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That said, one is able to state in this specific context that the nature of religious authority is, or should be, inherently different from the nature of political authority and cannot be evaluated except within the free conscience of each believer. Whenever religious authority is claimed for state legislation or policy, it is really for the enforcement of the views or beliefs of the ruling elite. The ruling elites can only act from their own perspective, and are therefore subject to criticism and challenge from other perspectives. Since such views are always those of fallible human beings and never divine, they should not have higher religious authority than those of other human beings. Believers cannot express legitimate criticism if legislation and public policy are alleged to be sanctioned by divine command. In fact, ruling elites claim religious mandates precisely in order to insulate their actions against criticism and political change. Yet _sharī‘a_ cannot be enforced by the state, because coercion negates the religious notion of compliance. For compliance with any Islamic precept to have religious value, it must be completely voluntary, done with the required personal pious intention (_nīya_). Voluntary intent to comply cannot be ascribed to an act that is performed under the coercive authority of the state (An-Na’im 2009: 112). Hence, remarks by Rāshid al-Ghannūshī, ‘Azmī Bishāra, and others (Al-Bishrī 1996: 121) indicate that it may be possible to find elements of constitutionalism in Islam. These elements can be expressed by means of modern terms, such as “rule of law” (Bahlul 2007: 519) or (more or less) equivalents such as _siyādat_ / _hukm al-qānūn_ in the Sudan and Egypt or _hākemiyat{_}_‐_{_}e qānun_ in Iran (Moschtaghi 2010). Those terms, as a principle enshrined in constitutions (Cf. Article 64 of the Egyptian Constitution), provide that e.g. “the sovereignty of law \[_siyādat al-qānūn_\] is the root of the state’s power” (e.g. Elliesie 2009c2010c: 3).
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V. The Islamic modeled State and the Rule of Law
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In conclusion, the precise content of the normative system of sharī‘a has been, and will continue to be, the product of human understanding (At-Tabarī 1971: 48 et seqq., 66) in its specific historical context (An-Na’im 2010: 44). Although sharī‘a laws are of divine provenance, the actual construction of the law is human activity, and its results represent the law of God as humanly understood. The ratio legis (hikma tashrī‘iyya) of a norm and its logical conclusion is a subjective understanding. Hence, at the time when one argues that norms in Qur’ān and Sunna are the understanding of justice at the time of the norm’s origin, then, one is able to exchange the perception of justice in the modern sense. One has to consider that law in the Islamic context does not descend from heaven ready-made, it is the human understanding of the law – the human fiqh – that must be normative for society (Weiss 1998: 116; An-Na’im 2010: 45). According to Assem Hefny and Mashood Baderin, Islamic set regulations and provisions pertaining to mundane matters are, in time and place, alterable. Attention should be paid to the doctrine of al-'illa wa-l-ma'lūl whereby causes differ in time and place for which reason outcomes vary as well (Hefny 2010: 81 et seq.; Baderin 2010: 141). Hence, a generalization of the rule of law concept in respective countries should be avoided. Rather, one has to see it from a different angle; namely, that of the specific national legal understanding against the background of the dichotomy between its particular traditional influence of (Islamic) legal theory and contemporary law in action, i.e. legal reality.
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Bibliography
Abdullahi Ahmed An-Na’im (2010), Islam and Human Rights: Introductory Remarks and Reflections, in: Hatem Elliesie (ed.), _Islam und Menschenrechte / Islam and Human Rights / al-Islām wa-Huqūq al-Insān_, Peter Lang Publishing Group: Frankfurt a.M. / Berlin / New York / Oxford et al., pp. 41 et seqq. Abdullahi Ahmed An-Na’im (2009), Shari’a and the Secular State in the Middle East and Europe, Carl Heinrich Becker Lecture der Fritz Thyssen Stiftung 2009, Berlin, pp. 105 et seqq. Abdullahi Ahmed An-Na’im (2008), Shari’a in the Secular State: A Paradox of Seperation and Conflation; in: Peri Bearman / Wolfhart Heinrichs / Bernard G. Weiss (eds.), _The Law Applied: Contextualizing the Islamic Shari’a_, I.B. Tauris: London / New York. Muhammad b. Jarīr At-Tabarī (1971), _Jāmi‘ al-bayān ‘an ta’wīl āyi al-Qur’ān_ (penned by Mahmūd Muhammad Shākir), vol. 6, Dār al-Ma‘ārif: Cairo. Mashood Baderin (2010), Islam and Human Rights in the Constitutions of African States: Agenda for Good Governance, in: Hatem Elliesie (ed.), _Islam und Menschenrechte / Islam and Human Rights / al-Islām wa-Huqūq al-Insān_, Peter Lang Publishing Group: Frankfurt a.M. / Berlin / New York / Oxford et al., pp. 123 et seqq.
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