LA SHARÍA EN EL ESTADO SECULAR: UNA PARADOJA DE SEPARACIÓN Y FUSIÓN

Abstract

The author examines the nature of Shari`a and its relationship to modern legal systems in order to consider how it might continue to operate in the context of the modern secular state under which all Muslims live today.

Shari`a is very influential among Muslims, regardless of its formal legal status in the country. However, the notion of an Islamic state is conceptually incoherent and historically false, and any Shari`a principle that is enforced through the coercive authority of the state ceases to be part of the normative system of Islam and becomes an expression of the political will of the state.

The author proposes that the rationale of all public policy and legislation must always be based on what might be called ‘public reason’, whereby Muslims and other believers should be able to propose policy and legislative initiatives emanating from their religious beliefs, provided they can support them in public, free and open debate by reasons that are accessible and convincing to the generality of citizens, regardless of their religion or other beliefs. But since such decisions will in practice be made by majority vote in accordance with democratic principles, all state action must also conform to basic constitutional and human rights safeguards against the tyranny of the majority.