Dharma Files | Analysing Brexit in context of Islamic jurisprudence and Western democratic tradition

Most political observers perceive the United Kingdom at the moment as being in the throes of a crisis, and many of them trace the origins of this crisis to Brexit.

The developments which led to Brexit in the United Kingdom provide an interesting illustration of what happens when the views of the majority of the elected delegates are at variance with the views of the majority of the electorate. The political tensions in the United Kingdom around Brexit represented the divergence between these two ‘majorities’. It was after the Conservatives came to power under Boris Johnson, that these two majorities coincided, and Brexit was realised.

The rest of this post is devoted to the analysis of the divergence between these two majorities, which was not immediately obvious to many political observers, but which was obvious to a student of Islamic legal thought.

What could Brexit possibly have to do with Islamic thought, and that too with Islamic legal thought?

The room for making this claim arises from the debates around Brexit, between what the people wanted and what their elected representatives — the members of parliament — could deliver. The people of the United Kingdom were asked some years ago to decide whether they wanted to stay in or leave the European Union. They provided a clear answer to the question — that they wanted to leave. And yet, the members of the British parliament could not manage to bring this about. One may describe this situation in the following terms: that the ‘consensus of the people’ or the community, had not been matched by a ‘consensus of the Parliament’ or their elected representatives. It is surprising, given that electoral democracy has been around for almost three centuries, that this phenomenon of a divergence between what the people want and what their representatives want has received little attention.

It is here that Islamic legal thought comes to our aid. Islamic law, or Sharia, identifies four sources of law: (1) the Quran, (2) The Sunna or Prophetic precedent, (3) Qiyas or analogical reasoning, and (4) Ijma or consensus. It is this last category which comes into play here.

While the prospect of a difference emerging between the consensus of the community and those of its representatives is hardly entertained in Western constitutional law, this kind of difference forms the basis of the sectarian split between Sunni and Shia Islam. Sunni Islam claims that the successor to the Prophet should represent the consensus of the community, while Shia Islam claims that the successor should be determined by the consensus of the Quresh, the clan to which the Prophet Muhammad belonged, and not of the whole community. Thus, not only is the possibility of a divergence between the consensus of the representatives of the community, and the consensus of the community, entertained in Islamic jurisprudence, it is also manifested in Islamic history which testifies to the tragic consequences of such a divergence.

There is another point at which this difference surfaces in an Islamic context, again in the context of Ijma or consensus. In matters involving Ijma in general, whose Ijma is to be considered authoritative: that is the Islamic community in general, or that of the Ulema or the learned scholars of Islam? The situation around Brexit provides a parallel: whose Ijma should prevail — that of the people or that of the Parliament? An interesting convolution is provided by the fact that the Parliament, having failed to provide a consensus several times, had to be re-elected.

A third point suggests itself. Islam also accepts Ijtihad, or independent reasoning, as one of the sources of Sharia, while followers of Shia Islam rely on the Ijtihad of living jurists. The Sunni tradition maintains, by and large, that the gates of Ijtihad are to be considered closed after the major schools of Islamic law had been established by the end of the ninth century, such as the Hanafi, the Maliki, the Shafii, and the Hanbali. If the constant effort to make a deal with the European Union be considered a case of Ijtihad, then whose consensus should be considered as closing its gates — that of the people or that of the Parliament?

What is remarkable here is not so much whether we seek recourse to Sunni or Shia Islam for guidance in this context, as the fact that Islamic jurisprudence conceptualised the possibility of a difference arising between the Ijma of the community and its representatives, and reflected on the prospect of a divergence between the two, while Western democratic tradition paid it scant attention.

The author, formerly of the IAS, is the Birks Professor of Comparative Religion at McGill University in Montreal Canada, where he has taught for over thirty years. He has also taught in Australia and the United States and at Nalanda University in India. He has published extensively in the fields of Indian religions and world religions. Views expressed are personal.

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