basics — the essential or minimum constitutional principles necessary for a society to advance the interests of justice as fairness and maintain some sort of cohesive structure in the pursuit of the common good. Rawls accepted that total agreement on justice as fairness might be impossible, but he concluded that an “overlapping consensus,”is possible.

The arguments may be build on the work of Mohamed Fadel who used Rawls’ framework to examine how Muslim citizens of a liberal state could participate in a Rawlsian “overlapping consensus.”I would like to push the envelope a little further and argue that a viable Islamic Constitutional model (revolving around the reasonable middle ground) can be achieved by respecting the role of religion, the traditions of Islam (including legal and political theory), and the right to self-determination. These three pre-conditions, as trite as they may be, are too often overlooked, minimized, assumed away or dismissed both in scholarly work and in policy formulation. Yet, these are critical if we are to engage with the Islamic world in any meaningful way based on mutual respect and in the spirit of co-existence.

If we can get beyond the clash of extremism that has been prevalent to date in exchanges between the two sides — then we may be able to communicate and appreciate the legitimate interests and views of the other. If we can respect the role of religion, the traditions of Islam and provide some breathing space to Muslim societies to struggle with their own demons, we may indeed give the opportunity for aql (reason) to prevail in the pursuit of adl (justice) and the common good of humanity. This obviously calls for a rethinking of our approach to the Islamic world in line with Amitai Etzioni’s view that the fundamental clash (fault lines) we need to worry about are not really between civilizations but within civilizations. Only constructive engagement with the moderate elements in the Islamist movement will allow for this “overlapping consensus” to come to the fore.

I argue that an ummah (Muslim community) led, bottom-up approach, which Mashood Baderin has accurately labeled the socio-cultural and harmonistic approach to Islamic reform, is the most sustainable and peaceful route to devise a workable and acceptable or tolerable model of Islamic Constitutionalism. The moderates within the ummah must be given the opportunity to grapple with the existing traditions of Islam and to work with its tool box of legal and political theory to start devising their own governing structures. The least we can do is to allow these societies to negotiate and work out their own societal norms rather than attempting to impose our own values and judgments. This organic bottom up consensus building approach to Islamic reform would be in line with the long established Islamic traditions of tajdid (renewal) and islah (reform) in Islamic legal and political theory. The product of this process would have greater legitimacy for its inherent consistency with Islamic doctrines and concepts. Indeed, this may better inoculate these reforms from the inevitable attacks from extremists, who will undoubtedly label them as western impositions.

Granted, this project, or more likely series of projects, will not be a quick or smooth process. In fact, consistent with Etzioni’s view, the factions within the Islamic civilization and the western world will clash. There will be a contest within the Western camp on whether or not to engage with the moderates (and if so with who) and whether or not we accept the outcome of the process. Within the Islamist camp, various factions will vie for the power to set the agenda. These clashes both at the intellectual, political and military (rebellion and terrorism) are already taking place on the ground. These internal contestations are inevitable and simply represent the birth pangs in the evolution into civil and participatory societies.

None of this, of course, means that the governance structure that evolves into existence will be an exact replica of western models. Herein lies a challenge to us in the West and in the secular camp; will we accept that there are other viable models for governance that deserve our respect?

Andrew March’s (Yale Political Science) work (Islam and Liberal Citizenship: The Search for An Overlapping Consensus, Oxford University Press, 2009) is something along these lines as well, although he doesn’t focus on Islamic constitutionalism in particular. He argues from within the Muslim fiqh al-aliyaat discourse that there is something there which can be used to support civic attitudes for Muslim minorities living in Western liberal societies, making use of Rawls’ conceptual framework.

Author: international

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