By Sonya Nigam
January 09, 2012
While it is easy to grasp the need for protection of the right to practise one’s faith in order to avoid religious persecution, recent events involving religious extremism and reactions to real and perceived — or misperceived — extremism have highlighted other tensions and challenges that involve the state. In addition, with the recent announcement of the creation of Canada’s new Office for Religious Freedom, it seems like an opportune moment to reflect on the connection between faith, secularism, and human rights.
Professor Abdullahi An-Na’im from Emory Law School has explored this question in depth using the relationship between Islam and the notion of an Islamic state as a case study. He has written authoritatively on the subject in his book Islam and the Secular State and came to Ottawa last year to discuss it.
An-Na’im is a practising Muslim. He takes his faith seriously and views himself as accountable for the ideas he presents not only as academic arguments but also as ideas in relation to his faith. The first sentence of his book is: “In order 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 began his presentation by reminding us that out of 40 countries where Muslims are the majority most have no desire to have an Islamic state. Arabs make up only 12 per cent of the total Muslim population. The second-largest Muslim population is in India, which is a democratic and secular state. The combination of Shariah, or Islamic, law, and the notion of an Islamic state is not part of the lived experience of most Muslims. In fact, the term ‘Islamic state’ did not exist before the mid-20th century. It is a post-colonial concept based on European ideas of states and laws. It is not an Islamic concept.
In the mid-20th century, the notion of an Islamic state was projected into the discussion and everyone just took for granted that it was rooted in Islamic law and culture. However, because of the persistence of this notion and argumentation by Muslims themselves in favour of it, An-Na’im has worked diligently to offer a theoretical analysis of why such a state is not only not required but in direct opposition with the practice of Islam.
As his first point, An-Na’im recognizes that human rights are rights that belong to all individuals simply because they are human beings. They belong to everyone. In other words, human rights are universal. At the same time, there are multiple foundations for human rights including both secular and religious. People’s understanding of human rights is necessarily based on their personal understanding and experience.
This creates a paradox because while human rights are universal, individuals take great pride and enjoyment in their heritage, culture, religion, etc. such that protection of these rights can create tensions between communities. An-Na’im argues it is not necessary that people agree on the foundation of their belief, it is only important they have a conviction to the rights in question. While the differences in points of view cannot be resolved by choosing one perspective over another, they can and should be managed through negotiation and mediation.
The second point is the nature of the international human rights protection system is state-based. The United Nations web site explains it this way:
“International human rights law lays down obligations which States are bound to respect. By becoming parties to international treaties, States assume obligations and duties under international law to respect, to protect and to fulfil human rights. The obligation to respect means that States must refrain from interfering with or curtailing the enjoyment of human rights. The obligation to protect requires States to protect individuals and groups against human rights abuses. The obligation to fulfil means that States must take positive action to facilitate the enjoyment of basic human rights.
“Through ratification of international human rights treaties, governments undertake to put into place domestic measures and legislation compatible with their treaty obligations and duties. The domestic legal system, therefore, provides the principal legal protection of human rights guaranteed under international law. Where domestic legal proceedings fail to address human rights abuses, mechanisms and procedures for individual and group complaints are available at the regional and international levels to help ensure that international human rights standards are indeed respected, implemented, and enforced at the local level.”
While states have agreed to be accountable to each other, another state does not have the right to intervene in human rights violations in another country where there is no international armed conflict.
Like universality of human rights, state sovereignty is also a paradox. States accept to adhere to the protection of human rights, which they themselves may violate. Once again, An-Na’im argues the only way to deal with this paradox is through negotiation and mediation. The recent examples of Afghanistan and Iraq certainly demonstrate that physical intervention is highly violent and tends to leave countries in worse shape than prior to the intervention.
Turning to the subject of Islamic law, An-Na’im explains that Shariah is a personal understanding of God’s word based on one’s personal human experience. He stresses that each person must come to her own understanding of Shariah through conviction, not coercion. Since belief requires the possibility to not believe, then being a Muslim means allowing the possibility to not be a Muslim.
He then goes on to argue that an Islamic state is a conceptual impossibility for two reasons. First, the state is a political institution. Since being a Muslim requires human understanding, and the state does not have a conscience, the state cannot be a religious entity. Therefore, the nature of an Islamic state can only be one where the ruling elite uses Islam to impose its political agenda with the full understanding that it will not be challenged. The state will claim to act in the name of God, and who can oppose the will of God?
In addition, the legislative enactment of Shariah changes its content. Legislative enactment requires human interpretation. Thus, once made into law, Shariah is no longer the will of God; it becomes the will of man. For a Muslim, enactment is contrary to Islam.
An-Na’im concludes that it is only a secular state that can allow each Muslim to freely engage with his and her own exploration of the word of God, while also allowing others to believe or not believe according to their own culture and experience.
In light of this exploration, it is somewhat confusing as to why Canada would want to create an Office of Religious Freedom (within the Department of Foreign Affairs and International Trade Canada) that will have a religious directorate, if it follows in the example of the U.S. office of the same designation. Religious freedom is already protected in the Universal Declaration of Human Rights. Canada has the right to express its views on religious persecution abroad through the normal United Nations and diplomatic channels. The only possible conclusion is to say that the ruling elite is making a political decision to champion religiosity, which is odd when a secular state seems to be the strongest protection for true individualized religious freedom.
To close with a quote from An-Na’im: “While citizens and states can have differing views of human rights, these differences should be negotiated politically and not in the name of God because God has not authorized any of us to impose our will on anybody else, except ourselves.”
Sonya Nigam is the executive director of the Human Rights Research and Education Centre at the University of Ottawa.