Fiqh Al-Aqalliyyât and the Arab Spring

Abstract

Due to the current shifting regional paradigms in the Middle East brought on by the series of popular uprisings known as the Arab Spring, this article focuses on the issue of minority rights within modern Islamic theorizing. Evaluating the writings of Islamic intellectuals such as Tariq Ramadan, Abdullah Ahmed An-Na’im and Rashid Al-Ghannushi, the article finds that there are indeed constructs available within modern Islamic theorizing that can help resolve current minority problems within Arab societies, albeit with the addition of human rights discourse on citizenship and multiculturalism. Noting that minority–majority relations are a global problem, as seen through case studies of the United States and Europe, human rights discourse, cultural relativism and religion are explored, concluding that Islamic theorizing is a blend of the three. Turning to usul al fiqh, it is concluded that traditional Islamic approaches to minority rights fail to incorporate anything but religious minorities and those religious minorities are second-class citizens under shariah interpretation. The rise of the Ottoman millet system eventually helped shape the collective identity for minority groups, but it still placed sole emphasis on religious minorities and treated all minorities as unequal subjects under the sultanate. Building on the constructs of modern Islamic theorizing and expanding to include the concepts of multiculturalism and territorial citizenship, this article asserts that for minority–majority struggle to be solved, modernist Islamic theorists must transcend the traditional Islamic minority paradigm and instead promulgate citizenship as a basis for equality in society, applying new ijtihad for a fresh, integrative interpretation of minorities within Islam and the civil state.

Keywords

The Arab Spring human rights Islamic thought millet system minorities political theory

On 24 June 2012, the world witnessed a historic moment take place, as Mohamed Morsi became the democratically elected President of Egypt, the first such president in Egypt’s roughly 7,000-year-old history. To make matters more momentous and challenging, he also represents the victory of his political party, the Muslim Brotherhood (through the Freedom and Justice Party), after decades of intense repression by the former authoritarian regimes of Nasser, Sadat and Mubarak. All across the Arab world, political Islamists are gaining legitimacy in their respective state apparatuses, demanding a voice under the auspices of democracy. While the West is inherently suspicious of the rise of Islam as a political force, Arabs are much more diverse in their political attitudes. Secularists cling to their principles, fearing the rise of an extreme theocracy like Iran, but an increasing amount of support is espoused for moderate Islamic movements, like the Muslim Brotherhood in Egypt or Ennahda in Tunisia, as their framework allows for a reconciliation of religious beliefs and political inclusion. As the ethnic and religious majority in many Arab states is finally being incorporated in the democratic process in the wake of the Arab Spring, one question begs to be asked: What about minorities?

Of the 14 million square kilometers that comprise the Arab world, extending across the whole of North Africa to parts of South-west Asia with a population of 352.2 million, it should be no surprise that there are over 20 different types of minorities in the region, ranging from linguistic variances to striking religious differences (Economic and Social Commission for Western Asia, 2009: 2). Minorities in the region have traditionally been categorized by religious, linguistic, ethnic and non-Sunni heterodox divisions, but these categorizations are sorely outdated, as they do not realistically portray the actual minorities present. P. R. Kumaraswamy instead presents a new approach, placing minorities into 5 categories, some of which are overlapping. Religious minorities are rather straightforward, as they include Jews and Christian dominations such as Copts, Greek Orthodox, Greek Catholic, Latins and Protestants, Maronites and Muslim Arab Israelis. Ethnic/national minorities consist of the Kurds, Druze, Armenians, Circassians, Assyrians, animists of southern Sudan, Berbers, Turkomans and Israeli Arabs. Note that the southern Sudanese are to be included, for despite the fact that they have succeeded in creating the separate state of South Sudan, some still reside in Sudan in which the ethnically Arab Sudanese dominate. As the classifications become more minute, heterodox Islamic minorities include the Alawis, Druze, Ahmadias, Ismailis and Bahais, with political minorities being the Shi’a in Saudi Arabia and Sunnis in Iran. Finally, majoritarian minorities are comprised of the Shi’a in Iraq and Bahrain, Sunnis in Syria and Palestinians in Jordan (Kumaraswamy, 2003: 246–7). Another minority group almost entirely excluded from minority literature is atheists/agnostics, having denounced personal support of organized religion, which is considered unacceptable under the framework of Islam. Although deemed apostates, it would be utterly wrong to exclude their small presence when discussing minority affairs.

As seen above, with a population so incredibly diverse, questions regarding accurate and fair representation for minorities within a social and political system are of extreme relevance, especially in light of the rise of political Islam. How does this mosaic of minorities, then, fit into the discourse on state-building and the role of religion in the public sphere?

Since the end of the Ottoman Empire and the official conclusion of colonial presence in the region, there has been no discussion regarding minorities and the means of dealing with a pluralistic society has been entirely lacking. It is of no surprise, then, that most of the conflict taking place in the wake of the Arab Spring revolves around the repression of one group or another, as seen in Syria, Bahrain, Saudi Arabia, Iraq and Egypt. Syria currently provides the most horrific but relevant case. For decades, the ’Alawi minority has ruled the Sunni majority, creating power through suppression and the manipulation of ethnic/religious divides. As protests broke out in Syria during March of 2011, Bashar al-Assad’s response was brutal, crushing the mere idea of revolution. However, the Syrian opposition, which is primarily comprised of Sunni Arabs, refused to back down and the gradual breakdown of the state began. Though the situation is constantly fluctuating, at the time of this writing the United Nations has finally determined that the conflict is a civil war, as thousands of citizens have been brutally murdered, particularly along sectarian lines.

As regional examples of repressed minority rights have been coming to the surface through conflict in the midst of the Arab Spring, others remain simmering under the surface. While many majority–minority tensions in the region have been religious, this is not always the case, as seen in Jordan. Granted, there is a sizeable Christian minority in the state, but the primary problems are aligned with the Palestinian versus Jordanian divide. As those citizens of Palestinian origin are now estimated to represent roughly half of the state’s 6 million people, the ‘original’ Jordanians feel their dominance threatened. Further fragmentations exist along the lines of regional (North, Central, South) and tribal loyalties. Jordan has not seen the widespread protest and conflict that some of its regional neighbors are facing, but this is not to say that the societal fault-lines cannot be aggravated and pushed to the breaking point.

Plainly and simply, the regimes and monarchies of old in the region have abysmally failed in producing creative ways for incorporating minorities into the state and the social framework at large. With the emergence of the nation-state came the heavy, top-down approach to solving every undesirable issue, including minority rights. The traditional paradigms used to analyse the region are suddenly irrelevant due to the Arab Spring, and the Middle East stands at a point where the new political voices have begun to bring fresh rhetoric to the forefront of discussion. As Tariq Ramadan said: ‘The fact that Islam itself is being called into question is a clear sign that political Islam is not dead but is facing a new conjuncture and stands poised to undergo a profound shift brought on by the dynamics of history and the new political, economic, cultural, and broad geo-strategic environment’ (2012: 113). Thus, in light of these societal and political changes, a new approach towards minority–majority relations in the Arab world is of particular importance.

This article examines the pertinent issue of minority rights within modern Islamic theorizing in light of the developments brought forth by the Arab Spring. Analysing the writings of prominent Islamic intellectuals, the article evaluates the framework for dealing with minorities, as provided by Islam, and how its use translates into modern approaches attempting to solve the current minority problems that exist within Arab societies. Noting that minority-majority relations are a global problem, as seen through case studies of the United States and Europe, human rights discourse, cultural relativism and religion are explored, concluding that Islamic theorizing is a blend of the three traditional minority paradigms. Next, the article will turn to the foundation of Islamic jurisprudence of Islam, usul al fiqh, examining traditional Islamic approaches to minority rights and the continual effect they have had on relations within society, noting again the failure of this approach to incorporate anything but religious minorities (Johnston, 2004: 234). The rise of the Ottoman millet system, cited as particularly innovative for its time, is explored, as its influence had profound effect on the shaping of collective identity for minority groups. Finally, modern Islamic theorizing on minorities and their rights will be with great scrutiny, by examining the works of Islamic intellectuals who wrote about minorities in modern Islamic times. Building on the constructs of modern Islamic theorizing and expanding to include the concepts of multiculturalism and territorial citizenship, this article asserts that for the struggle of redefining the role of religion within the state and simultaneously ensuring that minority equality be solved, modern Islamic theorists must entirely depart from the traditional minority paradigm and instead embrace citizenship as a basis for equality in society, applying new ijtihad for a fresh, integrative interpretation of minorities within Islam and the civil state.

Minorities: global atlas

The presence of minorities in society is hardly a phenomenon solely existing in the Middle East; thus, the global scale of minority issues and the approaches to dealing with them must be explored before narrowing the scope of analysis to minorities in the Arab world.

Although the conceptualization of minorities cannot be fully discussed within this article, it is important to note that minority identity is invariably linked to cultural identity and possessing numerous cultural identities within the framework of an overarching society leads to the inevitable creation of fault-lines within that particular society. More important is the concept that identity is fluid, which means that those fault-lines are negotiable and not permanently fixed; rather, they are merely established by historical and social paradigms.

According to the Minorities at Risk Project, which is by far the most comprehensive data collection in regard to minorities, there are approximately 283 politically active communal minority groups in the world today with a population of at least 500,000 (Minorities at Risk Project, 2009). Note that the following facts and figures are all taken from the cited Minorities at Risk Project. Geographically speaking, there are 33 groups in Latin America and the Caribbean, 29 in the Middle East and North Africa, 57 in Asia, 60 in the post-communist states of eastern Europe and central Asia, 29 in the western democracies and Japan, and 75 in sub-Saharan Africa. Furthermore, these groups can be subdivided among group types, which include communal contenders, national minorities, the indigenous, ethno-nationalists, religious sects and ethno-classes. ‘Communal contenders’, an uncommon minority subdivision in most literature, refers to those people seeking a stake in state power that are culturally distinct, tribes or clans. An example would be the Shi’a struggle in Lebanon, through the group Hezbollah, for more control of the state. National minorities are fragments of a trans-state people with a ‘history of organized political autonomy whose kindred control an adjacent state, but who now constitute a minority in the state in which they reside’. The definition of indigenous peoples is straightforward, as they are descendants of a conquered people who originally inhabited the land. While some assimilation may have occurred, they primarily live out of conformity with the dominant groups in society. An example of this will later be seen with the Native Americans of the United States. Ethno-nationalists, on the other hand, are concentrated peoples within a specific region that maintain a history of organized political autonomy with their own state, ruler, or regional government, ‘who have supported political movement for autonomy at some time since 1945’. This would include the Kurds in their respective states and the Palestinians in Israel. Religious sects, which are predominant through the Middle East and North Africa, are those differing from the societal majority in their religious beliefs and cultural practices; moreover, their political status and activities are centered on the defense of their beliefs. Finally, there is the subdivision of the ethno-class, who are ‘ethnically or culturally distinct peoples, usually descended from slaves or immigrants, most of whom occupy a distinct social and economic stratum or niche’. A prime example is African Americans and Hispanics in the United States, or Muslims in France and Turks in Germany.¹

Numerous frameworks of analysis can be employed when defining and dealing with minorities, but in this section merely three approaches are dissected in order to understand the context in which different states handle minority relations within their borders. The three broad paradigms include human rights, cultural relativism and religious-based notions. In addition to these approaches, this section will demonstrate that while these three measures have been put in place in markedly different cultures with various forms, minority problems are universal and cannot be relegated to the Arab world alone.

1 Competing minority paradigms: human rights, relativism and religion

Since the rise of the modern nation-state system and the monstrosities incurred in the Second World War, human rights within an individualistic liberal framework have become a universal fundamental notion increasingly emphasized by international institutions, particularly the United Nations. The Universal Declaration of Human Rights (UDHR), adopted by the UN General Assembly in 1948, set forth the standard by which the UN believed that all states and individuals should operate (UN News Center). Despite the fact that the West has embraced the UDHR, albeit artificially in many cases, the debate over human rights as a universal norm has been increasingly heated in the rest of the world. The objections are unbelievably diverse, but one of the most commonly touted protestations is the fact that human rights promotion is based on western liberal paradigms, something that holds no relevance for most societies and cultures. The dialogue on the matter continues, but, for now, the world has more or less accepted the standard of international human rights.

In regard to minorities within the overarching framework of human rights, it is necessary to cite the primary international legal bodies governing the status and protection of minorities throughout the world. As previously mentioned, the UDHR ensures the equality of all persons, no matter their status or background; however, it does not specifically note the protection of minorities, nor does it define a minority. Therefore, the United Nations Minorities Declaration was adopted in 1992 by consensus as a means finally to establish an international standard on the human rights accorded to minorities. Although there is still no internationally agreed-upon definition as to which groups constitute minorities, article 1 of the UN Minorities Declaration refers to minorities as based on national or ethnic, cultural, religious and linguistic identity, with the provision that states should protect their existence (United Nations General Assembly, 1992). Furthermore, the UN Minorities Declaration states that there are specific issues to which attention needs to be paid in regard to the promotion and protection of minorities. They are as follows: the recognition of minorities’ existence; efforts to guarantee their rights to non-discrimination and equality; the promotion of multicultural and intercultural education, nationally and locally; the promotion of their participation in all aspects of public life; the inclusion of their concerns in development and poverty-reduction processes; disparities in social indicators such as employment, health and housing; the situation of women and the special concerns of children belonging to minorities (Office of the High Commissioner for Human Rights, 2010).

A gaping hole in this framework is the lack of consensus as to whether persons with disabilities, those with a particular sexual orientation, or those belonging to specific political groups constitute minorities (Office of the High Commissioner for Human Rights, 2010). This is of particular relevance in non-western societies. For example, some sexual identities and preferences are extremely taboo and thus face persecution, being in the numerical minority. International human rights have come a long way since their inception, in the sense that there are now numerous international legal norms specifically protecting traditionally disadvantaged groups, but, as seen in the cases listed above, there is still much more work to be done.

Human rights as an international for minority rights protection are extremely useful in rhetoric regarding the inclusion of minority groups in state and civil apparatuses, but they are not universally accepted. Therefore, the paradigm of cultural relativism comes into play. Cultural relativism, like all modes of theory, holds a variety of viewpoints. In the extreme, relativists argue against the universalist construct of human rights, claiming that ‘the human rights doctrine that is lauded as “universal” is actually firmly rooted in Western political liberalism and individualism and has little resonance in societies where duties to family and society predominate’ (Downes, 2004: 19). In regard to minority rights, relativists look inward at the local culture and context to gain an understanding of those rights and how different groups can be incorporated. This is a multiculturalism- and culture-based approach. Relativists do not call for the suppression of minorities within their individual societies; rather, many relativists assert equality in the state and civil society but they merely reject universal human rights as the basis for that equality. This approach has its uses, as its attention to local context gives it legitimacy; however, the question lies in whether or not cultural relativism alone provides the assurance that minority rights and equality will be respected within that context.

Finally, religious-based notions of minorities and their subsequent rights need to be disseminated, as the discussion is obviously relevant to the overarching topic of this article. Logically, the definition of minorities in accordance with religious values and texts is as diverse as the number of faiths that exist through the world; therefore, the practices regarding the equality of minorities under the framework of a religion is particularly subjective. The primary problem with using religion as a foundation for rights is that only religious rights are fully discussed, even when those religious rights can be unequal. In the case of Islam, for example, the rights of non-Muslims are discussed at length, assuming that all Muslims will be treated with justice and dignity. The reality of the situation shows particular groups of Muslims being handled as unequal subjects while non-Muslim groups receive fairer treatment. The same can easily be seen in Christian-dominated places as well, where the status of Christian is not as important as ethnic background. Though this brief discussion regarding religion as a basis for minority rights is far from comprehensive, the matter will be further examined throughout this article as minority rights under the framework of Islam are analysed.

2 Far from exemption: Western challenges with minority relations

In order to demonstrate the point that minority issues are hardly relegated to the Middle East, this section seeks to explore various examples of minority–majority relations found in the West. Although the West is the primary author of universal human rights standards and laws, that portion of the world is hardly immune from its own local cases of human rights abuses, including those against minorities. Looking specifically at the United States and the European continent, the following cases pointedly validate the statement that minority–majority relations are far from being resolved.

The United States is famously known for its historical and current battles with ethnic minorities, as the Caucasian majority has sought at numerous times to quell the ethnic diversification of the nation. From the moment the British landed on the shores of North America, the forceful subjugation and subsequent extermination of Native Americans was under way. Despite the fact that the diverse Native American tribes had lived on the land for thousands of years, they were seen as a threat to the incoming white colonizers who were obsessed with the wealth of the ‘New World’. Conflict between the Native Americans and colonizers was constant, as the new residents of the land sought to wipe out the ‘savages’. As independence was won from the British and the new United States of America sought territorial acquisition in the West, clashes between the white majority and the Native American minority increased, culminating in the forceful relocation of Native American nations from the south-eastern portion of the USA to the Midwest under the Indian Removal Act of 1830. On this ‘Trail of Tears’, large numbers of Native Americans died from starvation, disease and exposure. The government policies and treatment of Native American nations only grew worse in the 19^th century, culminating in the creation of reservations amid battles with the Native Americans, forcing them to live on government-sanctioned pieces of property. As the reservations have been in place for over a century, the situation for Native Americans is tragic. After Native Americans lost their natural and traditional way of life, their reservations now are notorious for the high rates of alcoholism, teenage pregnancy, rape and limited economic opportunities.

African Americans provide another case, as they were originally slaves and then treated as second-class citizens once slavery was abolished. After intense segregation in the southern portion of the United States under the Jim Crow laws, the Civil Rights Act of 1964 outlawed major methods of discrimination against African Americans and women. Despite the great progress that has been made in ensuring the equality of all citizens, a new form of discrimination and unequal practices towards the Hispanic minority has gripped the nation. On 23 April 2010, a new state law in Arizona was enacted by Republican Governor Jan Brewer, requiring a police officer to verify a person’s immigration status if he or she is stopped, detained, or arrested. This is technically supposed to be enforced only if there is ‘reasonable suspicion’ the person is in the USA illegally (Gomez, 2010). This portion of the law may sound harmless, but it allows law enforcement legally to racially profile people, targeting Arizona’s large Hispanic population. After the inclusion of this Arizona law, similar policies were enacted in Alabama, South Carolina, Georgia, Utah and Indiana. Despite the fact that numerous citizens and lawmakers, including President Barack Obama, tout these policies as racially stigmatizing towards the Hispanic minority population, conservatives argue that their actions are not racially motivated, but rather that they are security measures targeted at curbing illegal immigration. This is a classic example of security being used to defend infringement on human rights and equality.

Meanwhile, Europe is facing its own ‘security issue’, as it battles an extreme case of Islamophobia. Looking at Denmark, Danish versus Muslim immigrant tensions have reached a new height. The basis of the Danish argument against Muslim immigrants is that they refuse to integrate into Danish society and therefore they fracture societal norms/homogeneity, in addition to creating hotbeds of terrorism. In 2011, a member of the Danish People’s Party, Kenneth Kristensen Berth, said the following: ‘Every day, I would like to exchange the 400,000 Muslims in Denmark for 400,000 Chinese. Every day of the week, I would like to do that, because we have a special problem with the people from Muslim countries because they have no intention of integrating into Danish society’² (Reeves, 2011). To say the least, this charged rhetoric against the Muslim immigrant minority is puzzling especially as Denmark was once known for its emphasis on equality and tolerance. The Danes, as well as the whole of Europe, appear to be searching for assimilation, rather than integration. This has led to another large problem with the Danish Muslim youth; a worrisome predicament has been created. Unable to fit into Danish society, yet failing to find a place in their parents’ country of origin, they are becoming marginalized and thus more extremist.

This problem is not unique to Denmark, as other countries, such as France, ostracize their Muslim immigrant populations as well. France is home to the largest Muslim population in Europe, estimated at around 5 million or 5 to 10 per cent of the total population (CBC News, 2004). On 2 September 2004, France’s ban on religious symbols and apparel in state schools went into effect, including the hijab, Sikh turbans, Jewish skullcaps and large Christian crosses (ibid.). This law, used to enforce the French cultural norm of secularism, has been a source of great debate as the battle lies between individual religious freedom of expression and political neutrality. Many see religious dress in public spaces as a division of society; thus, this ban supposedly promotes integration into French society. As former French President Jacques Chirac said, ‘Secularism is one of the great successes of the Republic … it is a crucial element of social peace and national cohesion. We cannot let it weaken’ (CBC News, 2004). Although the debate over the hijab in state schools was heated, France’s ban on the facial covering (called the burqa) on 11 April 2011, received the most attention, as France was the first country to place restrictions on a certain form of garb that some Muslims consider a religious obligation. The French government estimates that there are only about 2,000 women in the entire country that wear it, but many believe that the burqa should be banned in the name of the liberty and equality of women. André Gérin, believes the burqa was just part of ‘the spread of Muslim radicalism and separatism that threatened the French Republic’ (Erlanger, 2011³). French Muslim minority women, however, do not feel the same way. Though most do not wear the burqa or niqab, they see it as an infringement of their religious rights, as well as a major form of discrimination. It is a matter of the stigmatization of one gender of one culture (ibid.). Europe, the beacon of universal human rights standards, has some self-reevaluating to do.

This section was not meant to take away from the minority issues facing the Arab world, nor was it intended to rail against the West; rather, it merely demonstrated the global struggle that minorities face and the urgency for dialogue on the matter. The three paradigms of human rights, cultural relativism and religion, while not the only frameworks that exist, all fail individually to solve the issue of minority relations and rights. The Middle East provides an interesting example where all three are in play simultaneously; thus, minorities in the Arab world need to be analysed from that perspective. The following section provides an outline of the historical struggle facing minorities in the region, leading into Islamic theorizing on the matter. After concluding that modern Islamic theorizing on minorities provides hope for minority–majority relations, despite its downfalls, the future of minorities in the Middle East will be explored.

Ignorance is bliss? The refusal to acknowledge minority issues in the Arab world

The subject of minority studies fills volumes worldwide, but the niche field of minority studies in the Middle East and North Africa is severely lacking, for the few works on the matter where most of them tend to be outdated, incomplete and biased in one way or another. Why is that the case? As this section will detail, there are numerous factors contributing to the widespread refusal to acknowledge present minority issues within the region, ranging from traditional Islamic paradigms to the role external actors have played in regional affairs.

While minority issues in the Arab world are fundamentally linked to the refusal of traditional Islamic thought to acknowledge the existence of minorities outside of the religious framework, the current system of Arab states’ suppression of minority issues can be traced to the disintegration of the Ottoman Empire and the artificial creation of new state boundaries through colonial influence. As Kumaraswamy notes: ‘In their desire to evolve national identities based on arbitrarily drawn territorial boundaries, most of the states tended to ignore, belittle or undermine the existence of ethnic, national and religious minorities. Prolonged external intervention on behalf of minorities and resultant dismantlement of the Ottoman Empire considerably hardened the region against minority rights’ and ‘The new states strived for artificial homogeneity and viewed any other identities as divisive, counter-productive, externally sponsored or unpatriotic’ (Kumaraswamy, 2003: 251). As Arab states have faced a whole host of divisions since independence from colonial powers, rhetoric regarding minority rights is seen only as divisive and thus is quashed. Because the region has no history of the systematic persecution of minorities, particularly through genocide, governments and citizens alike live in the illusion that minority problems do not exist and minorities are treated purely as equals. This strategy is naïve at best, as the current events of the Arab Spring demonstrate that refusal to acknowledge reality leads only to inevitable struggle.

Directly linked to that strategy is the role of external actors in minority affairs, whose current presence and history provide the ideal scapegoat for state ignorance. Since the breakdown of the Ottoman Empire, western forces have had direct influence on the creation of minority identity and nationalization movements. No matter what their public sentiments are, whether it be human rights or otherwise, political undertones are always present.

The most notable case of foreign intervention into minority affairs is the French with the creation of independent Lebanon, as France directly placed the Maronites in control, despite the large Sunni population present. In 1943, Lebanon gained full independence from France and implemented the National Pact, which installed the confessional political system (Ma’oz, 1999). Under this pact, it was stated that the president was to be Maronite, the prime minister Sunni, the Speaker of parliament Shi’ite, the deputy prime minister Greek Orthodox, and the chief of staff Druze. Theoretically speaking, the confessional system and its stated ratios of representation were to change according to the shift in demographics. The ratios of the confessional system in Lebanon were based on a census from 1932, which therefore pitted the Christians against the Muslims, 6 to 5 in the parliament. Despite the fundamental need for a regular census, there has yet to be another since 1932, as an updated census would destroy the delicate control that the Maronites possess, due to their diminished numbers, and open conflict would be a likely result.

The traditional Islamic refusal to acknowledge the reality of minorities in the region will be discussed below, but it is crucial to re-emphasize the overarching attitude regarding minorities. Religious minorities appear to be the only recognized group when it comes to discussion on the matter, but reality suggests that other minority groups in the region face a much larger plight, taking the Kurds, for example. The state and public refusal to acknowledge the infringement of rights is widespread and constantly reinforces the problems that emerge. Through the shifting paradigms that are currently taking place in the region there is an opportunity finally to bring to light the inequalities that do exist within Arab societies. As Islamic political parties take to the stage, it is now time to reframe minority rights within the structure of modern Islamic theorizing.

Politics and minorities: Traditional Islamic theorizing

Although some Islamic thinkers maintain the notion that the construct of the Islamic state is not inherent to Islam, including the concept of divine rule, traditional Islam has shown that politics and Islam have been inseparable since Mohammad’s revelations. Therefore, as this theory of the Islamic state has been propagated time and time again, shariah law has been cited as the only system adept at handling the state of affairs within the governing system, founded on the basis of Islam as a guide. Naturally, then, shariah incorporates features that note the handling of non-Muslims within the apparatus of the state, as Islam has always dealt with the issue of governing diverse regions.

Paying attention only to shariah in regard to minority status, the shariah law system is limited today, as it strips religious minorities of their right to power-sharing and equal status treatment, inevitably leading to resentment and eventual conflict. While there has indeed been a shift in Islamic theorizing towards ‘universal ethical principles … over the specific injunctions of the text’, the roots of modern theorizing within Islam still lie in traditional processes and thus they must be analysed (Johnston, 2004: 233).

Under the framework of traditional shariah, non-Muslim communities that are categorized as ‘People of the Book’ (Abrahamic religions) are automatically placed into the role of Ahl al-Dhimma, or ‘protected communities’ (Ibrahim, 1998). The term Ahl al-Dhimma is well documented in Islamic history and jurisprudence as specifically referring to minorities. It finds its roots in the pact which a believer agrees to respect and the violation of which makes him liable to blame [dham] (Khadduri, 1955: 198). Another meaning of the word is the guarantee of safety [aman] (Al-Qaradhawi, 1977; An-Na’im, 1987). Legally, the term connotes and refers to certain rights which must be protected by the state. The people whose rights are protected are known as dhimmior. The shariah or the legal Islamic law governs the relations of the dhimmis both with individual Muslims and with the Islamic state on the basis of religious distinction (Sa’id Ramadan, 1961) and regards dhimmis as religious groups and not individuals (Doi, 1981: 73–4).

Being citizens of an Islamic state, dhimmis must pay separate taxes, particularly the jizyah and the kharaj. ‘The jizya – a head tax – is levied, on a sliding scale, on adult men who are physically and mentally fit for army service’ (Furman, 2000: 5). This tax is often cited as the cost for ‘non-Muslims’ participation in the costs of defending the state’ (ibid.: 5–6). The problem with that logic, however, is that traditionally speaking, they were forcefully excluded from serving in the military, as opposed to non-Muslims making a choice not to serve and paying a tax instead. Also, the kharaj tax was enforced, which was ‘imposed on the right to use land, and a yearly tax on commercial activities’ (ibid.: 6).

Historically, the treatment of dhimmis and their legal status was varied at best, as rights depended in large part on the ruler of the time. Though the concept is based on shariah and thus should have a universal and equal nature of application, the case of dhimmis proves the subjectivity of any law, whether man-made or divinely inspired. That being said, the application of dhimmi status in modern times, especially since the Arab Spring and emergence of Islamic political parties, would be highly contestable, as religious minorities in the region would hardly accept an additional tax burden and institutionalization of second-class status. Copts in Egypt are already grumbling over the ambiguity of their status since the win of the Freedom and Justice Party. Implementation of dhimmi status, while unlikely, would lead to all-out revolt.

Continuing with jurisprudence, or fiqh, surrounding minorities in the Islamic framework, the publication ‘Sources of Moral Obligation to non-Muslims in the “Jurisprudence of Muslim Minorities (Fiqh al-aqalliyyat)” Discourse’ provides further examination of the status of non-Muslims under shariah. One of the primary assertions made is that the religious texts, primarily the Qur’an, demand treating the non-Muslims with justice. Although there are numerous verses to quote, one of particular relevance is the following:

Believers, be steadfast in your devotion to God, bearing witness to the truth in all equity. Never allow your hatred of a people to lead you astray from justice. Be just, this is closer to righteousness and be God-fearing for surely God is aware of all you do. ([5:8] Cited March, 2009: 49)

Despite this fundamental claim found in the holiest of Islamic texts, there are problems relating to the disparity between the deep meaning of the text and the actual classical interpretation of the same text. For example, the ‘problem with the orthodox claim that Islam “guarantees justice between people, giving everyone, Muslim or non-Muslim, their rights” is that according to classical Islamic civil law these are not equal rights’ (March, 2009: 51). In the same train of thought, as the rights provided in this light are inherently unequal, despite the demand for justice, ‘the question of religious tolerance and freedom of choice is never merely about the right of individuals … the discussion almost always assumes such concepts as an Islamic “public order” or an Islamic entity which there is an obligation to preserve and defend’ (ibid.: 84). Essentially, in the traditional Islamic paradigm regarding minorities and their rights, mere tolerance is given, as long as it does not infringe upon the rights and activities of the Muslim majority. This reinforces the point previously made about the subjectivity of dhimmi status and shariah implementation.

Another interesting aspect of minority rights and relations under the traditional Islamic framework is the fact that all Muslims are held equal in status, regardless of ethnic origins. Even though this practice continued into the Ottoman millet system, it is an inconceivable practice now, as it would entirely ignore the reality of the current ethnic minorities in the region. Christian Arabs, which are among the most integrated minorities in the region, would automatically be alienated due to religious differences, whereas Berbers would have their minority struggle de-legitimized. Approaching minority rights from this inadequate view would have both national and international consequences, as minorities cannot be stigmatized merely for religious purposes.

Regardless this ‘protection’ afforded by Islamic thought, minorities are still blatantly second-class citizens, no matter how the framework is presented. Due to the fact that these ‘special’ rights or freedoms are specifically laid aside in shariah for those of different religious backgrounds, and even limiting the qualifications to the ‘People of the Book’, they are automatically canceling any thought of equality among citizens. Certain notions should be human rights, not privileges. After all, ‘Religious tolerance, personal protection and conditional communal security of the Dhimmi in return for their allegiance to the Islamic rule are very different from equality’ (Kumaraswamy, 2003: 248).

Religious autonomy and integration: The Ottoman millet system

The famed millet system of the Ottoman Empire was based on the traditional Islamic practices regarding minorities described in the previous section, with the notable feature of group autonomy (for the most part) provided for non-Muslim religious groups. Because the Ottoman Empire was continuously expansive, the millet system was used to effectively administer large swaths of territory that included substantially diverse peoples. Through the use of religious autonomy for minority groups, the system ensured relatively low levels of discontent among the minorities, granting the sultanate more legitimacy and control. This system has long been touted as revolutionary in nature for its time as certain religious groups were living in relative harmony and independence under Ottoman rule, while their counterparts were being persecuted in Europe.

Recognizing religious divisions as the primary factor in shaping both individual and group identity, the millet system was based mainly on the separation of different religious groups from each other and a legal status granted to each religious and denominational community with specific communal rights and privileges. As previously mentioned, the religious communities were allowed relative degrees of autonomy and thus Orthodox, Armenian and Jewish communities carried out their administrative affairs with the state through their community organizations and maintained their own culture, customs, languages and religions. Also, it is to be noted that as the system was not organized democratically, all of the power was vested within the religious leader of the particular religious group, such as the chief rabbi of the Jews and the patriarch of the Orthodox Christians (Nimni, 2012: 47).

Rather than the system’s being based on ethnic or national identity, it was instead built entirely on religious cleavages, with the millet members still under the overarching power of the sultan. The millet structure inherently meant social fragmentation, in the sense that religious differences were made blatantly overt, but the unifying factor was the common political identity determined by the state authority, with the subservience of the minorities to the sultan defining their status within the state and their remaining socially unequal as the majority was Sunni.

The Ottoman Empire eventually began crumbling and with its disintegration came the rise of the nation-state. As the structure broke down, so did the millet system, but the minority cleavages did anything but die. Rather, as the unifying force of the sultanate eroded, the millet affiliations morphed into a new sense of religious solidarity and identity, with these ethno-religious identities forming the foundation of future national identities (Esman and Rabinovich, 1988). A perfect case study of this evolution lies in the struggle of the Kurds, the largest ethnic group in the world without a separate nation-state.

As nationalist fervor emerged in the 19^th century, the beginnings of a Kurdish push for true territorial freedom started and the movement was spearheaded by Bedrkhan Bey, who fought against the rule of the Ottomans (Nisan, 2002). Of course the movement was crushed by the Ottomans, but the importance lies in the development of a nationalist ideology. With the fall of the Ottoman Empire came the influx of European influence in the region and, in 1919, the Kurdish leader Sherif Pasha went to Paris to advocate for the rights and independence of the Kurdish people at the Versailles peace conference, and then to the conference at Sèvres in 1920 (ibid.). With the landmark document the Treaty of Sèvres, which was formulated by the Allied powers, the Kurds were to be given autonomy in their territory. President Woodrow Wilson, in his address to Congress in 1918, had even called for the right to self-determination of all non-Turkish peoples in the former Ottoman Empire (Berwari and Ambrosio, 2008). However, Kurdish independence was never realized due to the Turkish leader Kemal Ataturk, who refused to grant the Kurds freedom. The Allied powers conceded to his demands and therefore, in the 1923 Treaty of Lausanne, there was absolutely no mention of Kurdish independence in any of the articles and thus the dream of full Kurdish autonomy and succession was crushed, never having been realized since that time.

A crucial aspect of the Kurdish struggle to establish legitimacy, autonomy aside, was the fact that Kurds are Sunni Muslim, not a religious minority. Under shariah law and the subsequent millet system, Kurdish ethnic difference was ignored and thus they were not granted the needed semblance of liberation, as was afforded to all of the religious minorities. This refusal of the Ottoman Empire and later the state system to recognize this crucial cleavage in society has led to an independence movement that has never died, particularly in modern-day Turkey and Iraq. If the structures of the time had recognized the fault-lines present, rather than ignoring them the Kurds national state could have been realized.

The Ottoman millet system can definitely be conceived as progressive and one-of-a-kind for its time, especially in comparison with its predecessor, the traditional Islamic framework on minorities. That being said, it still entirely fails in the quest for a model to be emulated in modern times as, yet again, it granted religious minorities particular rights only under Sunni rule. The most important aspect of the Ottoman millet system, as seen with the Kurdish example, was its inadvertent effect on creating and solidifying religious and ethnic identities, many of which led to prominent nationalist movements for the sake of true equality. Minority versus majority tensions do not go away when ignored or given weak attempts at reconciliation.

Civic state, citizenship and integration: Modernist Islamic theorizing on minorities

The end of the 20^th century witnessed the rise of political Islam and a subsequent revivalist moment, seeking reinterpretation of presumed religious norms amid the spread of secularism. This intellectual rebirth of Islam has been motivated by numerous factors, but one of the most prominent was the simultaneous rise in radical, traditional strains of Islam that promoted fundamentalist and misguided views about the teachings of Islam, as well as violent actions in some situations. In many ways, this revivalist movement has tried to show the world, and more importantly Arab society, that these reinterpretations of the Qur’an and Sunnah are the true message of Islam and they are essential for the survival and well-being of Arab society. In order to counteract the subversive message of neo-traditionalists who rose with Islamic revivalism, modernist intellectual Islamic thinkers emerged, bringing to light a hopeful new rhetoric, still resting on the foundations of Islamic law. Throughout this section, the epistemology of modern Islamic theorizing, specifically in regard to minorities, will be explored, analysing in particular the work of Tariq Ramadan, Abdullah Ahmed An-Na’im and Rashid al-Ghannushi.

Unlike neo-traditionalists, who are steeped in more conservative interpretations, modernist intellectuals ‘call for the modernization of Islam’ and ‘reformist Muslim intellectuals are not necessarily any less critical of the offerings of Western civilization’ (Kamrava, 2006: 13). The distinguishing factor, however, lies in the method of interpretation, with innovative ijtihad and use of hermeneutics acting as a means for a purer, yet modern form of theology. ‘Hanafi proposes “a theory of interpretation which permits reading reality in the texts and the texts in reality for a new hermeneutics departing from holy scriptures” as Charles Kurzman aptly calls this the “interpreted Shariah”: “the position that all interpretation of Islamic sources is humanly interpreted, and therefore fallible, and therefore unworthy of imposing upon others”’ (ibid.: 16–17). Most important to this article’s work on minorities is the theme of democratic pluralism within reformist discourse. ‘Pluralism … is a salient feature of the spirit of the Qur’an as well as the Sharia and the hadith. As Abdulaziz Sachedina argues, “the Koranic provisions about civil society allow a legitimate juridical judgment concerning inclusive political, civil, and social participation in the political community”’ (ibid.).

This transition in Islamic thought is noted in ‘A Turn in the Epistemology and Hermeneutics of Twentieth Century Usul al-Fiqh’, which argues that there has been a widespread shift in the use of usul al-fiqh, turning from the classical position towards one of reasons, claiming that the ‘shift has been accompanied by a privileging of universal ethical principles (kulliyydt), now identified as the aims of the law (maqdsid al-sharia), over the specific injunctions of the texts (Juz'iyydt) – a hermeneutic strategy that has often favored public interest (maslaha) as the chief criterion for developing fresh legal rulings in the light of new sociopolitical conditions’ (Johnston, 2004: 233). This can be particularly stressed when it comes to the subject of Islamic feminism, in which Islamic feminists assert that the current inequality is a direct result of the social norms existing at the beginning of Islam. Therefore, through careful ijtihad, they find that Islam is hardly intrinsically steeped in inequality; rather, it espouses the notions of dignity, equality, freedom; something formulated at a time when other religions were centuries behind those concepts.

The same practice of recognizing historical and social currents when interpreting the religious texts applies to minority rights as well. Scholars have shown that there was no uniform practice towards non-Muslims nor was the status of non-Muslims the same across the various empires; rather, views varied from one caliph to another. Therefore, it can be asserted that basing notions of minorities and their rights under a strict interpretation of shariah is foolhardy and misleading, as it fails to consider the realities of the time in which texts were written or implemented. Henceforth, modern Islamic scholars, like Fahmi Howeidi, assert that the juristic formulations should be revised, including the concept of ahl al-dhimma, which he considers as a historical value that is not in any way binding, while advocating the renunciation of the concept of ahl al-dhimma and replacing it with citizenship in terms of terminology and substance (Howeidi ,1999). This concept of citizenship is extremely crucial, as it is part of the basis for probably solving minority issues within the Arab world. Rather than divide the modern state into a dichotomy (Muslim versus non-Muslim), it is essential to regard every individual as an equal citizen in order to ensure full acknowledgment of all human rights.

Also echoing the sentiments of citizenship and equality, the scholar Tariq Ramadan emphasizes the conciliatory framework that blends Islamic principles of justice and equality with standards of international human rights. The following is a quote from his book, The Arab Awakening: Islam and the New Middle East:

There can be no ambiguity about the ethical orientation that Islam provides: ‘We have conferred dignity on human being’ – a principle that applies to all humans, women and men, rich and poor, black and white, Muslim or not. It is the primary, fundamental principle of social justice that, in practice, rests on two prerequisites: equal rights and equal opportunities. As John Rawls points out in his work on justice, the two types of equality are not identical; the former is of no avail if the latter is not accepted and ensured. The first steps along the path to this goal are education, social equality between women and men (equal rights, equal opportunities, equal pay for equal skill, etc.), the protection of freedoms (religious or philosophical, freedom of speech and/or criticism); they apply equally to all citizens, be they Muslims, of another faith or no faith. The principle of ‘no compulsion in religion’ must inform the state, as must human rights, which must apply to all without distinction. (Ramadan, 2012: 125–6)

In addition to Ramadan’s acceptance and promotion of citizenship as the basis of equality in Arab societies, he also notes the introduction of the term ‘civil state’ by Islamist leader Mahfoud Nahnah, as opposed to the traditional use of ‘Islamic state’, and the widespread use the term is now receiving (Ramadan, 2012: 115). This is another fundamental step towards equality and justice within Muslim-majority states, as advocating the growth of a civil state implies an acceptance of democratic norms and inclusion of individuals and groups from all walks of life.

Abdullah Ahmed An-Na’im is another leading Islamic modernist theorist, advocating a synthesis of western-deemed international human rights standards and the principles of Islam. According to Chris Downes, An-Na’im follows a strand of universalism called tolerant universalism. As defined by Downes: ‘Tolerant universalist strategies are firmly wedded to international human rights standards, but look to engage local culture with a view to reconciling it with these ends. This process can be a deliberate one or one born of necessity’ (Downes, 2004: 27).

One of An-Na’im’s strongest arguments is that pertaining to the concept of citizenship within the framework of Islamic law. Rather than maintain the traditional ‘personal’ concept of citizenship, this should instead be replaced with a ‘territorial’ notion of citizenship, as he proposes a post-secular state, attempting to debunk the Islamic state.

Whereas the personal concept of citizenship would confer this status on the basis of some personal attribute or quality such as religion or ethnicity, the territorial conception of citizenship, which has now become the norm, confers the benefits and burdens of citizenship on all those born and permanently resident within the territory of the state, as well as those naturalized under the relevant provisions of the law of the land. It is morally repugnant and politically inexpedient, I submit, to deny a full citizenship to any person who was born and permanently resident within the territory of the state unless such person opts for and requires the citizenship of another state. (An-Na’im, 1996: 84)

Unlike the traditional method, An Na’im’s model opens the door to all persons in the state, irrespective of their religious or cultural affiliations, to contribute to the public sphere and have equal socio-political and legal status.

Taking an interesting approach to that concept, albeit refraining from mentioning An-Na’im specifically, Tariq Ramadan quotes the Egyptian professor Heba Rauof Ezzat as saying the following about the need to establish an ‘Islamic democratic secularism’:

… a new juxtaposition of the religious and political domains should be created, all the while taking into account the tradition and history of Muslim-majority societies and in full respect of people’s choices and the consequences of those choices. This is no debate over concepts, but a fundamental re-examination of the relationship between religion and the state. The fact that both collective intelligence and common culture rest upon religion cannot be used to justify control over public affairs and/or political power. (Ramadan, 2012: 117–18)

Heading in a slightly more conservative direction of Islamic modernism, another main approach in the field regarding minority rights is that of Rashid al-Ghannushi, a long-time Islamic scholar and activist exiled from Tunisia, only to return and have his political party (Ennahda) claim victory in the October 2011 democratic elections. At the core of his argument, al-Ghannushi asserts that all faiths have the right to exist, proposing a pluralistic society in which Muslims and non-Muslims are equal in the matter of religious practices and productive dialogue should be encouraged. This is precisely in line with Mohsen Kadivar, who wrote:

Besides being a rational issue and not one of faith, the freedom to choose one’s beliefs and creed predates religion. It is through this freedom that religion is chosen and belief is established. How could a religion, one that asks of its followers to explore for themselves and to choose their beliefs based on critical reason and thought, deny the necessity of freedom of religion and belief? (Kadivar, 2006: 127–8)

Although al-Ghannushi proclaims the ideal of a pluralistic society and freedom of religion, he maintains that some critical state positions, namely the senior positions of Amir al-Mu’minin and Caliph (head of the state) should be reserved for Muslims, as they are related to ‘religious positions’ (Al-Ghannushi, 1993). All other state positions are available to non-Muslims, citing several situations in which the Prophet assigned a number of non-Muslims to important positions (ibid.). This is completely contradictory, for a pluralistic society does not set certain parameters aside for particular groups. The same line of rhetoric is used when western states proclaim universal human rights and then infringe upon those rights for the sake of security.

To counter Al-Ghannushi’s argument, scholar Tariq al-Bishri claims that position is irrelevant, as the system of governance has drastically changed over time. When religious assertions were originally being made about qualifications for important state offices, the viewpoint was politicized and given from a hegemonic perspective, with the power being solely in the hands of one individual. In modern time, the system of governance has evolved, become more democratic and institutionalized, with no one position claiming absolute power. Sovereignty is, in theory, in the hands of the people, so a modern state should have positions for citizens of all backgrounds. Rules are determined not by one leader, but rather by laws approved by citizens through means of appointed constitutional institutions. Accordingly, there is no fear from individuals so long as it is in our power to elect or reject them, and so long as the individuals are powerless to affect anything in the public order except through our will and desire (Al-Bishri, 1981, 2005).

Through theorizing a system that makes legislative and statutory bodies subject to Islamic law, Al-Ghannushi ends up undermining his own progressive work. This automatically places religious minorities in an unequal framework, infringing on their rights as equal citizens. The need to protect the state’s ethos from potential non-Muslim dissidents speaks of his inherent suspicion of minorities and the need to stay on guard lest they corrupt the Islamic state. Meanwhile, since the successful election of his political party, Al-Ghannushi still maintains the premise that minorities are fully afforded equality under his framework. On 19 October 2011, Al-Ghannushi said the following: ‘Until now, Tunisian society has not been a society of minorities; it is a Muslim society whose religious minorities are respected.’ He went on to add: ‘Religious freedom is guaranteed by the Constitution and the values of Arabic Islamic culture’ (Parker, 2011).⁴ Yet again, Al-Ghannushi falls into the trap of recognizing only religious minorities, ignoring all of the realities that exist. That being said, until all types of minorities are included in modern Islamic theorizing and models, the field remains grossly limited.

Promoting minority inclusion through modern Islamic theorizing

It would be easy for some to reject the inclusion of modern Islamic theorizing on minorities into discourse on resolving minority issues in the Middle East due to its previously mentioned challenges, such as the overarching emphasis on religious minorities rather than all minorities. However, its exclusion would be fatal as any purely secular model of resolution would be ignoring the realities of the region. The Middle East is sorely in need of dialogue and action regarding minority rights in the emerging system; thus, for any measure to be successful, this article suggests the inclusion of human rights discourse on territorial citizenship and multiculturalism within the framework of modern Islamic theorizing.

Multiculturalism, as theorized by Kymlicka, is based on the acknowledgment of human rights for all individuals and communities, regardless of religion, ethnicity, or gender. Furthermore, to ignore the fact that cultural diversity exists is to suppress those human rights. The question lies in the implementation of the system where an overwhelming majority is Sunni Muslim and, due to historical/social trends, the majority sees minorities as only religious in nature. Islamic modernist theorizing on minorities, particularly as proposed by Tariq Ramadan and An-Na’im, should include the caveat that all traditional Islamic theorizing on minorities (particularly the notion of dhimmis) be excluded from discussion, as it no longer holds any relevant place in modern society and only hinders development.

Religion needs to be redefined in the state, where rather than having a so-called ‘Islamic state’, the notion of a ‘civil state’ can instead be deployed. As previously mentioned, this rhetoric has already begun to take place in Islamic modern theorizing and thus it is out of the question to suggest that citizenship be the new basis for a reimagined civil state. Also, it is to be emphasized that the protection of individual human rights under the law is not the same as ensuring collective rights; thus, it is crucial to safeguard minority communities’ rights under that same legal framework within the civil state and society.

Modern Islamic theorizing on minorities and the creation of pluralistic yet equal societies is far from complete, but with the Arab Spring and the sequential rejection of traditional paradigms, there is indeed hope that this fledgling field of theory and policy will rise to new heights and include the Islamic principles of dignity and equality for all citizens, regardless of religion, ethnicity, sex, or language. The modern Islamic framework presented in this section, with its inclusion of human rights discourse on territorial citizenship and multiculturalism, is not an infallible solution to minority problems with the Middle East. Rather, it merely asserts that modernist Islamic theorizing can be reconciled with multiculturalism, rejecting traditional Islamic theorizing and embracing the emergence of a civil state with integration and equal citizenship, regardless of status.

Conclusion

As Abdou Filali-Ansary quotes in his work on the language of the Arab Spring, “discourse containing Islamic terms and symbols” may be less about religion than about a certain approach toward the task of coming to terms with the modern world. Religious notions, in other words, are called upon to face the overwhelming challenge of modern concepts’ (Filali-Ansary, 2012: 10).

The future of Islam as a political force in the Arab world is far from certain. As the quote above suggests, religion may not be seen by the public as a means for solving problems; rather, it is merely a device used to rationalize and face the unknown future. It is in this manner that the inclusion of modernist Islamic theorizing on minorities is called for in this article, as new ijtihad for societal reconciliation with the realities that face the populace. Minorities are widely present in the region and have been fundamentally ignored and subsequently mistreated through their unequal status. Through embracing modernist Islamic theorizing as an overarching paradigm, steps can be made towards bridging societal and political rifts that have existed for far too long. The use of the traditional Islamic theorizing and society-wide ignorance on the matter are no longer valid; instead, it is adherence to human rights, the civil state, equal citizenship and integration that will lead to the development of a pluralistic, democratic region.

Footnotes

Notes

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