Many have since written about this case, including myself. In my work, I’ve detailed how hisba is less a deviation from secularism than an expression of the underlying power that makes secularism possible—including the state’s fundamental right to decide the proper place of religion in social life. Here, however, I focus on something else: how hisba became not only an object of general suspicion, but also a particular modality of suspicion as a result of court litigation and state legislation. This modality of suspicion, exercised by the state, is intimately tied to the defense of religious freedom, and I suspect that it is shared across seemingly very different secular polities. To see this, consider the following passage from the Abu Zayd judgment:

The Court notes that there is a difference between apostasy, which is a material action with its basic elements and conditions….and belief (i`tiqad). Apostasy is necessarily comprised of material acts that have an external being. Such acts must make manifest, in a manner undeniable and without dissent, that one has called God Most High a liar, and the Prophet, peace be upon him, a liar by denying what he has brought to Islam….Belief, however, differs clearly from apostasy. For apostasy is a crime whose basic material elements are presented before a judge to decide whether it exists or not….But belief concerns what is in the interior of a human being’s self, belonging to his domain of secrecy. It is neither a matter of judicial probing, nor of investigation by people, but is to do with the relationship between the human being and his Creator. Apostasy is a breach of the Islamic order, at its highest degree and most valued foundations, through manifest, material actions. In positive law, it comes close to a breach of the order of the state or high treason. Apostasy is investigated by the judge or the mufti. However, the punishment for assaulting religion through [an act of] apostasy does not contradict personal freedom. This is because freedom of belief (`aqida) requires that one be a believer (mu’minan) in his words and acts, and that he possess a sound rationale for his abandonment of belief. But a breach of Islam can only be due to corruption in thought or the lure of material, sexual, or other worldly purposes. To combat this category [of desire] is not considered combat against freedom of belief, but rather the protection of belief from such vain, corrupt passions.

In distinguishing between apostasy as an “outer” material act and belief which occurs in an “interior” forum, the Court defines its jurisdiction over the determination of apostasy and justifies its approach in making that determination. On the basis of this distinction, the Court took only Abu Zayd’s written work into account, without probing into his personal views—his “interior” relationship with his creator. Taking statements from his written work at face-value, the Court compared them with statements designated within the sharia as indicating apostasy; finding them to be similar, it pronounced him an apostate.

Many commentators on the judgment have discussed how it separates private belief from public act/expression. No one, however, has discussed the seeming contradiction it presents just a few lines later, where it reconnects private belief and its public manifestation in the context of a defense of religious freedom. Importantly, the Court does not see religious freedom as simply a right to believe what one wants. It also includes maintaining the conditions under which religious belief can be sustained and cultivated. For the Court, this entails that belief be protected from the motives of worldly power that might corrupt it. This, in turn, requires the Court to pronounce what those motives are—as it did with Abu Zayd. Acts and expressions of belief are therefore objects of especial suspicion, to be put under particular scrutiny, for potentially harboring ulterior, corrupting motives. Such scrutiny might be seen as a kind of vigilance against power and its potential abuse. (Indeed, part of the Court’s concern was that Abu Zayd was also teaching his books to university students.) In other words, outer act and inner belief, though initially divided, come to be reconnected through a suspicion of motives of material interest or worldly power. In the context of the freedom of religious belief, it becomes imperative to determine whether acts or expressions of belief are genuinely religiously motivated. This presumes the power to pronounce upon and, if necessary, probe into the character of one’s private convictions. Here the defense of religious freedom promotes a distinctive form of suspicion.

This suspicion is not exclusive to Egypt. Strikingly similar versions of it are found in seemingly very different secular states.

For example, Winnifred Sullivan has highlighted two central criteria in U.S. jurisprudence on religious freedom. They parallel those of the Abu Zayd case. The first criterion was whether religious acts or expressions were sincerely held to be essential to one’s religion. This conflicted with the second, often prevailing, criterion: whether these acts and expressions were authorized and mandated by orthodox religious texts. In U.S. courts, there seemed to be a disposition to presume the sincerity of litigants’ religious belief—which may be due in part to a traditional American respect for individual belief rooted in a particular Protestant history. Nevertheless, as legal theorist Kent Greenawalt writes, “when the state offers exemptions based on people’s convictions, it cannot avoid all inquiry into sincerity.” The Court thus retains the prerogative to determine and investigate this sincerity in the context of defining and defending religious freedoms—a prerogative it has exercised. More, this determination and investigation purveys a suspicion of motives of material interests or other worldly purposes. To quote Greenawalt again:

Another category of religious claims that should not count as spiritual are schemes cloaked in religious language in which the incentive to participate is financial self-interest and not spiritual development. … A finding that a claimant is sincere should be easy if one cannot discern any secular advantage from a person’s engaging in the behavior she asserts is part of her religious exercise.

But whether it is preferable for the Court to actually investigate sincerity or simply make presumptions about it without an investigation has been historically difficult to decide.

A similar situation is found in France. Anthropologist Mayanthi Fernando describes the dilemma veiled Muslim women faced in opposing the banning of the veil in public schools. If, on the one hand, the veil was deemed an obligation mandated by religious authorities, then it could be construed as potentially coercive and an impingement of religious freedom. The French state was therefore very concerned to ascertain that there was no external coercion or pressure to wear the veil—a concern that entailed knowing about the circumstances of people’s private lives and convictions. But if, on the other hand, the veil was construed as a matter of personal belief—a choice—then it was not mandated by orthodox religious texts and therefore inessential to the practice of one’s religion. Banning it was therefore not necessarily an impingement on religious freedom.

But even as a personal belief and choice, the veil was still construed by the state as an essentially religious, and fundamentally Islamic, sign. For state officials, it indicated a will and a desire to manifest Islam. Some saw it as potentially indexing a rising Islamism, one that degraded women in ways incompatible with the French republic’s fundamental values. It was thus a will and a desire that the state sought not to encourage, lest those values become undermined. Thus, in his analysis of the state’s investigation, Talal Asad notes that,

…not only [do] government officials decide what sartorial signs mean, but …they do so by privileged access to the wearer’s motives and will—to her subjectivity—and this is facilitated by resort to a certain kind of semiotics. A governmental commission of inquiry claims to bring private concerns, commitments and sentiments to the public sphere in order to assess their validity for the secular Republic, but it does much more than that. It constitutes meanings by drawing on internal (psychological) signs or external (social) signs, encourages certain desires and emotions at the expense of others.

So even though the veil was construed as a choice, indeed, precisely because it was, it could be deemed a suspicious and potentially dangerous act.

That the determination of genuine religiosity in terms of ulterior motives is a practice of suspicion becomes fully evident when it comes to Muslims in Europe and the U.S., with the near paranoid quality of the public debates about the building of mosques and minarets, the potential usage of sharia law, the teaching of Arabic in public schools, the donating to Muslim charities, and the wearing of veils. While there are complicated historical and political reasons for this near paranoia, my point here is to emphasize a central element of the structure it takes. And this is the constant attempt to unmask ulterior motives of material interest and worldly power behind a range of otherwise ordinary (in this case, Muslim) practices and expressions of belief, in order to defend those freedoms, including especially religious freedom, that are seen as constitutive of the ways of life the state is supposed to guarantee.

These examples, then, reveal a distinctive structure of legalized suspicion. On the one hand, private belief and public act/expression are made separate, but on the other, they are brought together in order to define and defend religious freedoms. In this case, private belief becomes framed within a complex of motives, will and desire—one that becomes suspect to the extent it expresses material interests or drives towards worldly power. As such, it can become subject to investigation and disciplining, which means probing into the details of private life and conviction. This structure of suspicion, shared by the U.S., France and Egypt, brings together under the pretext of religious freedom two central aspects of liberalism and secularism respectively. The first is a distinctively liberal vigilance against power and its abuse, and the second is a characteristically secular desire to draw a line between religion and material power. What this suggests is that, under a liberal secular legal regime, suspicion of religion is the flip-side of the freedom of religious belief.

The Abu Zayd judgment cited above poignantly highlights this contradictory structure of suspicion. At one level, the Court took Abu Zayd’s written statements at face-value—to say what they mean—and found them to contradict orthodox doctrines literally construed. The Court thus declared him an apostate. But when it came to religious freedom, his words were paid extra attention, meaning more than what they said, as having ulterior worldly motives against which the freedom of belief—to cultivate belief and have it flourish—had to be defended. In this case, the Court simply presumed and pronounced upon Abu Zayd’s motives, without investigation. This shows that the suspicious attribution of motives does not depend on an investigation, even though it enables one to be done at the discretion of the judiciary.

Hisba, through and under the law, has come to embody this structure of suspicion and the discretionary power that comes with it. It therefore enables the assertion of the sovereign power of decision into the intimate domains of everyday life. This becomes clear when we remember that hisba was placed in the hands of the General Prosecutor, with his ambiguous status between judiciary and executive power and his nearly unfettered investigative authority. For now it is the General Prosecutor who is responsible for bringing a hisba case to court. He must therefore conduct an investigation to decide whether a potential case merits further litigation. That means he might have to scrutinize the motives behind statements of religious belief. If, however, such scrutiny seems to intrude too much into a person’s private life or interior forum, the General Prosecutor has another option at his discretion: to take these statements at face-value, as saying what they mean, as the Court did with Abu Zayd. A focus on literal statements, however, may fail to capture the complexity of people’s private religious lives. As with the U.S. and France above, it is unclear here which is preferable: to investigate how genuine one’s religious motives are, or to make presumptions about how genuine they really are.

This tension between intruding into a private, ostensibly protected, domain or taking statements too literally is reminiscent of another tension upon which modern legal legitimacy both rests and continually founders: between the enactment and the appearance of justice. The more zealously an official investigates, the more abusive of justice he might seem to be. If, however, he relies strictly on procedure, this might make a mockery of justice. Hisba now partakes of this dilemma too.

To conclude: I cited the Abu Zayd judgments to show how hisba, in its contemporary legalized form, embodied a distinctive structure of suspicion. Through the judgments, hisba potentially undermined an entire domain of private rights. In restricting hisba’s uses, the state transformed it into a modality of suspicion only it could exercise. This modality of suspicion, enabled to defend religious freedoms, nevertheless undermined the crucial distinctions on which they relied. More, it became ensconced within another dynamic of suspicion, the tension between the enactment and the appearance of justice. This tension is even further compounded because, as I show elsewhere, it remains irresolvably indeterminate whether hisba is still an Islamic and thus primarily religious principle, or, as an expression of public order, it has become an essentially secular principle. The example of hisba therefore not only confirms Winnifred Sullivan’s thesis that religious freedom as a legally enforceable right is impossible to attain. It also shows how such religious freedom will never appear to be fully achieved, being entangled in its entirety within the dynamics of law’s suspicion and secular/religious ambiguity.

We should not, however, take the impossibility of religious freedom to mean the failure of secularism. For that would reduce an analysis of secularism to an assessment of whether it fulfills the promises it makes. Secularism as a historical phenomenon is certainly more than its promises, if only because it so consistently and demonstrably falls short of them. We might consider instead how this sense of a continual failure is built into the historical grammar of secularism, and its consequences. In this case, the constant disjuncture between religious freedom as a secular aspiration and the secular means of achieving it constitutes a space of a continual striving, one which works to expand and entrench the suspicion and potential for intervention that provoked it in the first place. Within this space, religion is given to continual politicization, political theological claims acquire plausibility and force, and critique becomes a seemingly indispensable capacity that one must sustain and tirelessly cultivate. As a result, the question of religious freedom, as a central secular stake, remains poignantly alive, drawn into a seemingly unavoidable and incessant cycle of provocation, critique, and intervention. That is, the modalities and dynamics of suspicion outlined here help sustain the problem-space of secularism, its constitutive questions and stakes, the critical dispositions it induces, and the propensities toward sovereignty it displays. We remain bound to this problem-space through the incessant suspicion it provokes.

The Commodification of Religion

There has been considerable amount of research on how commodification and the Internet are transforming the religious lives of young people. For young Muslims, Internet use is an important means of building a consensus about, for example, whether the use of henna for cosmetic purposes is com­patible with Muslim tradition or whether dating and premarital intimacies are compatible with the life of a “good Muslim.” Whereas the religious sys­tem of communication in an age of revelation was hierarchical, unitary, and authoritative, the system of communicative acts in a new media environment are typically horizontal rather than vertical, diverse and fragmented rather than unitary, devolved rather than centralized. Furthermore, the authority of any message is constantly negotiable and negotiated. The growth of these diverse centers of interpretation in a global communication system has pro­duced considerable instability in the formal system of religious belief and practice. In Islam, for example, there has been an inflation of sources of authority, since through some local and specific consensus, almost any local teacher or mullah can issue a fatwa to guide a local community. Because new media provide multiple channels of access and encourage discursive interaction on blogs, they bring about a democratization of knowledge and religious lifestyles. Although there is clearly a digital divide, more and more people have access to these religious sites of communication. There is a democratization of Islam in the sense that many young Muslims bypass their traditional ulama and imams in order to learn about Islam from pam­phlets and sources, but this is equally true of other religious traditions.

There is in very general terms an important growth of religion online. In developing an account of the commodification and democratization of religion, let me return to the matter of ineffability, concentrating on the issue of communication and modern Islam. How is the Internet shaping the daily lives and religious practices of young generations? One obvious answer is that it makes the actual collective practice of religion—such as going to church or to the mosque—no longer necessary, and the result is that reli­gion online becomes online religion. The Internet has therefore only served to reinforce the problem of authority. Within the Muslim diaspora, where young Muslims face new problems relating to personal conduct, the new Internet intellectuals create personal websites, providing religious or ethi­cal rulings on various questions relating to religious conduct. These e-mail fatwas are not recognized by traditional shari’a courts as admissible evidence and cannot be readily enforced, but they clearly have an influence within the diaspora. They become authoritative, as users compare these rulings against other sites and e-fatwas. The debate on the Internet between multiple Mus­lim audiences constitutes an informal shari’a in which a communal consen­sus can emerge around controversial issues related to appropriate practice in new environments.

In summary, the Internet is an important technology for creating an imagined community for individuals and groups that are separated from their homelands and exist as minorities in alien secular cultures that are often hostile to Islam. These Internet sites also serve to reinforce the indi­vidualism that many observers have associated with neo-fundamentalism because, in the case of Islam, the global virtual ummah, or community of believers, is the perfect site for individuals to express themselves while still claiming to be members of a community on whose behalf they are speak­ing. We can conclude therefore that these forms of religious communica­tion are characterized by a principle of subsidiarity by which authority rests in the local and specific act of communication rather than in a principle of hierocracy.

These media contribute to a growing subjective individualism that is very different from the rugged ascetic and disciplined individualism of early Protestantism. This emerging religious subjectivity can be interpreted as a facet of the “expressive revolution” that had its roots in the student revolts of the 1960s. In the new individualism, people invent their own religious ideas and borrow religious practices from diverse traditions. The result has been a social revolution flowing from both consumerism and individual­ism, and as a result, “Capitalism’s success eroded class rivalries and replaced the activist and utopian mass politics of the inter-war era with a more bloodless politics of consumption and management. Goods not gods were what people wanted.” Consumerism helped to break down the old division between religion and the world, contributing to the contraction of the span of transcendence.

Religious lifestyles get modeled on consumer lifestyles in which people can try out religions rather like the way they try out a new fashion in hand­bags or shoes. In a consumer society, people want “goods not gods,” and to a large extent their desires can be satisfied by consumer credit. A new indus­try has emerged, concerned with spiritual advice on how to cope with the modern world while remaining pious and pure. Pious lifestyles are marketed by religious entrepreneurs who need to brand their products in the spiritual marketplace.

The consequence of these developments is a growing division between traditional “religion” and modern “spirituality.” Globalization has brought the spread of personal spirituality, and these spiritualities typi­cally provide guidance in the everyday world as well as subjective, tai­lor-made meaning. Such religious phenomena are often combined with personal therapeutic, healing services or the promise of personal enhance­ment through meditation. While fundamentalist norms of personal dis­cipline appeal to social groups that are upwardly socially mobile, such as the lower middle class and the newly educated, spirituality is more closely associated with middle-class singles who have been thoroughly influenced by Western consumer values. David Martin’s study of Pentecostalism also suggests that new therapies and lifestyles can be sustained through mem­bership in Pentecostal groups in which religion and material aspiration no longer conflict.

The new religions are closely associated also with themes of therapy, peace, and self-help. Of course the idea that religion, especially in the West, has become privatized is hardly new. However, these new forms of sub­jectivity and privatized living are no longer confined to Protestantism or the American middle classes; they now have a global audience. These reli­gious developments are therefore no longer simply local cults but burgeoning global popular religions carried by the Internet, movies, rock music, popular TV shows, and pulp fiction. I have described these new forms as pick-’n’-mix religions because their adherents borrow freely from a great range of religious beliefs and practices without any noticeable regard for coherence. It is also a new experimental context in which the iconic can also be the iconoclastic, as represented in Madonna’s experimentation with both Cath­olic and Hasidic personae.

These phenomena have been regarded as aspects of “new religious move­ments” that are, as we have seen, manifestations of the new spiritual mar­ketplaces. Such forms of religion tend to be highly individualistic, they are unorthodox in the sense that they follow no official creed, they are charac­terized by their syncretism, and they have little or no connection with insti­tutions such as churches, mosques, or temples. They are post-institutional, and in this sense they can legitimately be called “postmodern” religions. If global fundamentalism involves the modernization of social groups who are new arrivals to global megacities, the global post-institutional religions are typical of postmodernization.

Finally, spirituality is a mobile religiosity that mobile people can trans­port globally to new sites where they can mix and match their religious or self-help needs without too much constraint from hierarchical authorities. It is a religious orientation that permits rapid and easy transitions between dif­ferent identities, in which modern conversions tend to be more like a change in consumer brands than a searching of the soul. If the new religious life­styles give rise to emotions, these are packaged in ways that can be easily consumed. Brand loyalty on the part of consumers in low-intensity religions is also minimalistic.

Conclusion: New Gods of Communication

In modern societies, the principal characteristics of religion are its individu­alism in association with the decline in the authority of traditional institu­tions (specifically, the church, the liturgy, and the priesthood) and a grow­ing awareness that religious symbols are social constructs. Robert Bellah’s predictions about modernity have been strikingly confirmed in the growth of popular, de-institutionalized, commercialized and largely post-Christian religions. In fact, similar processes are at work in all the major religions. In a differentiated global religious market, the various segments of the religious market compete with one another for followers and resources. Bourdieu’s ideas about the struggle for symbolic capital in the field of religion provide a valid sociological perspective on the volatility of this religious field. The new religions are genuinely consumerist, but while fundamentalist move­ments appear to challenge consumer (Western) values, they are themselves typically selling a lifestyle based on special diets, alternative education, health regimes, dress codes, pilgrimage destinations, and marriage services. The contemporary religious market is consequently highly diversified into a range of competing groups, charismatic movements, Pentecostal churches, traditional religions, spirituality, and the like, but these are all, to varying degrees, influenced by consumerism. The audiences for religious services are also differentiated by class, gender, education, region, and so forth.

The triumph of popular, democratizing, global consumer culture is now having a deep impact on the traditional, hierarchical, literate religions of the past. Perhaps the most important development in modern religion is the changing status of women; one can safely predict that women will become increasingly important in religious leadership, and not simply in liberal Episcopalian churches but in the world religions more generally. Gender is a crucial feature of the new consumerist religiosity in which women increas­ingly dominate the new spiritualities; women will be and to some extent already are the important “taste leaders” in the emergent global spiritual marketplace.

Globalization theory has focused scientific attention on modern funda­mentalism, which is seen as a critique of traditional and popular religiosity. However, the real effect of globalization has been the growth of heterodox, commercial, hybrid, syncretistic religions over orthodox, authoritative, and institutional versions of the spiritual life. The ideological effects and social consequences of these religions cannot be easily or effectively controlled by religious authorities, and they often have a greater impact than official mes­sages, at least among the young. In Weber’s terms, it is the triumph of mass over virtuoso religiosity.

Pentecostalism has prepared the lower middle classes for participation in the emerging consumer economy of Latin America, and in a similar fash­ion, reformist Islam in Southeast Asia provides newly urbanized people, and especially educated women, with values and practices that are relevant to life in more complex, multicultural urban and largely secular societies, in coun­tries where international corporations have provided employment opportu­nities for young people willing or able to leave their villages for work in the megacities.

The habitus of the modern adherent of deinstitutionalized religion is basically compatible with the lifestyles of a commercial world in which the driving force of the economy is domestic consumption. Megachurches have embraced the sales strategies of late capitalism in order to get their message out to the public. On these grounds, one can claim that modern religions are compromised because the tension between the world and the religion is lost. We may define these developments as a form of social secularization. One can imagine that social historians will object to this argument, claim­ing that commercialized religion was not unknown in the Middle Ages, when pilgrimage and relics were basic elements of the economy of European societies. However, with contemporary social differentiation, the market no longer dances to the tune of the dominant religious institutions. Further­more, these secular developments are global rather than simply local. The result is a sociological paradox or set of paradoxes. Religion has erupted into the public domain, being associated with a number of radical or revolution­ary movements from Iran to Brazil and from Poland to Colombia, but at the same time, religion has been coming to terms with a variety of changes that are the consequence of commodification. More precisely, the secular­ization of religion has occurred through a double movement—democratiza­tion and commercialization. The sense of mystery and awe surrounding the ineffable character of the sacred has been eroded by the liberal ethos of democracy, in which egalitarian, immediate, and intimate relations are valued more than hierarchical, distant, and formal relationships. Religion as an agent of social change has been further compromised by the loss of any significant contrast between the sacred and the world. Religion has special­ized in providing personal services and has therefore been competing with various secular agencies that also offer welfare, healing, comfort, and mean­ing. In this competition, religious groups have by and large taken over the methods and values of a range of institutions operating within what we can, for want of a more sophisticated term, call “the leisure industries.”

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.”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In this installment of the Rites and Responsibilities dialogue series, I met with the Boston University anthropologist and scholar of Islam Robert W. Hefner. A world renowned expert on Muslim culture, politics, and education in Southeast Asia and beyond, Hefner is the author or co-editor of more than a dozen books, including

The following is a brief excerpt of the interview. Click here to read the entire transcript (pdf).

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DKK: If we consider concepts like “Muslim democrats” or “Muslim democratic formation”—I don’t know if you use that phrase—it seems clear that these concepts have either been under-acknowledged or under-recognized. Given these conditions, can you give us an example of democratic formation in a Muslim-majority country that would be an instructive example to and for the West? An example that says, “Here is a vibrant form of democratic life, and it took place or is taking place within the Islamic world, not despite Islam.” I think one of the bad-faith narratives about Islam says that democracy happens in the Muslim world despite Islam, despite what Islam wants for itself.

RH: Well, I think there are two striking examples. And then there are a number of still important but, for a variety of reasons, less salient examples. But the two most striking examples of Muslim democracies today are Indonesia and Turkey. People will point out that the Turkish state was until recently Kemalist, and was therefore a largely laicist state. On these grounds some would say that the Turkish case is too exceptional to figure in any discussion of Islam and democracy. But since the 1970s Turkey has experienced an Islamic resurgence comparable to that which we’ve seen across most of the Muslim world. In Turkey, as the political scientist Ahmet Kuru has so insightfully argued, the state structure that was put in place during most of the twentieth century was more aggressively secularist than that in the great majority of Muslim societies around the world. Inevitably, then, Turkey’s democratization shows some path-dependent contingencies and imperfections, not least of all with regard to ethnic minorities like the Kurds or religious minorities like the Alevis. That said, the continuing relaxation of military controls, the growing openness of electoral competition, and the preference among observant Muslims for an ethicalized profession of Islam rather than a woodenly formalistic implementation of sharia codes—all this bespeaks a political development of global importance.

The path-dependent nature and imperfection of democratization in Indonesia is somewhat different. Indonesia is sometimes described as a secular-nationalist state, but the reality is more complex. The country’s constitutional framework is a multi-confessional, “confessionalized” state, in the sense that the state is actively committed to the promotion of religion as a public good.

But the way in which this confessional commitment has been realized has varied over time, in a manner that both expressed and influenced Indonesian politics. From ‘65-‘66 until 1998, Indonesia was ruled by an authoritarian and, at first, conservative, nationalist ruler, President Suharto. However, in the last fifteen years of Suharto’s New Order government, the country witnessed an unprecedented resurgence of Islamic observance in society. Although, in the last five years of his rule, Suharto attempted to deflect the growing opposition to his rule by cultivating ties to anti-democratic Islamists, in the 1990s the country nonetheless developed a lively pro-democracy movement at the forefront of which were Muslim activists and intellectuals. Since Suharto’s fall, conservative Islamists have been consistently rebuffed in national elections. But small alliances of radical Islamist militias have taken advantage of the post-Suharto spring to press, sometimes violently, for curbs on Christian church-building as well as non-conformist Muslim groupings like the Ahmadiyah. So yes, there are path-dependent peculiarities and imperfections to democratization in Indonesia, as in Turkey, but this is par for the course in the democratization game, including here in the West. Democratization is always characterized by heightened levels of public participation, and at times this participation may result in massification that undermines rather than strengthens citizen rights and democratic institutions.

DKK: By massification, I assume you mean, not just popularization, but a sort of populism that can infuse democratic systems. As you know, there is an anxiety even among democratic theorists that thoroughgoing democracy—not quite radical democracy—in that sense, isn’t necessarily a good thing, insofar as there are popular formations that are primarily concerned to establish the authority of a particular mindset.

RH: That’s right. Indeed, I use the term to refer to a situation in which one sees, in whatever sphere—be it religion, politics, cultural life, the economy, etc.—heightened rates of popular participation, but without that participation necessarily being regulated or regularized by democratic or pluralism-embracing norms. So, massification can lead in some instances to democratization, but it need not: it can team up with highly uncivil and anti-pluralist movements or imaginaries. The challenge in any modern democratic system, then, is to take that heightened mobility and mobilization that characterize so much of modern society and canalize them in ways that reinforce a culture of democratic proceduralism and citizen rights for all. The history of mass politics in the mid-twentieth century West reminds us that the outcome of efforts like these is never a foregone conclusion.

DKK: You have written that Suharto had, at one point, sought out either moderate or even liberal Muslim leaders as he was trying to re-think what Indonesia was as a nation. And then he moved away from these moderates and liberals toward more conservative, traditionalist, and dogmatic figures. How do you explain this move? Would you ascribe Suharto’s shift in policy to anxiety about massification, and the anxieties about the loss of control?

RH: There were issues related to massification, but Suharto, actually, was a fairly effective administrator and, more importantly, a brilliant if at times ruthless tactician, a master of selective mobilization, which in many instances took the form of “divide and conquer.” As the Islamic resurgence gained momentum, in the mid-1980s, he realized that it posed a threat to his rule. Indeed, as one of his advisers told me in 1992, he looked at what had happened in Iran, and he realized that, for tactical reasons, he’d better engage the organized Muslim community more effectively. But his first tack, as you said, was to reach out to Muslim moderates, if you will—indeed, even Muslim liberals, such as a dear friend and teacher of mine, Nurcholish Madjid, who died a few years ago, and who was really one of the great thinkers of late twentieth-century Islam. So, Suharto first reached out to Madjid, as well as to other Muslim reformers who were linked to mass organizations, thinking that intellectuals and leaders of Muslim mass organizations would allow him to co-opt and control the Muslim community.

DKK: Normatively speaking, in terms of these moderate or liberal Muslim political theorists, what were they telling Suharto, particularly in contrast to the conservative views he sought out later on? I’m curious about that difference.

RH: What those leaders told Suharto is that he had to take steps to contain corruption, including that of his children, and to transition to a democratic political order. Nurcholish Madjid was quite explicit about this in his speeches and writings, though he was not a vociferous, street-fighting opponent of Suharto—other people, like Abdurrahman Wahid, the now-deceased head of Nahdlatul Ulama, and the man who was president of Indonesia from late 1998 to 2001, played a more complex and mass-politics game. Both men, however, spoke of the importance of free elections, a deepening of citizen rights, religious freedom, and civil society, and both too saw parallels between Indonesia and the earlier processes of democratization in Taiwan and Korea.

DKK: “Five Tigers.” That sort of rhetoric.

RH: That’s right. Indonesia has always been unusual in that, although it is the world’s largest Muslim-majority country, on matters of politics and economics many in the political class have looked as readily to East Asia as they have the Middle East for political and economic lessons.

In any case, because Madjid, Wahid, and others continued to press for democratic reforms, from about 1994 to 1998 President Suharto reached out to hardline Islamists who had earlier been his critics, and he succeeded in winning them to his cause by alleging that the democracy movement was really a kind of Christian-influenced organization, and that democracy itself was antithetical to Islam. But the great majority of Muslim leaders in the late 1980s and early 1990s had already concluded that constitutionalism and democracy were not merely compatible with Islam but required by the circumstances of modern life and politics.

To continue reading, click here for a complete transcript (pdf).—ed.

The 9/11 debate was centered on a single issue: Islam. Osama Bin Laden was taken at his own words by the West: Al-Qaeda, even if its methods were supposedly not approved by most Muslims, was seen as the vanguard or at least a symptom of “Muslim wrath” against the West, fueled by the fate of the Palestinians and by Western encroachments in the Middle East; and if this wrath, which has pervaded the contemporary history of the Middle East, has been cast in Islamic terms, it is because Islam is allegedly the main, if not the only, reference that has shaped Muslim minds and societies since the Prophet. This vertical genealogy obscured all the transversal connections (the fact, for instance, that Al-Qaeda systematized a concept of terrorism that was first developed by the Western European ultra-left of the seventies or the fact that most Al-Qaeda terrorists do not come from traditional Muslim societies but are recruited from among global, uprooted youth, with a huge proportion of converts).

The consequence was that the struggle against terrorism was systematically associated with a religious perspective based on the theory of a clash of civilizations: Islam was at the core of Middle East politics, culture, and identity. This led to two possibilities: either acknowledge the “clash of civilizations” and head toward a global confrontation between the West and Islam or try to mend fences through a “dialogue of civilizations,” enhancing multiculturalism and religious pluralism. Both attitudes shared the same premises: Islam is both a religion and a culture and is at the core of the Arab identity. They differed on one essential point: for the “clashists,” there is no “moderate” Islam; for the “dialogists,” one should favor and support “moderate” Islam, with the recurring question, what is a good Muslim?

Then came, just ten years after 9/11, the Arab Spring, in which Islam did not play a role, and the killing of Osama Bin Laden, whose death went almost unnoticed among Muslim public opinion. What about the “Muslim wrath”? Suddenly, the issue of Islam and jihad being at the core of the political mobilization in Muslim societies seemed to become, at least for a time, irrelevant. So what went wrong with the perception of the Western media, leaders, and public opinion? Was the West wrong about the role of Islam in shaping political mobilization in Muslim societies? Yes. The essentialist and culturalist approach, common to both the clash of and dialogue of civilizations theories, missed three elements: society, politics, and more astonishingly . . . religion.

In fact, three paradigms—social, political, and religious—have changed in Muslim societies over the last twenty years:

1. A new global generation — As Philippe Fargues showed some time ago, there has been a profound demographic change in the Arab world: the fertility rate has fallen dramatically (in Tunisia, it fell below the French rate after 2000), women have entered universities and the job market, young people marry later, there is more equality in couples (in terms of age and education), they have fewer children and are better educated than their parents, and nuclear families are replacing extended households. Cell phones, satellite TV, and the Internet have allowed these new generations to connect and debate on a “peer” basis rather than through a top-down authoritarian system of knowledge transmission. The younger generation is a peer generation and does not want to be strongly bound to a patriarchal society that has been unable to cope with the challenges of contemporary Middle Eastern societies.
2. A shift in the political culture — Being more individualistic, the members of this new generation are less attracted to holistic ideologies, whether Islamist or nationalist, and there is a sharp decline of interest in the patriarchal model embodied by charismatic leaders. The failure of political Islam that I pointed to twenty years ago is obvious; it does not mean that Islamist parties are no longer present on the political field—to the contrary—but that their Utopian conception of an “Islamic state” has lost credibility. The Islamist ideology is challenged either by a call for democracy, which rejects the claim of any party or ideology to have a monopoly on power, or by the “neo-fundamentalists,” or Salafis, who claim that only a strict personal return to the true tenets of religious practices could help to establish an “Islamic society.” Even among the Muslim Brotherhood, young members reject blind obedience to the leadership. The new generation calls for debate, freedom, democracy, and good governance. They are more patriotic than nationalist, and while the Palestinian issue still has an emotional impact, it is no longer at the core of political mobilization (a fact, by the way, that undermines the well-established cliché stating that, as long as the Israeli-Palestinian conflict remains unsettled, there will be no peace or democracy in the Middle East). The appeal of democracy is not a consequence of the exportation of the concept of Western democracy, as fancied by the supporters of the US military intervention in Iraq. It is the political consequence of a process of social and cultural changes in Arab societies, which, of course, is part of the globalization process. It is precisely because the Arab Spring is a succession of indigenous upheavals, centered on the nation and unlinked from Western encroachments (which, when they happen, come after and not before the movement, as in Libya), that democracy is seen as both acceptable and desirable. Consequently, the ritual anti-imperialist mottos and chants have disappeared from demonstrations (including the usual condemnation of Zionism as the source of all the problems of the Arab world). This explains why Al-Qaeda is out of the picture: the uprooted global jihadist is no longer a model and fails to germinate when he comes to enlist local militants for the global cause (Al-Qaeda has been expelled from Iraq by the local fighters), with the exception of the geographic fringes of the Arab world (Sahel, Somalia, Yemen). Al-Qaeda was part and parcel of the old anti-imperialist Middle East political culture: fighting the West first and never caring about real societies. It disappears with the dictators because they are two sides of the same coin.
3. A new religiosity — This is probably the least understood mutation. There were two recurrent premises underlying the debate on Islam: that democratization is linked with secularization and that this secularization process should go with a rise of a “liberal Islam.” So began the search for reformers, liberals, not to speak of a Muslim Martin Luther (the people who advocate a reformation of Islam in order to free it from fundamentalism, anti-Semitism, and gender prejudices apparently never read Luther). The visible re-Islamization of Muslim societies during the last thirty years (spreading of the veil, growing mosque attendance, Islamization of daily life, and so forth) seemed at odds with this supposed prerequisite, but in fact, it is far more congruent with a process of democratization than expected. Why? This wave of re-Islamization hides a very important fact: it has contributed to the diversification and the individualization of the religious field. Religion (theological corpus) did not change, but religiosity (the way the believer experiences his or her faith) did, and this new religiosity, liberal or not, is compatible with democratization because it unlinks personal faith from collective identity, traditions, and external authority. The usual religious authorities (ulema, or Islamist leaders) have largely lost their legitimacy in favor of self-appointed, and often self-taught, religious entrepreneurs. Young born-agains have found their own way by surfing on the Internet or joining local groups of peers: very critical of the cultural Islam of their parents, they have tried to construct their own brand of Islam. Religion has become more and more a matter of personal choice, ranging from Salafism to any sort of syncretism, not to mention conversions to other religions (see, for instance, the growth of an evangelical Protestant church among former Muslims in Morocco and Algeria). This individualization and diversification has had the unexpected consequence of disconnecting religion from daily politics, of bringing it back to the private, and of excluding it from the sphere of government management. As I tried to show in Holy Ignorance, fundamentalism, by disconnecting religion from culture and by defining a faith community through believing and not just belonging, is in fact contributing to the secularization of society (hence the bitter belief of any fundamentalist, from born-again Christian evangelicals to Salafi Muslims, that true believers are a minority, even if the surrounding society is nominally sharing the same religion).

All these changes gave way to what I called “post-Islamism” (the expression was first used by Asef Bayat)—it does not mean that the Islamists disappeared, but that their Utopia did not block social, political, or even geo-strategic realities. They have no blueprint for an “Islamic economy,” and although they run many charities in deprived neighborhoods, they tend to become socially conservative, opposing strikes and approving of the rescinding of agrarian reform in Egypt; they have never been able to articulate a coherent supranational program of mobilizing the “ummah” (the Islamic world), leaving the concept in the bloody hands of Al-Qaeda and standing in the Middle East in an uneasy status quo between the strategic ambitions of a supposedly Islamic, but Shia, Iran and Arab dictators (from Saddam Hussein to the Saudis) who claim to protect the Sunnis from the “Shia threat.” They favor elections because they do not support armed struggle even when unable to strike a deal with authoritarian regimes, but they are uneasy about sharing power with non-Islamic groups and turning their “brotherhood” kind of an organization into a modern political party. They have not given up formal support for sharia (except in Tunisia and Morocco) but are unable to define a concrete ruling program that would go beyond banning alcohol and promoting the veil or some other petty forms of shariatization.

After the Arab Spring, which started outside their ranks, the Islamists have choices to make. The first option would be the “Turkish model” (the AK Party): turning the “brotherhood” into a true modern political party, trying to rally a larger constituency than hard-core devout Muslims, recasting religious norms as more vague conservative values (family, property, work ethic, honesty), adopting a neoliberal approach to the economy, and endorsing a constitution, a parliament, and regular elections. Another option would be to ally with “counterrevolution” forces for fear of a real democracy that they are not sure to control, but they thereby risk losing their remaining legitimacy, as in Egypt, where they might be instrumentalized by the army. They may also side with the Salafis by calling for an Islamization that would center on certain isolated issues (veil, family law), the same way Christian conservatives in the West are focusing on abortion and gay marriage while ignoring other social and economic issues.

Whatever the political ups and downs, the diversity of the national cases, the foreseeable fragmentation of both “democrats” and “Islamists” into various trends and parties, the main issue will be to redefine the role of, and the reference to, Islam in politics. The de facto autonomization of the religious field from political and ideological control does not mean, once again, that secularism is necessarily gaining ground. What is at stake is the reformulation of religious reference in the public sphere. There is large agreement on inscribing in constitutions the “Muslim” identity of society and of the state; there is also large agreement on the fact that sharia is not an autonomous practical system of law that could be implemented from above and replace “secular” law.

As I’ve described, modern forms of religiosity tend to stress individual faith and choices over conformity to any sort of institutionalized Islam. The old motto “in Islam, no separation between religion (din) and worldly issues (dunya)” already turned a long time ago from an academic statement to mere wishful thinking, but it has been definitively undermined by the Arab Spring. What we see, more than secularization, is a deconstruction of Islam, torn between some sort of a cultural identity (there could be, in this sense, “atheist Muslims”), a faith that could be shared only by born-again believers (Salafis) in the confines of self-centered faith communities, or a “horizon of meaning” where references to sharia are more virtual than real.

The recasting of religious norms as values helps also to promote an interfaith coalition of religious conservatives that could unite around specific causes—opposition to same-sex marriage, for instance. It is interesting to see how, in Western Europe, for example, secular populists tend to stress more and more the Christian identity of Europe, while many Muslim conservatives try to forge an alliance of believers to defend shared values. In so doing, many of them tend to adopt an evangelical Protestant agenda, fighting abortion and Darwinism, both issues that have never been relevant in traditional Islamic debates. In this sense, modern neo-fundamentalists are trying to recast Islam as a kind of Western-compatible religious conservatism, a fact that is obvious in Turkey, where, in 2004, the prime minister, Recep Tayyip Erdoğan, tried to promote an anti-adultery law that defined adultery not in terms of sharia but by reference to the modern Western family (a monogamous marriage of a man and a woman with equal rights and duties, thus making the custom of polygamy, not uncommon among traditional AK local cadres, although illegal since 1926, more clearly a crime). Islam is thus part of the recasting of a religious global market disconnected from local cultures.

Such an evolution is completely inconsistent with the image of Islam that is constructed and spread by populist movements in the West. In fact, as far as the West is concerned, the main legacy of 9/11, which will survive the “War on Terror” and the death of Bin Laden, is the rooting of Islamophobic populist movements in Western Europe and the United States. These movements have fully borrowed and legitimized the clashist theory: Islam is construed as the enemy of an otherwise elusive “Western” identity. Even populist movements born of a different set of grievances (Lega Nord in Italy, the Tea Party in the United States, the Vlaams Belang in Belgium) have endorsed Islamophobia as one of their main battle cries. It is no surprise that they all dismissed the Arab Spring as irrelevant and don’t acknowledge the way Muslims, both in their native societies and in the West, are recasting their faith into global forms of religiosity. Interestingly, the debate on Islam in the West raised the same questions as in the Middle East: Is religion first a faith or first an identity? Is the crucifix in Italian classrooms just a cultural symbol of national identity or the symbol of the sacrifice of Christ for sinners? The debate about the role of religion in the public sphere should be conducted beyond the clichés of Orientalist essentialism by acknowledging the transversal dimension that connects all the great world religions in their endeavor to find a balance between faith and identity, religion and culture, individual quest and collective belonging, and territorialization and globalization. In this sense, there is neither an Arab nor an Islamic exceptionalism.

Ten years later, we may be soberly contented with the assassination of Osama Bin Laden, but the Hydra-like al-Qaeda remains a continued threat, with figures such as Ayman al-Zawahiri eluding detection. Regions of Afghanistan are on the verge of falling back into Taliban control. Iraq remains a post-conflict society still hoping to transition to a semblance of ordered government. To make matters worse, the end of the Bush Administration heralded yet a new challenge to Americans—the onset of a major recession that has led to setbacks for American industry and manufacturing, high unemployment rates, and bank foreclosures on the American dream. Ten years after 9/11, Americans cope with insecurity in their day-to-day welfare at home, while contending with continued warnings of an ominous threat of violence from abroad. With all this insecurity, it is perhaps quite predictable that features of the national discourse posit a crisis of existential proportion, hitting the very fabric of our being as a nation and a people.

Simply to posit that there is a crisis is not enough; a crisis begs to be resolved, to be stymied, to be put right once again. To do that, though, requires identifying and locating the source of that crisis. With al-Qaeda both everywhere and nowhere, and the challenges in Afghanistan and Iraq too complex for most of us to understand, our attention turns to the nearest, most apparent and obvious site that represents that threat.

In Europe that site has become the covered Muslim woman. Rightly or wrongly, the ethos of many European nations is construed in terms of customs, values, and ideals that are given pedigrees extending back to the medieval period. The covered Muslim women, walking amidst the relics adorning the streets of Europe, represents a roving threat to that history, which grounds the ‘general spirit’ of these nations, as Montesquieu might say.

For instance, when Switzerland held a constitutional referendum to ban minarets in the country, the propaganda posters supporting the amendment depicted the image of a niqab-clad, ninja-like Muslim woman standing next to missile-like minarets atop the Swiss flag. More recently, France has gone so far as to ban niqabs entirely, as if by doing so it can thwart the threat posed to its values of liberté, egalité, and fraternité, as long as liberty and equality do not include the freedom of all women, Muslim or not, to dress as they choose. The covered Muslim woman, of course, is not the real threat. Rather, the threat is what she is made to represent—she is not the enemy; the enemy is a tradition that makes her veil in the first place.

Across the Atlantic, the existential threat to the wellbeing of the United States is felt in a different way. The national ethos of European nations draws upon a depth of history that is not part of the American story. America, so to speak, was birthed by an act of revolution, its general spirit inked on parchments to which all can bear witness at the National  Archives in Washington D. C.—the Declaration of Independence and the Constitution of the United States. In the one, a revolutionary spirit of birth and redemption. In the other, a blueprint to nurture that spirit through the institutions of government and law provided therein. Consequently, it is hardly surprising that the current insecurity of the nation—its existential threat—is identified as  a tradition that is made to stand for everything America is not, namely  Islamic law. Islamic law (called Shari’a in Arabic), more than any particular Muslim man or woman, represents the enemy within, the terror threat that—as security analysts, politicians, and legislators across the country have proposed—should be stymied to put America on the right course once again.

Securocrats, Shari‘a, and the Threat to America

In a 2010 report issued by the Center for Security Policy entitled The Shari’ah: The Threat to America, a team of security experts expressly reprimanded official government policy on Muslims and Islam as naïve and foolishly politically correct. The team was comprised of 19 security specialists and retired military personnel led by Lt. Gen. William Boykin (ret) and Lt. Gen. Harry E. Soyster (ret). Boykin had been Deputy Undersecretary of Defense for Intelligence, and Soyster had been Director of the Defense Intelligence Agency. Other notable figures on the team were R. James Woolsey, former Director of the CIA; Frank J. Gaffney, former Assistant Secretary of Defense for International Security Policy; Admiral James Lyons (ret), former commander-in-chief of the Pacific Fleet; and Maj. Stephen Coughlin (res), formerly a senior consultant to the Office of the Joint Chiefs of Staff. Importantly, the report reflects the work of a team of ‘securocrats’—most of whom are retired or working in the private sector—who view the world through the narrow lens of national security and threat assessment.

The Boykin-Soyster team spent months studying and assessing the “preeminent totalitarian threat of our time: the legal-political-military doctrine known within Islam as shariah.” As a professor of Islamic law, this author can attest that it is absurd to think that a team of security and military experts could study in any comprehensive fashion a centuries-old tradition in a matter of mere months. Admittedly, the purpose of the Boykin-Soyster team had little to do with understanding Shari’a or its varying significance to Muslims worldwide. Rather, their express aim was to apply official US threat assessment doctrine to the Shari’a.

The doctrine on threat assessment requires an analysis of the precepts our enemies use to justify their attacks against us. Whether that assessment is “accurate, appropriate, or even identifiable with ‘genuine’ Islam is wholly irrelevant.” For securocrats like the Boykin-Soyster team, if the enemy who attacks and kills Americans “refers to and relies on this doctrine to guide and justify his actions, then that is all that matters in terms of the enemy threat doctrine US civilian and military leaders must roughly understand and orient upon for the purpose of defeating such foes.”  In other words, the study is not, nor does it aim to be, an accurate depiction or representation of Shari’a. Rather, it views certain aspects of the historical tradition through a doomsday lens of American security policy.

Certainly, I can appreciate the desire to examine and understand the doctrines that our enemies invoke to justify their violence against us. It makes sense to want to know what our enemy thinks and how he justifies his attacks against us. If that were the only aim of the study, then admittedly, it’s hard to find fault with that approach.

However, the problem is that the report attempts to go further. The Boykin-Soyster team concludes that since our enemy cites doctrines from within the rich tradition of Shari’a, then Shari’a (whatever that might be) is the problem. “Shariah is the crucial fault line of Islam’s internecine struggle.” Indeed, in a particularly rhetorical passage, the report proclaims: “7th Century impulses, enshrined in shariah, have reemerged as the most critical existential threat to constitutional governance and the freedom-loving, reason-driven principles that undergird Western civilization.”

The troubling implication of this position is that if the Boykin-Soyster version of Shari‘a poses an existential threat to our constitutional governance, and if Muslims within the United States adhere to Shari‘a, albeit their own versions, it necessarily follows that there are enemies among us. But how do we identify the enemy among us without simultaneously casting indiscriminate aspersions against all Muslims in America? In France, the enemy is targeted by constraining what Muslim women can wear. In the United States, the Boykin-Soyster team proposes that the enemy can be identified by examining any given Muslim’s attitude toward so-called Shari‘a. The Boykin-Soyster team goes so far as to say that “conformance to shariah in America constitutes as great a threat as any enemy the nation has ever confronted.” The greatest enemy to America, therefore, is no longer the ever elusive al-Qaeda. It is not the Taliban, with whom we are beginning negotiations over the future of Afghanistan. It is not Iran, despite our best efforts to prevent their nuclear capacities. Rather, the greatest enemy to the United States is our Muslim neighbors who adhere to Shari‘a.

What follows from this threat assessment? As various Republican state legislators demonstrated in January 2011, one response is to legislatively ban any and all recourse to Shari‘a in our legal system. Indeed, a Tennessee Bill introduced by state senator Bill Ketron and state representative Judd Matheny initially proclaimed: “The knowing adherence to sharia. . . is prima facie evidence of an act in support of the overthrow of the United States government. . . by the likely use of imminent criminal violence and terrorism with the aim of imposing sharia on the people of this state [Tennessee].” The Tennessee bill has since been amended to remove all references to Shari‘a. Nonetheless, the legislative bills and statutes that have targeted foreign law, international law, and Shari‘a law share a peculiar animating characteristic: they all seek to prevent the onset of ‘other’ legal traditions from threatening the ongoing existence of the American spirit as found in its legal tradition. The titles of these bills evince a crisis of existential proportion, such as Oklahoma’s “Save Our State Amendment.”

At the time of writing, approximately seventeen states have either proposed or passed legislation aimed at banning Shari‘a, or in less direct fashion, ‘foreign law.’ The bills beg a variety of questions, not all of which can be addressed herein. I will divide the bills into three categories. The first category includes bills that refer to Shari‘a (and notably international law) specifically. The second category includes bills with language and structure that mirror the model statute promulgated by lawyer David Yerushalmi in his special continuing legal education course entitled “American Laws for American Courts.” The third and final category is composed of bills calling for a ballot initiative to amend state constitutions.

An American Existential Crisis?

The first set of bills includes those that take issue with both Shari‘a and international law. These bills either amend existing state statutes, or provide ballot initiatives in an upcoming general election to amend state constitutions. The states with such bills include Arizona, Missouri, Oklahoma, Tennessee, and Wyoming. Other bills in this category do not specifically mention Shari‘a, but instead make reference to ‘foreign religious or moral’ codes or ‘religious or cultural law’ (S. Dakota, Texas), though comments from the bills’ sponsors, such as Texas legislator Leo Berman, make evident that fear of Shari‘a is at the heart of the matter.

The pairing of Shari‘a and international law suggests that these bills cannot be easily reduced to mere hostility to Islam. These bills ban both Shari‘a and international law, identifying the latter with institutions of global reach and significance such as the UN, European Union, IMF, or World Bank (Arizona, Missouri, Oklahoma, South Dakota, Wyoming). Shari‘a may offer the site of greatest polemic and fear, but its pairing with international law betrays a deeper fear and anxiety that has swept the American legislative sphere.

If we accept that the general spirit of America is made manifest in its founding documents and the democratic processes that arise therefrom, then recognition and enforcement of a legal tradition that does not bear the vestiges of an American democratic process strikes at the heart of our national identity. In other words, the more American law represents the general spirit of the nation, the more it must be protected from external influences. If we accept this logic of existential crisis, to allow external, foreign sources of law to infiltrate our legal system would be tantamount to national death. In his recent book Political Theology, Paul Kahn of Yale Law School observes that Americans remain reluctant to make domestic space for international law, especially if that might mean displacing our own law. As Kahn writes, “Americans have a problem imagining international law: if law is an expression of popular sovereignty, how can a system of norms that has no source in that sovereign constitute law?”

International law is not simply a source of alternative legal doctrines. Its claim to authority runs counter to the popular revolutionary fervor that made the general spirit of the nation possible. To introduce international law into American courts, given the logic of existential crisis, would be to betray the popular, representative, democratic spirit that made the American sovereign state possible. The founding revolutionary history consecrated America, giving it a sanctity that reverberates in almost religious tones. Indeed, Kahn writes that the “state creates and maintains its own sacred space and history.” If that is so, then any foreign influence on American institutions and law is tantamount to an impurity that threatens to contaminate the foundations of the state. International law is such an impurity. When juxtaposed with international law, Shari‘a appears as simply a more extreme, undeniable threat to our nation’s general spirit, given the attacks on 9/11. Today’s American political imagination gives the state a sacredness and sanctity that many today believe is under threat from external forces, and which demands vigilance lest we let pass the death of the state itself. To ban Shari‘a and international law in a legislative enactment is to use the rituals of domestic law to exorcise the general spirit of the nation.

Regulating ‘Foreign Law,’ Staging Legislative Theater

The second category of bills makes no mention of either Shari‘a or international law. These bills only regulate the use of ‘foreign law’ to govern a dispute between parties to a contract, where the contract stipulates that foreign law governs. The bills generally provide that, despite a commitment to freedom of contract, such freedom is and can be limited if it means applying a ‘foreign law’ that would not grant the parties the same liberties they enjoy under the US constitution and the relevant state constitution. The bills authorize judges and adjudicators either to ignore the choice of foreign law or even to invalidate the entire contract if necessary. Bills that fall into this second category have been introduced in Alaska, Indiana, Kansas, Mississippi, Nebraska, South Carolina, and South Dakota. Tennessee already passed a similar bill in 2010.

Importantly, choice-of-foreign-law provisions are not unusual in contract disputes. Their proliferation attests to the influence of globalization on American corporations and manufacturers. Perhaps for that reason, the bills do not (and could not) go so far as to outright ban recourse to foreign law in any and all cases. Not only would such a blanket ban run afoul of the freedom to contract, but it would also straight-jacket American businesses operating internationally. Furthermore, it’s not clear if the proposed legislation will have much effect. They only limit recourse to foreign law when the foreign law would not grant the ‘same’ rights provided by federal or state constitutional rights regimes. But what does ‘same’ mean, given that no two legal systems are ever identical? The language of ‘sameness’ creates considerable space for judicial interpretation at the interstices of different legal systems.

Ironically, despite their silence on Shari‘a, this particular category of bills is premised upon a particularly visceral reaction against Shari‘a as a threat to the nation. Despite the neutral tone of the phrase ‘foreign law,’ a historical analysis of these bills reveal that they are very much directed against what some have called the ‘creeping’ influence of Shari‘a in American courts. Indeed, this depiction of Shari‘a has become part of the Republican presidential primary contest.

A close reading of the bills reveals a rather startling coincidence: they are nearly identical in terms of structure, organization, and wording. Of course, this is no mere coincidence. The bills take as their model a proposed draft bill available online at the website of attorney David Yerushalmi’s continuing legal education course entitled “American Laws for American Courts.” A comparison of Yerushalmi’s draft bill and those  introduced in state legislatures around the country shows that the state legislatures virtually copied Yerushalmi’s draft bill from his webpage. On that same webpage, Yerushalmi explains his motivation for proposing such legislation: “The essence of this draft legislation is to provide a baseline law that provides a statutory framework for precluding constitutionally objectionable foreign laws and legal systems from finding their way into the state judicial system. One example of an offending transnational law is sharia—authoritative Islamic law that is applied as the law of the land in many countries around the world. ” The legislators who have sponsored the Yerushalmi Model Bill have parroted the same argument to explain the purpose of their bills, in some cases even poaching the language word for word, as in the case of Alaska’s Rep. Carl Gatto.

So who is David Yerushalmi? He is a lawyer in Washington, D.C. specializing in national security law. He is also general counsel to the Center for Security Policy, which published The Shari’ah: The Threat to America. In fact, Yerushalmi was a member of the Boykin-Soyster team that authored the report. Many have speculated about Yerushalmi’s motivations: the Anti-Defamation League has held him out as holding hostile views against Muslims, blacks, and immigrants, while he vigorously defends his actions on his website SANE (Society of Americans for National Existence). While many debate Yerushalmi’s motives, what remains clear is his trenchant hostility to his version of Shari‘a. Critical of Shari‘a compliant financing, for instance, he complains in an unpublished paper that international financial institutions do not adequately appreciate the violence and criminality that he believes are endemic to Shari‘a. As a warning to finance executives offering Shari‘a-compliant financial products, Yerushalmi asserts that to be oblivious to the underbelly of Shari‘a, namely “its intimate connection to Islamic terror and holy war against the non-Muslim world[,] amounts to corporate recklessness.” Legislators across the United States have willy nilly sponsored bills that they cribbed from the website of an individual who, far from having recognizable scholarly credentials in the field of Islamic law and history, is a well-known conservative securocrat in the Washington beltway.

Angst and Identity in Law and Politics

The final category of bills goes beyond mere changes to state statutes. They call for a popular referendum to amend state constitutions. The proposed amendments vary from state to state. The 2010 Oklahoma amendment proposed that “courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international law or Sharia Law.” The same language appears verbatim in Missouri’s proposed amendment, and in slightly modified form in Wyoming’s. The Texas amendment does not specifically mention Shari‘a; instead it reads: “A court of this state may not enforce, consider, or apply any religious or cultural law,” though, as noted above, its sponsor Leo Berman identifies Shari‘a as the amendment’s prime target. South Dakota goes one step further and states: “No such court may apply international law, the law of any foreign nation, or any foreign religious or moral code with the force of law in the adjudication of any case under its jurisdiction.” The reference to “foreign religious or moral code” is curious—on the one hand being neutral, yet on the other hand begging questions about how a religion can be ‘foreign’ in a country like the United States, whose population represents the religious diversity of the globe. Indiana’s proposed amendment draws almost entirely from the Yerushalmi Model Bill already discussed.

By proposing to amend the states’ constitutions, these bills are designed to shield the heart of the states’ legal systems from external influence, thus manifesting the logic of existential crisis. The problem, though, is that they may very well violate other constitutional protections. For instance, Oklahoma voters approved the proposed amendment in 2010. But a federal court viewed the amendment as violating the Constitution and enjoined its effect. The court reiterated that the First Amendment requires the government to avoid both endorsing and disapproving a religious tradition, such as Shari‘a. The Oklahoma amendment, the court held, denounced Shari‘a, and thereby demeaned the Americans who adhere to it.

Knowing the outcome of the Oklahoma referendum, other states will nonetheless submit their own proposed amendments for voter approval in the next general election. For Texas, that election will be held in November 2011. For Missouri and Wyoming, the election will be in November 2012, on the same ballot as the election for President. That contest will presumably pit the incumbent President Barack Obama against a yet-to-be determined Republican candidate. At a time when the United States is divided between red states and blue states, when ‘birthers’ have questioned the Americanness of President Obama, when nearly 20% of Americans believe President Obama to be Muslim, and when Republican candidates such as Michelle Bachmann pledge to oppose Shari‘a, various states will feature a referendum that makes Islam, Shari‘a, and the ‘foreign’ threat to America a key point of political contestation. From a political perspective, it matters little whether the ballot measures pass or not. They will at the very least provide the necessary kindling for a political firestorm about American identity, American existence, and the enemy among us.

Securitization and the Threat to American Political Culture

Targeting President Obama and now Shari‘a are simply two different manifestations of an angst that plagues many sectors of the American political landscape. That angst is the legacy left by 9/11. Ten years later, in a state of insecurity and with terrorist leaders eluding our detection, it is easy if not natural to want to make sure our own borders are secure from both external and domestic aggressors. Yet, identifying who the threats are and deciding what to do with them are entirely different matters. For securocrats, the doctrine of threat assessment is their playbook, and the logic of existential crisis is all they need to transform the trauma of 9/11 into a cancerous securitization of political culture and debate. As legislators across the country sponsor and support bills that fall into one or more of the above categories, they exacerbate the logic of crisis and the culture of securitization on the basis of ‘research’ and rhetoric that have no pretensions to being responsible, exhaustive, or scholarly. Considering together the Boykin-Soyster study, the Yerushalmi Model Bill, and the logic of existential crisis, we can appreciate (and rightfully worry about) how legislative branches are slowly becoming the new theater of a war managed by securocrats who are politically accountable to no one.

According to many liberal theories, expressions of religious citizens are acceptable in the public sphere so long as they do not influence formal law-making and are expressed in an appropriate public venue. But the political reality is actually more complex and reveals a narrowing or even complete disappearance of public spaces in which religious expression is possible. Talal Asad explains this contradiction by engaging in a Foucauldian deconstruction of public space. Asad’s approach to secularism is particularly helpful for explaining the current debate on Islam in Europe, though it nonetheless requires some additional nuance and further contextualization.

Unlike the liberal theoreticians John Rawls and Charles Taylor, Asad does not see the secular public sphere as a neutral, shared space composed of different voices that accept and abide by the same principles or ethics of citizenship. Instead, he defines the private/public divide as embedded in a heterogeneous landscape of power. From the beginning, in Asad’s view, the “liberal public sphere” has excluded certain kinds of people: women throughout the nineteenth and twentieth centuries, the poor classes, immigrants, religious groups, and others.

In the same vein, Dominique Colas analyzes the fight between Iconoclasts and the Catholic Church in the sixteenth century and observes elements relevant to the concerns raised by Asad: the power of the state is employed to violently crush movements that refused to accept the limitations placed upon their religious claims in the broader public realm. Colas clearly illustrates that the concept of tolerance in the “civil society” of the sixteenth century was not a neutral force. Those who refused to accept the limitations for social behavior and expression were labeled “fanatics” and harshly punished. “Fanaticism,” as defined by Colas, is precisely this refusal to accept the duality of the public and private realms of the social order.

The tension between civil authority and the particular cultural and religious norms of minority communities is the crucial issue in the debate over the definition of “secularism.” In twenty-first century Europe, it is important to understand the public sphere as, not only a disembodied voice, but also a product of the media as well as state-mediated discourses. During the cartoon crisis, for example, alongside Muslims protesting expressly against blasphemy, several made use of secular arguments that could, in principle, have been received in the public sphere, but were rejected because of the asymmetrical balance of power between European establishments and the growing—and increasingly assertive—Muslim minority. Some, for example, utilized arguments similar to those concerning the prevention of hate speech (as it is guaranteed by most European states), holocaust denial, and incitement to violence. Regardless, unconsidered perceptions of Muslims based on a stigma of extremism often prevent rational consideration of expressions that are legitimate within European legal systems.

In the same vein, the rallying of European Muslims who wanted to ban The Satanic Verses and murder its author, Salman Rushdie, has been seen by some prominent advocates of minority rights as an important example of a religious and cultural minority attempting to introduce restrictions that are unacceptable, given that they undermine individual autonomy. Charles Taylor, for instance, considered the demand that The Satanic Verses be banned to be illegitimate. Michael Walzer, well known for his relativist approach to values, took a hard-line liberal position to defend Rushdie against his detractors, arguing that immigrants, by their very choice of immigrating to Europe, have chosen to adopt the tenets of Western liberalism and should therefore conform to them.

On the other hand, many of those in Europe who champion multiculturalism, such as Tariq Modood and Bhikku Parekh, have criticized such positions, explaining that it is a mistake to see the fight against apostasy as British Muslims’ key motivation. Instead, they explain the protests of Muslim leaders as evidence simply of their desire to include Islam under the British Blasphemy Law that, before its repeal in 2008, was strictly limited to Anglicanism. These examples of the divergent ways in which Muslims make claims on and in the secular public sphere highlight the limits of the “overlapping consensus” view and suggest an imbalanced relationship of power between a specific religious group and the representatives of civil authority.

An important question raised by the Muslim presence in Europe is how the protection of specific subcultures can promote, rather than stifle, individual emancipation. Will Kymlicka offers one possible way to reconcile the two conflicting demands: “If we simplify to an extreme, we can state that minority rights are compatible with cultural liberalism when a) individual freedom is protected within the group, and b) they promote equality, and not domination, between groups within the different European societies.” Sometimes, however, Islamic groups collectively appeal for rights that would, in effect, limit individual freedom. The Rushdie Affair and the call to ban The Satanic Verses are illustrative of such dilemmas.

A different—and contradictory—example of the tension between civic order and the Islamic community, on which the rest of this article will focus, concerns the recognition of Islamic Law within existing legal systems. In order to bring nuance to Asad’s interpretation of secular space as simply a hegemonic regime, the examples that follow will show that representatives of civil authority do, in fact, try to foster equality and tolerance among European citizens of different cultures.

Contrary to the widespread belief that Muslims in the West seek the inclusion of shari’a statutes in the constitutions of European countries, most surveys show that Muslims are quite satisfied with the secular nature of European societies. When Muslims agitate for change, they engage in the democratic process, utilizing mainstream parties and institutions. At the same time, their acceptance of secular practices does not mean that they renounce the use of Islamic principles and legal rules to guide or structure their daily lives. In a study funded by the Sixth European Union Framework Programme, which convened 50 focus groups of Muslims in London, Paris, Berlin, and Amsterdam, I clearly observed this tendency: for example, many Muslims expressed a strong attachment to religious, rather than civil, marriage and divorce.

We examined the literature and jurisprudence of several key European countries in order to ascertain the arguments used by the courts and by Muslims respectively when conflicts arise. The plethora of national laws in Europe and the diversity among Muslim groups makes comparison difficult, but we found a general trend of European countries recognizing foreign civil law. In countries like France, Belgium, Italy, and Spain, the law distinguishes between national and foreign jurisprudence, allowing residents to act in accordance with their own national laws. In these cases, the country of residence may apply a discriminatory foreign law. For Muslims, Islamic laws on marriage, divorce, and custody may differ according to their school of thought (Hanafi, Shafi‘i, Maliki, Hanbali, etc.) or country of origin (Pakistan, Algeria, Morocco, etc.). Furthermore, in some countries—like Tunisia, Turkey, and Morocco—the family law has been secularized and respects, in theory, the principle of equality between men and women. However, these reforms do not always prevent the continuance of customs that can be discriminatory toward women and that can often be presented as “Islamic.” One example is the recent divorce case of a Moroccan couple, brought before the French courts, in which the husband appealed for divorce on the grounds that his wife was not a virgin at the time of their marriage.

Similarly, participants in the focus groups highlighted the difficulty they faced in trying to express their indignation during the Danish cartoon affair. They were bothered less by the representation of the Prophet Muhammad itself than by the fact that he was depicted as the quintessential figure of violence. The participants felt that their disapproval of the cartoon was interpreted by their fellow citizens as unpatriotic, while they themselves did not consider such opinions to be incompatible with their European citizenship. The same discrepancy emerged in some groups with regard to issues of dress code and, specifically, the hijab, the wearing of which is considered unpatriotic in some European places, while it obviously has a very different meaning for many Muslim women. We see a further manifestation of this issue in the recent case of a fully veiled Moroccan woman who was denied French citizenship in 2008 on the grounds that wearing the niqab was incompatible with French values. And the same suspicion of anti-civicism or anti-patriotism can be discerned in the debate on the construction of minarets in Switzerland.

When we turn to the shari’a debate, Kymlicka’s two conditions come under intense scrutiny. Our research corroborates the Gallup polls’ findings showing the acceptance of secular orders by the majority of Muslims in Europe. In fact, not one of the focus group participants expressly rejected European secular principles. Nevertheless, such acceptance does not preclude tension between, for instance, Islamic practices of marriage, divorce, and child custody and the principle of individual freedom under secular civil law. In legal practice, the question of whether to take Muslim family law into account in the regulation of daily life is bound to the condition that these laws meet the criteria prescribed by human rights and fundamental liberties. Therefore, due to inequality between men and women, acknowledgment of Family Law codes imported from some Muslim countries appears as a hindrance to the process of integrating Muslims, to the point that some compare the situation to a conflict of civilizations. There do exist fringes of the Muslim population across Europe that reject the paradigm of secular civil law and act violently in ways that strongly prejudice Europeans’ perceptions of Islam and Muslims. However, the silent majority of European Muslims already accept Islam’s compatibility with the basic precepts of human rights.

The second condition advanced by Kymlicka, promoting the equality of cultures, is also problematic, since Islam as a religion and culture is still perceived as alien to Europe. Promoting equality between cultures involves redefining public culture and the status of Islam within the public space at the level of both nation-states and the European Union. However, some claims on behalf of Islamic culture in fact champion the European conception of human rights, by arguing, for example, that laws banning religious symbols from French public schools are contradictory to the European notion of fundamental rights.

Because of these complex circumstances, we find different and sometimes contradictory attitudes among Muslims toward European secular laws. As mentioned previously, complete rejection of secular law is rare; more commonly, objections are targeted specifically at elements of French secularism. But complete acceptance of European civil law is also rare. Among focus group participants, a preference for Islamic prescriptions for family organization was clearly expressed, especially in the European context. However, the extent to which these prescriptions are taken to heart varies greatly according to gender, age, and education. For example, educated Muslim women tend to adopt a more individualized attitude toward family law, requesting greater equality between men and women. On the other hand, less educated men tend to remain closer to some cultural traditions inherited from their countries of origin.

In short, the majority of European Muslims acknowledge the compatibility of Islam with the basic tenets of human rights, although there are still parts of the Muslim population in Europe who reject this paradigm. For example, a group called Islam4UK, which emerged in autumn 2009 in Great Britain, demands the enforcement of shari’a. It is also significant that Islamic parties have recently emerged on the political scene in Germany and the Netherlands.

Surprisingly, this reconciliation between Islamic principles and secular regimes has often been conducted in an indirect way through decisions by European judges rather than Islamic legal experts or Muslim theologians. Consequently, a slow and “invisible” form of personal Islamic law is being constructed and adapted to Western secular laws. Of course, European judges do not claim Islamic authority, but the fact that Muslim theologians do not contest their decisions, and sometimes even endorse them, illustrates the law’s adaptation. The contours of this evolution remain to be defined, depending on the country and the Islamic group concerned.

These results, derived from survey research of European Muslims, clearly demonstrate the core deficiency of Asad’s view of secularism: it fails to adequately recognize the complexities of political interactions that occur between disparate stakeholder communities. Craig Brittain correctly states, “It is one thing to argue for the legitimacy of religious adherents to publicly voice their particular worldviews; it is quite another matter to suggest that such voices be granted equal argumentative weight, without mediation, in public debate.”

SECULARISM AS A TRAGIC CATEGORY

Interestingly, Talal Asad has perceived the tragic character of secularism, especially in his interpretation of Benjamin’s Ursprung des deutschen Trauerspiels. Incidentally, it may contradict his tendency to reject the category of secularism as an instrument of power and domination: “This world is ‘secular’ not because scientific knowledge has replaced religious belief (that is, because the ‘real’ has at last become apparent) but because, on the contrary, it must be lived in uncertainty, without fixed moorings even for the believer, a world in which the real and the imaginary mirror each other. In this world, the politics of certainty is clearly impossible.”

Such a perception of secularism can help religious theorists address Asad’s principal concern that the concept functions with an overly Westernized bias against non-Western religions. It echoes at the level of what Charles Taylor calls “the third meaning” of secularism, namely, the fact that believers exist in a world in which their beliefs are continuously challenged by other values. The challenge of being able to believe without feeling threatened by others’ beliefs came across very strongly in the focus groups when participants were asked about relationships with non-Muslims and tolerance vis-à-vis apostasy. No real consensus emerged on these issues, but the discussion highlighted a clear divide between the perception of the virtuous Muslim as one who values the moral commitment of the Ummah above all others versus one who lives according to Muslim principles but maintains a certain sense of relativism. This question forms the core of a book by Chief Rabbi of England Jonathan Sacks that led to an intense and controversial debate in the UK six years ago, and represents the most salient challenge to the status of Muslims in Europe or the United States: how can one maintain one’s sense of the Islamic truth and simultaneously acknowledge the truth of others?

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.

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).