Islam and the secular state: Rethinking apostasy and Shari'a

There are two Islamic reforms that are urgently needed: to transform the attitudes of Muslims regarding apostasy, and to promote the legitimacy of a secular state that does not claim to enforce Shari'a as state law or policy. Both reforms, crucially, must be supported by an Islamicargument to make them acceptable to Muslims.

It is therefore necessary to combine these two issues by clarifying the relationship between Islam and the state, while at the same time seeking to achieve fundamental reform of certain aspects of Shari'a because of its powerful influence on Muslims everywhere, even when it is not enforced by the state as such. Let me deal with these in turn.

The problem of apostasy and the principle of freedom

The imposition of the death penalty for apostasy and related offences is not unique to Islam - it existed in Judaism and Christianity, and was widely practiced under the latter in the mediaeval period. Yet these notions have been effectively eliminated from any current Jewish or Christian discourse, and there is no possibility of imposing the death penalty for these crimes in the modern context of these societies. In contrast, such punishments remain entrenched in Islamic jurisprudence and those found guilty of these offences can still be sentenced to death in countries like Pakistan and Sudan.

The more pressing question, I believe, is not how Islamic societies can "catch up" with their Jewish and Christian counterparts in this regard, but rather how Islamic jurisprudence can be revised as an internal Islamic imperative. How, in other words, can traditional notions of apostasy be seen as incompatible with the Islamic conception of religious freedom, rather than as contrary to international human rights norms which some Muslims regard as impositions from Western countries?

The Arabic word riddah, commonly translated as apostasy, literally means to "turn back." In Islamic law, riddah is understood to be reverting from the religion of Islam to kufr(unbelief), whether intentionally or by necessary implication. The vast majority of classical Muslim scholars agree that once a person becomes a Muslim by his or her free choice, there is no way by which he or she can change religion.

According to such scholars, ways in which riddah may occur include denial of the existence of God or the attributes of God, denial of a particular messenger of God, denial of a principle that is established as a matter of religion (such as the obligation to pray five times a day or fast during the month of Ramadan), declaring prohibited what is manifestly permitted (halal), or declaring permitted what is manifestly prohibited (haram). But since some of these issues have always been the subject of significant and persistent disagreement among Muslim scholars, it is difficult to establish the definitive and categorical view by which all other views are to be judged.

Moreover, apostasy is said to apply whenever a person is deemed to have reverted from Islam, by an intentional or blasphemous belief, act or utterance. For instance, the first category is supposed to include: doubts about the existence of God or about the message of the Prophet Muhammad or any other prophet; doubts about the Qur'an, the Day of Judgment, the existence of paradise and hell; doubts about the eternity of God; and doubt about any point of belief on which there is consensus (ijma) among Muslims, such as the attributes of God.

It would therefore logically follow that where there is no consensus on an issue, apostasy is not possible on that count. Yet, as a matter of fact, there is no consensus on many of the issues included in the list of various scholars and schools. For example, there is significant disagreement among those early scholars on God's attributes, which mean that one can be condemned as an apostate for accepting or rejecting an attribute of God according to the views of one scholar that is asserted or denied by another scholar.

An obvious problem with the notion of apostasy is that, while the Qur'an repeatedly condemns apostasy as a religious sin, it does not provide any punishment for it in this life (as can be seen in verses 2:217, 4:90, 5:54, 59, 16:108 and 47:25). In fact, the Qur'an clearly contemplates situations where an apostate continues to live among the Muslim community and engaged in repeated apostasy, rather than being put to death for the first time they commit this alleged crime. For example, verse 4:137 of the Qur'an can be translated as follows: "Those who believed, then disbelieved, then believed, and then disbelieved [once more] and became more committed to disbelief, God will not forgive them or guide them to the righteous pathway."

 

Moreover, the value of protecting the possibility of dissent and difference can be appreciated in terms of the relationship of heresy to the authenticity and rejuvenation of religious life. Obviously, many heresies simply perish and disappear, but there is no orthodoxy that was not a heresy when it started. From this perspective, every religious community should safeguard the psychological and social as well as legal possibility of heresy and disagreement among its members, because that is the best indicator of the honesty and authenticity of the beliefs and practice within that community.

Believers must always remain within their religious community completely voluntarily or leave by their free choice - there is simply no value for any purpose in coerced religious belief or practice. Unfortunately, the harsh legal consequences of failure to respect freedom of religion and confusion and fluidity over the concepts and terms used to suppress this freedom in the Islamic context are far from theoretical or historical.

 

For example, members of the Ahmadiyya community in Pakistan were considered a religious minority within Islam, governed by Muslim personal law in the area of family law, allowed to contest elections as Muslims and to assume public office reserved for Muslims. In 1974, the Government of Prime Minister Zulfiqar Bhutto amended Article 260 of the 1973 Constitution of Pakistan in order to declare all Ahmadiyyas non-Muslims, thereby denying them all the legal benefits of being classified as Muslims.

In 1984, the President Zia-ul-Haq's martial law regime added new sections 298B and 298-C to the Pakistan Penal Code of 1860, and amended the Code of Criminal Procedure of 1898 and West Pakistan Press and Publications Ordinance of 1963 Penal to punish with up to three years imprisonment for any member of the Ahadmiyya community who uses certain expressions which are characteristics of their religious faith, or use the Muslim call for payer, or identifies himself or herself as a Muslim.

Since the rationalization of such persecution is alleged to be "Islamic," it is therefore necessary to challenge such violations of freed of religion from the same Islamic perspective. In particular, the Qur'an neither defined apostasy and related concepts in legal terms, nor imposed a punishment for any of them in this life. These issues should be taken as matters of freedom of conscience, rather than capital crimes. But that possibility of re-interpretation must begin with a clear acknowledgement of the traditional position, despite all its ambiguities and contradictions.

An Islamic reform methodology that I find to be appropriate for achieving the necessary degree of reform is that proposed byUstadh Mahmoud Mohamed Taha. The premise of Ustadh Mahmoud's methodology is that the earlier universal message of Islam of peaceful propagation and non-discrimination was contained in parts of the Qur'an that were revealed in Mecca (610-22). But when the Prophet migrated with his few persecuted followers to Medina in 622, the Qur'an had to provide for the concrete needs of the emerging community, which had to struggle for survival in an extremely harsh and violent environment.

 

It is clear that traditional Shari'a principles, like apostasy, were in fact concessions to the social and economic realities of the time, and not the message Islam intended for humanity at large into the indefinite future. Since those principles were developed by early Muslim jurists applying their own methodology of interpretation that was not sanctioned as such in the Qur'an or Sunnaof the Prophet, different conclusions can be drawn by applying a new methodology.

 

This analysis, I believe, provides a coherent and systematic methodology of interpretation of the totality of the Qur'an and Sunna, instead of the arbitrary selectivity used some other modern reformers who fail to explain what happens to the verses they choose to overlook.

While traditional conceptions of apostasy and related notions were accepted as valid by earlier Muslims in the historical context of the formative stages of Shari'a, that is no longer true today. The individual and collective orientations of Muslims today, I believe, are probably different from those of earlier generations because of the radical transformation of existential and material circumstances of today compared to those of the past.

In contrast to the localized traditional existence of past Islamic societies, Muslims today live in multi-religious nation-states which are fully incorporated into a globalized world of political, economic and security interdependence, and constantly experiencing the effects of mutual social/cultural influence with non-Islamic societies. While some individual Muslims may still choose to advocate traditional notions of community and conditionality of rights, the reality of the pluralistic national and international political communities of today support entitlement to freedom of belief as a human right rather than a conditional right of membership of a religious community.

If the benefits of freedom of belief are available only to believers who are accepted as such, what is the rationale for having a right to freedom of belief at all? The right to freedom of belief is needed, and can be claimed, only by nonbelievers and believers who are not accepted as such by the community in question.

Shari'a, the secular state and the practice of civic reason

This brings me directly to the related issue of the relationship of Muslims to the secular state. I, as a Muslim, need a secular state and the protection of my freedoms of speech and religion, along with other human rights, in order to be a Muslim by choice and conviction, which is the only valid way of being a Muslim.

Consequently, I would argue that the very idea of an Islamic state enforcing Shari'a as positive law is, in fact, both conceptually untenable and practically counterproductive from an Islamic point of view:

• It is untenable because, once principles of Shari'a are enacted as positive law of a state, they cease to be the religious law of Islam and become the political will of that state. In other words, given the wide diversity of opinion among classical scholars and schools of thought, enacting any of those principles as positive law will have to select among competing views that are regarded as equally legitimate from an Islamic perspective. Since that selection will be made by whoever happens to be in control of the state, the outcome will be political, rather than religious as such.
• It is counterproductive because it will necessarily deny some Muslims their religious freedom of choice among those views.

What I am calling for is the institutional separation of religion and the state, while recognizing and regulating the unavoidable connectedness of religion and politics - not only because religious values invariably influence political behaviour, but also in order to enable them to do so through the democratic process, just as non-believers may seek to advance their philosophical or ideological views.

 

Mediating this tension between the need to separate religion from the state despite the connectedness of religion and politics can take place through the distinction between the state and politics. The state should be the more settled and deliberate operational side of self-governance, while politics is the dynamic process of making choices among competing policy options. The state and politics may be seen as two sides of the same coin, but they cannot and should not be completely fused into each other.

It is necessary to ensure that the state is not simply a complete reflection of daily politics because it must be able to mediate and adjudicate among competing views of policy, which require it to remain relatively independent from different political forces in society. Still, complete independence of state and politics is not possible because those who control the state come to power and keep it through politics, whether by means of a democratic process or not. In other words, officials of the state will always act politically in implementing their own agenda and maintaining the allegiance of those who support them.

The critical need to separate state and religion, while regulating the interconnectedness of religion and politics, requires that proposed policy or legislation must be founded on what I call "civic reason," which consists of two elements:

• the rationale and purpose of public policy or legislation must be based on the sort of reasoning that the generality of citizens can accept or reject, and make counter-proposals through public debate;
• such reasons must be publicly and openly debated, rather than being assumed to follow from personal beliefs and motivation of citizens or officials (it is not possible, of course, to control inner motivation and intentions of the political behaviour of people, but the objective should be to promote and encourage civic reasons and reasoning, while diminishing the exclusive influence of personal religious beliefs, over time).

I would also emphasize that the operation of civic reason in the negotiation of the relationship of religion and the state should be safeguarded by principles of constitutionalism, human rights and citizenship. The consistent and institutional application of these principles ensures the ability of all citizens equally and freely to participate in the political process, and protects them against discrimination on such grounds as religion or belief.

 

With the protection provided by such safeguards, citizens will be more likely to contribute to the formulation of public policy and legislation, including objection to proposals made by others, in accordance with the requirements of civic reason. Religious believers, including Muslims, can make proposals emerging from their religious beliefs, provided they are also presented to other on the basis of reasons they can accept or reject.

The access of citizens to civic reason debates will vary according to the differences in their socio-economic status, political experience or ability to maximize use of resources, to build alliances and so forth. But such factors are reasons for more fair and inclusive application of the principle, rather than for abandoning it.

 

With greater appreciation for the value and credibility of the civic reason process itself, religious believers will have more opportunity for promoting their religious beliefs through the regular political process without threatening those citizens who do not share their religious beliefs. This balance is likely to be achieved precisely because religious views will not be directly enforced through the coercive power of the state without being mediated through fair and transparent political contestations and subject to constitutional and human rights safeguards, as noted earlier.

 

In the final analysis, religious beliefs are neither granted special privilege nor suppressed, which make the relationship between religion and the state more dynamic and its outcomes less predictable. My purpose here is to affirm that the secular state, as defined here, is more consistent with the inherent nature of Shari'a and history of Islamic societies than are false and counter-productive assertions of a so-called Islamic state or the alleged enforcement of Shari'a as state law. This view of the secular state neither depoliticizes Islam nor relegates it to the so-called private domain.

My proposal is opposed to domineering visions of a universal history and future in which the "enlightened West" is leading all of humanity to the secularization of the world, of which the secularity of the state is the logical outcome. In the conception of a secular state I am proposing, the influence of religion in the public domain is open to negotiation and contingent upon the free exercise of the human agency of all citizens, believers and unbelievers alike.

In essence, the proposed framework seeks to establish a sustainable and legitimate theoretical and institutional structure for an ongoing process, where perceptions of Shari'a and its interaction with principles of constitutionalism, secularism and democratic governance can be negotiated and debated, among different interlocutors in various societies.

In all societies - Western or non-Western - constitutionalism, democracy and the relationship between state, religion and politics, are highly contextual formations that are premised on contingent sociological and historical conditions, and entrenched through specific norms of cultural legitimacy. The model proposed here combines the regulation of the relationship between Islam and politics with the separation of Islam and state as the necessary medium for negotiating the relevance of Shari'a to public policy and law.

In this gradual and tentative process of consensus-building through civic reason, various combinations of persons and groups may agree on one issue but disagree on another, and consensus building efforts on any particular topic may fail or succeed, but none of that will be permanent and conclusive. Whatever happens to be the substantive outcome on any issue at any point in time, it is made - and can change - as the product of a process of civic reason based on the voluntary and free participation of all citizens.

For this process to continue and thrive, it is imperative that no particular view of Shari'a is to be coercively imposed in the name of Islam because that would inhibit free debate and contestation.

Abdullahi Ahmed An-Na'im (*)

Source: abc.net.au

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(*) Abdullahi Ahmed An-Na'im is the Charles Howard Candler Professor of Law at Emory University School of Law. His most recent books are Islam and the Secular State: Negotiating the Future of Shari'a and Muslims and Global Justice.