1. The reviewer participated in a pre-publication workshop with the author in January 2007.
2. ‘Abdullahi Ahmed An-Na'im has written numerous books dealing with Islam and human rights, or Islam and constitutionalism, see, e.g., ‘An-Na’im, Abdullahi Ahmed, Toward an Islamic Reformation: Civil Liberties, Human Rights, and International Law (Syracuse Univ. Press 1990); ‘An-Na’im, Abdullahi Ahmed, Human Rights in Cross-Cultural Perspectives: A Quest for Consensus (Univ. Penn. Press 1992); ‘An-Na’im, Abdullahi Ahmed, et al., Human Rights and Religious Values: An Uneasy Relationship? (Eerdman's Publ’g Co. 1995); ‘An-Na'im, Abdullahi Ahmed, Islamic Family Law in a Changing World: A Global Resource Book (Zed Books 2002); ‘An-Na’im, Abdullahi Ahmed, African Constitutionalism and the Role of Islam (Univ. Pa. Press 2006). He also has numerous articles to his credit, including, for example, ‘An-Na’im, Abdullahi Ahmed, The Rights of Women and International Law in the Muslim Context, 9 Whittier L. Rev. 491 (1987); ‘An-Na’im, Abdullahi Ahmed, Islam and International Law: Toward a Positive Mutual Engagement to Realize Shared Ideals, 98 Am. Soc'y Int'L L. Proc. 159 (2004); ‘An-Na’im, Abdullahi Ahmed, Globalization and Jurisprudence: An Islamic Law Perspective, 54 Emory L.J. 25 (2005); ‘An-Na’im, Abdullahi Ahmed, Shari'a and Positive Legislation: Is an Islamic State Possible or Viable?, in 5 Yearbook of Islamic and Middle Eastern Law 29–42 (Contran, Eugene & Mallat, Chibli eds., 1998–1999).
3. See, e.g., Westbrook, David A., Islamic International Law and Public International Law: Separate Expressions of World Order, 33 Va. J. Int'l L. 819 (1993).
4. More than ten reviews of Islam and the Secular State have already been published on the blog The Immanent Frame. See The Immanent Frame: Islam and the Secular State, http://www.ssrc.org/blogs/immanent_frame/category/islam-and-the-secular-state/ (last visited Dec. 13,2008).
5. Posting of ‘Abdllahi Ahmed An-Na’im to The Immanent Frame, http://www.ssrc.org/blogs/immanent_frame/2008/07/24/call-it-x/ (July 24, 2008, 07:49 EST) (entitled Islam and the Secular State: “Call it X”).
6. On the importance of distinguishing theological from legal arguments in the Islamic context, see generally Fadel, Mohammad, The True, the Good and the Reasonable: The Theological and Ethical Roots of Public Reason in Islamic Law, 21 Can. J.L. & Jurisprudence 5 (2008), and Fadel, Mohammad, Public Reason as a Strategy for Principled Reconciliation: The Case of Islamic Law and International Human Rights Law, 8 Chi. J. Int'l L. 1 (2007).
7. See, e.g., posting of John Esposito to The Immanent Frame, http://www.ssrc.org/blogs/immanent_frame/2008/08/25/the-challenge-of-creating-change/(Aug. 25, 2008, 15:30 EST) (entitled Islam and the Secular State: The Challenge of Creating Change); posting of Daniel Philpott to The Immanent Frame, http://www.ssrc.org/blogs/immanent_frame/2008/07/14/arguing-with-an-naim/ (Jul. 13, 2008, 07:37 EST) (entitled Islam and the Secular State: Arguing with AnNa’im).
8. See, e.g., posting of John Esposito to The Immanent Frame, http://www.ssrc.org/blogs/immanent_frame/2008/03/02/who-speaks-for-islam/ (Mar. 2, 2008, 13:04 EST) (entitled Rethinking Secularism: Who Speaks for Islam).
9. See Fadel, The True, the Good and the Reasonable, supra note 6, at 11-14 (giving a defense for using historical doctrines in this fashion).
10. Posting of Saïd Amir Arjomand to The Immanent Frame, http:www.ssrc.org/blogs/immanent_frame/2008/08/19/preaching-to-the-converted/ (Aug. 19, 2008, 09:28 EST) (entitled Islam and the Secular State: Preaching to the Converted).
11. Some commentators have pointed out that Muslim liberals occupy a politically precarious position, a fact that undermines their claims to Islamic authenticity. Abu-Odeh, Lama, The Politics of (Mis)Recognition: Islamic Law Pedagogy in American Academia, 52 Am. J. Comp. L. 789, 808 (2004). An-Na’im has himself made the point that inability of the international system to bind the United States to the norms of international law or to solve the Palestinian problem undermines the very idea of international law, including international human rights law. An-Na’im, Islam and Internationa! Law, supra note 2, at 8.
12. Fadl, Khaled Abou El, The Unique and International and the Imperative of Discourse, 8 Chi. J. Int'l L. 43, 43 (2007) (“Coherent theoretical stands are often the only safeguard against result-oriented activism. When human rights activists and religious activists act without the restraint of reflective and self-critical pauses, they often end up violating the moral space in which human beings function.”). To this risk should be added the presence of anti-Muslim groups who, in support of their conviction that Islam and Muslims constitute an ever-present danger, mine the Islamic tradition seeking only those elements most incompatible with modern sensibilities.
13. Laïcité is often translated as “secularism,” but is a complex doctrine relating to the relationship between the state, the citizen, religion and equality in connection with maintaining a democratic public space. Bowen, John Richard, Why the French Don't Like Headscarves: Islam, The State, and Public Space 2–3 (Princeton Univ. Press 2007).
14. The Federalist No. 10, at 40 (James Madison) (Terence Ball ed., 2003).
15. Fadel, The True, the Good and the Reasonable, supra note 6, at 31-35.
16. An eleventh-century Muslim jurist made precisely this point in a treatise on public law. al-Hasan, AbuHabib, Ali b.al-Mawardi, , Al-Ahkam al-Sultaniyya 69 (Dar al-kutub al-‘ilmiyya 2000).
17. Fadel, The True, the Good and the Reasonable, supra note 6, at 61-65 (discussing medieval debates regarding when it is permissible to coerce non-Muslims to comply with Islamic law). Note, however, that while it is possible to show why enforcement of religious rules coercively with respect to believers does not necessarily violate their religious freedom, it requires one to assume, counter to all evidence, that believers are all well-trained theologians who have thoroughly assimilated the doctrines of Islamic theology and ethics. To the extent that such an assumption is unjustifiable, one could construct an argument on Islamic theological grounds that in such circumstances, there is no religious basis to enforce religious law as religious law. Space constraints, however, do not permit me to develop the details of such an argument here.
18. For a general account of the role of probability in Sunni moral and legal thought, see Zysow, Aron, The Economy of Certainty (1984) (unpublished Ph.D. dissertation, Harvard University).
19. Johansen, Baber, Truth and Validity of the Qadi's Judgment. A Legal Debate Among Muslim Sunnite Jurists from the 9th to the 13th Centuries, 14 Recht van de Islam 1 (1997).
20. Fadel, The True, the Good and the Reasonable, supra note 6, at 58 n. 234.
21. The medieval jurist and theologian, Abu Hamid al-Ghazali, in fact uses a policy dispute between the first two Sunni caliphs regarding whether public resources should be distributed equally or on the basis of individual merit as evidence that in those areas of life not regulated by a definitive rule of revelation, the views of all qualified interpreters of the law are equally valid. Muhammad, Abu Hamid Muhammad B.al-Ghazali, B. Muhammad, al-Mustasfa fi ‘ilm al-Usul 353–54 (al-Shafi, Muhammad ‘Abd al-salam ‘Abd ed., 1992). He did not conclude, however, that neither caliph was therefore precluded from resolving the policy dispute; rather, each caliph was free to follow the policy that he thought was best.
22. Al-Hasan b. Yusuf b. Alî (known as Ibn ul-Mụtahhar al-Hillî), ‘‘Ashar, Al-Bãbu ‘l-hâdî: A Treatise on the Principles of Shi’ite Theology 62–68 (Miller, William McElwee trans., Royal Asiatic Soc'y Gr. Brit. & Ir. 1958) (explaining that the obligation to have an imam who combines religious and political knowledge and who is immune from sin is rationally necessary by virtue of God's inherent goodness).
23. For example, the early Hanafi jurist Muhammad b. Hasan al-Shaybani's regular use of terms like “obligation of the Muslims (dhimmat al-muslimin),” “the Muslims' ruler (imam al-muslimin)” and ‘the Muslims' power (mana‘at al-muslimin)” in the course of his explanation of the rules governing treaties and international relations suggests a normative conception of the state as being an instrumentality that belongs exclusively to the Muslims. Sarakhsi, Muhammad ibn Ahmad, Sharh Kitab al-Siyar al-Kabir Lil-imam Muhammad Ibn al-Hasan al-Shaybani (1st ed., Dar al-Kutub al-‘Ilmiyya 1997).
24. Heer, Nicholas, The Priority of Reason in the Interpretation of Scripture: Ibn Taymiyyah and The Mutakallimun, in Literary Heritage Of Classical Islam 181–95 (Mir, Mustansir ed., Darwin Press Inc. 1993).
25. Many twentieth-century Muslim jurists engaged in “Jihad-revisionism,” arguing that earlier scholars based their doctrines of aggressive jihad on the assumption that the default relationship between states was war. Because of the introduction of international organizations and the spread of international law, that factual presumption is no longer warranted, thereby requiring a revision of the legal rules governing international conflict so that only defensive war is permissible. In this connection, see Zahra, Muhammad Abu, Al-‘Alaqat al-Dawliyah fi al-Islam (al-Dar al-Qawmiyya li-l-Tiba'ah wa-l-Nashr 1964); al-Zuhayli, Wahba, al-‘Alaqat al-Duwaliyya fi al-Islam: Muqaranah bi-l-Qanun al-Dawli al-Hadith (Mu'assasat al-Risala 1981); Shaltut, Mahmud, A Modernist Interpretation of Jihad: Mahmud Shaltut Treatise Koran and Fighting, in Jihad In Classical and Modern Islam: A Reader 59–102 (Peters, Rudolph ed., Markus Wiener Pub. 1996).
26. Kamali, Mohammad Hashim, Principles of Islamic Jurisprudence 285 (Islamic Texts Soc'y 1991) (noting that legal reasoning often incorporate conditions that prevailed at the time of their formulation, and accordingly, if those circumstances change, legal reasoning must be updated in light of those changed circumstances).
27. Id. at 288 (stating that the general terms of a revelatory text can be qualified by custom in certain circumstances).
28. Fadel, Mohammad, Adjudication in the Maliki Madhhab: A Study of Legal Process in Medieval Islamic Law 39, n. 8 (1995) (unpublished Ph.D. dissertation, University of Chicago).
29. Jackson, Sherman A., From Prophetic Actions to Constitutional Theory, 25 Int'l J. Middle E. Stud. 71, 74 (1993).
* Canada Research Chair for the Law and Economics of Islamic Law and Assistant Professor of Law at the University of Toronto Faculty of Law, Toronto, Ontario, Canada.
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