Author: Norman Barry*
“Islam Civil Society and Market Economy”, ed: Atilla Yayla, Ankara: Liberte Publications, 1999 (first print).
This paper was presented in the International Symposium titled Islam Civil Society and Market Economy held at 18-19 of May, 1998 in Istanbul.
The concept of civil society is closely associated with the post-communist era.(1) Although its intellectual roots are in the history of European liberal thought it was developed in Eastern Europe where countries struggling to be free of communism, yet reluctant to embrace wholeheartedly the perhaps excessive individualism of America, and to some extent that of Britain, sought a form of social order that encouraged civility and embodied a concept of freedom that was distinct from the pure economic liberalism that is such a feature of Anglo-American capitalism. To the proponents of civil society tat is too redolent of the abstract individualism of market society, in which persons are identified merely by their preferences and not by any association with ongoing social orders. In pure market theory, persons are not inhabitants of any known social order and they lack any feelings of moral obligation to given, or received, institutions. For theorists of civil society, however, the market is morally validated only when it is embedded in institutions which have ethical justification independent of pure choice. In this context religion is very important for civil society since it provides just that framework of morality which binds individuals to one another by methods other tan market exchange (even though civil society is formally secular). This is not to say that the great religions of the world are all antithetical to the market or its essential component, the system of private property. With the perennial doubt about usury, which is shared by a number of the world’s great religions, most, of the features of the market were celebrated, for example in Islam and Roman Catholicism, long before they were elaborated by Adam Smith and the writers of the eighteenth century Scottish Enlightenment.(2) It is significant that the totalitarian features of communism were most significantly illustrated in its war against religion: a campaign conducted either by way of outright suppression or, more subtly, through the infiltration and subversion of religious institutions, as in the case of the Russian Orthodox Church. It is also true that the rudiments of civil society were developed in a religious context. Indeed, as the example of the Polish Roman Catholic Church shows, traditional religious institutions were the most resistant to communism. Civil society may have had its intellectual origins in the humanistic, if not atheistic, European Enlightenment era but even organised religion is by no means antithetical to its main features.
As for the specifically social and political elements of civil society, certain institutional prescriptions stand out. The most important of these is the rejection of centralised political arrangements which embody the features of Hobbesian sovereignty. The existence of a legislative body authorised to make all law in the form of commands backed by sanctions is alien to civil society.(3) the latter envisages a set of social arrangements, including legislatures, all of which are constrained by a higher law, Decisively, the legislature should be limited by law not of its own making.(4) this could be achieved either by a written constitution whose features cannot be changed by the conventional law-making process or by the idea of common law which may have equal validity with statute or has some protection from the potential ravages of the legislature. It is ironic that Great Britain managed to retain the main elements of civil society while having a sovereign parliament which contained the legal potentiality for the construction of a Hobbesian, all-powerful state.
What we have in the legal structure of civil society is the idea of the rule of law(5). This is not simply technical legality, by which law is valid if it satisfies the criteria specified in formal procedures, but a more substantive constraint on law-making power: a constraint which elevates an independent judiciary to a crucially important position in the constitutional structure of the state. Communism had, of course, no respect for law in this sense. To its believers, traditional law was simply an arbitrary edifice for the protection of property. Under communism, individuals could expect no protection from law, it was simply part of the coercive administrative state.
In keeping with its anti-centralist doctrine, civil society envisages decentralised law and politics. The imposition of uniform plans across divergent communities was an example of the crass rationalism of the communist state. Just as in planned economies, there is no freedom to innovate and to make the best use of dispersed knowledge in statist legal systems. Only in conditions of liberty and the rule of law is there the possibility of the preservation and development of differing cultural arrangements, religious practices and moral traditions. They are, in effect, in peaceful competition with each other.
In civil society the ideal political form would be federalism (or even confederalism) in which particular communities could give vent to their differences (in language or religion) within an overall structure of protective law. What is so important here is the right of ‘exit’ from a local community which does not meet with one’s own cultural predilections. Of course, exit costs in politics might be quite high but the existence of the right to leave a community deters rationalistic rulers from imposing uniformity either in economic policy, welfare arrangements or in tax law. As in economics generally so in politics, a necessary protection for liberty is the possibility of variety and heterogeneity under impartial law.
In the modern world it cannot be said that the preservation of this feature of civil society has been successful. In almost all federal states there has been a tendency for the central government to acquire power and to impose uniformity. In America especially, the original protection of the autonomy of the states (guaranteed by the Tenth Amendment) has been whittled away by a succession of centralist measures (often to do with taxation, welfare and industrial and social regulation) which have subverted the intentions of the Founding Fathers.(6) Even in political systems which have preserved some decentralised powers there has been the practice of devolved legislatures behaving in a potentially oppressive way towards their minorities. In Quebec, the mainly French-speaking province of Canada, the majority there is not over-anxious to protect the language and other rights of the English speakers (and other minorities). There is always a tension in civil society between the claims for autonomy of devolved institutions in the promotion of variety and differentiation and the overall protection of basic rights for all citizens. Still, in the Canadian example, it is most unlikely the French-speaking Quebeckers will have their way of life threatened with extinction by the spread of English (and the Anglo-American culture) without the protection of coercive Francophile laws; which is what they have introduced.
Civil Society and Liberalism
It should be clear that there is a close connection between civil society and liberalism: both doctrines proclaim individual freedom, minority rights and the protection of a legal system untainted by politics. They also have an antipathy to overarching social doctrines which claim that one way of life has an exclusive claim to political and constitutional supremacy over others. Both have a faith in the spontaneous working of individual choice in the determination of the good. No one conception should have priority over others. What has confused the modern debate is the perversion of the word ‘liberalism’, in America especially, here it has lost its original foundation in free market economics in favour of an expanded conception of equality: a development that has licensed the state to engage in acts of intervention in the market which would have been anathema to nineteenth century economic liberals. The two versions, however, are united in their more or less subjective approach to moral values (except to justice which is agreed to have some objective foundation in reason, though its meaning is a matter of incessant dispute) and in their commitment to the priority of the right over the good.(7)
Liberalism and Religion
There is one area in which we are witnessing, in the late twentieth century, a further divergence between these two images of society. It is in religion, where the original sotto voce secularism of liberalism has taken on a more aggressive form. Of course, this is a long way from the enforced atheism of communism but in certain circumstances it appears somewhat alien to the major tenets of civil society. In the constitutional debates, and Supreme Court decisions concerning the separation of church and state, in American society we can see, in embryonic form, a movement against the toleration of divergent social forces which is such a feature of civil society. Although America is a very religious country (at least in terms of church attendance and overt expression of faith) there is little or no opportunity for any of this to be expressed in its public institutions (especially its public schools). While it is true that both civil society and liberalism demand a separation between church and state the latter seems to make the wall completely insurmountable. It is one thing to forbid an established church, financed by taxpayers money and possessed of certain privileges, it is quite another to outlaw any minor expression of religious belief in the public sphere. Yet any reference to Christmas, Easter (or any other religious festival) and any minor acknowledgment of the Almighty through prayer are all prohibited because of the Supreme Court’s somewhat convoluted interpretation of the Constitution. And this is true even if an overwhelming majority of parents are of one faith and desire some minor expression of this; and if children of a minority faith are not compelled to join in the religious ceremonies. It is often forgotten that the Constitution technically only forbids the federal government establishing a religion. It does not prevent the states having a public church, as a number did until the middle of the nineteenth century. Least of all does it prevent prayers in the public schools. Yet this is what has happened and it has been confirmed in a number of landmark cases before the Court.
Of course, there would be no problem if all the schools were private in America since they could then practice any religion without endangering the separation between church and state. Yet the extreme anti-religious campaigners do not press for the privatisation of schools. This might be because they do not wish to undermine the privileges of unionised schoolteachers in a socialized educational system, or because the liberal elite wants subtly to impose a form of secularism by stealth against the desires of the bulk of the population. Either way, it is not at all clear that this hostility to religion is consistent with civil society. Turkey is perhaps a better example here of a civil society since it does allow the teaching of Islam in the schools but this does not compromise the basic integrity of the secular state. For the state not to recognize the fact that the overwhelming majority of the population is of a certain religious persuasion, or to forbid public expression of it, is surely a breach of the principles of civil society.
Indeed, the obsession with rights which ideological liberalism encourages marks a further difference from civil society, for in liberalism these rights are invariably thought to hold independently of the obligatory nature of social duty (apart form the minimal duty to respect the equal rights of others). Rights of this individualistic sort are commonly held to be divisive, they put up a barrier between the person and the community. Each of us is a rights-bearer with no reciprocal duties to care for the well-being of others. This divisiveness is compounded in American liberal society by excessive legalism: individuals are too anxious to settle their differences through the medium of the law and this litigious attitude has a corrosive effect on trust. In civil society, citizens can rely on each others’ promises without the need to resort to law. In economic terms there are clear advantages to trust, its existence reduces transactions costs; most notably expenditure on lawyers.
Perhaps the most deleterious effect of the rights mentality has been in the welfare area. For the attribution of welfare payments to persons as of right, with no concomitant social duties, has been said to contribute to the rise of a socially-dysfunctional underclass in American inner cities, the collapse of the family and a general deterioration of the social fabric. A non-ideological civil society would foster those feelings of duty which are not encouraged by liberal individualism.
Liberalism, Civil Society, and Democracy
Yet despite these differences between civil society and liberalism, both doctrines share common intellectual roots and display similar concerns. It is especially true of their attitudes towards democracy. For despite the emotive appeal of this ideal in the postcommunist world it is certainly important to question some of its claims, especially in its majoritarian form. It has long been known in political theory that there is a difference between liberal democratic procedures and liberal democratic outcomes. The majority rule procedure is quite capable of generating illiberal states of affairs, especially in societies characterised by wide religious or other cultural differences. Most liberal democrats are as much concerned with the containment of power by constitutional means as they are with the question of who wields power, in particular, certain sorts of religious enthusiasms are as threatening to a rights-based liberalism as they are to a more communally-oriented civil society. In Britain we have the example of Northern Ireland to confirm this rather depressing analysis. While civil society will want to prevent the domination of any one of these forms: religious liberty is as important as the religious experience. While religion turned out to be a crucially important defence against communism, civil society is always wary of the danger that religion itself might generate a new example of totalitarianism.
There is also a pernicious form of ‘mass society’ which has occasionally developed out of democratic institutions in the twentieth century. In this potentially, destabilising social order there is little to bind individuals together, no decentralised social arrangements which can form a barrier against state power or alternative sources of loyalty and affection for individuals. In this scenario, alienated individuals become highly vulnerable to authoritarianism and totalitarianism. Communitarian critics of economic liberalism say that the market produces ‘atomised’ individualism(8) which encourages these phenomena (although there is no evidence at all that they are consequences of the free exchange system).
Theorists of civil society have similar misgivings about some aspects of unrestrained capitalism. that is why those countries that emerged from communist Eastern Europe were anxious to dissociate themselves from the Wall St. and City of London versions of capitalism. With their obsessive concern for shareholder value and entrepreneurial profit; and their indifference to the social consequences of the remorseless allocative processes of the market. Thus the model of the remorseless allocative processes of the market. Thus the model of the ‘social market economy’, in which raw capitalism is modified by statutory welfare for those unable to survive in the free exchange system; and the takeover method of industrial reorganisation is tempered by a concern for the effect that rapid economic change might have on the integrity of local communities. This hostility to ‘corporate raiders’ was as much reinforced by voluntary action against them as it was by formal legal restraint of their activities. Furthermore there was claimed to be a much more harmonious relationship between employers and trade unions than existed in the more adversarial attitudes that were said to pervade industrial relationships in American and British capitalism.
The reverence for private property, then, has as much a moral foundation in civil society as it does an efficiency rationale (although the allocative effectiveness of the market was never denied). The existence of private property provided a further barrier against the state and made it individuals to exercise their freedom and autonomy, even though doubts were expressed about the ruthless individualism that capitalism might entail. Also, some non-socialist critics of extreme laissez-faire thought that the doctrine could degenerate into an all-encompassing ideology which was simply the reverse side of communism. Still, al had to agree that the private property/market system certainly prevented the state from exercising total control of people’s lives, as had been the case under communism.
Islam, Liberalism, and Civil Society
At first glance, the social, economic, ethical, and political implications of Islam might seem unpromising for believers in either liberalism or civil society.(10) Superficially it seems to have features of authoritarianism or even totalitarianism: Islam is an all-embracing creed that provides its followers with certain and indubitable knowledge of ethics, law and religion. It seems to be at some distance form that pluralism which is such a feature civil society, also important is the fusion of church and state in Islam and the injunction for the state to fulfil a certain purpose, i. e. the realisation on earth of the will of Allah. Certainly, that scepticism about fundamental ethical and political truth, which is a characteristic of some versions of liberalism, is absent in Islamic doctrine. On the contrary, it is characterised by an absolutism about fundamental values. The no doubt misleading public and political image of Islam, which is often of a fierce, uncompromising and highly illiberal doctrine with little tolerance for opposing views, has not been helpful; thought it might be more accurate to describe the regimes so characterised as Muslim rather than Islamic. The difference here turns upon the fact that Muslim states are led by Muslims who might show only a nominal respect for their religion while Islamic states structure their legal and political orders around an application of religious and social doctrine, as expounded by the Prophet. An examination of this philosophy shows that it has many of the moral and economic properties of the free societies of the. West. In economic matters, at least, Islam may be rightly be said to have anticipated theories that were to become standard in the liberal West. Indeed, it is the Muslim states that have done so much to discredit Islam, not the least because they have corrupted its true message by infecting it with some of the now most discredited social doctrines of Western intellectuals (including, of course, socialism).
A difficulty in understanding the political theory of Islam is that there is no one authoritative text that deals exclusively with forms of government or even with political obligation in general. It is the case that the Prophet did not prescribe any specific form of government and no specific political prescription is laid down in the Qur’an. Furthermore, the fragmentation of Islamic society in the modern world means that the basic principles of Islam have had to adjust to a variety of local circumstances. Adaptation to change according to political circumstances is by no means excluded by Islam but this political uncertainty does lead to complex and possibly unanswerable questions about appropriate constitutional forms. It maybe the case that the Islamic order in seventh century Medina (established by the Prophet) was the first example of the modern state but a description of it leaves many political questions unresolved. One good example of this is the vexed question of whether or not Islam is consistent with modern ideas of liberal democracy.
However, this uncertainty about precise political forms directs us to the most important feature of Islamic political thought –the superiority of law over the state. And in Islam, the fundamentals of law or Shari’ah is decisively not a matter of opinion or subject to any variation. In this respect Islam can be shown to be quite consistent with some leading ideas of civil society and liberalism, especially when these doctrines are grounded in the certain knowledge of natural law (though it has to be conceded that the influence of objective natural law over modern Western political thought has diminished, perhaps regrettably, in the twentieth century). For there is a clear distinction in Islam between mere executive government, for which there is no precise recommendation, and law, which is unchanging and, in principle, perfectly universal.
Islam and Law
What is distinctive about Islamic law is that it is binding on everyone, including the rulers (whomsoever they may be). There is no conception of sovereignty, apart from the ultimate and final authority of God. The idea that law can be made and unmade at the will of the ruler,a notion that emanates from Hobbes and which has had an unfortunate influence on some aspects of Western thought, is alien to Islam. Just as there is no theoretical role for a sovereign, there are, strictly speaking, no ‘nation states’. Islam is a universal community, not divisible into particular communities identifiable by race or language, or any other merely contingent feature of human beings. Indeed, there is a nascent theory of political obligation in Islam which authorises disobedience to an executive ruler who breaches the injunctions of the Shari’ah.(11) In this doctrine we see some similarity between Islam and the ideal of the medieval Christian Commonwealth, another example of a potentially universal community in which everyone is theoretically bound by natural law. And Islam is just as decisive as Christianity is, if not more so, about the moral injunctions of natural law.
What is interesting, in the context of modern, classical liberal theories of law, is that law in Islam is discovered, not made. This is, of course, a distinction made famous by Hayek and it is remarkable how Islamic conceptions of law bear a close resemblance to his jurisprudence. Of course, Hayek’s jurisprudence is not quite of a natural law type, his liberal scepticism deters him from a commitment to absolute and universally binding principles, but his rejection of specific command as the sole source of law (indeed the sovereign’s orders are a minor part of his jurisprudence) bears a close resemblance to Islamic legal thought. In the latter, the true meaning and interpretation of the Shari’ah is discovered by legal scholars just as for Hayek common law judges do not create law, they find it through en exploration of cases and customary practices (although the legal activism of judges in America has perverted this idea of discovery in the common law).
Understandably, Islamic law must be uncertain in some areas, although indubitable in its foundational prescriptions, and in this there is a role for adjustment to particular circumstances. But even here there is no role for sovereign legislatures. Nor is there a privileged role for a ‘priesthood’ in the precise determination of the law; and this was a definitive feature of medieval Christian conceptions of natural law. The necessary adaptations and interpretations are made by the Ummah (which includes non-believers), or ‘community’.
Community, Democracy, and Islam
The Islamic idea of community is a little different from contemporary notions, for in the former it is, in principle, universal and not limited territorially or linguistically, it therefore has little of the relativism which is implicit in modern Western anti-individualistic conceptions of community. It is also true that in theory the Ummah has an important role in the choice of the executive ruler (Caliph) of an Islamic state.
We can now begin to see the connection between Islam and modern democracy. The commitment to untrammelled majority rule is specifically precluded by Islam, just as it is in modern liberalism and civil society: for the determination of law cannot be left to the whim of possibly transient numerical procedures. As Lukman Thaib says: ‘In Islamic affairs, numerical majority is not the orientation of truth, for the Qur’an has repudiated any such notion’. But yet there is a ‘democratic’ element in Islam as long as that is not understood in terms of mere numbers. There is an important role for Shura, or consultation in Islam; it was indeed a feature of the Prophet’s rulership in Medina. There is an obligation of the executive ruler to take account of the opinions of the citizens and, although this is not reducible to the mechanical procedures of majoritarianism, it does ensure that government rests, upon a form of consent. In this respect it is in the same theoretical world as civil society, and is consistent with the constraints on the ‘will of the people’ that have always been a feature of liberalism.
Islam and Ethics
The foundational political concept in Islamic moral and social thought is natural law and the most important feature of this is equality. This is an ethical notion which has little or no connection with modern (non-classical liberal) theories of egalitarianism. All persons are equal in the sight of God and are not differentiated by race or creed. As the Prophet said: ‘People are as equal as the teeth of a comb, there is no superiority of an Arab over a non-Arab except by virtue of piety’(12). Muslims are bound by natural law to treat even their enemies as equals. Justice, in the procedural sense of treating each person in a fair manner, regardless of contingent factors, and not social or redistributive justice, is the defining characteristic of Islamic law. Certainly no religious difference justifies the relaxation of natural law. The problem of minorities within an Islamic state may seem intractable to outsiders, given the Islamic insistence that politics is not an autonomous activity but is inextricably bound up with the propagation of the faith. To quote Thaib again: ‘The state must be moulded in Islamic patterns’(13) However, this superficially illiberal statement must not be misunderstood, for those ‘Islamic patterns’ include an important element which is pluralistic. A good Muslim is bound to respect other religions and acknowledge the rights and liberties of their believers. A proper Islamic state limits to only a few areas the decisiveness of its law; for example, non-believers are prohibited from usury (itself a contentious issue in Islamic thought), they must acknowledge the executive authority of the Caliph and are compelled to make some contribution to defence costs. But non-believers are entitled to welfare.
Certainly, in history the proper Islamic state has exhibited welcome features of pluralism. From the beginning of political Islam in Medina, Jews were accorded equal rights and in the Ottoman Empire Jews, Christians, and Muslims lived under their own legal systems. Those believers in civil society, when faced with the problem of minorities, have not gone as far as suggesting that there should be rival legal systems and, as we have seen, an aggressive version of American liberalism seeks to impose its moral values on dissenting minorities. There is a nascent theory of competitive jurisdictions in extreme individualist thought and as we have noticed many writers have recommended the right of ‘exit’ from unwelcome legal orders but conventional liberalism, especially in America, presupposes the rightness of its doctrine. Yet there is genuine legal pluralism in Islamic thought.
Islam and Human Rights
It should be apparent from the above that it is not too difficult to read off a set of human rights in Islam which is not radically different from the Lockean tradition of the West. And indeed, in 1981 an important document was published, The Universal Declaration of Human Rights and Human Rights in Islam,(14) which put Islamic human rights theory in the context of contemporary rights talk. Western readers were no doubt surprised by the theoretical similarity between Western and Islamic approaches. Not only are justice and equality stressed as fundamental human rights but the conventional claims to freedom of thought and discussion (including religious freedom), to property, to dissent, non-discrimination (including any based on racial or sexual grounds) and free movement are listed. There is even a right to social security or welfare, itself a subject which has caused great controversy in the West and has divided liberals between ‘minimal state’ theorists, who reject the collective and compulsory provision of welfare, and egalitarian liberals who enjoin the state to provide a range of protective services, including poor relief, costly pensions, unemployment insurance and free medical treatment. It would seem that a similar debate about the nature of rights is going on in Islamic circles.
In one important respect Islamic rights differ from some versions of contemporary Western liberal rights. This is the stress on the correlation between rights and duties. In Islamic thought the possession of a right is dependent on the performance of a social duty.(15) There is an explicit rejection of the perhaps wild individualism which is a feature of some versions of Western liberalism. Just how such duties are to be defined, and how they are to be enforced, is not obvious but the connection between rights and duties is conceptual. Perhaps such conditions may vary from community to community, an approach which is consistent with the Islamic idea of adaptability and adjustment to particular circumstances. Certainly Western writers themselves are showing considerable dissatisfaction with the notion of ‘dutiless’ rights and the whole issue has become important with the social and family breakdown that has occurred as a consequence of the granting of welfare rights unencumbered by any social obligations, for example to work or to refrain from self-destructive behaviour.
Islam, Civil Society, and Western Liberalism
It is apparent that in theory there are similarities between traditional Western liberal values and Islam, even thought the public image of Muslim states and the attitudes of certain political leaders belie this. If anything. Islam is closer to classical liberalism(16) than it is to the egalitarian American variant. Furthermore, the fusion of church and state is not necessarily inconsistent with the major tenets of civil society. Even though the Islamic state is obviously not secular in theory. There is no attempt to impose its belief system on others. In economic matters the commitment to private property and the market is decisive, entrepreneurship is encouraged and in theoretical Islamic law the tax obligations are really quite trivial in comparison to those in the West. In terms of economics, Islam can claim to have originated the theory of the free market not only a long time before Adam Smith but also ahead of the fifteenth century Catholic School of Salamanca, whose members have come to be accepted as the first expositors of market allocation, monetary theory and subjective value. But the thirteenth Islamic writer historian and social theorist, Khaldun had discovered the theory of the market and nascent capitalism as long ago as the thirteenth century. There is a problem about the prohibition of usurious interest rates (the Riba) but not only was that a feature of other religions (including originally Christianity) but is is not clear that it forbids all payment of interest on monetary loans (a necessary feature of capitalist development). At most purely exploitative interest rates are forbidden but not those that contribute to the generation of productive capacity.
One might well ask: why has Islam not ben recognised as part of mainstream liberal social and political theory since much of its doctrine is consistent with it? One answer might be that Muslim (as opposed to Islamic) states have pursued social and economic practices which are not derived from the Qur’an, and which are nationalistic, illiberal and sometimes socialistic. They seem to have acquired quite the wrong doctrines from the West and many ideas which are alien to the pure Islamic tradition.
Still, there is this emphasis on religion as a source of political duties which some theorists of civil society, with their emphasis on formal secularism, no doubt resist. Also, there is a genuine fear in the West of all-embracing doctrines. It is easy to show in theory that Islam does not license the imposition of religion in an totalitarian-like way but the explanation of this requires some subtlety and understanding. Again, Islam has not been attractive to the women’s movement in the liberal West. The next stage of Islamic political thought should be devoted to explaining to Western liberals and theorists of civil society just what in Islam is consistent with the individualist tradition of the West and what is not. Western liberal writers would certainly benefit from knowing that certain crucially important features of Islam are perfectly consistent with their own doctrines.