Democracy and the Majority Principle in Islamic Legal-Political Thought

The Majority Principle is one of the cornerstones of democratic thought and practice. It is also one of the concepts that are often disputed by Muslims, many of whom claim that it has no place in Islamic political thought. This article will deal with the Islamic heritage in connection with the issue at hand. Its aims are to identify Islamic legal concepts that could possibly have a bearing on the topic of the study, examine those concepts critically, and ascertain if any of them could be related to the majority principle and majority decision-making.

Legal Concepts

A. Ijma’ (Consensus)

Juristically speaking, ijma’ is considered a source of law in Islamic legal theory. Its place is immediately after the textual sources, namely the Qur’an and Sunnah. Al-Ghazzali defined ijma’ as “an agreement of the Ummah of Muhammad (SAW) in particular on any given religious matter.” This definition implies that a necessary condition for ijma’ is the unanimous agreement of all scholars of a particular age, at least in terms of theory. However, on a practical level, given the limitations imposed by the inefficiency of the means of communication and transportation during the early periods of Muslim history and inherent differences in ways humans approach intellectual challenges, it was impossible to establish actual agreement of all qualified scholars on a fairly great number of issues. In fact, according to some critics, ijma’ was established only in those cases and on those issues that have some textual evidence from the Qur’an and Sunnah. But ijma’ is not needed in cases in which there are clear Qur’anic and Prophetic references! One of the problems that contributed to the impracticability of ijma’ is that the majority of Muslim jurists did not consider ijma’ to be formed in cases of disagreement, even if this disagreement was the result of only one or two dissenting voices.  Ibn Hajib al-Maliki, who holds a unique position, considered that an agreement of the majority of scholars could not be accepted as an ijma’. However, the opinion of such a majority is an authoritative evidence (hujjah) because it is more proper/appropriate (awla) to follow the majority opinion.  In short, given these rigid conditions imposed by the majority of Muslim legal scholars with respect to the formation of ijma’, it was only natural that this legal institution became highly theoretical and of almost insignificant value in the later periods of Muslim history.  But the concept of ijma’ can be studied from yet another perspective: the social one. The early phases in the development of Muslim society witnessed a number of dynamic processes that provided the necessary impetus to the development of Muslims sciences in general.  Ijma’, in particular, was a driving force which provided a vital degree of stability in spite of prolonged periods of internecine conflicts and possibly disrupting unresolved theological and legal issues. This was possible because ijma’ was an informal activity, involving the community in general and the learned scholars and political leaders in particular. The prevalent atmosphere was such that scholars could express their opinion on any matter, and that opinion was very often not in line with the official policy of the day, for which action in turn they enjoyed almost undivided credibility among the public who adopted and internalized those teachings. Ijma’ was, therefore, an outcome of the shura process at large; a process which involved a great number of members of the Muslim Ummah. It was not arrived at by some governmental fiat or scholarly debate, but it was achieved gradually, after a period of time, when numerous alternatives to the issue that was discussed have been presented, and when one of those alternatives that emerged as best in accordance with the prevalent sentiment among the Muslims and most beneficial for their personal interests and the interest of their religion. Ijma’ was the result of social processes that aimed at discovering an objective truth in connection with the issue that has been raised by the community.

Many modern Muslim scholars, upon perceiving this tension between theoretical and practical ijma’, made a number of proposal in order to revitalize this important institution. Most of the classical legal definitions of ijma’ cannot satisfy the needs of modern Muslim societies. Ijma’ should be defined in a way that makes it a dynamic force, one that enables it “to be no longer retrospective, as in the past, but to deal decisively with problems as and when they occur. [italics in original]”

Where would the place of the majority be if ijma’ is to be reformulated? Well, it could be achieved through the majority decision-making if all the members of the community accept in advance that decisions by the majority are to be binding upon all of them. Thus, when a majority decision is reached, all the members of the Muslim community should strive towards seeing that decision implemented in practice. So, even those who voted against the proposal, which obtained the support of the majority, should accept the majority decision, and try to implement the new policy in a consensual fashion. If understood in this way, ijma’ can be achieved through the implementation of the majority opinion.  I have previously mentioned that some classical scholars were of opinion that the majority decision is an authoritative evidence (hujjah), even though it falls short of a consensus. Fathi Osman claims that this is one of the fundamentals (usul) that are widely held by the jurists.  In fact, al-Shawi opines that the intended meaning of ijma’ always equals shura, and that ijma’ is, as a matter of fact, what is arrived at through the process of shura.  A new thing that al-Shawi proposes is that ijma’ can be achieved through total consensus (ijma’ kamil) or through the consensus of the majority (ijma’ al-jumhur).

This should in no way inhibit the defeated minority from trying to persuade the others to accept its view, if it still holds it, while accepting the majority decision and giving it its full support at the same time. In other words, there should exist a consensus on the basic rules of the political game and, more importantly, on the values of such a political system. Within such an arrangement, the existence of nonstructural opposition should be tolerated and it should be allowed to work for its own political program, given it accepts the basic consensus. In this way, the relation between majority decision and ijma’ could be put into practice.

B. Al-Sawad al-A’zam

This concept originated in the Prophetic saying in which he (SAW) said: “My Ummah will not agree on an error, and when you see a disagreement you have to follow the majority.”  Al-Sindi, commenting on this tradition, had this to say: Al-Sawad al-A’zam means the majority group (al-jama’ah al-kathirah) because their agreement is closest to the consensus (ijma’) … Al-Suyuti said [they were] a majority of those who are united in following the right course. This tradition indicates that it is mandatory to follow opinion of the majority (yanbaghi al-‘amal bi qawl al-jumhur).

The hadith indicates that it is preferable to reach decisions in matters of common concern on a consensual basis. However, if this is not possible, then Muslims should, according to this tradition, follow the view(s) of the majority among them. This is probably the clearest injunction, that can be found either in the Qur’an or in the Sunnah, in connection with majority decision. Unfortunately, it was seldom related to the decision-making process, particularly after the period of al-Khulafa’ al-Rashidun. A well-known contemporary Muslim scholar, Yusuf al-Qaradawi, uses the hadith in which al-sawad al-a’zam has been mentioned as evidence that in matters which are liable to be subject to a multitude of different opinions and on which a consensus cannot be achieved due to their not being supported by explicit evidence from the Qur’an and/or Sunnah, the majority principle can be used as a means of giving preference to one opinion over another. He says that this tradition, in fact, commands Muslims to follow the majority opinion in matters of disagreement. Muhammad Asad also quotes the mentioned hadith approvingly and deems it to constitute evidence that should be referred to in order to grasp a correct stance on the majority principle, which is, for him, that it should be allowed in matters of ijtihad, and that decisions reached through it should be binding upon all members of a Muslim society.  I have already quoted al-Shawi who mentioned al-sawad al-a’zam or the majority as a possible meaning or outcome of shura, whereby he equals it with ijma’.

C. Jumhur

Another legal concept which is quite often mentioned in connection with the majority principle is that of jumhur. It literally means, among other things, ‘gathering,’ ‘crowd,’ ‘great number,’ or ‘the majority.’ The concept is used very often in legal literature. It ordinarily connotes the majority of scholars, usually in connection with an issue that is a subject of disagreement among Muslims. When such disagreement occurs, specialized literature usually gives a variety of opinions. As for that opinion which is held by the majority of scholars, the terms used are ‘the opinion of the majority [of scholars]’ (madhhab al-jumhur or ra’y al-jumhur), ‘the majority of scholars’ (jumhur al-‘ulama’) etc. The term is also sometimes used to denote the masses, i.e. the public in a general sense, or the great majority of them.

Those Muslims scholars, who see the concept of jumhur as a possible means of validation of the majority principle, point to the fact that Muslim legal scholars give preference to the opinion of the majority (i’tidad bi ra’y al-jumhur) in matters of disagreement, provided that there is no other more acceptable evidence that is contrary to it.  According to Fathi Osman, Ibn Taymiyyah (d.728AH) suggested that when Abu Bakr (RA) nominated ‘Umar (RA) for the office of khalifah and the proposal was subsequently endorsed, the legitimacy of bay’ah (the oath of allegiance, or the mechanism for the appointment of the head of the state) was established only after a majority of Companions (jumhur al-Sahabah) had agreed to it.  Therefore, according to this reading of historical precedents, the appointment of the head of an Islamic state should be endorsed by a majority of the electorate. Al-Shawi adds to the debate on this concept by saying, as I have already quoted, that in the absence of a total consensus (ijma’ kamil) reference should be made to ‘the consensus of the majority’ (ijma’ al-jumhur), for the latter is the closest approximation to consensus in the proper sense. This is so for “the majority opinion or al-jumhur is indicative of the opinion of al-jama’ah (society) in al-shura.”

D. Al-Tarjih bi al-Kathrah

Al-Tarjih is a legal concept that comes into play when there exist two or more apparently contradictory items of legal evidence that cannot be reconciled in any other way as provided by legal theory.  So if this is the case, one opinion or evidence will be given preference or precedence over the other, based on the conditions stipulated by legal scholars. One of the applications of this concept occurs in case there are two Prophetic traditions whose meaning cannot be reconciled by any of the means that are in use by legal scholars. In this case, there are several ways in which al-tarjih can be applied. One of them is that the tradition which was transmitted by a greater number of transmitters should be given preference over the other which came through a lesser number of such transmitters of hadith (al-tarjih bi kathrah al-ruwat). This is a known principle in the sciences of al-hadith whereby, for instance, mutawatir is given preference over ahad if they happen to be in conflict. Al-Dahlawi maintained that in such cases preference should be given to a tradition that is transmitted by a greater number of narrators, or to that which is actually accepted in practice by a greater number of scholars.  The great scholar of hadith, al-Bukhari (d.256AH), commenting on an issue on which there existed contradictory reports, chose one of those reports because it came “through a greater number of transmitters.” Al-Arna’ut says that this is a common practice of the great scholars of hadith (huwa al-jari ‘ala tariqah al-muhaqqiqin min ahl al-hadith).  Let me clarify this argument with a quotation from another famous scholar, Ibn Daqiq al-‘Id, who said:

If there are different (contradictory) reports [on a certain issue] … and if one of them is to be given preference over the other(s), such as in the case of one being transmitted by a greater number of transmitters … then it is an imperative to act in accordance with such a preferred [report] (fa yata’ayyan al-‘amal bi al-rajih], because the [existence of the] weaker [evidence] is not a deterrent to act in accordance with the stronger [evidence]…

One of the few Muslim scholars who related this scholarly principle to political thought was Abu Hamid al-Ghazali. While discussing the merits of claims and counter-claims made by the ‘Abbasid Caliphs and their Batinite opponents with regard to the legitimacy of the caliphate and political power, al-Ghazali uses the discourse similar to that of John Locke, and asserts that since it is not conceivable that those concerned with such an issue would unanimously agree on certain position, it is imperative that they should all accept and abide by the majority opinion (fa innahum law ikhtalafu … wajaba al-tarjih bi al-kathrah).

E. Legal Maxims (Al-Qawa’id al-Fiqhiyyah)

Legal maxims are not usually cited as supporting evidence for the legitimation of the majority principle. However, I find it useful to mention that some of these maxims can perhaps be used in discussion on this topic. It should probably be said, for the sake of clarification, that legal maxims, per se, are not a source of law, but can be useful juristic tools in finding solutions on issues which are not made explicit in the sources. Among the maxims that could give some additional weight to the majority principle are the following: “that what is preponderant [in greater quantity] should be ordained (bi al-aghlab min al-umur yuqda)”;  “a more probable assumption amounts to the execution (al-zann al-ghalib yanzil manzilah al-tahqiq)”; “that which is preponderant [in greater number or quantity] is to be taken into consideration, and that which is rare is not to be enjoined (al-‘ibrah bi al-ghalib wa al-nadir la hukm lah)”; “that which is preponderant amounts to an established/certain [opinion] (al-ghalib masaw li al-muhaqqaq)”; “the greater part gets the jurisdiction of the whole (li al-akthar hukm al-kull).”

B. The Majority Principle and Its Place in Shura

In this part of the article I will discuss two issues: the need for popular consultation and the reception of majority decision by all participants in the democratic process. In short, I deal with the majority principle and its possible place in shura. Shura is, in fact, the only political concept that has been mentioned in the Qur’an. While it has not been dealt with in details by the Revelation, Prophetic practice, as well as the practice of the Companions afterwards, have established some guiding principles with regard to this issue, and provided a direction in which this concept could possibly develop.  It is a duty of the entire Muslim community to participate in the affairs that are of common concern to all its members. Fazlur Rahman rightly asserts that the Qur’anic verse ‘[the believers are] those whose affairs are decided by mutual consultation’ (wa amruhum shura baynahum’) “means their affairs - that is, the affair does not belong to an individual, a group or an elite, but it is “their common affair” and belongs to the community as a whole.” One can easily point to the way in which the Prophet (SAW) consulted his Companions in all issues of common concern, except in those that were settled by Revelation, and to the examples that are abound in the books of history: he consulted his Companions prior to the battles of Badr, Uhud and Khandaq. After the Treaty of Hudaybiyah had been concluded he consulted his wife Umm Salamah (RA) concerning sacrificial animals. His Companions, following his example and the precepts of the Qur’an, deliberated with each other on a number of issues of public import, including the appointment of a successor to the Prophet (SAW), the legitimacy of fighting against rebellious Arabian tribes during the Khilafah of Abu Bakr (RA), the appointment of a successor to ‘Umar ibn al-Khattab (RA) and so on.

Therefore, it can be clearly seen, Islam, in its pristine form, not only enjoined deliberation, consultation and free discussion of pertinent issues, but related them to belief (iman) and put them second in importance to the prescribed prayers (salat). In other words, one’s belief cannot be complete without observing this particular principle of shura. This opinion is also supported by Fathi Osman who stated that “shura, or the participation in decision making by all parties concerned, [was] a consequence of faith in God and an obligation second in importance only to performing prayers to Him…”

After dealing with the importance and nature of shura in Islam, we should ask: is there a place for majority decision-making in shura ? The answer is definitely positive - for many reasons. Firstly, there are many directives and indications in Islamic legal and political thought that lend legitimacy to the use of the majority principle. Those that have been mentioned in this paper, ijma’, al-tarjih bi al-kathrah, al-sawad al-a’zam and others, clearly show that it is basically acceptable to employ this principle. It should also be mentioned that shura is, in fact, a method of collective decision-making. It allows all the participants in that process to express their opinions and state the supportive evidence for those opinions. The objective of shura is to try to find an objectively correct opinion on a given issue, guided by Islamic principles. The participants in shura have to state their opinion on a given issue, not on the basis of their preference however, but on the basis of supporting evidence. In Islamic terms, this means that the opinion in question has to be supported by evidence from the Qur’an, Sunnah or other valid sources. In fact, the process of collective ijtihad can only benefit from having diverse opinions and their supporting evidence and arguments involved in the shura process.  One can further say that shura is a process of trying to arrive at a correct answer in connection with the issue that is being deliberated upon by those who are qualified to participate in shura. There are several ways which facilitate this process and increase the probability of drawing a correct answer from the pool of available opinions or possibilities. In order to achieve this, one has to apply and use tools of ijtihad, both those that were accepted by our predecessors as well as those that are deemed appropriate by the contemporary generation of scholars. And one of these tools, as we have been trying to show in this article, is the majority principle.

It can be used independently of the other tools of ijtihad or in corroboration with them, as long as a proper code of conduct is observed by the participants in this process and as long as the outcome reflects belief that the correct opinion is being attained and the majority decision is accepted by all those participants. The accepted opinion then amounts to ijma’, another concept that has been dealt with in this paper. Participants in this process should also be open to adopt new evidence and alter their initial stance in accordance with these newly obtained facts. As an outcome of this shuratic process, shura can achieve “the wide agreement in the Ummah so that it becomes the opinion of the majority of [Muslim] people.” Therefore, shura, as we have tried to demonstrate in the preceding pages, can be said to have been fully observed only if there is participation by all mukallafun in society and if all abide by the outcome of their joint consultation.

Article originally published in The Message International, 166-26 89th Avenue, Jamaica, NY 11432-4254.  Phone: (718) 658-5163, Fax: (718) 658-5069

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