Islam, Law and the Modern State

(Re)imagining Liberal Theory in Muslim Contexts

Arif A. Jamal

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781315466798
• Edition: 1
• Topic: Law
• Subtopic: Jurisprudence
• Index: Law

Within the global phenomenon of the (re)emergence of religion into issues of public debate, one of the most salient issues confronting contemporary Muslim societies is how to relate the legal and political heritage that developed in pre-modern Islamic polities to the political order of the modern states in which Muslims now live. This work seeks to develop a framework for addressing this issue. The central argument is that liberal theory, and in particular justice as discourse, can be normatively useful in Muslim contexts for relating religion, law and state. Just as Muslim contexts have developed historically, and continue to develop today, the same is the case with the requisites of liberal theory, and this may allow for liberal choices to be made in a manner that is not a renunciation of Muslim heritage.

1 Developing the concept of ‘justice as discourse’

This chapter seeks to develop a theoretical perspective that can be a useful normative framework for identifying the role of religion in public political discourse and its impact on the making of law in Muslim contexts. This perspective will be a type of ‘liberal theory’. I put this term in quotations because, as will be seen later, this phrase represents not so much a position as a range of positions, albeit a range that might be viewed to be united by certain concerns and normative principles and, more loosely, by certain specific views. The first part of this chapter thus critically discusses a range of liberal outlooks to distil and construct from them a version (since it can only be a version) of liberal theory upon which I will rely for the remainder of this work: a set of principles which I call ‘justice as discourse’.

In the next chapter, I draw out the implications of these principles for the relationship of religion to the state, to civil society, to and for general political discourses, and in relation to law and law-making. Justice as discourse also implies a version of a secular state to a certain extent and what this means will also be discussed in the next chapter. Together, these two chapters provide the theoretical framework for my project. In subsequent chapters, I explain and justify why I believe a framework based on liberal theory is an appropriate framework for political and legal realms Muslim contexts.

The challenge of diversity: liberal theory’s normative commitment

John Rawls noted that a modern society:

is characterized not simply by a pluralism of … comprehensive doctrines but by a pluralism of incompatible yet reasonable comprehensive doctrines. No one of these doctrines is affirmed by citizens generally. Nor should one expect that, in the foreseeable future, one of them, or some other reasonable doctrine, will ever been affirmed by all or nearly all citizens.¹

By ‘comprehensive doctrines’, Rawls means doctrines that cover “all recognized values and virtues within one rather precisely articulated system”.² In other words, it is Rawls’ contention that we live in modern societies defined by a diversity of worldviews or basic outlooks.

One of the key sources of comprehensive doctrines is religion. Indeed, it is religious (as well as philosophical and moral) doctrines that Rawls has in mind when he talks about comprehensive doctrines. While for analytical purposes religious comprehensive doctrines may be treated in the same manner as other comprehensive doctrines, the discussion later will focus on religious convictions and differences for two reasons; firstly, because to talk about Muslim contexts is to talk of contexts defined in religious terms and because of a religious heritage. In the chapters that follow I discuss the problems of such definitions and why I believe, notwithstanding these problems, that one can reasonably talk about ‘Muslim contexts’. The second reason for focusing upon religious comprehensive doctrines is because Muslim communities today face critical issues of the place in their societies of religious outlooks and religious law.

While seemingly stated as a matter of descriptive fact, Rawls’ characterisation of a modern society also contains a challenge. The challenge is one of recognising pluralism, which Christopher Beem has called the central political problem for liberal-democratic regimes. Recognising pluralism means, as Beem notes, that society can no longer be organised around any one conception of the good.³ The launching point for liberal theory is the fact of our diversity as to matters of values and principles, and a willingness to accept this diversity.

Thus, the central liberal question is, as Rawls has stated:

How is it possible that there may exist over time a stable and just society of free and equal citizens profoundly divided by reasonable religious, philosophical and moral doctrines? This is a problem of political justice, not about the highest good.⁴

As a short hand, we might refer to this as the challenge of diversity.

The importance of the challenge of diversity arises especially because Rawls notes that the fact of reasonable pluralism is an assumed permanent fact in the political culture of a democratic society being an inevitable outcome of free human reason.⁵ As we will see later, Rawls’ theory is not about the elimination of this fact but can be seen as embracing it. As Tom Bailey and Valentina Gentile have said: “he [Rawls] is concerned simply with how shared principles for the narrow ‘political’ realm can be elaborated from among the diverse moral values of a society in mutually respectful ways.”⁶ In this respect, we can see Rawls as certainly wanting to address the means by which we deal with our reasonable pluralism but as not hostile to this pluralism – instead, looking for ways to respect it. This attitude is consistent with related strands in liberal theory that also emphasise a respect for diversity as part of a normative commitment.

The first step in addressing this challenge of diversity is recognising the fact of the irreducible pluralism of comprehensive doctrines. A democratic polity must find a way of choosing a course to follow from among the range of different principles, perspectives, values and opinions coming from comprehensive doctrines that may exist among its people. The question is how this might be done, given that the outlooks of citizens may be based on incompatible comprehensive doctrines. In other words, how can we seek to develop some consensus out of possible incompatibility? And, if we cannot develop consensus, then how should decisions be made and directions chosen?

More directly for our purposes, we may ask how and to what extent different outlooks coming from different religious traditions should be allowed to influence decisions about public policy. This is an issue of particular relevance at this moment because, as José Casanova has demonstrated, the (re)emergence of religion into issues of public importance and of public debate, and of political choices, is a widespread phenomenon. It is Casanova’s thesis, in fact, that religions are no longer accepting their confinement to the private realms of life and are seeking to play a more robust role in public affairs. Casanova calls this the deprivatisation of religion and finds examples of it in different locations around the world.⁷

Robert Audi and Nicholas Wolterstorff have also identified the question of religion’s political role as both fundamental and intractable in contemporary societies. They say:

The relation between religion and politics is a perennial concern of political philosophy, but it has never been more important than it is now…. There is a growing conviction that religious ideals should play a larger role in leading modern societies through the crises of our age, and there is – sometimes among the same people – a widespread fear that the religious zeal of some may abridge the freedom of others.⁸

Incompatibility is not, therefore, restricted to the incompatibility of different religious doctrines or convictions, though it does include different religious convictions as sources of comprehensive doctrines, but includes also the potential incompatibility of religion with secular space. Religion may, thus, be seen as a particular genre of comprehensive doctrine and addressed as such.

Liberal and theological responses

Audi and Wolterstorff have outlined two broad approaches to identifying the role of religious convictions in public debate. One view they call the ‘liberal’ view; the other they call the ‘theologically-oriented’ position. Each of these will be discussed in turn, beginning with the liberal view.

It is simple but not inaccurate to say that at the heart of the liberal view is the idea that religion and politics should be separated institutionally.⁹ This is not to say that citizens of religious conviction must resist those convictions impacting their political views, but rather it asks for citizens’ public political participation to be separated from their (by implication, private) religious convictions.

The mainstream liberal answer to the question of diversity, therefore, is essentially two-fold. On the one hand, doctrines that are unreasonable because they are socially deleterious must be excluded. More interesting, however, is the case of diversity of reasonable doctrines. Here, standard form liberalism takes the position that in the face of diversity it is not reasonable to expect others to support reasons (let alone positions) coming from one’s own religious tradition and, therefore, these arguments need to be excluded from public political debate.¹⁰ There are, as we shall see, different institutional models that seek to give expression to the liberal theory’s normative commitment to pluralism. Not all of these are always described as ‘liberal’, because they do not all, or always, share the view of mainstream liberalism that arguments from religious convictions should not be made in public political debate, or at least they moderate such requirements. In spite of these practical differences, (most) alternatives to the mainstream position, and certainly the alternatives that we will consider herein, still share liberal theory’s normative commitment to pluralism and to allowing the full diversity of our thoughts and opinions to be expressed, though, because of the limits that are applied, not necessarily to shape all of our public decisions. It is in this important sense that ‘liberal theory’ can encompass a variety of different institutional positions, which, nonetheless may still be labelled as liberal because of their shared ‘committed-to-pluralism’ perspective. Audi and Wolterstorff’s distinction between liberal and theological positions is thus a distinction not between the normative commitments which underlie these positions but rather with the institutional forms that these positions assert.

In its mainstream institutional position, the liberal outlook owes much to the particular challenge that religious diversity poses to a modern state. In his On the Jewish Question,¹¹ Karl Marx saw what he called ‘political emancipation’ as the solution to the tensions that arise when a confessional state has within it religious adherents of another faith tradition (in this case, German Jews within a Christian state). Political emancipation would emerge when “… the state as state emancipates itself from religion by emancipating itself from state religion – that is to say by the state not professing any religion, but on the contrary asserting itself as a state.” In saying this, Marx further recognised, “It is possible for the state to have emancipated itself from religion even if the overwhelming majority [of the population] is still religious. And the overwhelming majority does not cease to be religious though being religious in private.” In this situation, “Religion is not the spirit of the state…. Religion has become the spirit of civil society, of the sphere of egoism, of bellum omnium contra omnes…. Political emancipation is thus the reduction of man, on the one hand, to a member of civil society, to an egoistic, independent individual, and, on the other hand, to a citizen, to a juridical person.” The goal of this process of political emancipation is limited to the political sphere, it “neither abolishes the real religiousness of man, nor strives to do so”.

Writing in response to earlier theoretical works, Marx’s work presages two important elements of contemporary liberal theory. First, it identifies the tension that can arise in a situation of religious diversity within a population, on the one hand, and religious commitments by the state qua state, on the other. It then distinguishes the solution for resolving these tensions from having to affect individual, private, religious belief, which can happily remain intact. In so doing, Marx’s work also makes the point that the solution occurs at the ‘political’ level – i.e., the level of our public affairs – by separating out individual religious convictions from state religious convictions. As we will see next, contemporary liberal theory draws much from these Marxian lines in recognising tension that religious diversity can engender vis-à-vis the state and positing a ‘political’ level solution to this tension.

Rawls’ political liberalism

Perhaps the most prominent contemporary work which discusses, and in fact establishes, the liberal position as a theory of public reasoning is John Rawls’ Political Liberalism.

In answering the liberal question posed above, it is Rawls’ contention that:

we are to appeal only to presently accepted general beliefs and forms of reasoning found in common sense, and the methods and conclusions of science when these are not controversial … we are not to appeal to comprehensive religious and philosophical doctrines – to what we as individuals see as the whole truth – or to el...

Table of contents

• Cover
• Title
• Copyright
• Dedication
• Contents
• Preface
• Acknowledgements
• Introduction
• 1 Developing the concept of ‘justice as discourse’
• 2 Justice as discourse in application
• 3 Muslim contexts I: history and heritage
• 4 Muslim contexts II: contemporary contexts
• 5 Terms of engagement: (Re)imagining religion, law, state and society for Muslim contexts
• Conclusion
• Bibliography
• Index