INTRODUCTION
In recent years, one could observe the trend toward a (re)introduction of Shari‘a in a growing number of Islamic countries. Some scholars such as Noah Feldman (Reference Feldman2008, 20–21), with reference to Afghanistan and Iraq, see in this tendency a movement toward democratization and reform because the introduction of Shari‘a means more legality in otherwise dominantly authoritarian states. By contrast, Ahmad Rashid (Reference Rashid2008, 362–263) emphasizes that most Afghanis under the Taliban prefer Shari‘a only over the absence of law. In the absence of any other law, the Taliban courts’ harsh form of justice proved to be an effective tool and caused a dramatic drop in the crime rate. The approval of Shari‘a in the absence of any other enforced law, however, does not mean that the majority of Muslims want to live under Shari‘a rule. Rather, most of them prefer Shari‘a as “a” source of law, which corresponds with the majority of Americans who would like to have the Bible as “a” source of legislation; this is in contrast to the small percentage of Muslims and United States citizens who prefer to have either the Bible or Shari‘a as the only authority of legislation (Esposito Reference Esposito2010, 41, 146). Whereas in the West, Shari‘a is perceived as a backward (medieval) and repressive instrument that is used in authoritarian states to oppress any opposition and reform movement (Esposito Reference Esposito2010, 154), a growing number of Muslims scholars and political activists emphasize the historicity of traditional interpretations of Shari‘a. They argue that the traditional reading of Shari‘a emerged out of a particular historic context that does not exist anymore and call for a reinterpretation of Shari‘a that is suitable for the needs of Muslims living in 21st century liberal societies.
One of the most interesting voices in this chorus of reform is the Sudanese-American legal scholar and human rights activist Abdullahi Ahmed an-Na‘im. In his recent book, Islam and the Secular State, which is considered by its author “the culmination of [his] life's work” (an-Na‘im Reference an-Na‘im2008, vii), an-Na‘im calls for Shari‘a reform and the secular state by invoking ijtihad, a legal concept that allows for the formation of an independent legal opinion based on reason, and ijma, consensus, as principles of civic discourse (an-Na‘im Reference an-Na‘im2008, 14). For both state legislation and Shari‘a reform, an-Na‘im favors civil discourse and the consent of the majority (an-Na‘im Reference an-Na‘im2008, 277). While stressing the necessity of free exercise of one's religion, which excludes the establishment of Shari‘a as state policy or law (an-Na‘im Reference an-Na‘im2008, 2–3), his theory nonetheless allows that religious doctrines become state law, as long as these religious principles are accepted and supported by civic reason based on majority decision (an-Na‘im Reference an-Na‘im2008, 139). an-Na‘im introduces the term “civic reason” by distinguishing the term from Rawls's conception of “public reason” by allowing for the introduction of “comprehensive doctrines (like religion)” into the civic discourse (an-Na‘im Reference an-Na‘im2008, 99). For instance, if it is the outcome of public debate to prohibit charging interest on loans or if civic reason agrees that the state should collect zakat, which is one of the five pillars of Islam, then the people (citizens) are free to do so (an-Na‘im Reference an-Na‘im2008, 93). By invoking majority decision and developing the concept of ijtihad, which resembles basic principles of procedural political theory, an-Na‘im argues primarily in the context of an Islamized democratic theory.
At first glance, an-Na‘im's theory sounds attractive to political theorists in general, and in particular to those subscribing to the Western liberal tradition. In this article, however, I argue that the possibility of implementing religious doctrine based on majority decision may jeopardize, as an unintended consequence, the citizens’ human right of freedom of religion. If a religious doctrine becomes state law, it is a coercive law for believers, non-believers, and atheists alike. Even the believer remains no longer free in exercising her religion. For a believer, non-obedience of a religious doctrine, which in the religious realm is a sin that may be punished in the world to come, becomes a transgression of human law that is punishable in this world. Liberal democratic theory favors the doctrine of the secular state and locates religion in the private and not in the public realm. For John L. Esposito (Reference Esposito2010, 148), this doctrine may sum up to “secular fundamentalism.” This conception falls short in addressing the obstacles an-Na‘im encounters in his attempt to harmonize the needs of a (Muslim) believer with the requirements of a secular state. Although contemporary political theory does not say much about an-Na‘im's problem, it does not mean that Western political theory did not have to struggle with similar problems on its way to the modern doctrine of the separation of religion and the secular state, which Westerners in the 21st century take so much (perhaps too much) for granted. In Islam and the Secular State, an-Na‘im invites his reader to “engage in a cross-cultural dialogue to exchange insights and strategies of internal discourse and to promote the global acceptance of their shared objectives” (an-Na‘im Reference an-Na‘im2008, 26).Footnote 1 This article accepts an-Na‘im's invitation and reads an-Na‘im's Islam and the Secular State through the eyes of the 14th-century political theorist Marsilius of Padua. Marsilius's basic principles have much in common with contemporary liberal political theory (Morrell Reference Morrell1999); his main concern was the establishment of a theory of the secular realm that is free from any interference by the Catholic Church and Canon Law (Koch Reference Koch, Moreno-Riaño and Nederman2012b, 165–166). Marsilius accomplished this in two steps. In his major work, Defensor Pacis (DP; Marsilius of Padua Reference Scholz1933/4), he allows, as does an-Na‘im, for the implementation of religious doctrines into civil law, though not based on majority rule but solely by consent of all. This was a position he later revised in Defensor Minor (DM; Marsilius of Padua Reference Nederman1993), which led him to the doctrine that no transgression of divine law should jeopardize the civil status of a citizen (DM 15.6).
Marsilius of Padua, despite the modernity of a number of his ideas, remains an author of the 14th century. Even though this article does not ignore the limits of a comparison of two thinkers, divided by two different religious cultures and by almost 700 years, it claims that a comparison between these two thinkers is a worthwhile enterprise. Despite their cultural and historical differences, their concepts show striking similarities. This article focuses primarily on two aspects of their theories, both are central for an-Na‘im's and Marsilius's project: first, an-Na‘im's and Marsilius's concept of the secular realm in relation to religion; and second, the process of interpreting religious law and the making of secular law. In the context of the second theme, an-Na‘im's understanding of ijtihad and ijma will be of particular interest. The potential conflict between majority rule and religious freedom may not be perceived as a major problem in political theory. However, the article claims that the underlying problem highlights a central issue in (Western) political theory, which is grounded in the conflict between two legal (Western) traditions. One tradition emphasizes the people's absolute sovereign right based on majority decision; the other tradition prioritizes (human) rights over sovereign majority decisions (Langer Reference Langer2010, 905–906). Therefore, this study contributes to the political theory discourse on rights more generally. With respect to the Islamic and Western framework, the article speaks to the comparative political theory (CPT) project (for an overview of recent trends and its critique see Zapf (Reference Zapf2011)). While most of the recent works along the comparative political theory line aim for a dialogue of mutual understanding (Dallmayr Reference Dallmayr, Shogimen and Nederman2008), usually invoking Gadamer's Horizontverschmelzung, or demand an immersion to overcome the otherness of a foreign culture (Godrej Reference Godrej2011), this essay applies the cross-culture framework as a means to evaluate and critique the limitations, as presented by an-Na‘im, of uniting Islam and secularism.
THE SECULAR REALM AND THE RELIGION SPHERE
Abdullahi Ahmed an-Na‘im begins his book with a statement that stresses the need for a secular state to allow a Muslim to exercise his or her religion freely: “To be a Muslim by conviction and free choice, which is the only way one can be a Muslim, I need a secular state” (an-Na‘im Reference an-Na‘im2008, 1). He defines a secular state as one “that facilitates the possibility of religious piety out of honest conviction” (an-Na‘im Reference an-Na‘im2008, 1). In his concept, the state maintains the necessary conditions for sustaining an open civic debate; it appears as an overall mediator, while upholding the state's religious neutrality (an-Na‘im Reference an-Na‘im2008, 7, 37). For an-Na‘im, the state's separation of religion and state — and therefore, the state's neutrality — “is compromised when the dictates of a particular religion, as interpreted by religious authorities or the ruling elite, are made into a prerequisite condition for participation in civic reason” (an-Na‘im Reference an-Na‘im2008, 40). In his view, political authority refers to coercive and exclusive power, while religious authority is moral authority without coercion (an-Na‘im Reference an-Na‘im2008, 51). To ensure the separation of the religious sphere and the sphere of the state, Abdullahi Ahmed an-Na‘im objects to the possibility that one and the same person could have authority in the state and in the religious sphere. For him, allowing one person authority in both spheres would be “dangerous and counterproductive,” and it would bear “the risk of civil strife and violence” (an-Na‘im Reference an-Na‘im2008, 52). One reason for this requirement is found in an-Na‘im's view of human nature. He assumes that human beings tend to favor their own beliefs and views over the views of others (an-Na‘im Reference an-Na‘im2008, 85). If one allows for the overlap of religious and state authority, one would also allow for influencing the state by religious belief. While overlapping sources of authority are one problem for an-Na‘im, he also considers it problematic if religious authorities remain completely independent and unregulated. In such cases, he fears “religious leader might use that independence to undermine the political authority of the state” (an-Na‘im Reference an-Na‘im2008, 52). Consequently, the difficulty for the state is to perform the balancing act between freedom and regulation. While maintaining the state's religious neutrality, it must at the same time provide sufficient regulation of religious groups (and their leaders) to circumvent any chance that they might undermine the state's authority. If the state falls short in performing this task, it would jeopardize its religious neutrality: the state is in danger of becoming a religious state. While an-Na‘im demands the state's neutrality, it does not mean that the state's politics have to be similarly neutral. On the contrary (and contravening a core principle of liberal political theory), a religiously neutral state does not exclude the influence of religious principles on state legislation. As long as these religious principles are accepted and supported by civic reason, he does not object to the possibility that religious doctrine becomes state law (an-Na‘im Reference an-Na‘im2008, 139). In other words, while there is (and, as an-Na‘im argues, should be) an interaction between religion/Islam and politics, the state has to remain in its position of neutral observer, moderator, and regulator.
Most of the reasons for, as well as the conditions of, a separation between religion and the state, as outlined above, are shared by an-Na‘im and Marsilius of Padua. Indeed, Marsilius is a strong supporter of the separation of religious and political/state functions and offices and does not allow for any overlapping authorities, either in the secular sphere (one person holds more than one conflicting offices) or as an overlap between religious and political authorities (Koch Reference Koch2005, 145, 225). Similarly, Marsilius draws a clear distinction between coercive (political/secular) power and moral (religious) authority. The following sections will re-examine an-Na‘im's claims from a Marsilian perspective to demonstrate that both authors share a similar conception of the relationship between religion, state policy, and the state.
The specific problem Marsilius responds to in his political treatises is quite different from any 21st century relationship between religion and politics, whether in Christian or Islamic contexts. The general problem he addresses, however, is nonetheless similar in both the 14th and 21st centuries. Specifically, Marsilius is writing at the peak of a struggle for domination between Pope John XXII and the elected (but not crowned) Roman emperor, Ludwig the Bavarian (as he was polemically called by the Pope). It is, as Hilary Seton Offler (Reference Offler1956) has phrased it so prominently, “the last struggle” between spiritual and temporal power, which finally led to the modern version of a separation of church and state, as most Westerners know it. Marsilius's key question is this: how much influence and authority should religion and religious authorities have in the state's political sphere without jeopardizing the state's authority and the independence of the civic sphere?
Marsilius of Padua, as an author of the 14th century, does not have a modern concept of a constitutional territorial state. However, if one is willing to accept some significant differences between a premodern and a (post)modern concept of the “state,” and even without stressing the imagination too much, one can locate a clear distinction between the state and the state's policy in Marsilius's theory, one that is central in an-Na‘im's reasoning. Marsilius, of course, does not speak of the “state” but refers to either civitas or regnum. I will nonetheless refer to it as state, because Marsilius describes an almost fully developed premodern version of a modern state. As representative of the state, it is the ruler's responsibility and authority to ensure that all necessary functions of the state are available and commensurate. In their function as legislator (legislator humanus), the citizens (universitas civium) determine the state's policy, which binds the ruler (DP 1.12.4). In other words, Marsilius draws a clear line between the state (the ruler and functions under his authority) and the state's policy (the state's law that remains in the citizens’ domain).
Whereas an-Na‘im discusses the problem of overlapping authorities only in the context of the religious sphere versus the state's neutrality, Marsilius addresses this issue twice: first in a more general way and second by outlining the priestly status in relation to the secular sphere. At first, he explores the problematic of overlapping authorities in the context of early communities. These communities lack the necessary quantity of members to fulfill all necessary functions of society appropriately. In such an early community, it is likely and almost unavoidable that one person serves in multiple, and potentially conflicting, functional roles, which may lead to injustices. If the community does not have rules set up to compensate injustices, Marsilius argues, it may lead to fights between neighbors and, finally, to the community's disintegration (DP 1.3.4). While this is unavoidable in early communities, Marsilius does not allow for any overlap of offices in developing communities because they possess the necessary resources to avoid injustices caused by an overlap of authorities. Later, he again addresses the topic of overlapping authorities in the relationship between religious and secular power. He discusses this issue primarily in the context of the priests’ status in society and in the relationship between emperor and pope. For the background of the priests' position in society, he also takes up the question of coercive (political) versus moral (religious) authority and the need to control or supervise religious institutions and representatives of the Church.
Although neither Christian priesthood nor papacy has a true equivalent in Islam, the underlying problem Marsilius examines is the same one an-Na‘im studies. While priests, and in particular, the papacy, claim to have power over the temporal sphere (Pope Boniface VIII even went so far to claim that all human beings must be under the papacy's jurisdiction in both temporal and spiritual matters), Marsilius argues that the priests’ task in society is to “give to men's morals such adequate guidance as is expedient and necessary for the status both of the present and the future world” (DP 2.17.8; Nederman Reference Nederman2000, 75). That is all. While his focus rests on Christian priests, he nonetheless considers priesthood (and religion) as something natural. Priests, therefore, are a natural part of the body politic (DP 1.8.1); the priestly office belongs to the necessary offices of the civitas (DP 1.5.1; Nederman Reference Nederman1992, 385). Marsilius stresses that all nations have had priests in their communities, for the simple reason that priests benefit mankind in the present world and in the future world. Moreover, most religious systems promise to reward the good and to punish the evil in the future world. Therefore, through their exhortations and admonitions of eternal damnation, priests also help keep moral standards at a high level (DP 1.5.10; 2.22.8). Ideally, Marsilius expects that priests will provide good examples of moral virtue, follow Christ's example of poverty, and live a morally good life — but actually, they claim temporal power and coercive secular force.
Marsilius, however, does not seem to go as far as an-Na‘im (at least, he does not state it explicitly), who claims that “[s]ecularism needs religion to provide a widely accepted source of moral guidance for the political community, as well as to help satisfy and discipline the needs of believers within that community” (an-Na‘im Reference an-Na‘im2008, 276). From the viewpoint of a pluralist modern society, an-Na‘im's assumption that the secular state needs religion is at least problematic. First, different religions may have different moralities. These different moralities may cause conflicts in society. Second, if the claim is true that morality cannot exist without religion, then atheists or unbelievers cannot have any morality. Moreover, modern pluralist societies far too often display conflicts between religious moralities and the moral standards of a pluralist society. One classic example of this conflict is the question of whether homosexuality justifies the denial of equal rights in society, based on the religious doctrine that considers homosexuality a sin and that applies to fundamentalist Christians and Muslims alike (Hart Reference Hart and Olthuis2000, 91–126). Marsilius agrees with an-Na‘im that religious authorities should have moral authority, but should be excluded from worldly coercive power. However, we have no textual evidence that Marsilius believes morality without religion is impossible. Moreover, in Marsilius's eyes, the Church's claim to coercive power violates its principle of a distinction between moral (religious) and coercive (political) authority. Consequently, one can argue that he does not want the Church's morality to be coercive. Abolishing the strict separation of religious authority and the coercive authority of the state has for an-Na‘im and Marsilius the same consequences: violence, strife, and even a civil war-like situation. On the one hand, an-Na‘im highlights the difficulties of maintaining a balance between the state's neutrality and, simultaneously, providing sufficient regulation over religious groups and their leaders. Marsilius, on the other hand, first has to integrate the officials of the religion (priests) into the secular realm. Contrary to medieval (and early modern) custom, he integrates them by extending citizenship to the priestly part. By doing so, Marsilius is able to accomplish two things at the same time. First, he disallows two separate but conflicting jurisdictions (Canon Law versus Civil Law — which has an equivalent in Shari‘a courts, primarily responsible for family law and civil jurisdiction in a number of Islamic states today) that had allowed priests to commit temporal deeds without the fear of punishment (DP 2.8.8). Through this move, Marsilius guarantees that religious leaders, phrasing it in the word of an-Na‘im's concern, will not be able to use their “independence to undermine the political authority of the state” (an-Na‘im Reference an-Na‘im2008, 52). Second, Marsilius argues, in keeping with an-Na‘im's statement, that “those who control the state cannot use its coercive power to enforce their own beliefs” (an-Na‘im Reference an-Na‘im2008, 56) and that those who control religion cannot abuse the state's coercive power for their purposes. No priest, even though priests are citizens and can take part in public debate, is allowed to hold a political office. Indeed, Marsilius excludes priesthood from all worldly endeavors, including physical labor, to ensure that priests will be able to fulfill their priestly duties properly (DP 2.14.9; Koch Reference Koch2012a, 180–181). With this move, Marsilius's separation between the religious and political spheres is even more radically drawn than in most liberal societies today. Marsilius's next move might even go a bit too far for an-Na‘im: Marsilius makes the case that appointing, as well as deposing, priests must remain at least under the state's (either the ruler's or the believers’) supervision (DP 2.8.9). To use a contemporary example, the deposition of a priest who abuses children falls under the state's authority, not under the authority of any Church official. Moreover, he sees the need for the state to regulate who and how many people are allowed to become priests, to keep the balance of all necessary tasks in the commonwealth undisturbed. Indeed, Marsilius fears that if they grow in uncontrolled numbers, they might become such a large part of society that they could resist coercive power and overwhelm the community in despotic fashion. The outcome of this scenario would be a state run by priests/religious officials, and the state's secular realm would be destroyed immediately.
IJTIHAD AND IJMA: THE INTERPRETING OF RELIGIOUS LAW AND THE MAKING OF CIVIL LAW
Despite the cultural and historic differences between Marsilius of Padua and Abdullahi Ahmed an-Na‘im with respect to the relationship between religion, the state, and the state's policy, both authors are in agreement about core principles. However, when it comes to the rules that should be applied to the (re)interpretation of religious law, whether it is Shari‘a or Christian divine law, and to the creation of human law, Marsilius and an-Na‘im still agree about most of their principles, but differ in significant respects. The most visible difference between the two thinkers can be located in an-Na‘im's attempt to apply the same rule to Shari‘a reform as he does to state legislation, while Marsilius favors two different procedures for the two realms in question. With respect to the spiritual sphere, Marsilius promotes the idea of a general council that represents all of Christendom. When state legislation is addressed, however, he prefers public debate of all citizens, which resembles an-Na‘im's preference for both spheres. Yet, an-Na‘im does not need two different procedures simply because he argues only on the basis of a modern sovereign state and does not seem to have Islam as a whole in mind. Because the reinterpretation of Shari‘a lies in the responsibility of the state's populace, he implicitly applies the post-Reformation theorem cuius region, eius religio under the modern conditions of the people's sovereignty. Consequently, the “hotly debated contest over ‘which,’ ‘whose’ and ‘how much’ ‘islam,’ as opposed to ‘Islam,’” (Sadiki Reference Sadiki2004, 9) is not addressed by an-Na‘im, because his theory operates entirely in the realm of the state and does not discuss any differences between Sunni and Shi'i Islam or any other Islamic branch. Because an-Na‘im's focuses on Islam in the state and not on Islam or islams in general, the following outline will focus primarily on an-Na‘im's principle of Shari‘a reform in relation to state legislation and on Marsilius's procedure for civil secular legislation.
In addition to the shared principle of reciprocity that has been identified by Cary J. Nederman as one of the core conceptions in medieval political thought, which plays a central role in Marsilius of Padua's political theory (Nederman Reference Nederman2009, 39, 75), both authors rely heavily on variations of an-Na‘im's concepts of ijtihad and ijma that he seeks to apply to both Shari‘a reform and state legislation. Before we discuss these principles, however, it is necessary to attend to a most important question that must be answered whenever a decision-making process is addressed: the question of who should be allowed to participate. Robert A. Dahl calls this “the problem of inclusion.” More precisely, one has to answer the following questions: “What properly constitutes the demos? Who must be included in properly constituted demos, and who may or must be excluded from it?” The question of inclusion is related to the question of whether those who are excluded — although they are expected to obey the law — can make a reasonable claim for being included (Dahl Reference Dahl, Laslett and Fishkin1979, 109).
Both authors share a preference for being as inclusive as possible. Their inclusiveness, however, has to be seen in historical context. For a 14th-century author like Marsilius of Padua, it is unthinkable to have women included in the demos/decision making. For an-Na‘im, writing in the 21st century, it would be unthinkable to exclude the female part of the populace from participation in public debate. The same applies to non-Muslims. an-Na‘im rejects the exclusion of any person from civic reason, “done in the name of nationalism, secular ideology, or religion” (an-Na‘im Reference an-Na‘im2008, 41). Indeed, in his attempt to modernize Islam he is an outspoken advocate of gender equality (Mirza Reference Mirza, Richardson and Sandland2000, 200; Ingrim Reference Ingrim2004, 223). Marsilius, of course, does not have a (modern) concept of gender equality, nationalism, or secular ideology. However, viewed from his basic theory, he would undoubtedly subscribe to this theorem.
Marsilius applies the doctrine of quod omnes tanget, ab omnes comprobetur. To be part of the decision making process, one has to have the status of a citizen. For Marsilius, civil status depends primarily on age and gender. All free males of mature age who are not foreigners are citizens (DP 1.12.4), though he retains an open backdoor that would allow for the exclusion of individuals, because he also demands an interest in the preservation of the community. A malevolent person, for example, who has no material interest and even jeopardizes the community's well being, can be excluded from the decision-making process (DP 1.13.2–3). At first glance, it might look as though Marsilius violates his quod omnes tanget rule. However, he assumes that malice or incapability applies only to a very small number of the populace. In modern society, the group of people Marsilius has in mind may imply mentally ill people or criminals who, under certain circumstances, lose their full status as citizens. However, contrary to medieval custom, property or a particular social status is not necessary to be part of the citizenry. Indeed, in Marsilius's eyes, exclusion of any group from the decision-making process (legislation) would be tyrannical, because Marsilius fears that only a portion of the citizens would be allowed to decide about the laws that govern society. Were this to happen, these laws would potentially favor those who are involved in the decision and disfavor those who are excluded (DP 1.13.5). As Cary Nederman has put it, “[w]hile Marsiglio agrees with the Aristotelian enumeration of six social classes […] he declines to draw the conclusion that the performance of the manual tasks associated with farming, the crafts and commerce disqualifies persons from membership and participation within the civil order” (Nederman Reference Nederman2002, 97). He, like an-Na‘im, does not exclude a person based on religion. Neither does he base any exclusion on religion explicitly, nor does such exclusion suit his general theory.
Having established that an-Na‘im and Marsilius agree upon an inclusive understanding of the demos, we have to investigate how this demos should come to any agreement on state legislation, religious doctrine, and the integration of religious doctrine into state legislation. As outlined earlier, an-Na‘im aims to utilize the Islamic principle of ijtihad in the decision-making process, following a practice that is closely related to consensus (ijma). Ijma itself is also open for (re)interpretation. While an-Na‘im does not discuss this term in Islam and the Secular State, he addresses questions of definitions and meaning in Towards an Islamic Reformation. As with many other key terms in Islam, ijma is not an uncontroversial concept. an-Na‘im describes the controversies as follows:
What constitutes ijma? Does it require complete unanimity or can it be formed despite some disagreement or minority dissent? Whose ijma is binding upon whom? It is the consensus of the Companions and their community in Medina, that of Muslim scholars and jurists in general (or in a given locality), or that of the totality of Muslims? Is it the ijma of a single generation? Is the ijma of an earlier generation (or generations) necessarily binding on all subsequent generations? All these and other questions relating to the nature and scope of ijma were, and continue to be, controversial (an-Na‘im Reference an-Na‘im1990, 24).
These controversial interpretations and views on ijma, however, allow for an adjustment of its meaning to suit contemporary needs. In Islam and the Secular State, an-Na‘im favors consensus of the majority (an-Na‘im Reference an-Na‘im2008, 277). Whether this new interpretation will be accepted, at least among a majority of Muslims, be they scholars or ordinary believers, is quite a different question. A similar controversy can be ascribed to ijtihad. We do not even have any scholarly consensus about its historic relevance. Dien (Reference Dien2004, 28) argues that it lost its influence in the 13th century, but Hallaq (Reference Hallaq1984) aims to demonstrate that this principle never lost its importance. Amanat (Reference Amanat, Amanat and Griffel2007, 123) highlights its importance for 14th-century Shiite jurists and the elaboration of Shiite private law. Yet, for Dien and Hallaq, their primary concern is the Sunni tradition.
According to Islamic tradition, all (re)interpretation must follow an established legal principle or method. In search of a method that is established within Islam and that can facilitate public debate, an-Na‘im argues that the state should allow for the application of ijtihad — a legal concept that refers to the formation of an independent legal opinion by a legal expert — as a principle of public discourse (an-Na‘im Reference an-Na‘im2008, 14). Although this principle was originally invoked by legal experts (mujahid) possessing an explicitly defined minimum of legal knowledge (Hallaq Reference Hallaq2005, 146), an-Na‘im aims to revitalize and democratize the principle of ijtihad. For him, “all Muslim men and women have the religious obligation to decide for themselves and to express their views on matters of public concern” (an-Na‘im Reference an-Na‘im2008, 19). an-Na‘im, however, is not the only scholar who attempts resurrection of ijtihad. In current debate, this principle of independent reasoning is usually discussed in the context of freedom and democracy. As David Smock (Reference Smock2004, 5) puts it in his summary of a panel discussion, “[w]ithout freedom and democracy, which are sharply limited in the Muslim world and particularly in Arab countries, ijtihad cannot be performed. Democracy is the key to opening up ijtihad and ijtihad is the key to solving the principle problems confronting the Muslim world today.” Similarly, Abdullaziz Sachedina (Reference Sachedina2001, 133) calls for each generation's mujahids to reinterpret and to adjust Shari‘a.
Contrary to these scholars, an-Na‘im aims to have the authority to exercise ijtihad expanded to all Muslims. In this sense, his claim is in keeping with Dahl's demand for the citizens’ “enlightened understanding,” though Dahl (Reference Dahl2006, 9) considers it a question of opportunity and not, as an-Na‘im, an obligation. Contrary to Dahl, whom he does not invoke, an-Na‘im does not emphasize or demand a secular public debate and favors the integration of religious reasoning into public debate (an-Na‘im Reference an-Na‘im2008, 98–100). In distinguishing himself from Rawls's conception of “public reason,” an-Na‘im introduces the term “civic reason,” though he falls short in defining “civic reason” to his reader comprehensively. In addition to providing different definitions of civic reason (an-Na‘im Reference an-Na‘im2008, 7, 38, 85, 93), though he does not necessarily follow them, an-Na‘im “emphasize[s] that [his] conception of civic reason is tentative and evolving, and [he] take[s] it as an advantage not be too invested in a particular or detailed view on the subject” (an-Na‘im Reference an-Na‘im2008, 101).
Yet, an-Na‘im is not anti-Rawlsian per se, although his understanding of Rawls embraces a Habermasian Rawls by reading Habermas's (Reference Habermas1995) critic of Rawls not as criticism, but as a clarification of the Rawlsian position (an-Na‘im Reference an-Na‘im2008, 100; for the differences between Rawls and Habermas see Rawls (Reference Rawls2005, 373–385)). While Rawls only allow for introducing comprehensive doctrines in particular circumstances but excludes background culture's “many forms of nonpublic reason” (Rawls Reference Rawls2005, 443–444), an-Na‘im argues that the Rawlsian distinction between public reason and comprehensive doctrine applies to the particular context of the United States only, but not to “postcolonial Islamic societies in Africa and Asia” (an-Na‘im Reference an-Na‘im2008, 101). Consequently, an-Na‘im's concept of civic reason is wider, and closer to Habermas's critique of Rawls, than Rawls's conception of public reason. However, as Mohammad H. Fadel (Reference Fadel2007) has shown, Rawls's concept of “public reason” can be successfully applied for the development of principles allowing for Shari‘a reform, a project, in the way outlined by an-Na‘im in one of his earlier works (an-Na‘im Reference an-Na‘im1990), to which Rawls is rather sympathetic (Rawls Reference Rawls2005, 461, n. 46).
While there is consensus about the existence of the principle of ijtihad as one established method of legal interpretation in Islam, no consensus exists about the “when” and “where.” an-Na‘im, however, assumes that “the principles and rules that are now accepted as part of Shari‘a through ijma […] may have been initially conceived through the ijtihad of one or more Companions or early jurists” (an-Na‘im Reference an-Na‘im1990, 27). Whether the gates of ijtihad were ever closed or not, for an-Na‘im it is not sufficient to apply the original or historic principle of ijtihad because it was used by mujtahids (legal experts), not by ordinary believers. It has to be adjusted to contemporary needs. He argues that “contemporary Muslims have the competence to reformulate usul al-fiqh and exercise ijtihad even in matters governed by clear and definite texts of the Qur'an and the Sunna as long as the outcome of such ijtihad is consistent with the essential message of Islam” (an-Na‘im Reference an-Na‘im1990, 28–29).
an-Na‘im's goal, however, is a reformation of Shari‘a. Its end is Muslim self-determination. He assumes that under traditional conceptions of Shari‘a, neither self-determination nor an adjustment by Islam to modern principles of constitutionalism is truly possible (an-Na‘im Reference an-Na‘im1990, 185; Reference an-Na‘im2006, 99). For this purpose, he invokes the method and approach of Mahmoud Mohamed Taha, the Sudanese advocate of Islamic reform who was convicted of apostasy and executed in 1984. Still, his approach an-Na‘im regards “to be the most appropriate means for constructing the modern public law of Islam” (an-Na‘im Reference an-Na‘im1990, 186). an-Na‘im refers to Taha quite often, adopts a number of principles from him, and considers Taha as an inspiration. However, this reliance on Taha is problematic. Both are interested in reforming Islam and in adjusting Shari‘a to the requirements of the 20th and 21st centuries. While Taha has been considered a liberator of Muslim women, he nonetheless defends stoning to death or whipping as the appropriate punishment for fornication (Taha Reference Taha and an-Na‘im1987, 74; Mahmoud Reference Mahmoud and Cooper2000, 112). Moreover, he was a supporter of pharaonic circumcisionFootnote 2 (Mahmoud Reference Mahmoud2007, 16–17) and justified slavery of non-Muslims (Taha Reference Taha and an-Na‘im1987, 137; Mahmoud Reference Mahmoud2007, 152). One might argue that these positions are not central to Taha's reform project. However, he introduces precisely while discussing these issues his concept of reciprocity that is so important for an-Na‘im. Moreover, as Ali Gomaa, Grand Mufti of Egypt, argued, circumcision is not an Islamic tradition, even though it is practiced in some Muslim countries. In 2007, after the death of an 11-year-old girl, he issued a fatwa that declared: “The harmful tradition of circumcision that is practiced in Egypt in our era is forbidden” (Esposito Reference Esposito2010, 130). According to Mohamed Mahmoud, Taha's reform project did not have the construction of a secular state as its goal, but he instead sought a religious state that was in keeping with his (new) understanding of Islam (Mahmoud Reference Mahmoud2007, 31). an-Na‘im, by contrast, pleads for a secular state in which a Muslim can adhere to his or her religion freely, without any restrictions. In addition to the concept of reciprocity, however, an-Na‘im relies primarily on Taha when it comes to the idea that Islam and its Islamic law need to develop over time, and this evolution has a teleological notion, rather than being already fully developed. an-Na‘im applies this principle to the process and the outcome of public debate when he writes that it “should evolve over time through trial and error rather than be described in detail for all situations and issues” (an-Na‘im Reference an-Na‘im2008, 97). This principle is in keeping with Marsilius's belief that both communities and their rules (laws) will develop over time, from being less perfect to becoming more perfect, based on reason and experience (DP 1.3.5; DP 1.4.1). While this principle is widely known, Marsilius adopts this theorem from Aristotle. Thus, the greatest affinity between Marsilius and an-Na‘im persists at the core principles of their decision-making processes. For an-Na‘im, when applying his broadened concept of ijtihad, he focuses on reason and freedom of debate, i.e., the “truth” of a belief should not jeopardize the outcome of public discourse:
To insist that the rationale for public policy and legislation should be accessible to all citizens to accept or reject does not assume that participants agree on the rationale for specific proposals. The point is that the rationales to be considered are accessible to all to debate freely and are not dependent on the religious beliefs of some citizens, which are beyond debate by others. Agreeing on one or more rationales for public policy is a process of continuing conversation about what is acceptable, a means of evolving an overlapping consensus on an issue, whereby people agree on the outcome despite their disagreement as to why they agree on the outcome. […] The main point to emphasize is that the whole process is about persuasion and compromise, a negotiation, and not mutual assertion of absolute religious dogma that does not permit negotiation and compromise (an-Na‘im Reference an-Na‘im2008, 96).
Marsilius would agree with these general principles, but he is far more concrete when it comes to actual procedures. He addresses this practice with the core of his secular political theory: the law-giving process. For Marsilius, it is certain that only the whole citizenry can serve as the legislator. His primary reason for making this claim is his assumption that the civitas, or the commonwealth, is a domain in which no citizen is under another man's control or domination. Indeed, Marsilius labels situations where a single group or person, rather than the whole, determines the rules of the commonwealth as despotic (DP 1.12.6). This postulate is in keeping with an-Na‘im's principle of constitutional governance, which he defines with James T. McHugh as limited and controlled governmental power in respect of the citizens’ fundamental rights and rule of law, not the rule of a despotic elite who rules by its will and not according to the law (an-Na‘im Reference an-Na‘im2008, 101). Although the distinction between “rule by law” versus “rule by desires,” belongs to the classics in political theory, the Marsilian approach nonetheless is remarkable because he does not even want to allow for a legislature of elected representatives. He fears that its members would favor themselves and their interests over the interests of the community (DP 1.13.5), which is in keeping with an-Na‘im's view of human nature as outlined earlier. Moreover, it would violate the principle that in a community of free men, each citizen has to have the right to determine under what law he wants to live (DP 1.12.7). Thus, he argues for the necessary consent of all citizens in the law-giving process. His reasoning is simple: each citizen knows whether a law is in his interest or whether it would bring harm instead of supporting the common good. Consequently, according to Marsilius, each citizen is able to judge whether a law is good or whether it needs to be improved, revised, or rejected (DP 1.12.2; DP 1.13.8). In keeping with the rule that no law should favor a certain group in society while disfavoring the whole commonwealth, Marsilius insists upon general consent for the approval of a law. These principles, first outlined in the context of the creation of human law, are also applied when Marsilius discusses whether prescripts of divine law or religious doctrines could become part of human law, and therefore be equipped with coercive power. For the Christian equivalent of Shari‘a (re)interpretation, Marsilius introduced a parliament-like institution of priests and laymen, which would represent all Christendom and be called the general council (DP 2.20.2; Koch 2012b, 171–177). The members of this council are elected representatives, and their task is to discuss doubtful aspects of scripture/divine law (DP 2.19.3). Though divine law's purpose is to provide proper guidance for the eternal life and should not be enforced by humans in this world, Marsilius suggests that the legislator/citizenry can provide single sentences of divine law with coercive power. This can happen if the citizens agree that a certain prescript of divine law might also benefit the temporal realm. In such cases, Marsilius recommends that the same rules apply as he has outlined for the approval of any other civil law. The people must negotiate over it; every single citizen has the right to suggest alterations or call for the rejection of the law; it can only become part of enforceable human law if it has been approved by the consent of all. From this general principle, it follows that Marsilius would not agree with an-Na‘im's claim that “those who control the state must persuade or include the vast majority to submit to their power and authority, which they tend to do by claiming to represent the will of the majority or acting in their best interest” (an-Na‘im Reference an-Na‘im2008, 27). Majority rule (through the elite) would, in Marsilius's eyes, favor whatever majority is in power, not the common good. According to Marsilius's theory, such a law would be despotic. Although it might oppose a permanent majority, majority rule “cannot mean that a particular political majority is allowed to take over the institutions of the state to the exclusion of other political forces in the country” (an-Na‘im Reference an-Na‘im2008, 277). Viewed from Marsilius's theory, an-Na‘im falls in the trap he tries to avoid: his preference for rule by the majority, although it is much more practicable than Marsilius's theorem of consent, would allow some members (the majority) to impose their beliefs on their fellow citizens and consequently violate their rights (an-Na‘im Reference an-Na‘im2008, 278–278). If a majority would have agreed upon making a precept of Shari‘a into law as an outcome of a free and public debate, and “other citizens can debate, accept, or reject without passing judgment on the religious belief of that Muslim” (an-Na‘im Reference an-Na‘im2008, 279), this law would still force non-believers to follow a religious law, even though they belonged to the minority who opposed it. At least in theory, we would not have such a disserved minority in Marsilius's thought, but he nonetheless gives the idea that aspects of divine law could become human law. Therefore, a violation of divine law could have consequences for the civil status of a citizen. In his later work, the Defensor Minor, Marsilius argues that human law should not be used to punish any violation of divine law. Punishments causing an infringement of a convicted person's civil status pertain to civil law, not ecclesiastical law (DM 15.6). While marriage is traditionally considered a sacrament in the Catholic Church and it obliged religious authorities to decide about divorces, Marsilius transfers marriage (and divorce) to the civic realm. On these questions, the Church's judgment, again, may influence the civil status of a citizen and therefore jeopardize the coercive authority of the secular realm/the state. For Marsilius, “marriage is not essentially a spiritual matter” and “no coercive judgment about it pertains to bishops or presbyters” (DM 15.10). Moreover, to decide whether a certain degree of blood relation disqualifies a man and a woman to marry depends entirely on the human legislator's decision and does not belong to the authority of any priest or bishop (DM 16.1). Marsilius's reasoning behind his position is that he needs to over-rule any priestly interference on whether a marriage is licit or not. This interference is already of significance for ordinary citizens; it is even more relevant for the ruler, who cannot accept any other authority than the human legislator — and therefore human law — to decide whether his offspring is legitimate. This problem is even more intense in Islam because all family law is related to Shari‘a. Therefore, to maintain the secular autonomy of an-Na‘im's “secular Islamic state,” it needs to follow Marsilius's line of reasoning of Defensor Minor (and Pacis). Otherwise, it risks the state's neutrality.
Here, we touch upon the core problem in an-Na‘im's theory. While it is one thing to jeopardize the state's neutrality, if one applies an-Na‘im's concept one may also risk the individual's right of freedom of religion. It is possible, however, to read an-Na‘im's theory in the tradition of H.L.A. Hart as a “social conversation that represents the community's acceptance” (Dworkin Reference Dworkin1986, 34). In reality, the “community's acceptance” is usually an acceptance of the majority and is less likely to respect or even protect minorities, whether they are religious dissenters or represent another group that is not represented by general community acceptance. an-Na‘im at least nominally invokes constitutionalism and human rights by stating, “[b]ut if Muslims or other believers wish to use state institutions to enforce any principle or rule they believe to be decreed by their religion, they must show it to be consistent with constitutional and human rights safeguards and persuade other citizens through civic reason” (an-Na‘im Reference an-Na‘im2008, 290). However, one finds neither any concrete proposition in Shari‘a and the Secular State in which an-Na‘im outlines how a constitution that safeguards the believers and non-believers rights has to be set up, nor does one find any indications how the constitution may be enforced. To put it in Robert Dahl's terms, “[t]o promise democratic rights in writing, in law, or even in a constitutional document is not enough. The right must be effectively enforced and effectively available to citizens in praxis” (Dahl Reference Dahl2000, 49). The same applies to human rights. an-Na‘im himself refers in his introduction to Human Rights in Cross-Cultural Perspective to the “persistent and gross violations of fundamental human rights [that] continue to occur in most parts of the world” (an-Na‘im Reference an-Na‘im and an-Na‘im1992, 1). Whether it is the Declaration of Human Right or any constitution, without an appropriate insurance and enforcement of either human rights or constitutional rights, “people then can hardly be said to ‘have’ the right at all” (Beitz and Goddin Reference Beitz, Goddin and Beitz2009, 7).
CONCLUSION
What lessons can be learned from a 14th-century Western political theory for Shari‘a reform and democratization in the 21st century? How does this particular problem fit into a more general discourse in the political theory of rights?
Let us first address the problematic nature of majority rule and religious freedom from both of Marsilius's writings. While one might dismiss for practical reasons his demand of consent by all for all jurisdiction, as advocated in Defensor Pacis, it still can teach us a lesson for the question at stake. In Marsilius's times, minority rights were neither publicly discussed nor a recognized issue. In general, it can be assumed that his theory and general concepts are born in a religious and cultural context that is relatively homogeneous, though he responds to a conflict between spiritual and temporal power that involves the following questions, who has the authority to interpret religious law, and who decides about the rules that should govern society? While Marsilius's notion of consent by all, as presented in Defensor Pacis, at least proscribes any religious doctrine from becoming state law, if it is not approved by all, this theorem nonetheless violates the doctrine that there should be no coercion in religion. Both Marsilius and an-Na‘im subscribe to this doctrine, even though their theories go against this concept. Moreover, it also contravenes the belief of freedom to sin that is shared by Christianity and Islam. For instance, under the Marsilian theorem of law making, the recent move of Virginia's Attorney General to instruct the state's public colleges to end policies banning discrimination against homosexuals could become only enforceable law if all Virginians agree to it. In this case, the public argument is not that we have to end antidiscrimination against homosexuals because homosexuality is considered a sin; it is transformed into the perception that it is “contrary to Virginia culture.” It has therefore become a position that would be covered by an-Na‘im's understanding of a legitimate argument in civic discourse, if the majority agrees to it, and could become state law. While this approach seems to be in keeping with the desire of a majority, who would prefer that their religious foundation is at least “a” source for legislation, as stated at the beginning of this essay, it does not protect the minority that has to suffer discrimination. If one applies Marsilius's theorem of Defensor Minor, no religious doctrine could become coercive law if it infringes the civic status of any violator of this religious “law.” Marsilius, however, does not discuss how to handle a religious doctrine that has been displayed in public debate, for instance, as a conservative rather than a religious position, simply because this rhetorical move is not common or even known in fourteenth-century political debate.
While the recent Swiss controversy about the ban on minarets is not an issue about religious doctrine (at least not in a narrow sense), it nonetheless helps to reassess a fundamental issue of political theory that is the underlying problem in Marsilius's and an-Na‘im's theorems, do rights have priority before majority decisions? The answer to this question depends not only on one's ideological point of view but also to a similar extent on the legal system in which the question is raised. Unlike most liberal states, Britain, for instance, does not have a system that allows for judicial review of parliamentary (majority) decisions (Kymlicka Reference Kymlicka1995, 166). Because of its strong tradition of popular initiatives and its constitutional review system, Switzerland displays both legal traditions and may be illustrated by the recent ban on minarets, which was the outcome of a referendum that took place in 2009, initiated by the right-wing populist Schweizerischen Volkspartei. Although the referendum was on the ban of minarets only, in public discourse, the question about the ban of minarets turned into a discourse on the introduction of Shari‘a rights, genital mutilation, and the oppression of women; minarets became a symbol of a supposedly cultural war (Süddeutsche Zeitung, November 30, 2009). Out of 53.4% of the eligible voters who casted their vote, 57.5% voted for the ban of minarets (30.7% of all eligible voters) (Neue Züricher Zeitung Online, November 29, 2009). Although Todd H. Green (Reference Green2010, 642–643) suggests that the popular vote for the ban was casted in defense of Europe's “secular identity” that was “called into question by the increasing presence of Islam in the public sphere,” Green's examples as well as factual evidence seem to point rather to a populist protest movement (The Times, November 30, 2009; Antonsich and Jones Reference Antonsich and Jones2010). Lorenz Langer (Reference Langer2010, 875–904) argues that the ban of the minaret violates the Swiss constitution, the European Convention on Human Rights, and the International Covenant on Civil and Political Rights. However, the Swiss vox populi principle considers the people “the ultimate authority of justice, which also means that the Swiss nation is endowed with the right of self-determination” (Stüssi Reference Stüssi2008, 137). Consequently, the right of self-determination, which is expressed by majority vote, is in potential competition and conflict with the right of a minority's religious freedom. Viewed from a vox populi perspective, the Swiss people have the right to establish whatever law they please, even if it violate human rights standards; viewed from an international law/human rights perspective, the Swiss people would have to limit their legislative sovereignty to the limitations set by international law.
If one locates Marsilius and an-Na‘im in the framework of these two legal concepts, then one finds Marsilius in Defensor Pacis in favor of the peoples’ right to self-determination, while his later concepts (as outlined in Defensor Minor) appears to have a strong preference for the protection of rights, even though Marsilius does not have any concept of modern constitutionalism and does not apply a medieval forerunner of human rights, natural law, in his theory. By contrast, an-Na‘im's theory seems to prefer the people's right to self-determination over rights of individual religious dissenters, unbelievers, or atheists. Religious freedom has a distinct status in the discussion of rights, as religion relates to revealed “truth.” However, a people's right to self-determination might be in conflict with the right of others to (human) rights because, if the right to self-determination is considered absolute, it might be jeopardized by a people's right to self-determination. If one takes human rights seriously, then the conception of human rights is not open to cultural based reinterpretation because these rights belong to human beings as humans. In this sense, a religious dissenter or sinner needs legal protection. Consequently, the popular sovereign needs to restrict herself by allowing the integration of religious law only in the sense that the believer has the possibility to exercise her religion without any coercion that forces others, by state law, to follow the same principles.
Moreover, in today's world, it seems impossible to identify at least one state that is not in one way or another culturally or religiously diversified. an-Na‘im's theory suggests that there will nonetheless be only one public discourse of Shari‘a reform, which implies that the religious minority would have to accept the majority's (re)interpretation of Shari‘a. Therefore, his theory at least needs to acknowledge and address the problems that might occur in societies that are divided between braches of Islam like Sunni and Shi‘i Islam and have members of other religions as citizens or residents.
