Mindful of these anxieties and pragmatic in its approach, the Muslim Brotherhood’s Freedom and Justice Party (FJP) has backed away from earlier calls for an “Islamic state.” Its 2011 election platform opts instead to promote the sharia as a “frame of reference. ” Working hard to assuage anxieties both at home and abroad, the Party explicitly calls for a “civil state” and repeatedly stresses the importance of equality of citizenship among Muslims and Christians:

Egyptians, Muslims and Christians, are integral parts of the fabric of the one homeland, with equal rights and duties, and without distinction or discrimination, and all together they must remove the injustice inflicted upon them.

Yet the FJP operationalizes this commitment to equal citizenship and religious freedom by declaring further that, “the basis of citizenship is full equality before the Constitution and the law and fully sharing all rights and duties, with the exemption of personal status matters where ‘each has his own rules’” (emphasis added). Elsewhere in the FJP platform, the party reiterates its position that “non-Muslims have the right to refer to their own rules and laws in the fields of family and religious affairs.”

As benign as this aspect of the FJP platform may sound, provisions guaranteeing “special rights” for different religious communities often carry illiberal implications when codified as state law. But the presumed alternative—banishing religious law through strict secularism—is also not an unqualified good. It imposes restrictions on “religious freedom” in another way, by disempowering citizens from entering into legal arrangements inspired by their own religious commitments. This paradox of religious freedom—the difficulty of reconciling the individual’s right from religion, while providing for the right to religious law is a paradox rooted in the modern state’s capacity and proclivity to codify and monopolize law. And, ironically, it is not modern state law but the Islamic legal tradition itself that may point the way out of this impasse.

It is important to note that the codification and implementation of religious law as state law is not only troubling from a “Western” liberal rights perspective, but also from the standpoint of the Islamic legal tradition. The core epistemology of Islamic jurisprudence dictates that Islamic legal doctrine is unavoidably pluralistic. Sharia is believed to be the perfect Law of God, but Muslim jurists have always insisted that it is impossible for fallible human beings to know that Law with certainty. Thus, the legal rules they extrapolated from scripture were treated as only “probable” articulations of sharia, all equally valid because there is no way to know for sure which jurist is correct (and no Muslim “church” to designate favorites). The legal doctrine they crafted is called “fiqh” (literally, “understanding”), and it eventually formed into schools of law that disagreed with each other, sometimes in significant ways. For Muslims, then, there is one Law of God, but there are many schools of fiqh articulating that Law on earth. That simple fact is what makes discussing sharia so challenging in the West, where it is assumed by many to be exact, uniform, and uncontestable by believers.

Fiqh pluralism allows Islamic law to be tangible enough for everyday use, but still flexible enough to accommodate evolution and personal choice. This pluralism is lost with state codification. Because sharia doesn’t exist as one code of law but rather as multiple fiqh schools, any state “legislation of sharia” is purely an exercise of state power, selecting one (humanly-created and fallible) fiqh rule out of several equally valid choices and enforcing it as state law, often in the guise of divine law. State codification of fiqh rules (and calling them “sharia”) undermines the dynamism of Islamic jurisprudence and the organic relationship with society that these jurisprudential traditions have had in the past. It freezes certain rules from a past time, anachronistically applying them in today’s different social, political, and technological contexts.

This is seen most clearly in the field of family law. A growing body of scholarship suggests that the codification of Islamic family law in Egypt and most other Muslim-majority countries was selective and partial. Far from advancing the status of women, the codification of Islamic family law actually narrowed the range of rights that women could claim in the diverse doctrines of multiple fiqh schools. Thus, the limited (and antiquated) laws of divorce that are applied today to Muslims in Egypt are dictated by contemporary politics, not by sharia.

All of this means that, from the perspective of both secularists and religious Muslims, collective rights for specific religious communities will stand in tension with the individual rights of citizenship as long as religious law remains wedded to state law. Moreover, this situation begs a perennial question of religious authority—that is, who has the right to define the rules of a religious community. In their current mold, the governments of most Muslim-majority countries essentially claim to be both authors and enforcers of sharia. The theocratic dangers of this arrangement should offend not only secularists who feel that state law should be separated from religion but also Muslims because it disrespects fiqh pluralism and allows the state to claim control over what used to be left to the autonomy of independent fiqh scholars. For both sides of the “religious-secular” divide, if “religious freedom” is to have any meaning, this paradox needs to be addressed.

One possible resolution is to examine the historical roots of the problem—to interrogate the codification and incorporation of Islamic family law as state law and to delink and reconfigure the relationship between religious law and the state. A first step would be to recognize that most political Islamist movements operate on an image of Islamic government that is a stark departure from the structure of nearly every pre-modern Muslim government, in which there was a separation of legal authority between fiqh scholars and government lawmakers. Rulers made and enforced laws ostensibly to serve public order (siyasa laws) but they did not make or codify fiqh law. Siyasa power was used to enforce judicial decisions of fiqh-based legal disputes, but fiqh did not need state enactment in order to be authoritative. And before “legal monism,” a term adapted by Sherman Jackson to denote the presumption that all law must emanate from a centralized state, siyasa enforcement of fiqh-based judicial decisions was generally done with respect for fiqh pluralism.

Today’s reigning assumption that a Muslim state may codify religious laws for an entire religious community undermines the legal pluralism that religious communities (Muslim and non-Muslim) used to enjoy in pre-modern systems. Before centralized nation-states, Muslim governments operated on a “to each his own” approach to religious law that included not just the many Muslim fiqh legal schools, but also the religious law of Christians, Jews, and others. It is this model of religious pluralism from the Islamic legal tradition that the Muslim Brotherhood ostensibly invokes in its 2011 election platform, but there is a key difference: individuals in pre-modern Muslim systems enjoyed official recognition of their preferred religious law without the state codifying it for them.

Contrary to the impression created by many contemporary Islamists’ focus on codification, “legislating sharia” is not what makes a country Islamic. Pre-modern Muslim rulers enjoyed sharia legitimacy for their lawmaking on the premise that they served the public good, not because they were selecting and enforcing a preferred interpretation of scripture. In fact, it was their early attempts to do the latter that led to the separation of fiqh and siyasa legal realms in the first place.

State codification of sharia also flies in the face of the core epistemology of Islamic jurisprudence: that no human can ever know God’s Law for sure. Codifying fiqh on the premise that “it is sharia” rejects the humility exhibited by centuries of fiqh scholars and implies that the state can declare what is the correct interpretation of divine law for their society. This is a radical and unprecedented move.

Unfortunately, many lay Muslims and Islamist political activists seem to unquestioningly assume a centralized state model, and this presumption bolsters the idea that an “Islamic” government should use the state apparatus to legislate and enforce its preferred interpretation of sharia upon the population. Few think of law in terms of the fiqh-siyasa bifurcation of legal authority that was built upon the hard-fought lessons of Muslim history. In fact, the average Muslim conception of sharia itself has largely mutated over the past century. Many are so unaware of fiqh pluralism that government assertions of “the” sharia rule are often blindly accepted as true, even when there are actually multiple fiqh opinions on the topic. Many Muslims even defend “sharia legislation” as if defending their very faith, fiercely opposing anyone challenging it as a perceived enemy of Islam.

All of this manifests in the familiar and seemingly endless war between secularists and Islamists discussed and analyzed by political commentators. Unfortunately, both inside and outside Muslim-majority countries, the focus is usually on whether one or the other side will win the latest battle. A better path is to explore creative alternatives to end the war.

—Elizabeth Shakman Hurd and Winnifred Fallers Sullivan, TIF guest editors

The right to religious liberty is widely regarded as a crowning achievement of secular-liberal democracies that guarantees the peaceful co-existence of religiously diverse populations. While all members of a polity are supposed to be protected by the right to religious liberty, religious minorities are understood to be its greatest beneficiaries in the protection it accords them to practice their beliefs freely without fear of state intervention or social discrimination. Conventional wisdom has it that religious liberty is a universally valid principle, enshrined in national constitutions and international charters and treaties, whose proper implementation continues to be thwarted by intransigent forces in society such as illiberal governments, religious fundamentalists, and traditional norms. Insomuch as the Middle East, and the Muslim world in general, are supposed to be afflicted with the ills of fundamentalism and illiberal governments, then the salvific promise of religious liberty looms large. In this brief post I would like to question this way of thinking through a consideration of the career of religious liberty in the modern Middle East (for a fuller development of the arguments here, see my forthcoming article, “Religious Freedom, the Minority Question, and Geopolitics in the Middle East,” in Comparative Studies in Society and History).

As I will show, far from being a universally valid, stable principle, the meaning and practice of religious liberty have shifted historically in the Middle East, often in response to geopolitical struggles, the expansion of modern state power, and local regimes of socio-religious inequality. Rather than treat the history of the Middle East as simply one of aberration from the norm of Western tolerance, in what follows I would like to consider how this history makes us rethink the normative claims enfolded in the current advocacy of the right to religious liberty and the universal good it is supposed to facilitate. In offering these reflections, my intent is neither to promote nor to reject the right to religious liberty but to force us to consider the contradictions and paradoxes that lie at the foundation of this much coveted right.

Let us consider briefly the historical trajectory of religious liberty in the late Ottoman Empire that offers an interesting contrast to its historical unfolding in Western Europe. The modern conception of religious liberty—with its attendant notion of individual conscience and belief as the proper locus of religion—was unknown in the Ottoman Empire until well into the mid-eighteenth century. As is well known, under the Ottoman millet system “the people of the book” (Christians and Jews) were granted limited collective autonomy over certain juridical affairs (including issues of marriage, family, and worship) but were otherwise treated as social and political unequals of Muslims. This juridical autonomy was one of the primary ways in which the Ottomans managed to rule over an immense diversity of religious faiths for over six centuries. Importantly, this “nonliberal model of pluralism” was different from the liberal model in that each religious community’s autonomy was justified not in terms of groups versus individual rights, but in terms of a political order in which difference was paramount. The Ottomans did not aim to politically transform difference into sameness as does the modern nation-state; instead various contiguous religious groups were integrated through a vertical system of hierarchy in which Muslims occupied the highest position. Importantly, the liberal individualist notion of civil and political equality that makes the modern conception of freedom of belief possible was not the paradigm in this pre-modern period.

Things of course started to slowly change with the birth of the modern state wherein the terms “majority” and “minority” came to serve as constitutional devices for resolving differences that the ideology of nationalism sought to eradicate, eliminate, or assimilate. The Ottoman Empire formally adopted the right to religious liberty in 1856 (under the famous Hatt-i Hümayun decree) largely under European pressure. This pressure was far from a benign attempt on the part of Europeans to promote religious tolerance in Ottoman lands: their own record toward “Christian dissidents” much less non-Christian minorities was hardly tolerant at the time. Notably, the European pressure was a product of long-standing geopolitical struggles between Christian European states and the Ottomans. Christian European rulers had made repeated attempts throughout the sixteenth century to assert their right to protect Christian minorities within Ottoman territories. As long as the Ottoman Empire was strong it was able to accommodate these pressures without compromising its sovereignty, but once Ottoman power started to decline it was unable to resist Western European incursions on behalf of Ottoman Christian groups. As early as the sixteenth century, Ottoman rulers had granted special privileges—known as “capitulations”—to Western European traders that ensured a considerable degree of self-government in matters of criminal and civil jurisdiction as well as freedom of religion and worship. Eventually, as Ottoman power declined, these privileges came to apply not only to Western traders but also to European missionaries and eventually indigenous Ottoman Christian communities (what were then called “Eastern Christians”). Notably, no parallel privileges existed for non-Christians residing in territories ruled by Christian empires at this time. Macolm Evans, in his magisterial history of the right to religious liberty, notes, “Within this framework, the role of Western European States as protectors of the religious freedom of their subjects within the Ottoman domains easily elided into a claim entitling them to champion the liberties, religious and otherwise, of all Christians in the Empire.”

When Ottoman rulers adopted the modern conception of the right to religious liberty in 1856, the fate of non-Muslim communities in the empire was only formally but not substantively transformed. As historians of the late Ottoman Empire point out, for the Ottoman rulers the right to religious liberty served as a dual means to fend off increasingly powerful Christian missionary movements on the one hand, and to shore up the Islamic character of the empire on the other. The empire had already lost large parts of its territory (one-third by 1878), and the Ottoman reformers were eager to bring Christians who had become protégés of foreign states (under the system of capitulations) back under the jurisdiction of the Ottoman state. For many Ottoman Christians, however, the right to religious liberty served as a means of claiming Western protection against systemic discrimination, in the process transforming their identity and self-understanding.

In contrast to the Ottoman rulers and Ottoman Christians, religious liberty meant something quite distinct to the European missionaries who had considerably expanded their activities in the Muslim world by the nineteenth century. For these missionaries, religious liberty was a crucial means for securing the right to proselytize freely among Muslims and Christians without constraint from existing laws and prohibitions against religious conversion. In Egypt, for example, Euro-American missionaries, who had failed to win converts among Muslims, concentrated their energies on Coptic Orthodox Christians whom they had long regarded with disdain and outright contempt as practitioners of a depraved form of Christianity. Importantly, American and European missionaries enjoyed the protection of British colonial authorities in Egypt, and the colonial period (1882–1918) was the apex of missionary activities in the region. The advantages accorded to Westerners under the Ottoman capitulations proved to be crucial for the missionaries in gaining access to Egyptian rural and urban populations. These missionaries made ubiquitous use of international diplomacy and colonial and foreign offices of Anglo-American governments in their cause, internationally advocating for the adoption of religious liberty in forums as diverse as the League of Nations, the Paris Peace Conference, the U.S. State Department, and the British Foreign Office. The recent passage of the International Religious Freedom Act by the U.S. Congress (1998) to promote the right of religious liberty (particularly Christians) in the Middle East must be placed within this long geopolitical history in which Western powers have often violated the principle of state sovereignty under the guise of promoting religious tolerance. No non-Western nation-state in modern history has been able to exert the same pressure to advocate the rights of religious, racial, or ethnic minorities living in the Western world.

Given the history I have tracked here, it is important to realize that the meaning of religious freedom has varied historically depending on the geopolitical position of the players in the Middle East. Furthermore, the career of the right of religious liberty has hardly been one of secular neutrality in the Middle East. Through much of its modern history, the right to religious liberty has served as a means to either promote campaigns of religious proselytization to win Christian converts, or to consolidate the majoritarian ethos of the emergent modern state. This history forces us to consider how religious liberty is not simply a juridical means of protecting the individual believer from state coercion. Rather, crucially, it is a technique of national and international governance whose proper exercise has always entailed realpolitik concerns.

One may ask at this point, how have the religious minorities of the Middle East been affected by these geopolitical struggles over religious liberty? The answer to this question of course varies depending on the history of each nation-state in the region. If we take the example of Coptic Orthodox Christians in Egypt, the largest Christian population in the Middle East, one would need to start with the history of the longstanding rivalry and struggle between Western and Oriental Orthodox Christianity (of which Coptic Christianity is a part). Throughout much of modern history, starting with the Roman Catholic Church, Western Christendom has continued to view Coptic Christianity as a primitive form of Christianity whose salvation could only come from the West. This view was further entrenched by the wave of Protestant missionaries, initially sent from Europe (Anglicans, Episcopalians, and Lutherans) and later the United States (Presbyterian Evangelicals), none of whom had success with Muslim converts and concentrated their energies on the Copts. In light of this rivalry, it is not surprising that Coptic Christians historically resisted European offers of patronage to “protect and represent” the Copts against Muslim rule. Thus, unlike, for example, the Maronite Christians of Lebanon who made strong alliances with French colonial powers, the Copts were at the forefront of the anti-colonial struggle against the British and were equal players in the shaping of the nationalist project in the 1940s and 1950s.

Despite this distinguished history of Coptic resistance and the enshrinement of the right to religious liberty in the Egyptian constitution, Coptic Christians have continued to suffer from various forms of formal and informal discrimination in postcolonial Egypt. In recent years, the discourse of religious liberty has become a dominant idiom in the Coptic struggle against social and state policies that marginalize Copts on the basis of their religious identity. In this struggle, however, religious liberty once again is not a stable signifier but means very different things to different groups.

At the heart of the contested meaning of religious liberty in Egypt is a political system that has enshrined the Coptic Orthodox Church as the sole representative of the Coptic community and created a church-state entente that makes it difficult for secular-lay Copts to change the terms of debate. As a result, the Coptic Church tends to deploy a communitarian understanding of religious liberty that serves to consolidate its authority over the religious and social life of its followers. This conception sits in tension with an individualist notion advocated by secular human rights activists grounded in Article 18 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR), both of which privilege notions of personal conscience, belief, and choice. The Euro-American Coptic diaspora, in alliance with an increasingly powerful Christian evangelical global network, champions a third concept grounded in Article 27 of the ICCPR that foregrounds a collective conception of religious freedom as a right of minority groups. Finally, the Egyptian government promotes its own narrow conception of religious liberty aimed at securing the Islamic character of the Egyptian nation and national-security interests.

It would be wrong to assume that religious liberty consists of simply protecting certain groups or individuals from the exercise of state power (that is, drawing the separation between church and state firmly and resolutely). The people who are supposed to benefit most from the modern principle of religious liberty—namely, religious minorities—are not merely protected from abuses of state power but are also transformed by virtue of their subjection to the calculus of state and geopolitical power in unique and unpredictable ways. The shift, for example, from a group-based understanding of religious liberty to an individualist one in international legal discourse is more than a conceptual shift; it also affects the substantive meaning and practice of religious liberty as well as the kinds of subjects who can speak in its name.

In concluding this post, let me point out that these contrastive deployments of religious liberty are often read as the cynical instrumentalization of an otherwise noble principle in the service of realpolitik or corrupt ends. Seen in this way, the principle itself—its logic, its aim, and its substantive meaning—remains unsullied by the impious intentions of the empires, actors, and states that sought to promote or subvert it. Such an argument needs to be complicated for several reasons. As I have shown, far from being a measure of a culture’s intolerance, religious freedom has been tied from its very inception to the exercise of sovereign power, regional and national security, and the inequality of geopolitical power relations in the Middle East. These differential meanings must be understood, I want to suggest, not simply as opportunistic deployments of a single noble principle but as reflective of the contradictions and paradoxes internal to the conceptual architecture of the right to religious liberty itself and its global history. Insomuch as the right to religious liberty is enabled by conditions of geopolitical inequality and differential sovereignty between the First and Third Worlds, it behooves us to rethink the global good its advocates often promise to all peoples of the world. Indeed, if the universal promotion of religious liberty has been ridden with colonial and neocolonial agendas, then how does one grapple with the legitimate and important question of providing protections to religious minorities across the Western and non-Western divide? What other procedural, legal, and social mechanisms do modern polities make possible that can be separated from the exercise of geopolitical domination, interests, and power? Is such a separation possible not just conceptually but practically given the intractability of politics from all human rights struggles of our times?