Legitimacy and validity
In clarifying the concept divine sovereignty, Bahlul (2000, 291) asks us to first “distinguish between ‘validity’ (or rightness), on the one hand, and (mere) ‘legitimacy,’ on the other.” Legitimacy (the weaker of the two notions) is about “established rules and procedures” (ibid.). Thus, laws enacted by majority vote are certainly legitimate, but not if they “severely infringe rights and liberties” recognized for minorities (ibid.). There is no doubt that “decisions taken by solid majorities in democratic systems are expressive of the people’s being sovereign,” but they “cannot depart too far from justice if they are to claim legitimacy (Rawls 1993, 429). In other words, too much injustice has a corrupting effect on legitimacy” (Bahlul 2000, 291). But in distinguishing legitimacy from validity, and likening the latter to justice, Bahlul notes that “it is not obvious that we have access to notions of rightness and justice independent of social settings and historically conditioned arrangements to be discovered in specific political communities” (ibid., 291-92).
But what is justice? According to Kelson ([I960] 2017), an absolute concept of justice can only be found in the sphere of religion. But if we look at the problem from a secularized perspective, then we will have to concede that there arc plural concepts of justice, each relative to the particular legal system within which it has historically taken root. Very much in the same vein, Michael Walzer (1995, 314) puts forward a “local account” of justice on which “a given society is just if its substantive life is lived in a certain way—that is, in a way faithful to the shared understandings of the members” (Walzer 1995, 312-13, quoted in Bahlul 2000, 292).
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A theologian and politician, Hasan TurabT (1932-2016) served as minister of justice and foreign affairs in Sudan, where he had led the National Islamic Front, part of the Muslim Brotherhood movement.
As Bahlul points out, this local, relativizing account of justice tends to blur the distinction between validity (which is substantive) and legitimacy (which is procedural). By contrast, “Islamic (and other religious) thinkers do not accept collapsing the distinction between what is ‘right’ and what is merely ‘legitimate’ (on account of being passed by commonly accepted rules of procedure)” (Bahlul 2000, 292; italics added). They do not so much deny the legitimacy of decisions taken according to democratic procedure as they want to say that the validity of political decisions ought to conform to divine law. In doing so, they foreground the concept of divine sovereignty, thereby claiming that the attainment of equality within the political system ultimately rests on a theological foundation (Esposito and Voll 1996,25). Bahlul asks whether there is anything like this conception to be found in Western political thought.
In an exchange the philosopher Jürgen Habermas had in 2004 in Munich with Cardinal Joseph Ratzinger (who would soon be elected pope), the latter argued for the need to move beyond the procedural rules of democracy, for these can become an instrument through which the rights of minorities are infringed (Ratzinger 2004, 31). He stated that it was necessary to identify the moral foundations of law, claiming they could be found in the great religious traditions of humanity (ibid., 34). Habermas rebutted by making a case for the superiority of the constitution over the majority principle and arguing that lawmakers enacting legislation by majority vote should do so relying on constitutionally entrenched principles and values as their guide (Habermas 2004, 26): these include individual autonomy and the basic rights and freedoms, on the one hand, and equality, on the other, and they should trump any democratic procedure based on majority rule (Dworkin 1996).
Bahlul (2000, 292) weighs in on this discussion by arguing that “Islamic thinkers’ advocacy of divine sovereignty” is best understood “as a way of trying to go beyond this purely procedural view of democracy,” and “that statements such as ‘Sovereignty belongs to God’ [...] are to be viewed as statements about what political decisions ought to be like, if they are to have validity, or moral rightness. The ideal situation is when the democratic procedure functions within parameters set by divine law.” He sees this theory as having parallels in Western political thought, including in the work of David Estlund (1997, 174), criticizing theories of correctness on which justice is determined by the outcome of decision-making procedures.
