By Khaled Abou El Fadl
To engage in jihad means to strive or exert oneself in a struggle to achieve a morally laudable or just aim. For all the sensationalism stirred by the term jihad, this is its indisputable definition in Islamic theology and law. The meaning of jihad is both this straightforward and simple and also this complex and indeterminate. Jihad could be in the form of armed struggle, but (as explained below) the use of violence could also be considered as a most serious and grave moral crime, that of causing corruption or ruin on earth (fasad fi al-ard).
Although the term jihad has been appropriated and co-opted in very diverse contextual and historical circumstances, in Islamic theology there is an inherent and integral relationship between the concept of jihad and the Qur’anically mandated normative obligation to pursue what is good and to avoid what is bad (al-amr bi’l ma’ruf wa al-nahy ‘ann al-munkar). By definition, moral worthiness and the justness of the cause are categorical preconditions for the existence and recognition of jihad or for a Muslim to be in a state of jihad (n. mujahid). In the classical philosophical and theological discourses, and especially in the apologetics of kalam, there is a vast and complex Islamic scholastic tradition investigating the definition and nature of moral goodness and what constitutes a just cause. In books of classical Islamic legal theory or jurisprudence (usul al-fiqh), as opposed to books on Islamic positive law (ahkam), there is a much more abridged and narrower discourse on what constitutes a legally recognizable just cause, or what may be considered a valid normative obligation as a matter of law. (We will distinguish further, below, between books on usul al-fiqh and books on Islamic positive law, ahkam.) This discourse in most classical Islamic sources falls under the general rubric of husn (what is good, praiseworthy, and beautiful) as opposed to qubh (ugliness). While theological and philosophical sources focus on questions of ultimate goodness and the nature of the obligation (taklif) to do good, jurisprudential sources focus for the most part on what may be considered valid or binding as a matter of law.
Conscience and Indeterminacy in the Islamic Tradition
It might be surprising to many non-Muslims, and also to numerous contemporary Muslims, that the classical Islamic tradition often distinguishes moral and theological responsibility from questions of legal liability, and that moral and theological obligations could at times exist in tension with legal responsibility. However inconsistent with the dogmatic and simplistic perceptions of the Islamic tradition that abound in today’s world, this differentiation is essential to understanding the historical, as well as the contemporary, role of Shari‘a in Muslim life. Furthermore, an appreciation of this tension between moral and legal imperatives is critical to comprehending the nature of indeterminacy in Shari‘a law and the essential role of conscientious choices and personal commitments in the Islamic tradition. It may indeed be that most contemporary Muslims are not trained or well-read in the Islamic classical tradition, but I would dare claim that most conscientious Muslims would have a theologically-founded intuitive and basic awareness of this tension and its consequences.
A clear illustrative example of this tension and its consequences arises in the case of all armed conflict, regardless of whether or not it is declared by a legitimate Muslim authority. Even assuming the existence of a legitimate authority with the legal right to declare war, this does not vitiate an individual Muslim’s responsibility to refrain from joining an unjust war and to act conscientiously. Therefore, if a Muslim kills someone in a war that he/she conscientiously knows, or should have known, to be unjust, this Muslim will be held accountable in the Hereafter by God. Conversely, for disobeying a command that a Muslim conscientiously believes or reasonably should have believed to be unjust, such a Muslim can expect to be rewarded by God in the Hereafter. The subtle discursive role played by conscience and personal commitment in Islamic theology, and the indeterminacy that inevitably resulted, helped spur numerous sectarian movements and rebellions in Islamic history. As a result, there is a truly prodigious amount of discourses in the Islamic classical tradition struggling to balance between, on the one hand, moral and conscientious imperatives binding upon individual Muslims and, on the other, the demands of the rule of law.
The relevance of these classical debates to numerous contemporary situations is obvious. Most recently, unsophisticated versions of the classical arguments were reproduced in debates on the moral and theological responsibility of officers and soldiers who carried out orders to injure or kill demonstrators or rebels in Egypt, Tunisia, Syria, Libya, Bahrain, and Yemen. The same discourses arose in the same countries in the context of competing claims as to whether those who died supporting the state or opposing it are martyrs (pl. shuhada, sing. shahid). Significantly, whether in the classical tradition or in the contemporary Muslim world, the revered status of martyrdom (shahada) is not limited to Muslims. In many cases, a non-Muslim killed supporting a just cause is considered a martyr, and so, for instance, it is very common to refer to Christians killed resisting the regimes of Mubarak in Egypt or Assad in Syria as martyrs. In Muslim discourses, Palestinian Christians killed resisting the Israeli occupation, such as those killed in the intifada, are regularly referred to as martyrs. However, as a function of the indeterminacy of Shari‘a, no single institution in the Muslim world has the power to grant or revoke the status of martyrdom to any Muslim or non-Muslim. It is readily recognized in both the classical tradition and in modern Muslim theology that only God has the ultimate and absolute right to grant the status of martyrdom. No human claim binds God, and no human institution has the absolute power to speak for God. Any Shari‘a-based determination attempts to make a well-informed approximation of the Divine will but it does not, and cannot, embody it. The issue of martyrdom, perhaps, is inherently controversial and highly politicized, and so indeterminacy is inevitable.
It would be inaccurate, however, to assume that Shari‘a is indeterminate in every and all cases. And I am not making the simplistic argument, often employed by Muslim liberal secularists, that since the role of personal commitment and conscience is central in Islamic theology then, as a necessary consequence, there is no such thing as Islamic law. This type of argument is commonly deployed by Muslim intellectuals who think that it is an effective discursive and polemical strategy in denying Shari‘a any role in public life, but this argument lacks analytic integrity and is persuasive only to people who see little value in the perpetuation of the Islamic legal tradition into the modern age. I will return to this issue later; for now, my point is to underscore the ever-present role of conscientious convictions and beliefs in Shari‘a discourses. Muslim jurists consistently tried to negotiate a balance between moral convictions on the one hand and the normative role of positive law (or the ahkam) on the other. This negotiative balancing act was not always resolved in favour of indeterminacy, but it led to something that is very familiar to the Western legal tradition: the differentiation between procedural, legalistic or temporal justice on the one hand, and theological, moral and celestial justice on the other.
Although it is not possible to do full justice to this issue in this short essay, for demonstrative purposes I will give a few examples of how the balance was struck in different scenarios debated in the classical Islamic tradition. One scenario involved the hypothetical case of a person whose grim job was to execute people sentenced to death by the state. What is the moral or religious obligation of such a person if he/she is ordered to execute a person whom he/she sincerely believes to be unjustly sentenced? If such an executioner carries out his/her lawful job and enforces the legal sentence, is the executioner accountable before God for doing something that he/she believes to be unjust? Most jurists agreed that the state has the right to dismiss or otherwise punish the executioner for failing to perform his/her job; but at the same time most jurists agreed that obeying orders against his/her conscience means that the executioner has committed a sin for which he/she will be held accountable in the Hereafter.
By way of contrast, Muslim jurists found the hypothetical case of a judge who is torn or conflicted about the evidence in a legal case and the demands of his/her conscience to be much harder. There is no dispute that judges must rule pursuant to the evidence before them in a case. But what if the personal conscience of a judge is at odds with the weight of the legal evidence? If the judge sets his/her personal conscience aside, and renders judgment solely on the basis of the legal evidence before him/her, has such a judge committed a sin for which he/she will be held accountable in the Hereafter? It is not possible to summarize accurately the responses of Muslim jurists. But one can say that the responses varied depending on the school of thought to which a jurist belonged. At one end of the range were those who argued that the legal process itself is the ultimate justice; a judge cannot commit a sin by ruling in favor of the evidence since a judge is bound by the rule of law. At the other end were those who argued that the rules of legal procedure cannot shield a judge from moral responsibility for acting against his/her conscience.
A further example demonstrating the tension between the rule of law and moral liability involves the moral status of a person who dies trying to defend his/her property. In classical Islamic jurisprudence, most jurists agreed that if a person dies defending his/her property against criminal assailants, or is killed as a result of refusing to pay unjust or exploitative taxes (mukus), such a person dies a martyr. However, Muslim theologians disagreed as to the moral status of a person who dies while defending the seizure of his/her property by the state pursuant to a lawful order or command. Assume for instance that pursuant to a binding legal judgment, a person’s property is subject to seizure for a debt. The defendant, however, sincerely and honestly believes the judgment to be unfair and wrongful, and in the process of trying non-violently to prevent the seizure of his property, the defendant is killed. Most classical scholars argued that even if the state actions are legitimate and lawful, this would not deny the status of martyrdom to the deceased as long as he/she honestly and sincerely believed in the wrongfulness of the state’s decision, and his/her belief was reasonable (bi ta’wil muhtamal al-siha). Significantly, in cases involving what were considered by the classical scholars to be categorical moral imperatives, few concessions were made to personal beliefs or commitments. So, for instance, no concessions were made to those committing the crime of hiraba (banditry, brigandage, or highway robbery) even if they were acting pursuant to a sincerely held belief in the justness of their cause. Therefore, according to most classical scholars, those killed while terrorizing and attacking innocent people indiscriminately cannot be considered martyrs regardless of their beliefs or cause.
Another scenario frequently cited by classical scholars involves the hypothetical case of a Muslim who travels or lives in non-Muslim lands in accordance with an agreement of safe conduct (aqd aman). According to scholars of the classical tradition, betrayal of the terms of the safe conduct is always sinful regardless of the personal motivations or justifications for such a violation, and regardless as well of whether a Muslim court has the jurisdiction to punish the culprit. Hence, if a Muslim usurps the property of or otherwise harms non-Muslims because of a sincerely held belief that he/she does so only as retaliation against an injustice suffered, the betrayal of trust is never justified and is sinful. The same obligation not to betray applies whether the agreement of safe conduct was pursuant to an individual agreement or pursuant to a treaty between states. Whether the Muslim state has the power to punish the act of betrayal depends (i) on whether a treaty obligates the Muslim state to do so and (ii) on whether the Muslim state ascribes to a theory of territorial jurisdiction or to a theory of universal jurisdiction over certain types of offenses, such as the crimes of banditry (hiraba) or of treachery (khiyanat al-ahd).
Let us try to find a key to understanding this negotiative interplay, and how Muslim scholars went about striking the appropriate balance between legality and morality. When it came to setting out temporal obligations and determinations, Muslim jurists focused closely on the instrumentalities and mechanics of the law. Moral responsibility and its consequences were analyzed by evaluating and applying specific normative guiding principles such as the maxims: do no harm (la darar wa la dirar); actions are evaluated per their intentions (al-a’mal bi’l niyyat); one wrong does not justify another (la taziru wazira wizra ukhra); humans cannot be obeyed if it means disobeying God (la ta’ata li makhluqin fi ma’siyat al khaliq); God is sovereign over God’s rights but the state is the agent for people’s rights (Allahu awla bi huquqihi wa al-dawla wakilu huquq al-‘ibad); and so on. While the ahkam (positive law) is primarily concerned with instrumentalities of law and the deduction of positive commands, the Shari‘a, as a much broader concept, incorporates the axioms and principles of justice and morality, and engages positive law-making in a never ending dialectical negotiation. The interpretive dialectical process that negotiates the space between the Shari‘a and the ahkam is known as fiqh (understanding and comprehension). While the ahkam are determinative and positivistic, the fiqh is a broader and deeper undertaking that is often explorative and non-deterministic. The fiqh involves a process of appraising normative Divine-based imperatives in the light of numerous contingencies including customs, equity and public interest. It is critical to appreciate that the contingencies evaluated and weighed by the classical Muslim jurists were embedded in specific historical contexts. Even the moral and juridical hypothetical cases deployed by the classical jurists, such as those discussed above, were drawn with the context of particular historical contingencies in mind. Failing to appreciate the role of context and contingency in the Islamic jurisprudential tradition has led to persistent misunderstandings of Islamic law in the modern age.
As explained below, after colonialism Muslims experienced a vacuum of religious authority, and also a profound loss of collective historical memory and a near total sense of alienation from their own inherited intellectual tradition. In practical terms, not just lay Muslims but many graduates of contemporary Muslim seminaries can no longer appreciate the difference between pre-modern primers (or hornbooks) of positive law (kutub al-ahkam), and books of evaluative jurisprudence (kutub al-fiqh). Most have no way of evaluating the functions of determinacy and indeterminacy, or the roles of moral imperatives, legal commands and personal commitments in Islamic law. The loss of authoritativeness and the resulting chaotic condition is nowhere more evident than in contemporary Muslim discourses on jihad and the state.
Jihad and Violence in Islamic Theology and Law
Salam (peace and tranquility) is a central tenet of Islamic theology; it is considered a profound divine blessing to be cherished and vigilantly pursued. The absence of peace is identified in the Qur’an as a negative condition; it is variously described as a trial and tribulation, as a curse or punishment, or sometimes as a necessarily evil. But the absence of peace is never in and of itself a positive or desirable condition. The Qur’an asserts that, if it had not been for divine benevolence, many mosques, churches, synagogues and homes would have been destroyed through violence, but God mercifully intervenes to put out the fires of war and to save human beings from their follies. In the Qur’anic discourse, unjustified and indiscriminate violence is described as fasad fi al-ard (spreading ruin and corruption on earth), and it is considered one of the gravest sins possible. Those who corrupt the earth by indiscriminately destroying lives, property and nature are designated as mufsidun (corruptors and evil-doers) who in effect wage war against God by dismantling the fabric of creation. Moreover, the Qur’an proclaims: ‘God has made you into many nations and tribes so that you will come to know one another (ta’arafu). Those most honored in the eyes of God are those who are most pious.’ Most classical Muslim scholars reached the reasonable conclusion that war is not the means most conducive to getting ‘to know one another (ta’aruf).’ Ta’aruf was considered a moral virtue, and also a form of jihad, but like most forms of jihad it was extensively treated in theological and not in legal sources.
In the Islamic classical tradition, most forms of jihad involve levels of moral struggle that are proper subjects for discourses on ethics and moral imperatives, and not for legal discourses. The best way to understand the imperative of jihad is on a scale ranging from the greatest moral worth to the least. Thus, according to traditions attributed to the Prophet Muhammad, the highest form of jihad (al-jihad al-akbar) is to struggle to know oneself and cleanse oneself of moral faults. According to the same traditions, armed struggle or warfare is the lower jihad (al-jihad al-asghar). The Prophet is reported to have said: ‘The highest form of jihad is to speak a word of truth against [or, in some versions, before] a tyrant.’ In the theological tradition, the pursuit of knowledge (talab al-ilm), supporting one’s parents, speaking against social injustices, striving to end people’s suffering or oppression, and supporting the poor are given as examples, among others, of jihad. However, the various forms of jihad were treated in books of Islamic law only if positivist or actual worldly rights or duties followed from them. Forms of jihad that involved rewards or liabilities only in the Hereafter would be dealt with in books on ethics and virtue (akhlaq or kutub al-mawa’iz), but would be omitted from legal primers.
The Qur’anic Discourse on Jihad
In Qur’anic usage, the word jihad, as such, is rarely utilized. The phrase consistently used in the Qur’an is ‘strive for the sake of your Lord with your money and selves’ (jahidu fi sabili’llahi bi amwalikum wa anfusikum). The Qur’an also refers to the mujahidun (those who strive for the sake of God). Qur’anic references to those who ‘strive in the path of God’ do not necessarily concern armed struggles. Instead, the Qur’an’s references to warfare are more specific; the Qur’an uses the word “qital” to refer specifically to warfare. This is important. Qur’anic references to those who engage in jihad are broad and general exhortations; but references to qital or warfare are always qualified and made subject to particular restrictions and limitations. Therefore, early Muslims were not allowed to engage in warfare (qital) until God gave them specific permission to do so. ‘Permission is now given to those who have been attacked to take up arms because they have suffered aggression (dhulimu), and God has the power to aid them’ (22:39). In various passages the Qur’an instructs Muslims to fight those who fight them but not to transgress, for God does not approve of aggression. The Qur’an instructs Muslims to fight against persecutors; but if the enemy ceases hostilities and seeks peace, Muslims should seek peace as well (2:191-3). The Qur’an also sombrely reminds Muslims not to reject peace, and not to insist on fighting those who do not wish to fight them. If God had willed, God would have empowered their foes, and then they would have fought Muslims. God has the power to inspire in the hearts of non-Muslims a desire for peace, and Muslims must treat such a blessing with gratitude and appreciation, not with defiance and arrogance (4:90-1). In an important passage, the Qur’an in addressing the community of early believers explains that God does not forbid Muslims from socializing with and being kind to non-Muslims. Rather, God commands that Muslims fight against those who have persecuted them and have aggressively driven Muslims from their lands and homes (60:7-9). In one passage that has received considerable attention in the contemporary world, the Qur’an exhorts the believers to fight against the unbelievers until they pay the poll tax (jizya) and have been completely subdued (9:29); I return to this passage below.
One of the most overlooked aspects of the Qur’anic discourse on the subject of war is that it places itself within a larger Biblical context. The Qur’an emphasizes that God has repeatedly ordained that believers should fight in the support of Abrahamic prophets. Just as Israelites were instructed to fight in support of Moses, David and other prophets, Muslims are now commanded to fight alongside Muhammad (another Abrahamic prophet). The importance of this Qur’anic link to Biblical battles and wars is obvious but critical. The Qur’anic discourse on waging war is normative but thoroughly historicized and contextual. This Qur’anic discourse, like the rest of Shari‘a, is highly contingent and non-deterministic. As such, it invites inquiry into its normative principles and into the positive rules that follow from these principles.
Just Cause and Warfare
In light of the Qur’anic discourse, classical Muslim jurists posed the question: why did the prophets fight? Did the Abrahamic prophets, including Muhammad, wage war because unbelief is morally culpable and unbelievers in all circumstances must be fought, or did God authorize warfare only as a last measure against oppression and aggression? Depending on the school of thought and the historical period, pre-modern jurists gave a number of responses. After the 4th/10th century, the clear majority of jurists maintained that fighting non-Muslims must be in direct proportion to the actual threat and risk they pose to Muslims. According to most, belief or unbelief is a matter between a person and God, but Muslims may fight only to repel or avert harm or aggression (li daf’ sharrihim or daf’ al-sa’il). Interestingly, regardless of their position on the justification for war, there is a near consensus among classical Muslim jurists that non-combatants – such as children, women, people of advanced age, monks, hermits, priests, or anyone else who does not seek to or cannot fight Muslims – are inviolable and may not be targeted even during ongoing hostilities.
Indisputably, pre-modern jurists understood that there are competing moral imperatives setting aggression against non-aggression, oppression against lack of oppression, and justice against injustice. But how they interpreted the implications of these moral imperatives was very much contingent and contextual. In other words, it was a byproduct of the historical moment in which they lived and of the prevailing norms of the age. Nowhere is this more evident than in the legal and jurisdictional, but not necessarily moral, territorial divisions invented by the classical jurists. According to the classical tradition, the world was divided into three possible categories: the abode of Islam (dar al-islam), abode of hostilities (dar al-harb or dar al-kufr), and the abode of non-belligerence (dar al-‘ahd, dar al-sulh, or dar muwada’a). These abodes were not necessarily substantive moral categories, but pragmatic divisions that reflected the way Muslim jurists read the geo-political divisions of their age. Moral and theological discussions on the appropriate categories reflected a far more complex and dynamic reality; the abodes multiplied in response to sectarian divisions within the Muslim world as well as in response to ethical assessments of the injustices suffered in particular Muslim kingdoms. Therefore, Muslim ethicists and theologians debated categories such as the abode of justice (dar al-‘adl), the abode of true belief (dar al-iman), the abode of truth (dar al-haqq), and many others. When positive legal regulations came into tension with moral imperatives, many classical jurists resolved the tension by inventing a legal fiction. This arose with the question of the legal status of Muslims residing in non-Muslim lands. Some classical jurists argued that non-Muslim countries that permitted Muslim minorities freely and openly to practice their faith should be afforded the treatment due to countries of the abode of Islam.
I mentioned above the payment of jizya (poll tax) by non-Muslims. Contrary to the understanding of many non-Muslims and some Muslims, in the Islamic tradition such payment was not raised to the level of a moral imperative. The collection of levies in lieu of warfare is a practice that predates Islam; poll taxes were common practice among the Byzantines, Assyrians, and pre-Islamic Arabs. The Prophet and first generation of Muslims did not always collect poll taxes, exempting particular Arabian tribes or nations (such as Nubians and Abyssinians), and all non-combatants, including clergy, churches, and at times also serfs and peasants, from the jizya. Especially after the 4th/10th century, various groups of Muslims living under non-Muslim tutelage and Muslim kingdoms bordering powerful Christian states paid levies in order to avoid hostilities. Understanding that the issue of poll taxes is an issue of negotiated political interests and exigencies (referred to as siyasa shar’iyya), most Muslim jurists deferred to rulers on the question of whether it should be collected. The focus of legal sources was on the obligations and entitlements that followed from the existence of the jizya. However, most of the juristic discourses concentrated on technical conflict of laws issues, such as when dhimmis (non-Muslims living in Muslim kingdoms) are entitled to self-governance, and what types of cases and litigation would have to be brought in Muslim courts.
The Islamic Tradition and Modern Nation-State
The real challenge that confronts contemporary Muslims is how to negotiate and reconstruct their inherited living tradition (turath). Until the age of colonialism, Islamic law was the law of the land; it was the platform upon which Muslims not just resolved conflicts, but also negotiated issues of identity, normative obligations and the space between public interests and personal commitments. It is true that theocratic systems of governance were alien to the Islamic tradition and that theocracies, such as Saudi Arabia and Iran, are post-colonial inventions. But the legal institutions of Islamic law and Muslim jurists – as a class that commanded a great deal of deference and influence – played a critical role in negotiating the power dynamics between the rulers and the ruled. Muslims jurists in the pre-modern age served the state by acting as a medium for legitimacy and stability, but at the same time the institutions of Islamic law functioned as the instruments for the rule of law. Muslim jurists restrained the excesses of the state and limited its ability to speak for the divine, while playing a mediating role in political and social conflicts. The Islamic legal system worked through locally based guilds of law that functioned very much like a common law system. With the advent of colonialism came the age of legal codifications and the importation of Western legal systems. Eventually, Islamic law guilds were abolished, or lost their autonomy from the state and their mediating roles as well. Having lost the ability to negotiate the powers of the state, Islamic law guilds also lost their relevance and legitimacy. But contemporary autocratic states not only abolished the law guilds, but also controlled and dominated all of the influential religious institutions in their respective nations. In doing so, these modern Muslim states induced a serious vacuum and crisis in religious authority.
At the risk of over-simplification, I think one can say that since the advent of modernity, the Muslim world has been locked into a dichotomous cycle. On the one hand, there are those who attempt to challenge the post-colonial condition by searching for a medium through which they can embrace contemporaneous realities, but who at the same time anchor this reality in an indigenously authentic rootedness. In the case of the Muslim world, being rooted in an indigenous culture and history has most often meant an attempt to find ways of reclaiming the role of Shari‘a, in whatever way this Shari‘a is understood or interpreted. On the other hand, there are those who see themselves as pragmatists (or progressives) and therefore embrace the modern condition with all its consequences, bitter and sweet, and who consider attempts at re-inventing some indigenously rooted culture as unrealistic and reactionary. The latter group, in one form or another, has ruled Muslim countries since colonialism, and the results have been abysmal. However, Islamically inspired regimes in countries such as Pakistan, Sudan, Iran, Saudi Arabia and others have not done much better.
In the past decade a critical development has led to an important shift in this dichotomy. There has been the promise of a growing consensus in the Muslim world over the necessary merits of democracy and basic human rights. Democracy and basic human rights are seen as part of the universal and necessary heritage of humanity, and the means for realizing an adequate sense of autonomy and dignity. This does not mean that puritanical religious groups have vanished from the Muslim world, but there is a growing distrust of all holistic and totalistic ideologies demanding that individuals dilute themselves into some larger cause that serves a theoretical public good. Without a doubt, there is marked distrust of any group that claims to know and selflessly to represent the Divine will. Nevertheless, I fear that this democratic awakening will be short-lived if, in the name of basic civic rights and equal citizenship, Muslims are once again forced to choose between a presumed enlightened modernity and their own native sense of indigenous identity and culture.
Many among the Western-educated Muslim intellectuals have transplanted liberal democratic secularism into their own discourses with little if any modification. The argument typically proposed by such intellectuals is that democratic citizenship requires that all religious arguments or reasoning be kept out of the public sphere. Religion is purely a matter of private conscience and commitment; only so-called rational arguments can be made the basis of public law in modern democracies. Although many of these intellectuals realize that there are many forms of secularism, and that a strict separation between state and religion is a reality only in very few Western democracies, they quickly resort to the simplistic logic of excluding all religiously-based normative values unless such values are couched in the supposedly neutral logic of rational reasoning and public interest. The implications of this position are monumental, and fraught with risk. According to this argument, there would be no place for references to God in public discourses, including for instance the recitation of Qur’an in a publicly owned television station or the teaching of religion in public schools. Everything from banking and finance laws to the prohibition of illicit drugs, of pornography or of prostitution could only be articulated and defended through non-religious terms and reasoning. It is worth noting that this position is different from the Rawlsian argument for overlapping consensus because, unlike the Rawlsian argument for overlapping consensus, in the above position consensus should never include allowing religion a role in the public sphere.
The notion of self-restraint, within a democratic system of governance, in asserting any argument, religious or not, that is inaccessible to those others who do not share its premises seems to me to make a lot of sense. But such self-restraint in the construction of public arguments in order to maintain accessibility and be as inclusive as possible is a far cry from the principled exclusion of religious discourses from the public sphere that is espoused by Abdullahi An-Na‘im and others. Intellectuals espousing this strict secularist position usually assure Muslims that they would be free to follow Shari‘a as a matter of personal commitment, as long as Shari‘a stays purely within the private sphere. So, for instance, Shari‘a maxims such as, ‘Do no harm (la darar)’ or ‘Harm must be removed (al-darar yuzal)’ could not be asserted in the public sphere as Shari‘a principles but only in neutral or non-religious terms. Furthermore, the rules applicable to marriage, divorce and even to burial and other funeral arrangements could not be based on religious grounds but must be based on rational public reasons.
I have numerous philosophical as well as practical objections to this school of thought, but this is not the place to set them out. I think that different cultural and national contexts call for different negotiated relationships between Shari‘a and the public sphere. What could be an appropriate solution for a relatively small Muslim minority living in Western liberal democracies cannot be generalized to Muslims living in societies where for centuries Islam and Shari‘a have been interwoven in the inherited public consciousness. It is analytically inadequate to generalize our discourse on the public sphere without differentiating between, on the one hand, those cultures that autonomously entered modernity – let alone, those that created modernity – on the basis of normative values at odds with religion, and on the other, those cultures that had experienced religion in a very different way. We must differentiate between cultures that experienced secularism as part of a process artificially imposed by hegemonic colonial powers that acted to exclude the institutions of Shari‘a from the public sphere, and cultures that developed secularism as a homegrown solution and not as a part of an equation imposed by foreign domination. The point is this: between the opposite poles of (i) religion dominating the public sphere and (ii) the exclusion of religion from the public sphere, there are numerous possible negotiated accommodations. If in the public sphere the ethos of human rights and democracy are starkly contrasted with the ethos of Shari‘a, and Muslim cultures are told that the public sphere can be occupied only by one ethos and not the other, I fear that the results will be disastrous.
Perhaps realizing the dangers of this contrast, many Muslim secularists go to great lengths to attempt to anchor the principles of human rights and democracy in the Islamic tradition. But it strikes me as self-defeating to use the Islamic tradition to justify a universal humanistic ethos, only to turn around and exclude the Islamic tradition from the public sphere. It is rather disingenuous to use Islam to justify the exclusion of Islam or to contend that in order to truly respect Shari‘a, Shari‘a should be kept out of the public sphere. It seems particularly problematic, in justifying the exclusion of religion from the public sphere, to rely on the fact that the state until the modern age had never successfully monopolized the authority to speak for the Divine or on the fact that a church representing the Divine will has never materialized in Islam, or to cite the indeterminism of Shari‘a law and the existence of multiple jurisprudential schools of thought. Just because all people have an equal right to speak for God, it does not logically follow that all voices claiming to speak in God’s name must be excluded from the public sphere. A more fundamental objection, however, is that not all claims to represent the Divine will are equal. In fact, if one were to summarize the history of jurisprudential thought in the Islamic tradition, it could be described as a consistently evolving effort to set systematic, objective standards for making and evaluating claims to know the Divine will, not least in the realization of people’s welfare and justice. Not all claims to speaking for God’s will are equal; some are more legitimate and authoritative than others.
Part of the systematic problem that has plagued post-colonial Muslim cultures is that reformers who have sought to establish an uncompromising form of secularism in Muslim societies have rarely been well versed in the tradition they seek to exclude. While they invest a great deal of intellectual effort in mastering the thought and heritage of Western liberal secularism, they are rarely competent in the Islamic intellectual tradition. Instead of dealing with the normative imperatives and intellectual subtleties of the Islamic moral tradition with the analytic and critical rigour that this tradition rightly deserves, in what has become a persistent pattern of discourse they propose a highly essentialized and superficial narrative of the Islamic tradition and Shari‘a, but only to exclude the inherited Islamic heritage from public life. Not surprisingly, this essentialized and exclusionary discourse only invites an equally essentialized and exclusionary counter-discourse. Despite good intentions, the exclusionary discourse of what can be called vulgar or puritanical secularism, instead of helping Muslims to negotiate an authentically rooted democratic and humanitarian cultural solution, only locks Muslims in a polarized and reactive social dynamic.
Exclusionary vulgar or puritanical secularism is confronted by equally uncompromising forms of Islamism. Well-intentioned secularists who have sought to keep religion out of the public sphere have only succeeded in spurring puritanical reactive religious movements that construct an equally essentialized and artificial view of Islamic history and law. Both puritanical secularists and religious puritans ignore the complex interplay in the Shari‘a tradition between moral imperatives and positive laws. Both ignore the fact that Shari‘a, which embodies sacred moral imperatives, engages the private and the public spheres without dominating either of them. As discussed above, Shari‘a does not function simply as a sacred law nor is it simply a set of temporal positive commands. However, in the same way that puritanical secularists ignore the role of Shari‘a in the public sphere, religious puritans ignore the role of Shari‘a in the private sphere. Religious puritans pretend that personal commitments and private consciences are immaterial to Shari‘a obligations. At the same time, puritanical secularists pretend that Shari‘a can be limited to the realm of personal commitments and private consciences without regard to Shari‘a’s role in defining public norms and public moral imperatives. Religious puritans assume that since private commitments are subject to countless contingencies (what they would call hawa or whims), then the voices of individuals must be ignored, and the state should be empowered to speak for God. Yet puritanical secularists assume that the innumerable contingencies mediating personal commitments mean that no one should be allowed to speak for God in the public arena; indeed, there should be an absence of God, altogether, from such an arena.
It is encouraging that the secularists and Islamists of the past decade are all a part of the growing consensus in favor of democracy and human rights. Few secularists today are Marxists or Communists, and Islamists have grown weary of the centralized powers of the modern states. Nevertheless, I fear that one exclusion only begets another. If so, the threat is that this emerging recent consensus will be aborted as Muslims are once again locked between two exclusionary and uncompromising orientations.
In the summer of 2011, I had an opportunity to observe this dynamic first hand. Relying on the logic propounded by liberal secularists, Egyptian election laws banned the use of any religious symbolism or rhetoric. The impact of these laws was polarizing and divisive, and constituted one further step towards aborting the Egyptian revolution. It is rather typical of Egyptian culture that the public met these laws with a stream of mocking jokes: some wondered whether it is lawful for candidates to greet audiences with al-salamu alaykum (peace be upon you) or to commence speeches with ‘in the name of God the most Merciful and Compassionate’ (bismi’llahi al-rahman al-rahim). The reality is that Islamic normative values, which are a part of the living tradition of Shari‘a, already exist in the collective consciousness of Muslims. As such, religious values already occupy a prominent public space in Muslim cultures. Any theoretical or legal framework that fails to tailor itself to the complex reality of these cultures, and carefully to negotiate between the inherited tradition and the normative commitments necessary for democracy and human rights, will do more harm than good. Democracy and human rights cannot be achieved without normative commitments at the individual and societal levels. It is the duty of Muslim intellectuals to do the cumbersome and toilsome task of persuading their co-religionists that a private and public commitment to democracy and human rights is also a commitment to Shari‘a, and also that in the contemporary world a commitment in favour of Shari‘a is best realized through a commitment to democracy and human rights.
’Ilm al-kalam can be broadly understood as theological dialectics, or as scholastic theology. Participants in the field of kalam often employed arguments based on text or reason to defend specific dogmas or theological truths.
 See, The Qur’an 2:246-51, 3:146, 9:111, 5:24.
 M. Steven Fish, Are Muslims Distinctive? A Look at the Evidence (Oxford: Oxford University Press, 2011) 45-68, 229-49; John L. Esposito & Dalia Mogahed, Who Speaks for Islam?: What a Billion Muslims Really Think (New York: Gallup Poll, 2007) 46-57.
 See, Khaled Abou El Fadl, “Muslim Minorities and Self-Restraint in Liberal Democracies,” 29 Loyola Law Review 1525-42 (1996).
 See, Khaled Abou El Fadl, Speaking in God’s Name: Islamic Law, Authority and Women (Oxford: Oneworld Publications, 2001) 9-69.