The New Nation - Internet Edition

Dr. S. Parvez Manzoor

Perhaps the best point of entry in this highly seminal field is Mohammad Hashim Kamali's original contribution to the debate over 'Freedom of _Expression in Islam' that is truly a labor of love and a work of devotion and piety. (Freedom of _Expression in Islam. By Mohammad Hashim Kamali. The Islamic Text Society, Cambridge, 1994. Pp 349. ISBN 0-946-62160-8.) It is uncompromisingly 'Islamic' in temperament, approach and method, a normative study in the 'traditional' mould that consciously strives to remain within the indigenous paradigm of fiqh. And yet, it is also quite radical and original in that it treats a thoroughly 'modern' theme and by so doing, willy-nilly, gets involved in ideological polemics with modernity.

As a pioneering effort, it is both daring and imaginative, sober and scholarly and has won the 'Isma´il al-Faruqi Award for Academic Excellence'. Fulfilling a genuine need and initiating an authentic discourse, its merits have been duly recognized by the scholarly community. However, in its dialogue with modernity, in its perception and response to the polemics of secular modernism, it is far from satisfactory. In reflecting over the problem of 'freedom of _expression in Islam', the author may not have envisaged and planned entering into polemics with modernity but such is its sway over the moral and intellectual clime today that no contemporary discourse may claim authenticity if it ignores the modernist context of our world. Least justifiable is this negligence in a study that deals with a theme, freedom of _expression, which is the gift, as it were, of modernist consciousness. In dealing with an uncompromisingly modern subject, there's no escaping its polemics and criticism of 'traditional' worldviews.

True enough, Kamali is not totally insensitive to the modernist context and subtext of his work and his diffidence and humility at the treading of this virgin territory are quite genuine and touching. Nevertheless, it is my conviction that a sharper intellectual vision of modernity and a more vigorous encounter with its polemics would have enhanced the already considerable worth of this work. The few following remarks, it is hoped, would put the polemical subtext of 'freedom of _expression' in sharper focus.

Modernity espouses a metaphysics of immanentism within which the state, or existential body-politic, assumes certain attributes that theistic religions ascribe to the Transcendent God. And yet, paradoxically, though secular modernity (ostensibly) passes no judgment on the question of God's existence, it insists that religious and transcendent tenets be banished from politics, from the governance of the state. Or, differently expressed, questions of God's existence or non-existence, and other similar 'metaphysical' issues, it claims, belong to individual conscience with respect to which the state and its legal order must remain neutral. But, the state also insists that there are other issues, not pertaining to conscience, where it is the highest, sovereign, authority and that these constitute the crux of politics and statecraft.

The individual is free with respect to religious and metaphysical 'beliefs', but not with respect to civil matters such as taxation, property, matrimony etc. Here the state has the right to use force to secure compliance. State laws are thus not laws of conscience but those of coercion. Freedom of _expression is the outward, public, side of the inward, individual, freedom of conscience. However, despite its neutrality with regard to questions of conscience, the state does get involved in the issue of their '_expression', their manifestation in the common, public, space.

It is this very neutrality that stipulates, it is argued, that all individual consciences have the right to free _expression in the public sphere and that guaranteeing that right is a state obligation. The state is concerned, however, only with the legal aspect of public _expression and not with the moral content of private conscience. Freedom of _expression, in short, pertains not to truth but to the logistics of its 'self-disclosure': it is not an individual issue but an 'affair of the state'.

Any discussion of 'freedom of _expression', it ought to be underlined, is contingent upon the dialectics of individual and state, conscience and society, public and private, religion and politics that are all peculiar to secular modernity. (However, not only is the definition of what constitutes a private act of conscience, in contradistinction to a public act of politics, always historically conditioned and dependent upon the prevailing societal consensus, even the distinction itself, namely between private conscience and public politics, is a contested claim of secular modernity and not a given fact of human existence.) Without taking full cognizance of these dialectics, or rejecting these dichotomies on normative grounds, in other words, there cannot be any meaningful probing of the theme of 'Freedom of _expression in Islam.'

Without any delineation of the Islamic vision of the state, albeit in modern times, the project of discovering (the dialectic of?) 'Freedom of _Expression in Islam' cannot even be launched: it does not even lift off the ground, to use a modern metaphor. One may, of course, regard Islam as an autonomous, self-referential, system that is in no need of corroboration or correction from other worldviews and philosophies. Modernity and adherents of secularism may, in such a case, enter into dialogue with Islam, but only on Islamic terms, only on the pre-condition of acknowledging the possibility of transcendence in human affair. Such a stance, had it been adopted in this study, would have entailed the task of deconstructing modernity, exposing its metaphysical foundations and charting the moral parameters of its secular project. It would have certainly not required the borrowing of a patently and self-consciously polemical topos of modernity and transplanting it in the Islamic intellectual and moral landscape as has been done here.

For to launch a project of delineating the parameters of 'Freedom of _expression in Islam' is tantamount to acquiescing in to the moral validity of the modernist claims, if not accepting them as the yardstick of Islamic theopolity. Then there are the notorious conundrums of the concept of freedom that are logically and metaphysically intractable. Again, for the purpose of managing them within a pragmatic discourse, modern theory reduces their scope to certain civil and political 'liberties', i.e. absence of legal and practical constraints from the authority and power of the state. To define freedom as 'the ability of the individual to do or say what he or she wishes, or to avoid doing so, without violating the rights of others, or the limits set by the law' (p 7) is to turn it into an empty tautology. For, if freedom is simply identical with the licit, the legally valid, one may dispense with the concept of freedom altogether, retain only that of law and not a whit need be modified of the moral discourse! Little wonder that prior to the advent of modernity, rights and liberties did not form the stock motives of the politico-religious discourse and, as Kamali himself realizes, the introduction of the _expression 'Freedom of _Expression' into the political vocabulary of Arabic is of recent origin. Kamali, who has been forced to approach this subject without the benefit of any precedent or prior model of reflection, declares in the beginning that the principal question that he addresses in the study is 'whether or not the Shari´ah subscribes to freedom of conscience.'

If so, the title of the book fails to pay tribute to his intellectual labour, for it announces that the work is about 'Freedom of _Expression', and the two are by no means identical. Sure enough, an inquiry into this subject is worth a sizeable volume and may demand a close examination of the traditional sources of fiqh, something that Kamali does quite judiciously before saying 'yes'; nevertheless, to ordinary believers like this writer, the question admits of only one, affirmative, answer - with or without the ransacking of the brains of our illustrious fuqaha! The modern query leads to a single, foregone conclusion as the very concept of submission (Islam), as found in the Qur'an, denotes an act of voluntary assent, a receiving of God in the soul as it were. Islam and fettered conscience are contradictions in terms. Only a jurisitic intellect, which identifies Islamic reason with raison d'état, could be so befuddled as to regard 'freedom of conscience' an original fact of modernist consciousness that needs authentication from indigenous legal sources!

Though Kamali remains firmly anchored in the fiqhi tradition, his perception and conceptual schemes show unmistakable signs of having acquired modernist influences, nay prejudices. A clear, and for this critic quite distressing, sign of this is Kamali's indiscriminate use of the prejudicial term, 'religion', which modernity regards as synonymous with private conscience. (The concept of a universal and essential 'religion', it has been cogently demonstrated, is part of the polemical repertoire of modernity and a historical construct of secular forces (Cf. Talal Asad, 'The Construction of Religion as an Anthropological Category', (Genealogies of Religion, Baltimore, 1993)). Another, far more grievous, sign of juristic positivism comes from the reified perception of the pivotal concept Shar´iah: it is used such that it can be totally identified with the extant corpus of fiqh. Needless to say that from the Islamic point of view, there are very convincing arguments for keeping the transcendent vision of the Shari´a distinct from its fallible appropriation in the juridic tradition, for keeping the text of the law separate from its interpretations. Nor is Kamali's disregard of the modern distinction between the legal and the moral going to cut much ice with the critics of the tradition for whom it merely represents the obsolete and the archaic. He is least likely to convince modernists like Habermas with his contentions that actions like slander, insult and blasphemy are part of the modern political discourse.

"This work is a an attempt to explore some of the Islamic responses to issues of contemporary concern', says Kamali, and 'to develop further the existing positions in the light of prevailing conditions, or failing that, to take a direct approach to the source materials of Shari´ah in the quest for an alternative solution.' (p 5; Italics added). This reviewer couldn't agree more but would also like to add that in this search the philosophical and conceptual analysis of the key Qur'anic terms be given priority over the atomistic and literal approach of fiqh. Needless to say that in this regard, regardless of Kamali's commendable effort, the task is yet to begin. Let me recapitulate the main insights of this review: 1. 'Freedom of _Expression' is a problem bestowed to us by modernist consciousness which makes a pragmatic distinction between public and private. Islam, a doctrine of truth, which transcends the Public-Private divide, does not confront the problem of the freedom of _expression in a purely pragmatic spirit. For it, the content and ethic of freedom are more paramount than its form and logistics.

2. Freedom of _Expression is a problem that demands attention and resolution within the public realm, but especially within a public realm that does not claim to 'incarnate' any 'transcendental truth', that makes no effort toward the 'salvation' of its citizens. Little wonder that the problem is intimately related to the constitution of the (modern) state (political and existential community) and 'the ultimate ends' toward which it does, or does not, strive. 3. For the secular modern state, the mot paramount freedom is the freedom of 'religion', or of 'conscience' - which does not entail, however, freedom from taxes or laws! That such a scale of values establishes the sovereignty of the political over the religious is beyond doubt. Nevertheless, the historical fact that the modern, non-confessional, state arose as a consequence of the internecine sectarian wars of pre-modern Europe, should make us sensitive to the sustaining ethos and moral pathos of the modern longing for freedom.

Despite this, however, modernism cannot claim to possess any ultimate truth, and, hence, the secularity of its constitution is not the only guarantee for the freedom of conscience and _expression. 4. Freedom of _Expression, like everything else in modernity, is an instrumental value, since the modern state pretends to be neutral towards - cares nothing about - the final goal of the human existence. (All this is of course disingenuous and misleading, for the modern state does have its agenda, its commitment to the, secular, wellbeing of its citizen; it is not merely a formal and instrumental entity but does have a substantive commitment to the values of this worldly- meliorism, just as it espouses a metaphysics of immanentism. 5. To pose the problem of the freedom of _expression in its ultimate, metaphysical and moral, context (and then transpose it to the contrasting metaphysics of Islamic transcendentalism) also renders it intractable and beyond the kin of any pragmatic solution. Such a 'fundamentalist' epistemology, though indispensable for a correct understanding of the problem, is counter-productive in a world of competing civilizations and contending moralities. However, if we confine our attention to the purely functional and logistic aspects of Freedom of _Expression, then the theme that would merit further exploration and reflection would not be 'Freedom vs. Islam', but the nature and scope of that freedom in a concrete historical polity, say Turkey, or Iran, or Kuwait, or Pakistan, etc. 6. A logical corollary of the above argument is that Freedom of _Expression is essentially a matter of the presence or absence of 'civil and political liberties' and that it should be problematized as such. Nevertheless, even within the provision of such a concrete objective, the debate in modern Western societies, which are assumed to provide yardsticks for such liberties, is seldom enlightening or capable of unambiguous guidance. That there is a logical, and moral, tension between the ultimate value of 'freedom' and that of 'equality' (or 'justice') has been the cause of much philosophical and moral distress.

That any actualization of 'freedom' enjoins a counter-balancing of its effects by the equally obligatory quest for justice, or equality, renders the issue of 'Freedom of _Expression' far more problematical than a glib slogan of civilizational polemics! Nor must we forget the uncomfortable fact that in a hierarchical and hegemonic world, the beneficiaries of freedom are not always the week and the oppressed, but also, and indeed pre-eminently so, the rich and the dominant! 7. Despite all these reservations, and the genuine intellectual, philosophical and moral quandaries that, the theme of Freedom of _Expression gives rise to in a cross-civilizational context, let's not, as Islamically committed thinkers, shirk our responsibility of exposing all the hurdles - socio-political and local but also neo-imperialist and global - that prevent the emergence of a humane regime of civil and political liberties in the lands of the Muslims. Let us not produce any apology for the corrupt and oppressive order of the Muslim regimes that seeks legitimacy by exploiting the name of Islam. And let us not transform Islam, the religious faith which for the recognition of its truth accepts no constraints on the conscience of man, into a political ideology that for the glories of this world would establish a regime of coercion and force.

(Source: IslamOnlin)

Ahmed An-Na'im

The Sudanese born Abdullah Ahmed An-Na'im teaches law at Emory University in Atlanta, Georgia. Active in the fields of civil, human and international rights, he sees the Islamic Sharia as an important point of reference for him. The Muslim law system, which dates back to the seventh century, must, in his opinion, always be open to being questioned.

It can, however, even today, provide answers through fresh interpretations, which each person must be prepared to carry out for him or herself. The Sharia is not, according to him, to be thought of as a national law, but rather as a frame of moral values similar to that provided for Christianity by the Ten Commandments.

"One must engage with a situation as it actually is," says An-Na'im, "so religion is certainly going to play an important role in social development in Islamic countries". The lawyer is currently working on a project entitled "The Future of the Sharia", which is looking at the effects of modern global conditions on Islamic societies. He has come to Berlin at the invitation of the Irmgard Coninx Foundation.

Professor An-Na'im, you are very much involved in human, civil and international rights issues; at the same time, however, you also like to turn to the Sharia for guidance. Do the two things go together?

Ahmed An-Na'im: I do not distinguish between secularism and religion because I believe that in the secular there is much that is religious and it is difficult to separate them. I do think, however, that religion is a very strong social and mobilising force. If you exclude religion from the social and political processes, you will find yourself being cut off from those who are religious.

And that would mean, in your country, Sudan, very many!

An-Na'im: Yes, human rights and secularism need political support. If you fail to convince people that secularism and human rights are good for them, and if you do not manage to convince them of this in terms of their own religious beliefs, then you leave the field to the fundamentalists. You then give them the opportunity to mobilise the power of faith for their own political purposes. And, by the way, religion has not disappeared from Europe either! Those values which society chooses to uphold, whether in national institutions, or laws, are all religious values.

Is religion to you then the ethical-cultural tradition?

An-Na'im: Yes, in one sense. I do not believe that secularism has any ready answers to profound ethical problems. In order to fulfil its function, secularism needs to be ethically minimalist. There are many questions in which it cannot interfere. It can handle the basics about how we can live with and maintain respect for one another. But answers to questions on things like abortion or the right to take one's own life must be sought elsewhere. For most people, it would be religion that they would turn to.

In Europe, the word Sharia is associated with hands being cut off, with stoning or the oppression of women.

An-Na'im: First of all, I believe that religion and the state should be separate, institutionally. If one looks at Muslim history, one sees that the two have always been treated as separate entities. The idea that politics and the state go together is postcolonial. In Muslim history, this came about only in the 20th century. Before then an Islamic state, like the one in Iran, was something unknown.

What is it then that you mean by Sharia?

An-Na'im: The Sharia appears in the Koran in the sense that believers look at the sources of their faith in order to find guidance. The Sharia is not a law. The state cannot decide to make a family law out of it. It would then no longer be the Sharia, but rather the political will of the state.

But the Sharia does, nevertheless, affect the justice system. Take the case of the law of succession, for example, where women in Muslim countries, as in many others, do not have equality.

All that is only a legitimising discourse for the existing power relations. If you look at the Islamic world then you see that there is an enormous difference in the interpretation of individual points. It is always, in the final analysis, the political will to get something done that is decisive. Islam, Marxism or nationalism can all be made to work for one's own cause.

So religion should not be treated any differently to other ideologies that serve to legitimate claims to power?

An-Na'im: That's right. But the right of every Muslim to live his or her life in accordance with the Sharia must be accepted. One must be sure to guard against any authorities that assume the right of interpretation for themselves. A Muslim woman is not allowed to marry a Christian man. Why not? It is the Muslim's duty to ask why. We do not accept any single religious body as authority. We have no Church.

In Germany an attempt is being made to set up a Muslim association with which the state can negotiate on behalf of Muslims living here.

An-Na'im: I believe this to be completely misguided. I have difficulties with the idea of someone else defining what my religion should mean to me. No one should be given the power of deciding what is right or wrong.

What would the alternative be?

An-Na'im: Civil participation. Full civil participation. Whether I am a Muslim or not is irrelevant to me as a citizen. It is the duty of the state to treat me as a citizen. If I am in need of money so that my children can receive religious education, then the state must help me. These are civil rights. Without this you get a clergy which will accentuate difference. This, in turn, makes integration of Muslims more problematic because they are then identified as Muslim, while their fellow citizens are defined through their nationality, not their religious affiliations.

For you then it's about deconstructing what lies behind the veil. So, what is behind it?

An-Na'im: Power, privileges, hegemony. These things are all the result of human actions, in religion as in politics. There is no divine in the abstract.

Do you believe in Revelation?

An-Na'im: It is always human beings who tell us what God says. This cannot be separated from questions of power. It all has to do with human relations. When we talk about Muslims rather than about Islam, then we are talking about the social context. And it is people who form, or fail to change it. Human rights and secularism are so important to me because they create a space within which I may protest.

Does your religion help you to find answers to your questions?

An-Na'im: Yes, but I reserve the right to answer them myself. There is much that religion gives me. There are some Muslims who see me as a heretic; that's okay, as long as they don't kill me.

This all sounds very modern, very individualistic. Does the Sharia, for you, rank among the legitimising bases of modern thought?

An-Na'im: There is nothing that has not already been thought, debated or rejected in the 1500-year history of Islam. My thinking is part of a long tradition.

How do those who lack your education go about finding their own answers in religion?

An-Na'im: If you want to have control over your own life, there is no alternative but to pursue education. If you want the power of self-determination, you cannot have anyone as guardian of your religion or your values. Whatever your value system is, it is you, not the Imam who must decide what is relevant and what isn't. It is about taking responsibility for yourself. What I want to say is, heresy is necessary if you want a living religion.

Every orthodoxy began as heresy. All religions have their roots in heresy. Christianity began as a Jewish heresy; Islam was once a Christian-Jewish heresy. It is in breaking with tradition that we strike the vein of greatest creativity. This is true of all societies. So celebrate heresy! In Europe you have both the right and the opportunity to do so.

It is not so easy for many Muslim women, though, who find themselves oppressed or threatened in the name of honour or religion. What is your advice to them?

An-Na'im: Protest! Fight! There is no progress without struggle, not even for women in Europe. Just think about it: For how long have women in this country had the vote? Less than ninety years. One always has to fight against particular interpretations of one's own culture. There is no other alternative.

(Interview conducted by Edith Kresta. Translated from the German by Ron Walker. © TAZ/Qantara.de 2006)