The rallying cry of demonstrators, “irhal” (“leave”) is the best expression of what made the revolts so specific. Tunisians did not take to the street for the recognition of an essence (We are all “Islamists” or “proletarian” or “anti-French”). The ideal that emerged from the “irhal” movements is of the “whatever” individual, in Giorgio Agamben’s terms. “Whatever” here does not mean indifferent or deprived of substantial value, but rather of “being such that it always matters.” An insistence on equality, an irreverence towards any form of authority (sultat), and a suspicion of all types of privileges suggest that what Tunisians are now calling for is a “solidarity that in no way concerns an essence.” Claiming to speak in the name of Islam, laïcité, democracy, human rights, or the caliphate does not grant you privilege any more in Tunisian public debates. It does not give you support from the public. It simply gives you a right to argue “whatever.” No politician, activist, or intellectual is immune from the risk of being silenced by a sneering, angry, or weary “irhal.”

In this context, a major challenge for Islamists is to articulate a political and cultural project that is both consistent with their own principles and in tune with this polyphonic and somewhat opaque “coming community.” Tunisian and foreign secular organizations insistently call out Islamists on the issue of religious freedom, with the hope of exposing their duplicity or unveiling their double-speak. But religious freedom has actually a very limited part in Islamists’ current conversation, not because it is perceived as a divisive issue, but because it is viewed as unproblematic and irrelevant. A central concern within Islamist circles today is not of whether a sharia state must be established, but whether Nahda should primarily be a cultural movement (haraka) of reform or a government party (hizb).

When asked about religious freedom, most Nahda leaders give one of the following three explanations of why it needs to be protected. First, a theological rationale: there is no compulsion in Islam. Second, a historical-nationalist rationale: Tunisian culture is built on a very ancient history of cultural diversity that encompasses elements of Phoenician civilization, the Roman Empire, African traditions, Judaism, Christianity, and others. Finally, a political rationale: Islamists have experienced repression and torture under the regimes of Habib Bourguiba and Zine El Abidine Ben Ali. They know the importance of respecting freedom of expression and do not intend to submit any other group to the same type of arbitrary repression.

Nahda leaders do not argue over whether Tunisia should respect religious freedom or turn into a sharia state. While some of them, such as the philosopher Abu Yaareb Marzouki, argue that the maqasid al-sharia (objectives of sharia) could have been included in the preamble of the constitution, simply as a cultural reference, most Nahda members pay limited attention to this type of discussion. At the core of the movement’s project is cultural authenticity, not religious conformity. Philosopher Ajmi Lourimi, a member of the Bureau Executif of Nahda and a Levinas scholar, describes the current crisis in Tunisia as an “epistemological problem.” The main challenge for Tunisians—and people from the Maghreb, more generally—is to deal with the “inferiority complex” caused by colonization. “We need to work so that all citizens gain a sufficient level of culture and collective awareness, to make sure that there will be no going back,” he explained at a recent meeting organized in Tunis by the ReligioWest program.

Tunisian Islamists’ insistence on the imperative of cultural authenticity represents a moral narrative of modernity that is analogous to the Western narrative of modernity analyzed by Webb Keane, in which the category of sincere belief plays the central role. Just as Dutch missionaries defined interiority and sincerity as the core standard and site of modernity and true religiosity, Nahdawis insist on the re-appropriation of cultural authenticity as the defining standard of modernization and development. A return to what is imagined as authentic Tunisian tradition is presented as the condition of modernization. Collective consciousness and cultural reformation are here the active agents of progress, rather than individual conscience. But the idea of cultural authenticity serves also to mark a separation between what is deemed archaic (postcolonial laïcité but also alien forms of religiosity expressed within the Muslim world such as the Saudi or even Egyptian ones), and what is modern (unity, reconciliation, synthesis).

Tunisian Islamists have always had very little to say about religion. If they see religious freedom essentially as a non-issue, it is partly because they do not see religion as a problematic intellectual category, but simply as an obvious part of reality (waqa’) and life (hayat). Islamist intellectuals’ view on religion and politics is primarily informed by the writings of Rashid Ghannouchi, who has long considered that the key line of confrontation in Tunisia is not between religion and politics, but between society and the state. The crucial challenge is the protection of society from the state, not the protection of individuals from groups, or of true belief from heterodox practice. Tunisian Islamists hold an optimist view of society as a self-regulating and virtuous collective organization. Granted enough freedom, education, and economic opportunity, society will invent self-regulatory mechanisms that will lead to the development of piety and virtue, and allow non-Muslims to live according to their own beliefs. Now that Islamists have won 40 percent of the seats at the assembly and hold a prominent position within the transition government, their discourse has remained consistent with these previous preoccupations. The key questions for them are how to elaborate safe institutional mechanisms that will prevent the return of corruption (fasad) and despotism (istibdad), and how to establish social justice. In fact, Islamists are, in some sense, more secular than secularist groups. They advocate a high wall of separation between religion and the state, while secularist organizations and parties demand a close monitoring of mosques and religious institutions by the state.

The project discussed and promoted by Tunisian Nahdawi leaders today can be described as a historicist, hermeneutical project of cultural reformation. It is based on a teleological view of the direction of Tunisian history and the place of Islam in this history. After the ruptures of the colonial moment, and of the authoritarian regimes of Bourguiba and Ben Ali, now is the time when Tunisians can regain consciousness of their history and re-appropriate their past to better progress towards modernity. “The priority,” Lourimi insists, “is not Islamization of society, but modernization.” Key intellectual figures and leaders of Nahda such as Ajmi Lourimi, Abu Ya’areb Marzouki, and Ghannouchi, describe the current context as a moment of dialectical synthesis that comes after a long period of estrangement and division. Their call for unity, reconciliation, consensus—of national healing—is not strategic double-speak; it draws upon a deeply rooted Islamist sense of history in the postcolonial Maghreb. Mehdi Mabrouk, the current Minister of Culture, a sociologist, ex-member of the secular party PDP (Parti Démocrate Progressiste), and now close to Nahda (but not an official member) insists on Malekite heritage, Tunisian patrimony, and genealogy. During the Tunis ReligioWest meeting, Mabrouk stressed the need for unity and synthesis: “We need to find our Immanuel Kant, someone who will reconcile skepticals and dogmatics. We cannot stay in a state of division.” Over the past months, Mabrouk repeatedly dismissed allegations that the Islamist led government plans to engage in a plan of “Islamization of culture.” He condemned those who resort to accusations of takfir to silence artists and artistic production.

Mabrouk did trigger heated debates within the Tunisian and Arab artistic scene when he argued against the inclusion of a couple of sexy Lebanese female artists in the programming of the next festival of Carthage, a national cultural festival that takes place every summer. But, interestingly, he did not justify this decision with reference to Islam, but to good taste and high culture. This is not the “dictature of the proletariat anymore,” he explained half-jokingly; there needs to be a “diktat of good taste.” This combination of nationalism, social conservatism, and elitism resonates with most intellectuals and leaders of Nahda, who reject both miniskirts and salafi outfits as expressions of alienation, romantically longing for the return of the Tunisian traditional jebba (robe). However adamant or undiplomatic the Minister’s statement may seem, it is much closer to, say, the position of the French Ministry of Culture on American movies and pop music, than it is to a theocratic form of cultural repression. Ultimately, among the public, statements of this type are welcomed as subjects of satire and derision, rather than as real sources of concern. When Mabrouk further explained what he meant by the “diktat of good taste,” citing Jauss and Adorno, the young journalist who was interviewing him gently made fun of him, and reminded him of the success of El General, the most famous Tunisian rapper. Here generational divides are as important—if not more so—as the so-called division between Islam and secularism.

For Tunisian Islamists, obstacles to a collective reappropriation of national identity do not come mainly from the West or the North, but from Saudi Arabia, the Gulf, or even Egypt and Turkey. While most Nahdawi leaders refrain from engaging in overt critique of salafi groups or of the Islamist politics of neighboring countries, they strongly emphasize the originality and wealth of Tunisian cultural heritage, citing Tunisian Islamist reformers from the early twentieth century such as Tahar Haddad and Mohamed Fadel Ben Achour. In addition to this nationalist emphasis on Tunisia’s own historical resources, Nahdawi intellectuals and leaders call for a comprehensive hermeneutical reformation. This, they argue, is more than a mere issue of random ijtihad: Islamists, in collaboration with their supporters, need to develop a new methodology to reinterpret the past and see the present. “We need more than splinters of ijtihad, more than tinkering with the texts, we need a unified methodology,” argues Sami Braham, an intellectual “compagnon de route”—but not an actual member of Nahda. While most of them more or less openly admit that an integralist view of how Islam can inform political and current events is now passé, they also recognize the need for elaborating an Islamic ethics, not simply as the negation of alternative worldviews, but in positive terms.

The way Nahda leaders and intellectuals define Islam today, as the source of an ethical and cultural project of collective introspection and reformation, echoes the way in which Italian philosopher Benedetto Croce talked about the Christian identity of Europe in 1942. In his essay “Why we cannot help calling ourselves ‘Christian,’” Croce did not argue that “we” are Christians, or that “we” must call ourselves Christians. The phrasing of his title was an acknowledgement that Christianity as an unquestioned set of norms and institutions was dead. But the pamphlet was also an attempt to demonstrate why Christianity could still have something to say to, and about, Europe. Christianity here was not opposed to secularism, atheism, or Islam, but to the fascist and imperial politics of 1942 Europe and to the complicity of the Christian institutional church with this politics. Croce’s “Why we cannot not” is not a demand, but a proposition—almost a plea. It combined hope for a better future with nostalgia for a time when people were “all the more intensely Christian than they [were] free.”

A similar combination of nostalgia and hope can be found in the discourse of contemporary Islamist thinkers and politicians. Longing for a golden age of Tunisian history and culture sustains a hope for emancipation from an era defined by postcolonial politics, authoritarian secularism, and state Islam. No matter how fierce Nahda’s opponents are, there is wide support for Nahda’s message and project, one that can be summarized in the same terms as Croce’s statement: “We cannot not call ourselves ‘Muslims.’” Such a performative statement stems from a realization of the inadequacy of the ideology of shumuliyya (integralism) to Tunisian society, but also from the conviction that Islam still has something to say about that society. The reference to Islam and the Muslim appellation are indeed polysemous, and may appear as empty signifiers to many. But this is precisely what defines Nahda’s project; the reference to Islam is conceived as constraining, performative, and self-reflective, rather than as imposed by some external force or institution. Only through this reference to Islam, Nahdawi argue, will Tunisians be able to re-appropriate a sense of their own history. Ultimately, what matters is retrieving control of their history, more than adopting Islamically-correct ways of being and governing. “Our existence depends on God,” writes Gianni Vattimo, “because here and now we can’t speak our language nor live our historicity without answering to the message that the bible has transmitted to us.” Ajmi Lourimi, an admirer of Vattimo, says something similar when he insists on the need for Tunisians to regain a consciousness of their history. The reference to God and Islam matters primarily as the enabler of “our” existence, “here and now.”

Why We Cannot Help Calling Ourselves Christian.”

The book is avowedly didactic, aiming to persuade Muslims in public debate that constitutional rule of law, human rights and democratic citizenship in a secular state represent the only form of political regime consistent with Islam in the modern world. Despite lengthy and repetitious exposition of the notions of democratic constitutionalism, “civic reason,” citizenship and human rights, An-Na`im fails in his explicit purpose of justifying and legitimizing them in Islamic terms, which appear somewhat incidentally and do not carry the primary charge of justification. In this regard, his preaching can only have an effect on those already converted. An-Na`im does, however, have two compelling arguments for his position in terms of Islam, one substantive and the second historical. The substantive argument is that only with such a state can Muslims autonomously and without compulsion follow the law of God as interpreted by themselves. The historical argument is that his “proposal for a secular state is more consistent with Islamic history than is the so-called Islamic state model.” The problem is that few Muslims requiring specifically Islamic legitimization and justification will accept his premises regarding “the inherent nature of Shari`a” and find his substantive argument convincing. An-Na`im’s appeal to history is not intrinsically Islamic either; nor is it easy to sell rhetorically. But it is his more original and stronger argument. Furthermore, as we shall see, the historical argument is even much stronger than he is able to present.

Muslims, An-Na`im argues, need a secular state that is “neutral regarding all religious doctrines” but allows legislation and public policy to “reflect the beliefs and values of citizens, including religious values.” This requires dispelling “the illusion that the Islamic state is supposed to enforce Shari`a,” and “keeping a clear distinction between Islam and the state while regulating the connectedness of Islam and politics;” or again, it requires “the institutional separation of Islam and the state” and “the religious neutrality of the state.” This amounts to a more clear and careful definition than has been provided by the Iranian reformists such as Abdol-Karim Soroush and the former President, Mohammad Khatami, for what they have called “religious democracy.”

Clarity ceases, however, with his call for “regulating the connectedness of Islam and politics.” Returning to the notion of “regulating the political role of Islam,” An-Na`im ends with a reaffirmation that the separation of Islam and the state should be “accompanied by the nurture and regulation of the organic relationship between Islam and politics,” and calls for “an enabling discourse for promoting the role of Islam in public life.” Having convincingly argued against the French and Turkish variants of secularism as exclusions of religion from politics and the public sphere (incidentally, by appealing not to Islam but to democracy and human rights), it is not clear why any regulation of any kind beyond the generic rules of constitutional democracy, civic reason and human rights should be needed. What is the meaning of “regulation” other than the obvious non-exclusion? Does the call for “promoting the role of Islam in public life” point to a hidden agenda lurking behind the innocuous thesis that constitutionalism and human rights need to be justified in terms of Islam rather than Western liberalism to be understood by Muslims? I will come back to this at the end.

The most original aspect of the book is An-Na`im’s historical analysis of law and the state in medieval Islam and the Ottoman empire, as well as the contemporary patterns of the secular state in Turkey and in post-colonial India and Indonesia. Being a lawyer and not a historian, An-Na`im concedes far too much to the proponents of ideology of the Islamic state, whose alleged function is the execution of the Shari`a. He can show that such a state never existed. In fact, the evidence for separation of religion and the state in Islamic history is much stronger. An-Na`im certainly exaggerates the importance of the Shari`a relative to state law (qānun) and customary law in the administration of justice in medieval Egypt and the Ottoman empire, not to mention the Mughal empire and Indonesia. And the myth of the Islamic state he rejects still has enough hold over him to induce a serious, anachronistic misreading of the communal politics of Indian independence in which the Shari`a played no role, either positively or negatively. Nevertheless, the evidence he presents proves his historical argument for the differentiation between the state and religious law and authority more than adequately. This discussion of the separation of religion and the state in Islamic history, and the analysis of the strengths and limitations of the three very different contemporary secular states built on it, constitute the major achievement of this book.

In An-Na`im’s account of imperialism in India, which generalized to the other two cases of empires without substantiation, “colonial reason” is credited with the invention of legal codification. There is no denying the oddity of what developed as the “Anglo-Muhammadan law” under the British Raj, but the colonial motive for codification, beyond the requirements of efficiency in the administration of justice, is not entirely clear. The same claim that codification was the product of colonial reason is not explicitly made in the case of the Dutch empire in Indonesia. Legal codification in the non-colonial Ottoman empire is also seen by An-Na`im as an imperial imposition of a piece with the so called “capitulations”—extraterritorial imperialist rights to consular jurisdiction over their subjects and the compradors declared under their protection. (An-Na`im may be forgiven for passing over the fact that human rights, so dear to him, were introduced side by side with the capitulations and were more strongly pushed by the imperialists in favor of the religious minorities under their protection than codification, in which they had only a tangential interest.) He also conveniently ignores the arguments that legal reform in general and codification in particular may in fact have been a means of resistance to imperialism in Egypt, and the patent fact that codification was part of the autonomous Ottoman will to defensive modernization to withstand the imperialist pressure. An-Na`im shares this dim view of the nineteenth- and early twentieth-century movement for codification of the law, whose proponents saw it as an effort to adopt modern civilization, with Noah Feldman, whose view I have criticized earlier in The Immanent Frame. The vilification of Muslim modern codes stems from the replacement of “democracy” for the “modernization” of the earlier generations of Muslim reformers in An-Na`im’s teleology. This shift exacts a heavy cost in terms of understanding the legal history of the last two centuries. The complex issues of procedural rationalization, separation of law and ethics, reform of the appellate system and systematic use of written documents, and the dilemma of majoritarianism versus judicial activism in protection of human rights—the nitty-gritty of the role of law in a modern constitutional order—are entirely set aside by this hard-nosed lawyer for the glib talk of democracy and civic reason. Here, I must be forgiven for being old-fashioned and thoroughly skeptical.

An-Na`im’s head is in the right place when he insists on Islam’s compatibility with the secular state, but at the very end, when he calls for “restoring the liberation role of the Shari`a,” the former loses its control over the latter, revealing a starry-eyed utopia. An-Na`im had briefly alluded to his commitment to Islamic reform as advocated by his Sudanese master, Ustadh Mahmoud Mohamed Taha, stating that “it also requires the reformulation of usul a-fiqh [principles of jurisprudence].” But why should we expect the new ijtihād and reformulation of the principles of jurisprudence to produce results this time that are different from the Wahhabi ijtihād from the eighteenth century to the present, Salafi ijtihād of the early twentieth century, or the current one of the Islamists? The implicit answer seems to be that Islamic reform would now take place within the framework of constitutional democracy and be subject to human rights. But I see little evidence for An-Na`im’s presumption that the form of Islam to be promoted by his project would legitimize the constitutional democracy and human rights to which it should be subject! In fact, his own evidence of the democratic enforcement of the penal code of the Shari`a in Aceh proves the contrary. He takes cold comfort in “lack of agreement between Achenese leaders about what the application of Shari`a means.” (This is An-Na`im’s variant of the hackneyed assertions one hears often, such as “not everyone agrees what the Shari`a is,” or, “there are different schools of Islamic jurisprudence.”) He thus misses the chance to discuss such judicial devices to protect human rights against democratic majoritarianism as constitutional courts. (Indonesia has an inactive one, but the activist constitutional court of Egypt is not discussed either.

An-Na`im wants to beat the Islamists at their own game by appropriating their rhetorical tools, but this is a very risky strategy. He has made an impressive effort to involve Muslims throughout the world through his website, and used an Indonesian Muslim institute to organize discussion groups. But the Iranian reformists lost badly in their attempt to appropriate the rhetoric of the hardliners despite the fact that they created and controlled, for a few years, the most vigorous press in the Muslim Middle East. The chances of the An-Na`ims and the Feldmans firing single shots from the hip at the same remote target from the far west are much smaller. Attempts at the rhetorical appropriation of Islamism by “restoring the liberation role of the Shari`a” (An-Na`im), or the historical romance of the Shari`a as constitutionalism and modern rule of law (Feldman) are bound to fail. Like all religious law, the Shari`a has a restrictive, and never a liberating role, and the Muslims who wish to free themselves from its rigid restrictions historically did so through the liberating flexibility of man-made, secular law (qānun). For Muslims there certainly is a higher realm of freedom corresponding to the religio-mystical sense of the divine path. Yet if history is a guide, the Sufis through the centuries had good reasons for differentiating that realm from the law and for considering Shari`a the inevitably rigid husk to religion’s kernel, which they called Haqiqa (the truth).

His work has long followed the lead of his mentor and inspiration, the Sudanese intellectual Ustadh Mahmoud Mohamed Taha, who sought to reinterpret the Quran so as to ground human rights and equality. Like Taha, An-Na`im holds that traditional sharia, as it developed over the centuries following the revelation of the Quran, indeed sanctions aggressive jihad, the killing of apostates, the subordination of women, and dhimmitude or worse for non-Muslims. This history cannot be interpreted away. What can be reinterpreted is the Quran, which includes verses both from the earlier, more tolerant, Mecca period of Mohammed’s life, as well as those from the later Medina portion, marked by conquest and subordination. It was the Medina version that had become orthodoxy by the 10<sup>th</sup> century. But it is the verses from the earlier period that represent the true, universal message of Islam; the Medina verses were in fact an adaptation to particular historical circumstances in the life of the embryonic umma. An “Islamic Reformation,” to borrow from the title of An-Na`im’s previous prominent work, would retrieve the Meccan verses for politics today, making them the ground for human rights, equality, and the rule of law. In the spirit of Taha, whose teachings led to his martyrdom at the hands of the Sudanese state in 1985, An-Na`im has courageously taken his arguments for Islam and human rights all over the Muslim world.

Not a scholar of Islam, I am unqualified to judge the exegetical soundness of An-Na`im’s Islamic Reformation. But what I find promising about it is its reliance on what Muslims believe to be the authoritative source of their claims, the Quran. These arguments, to be sure, show up again in Islam and the Secular State. But here they appear as an accompaniment to other arguments for the secular state that An-Na`im now appears to make far more central. It is these other arguments about which I wish to raise questions. They, too, according to An-Na`im, are Islamic ones. But as we shall see, they are not exactly Quranic or even based on the Islamic philosophical tradition, nor do they make universal claims about the person, society, or morality, but rather rest on observations about Islamic history and about the general character of religious belief.

Here are five such arguments that he makes for a secular state.

1) Religious belief by its very nature cannot be compelled. It must be freely chosen if it is to be meaningful and consequential. The state that compels it pursues an impossibility and stultifies and represses vibrant religious life. “By protecting my freedom to disbelieve, a secular state, as defined in this book, is necessary for my freedom to believe, which is the only way belief has any meaning and consequences,” he argues.

2) The meaning and interpretation of Islam is a human process that has always been in flux. An-Na`im is neither a relativist nor a skeptic; he believes that the Quran is Allah’s revelation. But interpretations of its meaning have always evolved dynamically through shifting consensus. Yesterday’s heresy may well be today’s orthodoxy. To freeze any one interpretation into the laws of the state is to make fast what ought to be left fluid. Rather, interpretation always ought to be left to believers and communities. It is just the freedom that the secular state provides that allows the great historical flow of interpretation to continue.

3) Any attempt to freeze any one interpretation in a constitution or the basic laws of a state leads to tyranny. Because interpretation is a human process, human rulers who seek to enforce a particular understanding of Islam will inevitably do so repressively and may well use orthodoxy as a mere tool for rule. Although An-Na`im does not say it, the history of his native Sudan over recent decades offers ample grist for this argument.

4) The history of Islam, as An-Na`im shows in his brilliant and rich Chapter Two, contains many examples of separation of religion and state, even in the early centuries. This was not modern constitutionalism, to be sure, but involved an independence of religious authority and a limitation of state responsibilities to typically temporal ones—raising armies and taxes, for instance. It was in good part European colonial regimes that created today’s states that rigidly enforce sharia.

5) A constitutional regime is one where religious people may advocate policies out of their religious convictions as long as they do so through secular language and arguments. An-Na`im’s explicitly links his concept of “civil reason” to the arguments of John Rawls and Jürgen Habermas, who have proposed similar, though not identical, restrictions. He rejects the authoritarian secularism of modern Turkey, which seeks to control Islam sharply in the name of modernization, equality, and nation-building. Rather, he advocates religious participation, but on the ground rules of secular language.

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.

Take the argument about compulsion of religious belief. In strictest terms, it is correct. It is incoherent to compel religious choice. This conclusion surely helps to ground religious freedom. But it hardly brings us to the secular state that An-Na`im advocates—one where sharia is neither constitutionally enshrined nor explicitly invoked in political debate. After all, there are many ways that a state can foster an “ecology” of morality through legislation advocated on religious grounds but without compelling religious choice. It can regulate alcohol consumption, dress, pornography, marriage and sexuality, the media, and, perhaps most importantly, education, in order to foster certain ends that religions prescribe, all while leaving people free to worship, practice, and express their faith. The wisdom of any of these policies can be debated on its merits, of course. But most western constitutional liberal democracies, including the United States, have legislated these sorts of measures through much of their histories, often on explicitly religious grounds. Several western European democracies either have established churches or privilege certain religions in their taxation and education policies. In parallel, there is no inherent reason why there could not be an Islamic constitutional liberal democracy that explicitly and publicly promotes policies based on sharia and even proclaims in its constitution that it is a sharia-based state, but also guarantees the panoply of human rights found in international law, including religious freedom. The impossibility of compelling religious belief does not alone yield An-Na`im’s secular state that is not based on sharia.

It is also hard to see how the “argument from flux” can ground An-Na`im’s secular state. A factual statement—a great plurality of interpretations have characterized a religious tradition—alone says nothing about whether one interpretation is truer than another. The argument is even self-defeating. If one asserts the constant flux of interpretation as a supporting girder for the secular state, then one is in fact asserting this claim as being beyond flux. An-Na`im may well reply that the secular state is not necessarily universally and eternally valid and is itself the product of an evolution of consensus. That does not change the fact that the kind of state he is advocating is one that respects the flux of interpretation, but whose basic rights and constitutional structure are not themselves subject to change. That is, a state that keeps interpretation open is, for him, non-negotiable—that is, not subject to interpretation.

The problem is no mere logical conundrum. Imagine what is not difficult to imagine: an advocate of even a moderate sharia state who advocates, contra An-Na`im, laws that deny full religious freedom to non-Muslims. Imagine, too, that he believes such laws to be are mandated by the Quran and beyond reasonable interpretation. He acknowledges that history contains disagreement over his interpretation, but argues nevertheless that these dissents are unreasonable and implausible. Against this view, it seems, An-Na`im has no trump card to play. His argument that all is in flux cannot itself answer the argument that yes, there is much flux, but that some interpretations, here, illiberal ones, are truer than others and should be incorporated into law. Only an argument that refutes this person’s view or that offers grounds for why, even if this view is true, an environment of openness is superior to its legal enshrinement—that is, only a substantive argument, not an assertion of flux—can serve as a trump card.

The need for substantive grounding is all the greater when it comes to human rights, a centerpiece of An-Na`im’s political proposals. The very idea of human rights is that some sorts of human goods—the lives of the innocent, for instance—always ought to be protected and that some sorts of actions—like war crimes and torture — always ought to be prohibited. This is true because of qualities that inhere in human beings qua human beings, not as members of this of that community—hence, human rights. But doesn’t a defense of such rights require a claim that some principles and interpretation are beyond flux? An-Na`im advocates for a constitutional regime in part because he wants to keep interpretation open. But what about the rights that undergird this openness? Must not they be considered non-negotiable and universally valid?

The strongest advocates of human rights, in my view, rest their arguments on just such a conclusion. An-Na`im’s own colleague at Emory University, Michael Perry, has argued 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. Theologian Max Stackhouse, philosopher John Finnis, and many others have argued along similar lines, often with an accent on natural law. Pope Benedict XVI made this argument in his recent speech to the UN.

Again, the argument is hardly an abstract intellectual one. Over the course of the twentieth century and well into this century, human rights have come under attack from concepts and guns wielded by ideologies and political programs that would deny or curtail them: utilitarianism, cultural relativism, political realism, philosophical skepticism, theocracy, fascism, communism, rightist arguments about organic societal fabrics, leftist revolutionary programs, and simple arguments from duress and necessity, arguments that this omelet requires the breaking of that egg. It is these competitors and the potential vulnerability of human rights before them, in addition to the philosophical logic of defending something universal and intrinsically human, that require that human rights be grounded in what is immutable, not what is in flux.

None of these arguments, of course, deny what An-Na`im wants to argue for, namely that religious communities ought to be given maximal freedom to debate and develop their doctrines. As he argues, it can be true both that truth is fixed and that human understanding of it is open to infinite progress and continual refinement. But the political institutions that themselves ground the freedom for this inquiry to occur arguably require claims about what is fixed.

Neither do I wish to oversimplify arguments about scriptures or natural law. Different religions and different philosophical traditions have different ways of grounding claims about what is human and about how the principles that justify human rights are to be defended. The character of these arguments has shifted over time as well. Certainly internal debate and evolution characterizes the natural law tradition. Human rights itself is and has been debated between and within traditions. An-Na`im is smart to point out that “normative systems . . . are necessarily shaped by [people's] own context and experiences, any universal concept cannot be simply proclaimed or taken for granted.” But I stake my claim here: Apart from a rationale that makes strong universal claims about human dignity and the validity of basic moral precepts, it is very difficult if not impossible to make a robust argument for human rights, the kind that can truly fend off competitors. Religious traditions and the natural law that is embedded in several of them, have, over the course of history, proven to be some of the strongest providers of these rationales. Though An-Na`im acknowledges the need for an “internal Islamic argument” and for “Islamic justification” in Islam and the Secular State, he places far greater stress on the fluidity, uncertainty, and flux in the Islamic tradition than he does on positive arguments for human rights that are rooted in the Quran or in the Islamic philosophical tradition.

I would put forth a similar argument towards An-Na`im’s claim that enshrining a particular interpretation of sharia—always the product of a human process—into the constitution of a state leads to tyranny and the abuse of power. There are indeed lots of good reasons why the claims of a particular religion ought not to be enshrined in the constitution of a state, particularly one with a religiously plural population. And there are plenty of examples, contemporary and historical, of regimes that justify their tyranny on religious grounds, sincerely or manipulatively. But what An-Na`im underestimates, in my view, is the importance of substantive religious and philosophical underpinnings for opposition to such tyranny.

Instructive parallels can be found in the Christian tradition. Here, too, political rulers have deployed religious arguments for persecuting minorities and dissenters, slavery, and other practices that are now regarded as heinous, particularly in the high Middle Ages and the religious wars of early modern Europe, but at other times and places, too. But over time, arguments for human rights and equality of citizenship have proved more enduring. The key breakthroughs were made by thinkers who appealed back to scripture and to natural law to challenge existing practices. One thinks of de las Casas’s and Victoria’s arguments for the rights of Indians, of Protestant proponents of religious freedom in the sixteenth and seventeenth centuries, of evangelical abolitionists like William Wilberforce in the nineteenth century, of Martin Luther King and the American civil rights movement, of the Catholic theologians and philosophers who argued for religious freedom in the nineteenth and twentieth centuries, and of the Second Vatican Council documents in which these arguments triumphed.

In following Taha, An-Na`im himself takes this foundational approach—and aspires to join parallel ranks in the Islamic tradition. But again, in Islam and the Secular State, his stress is far more on uncertainty, flux, and potential abuses than on positive grounds. He is right not to allow that not all Muslims need accept the particular arguments of Taha in order to endorse the secular state. But he would be more persuasive, in my view, were he to argue more strongly that a certain class of rationales, containing certain kinds of features—a class of which Taha is an instance—is needed to oppose tyranny. Similarly, Christians can continue to argue whether Wilberforce or de las Casas or Martin Luther King or Vatican II had it most right, but all the while insist that natural law or that certain kinds of scriptural arguments are needed to ground freedom and equality.

Finally, it is strange to see An-Na`im, an advocate of religious participation in democracy, endorsing arguments along the lines of John Rawls and Jürgen Habermas that demand secular rationales in political debate—”civic reason,” as he calls it. Whereas he does allow Muslims to reason politically on the basis of sharia, he argues that appealing explicitly to religious rationales in public debate violates the norms of citizenship in a secular state. Secular arguments for public policy positions are “impartial” and “accessible,” ones that “most citizens can accept or reject,” and so should be pursued.

Here, An-Na`im aligns himself with proposals that have appeared in western political philosophy, and only recently. Even in the West they are not at all an intrinsic, core feature of the liberal tradition but rather an argument of one faction of it. John Rawls, the most prominent proponent of “public reason,” as he called it, presented his arguments for it in the 1990s. It is also an argument that has come under heavy fire from philosophers committed to both liberal institutions and to religious participation in these institutions: Christopher Eberle, Nicholas Wolterstorff, Charles Taylor, and Jeffrey Stout. (See The Immanent Frame’s discussion of “Religion in the Public Sphere.”) These philosophers have argued that requiring “public reason” privileges certain epistemological positions as normative for public debate, fails to provide criteria that do not also rule out a whole host of reasons, both religious and secular, that are necessary for meaningful democratic debate about political problems, forces the religious to disguise their convictions, argue disingenuously, and without transparency, and is generally illiberal, not liberal. To be sure, these scholars, like other religious people, allow that there are often good reasons for the religious to use secular language in the political realm and to find common ground with diverse others. They decry neither dialogue nor deliberation. But they deny that dialogue and deliberation ethically require secular language. It is curious that An-Na`im, who is so keen to preserve religious participation in democracy and to avoid Kemalist secularism, makes no effort at all to consider these arguments against civic (or public) reason that come from people with whom he has so much in common. While he does allow that his conception of civic reason is “tentative and evolving,” and while he does distinguish his conception from certain features of Rawls’s, he fails to provide a robust defense for a principle that proves central to his argument.

In the end, my objection to Islam and the Secular State is not that arguments about the phenomenology of belief, flux, the tyrannical tendencies of religious rulers, the lessons of history, or even the value of secular arguments in some circumstances cannot help to make the case for the secular state. They can indeed serve as auxiliary arguments. But in my view, constitutional law, human rights, religious freedom, and legal quality for the sexes depend indispensably on substantive claims about the dignity and nature of the person, the nature of human society, and the validity of universal precepts, grounded in the kinds of sources that can sustain these claims. To some extent, An-Na`im incorporates these kinds of arguments, based on his previous work following Taha, into Islam and the Secular State. But I question whether he adequately stresses the centrality of these arguments—or at least these kinds of arguments—for the secular state that he advocates. Funny, in this book he ends up arguing closer to contemporary western philosophers who advocate liberal democracy on grounds of procedure, consensus, and stability than to those philosophers, western and non-western alike, who argue for it on the grounds of transcendent foundations, natural law, and universal reason. It seems to me that Muslims would be far more receptive to the latter sort of approach.

In a trademark gesture of democratic openness, in late 2003 An-Na`im circulated a draft of his new book to scholars and activists in Turkey, Egypt, the Sudan, Uzbekistan, Indonesia, India, and Nigeria. From January 2004 to September 2006, he worked with local Islamic associations in all of these countries to organize workshops and focus groups to discuss and refine the book’s arguments. The English manuscript was also translated into Arabic, Indonesian, Bengali, French, Persian, Russian, Turkish, and Urdu; it was also made available on the Internet. Among the global Muslim intelligentsia, the draft quickly became a cultural event in its own right. The book version of the manuscript will both broaden the discussion and deepen the controversy.

Two things distinguish this new work from An-Na`im’s early writings. The first is his explicit endorsement of a secular state as the best form of government for Muslims and for the flourishing of Islam. In Toward an Islamic Reformation, An-Na`im had dedicated his energies to addressing believers’ understandings of Islam and Shari`a, and had less to say about the appropriate form of the state. As he put it, he hoped “to reconcile Muslim commitment to Islamic law with the achievement of the benefits of secularism within a religious framework.” In this new book, he sets his sights squarely on providing Islamic rationales for secular government.

The second quality that distinguishes this book from his earlier scholarship is its systematic effort to ground arguments in support of freedom, constitutionalism, and secularity on two bodies of research: historical studies of the development of Muslim politics and Shari`a from the early Islamic period to the rise of the Ottoman Empire; and case studies of Shari`a politics in modern India, Turkey, and Indonesia. An-Na`im plumbs the depths of these empirical materials to provide corroborating evidence in support of his larger argument.

The argument has three pillars: first, and contrary to the claims of some Western scholars and Islamist intellectuals like Hassan al-Turabi, religious and state institutions in Muslim societies have been effectively separated since the death of the Prophet Muhammad; second, modern Islamists’ demands for the establishment of an Islamic state based on a fusion of religion and state reflect, not enduring Islamic precedents, but a “postcolonial discourse that relies on European notions of the state and positive law”; and, third, Muslims can best realize Shari`a ideals in a secular state neutral on matters of religion but otherwise responsive to citizen values, as long as these are expressed through a “civic reason” accessible to all citizens.

In short, An-Na`im’s book presents an “Islamic argument for a secular state,” premised on constitutional governance and universal human rights. The appeal to civic reason has parallels with the recent statements by Charles Taylor and Jürgen Habermas on religion and the public sphere. However, An-Na`im’s commitment to secular government is distinctive in that the appeal is oriented toward not only concepts of popular welfare, but “the survival and development of Islam itself.”

On this latter point, An-Na`im’s approach bears a striking resemblance to that of two other modern Muslim pluralists, the late Nurcholish Madjid of Indonesia and Abdulkarim Soroush of Iran. Like both of these authors, An-Na`im argues that the most compelling grounds for a separation of religion and state have to do with, not liberalism, but efforts to safeguard Islam from abuse at the hands of the powerful. Also like these authors, An-Na`im’s secularism is of a sort that, while mandating a formal separation of religious and state institutions, allows and even requires religious actors and values to play a role in legislation, subject to the restriction that the values are recast in a non-sectarian form. Indeed, An-Na`im argues, secularism—”defined to mean only the separation of religion and state”—makes such “minimal moral claims” that it is “incapable of meeting the collective requirements of public policy.” The weakness is especially serious with regard to vexing moral issues like abortion and capital punishment. Inasmuch as this is so, the secular state must allow citizens of religious conviction to publicly express their views and influence legislation, with the proviso that that such legislation must be cast in terms “acceptable and convincing to the generality of citizens regardless of their religious or other beliefs.” The balance struck here between formal separation and allowing for the public role of religion “is difficult to establish and maintain, but there is no alternative to striving to achieve it.”

An-Na`im observes that one of the greatest threats to Islamic piety and observance today comes, not from outside the Muslim community, but from Muslims who would abolish the separation of religion and state in the name of an ostensibly Islamic government. He argues that all such étatizing projects are not only politically dangerous but religiously mistaken. Their religious error lies in their failure to recognize that the Qur’an places ultimate responsibility for observance of God’s commands, not on the state, but on individuals and the community of believers. “Shari`a principles by their nature and function defy any possibility of enforcement by the state.” By surrendering responsibility for the Shari`a to state authorities, proponents of the Islamic state create a “totalitarian” entity that is “incoherent and unworkable,” and thus doomed to foster hypocrisy, corruption, and cynicism among believers.

Although at first some of this may sound like a familiar critique of Islamist programs, An-Na`im’s ideas differ from Western liberal commentaries in that, while advocating a religiously-neutral state, they do not promote a religiously-neutral society. An-Na`im repeatedly emphasizes that for all observant Muslims the Shari`a is an unavoidable and hallowed obligation. Moreover, he explains, because its ethical discipline is socially encompassing, the Shari`a cannot be transformed into a system of purely personal ethics, as both liberal and authoritarian secularists have long recommended. Inasmuch as the Shari`a has such scope, the challenge for An-Na`im becomes to identify just what the Shari`a prescribes, and, having answered this question, to determine the sociopolitical arrangements that can most effectively realize its aims.

On the first of these two questions, concerning the Shari`a’s ethical prescriptions, An-Na`im takes what is from the perspective of Islamic scholarship (especially jurisprudence) a thoughtful but controversial tack. Rather than deducing the Shari`a’s stipulations from exegeses of Islamic sources, An-Na`im explains that his first order of business must be to develop an “interpretative framework” for understanding how believers come to understand Shari`a meanings. The argument here is that believers “always understand Islamic sources (or any other text, for that matter) as who we are, in our specific location and context.” Inasmuch as understanding is situationally contingent in this way, believers must take care to distinguish Shari`a as the “totality of the duty of Muslims” from “any particular perception of it through a specific human methodology of interpretation of the Qur’an and Sunna.”

Readers familiar with late-nineteenth century German Biblical scholarship will not be surprised to learn that An-Na`im uses this constructionist model of religious knowledge to relativize the claim that the Shari`a provides clear and immutable guidelines for politics and ethics. Although some modernist Muslim scholars have advocated a partial heremeneuticization of believers’ understanding of divine law—by, for example, insisting that jurisprudence (fiqh) is changeable but the Shari`a is not—An-Na`im insists scholars must go further. He rejects the latter distinction as temporizing, insisting that, though God’s revelation is absolute, human judgment is not; “human interpretation of relevant texts… is unavoidable in both aspects of this issue.”

This emphasis on the situatedness and fallibility of human judgment provides the bridge between An-Na`im’s religious epistemology and his more general arguments concerning freedom, democracy, and constitutionalism. Just as an awareness of human agency as situated and fallible is “integral to any approach to the Qur’an and the Sunna,” so too “the whole process of formulating and implementing public policy and legislation is subject to human error and fallibility.” Institutional safeguards must be implemented in both realms, so as to guard against corrupting powers and policies that cloak temporal human judgments in the garb of divine commands.

As these statements hint, the social ontology underlying An-Na`im’s approach is egalitarian and, in a strictly delimited sense, liberal. The framework is liberal in that it aims to maximize religious freedom – albeit, for Muslims, within the compass of a divine law that must be observed even as it can never be known with absolute certainty. “Knowing and upholding Shari`a is the permanent and inescapable responsibility of every Muslim,” An-Na`im writes, echoing a near-universal opinion among Muslim scholars. But An-Na`im quickly adds an observation that tradition-minded scholars will find less familiar: Because upholding the Shari`a is the foundation for all Muslim ethics, “no human being or institution should control this process,” not least of all by prescribing just who is and who is not “qualified to exercise ijtihad” (independent religious judgment). Although the emphasis on opening the process of ijtihad to a broader public has been a leitmotif of Islamic modernism since the nineteenth century, statements like these make clear that An-Na`im aims to extend and equalize the right to a far greater degree than most reform-minded modernists. Conservative critics view proposals like these as an invitation to intellectual license, as well as an attempt to dynamite the hierarchical edifice of scholarship and learning on which their own religious authority depends.

There’s a deeper, albeit no less controversial, religious premise to An-Na`im’s argument. It is his conviction that the Shari`a is primarily concerned not with matters of state or criminal codes, but with “regulating the relationship between God and human believers” in a direct and unmediated manner. An-Na`im uses this characterization as the grounds for another boldly egalitarian prescription, one central to the book’s political argument. “Believers can neither abdicate nor delegate their responsibility” for abiding by the Shari`a; they alone must fulfill the obligation. Inasmuch as this responsibility allows no delegation, the idea of creating a religious or Islamic state is both logically and ethically impossible. It is in this sense that An-Na`im asserts that the state is “by definition secular and not religious,” and those who think otherwise act contrary to the spirit of God’s law.

As the historical discussion in the middle chapters of this book demonstrates, An-Na`im is well aware that since the first centuries of the Muslim era, believers have tended to see the relation of religion and state in a manner other than the separationist model he is proposing. When they wrote about it at all, most Muslim scholars described the state as neither secular nor religious, but as an entity whose legitimacy depended on the rulers’ ability to create conditions in which Muslims and the Shari`a could flourish.

In the book’s second chapter, An-Na`im provides a careful overview of the relationship of the ulama to the state from the time of the “rightly guided caliphs” to the modern Ottoman empire. Drawing on both Muslim and Western sources, he demonstrates that the separation of religious and state institutions was not the result of Western colonialism (as Turabi and other Islamist intellectuals have suggested), but developed as the early Muslim community evolved from a small Arabian movement into a vast empire. Even where rulers attempted to impose a “fusion model” of religion and state, as did the Fatimid dynasty in tenth and eleventh century Egypt, religious scholars still enjoyed significant practical autonomy.

An-Na`im emphasizes that, although institutionally differentiated, rulers and scholars in most countries developed a “mutually sustaining relationship.” This insight leads An-Na`im to emphasize what he describes as the central paradox of politics and religion in Muslim societies. Rulers “could not function without the consent of their subjects, which rested upon an unyielding demand that they implement and uphold Islamic orthodoxy.” At the same time, “the ulama and their institutions could not function without the support of the state apparatus, which not only protected the borders of the Islamic lands … but also endowed religious institution and enforced the regulations of the awqaf” (religious endowments on which mosques and madrasas depended for funding).

After reading comments like these on the interdependency of religious and state institutions, some Muslim readers may be tempted to draw conclusions different from those of An-Na`im concerning the proper relation of religion to state today. Rather than a secular state, some might feel that it makes more sense for Muslim societies to move toward a modernized and “massified” variant of the long-established relationship of mutual sustenance between rulers and ulama. As many modern analysts have pointed out, mass education, urbanization, and religious resurgence have created new Muslim publics in which the ulama’s monopoly over religious knowledge has been diminished. But some ulama have responded deftly to the challenge and developed methods for winning followers in the new mass market. In the face of Islamic resurgences and ulama re-assertions in countries like Egypt, Pakistan, and Indonesia, once-secular rulers have concluded that it is in their interest to court favor with segments of the scholarly establishment, especially where state power is being challenged by populist protest (political dynamics nicely illustrated, for Pakistan, in Muhammad Qasim Zaman’s The Ulama in Modern Society, and, for Egypt, in Carrie Rosefsky Wickham’s Mobilizing Islam).

An-Na`im is familiar with this trend toward a neo-conservative accommodation of ulama and state. However, in keeping with his egalitarian and democratic vision of Shari`a, and in light of the abuses he has witnessed in Sudan and elsewhere, he holds firmly to the conviction that collaborations like these are intrinsically corrupting. “[I]f religious belief and piety are declining in any society, they cannot be restored through coercion or inducement through state institutions. To the contrary, state intervention in matters of religious belief and practice is deeply corrupting, by breeding hypocrisy (nifaq), which is repeatedly and categorically condemned in the Qur’an.” As scholars like David Martin and Hugh McLeod have shown, the evidence from Western Europe and the United States points to a similar conclusion: that popular piety and religious conviction are likely to remain socially vibrant where responsibility for religious matters is dispersed into the meeting houses and prayer groups of civil society rather than concentrated in the hands of state bureaucrats.

An-Na`im concludes his book with an observation that again underscores the depths of his commitment to a deeply pious but egalitarian profession of Islam. “I say that no human being should have the power to control what others may wish to believe or disbelieve.” No doubt the memories of his beloved teacher, Mahmoud Mohamed Taha, hover over this assertion. But the argument is also informed by An-Na`im’s first principle of religious conviction: “Religious compliance must be completely voluntary according to personal pious intention (niyah), which is necessarily invalidated by coercive enforcement of those obligations.” Although this conviction resonates with modern ideals of freedom and equality, it is not derivative of Western discourses, but builds on long-established traditions of piety and mysticism in Islam.

This individualized vision of piety is not one to which all Muslims or even believing non-Muslims will subscribe. Even Muslims who agree with An-Na`im in rejecting the fiction of the Islamic state may see his pietistic politics as idealistic but unworkable in light of the political dynamics of modern Muslim societies. Like their Western Christian counterparts in the early modern age, many mainstream Muslim leaders seem comfortable with the idea that, however much it may be at variance with liberal notions, the state has a positive role to play in promoting Islamic learning and piety. Religious education in public schools, the call to prayers on radio and television, state-coordinated alms-collection—these and other collaborations across the state-society divide have become the norm, rather than the exception, in the late-modern Muslim world. As with the development of democracy in Western Europe in the late nineteenth century, these collaborations—though still far short of anything like an “Islamic” state—may not be good for full religious freedom. However, as also in the late nineteenth century West, some Muslim societies may work from such compromised circumstances to strike an ever-evolving balance between limited state support for religion and a functioning if not-fully-liberal democracy. Although far from the liberal ideal, compromise arrangements like these may well be the path-dependent way through which democratization proceeds in many parts of the Muslim world.

Although political developments in Muslim societies may as yet be inhospitable to a full realization of An-Na`im’s egalitarian pietism, recent developments have created circumstances and public opinion quite favorable to his critique of the Islamic state. “The fundamental defect of the idea of the Islamic state is that the logic of the invocation of religious or moral authority can very easily be inverted, so that instead of regulating political power by religious authority, religion itself becomes subordinated to power.” This message resonates powerfully with the experience of many modern Muslims, who find themselves living under authoritarian regimes claiming to govern in the name of Islam. As with An-Na`im, opposition to these regimes, and support for a qualified separation of religion and state, is likely to be grounded as much on religious as political rationales.

In its preface, An-Na`im describes his new book as “the culmination of my life’s work, the final statement I wish to make on issues I have been struggling with since I was a student at the University of Khartoum, Sudan, in the late 1960s.” Islam and the Secular State testifies to the richness of that life work, and to the courage of an author who deserves to be recognized as one of the most important religious thinkers of our age.