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The Shari'ah and Post-Secularisation in the Writings of Khaled Abou El Fadl And Abdullahi an-Na'im

The twin ideas of secularity and secularisation are linked to the freedom of human agency to fashion the world we live in. And without due hindrance from theocratic worldviews or political orders. However, are these two concepts necessarily irreligious or are they simply instances of the perennial negotiation by human beings with the idea of the divine? A 'talking back', if you like, to God: engendering a lively dialogue. This is at the expense of understanding religion as a monologue from above, whereby the 'clergy' assert an exclusive monopoly in the interpretation of sacred texts or symbols. In an Islamic context, knowledge of texts of assumed divine origin is the key to discover 'the good life'.

What is intriguing in the fairly recent relationship between modernity and the Islamic tradition is the space granted to the idea of secularisation, whether convivial or antagonistic. Recent debates on secularisation are no longer satisfied with explanations proposing (1) the decline of religious beliefs and practices, (2) the privatisation of religion, and (3) the differentiation of secular spheres experiencing 'emancipation' from religious institutions and norms (Casanova 2006, 7-8). A 'post-secularisation' of sorts appears to be in the making. I propose to use the term 'post-secularisation' to refer to the process wherein the boundaries between tradition and modernity, private and public, the religious and the secular are breached. This has created multiple opportunities for syntheses rather than clashes between and within cultures.

Among contemporary Muslim thinkers, this is expressed in the sharp line between the sacred, the infallible divine will, and the mundane, fallible human agency. This paper is chiefly concerned with two individuals who have emerged in recent decades as spokespersons for widely divergent views on Islamic reform: Khaled Abou El Fadl and Abdullahi An-Na'im. My presentation is divided into four parts: part one looks at the backgrounds of Abou El Fadl and An-Na'im; the second part will discuss scholarship on secularisation and Islam; part three illustrates the differences between Abou El Fadl's 'ideal Shari'ah' and An-Na'im's 'post-Shari'ah'; and the final part explores the related conceptions of politics and the state in their writings.

PART ONE: The Backgrounds of Abou El Fadl and An-Na'im

Modern Egypt provides the setting for the beginning of Abou El Fadl's current venture of reform. Surrounded by illustrious figures of the Azhari tradition such as Muhammad al-Ghazali, Abou El Fadl learned the traditional religious sciences. The widely renowned Wasatiyyah trend appears to have been instrumental in fostering an Islamic sense of the open-ness to difference. Further studies in Islamic jurisprudence would take Abou El Fadl to the USA. His time in Princeton as a doctoral student allowed him to explore further Islam, jurisprudence and rebellion. Now a professor of law at UCLA, Abou El Fadl has emerged as a robust critic of extremist interpretations of Islam, a committed advocate for women's rights, and a passionate promoter of the reconstruction of tradition along the lines of a revived Islamic pluralism. After the popular uprisings beginning in late 2010, collectively known as 'the Arab Spring', Abou El Fadl has championed democracy and human rights in direct opposition to military rule in Egypt.

Abdullahi An-Na'im's personal experience in post-colonial Sudan can shed more light on the post-Shari'ah project he is presently formulating. A civil war broke out immediately after independence in 1956, casting a dark shadow on the country. In 1968, An-Na'im joined a small religious group organised around Mahmoud Mohamed Taha's 'born-again' mystical experience in prison (El-Affendi 2014, 117). Taha's vision set out the primacy of the Meccan verses of the Qur'an over and beyond the verses revealed in Medina: this vision was epitomised in The Second Message of Islam published a year before An-Nai'm became a member. The very public execution of Taha in 1985 on charges of apostasy by the regime of Ga'far al-Numeiry was a watershed moment for An-Na'im and Sudan in general. An-Na'im has not only adopted the theological premise of a pre-Shari'ah Islam, jettisoning both fiqh (jurisprudence) and the Prophetic polity of Medina, but it is further elaborated in a direction away from Taha's vision of a socialist and democratic Islam. A de facto secularisation in the Muslim past justifies An-Na'im's proposed secularism in the present, in part inspired by John Rawls's public reason.

 PART TWO: Secularisation, Islam and Worldliness

Bernard Lewis, the doyen of Orientalist Studies, takes for granted the 'absence of a native secularism' in Islam and the deep-rooted secularisation of the West. No law other than the Shari'ah exists whereby the state was Islamic and created to be an instrument of Islam by the Prophet Muhammad and subsequently there was 'no need for any separate religious institution'; while Muhammad's spiritual mission was not inherited by his successors, his religious, political and military functions were embodied in the caliphate (Lewis 2002, 111-3). Furthermore, secularisation in the West led to God being 'twice dethroned', first as 'the source of sovereignty' in politics and second as the object worshipped by the nation in religion (Lewis 2002, 118). A more stark contrast could not be made between the Muslim world and a post-Christian West. Jose Casanova notes the problems in the Eurocentric notion of secularisation as 'a universal process of progressive human development' when applied to other world religions and civilisations, particularly the assumed shifts from 'belief' to 'unbelief', from 'traditional religion' to 'modern secularity' (2011, 36). Disputes in the study of secularisation have sought to go beyond the binary of tradition and modernity, and East and West.

Dale Eickelman and James Piscatori have also questioned the wisdom behind assuming an indivisible union between religion and politics. Din wa-dawla (religion and state) proves to be an unhelpful reference point in the discussion of 'Muslim politics', precisely due to the following reasons: first, it exaggerates the uniqueness of Muslim politics; second, it is pervaded by Orientalist assumptions about the 'East' while underlining Islam to be non-rational, emotional and even irrational; and third, it proposes a 'seamless web' characterising Muslim politics without any differentiation whatsoever (Eickelman and Piscatori 2004, 56-7). In effect, the political life of Muslims, correctly understood, is not immune to the vicissitudes of human agency. Worldliness is the norm not the exception.

PART THREE: Between the Ideal Shari'ah and Post-Shari'ah Islam

Islamic law is a misnomer for many Muslim reformers and those who study its subject matter. The word Shari'ah has entered popular consciousness through a monotonous 24/7 media cycle reinforcing the stereotype of a monolithic Islam. Nonetheless, Abou El Fadl and An-Na'im have tried to rehabilitate this term which appears to say, paradoxically, everything and nothing at the same time. They both seek to reframe the basic sources of Islam and by extension the Shari'ah. I will now proceed to illustrate the differences between the ideal of Shari'ah, proposed by Abou El Fadl, and a post-Shari'ah Islam, advocated by An-Na'im. These attempts at reform are motivated by the goal of emancipating religion from the presumed corruption of human agency. They also aim to combat any form of authoritarianism in religion and politics.

The Ideal Shari'ah

Reformist discourses such as those expressed by Abou El Fadl acknowledge the distinction between the ideal Shari'ah and an imperfect fiqh. Kemal Faruki, writing in the middle of the 20th century, noted the critical demarcation between the Shari'ah, pure and divine, embodied in the Qur'an, on the one hand and fiqh, 'a product of the human heart, mind and senses' caught up in time and space, on the other hand (Faruki 1994, 18-9). Returning to Abou El Fadl's writings, there seems to be a moral and intellectual preoccupation with the Shari'ah. It is defined on two planes: first, the transcendent symbol of the Shari'ah which unites all Muslims, regardless of their differences; second, the Shari'ah is understood to incorporate the diverse legal tradition produced by Muslim jurists (Abou El Fadl 2005, 31-4, 39-40). In the latter, however, the previously mentioned distinction between Shari'ah and fiqh plays itself out in the mundane. Fiqh, for Abou El Fadl, is primarily tasked with fulfilling the 'ideals and purposes of Shari'ah (maqasid al-Shari'ah)' in the face of the unavoidable incapacity of human beings to 'encompass the wisdom of God'; as a result, the process of interpretation has a higher moral value than the rule arrived at (2001a, 32-4). The following Prophetic hadiths are invoked: 'Every mujtahid (jurist who strives to find the correct answer) is correct' and 'Every mujtahid will be [justly] rewarded'. A self-aware subjective interpretation of the Shari'ah is involved in a positive process and outcome militating against pseudo theocratic accounts of religion. The Shari'ah is not a clear-cut list of 'do's and don'ts'. Two human dimensions are involved in the interpretation of Islam. First, unequivocally stated rules contained in the Qur'an undergo a transition from the sacred to the mundane when they are interpreted, culminating in fiqh (Abou El Fadl 2003, 30-1). Second, these very rules are subject to a higher moral horizon. Abou El Fadl states that 'If these specific legal injunctions [in scripture] lead to results that are contrary to the Islamic moral values, then, depending on the circumstances, they should be re-interpreted, suspended, or negated' (2001b, 148). In a very profound sense, the Shari'ah is a never-ending search for God's law, which is simultaneously subjective and moral. The eternal law of Islam is inaccessible to human beings in a constant state of error (Abou El Fadl 2005, 150-1).

Post-Shari'ah: The Evolution of the Shari'ah

An-Na'im's departure point for his post-Shari'ah project begins with Mahmoud Taha's vision of two messages of Islam: the inferior iman and the superior islam. Taha preached a message of the evolution of the Shari'ah, leaving behind much of its juristic contents, for an entirely new religious framework. In the Qur'an, Meccan verses (primary and postponed) are contrasted with Medinian verses (secondary and contextual); the glaring difference between these texts is not time or place, but rather audience (Taha 1996, 31-2, 125-6). The perfection of the 'Islamic Shari'ah' lies in its ability to continuously evolve (55:29: 'Every day He [reveals Himself] in a fresh state') in tandem with the evolution from Medinian verses to Meccan verses (2:106: 'Whenever We abrogate any verse or postpone it, We bring a better verse, or a similar one. Do you not know that God is capable of everything?'), the putative abrogation of the latter is merely a postponement until now, the 20th century (Taha 1996, 39-41). Taha's division between Meccan/Medinian verses can be readily discerned in An-Na'im's writings. The 'evolution of Islamic legislation' consists of dispensing with the Shari'ah driven by rethinking abrogation or naskh as a postponement of the verses revealed in Mecca (An-Na'im 1990, 13, 21, 34-5, 52-3, 57-60). The Shari'ah is argued by An-Na'im to be essentially a human construction. Its concept and content are negotiable and can only be known and applied through human agency, and principles such as qawama (guardianship), dhimma (protected person) and jihad ('holy war') were 'concessions' to 'the social and economic realities' of the past (An-Na'im 2008, 2-3, 134-6, 282-4). According to An-Na'im, the Shari'ah is virtually synonymous with fiqh, both creations of human interpretation, and are 'difficult to distinguish' (2008, 35). The Islamic tradition is bypassed by An-Na'im (Esposito 2010, 13-5) in order to make a clean slate in his post-Shari'ah reform. Similarly, the maqasid al-Shari'ah is found wanting. A 'high level of abstraction' betrays, An-Na'im argues, a set of principles which 'are neither distinctively Islamic nor sufficiently specific for the purposes of public policy and legislation' (2008, 35-6). Both the Shari'ah and maqasid are unable to achieve human rights within the context of the modern state.

PART FOUR: Politics and the State

Constitutionalism has been variously justified within an Islamic frame of reference either invoking the past or admitting its novelty. Both Abou El Fadl and An-Na'im eschew an 'apologetic' discourse on politics inspired by Islam. No anachronistic claims about the Muslim past are made. In this part of my paper, I will explore the related conceptions of politics and the state.

God's Law versus State Law

According to Abou El Fadl, the state is not the only mechanism available for Muslims to realise the Shari'ah. Opposed to a state-centric conception of the Shari'ah (or territorially-bound state), he proposes the centrality of the individual and moral communities in discharging its duties (Abou El Fadl 2003, 222-3). The formation of a Shari'ah state, an artificial construct, would invariably foreclose the potential of the latter: in other words robbing the Islamic message of its universality and transcendentalism (Abou El Fadl 2003, 225-6). I would argue that an Islamic state is ruled out by Abou El Fadl to fulfil the values of Islam. And moreover, 'a religious state law is a contradiction in terms' due to the state exercising 'subjective agency' in the 'articulation and enforcement' of law: God's law can never be state law and vice versa (Abou El Fadl 2004, 34-5). However, Islam does play a public role in supplying a set of ideals and rights to be pursued by the state without making it specifically 'Islamic'. Although shura (consultation) has had an ambiguous career, for Abou El Fadl, the notion points to 'more broadly, resistance to autocracy, government by force or oppression' (2004, 17-8). Tellingly, shura is not regarded to be the equivalent to democracy. Any proposed political system informed by Islam ought to incorporate individual rights, a key cornerstone of liberal democracy. These rights are to be derived from the maqasid al-Shari'ah, namely the protection/preservation of religion, life, intellect, lineage or honour and property, in the context of the tried and found acceptable 'constitutional democratic system of government' (2004, 23-4, 27, 29; 2005, 187-8). Islam's jurisprudential traditions, especially its moral clout, are deployed as intellectual resources to craft a novel synthesis with modernity.

Constitutionalism and the Secular State

Mahmoud Taha is cited as an authoritative figure by An-Na'im. His teacher is credited with formulating a constitutionalism which sought to strike a balance between complete individual liberty and total social justice; life, liberty and dignity of the citizenry are principal values (An-Na'im 1990, 97-8). The framing of Taha's ideals by An-Na'im appears to mirror the trinity of life, liberty and the pursuit of happiness enshrined in the American Declaration of Independence of 1776. Taha had arrived at the conclusion that democracy was crucial in realising the dignity of man, safeguarding the 'right to make mistakes', while shura, contained in the Medinian verses, is a subsidiary principle to be left in the past (1996, 159-61, 166). An-Na'im somewhat revises a stance which previously took for granted the symbiosis between the nation-state and constitutionalism (An-Na'im 1990, 7-8, 71-2). Rather, an incongruence between territory and ethnicity is better explained by 'the territorial state' wielding a Weberian monopoly of violence, which is bureaucratic, expansive and sovereign (An-Na'im 2008, 86-7). For An-Na'im, his interest in constitutionalism can be traced to it being 'a comprehensive and dynamic set of values, and with social and political institutions and processes' (2008, 101-2). Shari'ah plays little or no direct role in the state: the religious nature of the Shari'ah conflicts with the inherently secular character of the state (An-Na'im 2008, 15, 267-8). Instead, An-Na'im proposes a 'civic reason', echoing John Rawls's public reason, to mediate differences of opinion among citizens, Muslim and non-Muslim. Civic reason pertains to the ability to justify legislation and public policy according to reasons which can be contested by one's fellow citizens in a spirit of civility and mutual respect, and without any reference to religion (An-Na'im, 7-8, 85, 100-1). The institutional separation between Islam and the state (neutral concerning all religions) is complemented by a link between Islam and politics (An-Na'im 2008, 1, 4-6, 8, 28-9, 89).

FINAL REMARKS: Shari'ah and Secularisation

In this paper, I have tried to show how an emerging post-secularisation has embraced different reforms of the Shari'ah, not all based on the binaries between tradition versus modernity, private versus public or the sacred versus the secular. But with one shared outcome: to denude human agency of a theocratic mantle. The comparison of Khaled Abou El Fadl and Abdullahi An-Na'im demonstrates a shared context among Muslim reformers. For Abou El Fadl, a positive subjective human engagement with the Qur'an produces a convergence between the Shari'ah and Enlightenment values; whereas for An-Naim, I argue, the values of modernity, specifically constitutionalism, pre-empts any reading of the Qur'an. Their approaches to the issue of reform are rooted in the recognition of the provisional nature of human agency.

Shari'ah exists beyond the remit of a territorial state according to Abou El Fadl. Individuals and moral communities are more fitting channels to realise the universality of Islam without arresting its moral promise. The state can never approximate the moral authority of God's law. The modern state is awarded a higher status in An-Na'im's post-Shari'ah project: constitutionalism supplies it with an unparalleled moral authority, in public law, human rights and public policy, over all citizens. And the state is to be equidistant from all religions. For Abou El Fadl and An-Na'im, politics and the state are subject to the wilful disenchantment of the Shari'ah in a process of 'post-secularisation', acknowledging the notion of divine texts.

Dr Mohammed Moussa received his doctorate on renewal in the Islamic tradition from the University of Exeter. He is a Muslim Institute Fellow. One of his chief interests, among many, is the Arabo-Islamic heritage as part of a broader and richer experiment called humanity.