By Syed Arif Ahmad Muslim India
Category: filed under religion & law
In modern Western society, state-organised legal systems normally draw a distinctive line that separates religion and the law. Conversely, there are a number of Islamic regional societies where religion and the laws are as closely interlinked and intertwined today as they were before the onset of the modern age. At the same time, the proportion in which religious law (shariah in Arabic) and public law (qanun) are blended varies from one country to the next. What is more, the status of Islam and consequently that of Islamic law differs as well. According to information provided by the Organisation of the Islamic Conference (OIC), there are currently 57 Islamic states worldwide, defined as coun tries in which Islam is the religion of (1) the state, (2) the majority of the population, or (3) a large minority. All this affects the development and the form of Islamic law.
The secularisation of the legal order in an Islamic state and in the constitu-tional states of the West
Regarding the religious and particularly Christian roots of the foundations of contemporary law in the West, we may say that the relationship between religion and the law was originally quite similar to that found in Islamic countries today, at least in those legal regimes of continental Europe whose structure is governed by the rule of law today. However, as the concept of modern statehood evolved and the Enlightenment and science came to pervade legal thinking in Europe, legal structures were largely secularised, meaning that they were gradually divested of their religious and particularly Christian content. Nevertheless, public secular law has preserved certain relics and hidden underpinnings that can be understood only as references to the Christian religion. Occasionally, these references influence and even complicate the interpretation of substantive law. One case in which just such a historical reference is made is that of the preamble to the Basic Law of the Federal Republic of Germany, in which the makers of the constitution refer to their “responsibility before God and humankind” (called invocatio dei) although it is the constitution alone that, as a substantive code based on a political and legal decision, provides the ultimate rationale and the fundamental norm that serves as a source not only for deriving but also for substantiating and legitimising all further laws.
The meaning of secularisation is different in an Islamic state and in the Muslim world from that of a constitutional state of the Western kind. When one talks about secularity in Islam, the first country that normally comes to mind – is Turkey with its population of well above 70 million, of which more than 90% are Muslims. But this overlooks that Indonesia is another important country of the Islamic world in which, despite the high proportion of Muslims in the total population, Islam is not the religion of the state and in which the official separation between the state and religion is seen as particu larly strict. Its population of almost 240 million, composed of 88% Mus lims, nearly 6% Protestants, 3% Catholics, and almost 2% Hindus, makes it the largest Muslim nation state on Earth today. Indonesia pre sents itself as the most populous democracy in the Islamic world, The very fact that Indonesia consists of 17,000 islands spread between the Indian Ocean and the Pacific already, geophysically, indicates an environment for pluralism, one might say.
On the other hand, Malaysia‘s population of 25 million incorporates not only 60% Muslims but also adherents of other religions in large numbers (about 20% Buddhists, 9% Christians, 6% Hindus, and almost 3% followers of traditional Chinese religions) as well as various ethnic groups (Malays, Chinese, Indians, etc.). Malaysian society is now gripped by a fundamental question: is the country, which is more than half Muslim, an Islamic state? In practice, various religious and ethnic groups give Malaysia a distinctly multi-cultural character. But the Malaysian constitution provides room for arguments on both sides of the question, and the relatively secular status quo is facing a serious challenge.
In Malaysia’s constitution which was drafted by a group of experts in 1957, under the auspices of the country's former British rulers, the constitution includes two seemingly contradictory clauses. On the one hand, Article 3 states that Islam is the religion of the federation, and that only Islam can be preached to Muslims. On the other hand, Article 11 guarantees freedom of religion for all. As a result, Malaysia has developed both a general civil code, which is applied universally, and Islamic law, which is applied only to Muslims in personal and family matters. Recently, however, some Muslim groups have pressed the government to proclaim Malaysia an Islamic state, on the basis of Article 3 and the Muslims' population majority. Ultimately, they would like Malaysia to be governed by Islamic law. What all these people need is an order that is multi-ethnic as well as multi-religious. What they also need is a legal regime that should be not only as consistent as possible, but also capable of absorbing and regulating international and transnational problems relating to the legal order. It is quite another question what the various conceptions of the rule of law that are so virulent in the West can teach Islamic states, assuming that they want to learn from them in the first place. Not all the items on the shopping lists of Western political institutions are readily compatible with the globally established systems of Islamic law.
Today, the Earth is home to about 1.3 billion Muslims, of which almost one in six is an Indonesian, while at best one in four Muslims is an Arab (if we include all the states from Morocco in the west via the Arab penin sula to Syria and the Iraq in the east). At the same time, one in three Muslims lives in South Asia (India, Pakistan, Bangladesh). Although they are mere rough estimates, these figures clearly show that the Arab states are anything but representative of the present discourse about Islam as a world religion and the relationship between Islamic law and the secular states of the West. What is more, the global purview and remit of Islamic law that reflects the legal norms of the Shariah is much greater than what is commonly perceived by the public and the media in the West. Although the Shariah is generally regarded as the Islamic legal order, it does not correspond to the legal situation in Islamic countries. Thus, despite the postulated universal validity, there is a gap between the normative claims made about the Shariah and reality.
Ultimately, all states whose legal orders have a religious foundation or at least a theonomic background are confronted with the problem of legal secularisation. This also applies to legal cultures and political systems in the West whose foundations are at least derived from natural law or law of reason that is Christian or Catholic in origin. However, it also applies to Europe‘s public-law regimes, which are undergoing a sweeping societal and legal transformation as legal systems grow more Europeanised, to say nothing of the globalisation of other legal matters such as commercial law and transnational law.
Given these conditions, the relationship between religion and the law is now subject to requirements that throw an entirely new light on the issue of law and justice in Islamic regional societies as well as in the largely secularised world of the West. This applies equally to modern Islamic and to Western secular law. However, Western and continental European thinking on the rule of law and its credo of supposedly universal human rights and civil freedoms – no matter how these are understood substan tively – still harbours, as contemporary studies document, remnants of Western political theology that make it difficult to conduct a fruitful dialogue between legal cultures. Enforced by modernity, the secularisa-tion of all legal concepts regarding democracy and the rule of law, howe ver defined, that is said to be progressing everywhere does not provide us with any cut-and-dried convenient solutions that merely have to be dished up to the needy nations in the near future as such to be more precise and specific.
Universalism or Particularism in Islamic law?
Given the extent and diversity of the Islamic world, the only possible objective to test a few approaches that might facilitate access to regionally differentiated structures and systems of Islamic law as well as to the constitutional systems of the West, so as to facilitate comparing Islamic concepts of law and justice with current developments in Western constitutional and ordinary law. Almost without exception, as viewed from the perspective of Islam and Islamic law, the legal situation in the Arab heartlands as well as in South and Southeast Asia suggests that these problems are political as well as legal and that their analysis and solution is beyond the reach of national endeavours. First and fore most, the Shariah and its claim to universal validity raise normative structural problems of an international and transnational character that can be adequately analysed only in the context of a global society. Guided by historically evolved modern precepts of law and justice, politics as well as the law had a controlling influence on the formation of a normative order.
“Shariocracy” or Secular law?
The Islamic regions and states that were menti oned are not confronted by a choice of two extremes, although they stand between the Shariah and secularisation. What is more, those legal developments that can be scientifically determined do not reveal any unambiguous trends regarding the future path of the law in the Islamic world, at least with regard to the rule of law. Nevertheless, it is a fact that all Islamic legal regimes, however they may be organised, are confronted by requirements that relate to technical, economic and social modernisation. At the same time, they are subject to political and legal transformation processes that tend to enhance the democratisation,con-stitutionalisation and codification of all social relations in the sense of the rule of law.
Guarantees are given by the law, not by the state. This is no different in Islamic law, which raises the question of what elements of the rule of law the Islamic states really do need from continental Europe. Common practice of identifying and equating a constitutional state under the rule of law implies or may imply drastic terminological simplifications and short-cuts that should be closely studied, especially in historical end empirical terms, before their application to Islamic legal systems and their constitutionalization which was not done in this case. Another concept that should be scrutinised whenever it is applied to modern Islamic law is legal secularisation. After all, secularisation is not all that much concerned with emancipation from religious premises, or indeed with the alleged or suspected loss of importance suffered by religion in the modern age. Rather, the question is how, given the constant demands for democracy and the rule of law, political and legal institutions and processes – be they global or particular – can be reconciled with religious controls exercised by society.
The secularisation of the legal order in an Islamic state and in the constitu-tional states of the West
Regarding the religious and particularly Christian roots of the foundations of contemporary law in the West, we may say that the relationship between religion and the law was originally quite similar to that found in Islamic countries today, at least in those legal regimes of continental Europe whose structure is governed by the rule of law today. However, as the concept of modern statehood evolved and the Enlightenment and science came to pervade legal thinking in Europe, legal structures were largely secularised, meaning that they were gradually divested of their religious and particularly Christian content. Nevertheless, public secular law has preserved certain relics and hidden underpinnings that can be understood only as references to the Christian religion. Occasionally, these references influence and even complicate the interpretation of substantive law. One case in which just such a historical reference is made is that of the preamble to the Basic Law of the Federal Republic of Germany, in which the makers of the constitution refer to their “responsibility before God and humankind” (called invocatio dei) although it is the constitution alone that, as a substantive code based on a political and legal decision, provides the ultimate rationale and the fundamental norm that serves as a source not only for deriving but also for substantiating and legitimising all further laws.
The meaning of secularisation is different in an Islamic state and in the Muslim world from that of a constitutional state of the Western kind. When one talks about secularity in Islam, the first country that normally comes to mind – is Turkey with its population of well above 70 million, of which more than 90% are Muslims. But this overlooks that Indonesia is another important country of the Islamic world in which, despite the high proportion of Muslims in the total population, Islam is not the religion of the state and in which the official separation between the state and religion is seen as particu larly strict. Its population of almost 240 million, composed of 88% Mus lims, nearly 6% Protestants, 3% Catholics, and almost 2% Hindus, makes it the largest Muslim nation state on Earth today. Indonesia pre sents itself as the most populous democracy in the Islamic world, The very fact that Indonesia consists of 17,000 islands spread between the Indian Ocean and the Pacific already, geophysically, indicates an environment for pluralism, one might say.
On the other hand, Malaysia‘s population of 25 million incorporates not only 60% Muslims but also adherents of other religions in large numbers (about 20% Buddhists, 9% Christians, 6% Hindus, and almost 3% followers of traditional Chinese religions) as well as various ethnic groups (Malays, Chinese, Indians, etc.). Malaysian society is now gripped by a fundamental question: is the country, which is more than half Muslim, an Islamic state? In practice, various religious and ethnic groups give Malaysia a distinctly multi-cultural character. But the Malaysian constitution provides room for arguments on both sides of the question, and the relatively secular status quo is facing a serious challenge.
In Malaysia’s constitution which was drafted by a group of experts in 1957, under the auspices of the country's former British rulers, the constitution includes two seemingly contradictory clauses. On the one hand, Article 3 states that Islam is the religion of the federation, and that only Islam can be preached to Muslims. On the other hand, Article 11 guarantees freedom of religion for all. As a result, Malaysia has developed both a general civil code, which is applied universally, and Islamic law, which is applied only to Muslims in personal and family matters. Recently, however, some Muslim groups have pressed the government to proclaim Malaysia an Islamic state, on the basis of Article 3 and the Muslims' population majority. Ultimately, they would like Malaysia to be governed by Islamic law. What all these people need is an order that is multi-ethnic as well as multi-religious. What they also need is a legal regime that should be not only as consistent as possible, but also capable of absorbing and regulating international and transnational problems relating to the legal order. It is quite another question what the various conceptions of the rule of law that are so virulent in the West can teach Islamic states, assuming that they want to learn from them in the first place. Not all the items on the shopping lists of Western political institutions are readily compatible with the globally established systems of Islamic law.
Today, the Earth is home to about 1.3 billion Muslims, of which almost one in six is an Indonesian, while at best one in four Muslims is an Arab (if we include all the states from Morocco in the west via the Arab penin sula to Syria and the Iraq in the east). At the same time, one in three Muslims lives in South Asia (India, Pakistan, Bangladesh). Although they are mere rough estimates, these figures clearly show that the Arab states are anything but representative of the present discourse about Islam as a world religion and the relationship between Islamic law and the secular states of the West. What is more, the global purview and remit of Islamic law that reflects the legal norms of the Shariah is much greater than what is commonly perceived by the public and the media in the West. Although the Shariah is generally regarded as the Islamic legal order, it does not correspond to the legal situation in Islamic countries. Thus, despite the postulated universal validity, there is a gap between the normative claims made about the Shariah and reality.
Ultimately, all states whose legal orders have a religious foundation or at least a theonomic background are confronted with the problem of legal secularisation. This also applies to legal cultures and political systems in the West whose foundations are at least derived from natural law or law of reason that is Christian or Catholic in origin. However, it also applies to Europe‘s public-law regimes, which are undergoing a sweeping societal and legal transformation as legal systems grow more Europeanised, to say nothing of the globalisation of other legal matters such as commercial law and transnational law.
Given these conditions, the relationship between religion and the law is now subject to requirements that throw an entirely new light on the issue of law and justice in Islamic regional societies as well as in the largely secularised world of the West. This applies equally to modern Islamic and to Western secular law. However, Western and continental European thinking on the rule of law and its credo of supposedly universal human rights and civil freedoms – no matter how these are understood substan tively – still harbours, as contemporary studies document, remnants of Western political theology that make it difficult to conduct a fruitful dialogue between legal cultures. Enforced by modernity, the secularisa-tion of all legal concepts regarding democracy and the rule of law, howe ver defined, that is said to be progressing everywhere does not provide us with any cut-and-dried convenient solutions that merely have to be dished up to the needy nations in the near future as such to be more precise and specific.
Universalism or Particularism in Islamic law?
Given the extent and diversity of the Islamic world, the only possible objective to test a few approaches that might facilitate access to regionally differentiated structures and systems of Islamic law as well as to the constitutional systems of the West, so as to facilitate comparing Islamic concepts of law and justice with current developments in Western constitutional and ordinary law. Almost without exception, as viewed from the perspective of Islam and Islamic law, the legal situation in the Arab heartlands as well as in South and Southeast Asia suggests that these problems are political as well as legal and that their analysis and solution is beyond the reach of national endeavours. First and fore most, the Shariah and its claim to universal validity raise normative structural problems of an international and transnational character that can be adequately analysed only in the context of a global society. Guided by historically evolved modern precepts of law and justice, politics as well as the law had a controlling influence on the formation of a normative order.
“Shariocracy” or Secular law?
The Islamic regions and states that were menti oned are not confronted by a choice of two extremes, although they stand between the Shariah and secularisation. What is more, those legal developments that can be scientifically determined do not reveal any unambiguous trends regarding the future path of the law in the Islamic world, at least with regard to the rule of law. Nevertheless, it is a fact that all Islamic legal regimes, however they may be organised, are confronted by requirements that relate to technical, economic and social modernisation. At the same time, they are subject to political and legal transformation processes that tend to enhance the democratisation,con-stitutionalisation and codification of all social relations in the sense of the rule of law.
Guarantees are given by the law, not by the state. This is no different in Islamic law, which raises the question of what elements of the rule of law the Islamic states really do need from continental Europe. Common practice of identifying and equating a constitutional state under the rule of law implies or may imply drastic terminological simplifications and short-cuts that should be closely studied, especially in historical end empirical terms, before their application to Islamic legal systems and their constitutionalization which was not done in this case. Another concept that should be scrutinised whenever it is applied to modern Islamic law is legal secularisation. After all, secularisation is not all that much concerned with emancipation from religious premises, or indeed with the alleged or suspected loss of importance suffered by religion in the modern age. Rather, the question is how, given the constant demands for democracy and the rule of law, political and legal institutions and processes – be they global or particular – can be reconciled with religious controls exercised by society.
muslims
No comments:
Post a Comment
Comments
Add your comment, speak your mind
Personal attacks are not allowed. Please read our comments policy