Islamic Law and Public Reason

Mohammad Fadel recently made two outstanding articles available discussing the compatibility of Islamic law with a Rawlsian conception of political liberalism that is based on the idea of public reason. In The True, the Good and the Reasonable, Fadel shows how the constitutional essentials of a liberal state can be endorsed from within a comprehensive Islamic view of the good; especially in religiously diverse societies, such a view can contribute to an overlapping consensus supporting that basic structure. Fadel argues that freedom of conscience is necessary to accommodate long-standing epistemological skepticism regarding our ability to know the content of divine law as well as to protect free theological inquiry and the doctrinal pluralism that inevitably results. Moreover, Fadel argues that juridical concepts such as the universal human goods and ‘public policy’ should be understood as intellectual precursors to the idea of public reason.

Fadel’s presentation is learned and important, though there are a few junctures at which I would take the discussion in a different direction. Fadel says that his analysis is aimed at Western countries with significant Muslim populations and not at Muslim-majority jurisdictions adapting Islamic teaching to modern conditions. I was surprised that Fadel would cast his piece in this light without engaging more with the old and vast literature devoted to the propriety of living as a Muslim in non-Muslim lands. Alternatively, his analysis seems very relevant to secular regimes in the Muslim world itself whose legitimacy is challenged by religious conservatives as well as to Muslim-majority countries which contain substantial intra- and inter-religious diversity. More broadly, I wonder whether Fadel has selected the right theoretical framework within which to analyze the issue. It seems to me that the conceptual structure of Islamic political thought is not liberal but republican, built around ideals of nondomination, civic virtue, and the public good. Republican and liberal regimes tend to converge on similar constitutional structures—separation of powers, constitutional constraints, public accountability—so if one can reflectively endorse the former one can generally endorse the latter as well. But there are important conceptual differences between the two political theories, and if one theory provides a more direct explanation of the compatibility of Islamic teaching with constitutional democracy then those differences are worth exploring.

In Public Reason as a Strategy for Principled Reconciliation, Fadel argues that, to the extent that rules of Islamic law cannot be justified through public reason, the state may require or prohibit what Islamic law permits, or permit what Islamic law requires or forbids, without substantially infringing on religious freedom. Religious freedom does impose limits, however, on the state’s ability to require what Islamic law forbids or forbid what Islamic law requires. Requirements of Islamic law that are unsupported by public reason can be applied to those who voluntarily submit to its norms, for instance through alternative criminal sentencing or a form of ADR for commercial and family disputes. Although I find Fadel’s analysis of the three primary normative modalities— prohibition, permission, obligation—illuminating, I feel he does not give sufficient effect to the distinction among permissible acts between those that are encouraged, discouraged, and neutral from a religious perspective. Say that the beard and the headscarf are encouraged but not required by Islamic teaching or are neutral from a doctrinal perspective but are recognized symbols of religious identity. Legal prohibitions on these expressions of religious belief still seem to infringe rights of religious freedom. By contrast, Fadel argues that polygamy may be prohibited by the state simply because it is not supported by public reason and not required by Islam. Fadel observes that polygamy is permitted but discouraged within Islam, but does so not to justify the legal prohibition but only to point out that polygamy presents a relatively easy case of legally prohibiting what religion merely permits. I think Fadel’s argument would be stronger if he explored the possibility that the justification for legally prohibiting practices that are permitted but not required by religious teachings depends in part on whether those practices are encouraged, discouraged, or neutral within the religion itself. In any case, Fadel’s argument suggests that we cannot adjudicate the compatibility of a legal prohibition with rights of religious freedom without first understanding the normative status of the underlying activity within the religion itself. And adoption of that position by constitutional courts may thrust the judiciary into deeply controversial religious debates.