A critical problem that all religious reformers of whatever faith face is the relationship between their reformist thought and what for many is the authority of tradition, the need to demonstrate some kind of continuity between tradition and change. The conservative or traditionalist bent of many religious scholars, madrasas and Muslim populations make this requirement even more necessary. The importance of the framing narrative and its repertoire, which will engage the context of its intended audience, is critical to the success and effectiveness of social movements. Daniel Philpott perceptively identifies the Achilles heel of An-Na’im’s argument:

What is interesting about these arguments is that they ground the case for the secular state not in the Quran, not in claims about the presence of the imago Dei in the person or in some other source of the person’s intrinsic dignity, not in natural law, some closely similar type of practical reason, or universal moral precepts, but rather in what might be called “second order” observations about the phenomenology of belief, the character of government, the lessons of history, and the like. To be sure, good reasons for the secular state lie therein. But are these arguments sufficient to ground an Islamic case for constitutionalism, human rights, and the secular state? I doubt it.

When one looks at the context in which An-Na’im speaks, hurdles become clearer, as does the need for a more Islamically grounded argument.

Many Islamists , along with many other Muslims, have cast secularism as a completely foreign doctrine imposed on the Islamic world by colonial powers; they hold up traditional Islamic society, particularly during the first century or so of Islam, as a model of how the early community was guided by religious principles in all areas of life, including politics. The prominent judge and Arab historian Tariq al-Bishri, for example, seeks to contradict the idea that modernization and secularization must be linked by arguing that Muhammad ‘Ali’s regime in Egypt was not secular; it took aspects of military science and technology from Europe to aid an essentially Islamic political entity. Western ideas did not become pervasive, according to al-Bishri, until the early 20th century due to the spread of missionary schools and pro-Western secularist print media. The non-sectarian Islamic movement started to grow parallel to geographically-based secular nationalist movements until it became clear that there was a split in society between an inherited and revitalized Islam and a newly-arrived secularism. This initial split, according to Al-Bishri, has amounted to a fully-entrenched “war of ideas” between the two sides that has continued up to the present.

An-Na‘im offers his own interpretative framework in the debate about Islam and secularism, knowing full well the associations between “secularism” and foreign colonial domination in the Islamic world. Like al-Bishri and others, An-Na‘im looks for evidence from pre-modern and modern Islamic history to support his views, but to a very different end. He argues that his vision of a secular state, meaning one that is neutral regarding religious doctrine, is “more consistent with Islamic history than is the so-called Islamic state model proposed by some Muslims since the second quarter of the twentieth century.” The old notion that secularism is “neutral” regarding religion is itself a contested issue. Although An-Na‘im insists that he is not claiming that the “pre-colonial state was secular in the modern sense of the term,” he does suggest without convincing proof that “the states under which Muslims lived in the past were never religious, regardless of occasional claims to the contrary.” The realities of Islamic history as well as a good deal of contemporary scholarship on Islamic history (Fred Donner, Ira Lapidus and many other scholars) would counter the notion of “occasional claims” and thus require that a convincing argument substantiate this claim.

An-Na‘im asserts in his analysis of Islamic history that religious and political authority stem from different sources and require different skills and, therefore, to conflate the two leads to dangerous confusion. This conflation was only possible, according to An-Na‘im, during the time of the Prophet, “because no other human being can enjoy the Prophet’s combination of religious and political authority.” Since such harmony is no longer possible, religious and political leaders should instead pursue their autonomy so that each side will be strengthened and not subject to subordination or coercion by the other.

An-Na‘im claims, furthermore, that a reading of Islamic history that highlights a differentiation between religious and political authorities can be traced back as early as the caliphate of Abu Bakr, whose Wars of Apostasy, he says, were not religiously motivated, despite the fact that they were justified by the caliph in religious terms. What An-Na‘im considers “confusing the political authority of the caliph with his religious authority” continued into the Umayyad dynasty, which An-Na‘im characterizes as a “total and complete monarchy in every way” that, nevertheless, “still sought to maintain the fiction that the authority of their caliphs was an extension of the authority of the Prophet.” In spite of ‘Abbasid claims of religious legitimacy, the proliferation of sects during this period as well as the upheaval of the Mihna provided further challenges to the “myth of Islamic unity” as well as the impracticality of applying the Prophet’s model of leadership after his death.

While it is not surprising that An-Na‘im chooses to focus on the Mamluk and Fatimid eras in Islamic history, the Ayyubids rather than the Mamluks would be the more accurate example regarding dynasties in which the state bureaucracy had really come into its own and that therefore the dynamic between the religious scholars and the political authority had also reached a new level of complexity and contention. Religious institutions and scholars, for example, relied on state patronage for financial support while at the same time trying to maintain some level of independence and authority.

An-Na‘im argues that the Fatimid self-image as a Shi‘i imamate upholding the spiritual and political legacy of the Prophet was at odds with the “hypocrisy and corruption” of some state officials charged with both administrative and religious functions, such as the muhtasib who acted as both a tax collector and trade arbiter as well as an enforcer of public morality. Stemming the Shi‘i tide, the Mamluks came to power asserting their status as the defenders of Sunni Islam. As An-Na‘im points out: “Military campaigns against crusaders, the protection of Muslim lands, and the endowments of religious institutions were public symbols designed to emphasize the Mamluk service to Islam.” During this time, religious scholars (and judges in particular) felt pressure to legitimize and support state authority or risk imprisonment and punishment, the fate of Ibn Taymiyya, for instance.

An-Na‘im sees this tension as becoming potentially destructive when rulers start to abuse their power and the religious authority is not able to hold them accountable. Rather than arguing, like Tunisia’s Rachid al-Ghannouchi and others, that if Muslim rulers/leaders were truly pious such violence would be unnecessary, An-Na‘im advocates a secular state built on constitutionalism, human rights and citizenship – resources that he acknowledges “were totally lacking in all societies everywhere until the modern era.”

Perhaps the most controversial element of An-Na‘im’s interpretive framework is his understanding of the nature and role of Shari‘a in Islamic history, especially in the context of his proposed secular state solution. An-Na‘im suggests that the Shari‘a must be marginalized in order to save it. More precisely, he asserts that no state has the right to enforce religious law, even if it is the religion of a majority of its citizens: “By its nature and purpose, Shari‘a can only be freely observed by believers; its principles lose their religious authority and value when enforced by the state.” States do not enforce principles; they enforce laws. Like Fu‘ad Zakaria and contrary to much of the scholarship on the origins and development of Islamic law, An-Na‘im denies that Islamic law included both a divine, unchanging element (Shari‘a, principles and values rooted in sacred sources) and a human interpretation and application (fiqh). He writes: “both Shari‘a and fiqh are the products of human interpretation of the Qur’an and Sunna of the Prophet in a particular historical context. Whether a given proposition is said to be based on Shari‘a or fiqh, it is subject to the same risks of human error, ideological or political bias, or influence by its proponents’ economic interests and social concerns.” While the human dimension in both cannot be denied, there are significant differences between sacred texts and human interpretation, laws that are based on clear texts and those based on analogy, as well as differences in the degree and extent of human interpretation in Shari‘a and fiqh.

An-Na‘im’s claim that no human institution, such as the state, can implement or enforce religious law would seem to contradict the example already noted from pre-modern Islamic history, in which state-appointed judges carried out a parallel system of rulings at times in agreement with, and at times in opposition to, state authority. Each side, the political and the religious, relied on the other for moral legitimacy and support. The noted Islamic legal historian Wael Hallaq describes the delicate balance of authority: “Our sources reveal that the caliphs and their subordinates generally did comply with the law, if for no other reason than in order to maintain their political legitimacy. Yet, it appears reasonable to assume that their compliance stemmed from their acceptance of religious law as the supreme regulatory force of society and empire.” Or, put differently: “On balance, if there was any pre-modern legal and political culture that maintained the principle of the rule of law so well, it was the culture of Islam.”

Finally, An-Na’im’s reformism faces two practical hurdles: broad-based Muslim public opinion that favors Shari‘a as “a” source of law and the continued centrality and authority of the classical tradition of Islamic law.

Data from the largest, most comprehensive study of contemporary Muslims ever done, based on tens of thousands of hour-long, face-to-face interviews with residents of more than 35 Muslim nations and representing more than ninety percent of the world’s 1.3 billion Muslims, indicates that majorities of Muslims want Shari‘a as “a” source of law but not “the” source of law. The data reveals a desire for a new model of government—one that is democratic yet embraces religious principles and values. Majorities in most countries, with the exception of a handful of nations, want Shari’a as at least “a” source of legislation. Of course, in practice this sentiment can mean many things: requiring that no law be contrary to Shari‘a, drafting laws that incorporate or are not antithetical to Islamic principles and values. Interestingly, we don’t have to look far from home to find a significant number of people who want religion as a source of law. In the United States, a 2006 Gallup Poll indicates that a majority of Americans want the Bible as a source of legislation. Forty-six percent of Americans say that the Bible should be “a” source, and nine percent believe it should be the “only” source of legislation.

The second issue/reality that An-Na’im does not adequately address is the hold of tradition. The manner in which he bypasses or ignores the classical tradition fails to come to grips with the reality on the ground and risks reducing the influence and impact of his substantial efforts to the bookshelf rather than becoming a catalyst for change in Muslim societies. In Sunni Islam, the classical tradition, legitimated by the consensus (ijma) of the community (in fact by its religious scholars), has been normative. While historically the Sunna of the Prophet has controlled the understanding of the Quran, the consensus of religious scholars (ijma) has ruled over the Sunna. In other words, for traditionalists in Sunni Islam, the consensus (ijma) of the past is authoritative and overrules everything. Thus, for example, even if the Quran doesn’t advocate hijab or prohibit women from leading mixed gender prayer, and some or many hadiths are false, the interpretations and practices sanctioned by the ijma of the past, the classical Islamic tradition, prevail. Not to do so is to depart from tradition, to fail to establish a necessary link or continuity between the authoritative ijma of the past and modern change. This outlook is epitomized in an Azhar saying: “Consensus is the stable pillar on which the religion rests.” The Indonesian reformer Nurcholish Madjid has referred to this as the “sacralization” of tradition in Islam and called for a “de-sacralization” of tradition. However, he does not reject the importance of tradition, but of the notion of a fixed, static tradition, arguing that tradition and consensus or ijma are ongoing and cumulative.

An-Na’im is not alone in re-examining the relationship of religion to the state and arguing that a Muslim country can also be secular. However, some like Indonesia’s Nurcholish Madjid (as well as Mustafa Ceric, the Grand Mufti of Bosnia-Herzegovina or Oxford’s Tariq Ramadan) recognize more clearly the need to acknowledge the force of tradition even as they proceed to engage in wide ranging reformist thinking. Although emphasizing the value/merit of classical Islam and its legacy, they do not regard it as an absolute reference point or religious authority but only a tool for solving modern problems. Madjid has spoken of the danger of the “sacralization” of tradition. While neo-traditionalist reformers, muftis with international followings like Ali Gomaa, the Mufti of Egypt and Qatar’s Yusuf Qaradawi, acknowledge the authority of the classical tradition but have methodologies to legitimate substantive reforms, modern reformers more freely bypass the classical tradition and go back to the Quran as the primary basis for fresh understandings and interpretations.

Although An-Na‘im’s interpretation of pre-modern Islamic history and law are problematic at times, the great strength of the book is the author’s analysis of political realities in the modern, post-colonial state and his projections and recommendations for a future secular state founded on principles of constitutionalism, human rights, and civic reason. Here, An-Na‘im’s choice of India, Turkey and Indonesia as examples of how secularism is contextualized in different societies is instructive. He eschews a single solution for all cases, a single formulation of secularism for all contexts, but wisely and realistically affirms the fact “that each society’s conception and experience of secularism has to be contested and deeply contextual.” An-Na’im’s methodology, and thus a more Islamically grounded methodology that would also enhance the Islamic legitimacy of his argument, would have benefited from the approach of Abdulaziz Sachedina’s The Islamic Roots of Democratic Pluralism. Sachedina does what An-Na‘im does not; he examines the traditional sources (Qur’an, hadith, tafsir) in order to build up a case for democratic pluralism from an Islamic frame of reference.

Although An-Na‘im’s views on secularism and the role of Shari‘a in society are far from the mainstream amongst Muslim scholars, he does, as intended, provide a major new interpretative framework that has created a vital forum for future discussion and once again demonstrates the courage to put in writing what others might only think. His “interpretive framework” will be both a source for heated debate as well as a foundation for others to build on and flesh out.

Robert Hefner and John Bowen are correct in emphasizing that I am advocating a religiously neutral state in order to facilitate a vigorous engagement of Islam in the public life of Muslims and their communities, and not for the purpose of rendering Shari^‘a into a system of purely personal ethics. Since I claim to make an Islamic argument for the theory I am advocating, that theory must be consistent with what Shari^‘a prescribes on the subject. Hefner is also right that I approach this subject from the perspective of what I call an “interpretative framework,” simply because every representation of what Shari^‘a says on any issue is necessarily determined by the situational contingency of someone’s interpretation of Islamic sources. This is as true about an interpretation that I am personally inclined to accept as it is of those interpretations I oppose or reject.

Since this is my position, I am unable to assert in good faith the sort of “substantive grounding” Daniel Philpott is calling for. He finds that my arguments “ground the secular state not in the Quran, not in claims about the presence of the imago Dei in the person or in some other source of the person’s intrinsic dignity, not in natural law, some closely similar type of practical reason, or universal moral precepts, but rather in what might be called ‘second order’ observations about the phenomenology of belief, the character of government, the lessons of history, and the like.” Philpott encourages me to follow the example of Michael Perry who argues that “human rights are ‘ineliminably religious,’ meaning that only the sort of transcendent foundation that religions provide can support the universal claims that a defense of human rights requires.”

The reason I don’t make that sort of argument is that it requires or presupposes a shared “interpretative framework” that cannot be assumed even among Muslims regarding the Qur’an, let alone more broadly among all the people I need to persuade to share my commitment to a secular state. Consider the counter view of Jenny White, who disagrees with my call for an Islamic justification of constitutionalism, human rights and citizenship and asserts that “citizenship and human rights discourses on their own have enough moral caliber and emotional appeal to guarantee their legitimacy as frames for people’s civic lives.”

Instead of such mutually exclusive claims and counter-claims of competing “substantive grounds,” I am calling for multiple foundations on the basis of an overlapping consensus that must be constructed and cultivated over time through internal dialogue within cultures and cross-cultural dialogue among them. I would rather have more inclusive consensus on the secular state, constitutionalism, human rights and citizenship, on whatever foundations people choose to hold, than share a commitment only with those who accept my interpretative framework, to the exclusion of all others. The relevant question I am concerned with in Islam and the Secular State is how to create and sustain the most conducive environment for that overlapping consensus to evolve and be sustained among people of different cultural, religious and ideological orientations.

The sort of substantive grounding Philpott is calling for can and should be attempted, but only on the basis of a prior argument for a shared “interpretative framework.” I have tried to do that in Toward an Islamic Reformation, and remain committed to that endeavor on its own terms. But regarding the different project of a secular state and its institutions, I need to make a more inclusive argument that does not presuppose a prior commitment to a particular interpretative framework. At this level, the case for a secular state resonates with the notion of civic reason. It is true that the legitimacy of the secular state can also benefit from “substantive grounding” among co-adherents of the necessary interpretative framework, but I need the secular state and its safeguards to be established in order to have the freedom and facility to make that “internal” sort of argument.

In his comment on Philpott’s summary of my arguments for a secular state, Christopher Eberle wonders: “how central is An-Na`im’s commitment to public reason (or secularism if he cashes secularism out in terms of public reason)? …. It seems that it might be an unnecessary add-on: he provides four reasons to affirm liberalism (understood as a political system that effectively protects certain basic human rights), but he doesn’t need to associate liberalism with either secularism or public reason.”

I don’t mean to offend theorists in this field, but I wish I could communicate what I mean without ever using terms like secularism and liberalism because they tend to distract rather than facilitate understanding. As I briefly explained in Islam and the Secular State, I hesitated in using the term secularism because of its negative associations among Muslims in particular. Robert Crane holds that my “major failing is my use of the term ‘secular’ in the sense of neutrality toward ‘religion.’ In American parlance … secularism means hostility toward all religion.” I disagree and expect many of the readers of this blog to disagree with Crane’s view, but my point here is the distraction caused by arguing about the meaning of this term, regardless of what I or others think it means.

Since the use of this term is usually the only point of contention whenever I present my proposal to Muslims, I often suggest: “let us call it X, and focus on what I mean.” The same is true about liberalism, though it is not as notorious among Muslims as secularism. What I mean is that a secular state is necessary for safeguarding my ability to be a Muslim on my own terms, protecting my human rights, and exercising my citizenship, rather than advocating secularism as such as a theoretical ideal or philosophical project. I do not subscribe to secularism as a personal philosophy or socio-political order, but fully respect and will do my best to protect the right of others to hold and live by such views because that is the moral justification and political basis of my own demand regarding my choice to be religious.

Similarly, I see civic reason (not public reason) as the means for mediating the paradox of the separation of Islam and the state, on the one hand, and the connectedness of Islam and politics, on the other. I don’t have an independent commitment to civic reason other than as a necessary means to that end, and would not mind using another term to make the point. I mention “public reason” and refer to Rawls and Habermas only to distinguish what I mean from their views on the subject, and not to endorse their arguments or align myself with such proposals in western political philosophy. I am therefore concerned that Philpott apparently drew the opposite conclusion from what I said.

On the political side, I agree with Hefner’s reading of my position with respect to the paradoxes of current Muslim politics he identifies, and wish to add the following point. In my view, assertions of “neo-conservative accommodation of ulama and state” by some Muslims are incoherent in the modern context of the drastic demographic and sociological transformations of the post-colonial Muslim world. Traditional patterns of interpersonal relations that formed the basis of the religious authority of the ulama in the past are simply untenable in the increasingly urbanized social environment in which Muslims live today. This is perhaps part of what Jon Anderson means by citing Dale Eickelman on the consequences of mass education, and the application of alternative intellectual techniques for interpreting Islam.

These realities weaken the legitimate basis of the idealized relationship between the ulama and their followers, though some may succeed in conjuring that illusion through elaborate “public relations” schemes. Recent drastic demographic and sociological transformations also diminish the accountability of the ulama to their followers. At the same time, these realities render those who may qualify as ulama in the traditional sense more vulnerable to intimidating coercion and corrupting inducement by the massive powers and resources of the modern state. The mutual accommodation of ulama and state is an unholy alliance that is counterproductive to its alleged benefits.

The second paradox of Muslim politics identified by Hefner relates to calls for the “positive role of the state in promoting Islamic learning and piety” through such activities as religious education in public schools, calls to prayer on radio and television and state-coordinated alms collection. Bowen also raises the challenge that Shari^‘a “constitute a set of norms and values that appropriately shape the nature of social institutions, from banks to pious trusts to the operation of mosques and religious judges” and many Muslims consider it proper for the state to provide and supervise some of these institutions.

Bowen also wonders whether reformulations of Shari^‘a around ideas of its objectives (maqasid)—presumably as opposed to the literal letter of classical jurisprudence (fiqh)—might produce social outcomes that are similar to what I am seeking through the secular state model. Mohammed Bamyeh notes that Shari^‘a was meant more as a guide to everyday pious life rather than as a set of rules to be deposited unto a uniform state law, and calls for maintaining the old flexibility of Shari^‘a by highlighting its intentions (objectives- maqasid) rather than its formal rules.

It seems to me that such paradoxes and challenges of Muslim politics are matters of mediation and contestation within the realm of what I call “negotiating the future of Shari’a.” As I mentioned above, the model presented in Islam and the Secular State is simply a framework for mediating the paradox of the separation of Islam and the state, on the one hand, and the connectedness of Islam and politics, on the other. The best this model can do is to secure the space for and facilitate theological debates and political contestations that must continue indefinitely. As can be observed in any country, whether we characterize its state as secular—or “call it X”—or not, the relationship between religion and the state is a constant negotiation. The same is true about countries where Muslims constitute the majority of the population, regardless of claims of ruling elites that their state is Islamic. The state cannot be religious, though some are more “secular” than others in the sense I mean. The question for me is how to improve the terms and conditions under which such negotiations can continue and evolve. This is the realm of the struggle that Jenny White is calling for.

I find support for this model of constant negotiation in Mohammed Bamyeh’s view that no religion can survive if approached strictly or primarily as a set of “laws” that are external to the human interpreter, and that it is the believers who make sense of their religion. While Muslims know this, he reasons, they tend to tie the need for Shari^‘a-based life to its application to state policies because of the failure of the post-colonial secular state to demonstrate effective sovereignty, deliver public goods, and so forth. In his view, the problem has less to do with arguments about how we should understand Islam, and more with the nature of social and political developments befuddling Muslim societies. The question to Bamyeh is not which Islam is “pure,” because, sociologically speaking, Islam is what Muslims make of it, how they assert the status of Islam as a living and rich repertoire of ideas, which can include the secular state if it proves its virtues.

Bamyeh’s view of Islam as a living, interactive human enterprise is helpful for me in accepting the point made by Joel Migdal about “the effect of colonialism on Islam itself.” The point is well-taken in terms of the effect of colonialism on Muslims’ understanding and practice of Islam and its relationship to social and political institutions, or its legal implications. But I am unable to see how this point can be true of “Islam itself” simply because it is not coherent to speak of Islam as an “entity” that can change as such. In terms of my analysis, the three dissertations Migdal highlights are about the deeply historical and contextual nature of the secular state and its relationship to religion, which is as true of European and North American states as it is true of post-colonial countries in Africa, Asia and Latin America.

Consequently, it seems to me, the question is always about particular conceptions and experiences with religion and the secular state. If what Migdal calls the “politics of deliverance” is experienced by China and Russia, who are also “geared toward redemption, toward gaining their rightful place in the world,” it is not peculiar to Muslims in post-colonial states. This is not to say that Islam is irrelevant to whether or not “Muslims are ready for” what I am proposing, but only to emphasize that the question has to be framed for each people and their state, on their own terms, and not indiscriminately for all Muslims. This framing should be different for Senegalese in contrast to Egyptian society, as each is “Islamic” on its own terms, and to each state, which is secular in its own deeply historical and contextual way.