Daily Times

In his paper “The Transformation of the Sharia from Jurists’ Law to Statutory Law in the contemporary Muslim world”, Aharon Layish outlines how Sharia was originally ‘jurists’ law” i.e. law created by independent legal experts. He points out that Ibn-al-Muqaffa, the Secretary of State of the Abbasid Caliphate, suggested to Caliph Al-Mansur that latter enact through an administrative decree a “comprehensive codification out of different doctrines of main schools with a view to bringing about uniformity in law”.

This did not materialise. He then quotes J. Schacht’s introduction to Islamic Law as saying that “orthodox Islam refused to be drawn into too close a connexion with the state”. Therefore the codification of Islamic law in earnest begins in the 19th century with Mejelle, the Ottoman Civil Code based on Hanafi school. As Muslim majority states won independence from colonial rule, many of them did codify Sharia or make them part of their Constitution as a source of law. Indeed Rashid Rida has criticized the Ulama of Al Azhar for not standing up to formal codification in Egypt which to him has meant not just a damage to ulama’s economic status and reputation but also the loss of Islamic character of the very state that seeks to codify Sharia in this manner. This has meant a loss of the independence that ulama traditionally have maintained with respect to the state and its interference in matters of Sharia.

For us in Pakistan, the partisans in the debate around secularism have always assumed that Sharia and secularism are binary opposites mutually exclusive and at odds with each other

Essentially building on this idea, Sudanese scholar and lawyer Dr Abdullahi Ahmed An Na’im’s book’s Islam and the Secular State opens up with this bombshell of a statement: “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.” He defines secular state as follows: “By a secular state I mean one that is neutral regarding religious doctrine, one that does not claim or pretend to enforce Sharia — the religious law of Islam- simply because compliance with Sharia cannot be coerced by fear of state institutions or faked to appease their officials.” An Na’im argues that striving for a secular state is a religious imperative for every Muslim. His idea of secularism is not the French idea of secularism or even what he — I suspect- would call the Turkish model that Kemal Ataturk introduced. He seems to believe in the absolute neutrality of the state. An Na’im considers the very idea of an Islamic state as fallacious and a non-starter. Indeed he seems to suggest that such an idea itself is predicated on European Model of Nation State and positive law, which is wholly inconsistent with Islamic traditions.

For us in Pakistan the partisans in the debate around secularism have always assumed that Sharia and secularism are binary opposites mutually exclusive and at odds with each other. In my own work on Jinnah Jinnah Myth and Reality, I argue that Jinnah, the Anglicized barrister from Lincoln’s Inn who reportedly flouted almost all dietary restrictions supposedly imposed by Islam, who belonged to the minority Shia Muslim community and who had long championed the cause of Hindu Muslim Unity and secular Indian Nationalism before coming to the idea of Muslim Nationalism late in life, wanted Pakistan to be a secular state.

This is self evident from several of his speeches where he promised equal citizenship regardless of religion to all future citizens of Pakistan and argued that in due course of time the religious identity and the angularity of majority and minority on the basis of faith would vanish. The critics of this view that Jinnah waned a secular state have seized upon his references to Islam few and far between. In particular Dr Farzana Shaikh, a historian based in UK, has famously argued that Jinnah’s references to Islam and Sharia have lent ambiguity to the ideological moorings of the new state leading to the perpetual state of flux. In particular she misquotes Jinnah’s speech at the Karachi Bar Association by attributing to him falsely the statement ‘The constitution of Pakistan shall be based on Islamic Law (Sharia)’.

The original statement as found in Jinnah Papers is entirely different. Mr Jinnah says “why this nervousness that the future constitution shall be in conflict with Shariat laws”. He goes on to say that it would be based on justice and fair play for everybody. When seen in light of the fact that Sharia itself has not been a source for positive law but rather a code of conduct for the individual Muslim who then might put some of these laws into practice as a matter of public policy in the state, it becomes clear that there is no contradiction in the claim that Pakistan was envisaged as a secular state where the free exercise of Islam in light of Sharia would be secured just as equal rights for minorities and free exercise of other faiths would also be guaranteed.

The important take away from An-Na’im’s book is this line which shows the clear distinction between the idea of a secular state and a religious society. He writes: “The separation of Islam and the state does not prevent Muslims from proposing policy or legislation stemming out from their religious or other beliefs. All citizens have the right to do so, provided they should support such proposals with what I call civic reason”. Thus what An-Na’im says is that the idea of secular state and the society are separate and distinct. He does not argue for a secular society. On the contrary he argues that the only way a religious society — especially one with deepseated divisions such as Muslim society and one with differences of opinion- blessing according to one Hadith albeit a weak one — can remain strong is if there is a secular state presiding over it. This is what makes secularism and Sharia perfectly compatible with each other and makes the pursuit a secular state a religious imperative for all Muslim majority countries.

The writer is a lawyer and a Visiting Fellow at Harvard Law School in Cambridge MA, USA. He blogs at http://globallegalforum.blogspot.com and tweets @therealylh

Published in Daily Times, February 9^th 2018.