by Bakri Musa
2nd June 2016

Emory University’s Professor Abdullahi An-Naim was recently in Malaysia and commented on the current hudud controversy triggered by PAS leader Abdul Hadi’s private member’s bill in Parliament. I re-post my earlier book review of An-Naim’s “The Myth of the Islamic State” that appeared in October 19, 2008:

The Myth of The Islamic State

Book Review: Islam And The Secular State: Negotiating The Future of Shari’a, by Abdullahi Ahmed An-Naim
Harvard University Press, Cambridge, MA
324 pp, Indexed, US $35.00, 2008.

Every so often I would read a book that would profoundly affect me. I have yet however, to get two such books written by the same author, that is, until now.

In 1990 I came across a paperback, Toward an Islamic Reformation: Civil Liberties, Human Rights, and International Law, by Abdullahi A. An-Naim. I do not remember what prompted me to browse through let alone buy the book. Its cover design was nondescript, and neither its author nor publisher (University of Syracuse Press) was exactly well known. But bought the book I did, after scanning only a few pages.

Despite being only 255 pages, it took me awhile to finish it. I have read it over many times since. It is not that An-Naim’s prose is dense (far from it!) rather that the ideas he expounds are breathtakingly refreshing. They also appeal to my intellectual understanding of my faith.

That book resurrected my faith in Islam. Brought up under the traditional teachings of my village Imam, I had difficulty reconciling that with the worldview inculcated in me through my Western liberal education. The certitudes that had comforted me as a youngster were becoming increasingly less so as an adult.

I knew however, a religion that gave my parents and grandparents (as well as millions of others) their anchoring stability despite the terrible turbulences in their life must have something substantive to offer. I took that as a matter of faith. It was just that I was not getting the message, until I read An-Naim’s book.

I discovered that many of the issues I had wrestled with were shared with and have been dissected by many great minds in Islam of the past. This realization reassured me. Far from weakening my faith, those doubts ironically strengthened it.

Shari’a: A Human Endeavor

In that earlier book, An-Naim developed further the thesis of his mentor, Sudanese reformer Mahmoud Mohamad Taha, that while the Shari’a was based on the Quran and the Sunnah (sayings and practices of the prophet), nonetheless it remains the works of mortals. As such the Shari’a suffers from all the limitations inherent in such endeavors. It is time to revisit it using the same rigorous intellectual tools used by our earlier scholars, while cognizant of today’s universally accepted norms of constitutionalism, gender equality, and human rights, among others.

That is exactly what An-Naim has been doing with his “The Future of Shari’a Project” at Emory University, Atlanta, where he is the Charles Howard Candler Professor of Law. Islam And The Secular State: Negotiating The Future of Shari’a is the culmination of his scholarly effort.

Like that earlier book, this one is also a slow read despite being written in highly readable prose. The book is packed with substantive and innovative ideas that require some digesting and much contemplation. An-Naim’s writing is also precise and concise; he conveys in one sentence what others would take two or three, or even a paragraph.

An-Naim is a solid scholar but the book is written for a general audience, Muslims and non-Muslims alike. He uses Arabic phrases sparingly, and there are adequate references in English, Arabic, and other traditionally native Islamic languages including Bahasa (Indonesia).

An-Naim asserts, “The historical reality is that there has never been an Islamic state, from the state of Abu Bakr, the first caliph in Medina, to Iran, Saudi Arabia, and any other state that claims to be Islamic today. This obvious reality is due to the incoherence of the idea itself and the practical impossibility of realizing it, not simply to bad experiments that can be rectified in the future.”

The immediate rebuttal by many Muslims is that there is historical precedent – and a very excellent one – of an Islamic state, that of the first Muslim community in Medinah. Muslims rightly hold that as the ideal, but it cannot possibly be replicated, led as it was by Prophet Muhammad, s.a.w. He was both spiritual and political leader. To have a similar state today would require us to be endowed with another prophet, a blasphemous assumption in Islam.

Not only is an Islamic state not achievable, it is also not desirable. The very idea of an Islamic state, according to An-Naim, is based on later European concept of the nation-state and the law, not on Shari’a or Islamic tradition.

Throughout Islamic (indeed, world) history, there has always been tension between ulamas (and religious establishment generally) versus the state and its rulers, with each trying to use the other to further their own ends. Caliphs and sultans have co-opted ulamas to justify their (rulers’) power, while ulamas are not shy in maximizing the bounty they get from the state from such collaborations. In Malaysia for example, they vie with ministers and mandarins for government-issued worldly trinkets as the plushest bungalows, sleekest sedans, and most exalted royal titles.

A few ulamas have been known to leave their mimbar (pulpit) for political office. Some like Kelantan’s Nik Aziz do not even bother to separate their roles. Islam is actively being subjugated by political rulers while religious functionaries eagerly prostituted themselves to the state.

“As a Muslim, I need a secular state in order to live in accordance with Shari’a out of my own genuine conviction and free choice,” An-Naim declares, “… which is the only valid and legitimate way of being a Muslim. Belief in Islam, or any other religion, logically requires the possibility of disbelief, because belief has no value if it is coerced.”

He goes on, “Maintaining institutional separation between Islam and the state while regulating the permanent connection of Islam and politics is a necessary condition for achieving the positive role of the Shari’a now and in the future.”

Caution here, before hurling the epithets! An-Naim’s “secular” state does not mean the atheistic communist regime of the Soviet Empire where religion is completely vanished from public sphere, rather one where the state is “morally neutral” with respect to religion.

America proudly cites its “strict” separation of state and church. The reality is far different. Prayers are regularly offered at opening sessions of Congress, and as the current [2008] presidential campaign demonstrates, religion is never far from voters’ considerations.

Muslims yearn for an Islamic state without having the foggiest idea of what that would entail, except for some vague mumbling about it being based on the Quran, Sunnah, and Shari’a. The reason for the longing is obvious; most so-called Muslim states today fail miserably in the basic task of governing. Worse, they regularly trample with impunity on the basic rights of their citizens.

Perversely, this obsession with the Islamic state detracts these leaders from their basic task of governing, and citizens from taking their leaders to task for this elemental failure. Such fundamental and pressing needs as providing heath care, housing, education, development, and a modicum of freedom are best handled less by fussing over the Shari’a or the Islamic state and more with acquiring the skills of modern management. Today’s Islamists would get closer to achieving their vision of an Islamic state if they would first learn how to build effective and enduring institutions of governance.

Negotiations, Not Religious Fiat

While An-Naim advocates the separation of Islam and Shari’a on one hand from the politics and the state on the other, nonetheless he actively encourages nurturing the relationship between the two, including the state’s regulating the public role of Islam.

This would first involve reexamining the Shari’a. “For Muslims, Shari’a should be known and experienced as a source of liberation and self realization,” writes An-Naim, “not a heavy burden of oppressive restriction and harsh punishment. No action or omission is valid from a Shari’a perspective unless it is completely voluntary, and there is no religious merit in coercive compliance.” The emphasis is mine, and I would have it in huge fonts framed in every JAKIM office!

In its time the Shari’a represented a quantum leap in intellectual as well as juridical achievements. It emancipated women. Whereas before, women were part of her husband’s inheritance, to be disposed off like the rest of his estate; under the Shari’a they were entitled to their own rightful shares.

As that other law professor, Harvard’s Noah Feldman, wrote in his Fall and Rise of the Islamic State, “ … for most of its history, Islamic law offered the most liberal and humane legal principles available anywhere in the world.”

Feldman notes further that with Shari’a the scholars provided the crucial and fundamental checks and balances on the powers of the rulers. This is exactly what is glaringly absent in many Muslim countries today. Consequently, self-professed Islamic states like Iran and Saudi Arabia have more in common with fascist Germany and totalitarian Russia, both in the traits of the regimes as well as the tendencies of their leaders.

It was the genius of those early scholars to be able to reconcile the apparent contradictions in the Quran and Sunnah by resorting to “abrogation,” where certain verses of the Quran “override” earlier ones. With that they formulated a coherent body of laws that had served the community well for centuries. They successfully reconciled the earlier Meccan verses that there be no compulsion in matters of faith to the latter Medinah ones relating to apostasy. Likewise, the latter verses relating to the differential treatment of inheritance between sons and daughters to the earlier verses that declare everyone is equal in the eyes of Allah.

Abrogation was the tool devised by the ancient scholars; it was not a divine mandate. Today’s scholars should likewise use their insights and intellectual prowess to formulate a new Shari’a which should also be based on the Quran and the Sunnah. This is the only basis to make it acceptable to Muslims and not violate our basic beliefs and traditions. Such an exercise must be inclusive, with engagement of the entire community, utilizing the insights from various disciplines.

If we were to incorporate the Shari’a into the laws of our country, the objective of advocates of an Islamic state, such “negotiations,” as An-Naim puts it, must necessarily also include non-Muslims, especially for a plural society like Malaysia. The consequence of this is that the Shari’a formulated for Malaysia would necessarily be different from those for homogenously Muslim countries like Saudi Arabia, just like there are significant variations in the Shari’a in the various fighs (jurisprudence) in Islam.

In short, An-Naim separates the concept versus content of Shari’a. The concept is readily apparent: a body of just laws applicable to all based on divine revelations (Quran) and the sunnahs. All Muslims agree to that, while most non-Muslims could be readily persuaded to the viewpoint of “just laws applicable to all.” The content however, must necessarily vary with time, place, and culture. That is An-Naim’s central message.

The central enduring values of the concept of the Shari’a are regularly missed and often confused by Muslims and non-Muslims alike. In the West, as Feldman noted, the Shari’a is caricatured by such odious hudud laws as stoning to death for adultery while ignoring the Shari’a stringent standards for conviction. Contrast that to the gross perversion of justice in many capital convictions in America today, as revealed by the Innocence Project.

The central premise of the Shari’a is that all – ruler and ruled alike – are subject to its rule. That is the rule of law at its most fundamental level. That is a novel concept in the West for most of its history (the prince being above law) as well as in today’s self-professed Islamic states. Malaysia amended its constitution removing the sultans’ immunity with respect to their personal conduct only in 1993.

An-Naim has advanced and elevated the debate on the Shari’a and the Islamic state by a quantum leap. His is a much-needed intellectual antidote to those who would mindlessly exhort “Islam is the answer!” to every political problem, as well as those who delude themselves that the myriad problems facing Muslims today would magically disappear once we establish an Islamic state or a caliphate.

This book will be widely read in the West. I hope it will also reach a wide audience in the Islamic world. Muslims – especially leaders – would do well to expend the necessary intellectual diligence to ponder the totality of the ideas and concepts presented in this book. We should not dismiss them because they challenge our comfortable assumptions.