Mohammad Fadel (University of Toronto Law) has posted Seeking an Islamic Reflective Equilibrium: A Response to Abdallahi A. An-Na’im’s Complementary, Not Competing, Claims of Law and Religion: An Islamic Perspective. The abstract follows.
Professor ‘Abdallahi Na’im argues that there can be no conflict between religion and the state because religion and politics are part of different normative orders, and thus it is not conceivable that a conflict can arise between them. I argue that Na’im’s solution to the problematic relationship of religion to state shares the same conceptual terrain as separationism in American constitutional law, a position which has grown increasingly untenable as a result of the increasing religious pluralism in the United States and the expansion of the government into areas of life in a manner that would have been inconceivable even one hundred years ago. More importantly, revealed religions such as Judaism, Christianity and Islam provide their adherents with their own conceptions of justice that sometimes do conflict with the results of secular lawmaking. I argue that instead of seeking a further separation of religion from the state, on the grounds that the former is irrelevant to the latter, it would be more useful to judge both the claims of religion and the claims of the state from the perspective of the normative concerns of justice. From this perspective, religion can serve as an important source of normative values that can criticize unjust political outcomes. At the same time, however, religion cannot claim for itself immunity from the claims of justice. Instead, a reflective equilibrium between the claims of religion and the claims of the state should be the goal. I conclude with a couple of examples from historical Islamic law illustrating both the resources that Islamic law provides in furthering a more just legal system, and interpretations of historical Islamic doctrines in a fashion that is consistent with the kind of reflective equilibrium that should be the goal of legal reflection in a politically liberal state.