Muslims In A Secular Constitutional State

Heiner Bielefeldt      

Qantara.de 06.02.2003

1. Secularism - A Complicated Concept

The secular constitutional state forms the general institutionalized political order in which Muslims in the Federal Republic of Germany and other Western European countries live and practice their faith. This situation raises questions. What is the Muslim view of the constitutional state? Does it pose a necessary evil to be accepted by devout Muslims, whether they like it or not, because the number of Non-Muslims is massively predominant? Or does secularism in a political and legal order offer the opportunity of trying new forms of Islamic self-organization with a possible impact reaching beyond the diaspora to the Islamic countries of origin? The questions can be asked the other way around: Is it at all legitimate to want to bind Muslims to the secularism of a state under the rule of law? Would it not be a necessity of inter-religious and multicultural tolerance to keep an option open for Muslims to structure their communal matters according to Islamic law instead of secular law? Does secularism itself not represent a type of religious or post-religious "faith" which should only be binding for those who commit themselves to this faith of their own free will?

An answer to these and similar questions depends on exactly how secularism is understood. The concept of secularism evokes varying, even contradictory associations, even more than other key political and legal terms. It is understood as an anti-religious or post-religious ideology, as a specifically western, Christian organizational form of the relationship between state and religion, as a state attempt to control religious communities or as an expression of respect towards the religious freedom of human beings. Furthermore, varying traditions in the political and legal dealings with religion have developed even within Western European states under the rule of law, such as France, the Netherlands, England, Germany and Italy. Secularism has been emphasized differently in each of these countries. And the debate is in danger of becoming totally convoluted when other disciplines, such as jurisprudence, sociology, theology, philosophy and all their interpretations of the concept are put together.

The goal of this essay is not only to explain the concept of secularism in view of a confusing myriad of theoretical interpretations. In fact, I am at the same time and primarily pursuing a practical and political concern. My interest is to defend secularism in a constitutional state, as it is an essential requirement for the political formation of religious and ideological pluralism which is orientated towards human rights. Such a defense can indeed only be convincing if it incorporates critical questions of the concept and takes them seriously.

My particular interest is the possibility of acknowledging the secular constitutional state from the Muslim perspective as well. To prevent a possible misunderstanding, it has to be set straight that I myself am not a Muslim but have been in dialogue with Muslims for several years. I can relate to many of them politically and personally to some extent, and there are others I see as political opponents. This essay contains insights which I have gained in conversations with Muslims. These conversations have led to my lengthy contemplation on the meaning of secularism in a constitutional state.

2. Defining Secularism in a Constitutional State 

2.1. Secularism in Constitutional State As a Result of Religious Freedom

The basis of my assumption is that secularism in a constitutional state is derived from religious freedom. It is a necessary structuring principle of legal order which works on the pretense of systematically realizing religious freedom as a human right. To put it in extreme terms: there is no total realization of religious freedom outside of a secular constitutional state. This assumption may not make sense right away. Can religious freedom not also be realized in the context of a religiously based legal system? Can neither a Christian nor Islamic state respect religious freedom? Are there not historical examples of co-existence between different religious communities, for example, under the rule of Muslim Sultans?

Granted, religious tolerance is also conceivable under the conditions of religious legal systems and traditions, and it does exist, particularly in the Islamic context. Religious freedom as a human right does not mean tolerance and should not be likened to it nor confused with it. As all human rights, religious freedom requires equal rights, whereas tolerance can by all means go hand in hand with inequality. The human rights' claim to religious freedom would therefore not necessarily be honored by tolerant state politics towards religious minorities.

Furthermore, the claim to equal rights, as they are inherent in human rights, does not remain restricted to a catalogue of "pre-state" basic rights but instead, should have an impact on the whole political and legal system. Human rights not only a mark a boundary of state authority but also function beyond the words of the Constitution "as a basis of every human community" (Art. 1 Sec. 2 German Constitution). They not only establish the inexceedable boundary of legitimate authority but at the same time, the ground bearing the legitimacy of the constitutional legal system in general. The human rights principle of equal freedom can only be realized if the political and legal status of humans is separated from religious affiliation. No one is allowed to have advantages or disadvantages based on religious (or ideological) beliefs. Even participation in political and legal systems should be possible for people with different religious and philosophical bearings and the terms must be completely equal, for that matter. In any case, this is the human rights' claim to religious freedom (sure enough, a claim that is by no means viewed as consistently honored in Germany).

The state is not allowed to associate with a particular religion or to turn it into a normative basis of its own order for the sake of equal rights of all humans and respect towards their different faiths. Consequently, a constitutional state which is committed to religious freedom must be neutral in terms of religion and ideology. Neutrality in religion and ideology does not mean general neutrality of values and it has nothing to do with a decline of moral principles or far-reaching normative skepticism. Carl Schmitt misses the point when he polemically links the ideological neutrality of a secular constitutional state with the "Age of Neutralization" when, according to his view, religious and ethic issues have been gradually bereft of meaning. Quite the contrary: The state's religious and ideological neutrality is about neutrality provided by legal ethics. Out of respect to the religious or ideological freedom humans, the state, as a "mundane" legal executive restricts itself to creating conditions fit for human beings. In this sense, it is religiously and ideologically neutral and thus, "secular".

Here is an example: The German Constitution commits itself to the inviolable dignity of every human being and it is the obligation of all state powers to respect it and protect it. (Art. 1 Sec. 1 German Constitution). It has not been determined whether this ideal of human dignity has been interpreted from biblical themes of humans' likeness to God, humanistic traditions or the Koran's idea of human vocation as a Governor of God on Earth (khalifa). The state cannot, nor is it permitted to decide authoritatively. Leaving such religious and ideological questions unanswered does not occur because of disinterest, skepticism or indifference, rather because of respect towards the freedom of humans who should be able to understand the state irrespective of their different faiths and ideas as their political community. The "ideological neutrality" of a secular constitutional state is based on the human right of religious freedom and proves itself to be contrary to a skeptical "neutrality of values". It makes sense and it is worth defending. Yes, one can commit to it politically, although - or perhaps because - a secular state under the rule of law is not permitted to demand a thorough ideological commitment from its citizens.

2.2. No "Post-Religious", Laicist Conception of State

If the secular constitutional state claims "ideological neutrality" then the consequence is that secularism is not allowed to be stylized as a quasi-religious or post-religious conception of state. The political loyalty which the state demands from its citizens does not target complete loyalty of conviction. And the commitment to secularism which the state can promote (but ultimately cannot force) is a political commitment remote from a comprehensive religious or ideological avowal of belief.

If ideological secularism is combined with state power, it ultimately leads to the destruction of the religious freedom established in constitutional state secularism. In its claim to religious freedom, a secular constitutional state must pay heed not to be involved in matters of ideological secularism or laicism. Even today, this danger exists in spite of the crisis in modern concepts of progress. Here are some examples: State-minded law and order politicians who do not want to become involved in the complexity of a multireligious society might be tempted to take on a modernist attitude and to dismiss the multifaceted demands of religious communities as obscurantism - from religious instruction in schools to the construction of places of worship to ritualistic slaughtering. Muslim women and girls wearing headscarves are exposed to reproaches of being backward, not only in laicist France but also in Germany. According to newspaper reports, the president of the Federal Office for the Protection of the Constitution, Peter Frisch, made an appeal to Turkish parents to send their daughters to school without headscarves because the Islamic headscarf tradition apparently denotes a lacking willingness to integrate into the secular, constitutional order. So even the "project of modernity" can become part of a rhetoric of segregation, if it is reified to a model of progress for civilization, and "pre-modern cultures" (this usually meaning Islam) are accordingly set against it, as a dichotomy.

It is important to explain the purpose of secularism in a constitutional state to avoid mistakes or fusing progress and ideological secularism or laicism. Secularism in a constitutional state does not strive to push religious communities to the fringes of society but instead, allows them ample opportunity for free development. It is a matter of structuring the pluralism or religious and ideological conviction legally and politically so that freedom and equal rights are possible for all. Secularism established in the human right of religous freedom is therefore the exact opposite of every custodial state concept and also the opposite of any ideological laicism.

2.3. No Separation of Religion and Politics

The fact that religion and politics would have to be separated in a secular state under the rule of law is a common ground of constitutional politics which is seldom challenged. The formula in which "religion and politics are separated" proves to be unprecise and misleading when it is looked at closely. If it is taken literally, then the liberal sense of religious freedom, and thus the normative foundation of constitutional state secularism, can even diminish.

Religious freedom is not limited to guaranteeing every individual the freedom of his/her own personal faith and his/her personal commitment. Beyond these essential components of individual rights, it also incorporates the right of religious communities to organize themselves free from state guardianship. In conclusion, it establishes participation in public society. The fact that religious communities can express opinions on political issues in public is not only consistent with constitutional state secularism but also proves to be consequence of the challenging concept of religious freedom which is the basis of the secular constitutional state itself.

Religion is not only a private matter, but it also has its place in the public. And since the public is a place where politics are executed in a democracy, religious communities can take part in politics. This does not relate to the separation of religion and politics but instead, the institutional separation of religious communities and the state. This difference is important. Whoever demands the separation of religion and politics in the name of secularism may be asking to push religious communities out of the public eye and thus, plead for an authoritarian and laicist control policy which is not compatible with religious freedom as a human right.

The institutional separation of religious communities and the state should protect religious communities from political interference in internal matters and at the same time, it should prevent citizen status in a democratic and legal state from fusing with religious affiliation. Religious communities and the state both yield freedom through this separation. Upon the basis of reciprocal independence, religious communities and the state can by all means cooperate. Their institutional separation does not denote a complete lack of relatedness. Concrete cooperative relationships between both sides are only compatible with religious freedom under the condition that the cooperation does not lead to privileges or discrimination of particular religious groups.

3. Consequences

Secularism in a constitutional state is a lofty yet highly endangered asset. It can only act as a liberal principle of a democratic constitution when it is taken seriously as a political challenge. First of all, it is necessary to precisely clarify the liberal claim of the secular state against ideological and cultural narrow-mindedness. It must be set straight that the secularism of the constitutional state is neither an expression of a laicist concept of progress, nor a part of state-minded control politics, nor an exclusive Western/Christian model for regulating the relationship of political and religious communities. The secular constitutional state, in fact, makes sense in the context of the human right to religious freedom. Upon the basis of such a clarification of a matter of principle, a prolific discussion can take place with Muslims, also including members of Islamic groups. The authoritarian implications of Islamic ideologies in the style of Mawdudis or Sayyid Qutbs must at the same time be addressed openly and critically.

The best defense of the secular constitutional state consists in taking religious freedom seriously as a mission and applying the principle consistently. As all human rights, religious freedom strives for equal rights. Nonetheless, it is known to all that the legal equality to the Christian Church is still outstanding. In this case, the majority of society has an obligation to pay off to Muslims. Indeed, the concrete problems, including the acknowledgement of Islamic associations as corporations of public law, the organization of Islamic religious instruction, the education of Islamic theologists and religion teachers at state universities – can not easily be solved. It is still unclear which association in Germany represents which parts of the Islamic population. Transparency in inner-Islamic structures is missing. The Islamic associations' ability to articulate themselves in a democratic, civic society surely has room for improvement. Once in a while, Muslims strongly suspect that representatives of German politics and authorities gladly use the indisputable shortcomings as an excuse to postpone Muslim demands indefinitely. It is actually dishonorable of a constitutional state based on religious freedom when advocates of Islamic religious instruction use the argument of the necessity of putting an end to the non-state Koran schools.

It is time to send signals. In spite of undeniable difficulties and many unclarified issues, there is basically no alternative to giving Muslims a chance to take part in this society, and as a matter of fact, according to the principles of equal freedom. Whoever sees this as a threat to secular law and order has not understood the purpose of a secular constitutional 
state.

Translation: Helen Groumas

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