Islam and the Secular State:

Islam and authority

posted by John R. Bowen

An Indonesian Muslim friend once told me how happy they were to have Abdullahi an-Na`im travel to Indonesia and give talks to local Muslims. My friend works for Islamic reform along feminist and pluralistic lines, and has been labeled overly “secularist,” but, as he explained, “an-Na`im makes us all look to be part of the mainstream!” Indeed, an-Na`im has toured the world of Muslim-majority countries campaigning to change how Muslims understand scripture and the state. A student of the assassinated Sudanese scholar Mahmoud Mohamed Taha, an-Na`im has pursued his teacher’s argument that Muslims should distinguish between the universal message of Islam, most clearly set forth in the earlier revelations to Muhammad during his travails at Mecca, and the later verses, some of which were tied to the task of governing Medina. Many Muslim scholars urge that the historical contexts of revelation be part of the interpretive apparatus, but Taha’s and an-Na`im’s message, to take only some of the Qur’an as directly applicable today, was especially controversial. His openness and generosity as a scholar and a fellow human being has, however, given him an audience throughout the world.

In his new book, which he says will be his final statement on these issues, an-Na`im argues that Muslims need a secular state to live their religious lives. Alongside his immensely informative account of modern developments, he makes a sustained argument against state enforcement of Islam along two major lines. First, it makes no religious sense for a state to force Muslims to follow God’s will, because Muslims should act from conviction and choice. This argument of course was the key tenet in John Locke’s Letter on Toleration, and rests on the distinction between inner religious states and beliefs, on the one hand, and outer acts of compliance with the sovereign’s, or the state’s, demands, on the other. Why should the sovereign try to control his subjects’ beliefs when they are out of his control? It would be better, argued Locke, to focus on what matters: obedience and loyalty. Modern readers of Locke’s essay sometimes miss the caveats: religious belief of some sort is required for enforcing laws—for example, to ensure that a subject fears God sufficiently that he will tell the truth after taking an oath in court—and religion must not interfere with absolute obedience to the sovereign—for example, if one follows a Pope rather than a King. Locke’s Toleration is of inner conviction alone, and inner conviction of a Protestant sort.

An-Na`im makes a second argument that is parallel to the first: not only is it futile and religiously counter-productive to enforce Islamic piety, but doing so also distorts and impoverishes religion. Islam as a system of religious understanding depends on the possibility of open debate and legitimate disagreement, and always has contained variation and disagreement. Islam as a set of state laws flattens Islamic jurisprudence into a single code. The state selects one view among many, and then freezes it into a rule to be followed, rather than a set of judgments and interpretations to guide and inform future decisions. At that moment it becomes political will and not religious law.

Now, one might infer from these arguments that an-Na`im wishes for Islam to become a private and individualistic faith, and to be divorced from public life. Such is not his intent. Citizens are quite free to engage in what he called “civic reason” and democratic deliberation, and to decide that certain laws should indeed be inspired by the word of God, as long as those laws respect certain limits, in particular the constitutional foundation for laws and the equal rights of all citizens. Society may be deeply religious and, more crucially, so may the legal apparatus, but only as an outcome of democratic processes and not as the starting point imposed a priori on citizens.

An-Na’im combines a sophisticated normative argument, which includes historical evidence for his claims that these views can be seen as Islamic, and an examination of three countries that are secular in some sense and to some degree, but that have large, and in two cases majority, Muslim populations: India, Turkey, and Indonesia. In these country studies he explores, in a refreshingly open-ended way, the degree to which Muslims in each place accept something like his own version of secularism—not to be confused with locally dominant understandings of the word “secularism.”

“Secularism,” of course, has taken on many conflicting meanings, from the neutrality of the state vis-à-vis specific religions, to an avoidance of religious referents in political deliberation, to an avoidance of or hostility toward religion. To an-Na`im, “the secular state” refers to an ideal sequence of decisions, where the state begins outside of religion, on constitutional foundations that are not intrinsically dependent on religious norms, and the reasons citizens propose for subsequent laws do not invoke religion. In this respect, as he notes, an-Na`im restricts the sphere of legitimate public reasons more severely than did John Rawls, who allowed citizens to explain how religious (or other “comprehensive”) doctrine lies behind their advocacy of this or that legislation. In this respect, Rawls’ conception better describes the state of debate in the United States, for example, insofar as reasons for supporting a law may depend on a conception of human life, or stewardship of the environment, that itself is grounded in religion. But an-Na`im argues that for most societies with large Muslim populations, the better pathway to civic harmony and social peace would be to imagine the polity in non-religious terms.

An-Na`im’s analysis of the philosophical bases for his view and his fresh and well-informed observations on religion and pluralism in India, Turkey and Indonesia are intelligent and important. Let me pose two challenges to his view, however, in the spirit of opening debate. These challenges involve the two basic arguments I mentioned above, and turn on two polarities that subtend these arguments: for the first, the opposition of free choice to state compulsion, and for the second, a dichotomy between the long-standing processes of Islamic jurisprudence and the forms of modern, secular law.

First, free choice versus state compulsion. An-Na`im argues that a Muslim can only completely practice her or his religion in conditions of complete freedom, because the religious act-prayer, alms-giving, fasting-must follow from a sincere intention to serve and obey God. These states of mind cannot be compelled. The argument fits well a post-Lockean approach to religious freedom. But the domain of sharî`a can extend well beyond these individual acts. Muslims can, and often do, consider sharî`a to constitute a set of norms and values that appropriately shape the nature of social institutions, from banks and pious trusts to the operation of mosques and religious judges.

Many Muslims consider it to be the proper role of the state to provide and supervise some of these institutions. For example, in many countries with large Muslim populations, women’s groups and many others have fought to make divorce an act that must occur before a civil judge, who can dissolve a marriage on the request of the wife or the husband. In an-Na`im’s terms, this shift sometimes gives the state a greater role than before in “enforcing sharî`a.” But in the eyes of the groups who successfully lobbied for this change, it gave women greater protection from unilateral divorces and abandonment, and gave them a greater capacity to initiate a divorce proceeding. The state was essential to changing the effective nature of Islam in social life.

Secondly, Islamic jurisprudence versus state law. An-Na`im correctly points out that codification of law freezes it in some sense, eliminating some positions and privileging others. But he makes the further claim that once a state enforces what it says is an element of sharî`a, that element becomes “the political will of the state rather than the religious law of Muslims.” This claim might be true by definition, if we take law to be positive and thus represents the will of the state, and we take religious law to be divine in origin and historically derived through the methods of Islamic jurisprudence. For an-Na`im, religious law is to be found in the decisions of Islamic judges and the legal opinions of Islamic scholars, but only to the extent that these decisions and opinions do not become state law. For example, once the Indonesian state compiled a code of Islamic law to be applied by the courts, authority passed from revelation to the executive, and sharî`a was trivialized.

But was the authority only revelation before it became the monopoly of the executive? Traditional Islamic jurisprudence was not only an activity of scholars; it also was a way of developing a set of enforceable norms. Judges decided cases based on their sense of the matter at hand but also based on decisions taken elsewhere and on the legal opinions put forth by muftis. One might say: then was then and now is now, and all we have is the state. Well, prior to the 1992 Indonesian compilation of Islamic law, state judges decided cases based on various texts of jurisprudence, and their decisions were enforced by state courts. In the colonial and pre-colonial periods, where there were Islamic tribunals and judges, their decisions were backed by political power. The social life of Islamic norms, regarding, say, family matters, never was an unmediated translation of revelation through scholarship into free individual action, without compulsion, in a politics-free civil society. Authority is political, whether in the form of a modern state or a local prince standing behind the judge. Do rulings cease to be Islamic (or, more generally, religious), once they are enforced? To the extent that religious self-conceptions, from Augustine to Muhammad, include ideas of authority and restraint, the answer must be no.

The importance of an-Na`im’s book for me lies in its intelligence and humanity. An-Na`im’s commitment to pluralism, and to seeking ways to reduce the divisive effects of religious commitment, must be applauded. What we should continue to discuss is whether these commitments are incompatible with other conceptions of religion and state: whether, for example, reformulations of sharî`a around ideas of sharî`a’s objectives (the maqâsid ash-sharî`a) can produce similarly positive social outcomes. Many of an-Na`im’s interlocutors would urge him to consider this possibility alongside his own formulations, and I would join them in at least raising the question.

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