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A Comparative Analysis on the Concept of Freedom of Religion Under the Shari‘Ah and International Law

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A Comparative Analysis on the Concept of Freedom of Religion Under the Shari‘Ah and International Law

ABSTRACT

This study analyzes the compatibility of Shariah with International Law on freedom of religion. As a subject of colossal complexity and variation, detailed examination is restricted to the highly contentious issues of the right to change religion (otherwise termed apostasy in Islamic law), the religious rights of non-Muslims (Dhimma) in an Islamic State, relations of law and religion (state religion), blasphemy/defamation of religion, and the application of the doctrine of jihad in defence of the Islamic faith, etc.

Today, the serious disregard and infringement of freedom of religion by both State and non-State actors has kindled hatred and caused violence among people, as evidenced by severe and systematic persecution, domination and suppression by one religion or sect over the other using the instrumentality of State power in many countries across the globe.

Many instances abound on the oppressive treatment and discrimination of members of minority religion or faith within a nation; arbitrary killing and violence to the life and properties of the holders of certain beliefs or sects; willful destruction of  or damage to places of worship and other sacred sites of cultural and religious memory and learning in many parts of the world.

In view of this, the main objective of this work therefore, is to examine what comparable or divergent visions and precepts underlie Shari‟ah law and international law in providing for freedom of religion given the fact that as to Shariah, preserving the Islamic faith is among its fundamental principles and as to international law, promotion of tolerance and friendly relations forms its very basis.

To achieve this, doctrinal method of legal research was adopted, and reliance was placed on sources of information such as the primary and secondary sources of Islamic law as well as the sources of international law on the subject.

It is argued that while international law contemplate protection of freedom of religion only of recent, the Shariah as a system of law and religion was the first to recognize religious toleration right from the 7th Century A.D. and in view of this, it was observed that religious accommodation in Islamic tradition is only tenable under Islamic Rule than in democracy, socialism or communism, therefore a return to Islamic Khilafah system was advocated.

It was further submitted that freedom of religion in its international law conception is far from being universal and remain the most  contested freedom in view of its failure to recognize other legal and cultural traditions, the Shariah in particular.

The findings reveal that rules of international law related to freedom of religion are to a large extent, contradictory to those found under the Shari‟ah, it being the formulations of international standards remain largely reminiscent of Western as well as Judeo-Christian traditions to the exclusion of Islamic particularities.

Consequently, much of the current legal problems associated with violations of freedom of religion in Western countries as well as by Muslim majority countries are argued as being partly due to the existent doctrinal incongruence between the two systems of laws. The study concludes with the view that attainment of “universal” standards on protection of freedom of religion is possible, only if the international community appraises itself of the relevance of Shariah within international human rights discourse as an alternative legal tradition.

TABLE OF CONTENTS

Title Page – – – – – – – – – – i
Declaration – – – – – – – – – – ii
Certification – – – – – – – – – – iii
Dedication – – – – – – – – – – iv
Acknowledgment – – – – – – – – – v
Abstract – – – – – – – – – – vi
List of Abbreviations – – – – – – – – vii
List of Statutes – – – – – – – – – viii-ix
List of Cases – – – – – – – – – – x
Table of Contents – – – – – – – – – xi-xiii

CHAPTER ONE: General Introduction
1.1 Introduction – – – – – – – – 1
1.2 Statement of the Research Problem – – – – – 6
1.3 Aims and Objectives of the Research – – – – – 9
1.4 Research Methodology – – – – – – 10
1.5 Scope of the Research – – – – – – – 10
1.6 Literature Review – – – – – – – 11
1.7 Justification/Significance of the Research – – – – 30
1.8 Organizational Layout – – – – – – – 31

CHAPTER TWO: A Comparative Overview on the Compatibility of
Sharia and International [Human Rights] Law
2.1 Introduction – – – – – – – – 33
2.2 Arguments of Proponents of Compatibility – – – – 34
2.3 Argument of Opponents of Compatibility – – – – 48
2.4 Conclusion – – – – – – – – 57

CHAPTER THREE: Freedom of Religion in Islamic Law
3.1 Introduction – – – – – – – – 59
3.2 Islamic Concept of Freedom of Religion – – – – 60
3.3 Legal Framework under Islamic Law – – – – – 65
3.4 Nature and Scope of Freedom of Religion in Islamic Law – – 72
3.5 Attributes of Freedom of Religion in Islamic Law – – – 74
3.5.1 Right to Change Religion – – – – – 74
3.5.2 State Religion in Islamic Law – – – – 79
3.6 Religious Rights of Dhimmi (non-Muslims) – – – – 81
3.7 Jihad to Defend the Islamic Religion – – – – – 86
3.8 Defamation of Religion – – – – – – – 90
3.9 Conclusion – – – – – – – – 92

CHAPTER FOUR: Freedom of Religion in International Law
4.1 Introduction – – – – – – – – 93
4.2 International Recognition of the Concept of Freedom of Religion – 93
4.3 Meaning of the Term ―Religion‖ in International Law – – – 98
4.4 Legal Framework on Freedom of Religion in International Law – 102
4.5 Meaning, Nature and Scope of Freedom of Religion in
International Law – – – – – – – 110
4.6 Elements of the Right to Freedom of Religion in International Law – 113
4.6.1 Right to Have, Adopt or Change One‘s Religion – – 114
4.6.2 The Right to Manifest One‘s Religion or Belief – – 116
4.6.3 State Religion – – – – – – 117
4.7 Is Freedom of Religion in International Law Permissible of
Any Limitation and/or Derogation? – – – – – 120

CHAPTER FIVE: Comparative Analysis on the Right
to Freedom of Religion under the Sharia and International Law
5.1 Introduction – – – – – – – – 124
5.2 On Definition of the Term ‗Religion‘ – – – – – 125
5.3 On Legal Framework – – – – – – – 130
5.4 On Meaning, Nature and Scope – – – – – – 135
5.5 On Right to Change One‘s Religion – – – – – 139
5.6 On Right to Manifest One‘s Religion – – – – – 143
5.7 On State Religion (Law and Religion) – – – – – 145
5.8 On Defamation of Religion – – – – – – 146

CHAPTER SIX: Conclusion
6.1 Summary — – – – – – – – 151
6.2 Observations – – – – – – – – 155
6.3 Recommendations – – – – – – – 161
6.4 Conclusion – – – – – – – – 167
Bibliography — – – – – – – – – 170

INTRODUCTION 

The right to freedom of thought, conscience and religion is probably the most precious of all human rights, and the imperative need today is to make it a reality for every single individual regardless of the religion or belief that he professes, regardless of his status, and regardless of his condition in life.

The desire to enjoy this right has already proved itself to be one of the most potent and contagious political forces the world has ever known.

But its full realization can come about only when the oppressive action by which it has been restricted in many parts of the world is brought to light, studied, understood and curtailed through cooperative policies; and when methods and means appropriate for the enlargement of this vital freedom are put into effect on the international as well as on the national level.

Islamic law is, among all other legal systems, the first religious and legal order to embrace the idea of religious tolerance and peaceful co-existence between different faiths within the jurisdiction of an Islamic State. As early as 7th Century AD when Prophet Muhammad (saw) reached Medina following his forceful emigration from Mecca due to severe, persistent and systematic forms of persecution directed against the earlier Muslims, the Islamic State at Medina has by law, recognized the religious co-existence of Muslims with the then Jewish and Christian communities alongside Islam.

An established legal framework in the form of a Charter (Dustur al-Medina) provides for special alliance between Muslims and non-Muslims spelling out specifically the rights and obligations of all the parties thereto.

During this period, non-Muslims, especially the people of the book (ahl al-Kitab) acquired a certain degree of tolerance to practice their religion. Even where there is a declaration of war by or against the Muslims, either for the defensive or offensive motives, the protection of places of worship as well as respect for the religious convictions and practices of non-Muslim enemies are legal norms protected under Islamic law.

Principally, the provisions of Qur‘an 2:256 which provides to the effect that no compulsion in religion is generally taken to be the definitive ruling under Islamic law on freedom of religion. However, the tune of divergent juristic interpretations that this verse of the Holy Qur‘an has attracted from the earlier classical Muslim jurists to modern generations, especially the view that it has been abrogated by the verses of the sword has left discussion on freedom of religion under Islamic law to be a rather topical issue.

This gave room for a careful consideration of this area of Islamic law, more so in the presence of Western conception of human rights that seeks to protect freedom of religion as a fundamental freedom of the individual against State coercion in matters of belief. In particular, the pressing aspiration of the Western Judeo- Christian tradition of today is a move towards the protection of the individual‘s right to change his/her religion or belief independent of any State coercion as is today enunciated in the so-called principles of international law.

Islam sanctions the co-existence of other forms of beliefs alongside Islamic monotheism but emphatically asserts the Islamic monotheism as the only true and approved form of worship.

Islamic law has shown more tolerance to other forms of beliefs and had further bestowed on people the freedom of choice necessary for the rational and philosophical understanding and acceptance of the Islamic belief than an outright coercion and compulsion.

The Prophet Mohammed (saw) issued a code of conduct to his followers in Najran in which he said:

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