Post by Sapphire Capital on Jul 25, 2009 1:23:49 GMT 4
The Indian Dimension of An-Na'im's Islam and the Secular State
Prakash Shah
Queen Mary University of London, School of Law
ISLAM AND EUROPE: CRISES ARE CHALLENGES, Marie-Claire Foblets & Jean-Yves Carlier, eds., Leuven University Press, 2009
Queen Mary School of Law Legal Studies Research Paper No. 18/2009
Islamic Law and Law of the Muslim World Paper No. 09-66
Abstract:
This article focuses on the chapter on India in An-Na'im's Islam and the secular state. It first sets out the general context of An-Na'im's writing and his specific commitment in Islam and the secular state to distinguish between the secularity of the state, on the one hand, and the basically private realm of shari'a. This forms the basis of An-Na'im's contention that shari'a and state law should be kept separate and that the state is not competent to enforce shari'a. The chapter then goes on to examine the basis for secularism in India's experience of British colonialism, and locates its roots in India's encounter with British Protestantism. The discourse of secularism has survived in post-colonial India and become a constitutional commitment, although its theological underpinnings continue to exacerbate ethno-religious conflict. The answer to such conflict must lie outside the domain of the opposition between religion and secularism therefore, and potentially in India's long consciousness of pluralism, including legal pluralism. As an example of the continued vitality of such pluralism the issue of courts and judging in the Muslim law context is taken up, with a focus on some controversial litigation in matters of Muslim personal law. These examples actualize the claim of the article that An-Na'im's thesis in Islam and secular state may actually not be workable in concrete contexts outside of the theological premises which underpin it.
papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1397120_code1175289.pdf?abstractid=1397120&mirid=3
Prakash Shah
Queen Mary University of London, School of Law
ISLAM AND EUROPE: CRISES ARE CHALLENGES, Marie-Claire Foblets & Jean-Yves Carlier, eds., Leuven University Press, 2009
Queen Mary School of Law Legal Studies Research Paper No. 18/2009
Islamic Law and Law of the Muslim World Paper No. 09-66
Abstract:
This article focuses on the chapter on India in An-Na'im's Islam and the secular state. It first sets out the general context of An-Na'im's writing and his specific commitment in Islam and the secular state to distinguish between the secularity of the state, on the one hand, and the basically private realm of shari'a. This forms the basis of An-Na'im's contention that shari'a and state law should be kept separate and that the state is not competent to enforce shari'a. The chapter then goes on to examine the basis for secularism in India's experience of British colonialism, and locates its roots in India's encounter with British Protestantism. The discourse of secularism has survived in post-colonial India and become a constitutional commitment, although its theological underpinnings continue to exacerbate ethno-religious conflict. The answer to such conflict must lie outside the domain of the opposition between religion and secularism therefore, and potentially in India's long consciousness of pluralism, including legal pluralism. As an example of the continued vitality of such pluralism the issue of courts and judging in the Muslim law context is taken up, with a focus on some controversial litigation in matters of Muslim personal law. These examples actualize the claim of the article that An-Na'im's thesis in Islam and secular state may actually not be workable in concrete contexts outside of the theological premises which underpin it.
papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1397120_code1175289.pdf?abstractid=1397120&mirid=3