A COMPARATIVE ANALYSIS ON THE CONCEPT OF FREEDOM

A COMPARATIVE ANALYSIS ON THE CONCEPT OF FREEDOM OF RELIGION UNDER THE SHARI‘AH AND INTERNATIONAL LAW

CHAPTER ONE

GENERAL INTRODUCTION

1.1 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.^[1] 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.^[2]

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 7^th 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.⁴ 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.⁵ 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.⁶

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 swordhas 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 JudeoChristian 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.

and Muslim Perspectives on Freedom of Religion,University of Pennsylvania Journal of Constitutional Law (2006) Vol. 8, No. 3, p. 355; Bambale, Y. Y. Crimes and Punishments under Islamic Law, Malthouse Press Ltd., Lagos (2003) p. 77

⁵ al-Mubarakpuri, S. Ar-Raheeq Al-Makhtum [The Sealed Nectar] Dar Ibn Khaldun (n.d.) pp. 145-146

(137); al-Tha‘alaby, A. Al-Risalah al-Muhammadiyyah, Dar Ibn Kathir, Beirut, (n.d.) p. 134 ⁶ Adnan ibn Muhammad, op cit., Vol. 4, p. 40-85

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:

To the Christians of Najran and its neighbouring territories, the security of God and the pledge of Mohammed the Prophet, the Messenger of God, are extended for their lives, their religion, their land, their property — to those thereof who are absent as well as to those who are present — to their caravans, their messengers and their images. The status quo shall be maintained; none of their rites [religious observances] and images shall be changed. No bishop shall be removed from his bishopric, nor a monk from his monastery, nor a sexton from his church … For what in this instrument is contained they have the security of God, and the pledge of Mohammed, the Prophet forever, until doomsday, so long as they give right counsel [to Moslems] and duly perform their obligations, provided they are not unjustly charged therewith.

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