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To consider voting to be an endorsement of haraam law is a fallacy of misinterpretation.
by PROFESSOR ZIYAD MOTALA
IN the recent discourse surrounding the permissibility of voting in elections two articles by the Association of Muslim Professionals of South Africa (AMPSA) and a third by Mufti Emraan Vawda, the Head Mufti of the KwaZulu-Natal Jamiat and an Advocate to the High Court of South Africa, have sparked debate in the Muslim community.
These articles argue that voting is haraam because it endorses the law of the land, particularly the Constitution, which they deem un-Islamic. They claim that participating in elections equates to a rejection of tawhid (the oneness of God) and an endorsement of kufr (disbelief).
The critique of their position will unfold through several key points.
Firstly, the factual foundations upon which AMPSA and Mufti Vawda base their arguments are deeply flawed, leading to multiple erroneous conclusions.
Second, the inconsistency in rejecting all human-made laws while living within a society governed by such laws is highlighted, exposing the hypocrisy of their stance.
Thirdly, the context of anti-voting scholars in oppressive regimes is examined, revealing how their perspectives are meant to entrench despotic rulers in Muslim majority countries and do not translate well to democratic environments like South Africa.
Fourthly, the freedom to practice Islam within South Africa’s democratic system is emphasized, countering the simplistic view that democracy inherently conflicts with Islamic principles.
Fifth, the assertion that voting means endorsement of each and every tenet of the Constitution is empirically flawed.
Sixth, Mufti Vawda’s reliance on the principal-agent analogy to describe the voter-representative relationship is fundamentally flawed and similarly unsupported by empirical evidence or judicial acceptance.
Finally, empirical, and logical flaws in the arguments against voting are dissected, demonstrating that voting is not an endorsement of the entire Constitutional framework but a strategic tool for influencing political outcomes and safeguarding religious freedoms.
By addressing these points, this essay refutes the simplistic arguments presented by AMPSA and Mufti Vawda, illustrating the nuanced and complex nature of the voter-representative relationship and the pragmatic approach of engaging in the political process within a democratic system. Empirical research in political science consistently highlights the importance of voter heuristics, partisanship, and issue salience in shaping voting behaviour. Judicial rulings across various democracies have repeatedly emphasized the representative’s duty to their entire constituency, regardless of whether a voter supported them or not, discrediting the principal-agent analogy.
The greater law must include the lesser: the inconsistency of criticising from within the legal system
Firstly, it is essential to highlight a fundamental flaw in the position that rejects all human-made laws as antithetical to Shariah. This stance, particularly espoused by members of AMPSA and Mufti Vawda, is both fundamentally flawed and hypocritical.
Members of AMPSA and professionals like Mufti Vawda earn or earned their livelihoods within societies regulated by laws rooted in the Constitution. Professions such as accounting and law operate under frameworks that, while not entirely aligning with Shariah, are structured by the government to ensure societal functionality. Every aspect of daily life – from birth to death – is governed by these laws.
Even if these professionals were to leave their careers, they would still be subject to the laws governing birth, death, marriage, home registration, company registration, property deeds, child births, motor vehicle registration, driver’s licenses, bank accounts, investment accounts, rental contracts, and numerous other aspects of daily life. These regulations are all rooted in the Constitution.
To truly escape the influence of these laws, critics would need to emigrate to countries like Afghanistan. It raises the question: if their criticism of human-made law operating under the precepts of a sovereign Constitution is so stringent, why do they not exercise this option? This rhetorical question underscores the impracticality and inconsistency of rejecting the legal framework they inevitably live and participate in.
Context of the anti-voting scholars
The view that voting is haraam and is the view of most scholars, as articulated in the first AMPSA article, largely originates from scholars in Muslim-majority countries characterised by despotic, brutal, corrupt, and oppressive regimes. These scholars often function under regimes that exhibit scant regard for social justice, respect for human rights, or moral integrity. Frequently, these scholars are under the patronage of these authoritarian regimes, which reject democratic principles while demanding absolute obedience to even the most corrupt, vile, and oppressive Muslim rulers. In such societies, the freedom to exercise independent judgment is severely restricted without the consent of the rulers. Furthermore, scholars who espouse contrary viewpoints risk persecution, imprisonment, or even death.
The primary concern of despotic rulers in Muslim majority countries is to characterise any system of government that threatens or questions the authority of the despots as prohibited. Democracy, which empowers people to choose their rulers, poses an existential threat to these regimes. Consequently, many scholars, often financially supported by these regimes, legitimise the rule of the Muslim despots, and disapprove of democracy to maintain the status quo. In essence, democracy’s potential to facilitate alternative forms of governance is a significant threat to these rulers.
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Furthermore, numerous scholars on the payrolls of these rulers not only legitimise tyranny in Muslim-majority countries but also endorse oppressive ideologies and actions such as Zionism, Hindutva, and the persecution of Muslims by China. These scholars validate interventions by countries like Saudi Arabia and the UAE to overthrow or undermine democratic governments or movements, as seen in Egypt, Bahrain, Algeria, Libya, and Turkey, among others.
These establishment scholars disapprove of democracy worldwide, fearing it might challenge the entrenched power of their political pay masters. In France, despite their significant population, Muslims are the most discriminated against group. The hijab is banned in public places, and places of worship are targeted and shuttered. This global rejection of democracy is evident in France, where fatwas against voting contribute to low Muslim voter turnout and the subsequent persecution of the Muslim community. The optimal currency to garner votes in France is to oppress and denigrate Muslims and minorities. A prominent scholar has criticised these anti-voting fatwas in France, suggesting they are either issued by ‘scholars’ who are paid to give these fatwas or by scholars with a low IQ.
Freedom to practice Islam
The assertion that democratic systems like South Africa’s are grounded in disbelief in itself is simplistic. No country today operates solely on Shariah principles. However, South Africa’s laws provide unparalleled freedom to practice Islam. This is a significant virtue. Speaking against voting in such a context, where alternate political forces as exemplified in France and other European countries could undermine religious freedom, is shortsighted.
Empirical and logical flaws in the argument
Several qualified jurists present cogent alternative viewpoints supporting the decision to vote based on Maqasid al-Shariah (the objectives of Shariah). While I defer to qualified Islamic jurists on these interpretations, my critique of AMPSA and Mufti Vawda’s positions focuses on their factual and legal flaws and lack of empirical and logical rigour.
Mufti Vawda, both as a Mufti and an advocate, should know that a sound legal argument is grounded in facts that the judge or jurist treats as material. Conclusions must be intrinsically related to these facts. If the underlying facts lack soundness, then the conclusions will inevitably be unsound.
Misconceptions about democracy and law
The assertion that democracy elevates a false god to legislate beyond Allah is misguided. Neither the Constitution nor any man-made law is immutable; they evolve with societal changes. Political parties like the EFF and MK Party openly campaign to change the Constitution based on their values, illustrating that laws are subject to social, political, and economic pressures. Muslims have an equal voice in this marketplace of ideas to influence substantive changes.
Analogising the Constitution to the Pharaoh, as the first AMPSA article does, is patently absurd. No private citizen is required to take an oath to uphold the Constitution. Unlike the despots in many Muslim-majority countries who can torture Muslims for standing up for their faith or for not swearing allegiance to the despot, Muslims in South Africa have the freedom to publicly reject their government and provisions of the Constitution and call for its repeal without facing adverse consequences.
Moreover, constitutional provisions and laws are open to interpretation and debate. The interpretation is dependent on the political actors and the judges chosen to give meaning to the Constitution. The Constitution is the supreme law of the land. The critics of voting confuse the supreme law of the land with something sacrosanct and immutable. The Constitution is not immutable like the Quran. It can be changed by social forces either by interpretation or amendment. Mufti Vawda invokes an outlier theory of the Indian Supreme Court for the ‘Basic Structure Doctrine,’ which stands for the proposition that certain fundamental features of the Constitution can never be tempered with. This theory has been referred to in dicta but has not been endorsed by a majority of the judges on the South African Constitutional Court.
Even if they are unable to influence substantive outcomes, and whilst there are numerous laws inconsistent with Shariah, such as those permitting alcohol, riba (usury), and fornication, no Muslim is compelled to engage in these activities. AMPS in comparing these largely voluntary, albeit un-Islamic, laws to the compulsory decrees of the Pharaoh provides a flawed analogy. Practices that some label as ‘sexual perversion’ are not imposed on Muslims. Muslims are free to abstain from such activities and can establish their own institutions, including schools, which align with their values.
Moreover, the notion that seeking judgment outside the Quran and Sunnah constitutes kufr is misplaced. Muslims are not obligated to use state institutions or courts to resolve disputes. They have the option by consent of the parties to refer their matters to a qualified and trusted party under the laws of the land for mediation and arbitration. The law contains flexibility that allows Muslims to live in accordance with their faith while navigating the legal landscape.
The fallacy that voting implies endorsement of every aspect of the Constitution
Another significant fallacy is the notion that voting implies an endorsement of the country’s Constitution and all its norms and non-voting implies a rejection of the Constitution. This simplistic view lacks empirical support, whether in South Africa or elsewhere. Polls and exit polls in various countries reveal that voters’ motivations in voting are diverse and do not necessarily signify approval of everything a party, candidate, or Constitution represents.
For example, some voters may be driven by practical concerns, such as ensuring timely refuse collection and maintenance of roads, while others may be focused on issues like high taxes or a party’s foreign policy stance, such as its position on Gaza. In the United States, some voters claim they will vote for Donald Trump in their presidential elections, despite their personal contempt for Trump, to accelerate the perceived systemic collapse of the United States because of Trump’s irrational behaviour. Others say they will vote for independent candidates to protest against ‘Genocide Joe’. Suggesting these scenarios constitute a mandate or endorsement of the U.S. Constitution is erroneous.
Similarly, in recent local elections in Britain, many voters supported third-party candidates to express dissatisfaction with major parties’ positions on Gaza. These actions represent a protest vote showing a rejection of the establishment rather than an endorsement. Voting, in these cases, is a tactical manoeuvre aimed at achieving specific outcomes.
Several of Mufti Vawda’s assertions regarding voter motivations lack rigour and professionalism. For example, his claims that individuals vote due to a ‘herd mentality’ or an ‘inferiority complex’ are condescending, unsupported, and speculative. It is imperative to question the basis of such unfounded statements, which are surrounded by a multitude of non-sequitur assertions. His extensive ninety-plus page treatise is a labyrinth of baseless claims, deviating significantly from factual grounding and scholarly discourse. It neglects mainstream legal research, favouring broad generalisations and conclusions that reflect opinions that lack empirical support.
The misnomer of a principal-agent relationship between voter and elected representative
Another central misinterpretation in Mufti Vawda’s view is the assertion that voting creates a principal-agent relationship between the voter and the elected representative. This notion similarly lacks any factual or legal basis. The Mufti again relies on fringe political scientists who construct theories and make simplistic generalisations about why individuals vote, without providing empirical evidence or logical coherence.
There is no precedent anywhere in the world where a voter has been held responsible for the actions of an elected representative, a point conceded by Mufti Vawda. Esoteric theories do not create legal reality. Legal principles must be grounded in established legal canons, the views of jurists, and ultimately receive the endorsement of judicial bodies. No judicial tribunal has validated the proposition that a voter can be held liable for the malfeasance or misfeasance of an elected representative. The claim of an agent-principal relationship between voters and their representatives is baseless both legally and factually. At best, voting establishes an inchoate social compact, far removed from an agent-principal dynamic.
Numerous studies have shown that voter behaviour is influenced by a complex interplay of factors, including self-interests, socio-economic status, political socialisation, and media influence, rather than a straightforward principal-agent relationship. This principal-agent analogy has not been substantiated by any tribunal worldwide, underscoring its lack of legitimacy and acceptance in the legal domain.
The factual foundations upon which Mufti Vawda and similar proponents base their arguments are fundamentally flawed, leading to erroneous conclusions. It does not engage mainstream legal research instead favouring sweeping generalisations and conclusions that lack empirical support. Empirical research in political science consistently highlights the importance of voter heuristics, partisanship, and issue salience in shaping voting behaviour – factors conspicuously absent in the principal-agent framework proposed by Mufti Vawda and his sources. Additionally, judicial rulings across various democracies have repeatedly emphasised the representative’s duty to their entire constituency, regardless of individual voting choices, rather than a narrow principal-agent contract with specific voters, further discrediting this analogy.
The theoretical underpinnings of Mufti Vawda’s arguments are speculative and unsupported by rigorous empirical research and judicial endorsement. These arguments display a fundamental misunderstanding of the voter-representative relationship, which is far more nuanced and complex than the simplistic principal-agent analogy suggests. The established political science and legal literature provide a more accurate framework for understanding this relationship.
Opinions lacking empirical grounding have the potential to misinform and mislead vulnerable individuals. When such misguided viewpoints originate from organisations intended to serve the community, they risk delegitimising the organisation and alienating the very community they aim to support.
Conclusion
In conclusion, the arguments presented by AMPSA and Mufti Vawda against voting as an endorsement of haraam law are fundamentally flawed, both empirically and logically. The writings are laden with generalisations and unsubstantiated claims peddling conjecture over fact. It is a trumpeting of opinion over facts. Their reliance on the principal-agent analogy to describe the voter-representative relationship lacks empirical evidence and judicial support. The factual foundations of their arguments fail to recognise the nuanced motivations behind voter behaviour and the representative’s duty to the entire constituency. Established political science and legal literature provide a more accurate framework for understanding this relationship, revealing the profound weaknesses in the perspectives offered by AMPSA and Mufti Vawda. Additionally, their stance against human-made laws while participating in societies governed by such laws reveals a deep inconsistency.
Moreover, the criticisms from scholars operating under oppressive Muslim regimes wanting to protect the status quo reflect a raison de état and a context far removed from democratic environments like South Africa, where religious freedoms are protected. The simplistic view that voting equates to endorsing the entire constitutional framework ignores the strategic and diverse motivations of voters. The comparison of the Constitution to the despotic rule of the Pharaoh is patently absurd, and the notion that Muslims are compelled to engage in un-Islamic activities under democratic laws is misguided.
Voting in a democratic system is not an endorsement of all aspects of the Constitution. For many, it is a pragmatic approach to influence political outcomes and safeguard religious freedoms. It allows Muslims to participate in the governance process, advocate for their values, and navigate the legal landscape while maintaining their faith. Engaging in the political process through voting is an important tool for any community seeking to uphold its values in a pluralistic society.
- Ziyad Motala is Professor of Law at Howard Law School in the United States.
