Sharia Reasoning and the Pursuit of Democracy: John Kelsays Arguing the Just War in Islam

G. Scott Davis John Kelsays Arguing the Just War in Islam is not simply the most insightful and up to date introduction to thinking about war in the Islamic traditions; it also incorporates a subtle argument about the direction in which the foreign policy of the United States needs to move in order to regain a functional degree of credibility in the Muslim world. If Kelsay is correct, as I believe him to be, then his volume reflects in important ways the impact that scholarship in just war tradition and the comparative ethics of war can have on the political development of the twenty-first century. The just war tradition was not always an object of study in American intellectual life. As late as 1923, John Dewey could write of Grotiuss De Jure Belli ac Pacis, for example, that two of his three books are devoted exclusively to the discussion of war and that topic spills over into the remaining book. Its relation and importance has not improved in modern treatment.1 International law he vilifies as being wholly complicit in the war system, thereby casting aspersions on the enterprise of publishing the classics of international law undertaken less than two decades earlier by the Carnegie Institution. The Carnegie series, published under the auspices of the Endowment for International Peace, provided the primary texts for the study of early modern just war thinking through much of the

G. SCOTT DAVIS (AB, Bowdoin College; PhD, Princeton University) is Lewis T. Booker Chair in Religion and Ethics, Department of Religion, University of Richmond. His articles have appeared in Journal of Religious Ethics, Soundings, Religious Studies, Religion, Method & Theory in the Study of Religion, and Journal of Peace & Justice Studies. Special interests include: just war theory, history of ethics, and contemporary moral theory. 1. John Dewey, Which World Court Shall We Join, reprinted in John Dewey, Characters and Events: Popular Essays in Social and Political Philosophy, ed. Joseph Ratner (New York: Henry Holt, 1929), 655.
Journal of Church and State vol. 53 no. 1, pages 59 72; doi:10.1093/jcs/csq138 Advance Access publication March 7, 2011 # The Author 2011. Published by Oxford University Press on behalf of the J. M. Dawson Institute of Church-State Studies. All rights reserved. For permissions, please e-mail: journals.permissions@oup.com

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Journal of Church and State twentieth century. James T. Johnson, in particular, has mined the series in a number of key texts in the history of just war thinking.2 More recently, there have been various attempts to expand the analysis of reasoning about war to include the full spectrum of the worlds religious traditions. Typically, this has taken the form of a collection of essays, introducing the reader to key figures, texts, and topics addressed within a particular tradition. While this is a laudable tendency, Johnson notes that, even at their best, such essays provide only compact snapshots of how they have functioned in actual historical contexts.3 More serious comparative analysis calls for robust study of developments and debates within a single tradition, as providing the best basis for identifying and building on possibilities for communication across religious and cultural lines.4 Johnson correctly identifies Kelsays work as at the forefront of this endeavor. Kelsay has been working toward this end for over two decades, beginning with a 1985 dissertation at the University of Virginia, followed by comparative work on human rights leading, in 1988 1989, to a series of conferences organized with Johnson and held at Rutgers University. The two volumes that emerged from these conferences track the understanding of war in Christian and Islamic contexts from their emergence to contemporary applications. This was followed, in 1993, by Islam and War: A Study in Comparative Ethics. For many of us, over the next decade, Kelsays volume became the standard source for introducing students to the traditions and narratives that informed the understanding of armed conflict in Islamic cultures.5
2. See especially James Turner Johnson, Ideology, Reason, and the Limitation of War: Religious and Secular Concepts, 1200 1740 (Princeton: Princeton University Press, 1975), and his Just War Tradition and the Restraint of War: A Moral and Historical Inquiry (Princeton: Princeton University Press, 1981). 3. James Turner Johnson, Thinking Comparatively about Religion and War, Journal of Religious Ethics 36, no. 1 (2008): 163. 4. Ibid., 173 74. 5. In my own teaching Kelsay was augmented, from 1997 on, by the primary texts translated in Rudolf Peters, Jihad in Classical and Modern Islam: A Reader (Princeton: Markus Wiener Publishers, 1997). The two together supplied a compact but comprehensive introduction to issues of war and armed conflict unmatched for any other religious tradition. While Arthur Holmes, War and Christian Ethics: Classic and Contemporary Readings on the Morality of War, 2nd ed. (Grand Rapids: Baker Academic, 2005), has long provided, in its original edition of 1975, a comprehensive group of Christian texts, there has been nothing analogous to Kelsay for Christianity. The two obvious contenders, Roland Bainton, Christian Attitudes toward War and Peace: A Historical Survey and Critical Re-evaluation (New York: Abingdon Press, 1960), and Paul Ramsey, War and the Christian Conscience (Durham: Duke University Press, 1961), are more representative of certain positions than overviews.

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Sharia Reasoning and the Pursuit of Democracy Kelsays study in comparative ethics was prompted, in the first place, by the qualified success of Saddam Husseins appeals to Islam in the Gulf conflict. In his confrontation with the Western powers, writes Kelsay, Saddam Hussein sought to blend the rhetoric of Arab history and pride with the Islamic sense of mission.6 From the perspective of the Palestinians, arguably those most invested in conflicts between Islam and the West,7 Saddam
may be like Saladin; he may not. Regardless of the outcome, however, he has done a service. God used him to show the way for Palestinians, and indeed all the Muslims, to carry on their struggle. That way is through a return to Islam.8

Part of the benefit of Kelsays exposition is that, however Saddam Hussein may have looked from a European and American perspective, for at least a significant number of Muslims, his invocation of Islam became a call for a revival of piety and adherence to religious law.9 To understand contemporary Muslim language about war and justice would thus require a full grasp of Islamic tradition and its self-understanding. While Kelsay is clearly concerned about the role of Islam in contemporary conflicts, the book is as much a study in the possibility of comparative ethics as it is a discussion of Saddam Husseins strategy in international affairs. Kelsay notes that concern for justice in war (the jus in bello)10 crosses the boundaries of both philosophy and theology and goes on to suggest that the rules of war in
The various historical works of James Johnson lack the introductory matter analogous to Kelsays first three chapters, while the dense individual analyses are too advanced for introductory students. Johnson addresses the situation for other traditions in his 2008 Thinking Comparatively about Religion and War. 6. John Kelsay, Islam and War: A Study in Comparative Ethics (Louisville: Westminster/John Knox Press, 1993), 14. 7. The scare quotes around West are intended to stand in for a discussion that may be, for the most part, unnecessary for readers of a scholarly journal. Islam, Christianity, and (if to a lesser extent) Judaism are all global religions. At the same time, all three had their origins in the cultures of the Eastern Mediterranean littoral. All three trace their lineages back to a single creation that set in motion a mythic history at least parts of which they all share. At the same time, many Muslims see themselves as the heirs to a conflict with Christian Europe that had its origins in the late eleventh century and finds its continuation in the economic and colonial domination of a technologically advanced and aggressive North Atlantic community. The West here is my shorthand for this conflict. 8. Kelsay, Islam and War, 15. 9. Ibid., 16. 10. Ibid., 57.

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Journal of Church and State Islam are instructive because while the consensus owes much to moral principles and theological concerns, it is also indebted to political and military factors.11 This is important to acknowledge because, as Richard Rubenstein insists, religious and cultural traditions express themselves in narratives that foster the group feeling of particular communities. Such narratives tie the traditions to specific social and historical experiences.12 The first half of Islam and War attempts to provide this understanding. Kelsay introduces Muhammad as the advocate of Arab monotheism, called to proclaim a return to the social justice that had always been central to the prophetic tradition. Key to Muhammads message was the message that
the city of Mecca had come to be dominated by people more interested in profits than justice; and that there would come a day when God would judge the citizens of Mecca (and indeed, all humanity) and requite them for their wrongdoing.13

The subsequent resistance to his message, and to the message of Islam generally, reflected the stiff-necked waywardness of human nature. Whatever else may have accompanied the expansion of Islam, the core of the revelation granted Muhammad was submission to the will and judgment of God and the pursuit of the social justice that is Gods will for all humanity. In chapter 2, Kelsay provides an exposition of the Islamic view of peace in which politics, involved the attempt to comprehend, in a systematic way, the guidance of God.14 Armed and organized force, as it turned out, was essential to protecting the Muslims from those who would attack them. War, Kelsay argues, must be conducted in accordance with Islamic values, and the
formal parallels between these rules of war and the Western just war criteria are rather striking. Just cause, right intent, competent authority, a reasonable hope of success, the aim of peaceall these criteria of the jus ad bellum are formally present in the rules governing jihad, as is the jus in bello requirement for discrimination in targeting.15

Here the goal of situating Islam in a comparative context is much to the fore. The value of an awareness of Islamic thought on war is particularly useful, as Kelsay notes toward the end of chapter 3, in suggesting the ways in which religion can serve as a limitation on
11. 12. 13. 14. 15. Ibid., Ibid., Ibid., Ibid., Ibid., 59. 116. 20. 31. 36.

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Sharia Reasoning and the Pursuit of Democracy war.16 In doing so, it will naturally use religious terminology, but it is simply a mistake, as a nuanced understanding of Islam makes clear, to assume that a war informed by religious thinking will devolve into a crusade mentality, where considerations of discrimination and proportionality pale in the light of a holy cause.17 Chapter 5, where Kelsay discusses soldiers without portfolio, will turn out to be essential for his later work, but a key moment in the move toward that later work is his 1997 article, Islam and the Comparative Study of Religious Ethics. Central to Kelsays argument here is the seemingly simple claim that one knows that someone is doing ethics when he or she is self-consciously engaged in answering questions associated with the phenomenon of practical justification.18 Taken in its broadest sense, practical justification addresses the demand to say what justifies you in doing what you did or propose to do. If this is doing ethics, and I dont see what could have a better claim, then there are no criteria of genre or discipline that can automatically rule one sort of answer in and another out. Such attempts are either mere academic conveniences or freighted with some, possibly unacknowledged, political agenda. Majid Frakhrys decision to concentrate almost exclusively on discursive or theoretical elements in Islam19 may be either, but the result is to impoverish the discussion by failing to connect the various types of Islamic ethical theory to the social and cultural worlds from which they emerge. Kevin Reinharts steadfast refusal, on the other hand, to engage the categories ethicists employ in their discussions of practical justification,20 seems to reflect his desire to force the reader to attend to what a central controversy in early Islamic reflection on practical justification looked like as it unfolded, rather than from the hindsight of later typologies, Muslim or Western. Instead, as Kelsay presents it, Reinhart is able to generate a more complex grid pitting low revelation, high humanity advocates against their high revelation, low humanity counterparts.21 If, as Kelsay seems inclined to do, we begin with George Houranis contrast between rationalist objectivism and theistic subjectivism,22 Reinharts grid provides a more nuanced way of fitting not only his own authors, but subsequent ones, into the fabric of Islamic moral thought.
16. 17. 18. 19. 20. 21. 22. Ibid, 53. Ibid. Ibid., 3. Ibid., 5. Ibid. Ibid., 6. Ibid.

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Journal of Church and State This comes out clearly in the second half of the article, where Kelsay looks first at Abdulaziz Sachedinas argument that Shiite political thought fuses
three key conceptsthat governments can, in the absence of the Imam, nevertheless receive a qualified legitimation; that the authority to provide legitimation rests with a qualified jurist or jurists; and Khomeinis notion of wilayat al faqih [deputyship of the jurist] as an assignment of direct political power to juridical authorities.23

By insisting on incorporating the full spectrum of genres and disciplines, it is possible to move without friction from Houranis discussion of ethical theories to Reinharts focus on a contested notion in the development of jurisprudence and theology to contemporary issues in Iranian political life. While Kelsay does not attempt it himself, it is possible to imagine situating Khomeini and subsequent Iranian leaders on Reinharts grid to understand what appears to some Western commentators as a tyranny of the imams, exerting their authority against the democratic aspirations of a popular majority, as a potentially tragic conflict between global pluralism and an historic commitment to faithful political authority waiting for the coming of the Mahdi. However, we ultimately come down on particular cases; the movement of this essay is clearly away from general comparison and toward understanding practical justification . . . within the framework of particular contexts.24 And along with this, Kelsay concludes, we make possible discerning what appear to others as the types of action most fitting to a particular time and place.25 How crucial this last ability is has become ever clearer since the events of September 11, 2001. In the wake of the attacks orchestrated by al-Qaida, individuals and groups of all sorts offered up their interpretations of the relation of al-Qaida to Islam generally. Apologists for Islam spoke as though the attacks had nothing to do with the faith of the Prophet, but were the work of fundamentalists who had hijacked Islam. On the other hand, as Kelsay notes, at least some evangelical Christians . . . portray the conflict as one between the children of light and the children of darkness, between the truth of God and the deception of the devil.26 Kelsays plan is to steer a middle course, charting the particular
23. Ibid. 24. Ibid., 8. 25. Ibid., 9. 26. John Kelsay, Arguing the Just War in Islam (Cambridge: Harvard University Press, 2007), 2.

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Sharia Reasoning and the Pursuit of Democracy contexts that provide a systematic description of the religious perspective of al-Qaida and other militant groups.27 Central to this project is an account of the movement away from an arena of practical deliberation defined by muruwwa, the chiefly virtues of the tribal big man:
The notion includes bravery in battle, for the chief leads his tribe into battle. It includes wealth and generosity, for the chief holds large numbers of livestock. . . . The muruwwa of the chief appears in the number of women (wives and concubines) and children he maintains.28

These chiefly virtues, from the perspective of the early Muslims, illustrate
al-jahiliyya, a term variously translated as heedlessness or ignorance. Islam stood in opposition to this system at every point. . . . Thus the foundational narrative of Islam is one in which Muhammad and his companions participate in a kind of cultural revolution, by which the tribes of the Arabian Peninsula are transformed into the umma, or community of faith.29

Muhammads call was to replace the carpe diem ethos found in the popular songs of pre-Islamic Arabia with an awareness of Gods justice and judgment. From out of Arabia, God had summoned the last in the line of the prophets to call first the Arabs, then the rest of humanity, back to the original religion as proclaimed by God in the beginning of things. If Kelsays 1997 essay presages a move to the particular, Arguing the Just War in Islam is, to date, the fullest expression of that transformation.30 Much of the vocabulary of comparative just war ethics is, if not replaced, recast in the context of an Arabic speaking culture. The opening chapter on sources places emergent Islam in its late antique context with much richer detail than the earlier book. The classic studies of Watt on the life of Muhammad, as well as Alfred Guillaumes standard translation of Ibn Ishaqs Life of Muhammad, are joined by the seminal late nineteenth-century work of Goldziher, the detailed essays on tribal culture by M. J. Kister, and the recent work of, for example, Michael Cook on commanding right and forbidding wrong.
27. Ibid., 3. 28. Ibid., 15. 29. Ibid., 17. 30. Kelsay notes, however, with regard to his discussion of The Neglected Duty, the text which justified the assassination of Anwar Sadat ( pp. 100 106), that his mind has changed on certain points. See ibid., 245, n. 6.

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Journal of Church and State The most striking innovation is Kelsays development of Sharia reasoning.31 Rather than the common translation of Sharia as Islamic law, Kelsay situates the emergence of the term in early Islam:
Literally, al-Sharia means the path. In a more extended sense, it refers to the path that leads to refreshment. With the advent of Islam, this extended sense lent itself to the notion of a path leading to success, a way to paradise, a way associated with happiness in this world and the next . . . a mode of behavior that leads to salvation.32

How to decide the hard cases was comparatively easy while the Prophet lived, but conflict developed in subsequent generations, leading to civil conflict, fitna, and the emergence of the split between Sunni and Shia. What comes in almost as an aside in the earlier book is here integrated into the narrative of Sharia reasoning, leading to the emergence of the orthodox schools. The terminology of Sunni and Shii, writes Kelsay, is not particularly useful for the very early period of Islamic history.33 It becomes relevant beginning in the eleventh century, however, because a distinctively Shii approach to Sharia reasoning grew up in the southern and eastern portions of Iraq; Iran also became an important center.34 While both wings of Islamic thinking had, up to this point, embraced a form of practical reasoning in which Quranic verses were interpreted and given a practical bite through being connected to the practice of the Prophet:
From the Shii point of view, the events of the first fitna . . . constituted a rejection of the Prophets plan for his community, and further created a context in which the majority of Muslims were prevented from following the straight path associated with al-Sharia.35

From this perspective, judgments after the first fitna are not reliable. Since Sharia reasoning depends on the precedents established by the practice of the Prophet and, to a lesser extent, his earliest
31. To cite just a recent incident, Richard Oppel and Abdul Waheed Wafa report six civilian deaths in a NATO airstrike in the New York Times for Sunday, April 14, 2009, A7. That NATO sources report only insurgent deaths is called into question for the general reader by the Afghan governors statement that there was no coordination of airstrikes and the report of a wounded fourteen-year-old who says family members were also killed. Regardless of the actual numbers, years of civilian casualties suggest to readers, not to mention Afghans on the ground, a level of indifference that belies stated concerns for non-combatants. 32. Ibid., 44. 33. Ibid., 70. 34. Ibid., 70 71. 35. Ibid., 71.

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Sharia Reasoning and the Pursuit of Democracy companions, it becomes crucial to be able to verify the legitimacy of those traditions. Shia scholars looked to different collections than their Sunni rivals, leading to a divergence within Sharia reasoning. In particular,
certain of the reports approved in Shii collections testify to the authority of reason (al-aql) in the affairs of humanity. These reports correlate with the general tendency of Twelver ulama to affirm al-aql as one of the sources of Sharia reasoning.36

This independence of reason, coupled with the majoritys break with the intended goals of the Prophet, makes it plausible to assert a well-reasoned analysis over and against the consensus of the majority. At this point it is a short move to a second important concept developed by Kelsay, the democratization of Sharia reasoning.37 There is a perfectly good sense in which disagreement arising within the Islamic world can be seen as consistent with Gods plan. The differing sides can view it as working toward an ultimate consensus. The emergence of reform movements is a phenomenon Islam shares with Christianity, with that of the Arabian scholar Abd al-Wahhab, whose movement allied with the family of al-Saud in 1746, being particularly important for the contemporary Islamic world.38 But from the sixteenth century on, the Islamic world came under ever expanding pressure from a newly aggressive West. The old, standard judgments about politics and war, writes Kelsay, were articulated by ulema in the context of an Islamic, imperial state. . . . The power of Europe, and eventually the United States, challenged the assumption of Muslim hegemony.39 One strand of nineteenth- and early twentieth-century Islamic thought was at least willing to consider a liberal coalition with the West.40 Another embraced the fourteenth-century jurist Ibn Taymiyya.
36. Ibid., 71 72. 37. Ibid., 94. As with Sharia reasoning itself, I am not claiming that this is the first use of democratization, nor even that Kelsays is the only use of that term. Faisal Devji writes of jihads democratization of Islam, in which the fragmentation of traditional authority and the resulting openness to new beliefs and practices facilitate the possibility of sectarian amity as much as of enmity in his Landscapes of the Jihad: Militancy, Morality, Modernity (Ithaca: Cornell University Press, 2005), 54, but there doesnt seem to be any cross-fertilization between the two. 38. Ibid., 76 77. 39. Ibid., 126. 40. See Albert Hourani, Arabic Thought in the Liberal Age, 1798 1939 (Oxford: Oxford University Press, 1962).

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Journal of Church and State Not only did Ibn Taymiyya insist on the individual duty of Muslims to join in jihad, he argued that apostates and rebels are seen as a greater threat than those unbelievers who live outside the boundaries of the Islamic state.41 Failure to abide by the judgments of Sharia reasoning renders even a self-professing Muslim culpable. If he actively resists the authority of the community, jihad is required. To this day, Kelsay notes, the texts of militants are filled with references to this shaykh al-Islam, that is, this first among equals in the tradition of Sharia reasoning.42 Without attempting to reproduce Kelsays nuanced account of Ibn Taymiyya and his influence, it is important to note two things with regard to his role in the democratization of Sharia reasoning. On the one hand, there is his zeal for purity in Islamic practice, which Kelsay says, may or may not involve an expansion of the typical concerns of Sharia reasoning.43 More important:
Where he does seem a bit different from his predecessors is in his construal of the relations between rulers and subjects. For Ibn Taymiyya, these are reciprocal. Rulers owe it to their subjects to provide leadership, to govern wisely, to establish institutions that will ensure that subjects understand their duties and are encouraged to fulfill them.44

When Muslim leaders fail in their zeal for purity, they fail to provide appropriate leadership. When this happens, they fail in their duty to their subjects. This, in turn, makes it impossible for those subjects to be rightly guided in what they owe both to God and to the community itself, thus the failure of leadership implies apostasy. This lesson was not lost on the followers of Abd al-Wahhab. In the absence of a just polity, the Wahhabiyya claimed the right of a rightly guided vanguard to engage in armed struggle against these manifestations of unbelief in order to establish an Islamic state.45 There is, of course, no little irony that 250 years after Muhammad ibn Saud threw in with Abd-al Wahhab, Osama bin Ladin would use the same arguments against the Saudi royal family. The democratization of Sharia reasoning emerges when the elite authorities are seen to evince too little zeal for the integrity of the Islamic state. Thus, before September 11, the Shaykh al-Azhar, historically the most respected figure in mainstream Sharia, declared al-Qaidas statement of principles inconsistent with Sharia notions of honorable combat and substantial numbers of generally
41. 42. 43. 44. 45. Ibid., 120. Kelsay, Arguing the Just War in Islam, 126. Ibid., 120 21. Ibid., 121. Ibid., 127.

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Sharia Reasoning and the Pursuit of Democracy sympathetic critics of America agreed.46 But despite their lack of formal training in Sharia reasoning, al-Qaidas representatives reject their authority. The failure of official Islamic leadership, combined with the direct attacks by the United States and their allies on Muslims worldwide, is a sign that
the world is out of joint. Something has gone wrong; the international system is dominated by people whose vision of order is guided less by the standards that God built into human beings at the time of creation, and more by the rule of the wrong. In this context, historically Muslim societies ought to assert themselves.47

If Muslim rulers do not rise to the occasion, the community of Muslims must take this duty upon themselves. Here Kelsays earlier discussion of soldiers without portfolio48 is given a richer and more immediate context. In that earlier treatment Kelsay writes that one of the great problems associated with irregular war has to do with the criterion of right authority. For both just war and jihad traditions, the right to authorize war is normally restricted to established governments.49 That already substantive discussion covers the same documents, insofar as they were available at the time, and locates them in the tradition of Ibn Taymiyya.50 But in the new volume, the question of irregular warfare does not emerge as a general problem in the comparative ethics of war, but as a popular development of Ibn Taymiyyas thought from the perspective of Sharia reasoning, as it falls to untrained Muslims in a time of emergency, when they have been betrayed by their leaders but feel the call to command right and forbid wrong. Democracy, in this context, is a cloak for corporate wrongdoing. What is needed, from those who would follow God, is a return to Sharia and a reformed piety. Believers must resist the siren song of democracy, with its separation of religious and political institutions.51 Placing the call to jihad by the members of al-Qaida and other militant movements in the context of Sharia reasoning highlights both the form of practical reasoning that goes into their policies and practices and the particular historical circumstances that have made implementing those practices an urgent response to the attack on Islam. But, and this is the last of Kelsays major contributions to understanding how the just war is being argued in the
46. 47. 48. 49. 50. 51. Ibid., 144. Ibid., 153. Kelsay, Islam and War: A Study in Comparative Ethics, 77 110. Ibid., 97. See fn. 29. Kelsay, Arguing the Just War in Islam, 160.

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Journal of Church and State Islamic world, there are Muslims who disagree. Muslim democrats advocate a very different reading of Islamic tradition.52 Kelsay brings together three prominent Muslims currently writing and teaching in the United Statesthe Iranian professor of religion Abdulaziz Sachedina, the Sudanese legal scholar Abdullahi an-Naim, and the Egyptian legal scholar Khaled Abou El Fadlto illustrate the complexity of contemporary democratic thought in the Islamic tradition. All three combine expertise in Sharia reasoning with historical and theological subtlety to criticize both the policies of the United States and the anti-democratic militance of the advocates of jihad. To summarize Kelsays treatments of all three would be both prolix and unnecessary. All three, in their distinctive ways, attempt to open up the hermeneutical possibilities for Muslim scholars to approach the classical sources. An example from Sachedina may illustrate something of the general strategy. Abu Bakr, the first of the rightly guided caliphs following the death of Muhammad, has traditionally been interpreted to hold that
apostasy or turning from Islam should be punished by the state. In debates surrounding this judgment, they made intricate distinctions regarding the types of behavior that constitute turning, and the punishment appropriate to each. Some types, at least, were punishable by death.53

Sachedina argues that the details of the discussion between Abu Bakr and Umar ibn al-Khattab opens up the possibility of distinguishing between exigent circumstances, where apostasy constitutes a threat to the ability of the Muslims to practice their religion and situations of political order, where the community feels free to behave as their beliefs dictate. In such a situation, the apostate may be left at liberty to decide according to his own conscience.54 An-Naim expands the hermetical options by laying out the historical plurality of precedents.55 Abou El Fadl, for his part, opens up interpretive space by deconstructing the practices of earlier schools. Thus he reviews a number of Wahhabi rulings constraining the movement of women, going on to wonder why the scholars issuing these opinions do not see that their views of women and men are archaic, and in particular rest on an assumption that male sexuality is practically uncontrollable.56 But even
52. 53. 54. 55. 56. Ibid., Ibid., Ibid., Ibid., Ibid., 166. 170 71. 172. 181. 186.

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Sharia Reasoning and the Pursuit of Democracy accepting the governing hadith in the case, the scholars neglect significant competing versions, the quality of the chain of transmission (always important in judging hadith), and the full range of scholarly opinion throughout the history of Sharia reasoning.57 Even in rough outline, it is clear that the democrats attempt to work within the methodological parameters of Sharia reasoning to challenge what we might call a particularly conservative invocation of stare decisis. In the context of United States law, this principle is important to avoid chaos in the interpretation of statutes governing an entire nation, so that the judgments of the higher courts can reasonably be expected to be followed by the lower courts. In Islamic tradition, this hierarchy of courts does not appear to exist. This, at least, seems to be the foundation for Abou El Fadls view that
the fundamental problem with militant versions of Sharia reasoning is that they confuse their own views with those of the Quran and the sunna. . . . In the end, many end up posing as authoritarians, rather than submitting themselves to the hard and patient labor required for an understanding of authoritative texts.58

If the individual judgments of scholars within the particular schools, invoked at different times to govern the populations of different lands, can be relativized to their historic contexts, then the opportunities for variation and innovation expand. In arguing justice in war, even advocates of jihad acknowledge a tension between the end professed and the means employed.59 Otherwise groups such as al-Qaida would not bother proclaiming, for example, that
those killed in the World Trade Center and the Pentagon were no more than a fair exchange for the ones killed in the al-Amiriya shelter in Iraq, and are but a tiny part of the exchange for those killed in Palestine, Somalia, Sudan, the Philippines, Bosnia, Kashmir, Chechnya, and Afghanistan.60

Such statements register the perceived need to say, particularly to other Muslims, that their means are consistent with the ends embodied in Islamic virtue. By focusing on this tension to leverage new hermetical space, the democrats can argue, with all the traditional scholarly weight of Sharia reasoning, that tradition, does not bind Muslims to one form of political order. Rather, it instructs them to think hard about the lessons of history, as well as about the
57. 58. 59. 60. Ibid., Ibid., Ibid., Ibid., 187. 188. 198. 145.

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Journal of Church and State peculiar mix of challenges and opportunities present in diverse political contexts.61 If history illustrates development, then new options for the future are not precluded. The advocates of democracy will be able to move into the mainstream, however, only to the extent their critiques of U.S. policy are seen to have impact. In particular, the conduct of the war on terror is hurting the case of democracy among Muslims.62 Until Muslim democrats are seen as having a recognizable critical impact on American policy, the militants will be able to link them to the global attack on Islam. The credibility of the democrats, in turn, will require an actual transformation of the character of U.S. foreign policy and practice. Kelsay cites, on this point, Iranian President Ahmadinejads challenge: who will believe that your cause is just . . . when your conduct belies the values of justice?63 This speaks not only to Muslims, but to secular Americans like myself, who worry that the continued use of airstrikes against suspected Taliban and insurgent sites in Afghanistan reinforces Ahmadinejads point.64 In the eyes of many Muslims, American use of military force is at odds with the demands of justice and, as Kelsay notes, those who perceive democracy as associated with the use of excessive force or with a lack of willingness to consult with others affected by military action are not likely to listen to carefully crafted arguments in favor of the practice.65 Not only do Muslim democrats have to make strong and visible criticisms of American action and policy; those criticisms must be seen to have a real impact. Secular and religious thinkers in the just war tradition need to support, for example, an-Naims critique of U.S. indifference to international law. And American officials must be seen as responsive to these critiques. The democratic way of showing the world that those criticisms can influence American policy is at the ballot box. Although published before the recent American elections, Kelsays volume can serve to illustrate for the new administration how the careful exercise of comparative ethics to bring out the context and vocabulary of practical reasoning in the cultures with which it must interact can help to inform concrete policy choices going forward.

61. 62. 63. 64. 65.

Ibid., 198 99. Ibid., 201. Ibid., 215. See fn. 30. Kelsay, Arguing the Just War in Islam, 221.

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