March 8th, 2011
by Perry Dane
Review of Islam and the Secular State: Negotiating the Future of Shari‛a by Abduallahi Ahmed An-Na‛im (Cambridge, MA and London, England: Harvard University Press, 2008) 336 pages
Abduallahi Ahmed An-Na‛im’s Islam and the Secular State is a complex, even unruly, book whose many strands I can only begin to tease out in this review. The book rests, however, on a single, sustained, thesis – that Islamic societies need, for their own good, to establish “secular” states that are “neutral regarding religious doctrine” and do “not claim or pretend to enforce Shari‛a – the religious law of Islam” (1). An-Na‛im seeks to build his case for Islamic secular states on a specifically “Islamic argument” (vii). His “Islamic argument” does not, however, engage in extended efforts to interpret, or reinterpret, traditional religious texts. In that sense, it differs from some other efforts to construct democratic and latitudinarian Islamic political and legal theories.[i] Nor does An-Na‛im’s book try to put Islamic and Western ideas about secularism and modernity in a nuanced conversation with each other.[ii] Instead, An-Na‛im weaves together a set of normative arguments and reflections with historical accounts and some sociology and political science. He is often insistent, even polemical, but also frank about the loose threads and “paradoxes” in his argument. The result is not airtight. It is sometimes frustrating. But it is also evocative and compelling.
An-Na‛im’s first “Islamic argument” for a secular state is that a believing Muslim can only “be a Muslim by conviction and free choice” (1). “Religious compliance must be completely voluntary according to personal pious intentions” (4). Therefore, when the coercive power of the state tries to enforce Shari‛a, it is actually hindering Islamic religious life. Another argument, developed later in the book, is that only a secular state can both safeguard and referee pluralism in heterogeneous societies and ensure “peace within or between religious communities” (276).
Both these planks – the argument from piety and the argument from peace – echo the commonplaces of the move to the secular state in Western Christendom that began several hundred years ago, as found in the often explicitly religious arguments that John Locke, Roger Williams, James Madison, and many others made in the Christian context. The two cases are crucially different, however. To begin with, the Christian argument for the separation of faith and political authority, though it took a long time to develop, was already immanent in Christian thought. Augustine wrote about the “two kingdoms.” The 11th century battles between popes and emperors ended up reinforcing at least a formal division between the religious and secular realms. Even at Christianity’s beginning, Jesus distinguished between “the things that are Caesar’s” and “the things that are God’s.” In Islam’s founding moment, however, the prophet Mohammed manifested, and established a model for, an ideal “combination of religious and political authority” (p. 53).
There is another crucial difference between the Christian and Islamic cases. An-Na‛im seeks both the separation of the state from religion and the separation of state law from religious law. The Western move to separation, however, did not, at least in any deep and pervasive sense, have to worry about religious law. Christian tradition has from the start been at least ambivalent and at times hostile to the idea of law as a religious category. In Islam, on the other hand, as in Judaism, law is a central religious category, both a guide to personal devotion and a framework for communal life. Moreover, because of Christianity’s early decision to abandon obligation to the details of Jewish law, Christians have tended to understand themselves as, so to speak, “juridical gentiles.”[iii] Although Christianity has deeply influenced Western religious traditions, that influence has generally been broadly thematic rather than doctrinal. The secular revolution in the West entailed the disentangling of many of the institutional ties between Church and State. It also required the State to respect the distinctly religious choices of individuals. But it did not require a fundamental rethinking of law because the various legal traditions of the West, whether indigenous or Roman, common law or civil law, were in important ways “secular” from the start. (To be sure, there are complications in this picture, including the role played by ecclesiastical tribunals in certain contexts. But the basic point remains.) The principal pre-colonial legal tradition in the Islamic world, on the other hand, was religious law. And serious Muslims might therefore legitimately ask An-Na‛im why their societies should abandon their own collective juridical tradition – Shari‛a – just because it happens to be grounded in divine revelation.
An-Na‛im knows all this, of course, which helps explain why he does not simply rest on either the argument from piety or the argument from peace. Indeed, he suggests a variety of additional arguments, though it is sometimes up to the reader to tease them out from each other.
One of his arguments is essentially formal. State institutions are controlled by state officials. When they seek to adopt Islamic law or choose among competing versions of Islamic law, they are simply acting as government actors. Therefore, “whatever the state enforces in the name of Shari‛a will necessarily be secular” (7). This simple point should effectively deflate the pretensions of the most literal-minded theocrats. But as with many formal arguments of this sort, its formality is also its limitation. Even if, analytically, all state law is secular, the question remains as to what role religion and religious law should play as a source of content for state law.
Another argument is historical. An-Na‛im emphasizes, as have others,[iv] that, in fact, religion and state were not completely merged in pre-colonial Islam, including the great caliphates. The convergence of religious and political authority was often an ideal. In practice, however, the authority of the civil government and that of the religious scholars, the Ulama, separated. Sometimes, the caliphs tried to control the Ulama. Sometimes, the Ulama revoted against the caliphs on religious grounds. Sometimes, the two established a practical dispensation in which the scholars adjudicated certain sorts of questions with little government control and the government decided questions of war, peace, taxation, and the like with little reliance on religious principles. But in any event, there is in this history – even considering important differences in underlying theology – more resemblance to developments in the Christian West than one might at first have supposed.
Moreover, Islamic religious practice and legal adjudication was often considerably more pluralistic than would be tolerated by modern states claiming a monopoly over the articulation and enforcement of law. Indeed, to the extent that contemporary Shari‛a has lost a good deal of its previous multivocality and textured interplay of schools of thought and schools of law, that is, ironically enough, partly the legacy of Western colonial administrations that, while claiming (in places such as British India) to defer to religious law in fields such as family law, in fact constructed a body of unified, codified, rules that stripped away much of the diversity, texture, and lived reality of the very body of law that they were claiming to apply.[v] Modern states, even if they are no longer ruled by colonial overseers, cannot, An-Na‛im implies, simply return to the older, more complex, interweaving of public religious authority and religious self-governance that marked the pre-colonial caliphates (p. 284).
An-Na‛im’s most interesting arguments, however, are not so much about either logic or history, though they are related to both, but about the distinct discursive demands of the state and the religious legal community. The central issue here is the very one ignored by both colonial administrators and some contemporary Islamists – legal development. Haider Ala Hamoudi has convincingly demonstrated that even nominally “Islamic republics” such as Iran only apply Shari‛a selectively, and still heavily rely on transplanted Western legal codes,[vi] and that serious Islamic legal scholars in countries such as Iraq have no interest in imposing their elaborate articulations of Shari‛a on the state. One reason, he suggests, is that both state authorities and religious scholars realize that the theoretical structures and forms of argument of traditional religious law are simply unsuited to developing rules of decisions for many complex contemporary commercial and other problems. An-Na‛im nods to this sort of observation. But he is more interested in a sort of reverse argument – that only the separation of state and religious law can give the Islamic religious community the normative space within which to articulate new forms of argument and consensus about the continuing development of Shari‛a (13). There are hints here, of course, of Robert Cover’s distinction between imperial jurispathy and paideic jurisgenesis, though An-Na‛im does not cite Cover’s work.
These are powerful claims. Nevertheless, as I’ve already suggested, An-Na‛im faces a question that his counterparts in Christendom could avoid: How does an Islamic secular state construct its own legal-normative world? Here, An-Na‛im enters a realm that he himself describes as paradoxical. He wants to separate the state from both religion and religious law. But he does not want to separate religion from society or from public life. His goal is not to privatize faith. Nor does he want to separate religion from politics, whose hustle and bustle of argumentation he distinguishes from the formal mechanisms of state institutions and authority. Muslims can and should participate, as Muslims inspired by Islamic law, in political debate. Yet, in a further dialectical turn, he also suggests that all the participants in that political debate abide by the norms of “civic reason,” which means not grounding their arguments simply in their religious authority or provenance. An-Na‛im is openly unsure about the exact boundaries of “civic reason,” and though he recognizes that “civic reason” closely resembles the notion of “public reason” pressed by John Rawls and others in Western liberal political philosophy, he does not want to collapse one idea into the other. But he is nevertheless committed to the claim that, though Islamic arguments can and should make their way into the political debate of Islamic secular states, they must be articulated in essentially secular terms.
The problem here is that An-Na‛im is coming late to the debate over the role of religious voices in political debate. Some liberal thinkers do continue to insist that political discourse follow the rules of “public reason” and that “public reason” necessarily excludes explicitly religious arguments or reasons. But this view has also been strongly and convincingly criticized by many political philosophers and legal scholars for being unfair, unnecessary, distracting, or impossible. It has even been criticized by some entirely secular thinkers for perniciously immunizing religious discourse from the corrective critique of the larger marketplace of ideas. More crucially, the “public reason” approach seriously underestimates both the dimension of reasoned, accessible, argument within religious discourse itself,[vii] and the capacity of religious believers to negotiate on their own terms forms of public engagement that are both honest to their own commitments and relevant to the larger community.[viii]
As important, it is not clear what work a putative commitment to “public reason” actually does in secular Western states. As long as such states respect the twin commitments of the modern religion-state dispensation – to respecting individual religious conscience and to maintaining institutional distance between church and government – as well as the panoply of constitutional commitments to democratic governance, due process, and a variety of substantive individual rights, the commitment to “public reason” might be one safeguard too many.
An-Na‛im does argue for the importance of secure constitutional norms in the Islamic secular state, and indeed begins to argue for such norms on Islamic grounds. But he does not adequately discuss the relation between those norms and his concern for “civic reason.” Perhaps the history and theology of the law-state relation in Islam lends special weight to the importance of something like a “civic reason” constraint in the contemporary Muslim state.
At the end of the day, though, An-Na‛im’s tentativeness and his sense of paradox are justified. Indeed, An-Na‛im spends several chapters toward the second half of the book discussing in some detail the sometimes problematic efforts at various forms of secularism in Turkey, India, and Indonesia, and concludes that “that there is no categorical and permanent resolution of the paradox of how to secure the religious neutrality of the state within the reality of the connectedness of Islam and politics” (267). Context is crucial. “The values and sustainable practice of secularism, pluralism, and constitutionalism can be founded only on a clear and pragmatic understanding of historical relations and conditions” (141). That seems right.
This is not the place to try to discuss in any detail the implications of An-Na‛im’s book for the Jewish conversation about the relation between religious law and the state. But this much is worth saying: On the one hand, it bears asking whether the argument that genuine religious piety is only possible under conditions of separation between religion and state – the argument that prevailed in the Christian West and that An-Na‛im claims as an Islamic tenet as well – has quite the same resonance in the Jewish conversation. On the other hand, Jewish tradition has its own intellectual and theological resources to bring to the table, in particular a long-standing historical affirmation of the legitimacy of civil government both within Jewish polities and in the larger societies within which Jews find themselves. Again, context is crucial. Nevertheless, An-Na‛im’s book does prompt the thought that there might be a sort of underlying, immanent, religious logic – not to mention good practical sense – to something like separationism. Particularly in the context of the modern state, this is a logic to which all faith traditions might be wise to pay heed.
Perry Dane, Professor of Law at Rutgers School of Law – Camden, is currently a Fellow at the Tikvah Center for Law & Jewish Civilization, New York University Law School.
[i] See, for example, Khaled Abou El Fadl’s The Place of Tolerance in Islam (2002) and The Great Theft: Wrestling Islam from the Extremists (2007). More generally, see Liberal Islam: A Sourcebook (Charles Kurzman, ed. 1998).
[ii] See, for example, Nader Hashemi, Islam, Secularism, and Liberal Democracy: Toward a Democratic Theory for Muslim Societies (2009).
[iii] Perry Dane, “Take These Words”: The Abiding Lure of the Hebrew Bible in Itself, 4 Hebraic Political Studies 230-265 (2009), p. 250.
[iv] See, for example, Ira M. Lapidus, The Separation of State and Religion in the Development of Early Islamic Society, Int. J. Middle East Stud. 6 (I975), 363-385. An-Na‛im, of course, cites this and other work by Lapidus.
[v] For a particularly illuminating discussion, see John Strawson, Revisiting Islamic Law: Marginal Notes from Colonial History, 12 Griffith L. Rev. 362-383 (2003).
[vi] See, for example, Haider Ala Hamoudi, The Death of Islamic Law, 38 Ga. J. Int’l & Comp. L. 293-337 (2010).
[vii] For an interesting discussion directly relevant to An-Na‛im’s argument, see Mohammad Fadel, The True, the Good and the Reasonable: The Theological and Ethical Roots of Public Reason in Islamic Law, 21 Canadian Journal of Law and Jurisprudence 5 (2008).
[viii] For a recent discussion in the Christian context, see Nigel Biggar, Behaving in Public: How to Do Christian Ethics (2011).