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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.
April
/
May 2002
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