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Freedom of Expression and Islam
By Dr. S. Parvez Manzoor
Perhaps the best point of entry in this highly seminal field is Mohammad Hashim
Kamali's original contribution to the debate over 'Freedom of Expression in
Islam' that is truly a labour of love and a work of devotion and piety. (Freedom
of Expression in Islam. By Mohammad Hashim Kamali. The Islamic Text Society,
Cambridge, 1994. Pp 349. ISBN 0-946-62160-8.) It is uncompromisingly 'Islamic'
in temperament, approach and method, a normative study in the 'traditional'
mould that consciously strives to remain within the indigenous paradigm of fiqh.
And yet, it is also quite radical and original in that it treats a thoroughly
'modern' theme and by so doing, willy-nilly, gets involved in ideological
polemics with modernity. As a pioneering effort, it is both daring and
imaginative, sober and scholarly and has won the 'Isma'il al-Faruqi Award for
Academic Excellence'. Fulfilling a genuine need and initiating an authentic
discourse, its merits have been duly recognized by the scholarly community.
However, in its dialogue with modernity, in its perception and response to the
polemics of secular modernism, it is far from satisfactory. In reflecting over
the problem of 'freedom of expression in Islam', the author may not have
envisaged and planned entering into polemics with modernity but such is its sway
over the moral and intellectual clime today that no contemporary discourse may
claim authenticity if it ignores the modernist context of our world. Least
justifiable is this negligence in a study that deals with a theme, freedom of
expression, which is the gift, as it were, of modernist consciousness. In
dealing with an uncompromisingly modern subject, there's no escaping its
polemics and criticism of 'traditional' worldviews. True enough, Kamali is not
totally insensitive to the modernist context and subtext of his work and his
diffidence and humility at the treading of this virgin territory are quite
genuine and touching. Nevertheless, it is my conviction that a sharper
intellectual vision of modernity and a more vigorous encounter with its polemics
would have enhanced the already considerable worth of this work. The few
following remarks, it is hoped, would put the polemical subtext of 'freedom of
expression' in sharper focus.
Modernity espouses a metaphysics of immanentism within which the state, or
existential body-politic, assumes certain attributes that theistic religions
ascribe to the Transcendent God. And yet, paradoxically, though secular
modernity (ostensibly) passes no judgement on the question of God's existence,
it insists that religious and transcendent tenets be banished from politics,
from the governance of the state. Or, differently expressed, questions of God's
existence or non-existence, and other similar 'metaphysical' issues, it claims,
belong to individual conscience with respect to which the state and its legal
order must remain neutral. But, the state also insists that there are other
issues, not pertaining to conscience, where it is the highest, sovereign,
authority and that these constitute the crux of politics and statecraft. The
individual is free with respect to religious and metaphysical 'beliefs', but not
with respect to civil matters such as taxation, property, matrimony etc. Here
the state has the right to use force to secure compliance. State laws are thus
not laws of conscience but those of coercion. Freedom of expression is the
outward, public, side of the inward, individual, freedom of conscience. However,
despite its neutrality with regard to questions of conscience, the state does
get involved in the issue of their 'expression', their manifestation in the
common, public, space. It is this very neutrality that stipulates, it is argued,
that all individual consciences have the right to free expression in the public
sphere and that guaranteeing that right is a state obligation. The state is
concerned, however, only with the legal aspect of public expression and not with
the moral content of private conscience. Freedom of expression, in short,
pertains not to truth but to the logistics of its 'self-disclosure': it is not
an individual issue but an 'affair of the state'.
Any discussion of 'freedom of expression', it ought to be underlined, is
contingent upon the dialectics of individual and state, conscience and society,
public and private, religion and politics that are all peculiar to secular
modernity. (However, not only is the definition of what constitutes a private
act of conscience, in contradistinction to a public act of politics, always
historically conditioned and dependent upon the prevailing societal consensus,
even the distinction itself, namely between private conscience and public
politics, is a contested claim of secular modernity and not a given fact of
human existence.) Without taking full cognizance of these dialectics, or
rejecting these dichotomies on normative grounds, in other words, there cannot
be any meaningful probing of the theme of 'Freedom of expression in Islam.'
Without any delineation of the Islamic vision of the state, albeit in modern
times, the project of discovering (the dialectic of?) 'Freedom of Expression in
Islam' cannot even be launched: it does not even lift off the ground, to use a
modern metaphor.
One may, of course, regard Islam as an autonomous, self-referential, system that
is in no need of corroboration or correction from other worldviews and
philosophies. Modernity and adherents of secularism may, in such a case, enter
into dialogue with Islam, but only on Islamic terms, only on the pre-condition
of acknowledging the possibility of transcendence in human affair. Such a
stance, had it been adopted in this study, would have entailed the task of
deconstructing modernity, exposing its metaphysical foundations and charting the
moral parameters of its secular project. It would have certainly not required
the borrowing of a patently and self-consciously polemical topos of modernity
and transplanting it in the Islamic intellectual and moral landscape as has been
done here. For to launch a project of delineating the parameters of 'Freedom of
expression in Islam' is tantamount to acquiescing in to the moral validity of
the modernist claims, if not accepting them as the yardstick of Islamic
theopolity. Then there are the notorious conundrums of the concept of freedom
that are logically and metaphysically intractable. Again, for the purpose of
managing them within a pragmatic discourse, modern theory reduces their scope to
certain civil and political 'liberties', i.e. absence of legal and practical
constraints from the authority and power of the state. To define freedom as 'the
ability of the individual to do or say what he or she wishes, or to avoid doing
so, without violating the rights of others, or the limits set by the law' (p 7)
is to turn it into an empty tautology. For, if freedom is simply identical with
the licit, the legally valid, one may dispense with the concept of freedom
altogether, retain only that of law and not a whit need be modified of the moral
discourse! Little wonder that prior to the advent of modernity, rights and
liberties did not form the stock motives of the politico-religious discourse
and, as Kamali himself realizes, the introduction of the expression 'Freedom of
Expression' into the political vocabulary of Arabic is of recent origin.
Kamali, who has been forced to approach this subject without the benefit of any
precedent or prior model of reflection, declares in the beginning that the
principal question that he addresses in the study is 'whether or not the
Shari'ah subscribes to freedom of conscience.' If so, the title of the book
fails to pay tribute to his intellectual labour, for it announces that the work
is about 'Freedom of Expression', and the two are by no means identical. Sure
enough, an inquiry into this subject is worth a sizeable volume and may demand a
close examination of the traditional sources of fiqh, something that Kamali does
quite judiciously before saying 'yes'; nevertheless, to ordinary believers like
this writer, the question admits of only one, affirmative, answer - with or
without the ransacking of the brains of our illustrious fuqaha! The modern query
leads to a single, foregone conclusion as the very concept of submission
(Islam), as found in the Qur'an, denotes an act of voluntary assent, a receiving
of God in the soul as it were. Islam and fettered conscience are contradictions
in terms. Only a jurisitic intellect, which identifies Islamic reason with
raison d'état, could be so befuddled as to regard 'freedom of conscience' an
original fact of modernist consciousness that needs authentication from
indigenous legal sources!
Though Kamali remains firmly anchored in the fiqhi tradition, his perception and
conceptual schemes show unmistakable signs of having acquired modernist
influences, nay prejudices. A clear, and for this critic quite distressing, sign
of this is Kamali's indiscriminate use of the prejudicial term, 'religion',
which modernity regards as synonymous with private conscience. (The concept of a
universal and essential 'religion', it has been cogently demonstrated, is part
of the polemical repertoire of modernity and a historical construct of secular
forces (Cf. Talal Asad, 'The Construction of Religion as an Anthropological
Category', (Genealogies of Religion, Baltimore, 1993)). Another, far more
grievous, sign of juristic positivism comes from the reified perception of the
pivotal concept Shariah: it is used such that it can be totally identified with
the extant corpus of fiqh. Needless to say that from the Islamic point of view,
there are very convincing arguments for keeping the transcendent vision of the
Shari'a distinct from its fallible appropriation in the juridic tradition, for
keeping the text of the law separate from its interpretations. Nor is Kamali's
disregard of the modern distinction between the legal and the moral going to cut
much ice with the critics of the tradition for whom it merely represents the
obsolete and the archaic. He is least likely to convince modernists like
Habermas with his contentions that actions like slander, insult and blasphemy
are part of the modern political discourse.
"This work is a an attempt to explore some of the Islamic responses to issues of
contemporary concern', says Kamali, and 'to develop further the existing
positions in the light of prevailing conditions, or failing that, to take a
direct approach to the source materials of Shari'ah in the quest for an
alternative solution.' (p 5; Italics added). This reviewer couldn't agree more
but would also like to add that in this search the philosophical and conceptual
analysis of the key Qur'anic terms be given priority over the atomistic and
literal approach of fiqh. Needless to say that in this regard, regardless of
Kamali's commendable effort, the task is yet to begin.
Let me recapitulate the main insights of this review:
1. 'Freedom of Expression' is a problem bestowed to us by modernist
consciousness which makes a pragmatic distinction between public and private.
Islam, a doctrine of truth, which transcends the Public-Private divide, does not
confront the problem of the freedom of expression in a purely pragmatic spirit.
For it, the content and ethic of freedom are more paramount than its form and
logistics.
2. Freedom of Expression is a problem that demands attention and resolution
within the public realm, but especially within a public realm that does not
claim to 'incarnate' any 'transcendental truth', that makes no effort toward the
'salvation' of its citizens. Little wonder that the problem is intimately
related to the constitution of the (modern) state (political and existential
community) and 'the ultimate ends' toward which it does, or does not, strive.
3. For the secular modern state, the mot paramount freedom is the freedom of
'religion', or of 'conscience' - which does not entail, however, freedom from
taxes or laws! That such a scale of values establishes the sovereignty of the
political over the religious is beyond doubt. Nevertheless, the historical fact
that the modern, non-confessional, state arose as a consequence of the
internecine sectarian wars of pre-modern Europe, should make us sensitive to the
sustaining ethos and moral pathos of the modern longing for freedom. Despite
this, however, modernism cannot claim to possess any ultimate truth, and, hence,
the secularity of its constitution is not the only guarantee for the freedom of
conscience and expression.
4. Freedom of Expression, like everything else in modernity, is an instrumental
value, since the modern state pretends to be neutral towards - cares nothing
about - the final goal of the human existence. (All this is of course
disingenuous and misleading, for the modern state does have its agenda, its
commitment to the, secular, wellbeing of its citizen; it is not merely a formal
and instrumental entity but does have a substantive commitment to the values of
this worldly- meliorism, just as it espouses a metaphysics of immanentism.
5. To pose the problem of the freedom of expression in its ultimate,
metaphysical and moral, context (and then transpose it to the contrasting
metaphysics of Islamic transcendentalism) also renders it intractable and beyond
the kin of any pragmatic solution. Such a 'fundamentalist' epistemology, though
indispensable for a correct understanding of the problem, is counter-productive
in a world of competing civilizations and contending moralities. However, if we
confine our attention to the purely functional and logistic aspects of Freedom
of Expression, then the theme that would merit further exploration and
reflection would not be 'Freedom vs. Islam', but the nature and scope of that
freedom in a concrete historical polity, say Turkey, or Iran, or Kuwait, or
Pakistan, etc.
6. A logical corollary of the above argument is that Freedom of Expression is
essentially a matter of the presence or absence of 'civil and political
liberties' and that it should be problematized as such. Nevertheless, even
within the provision of such a concrete objective, the debate in modern Western
societies, which are assumed to provide yardsticks for such liberties, is seldom
enlightening or capable of unambiguous guidance. That there is a logical, and
moral, tension between the ultimate value of 'freedom' and that of 'equality'
(or 'justice') has been the cause of much philosophical and moral distress. That
any actualization of 'freedom' enjoins a counter-balancing of its effects by the
equally obligatory quest for justice, or equality, renders the issue of 'Freedom
of Expression' far more problematical than a glib slogan of civilizational
polemics! Nor must we forget the uncomfortable fact that in a hierarchical and
hegemonic world, the beneficiaries of freedom are not always the week and the
oppressed, but also, and indeed pre-eminently so, the rich and the dominant!
7. Despite all these reservations, and the genuine intellectual, philosophical
and moral quandaries that, the theme of Freedom of Expression gives rise to in a
cross-civilizational context, let's not, as Islamically committed thinkers,
shirk our responsibility of exposing all the hurdles - socio-political and local
but also neo-imperialist and global - that prevent the emergence of a humane
regime of civil and political liberties in the lands of the Muslims. Let us not
produce any apology for the corrupt and oppressive order of the Muslim regimes
that seeks legitimacy by exploiting the name of Islam. And let us not transform
Islam, the religious faith which for the recognition of its truth accepts no
constraints on the conscience of man, into a political ideology that for the
glories of this world would establish a regime of coercion and force.
Source:
http://www.islam21.net/pages/keyissues/key4-4.htm
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