Islam and the Secular StateAbdullahi Ahmed An-Na`im considers his latest book the culmination of his life’s work advocating for an Islamic Reformation, a new vision he first proposed in a courageous break with Islamic modernism almost twenty years ago. Islam and The Secular State: Negotiating the Future of Shari`a is an important and thought-provoking book, in which An-Na`im argues that the secular state, as he defines it, “is more consistent with the inherent nature of Shari`a and the history of Islamic societies than are false and counterproductive assertions of a so-called Islamic state or the alleged enforcement of Shari`a as state law.”

The book is avowedly didactic, aiming to persuade Muslims in public debate that constitutional rule of law, human rights and democratic citizenship in a secular state represent the only form of political regime consistent with Islam in the modern world. Despite lengthy and repetitious exposition of the notions of democratic constitutionalism, “civic reason,” citizenship and human rights, An-Na`im fails in his explicit purpose of justifying and legitimizing them in Islamic terms, which appear somewhat incidentally and do not carry the primary charge of justification. In this regard, his preaching can only have an effect on those already converted. An-Na`im does, however, have two compelling arguments for his position in terms of Islam, one substantive and the second historical. The substantive argument is that only with such a state can Muslims autonomously and without compulsion follow the law of God as interpreted by themselves. The historical argument is that his “proposal for a secular state is more consistent with Islamic history than is the so-called Islamic state model.” The problem is that few Muslims requiring specifically Islamic legitimization and justification will accept his premises regarding “the inherent nature of Shari`a” and find his substantive argument convincing. An-Na`im’s appeal to history is not intrinsically Islamic either; nor is it easy to sell rhetorically. But it is his more original and stronger argument. Furthermore, as we shall see, the historical argument is even much stronger than he is able to present.

Muslims, An-Na`im argues, need a secular state that is “neutral regarding all religious doctrines” but allows legislation and public policy to “reflect the beliefs and values of citizens, including religious values.” This requires dispelling “the illusion that the Islamic state is supposed to enforce Shari`a,” and “keeping a clear distinction between Islam and the state while regulating the connectedness of Islam and politics;” or again, it requires “the institutional separation of Islam and the state” and “the religious neutrality of the state.” This amounts to a more clear and careful definition than has been provided by the Iranian reformists such as Abdol-Karim Soroush and the former President, Mohammad Khatami, for what they have called “religious democracy.”

Clarity ceases, however, with his call for “regulating the connectedness of Islam and politics.” Returning to the notion of “regulating the political role of Islam,” An-Na`im ends with a reaffirmation that the separation of Islam and the state should be “accompanied by the nurture and regulation of the organic relationship between Islam and politics,” and calls for “an enabling discourse for promoting the role of Islam in public life.” Having convincingly argued against the French and Turkish variants of secularism as exclusions of religion from politics and the public sphere (incidentally, by appealing not to Islam but to democracy and human rights), it is not clear why any regulation of any kind beyond the generic rules of constitutional democracy, civic reason and human rights should be needed. What is the meaning of “regulation” other than the obvious non-exclusion? Does the call for “promoting the role of Islam in public life” point to a hidden agenda lurking behind the innocuous thesis that constitutionalism and human rights need to be justified in terms of Islam rather than Western liberalism to be understood by Muslims? I will come back to this at the end.

The most original aspect of the book is An-Na`im’s historical analysis of law and the state in medieval Islam and the Ottoman empire, as well as the contemporary patterns of the secular state in Turkey and in post-colonial India and Indonesia. Being a lawyer and not a historian, An-Na`im concedes far too much to the proponents of ideology of the Islamic state, whose alleged function is the execution of the Shari`a. He can show that such a state never existed. In fact, the evidence for separation of religion and the state in Islamic history is much stronger. An-Na`im certainly exaggerates the importance of the Shari`a relative to state law (qānun) and customary law in the administration of justice in medieval Egypt and the Ottoman empire, not to mention the Mughal empire and Indonesia. And the myth of the Islamic state he rejects still has enough hold over him to induce a serious, anachronistic misreading of the communal politics of Indian independence in which the Shari`a played no role, either positively or negatively. Nevertheless, the evidence he presents proves his historical argument for the differentiation between the state and religious law and authority more than adequately. This discussion of the separation of religion and the state in Islamic history, and the analysis of the strengths and limitations of the three very different contemporary secular states built on it, constitute the major achievement of this book.

In An-Na`im’s account of imperialism in India, which generalized to the other two cases of empires without substantiation, “colonial reason” is credited with the invention of legal codification. There is no denying the oddity of what developed as the “Anglo-Muhammadan law” under the British Raj, but the colonial motive for codification, beyond the requirements of efficiency in the administration of justice, is not entirely clear. The same claim that codification was the product of colonial reason is not explicitly made in the case of the Dutch empire in Indonesia. Legal codification in the non-colonial Ottoman empire is also seen by An-Na`im as an imperial imposition of a piece with the so called “capitulations”—extraterritorial imperialist rights to consular jurisdiction over their subjects and the compradors declared under their protection. (An-Na`im may be forgiven for passing over the fact that human rights, so dear to him, were introduced side by side with the capitulations and were more strongly pushed by the imperialists in favor of the religious minorities under their protection than codification, in which they had only a tangential interest.) He also conveniently ignores the arguments that legal reform in general and codification in particular may in fact have been a means of resistance to imperialism in Egypt, and the patent fact that codification was part of the autonomous Ottoman will to defensive modernization to withstand the imperialist pressure. An-Na`im shares this dim view of the nineteenth- and early twentieth-century movement for codification of the law, whose proponents saw it as an effort to adopt modern civilization, with Noah Feldman, whose view I have criticized earlier in The Immanent Frame. The vilification of Muslim modern codes stems from the replacement of “democracy” for the “modernization” of the earlier generations of Muslim reformers in An-Na`im’s teleology. This shift exacts a heavy cost in terms of understanding the legal history of the last two centuries. The complex issues of procedural rationalization, separation of law and ethics, reform of the appellate system and systematic use of written documents, and the dilemma of majoritarianism versus judicial activism in protection of human rights—the nitty-gritty of the role of law in a modern constitutional order—are entirely set aside by this hard-nosed lawyer for the glib talk of democracy and civic reason. Here, I must be forgiven for being old-fashioned and thoroughly skeptical.

An-Na`im’s head is in the right place when he insists on Islam’s compatibility with the secular state, but at the very end, when he calls for “restoring the liberation role of the Shari`a,” the former loses its control over the latter, revealing a starry-eyed utopia. An-Na`im had briefly alluded to his commitment to Islamic reform as advocated by his Sudanese master, Ustadh Mahmoud Mohamed Taha, stating that “it also requires the reformulation of usul a-fiqh [principles of jurisprudence].” But why should we expect the new ijtihād and reformulation of the principles of jurisprudence to produce results this time that are different from the Wahhabi ijtihād from the eighteenth century to the present, Salafi ijtihād of the early twentieth century, or the current one of the Islamists? The implicit answer seems to be that Islamic reform would now take place within the framework of constitutional democracy and be subject to human rights. But I see little evidence for An-Na`im’s presumption that the form of Islam to be promoted by his project would legitimize the constitutional democracy and human rights to which it should be subject! In fact, his own evidence of the democratic enforcement of the penal code of the Shari`a in Aceh proves the contrary. He takes cold comfort in “lack of agreement between Achenese leaders about what the application of Shari`a means.” (This is An-Na`im’s variant of the hackneyed assertions one hears often, such as “not everyone agrees what the Shari`a is,” or, “there are different schools of Islamic jurisprudence.”) He thus misses the chance to discuss such judicial devices to protect human rights against democratic majoritarianism as constitutional courts. (Indonesia has an inactive one, but the activist constitutional court of Egypt is not discussed either.

An-Na`im wants to beat the Islamists at their own game by appropriating their rhetorical tools, but this is a very risky strategy. He has made an impressive effort to involve Muslims throughout the world through his website, and used an Indonesian Muslim institute to organize discussion groups. But the Iranian reformists lost badly in their attempt to appropriate the rhetoric of the hardliners despite the fact that they created and controlled, for a few years, the most vigorous press in the Muslim Middle East. The chances of the An-Na`ims and the Feldmans firing single shots from the hip at the same remote target from the far west are much smaller. Attempts at the rhetorical appropriation of Islamism by “restoring the liberation role of the Shari`a” (An-Na`im), or the historical romance of the Shari`a as constitutionalism and modern rule of law (Feldman) are bound to fail. Like all religious law, the Shari`a has a restrictive, and never a liberating role, and the Muslims who wish to free themselves from its rigid restrictions historically did so through the liberating flexibility of man-made, secular law (qānun). For Muslims there certainly is a higher realm of freedom corresponding to the religio-mystical sense of the divine path. Yet if history is a guide, the Sufis through the centuries had good reasons for differentiating that realm from the law and for considering Shari`a the inevitably rigid husk to religion’s kernel, which they called Haqiqa (the truth).