Islam and the Secular StateOne raises critical questions about Abdullahi An-Na`im’s work only in the sense that one probes the work of any intellectual giant. An-Na`im’s gigantic lifelong task has been to develop an Islamic basis for human rights and constitutional government, including religious freedom and full equality of citizenship for Muslims and non-Muslims and for men and women. He offers his latest book, Islam and the Secular State, as the culmination of this work. Here, he defends a “secular state” that is based on these values and where sharia is not the basis of constitutional law. He makes clear that he is not arguing for the exclusion of religion from politics. Muslims remain free to argue for policies based on their convictions about sharia, but they ought to do so on the basis of secular “civic” reasons and within the framework of a constitutional order based on human rights. Secular, for him, does not mean hostile to religion but rather a differentiation between religion and state. In fact, he seeks an Islamic justification for the secular state. It is the high quality of his pursuit of such a justification over the course of his career that makes him a giant.

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

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

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

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

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

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

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

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

What is interesting about these arguments is that they ground the case for the secular state not in the Quran, not in claims about the presence of the imago Dei in the person or in some other source of the person’s intrinsic dignity, not in natural law, some closely similar type of practical reason, or universal moral precepts, but rather in what might be called “second order” observations about the phenomenology of belief, the character of government, the lessons of history, and the like. To be sure, good reasons for the secular state lie therein. But are these arguments sufficient to ground an Islamic case for constitutionalism, human rights, and the secular state? I doubt it.

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

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

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

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

The strongest advocates of human rights, in my view, rest their arguments on just such a conclusion. An-Na`im’s own colleague at Emory University, Michael Perry, has argued that human rights are “ineliminably religious,” meaning that only the sort of transcendent foundation that religions provide can support the universal claims that a defense of human rights requires. Theologian Max Stackhouse, philosopher John Finnis, and many others have argued along similar lines, often with an accent on natural law. Pope Benedict XVI made this argument in his recent speech to the UN.

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

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

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

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

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

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

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

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

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