Human Trustees

[The author here is Mohamed ‘Arafa, my first guest author. I am only the editor this time. See his short bio at the end.]

In February 2019, Pope Francis made an apostolic trip to the Middle East, including a visit to Abu Dhabi in the United Arab Emirates. There he met with Ahmad el-Tayeb, the Grand Imam of Al-Azhar University, which makes him Egypt’s Grand Mufti, or top Islamic legal scholar. This visit, which has not received the kind coverage it deserves, resulted in a shared document signed by both religious leaders, “Human Fraternity for World Peace and Living Together.”

I will provide in this post a number of quotes from this document, seeking to highlight the concept of citizenship, both in the modern nation-state and in a more universal perspective, or citizenship in the family of world nations – hence, “human fraternity.” I do so as well from a Muslim point of view by tying this document of interreligious dialogue to the Prophet Muhammad’s Medina Charter, arguably the world’s first state constitution. Already in that text we see an emphasis on “religiosity,” rather than on “religion, on the kinship shared by people of all faiths, rather than by the devotees of one exclusive religious tradition.

Let me add that this reference to the Prophet’s charter (622 CE) is important to Muslims, as rules of international law must also be compatible with Islamic fiqh (jurisprudence; a copy of this charter is available as a pdf document here).

The Abu Dhabi Declaration

This document signed by the imam and the pope on relations between Christianity and Islam draws from other recent initiatives, starting on the Roman Catholic side with the Vatican II 1964 document, Lumen Gentium (“Light of the Nations”). For its part, the 1964 document represented a leap forward in the Catholic Church’s desire and commitment to engage in meaningful dialogue with people of other faiths, and with Muslims in particular.

On the Muslim side, the 2007 Common Word letter was a watershed document declaring that the common ground between Muslims and Christians was at the heart of both traditions – love of God and love of neighbor. More recently, the January 25-27, 2016 Marrakesh Declaration on “The Rights of Religious Minorities in Predominantly Muslim Majority Communities” and the Al-Azhar Declaration following the conference “Freedom, Citizenship, Diversity and Integration” drove home a common path on the theme of citizenship from minorities in Muslim-majority nations.

The Abu Dhabi document’s preface affirms that “Faith leads a believer to see in the other a brother or sister to be supported and loved”, and invites “all persons who have faith in God and faith in human fraternity to unite and work together.” Significantly, the pope and the imam speak “in the name of God who has created all human beings equal in rights, duties and dignity”, “in the name of innocent human life that God has forbidden to kill”, “in the name of the poor … orphans, widows, refugees, exiles … and all victims of wars and persecution.” Al-Azhar along with the Catholic Church, “declare the adoption of a culture of dialogue as the main path; mutual cooperation as the code of conduct; reciprocal understanding as a method and standard.”

This joint statement clearly expresses a belief in international law, or even some form of coordinated global governance:

We . . . call upon ourselves, upon the leaders of the world as well as the architects of international policy and world economy, to work strenuously to spread the culture of tolerance and of living together in peace; to intervene at the earliest opportunity to stop the shedding of innocent blood and bring an end to wars, conflicts, environmental decay and the moral and cultural decline that the world is presently experiencing.”

This is also a text about shared ethical values, as both leaders ask all people of religion, culture, and the media, to revive and spread “the values of peace, justice, goodness, beauty, human fraternity and coexistence.” Additionally, they decisively confirm their faith “that among the most important causes of the crises of the modern world are a desensitized human conscience, a distancing from religious values and a prevailing individualism accompanied by materialistic philosophies.”

At the same time, they take stock of the spiritual crisis in our world today. Although recognizing the positive steps taken by modern civilization, the declaration underscores the “moral deterioration that influences international action and a weakening of spiritual values and responsibility”, which leads many “to fall either into a vortex of atheistic, agnostic or religious extremism, or into blind and fanatic extremism.”

In terms of solutions, both leaders sustain the vital significance of the family, and the importance “of awakening religious awareness”, particularly among the youth, who need “to confront tendencies that are individualistic, selfish, conflicting, and also address blind radicalism and extremism in all its forms and expressions.” Both recall that the Creator “granted us the gift of life to protect it. It is a gift that no one has the right to take away, threaten or manipulate to suit oneself. Indeed, everyone must safeguard it from the beginning up to its natural end.”

Because of God’s wonderful gift of dignity to humankind and to each individual human being, they condemn all practices that represents a threat to life, like genocide, terrorism, abortion, human trafficking, forced displacement, euthanasia, etc. They insist that “religions must never incite war, hateful attitudes, hostility and extremism, nor must they incite violence or the shedding of blood. These tragic realities are the consequence of a deviation from religious teachings. They result from a political manipulation of religions and from interpretations made by religious groups.”

Both leaders pause to recognize that religion has often been misused: “We thus call upon all concerned to stop using religions to incite hatred, violence, extremism and blind fanaticism, and to refrain from using the name of God to justify acts of murder, exile, terrorism and oppression.” We must recall, they add, that “God, the Almighty, has no need to be defended by anyone and does not want His name to be used to terrorize people.”

In light of all this, Islam and Christianity’s main message can be summarized in the following statements:

• • • religions endorse human brotherhood;
    • religious freedom must be guaranteed to everyone, as it is justified by her/his faith;
    • only the collaboration between justice and mercy leads to basic conditions of human well-being;
    • The world’s problems can only be solved through dialogue, and
    • interreligious discourse must include common values, endorsing the good, and averting “useless debates.”

Human Rights and the Medina Charter

Further, the Abu Dhabi declaration stipulates that in the name of religious freedom, at the very least, all places of worship must be legally protected. They should never be attacked for purported religious motives, and terrorist activities shall be condemned by people of all religions, without any appeal. In this regard, the document reads, “the protection of worship places – synagogues, churches, and mosques – is a duty guaranteed by religions, human values, laws and international agreements [necessity to protect religious minorities]. Every attempt to attack places of worship or threaten them by violent assaults, bombings or destruction, is a deviation from the teachings of religions […] a violation of international law.”

The imam and the pope affirm that “everyone has equal rights and individuals are not subject to rights because of their membership in a particular group, whether a religion or an ethnic group. This is to prevent degrading any “minority” category (women, children, the elderly and the disabled).” For this reason, both religious leaders argue that all religious persons have rights as they are citizens, no matter the political arrangements of their particular nation. Every state in our globalized world, with its own unique mix of cultures and religions, should contribute to enriching other states by guaranteeing all of its citizens their fundamental human rights.

Accordingly, this document explicitly includes “legal” content and, in this regard plainly recalls the international human rights law norms. It emphasizes the important role of religions in the construction of world peace, and affirms:

“The firm conviction that authentic teachings of religions invite us to remain rooted in the values of peace; to defend the values of mutual understanding, human fraternity and harmonious coexistence; to re-establish wisdom, justice and love; and to reawaken religious awareness among young people so that future generations may be protected from the realm of materialistic thinking and from dangerous policies of unbridled greed and indifference that are based on the law of force and not on the force of law” (emphasis in the original).

 Circling back to the issue of religious freedom, the text reads: “freedom is a right of every person: everyone enjoys the freedom of belief, thought, expression and action. The pluralism and the diversity of religions, color, sex, race, and language are willed by God . . . This divine wisdom is the source from which [this right/freedom] … to be different derives. Therefore, the fact that people are forced to adhere to a certain religion or culture must be denied, as too the imposition of a cultural way of life that others do not accept.”

In 2016 King Muhammad VI of Morocco hosted an international Islamic conference on the rights of minorities. Over 250 Islamic scholars and leaders, including a number of government ministers from Muslim-majority nations convened for the occasion, no doubt all the more urgent because of the atrocities committed by ISIS at the time. The resulting Marrakesh Declaration draws inspiration from the Medina Constitution, as some scholars have put it, or simply the Medina Charter:

"Whereas this year marks the 1,400 Anniversary of the Charter of Medina, a constitutional contract between the Prophet Mohammad and the people of Medina, which guaranteed the religious liberty of all, regardless of faith . . .  along with representatives of Islamic and international organizations . . . to reaffirm the principles of [that Charter] . . . Declare Hereby our firm commitment to the principles articulated in [that] Charter, whose provisions contained a number of the principles of constitutional contractual citizenship, such as freedom of movement, property ownership, mutual solidarity and defense, as well as principles of justice and equality before the law; [that Charter] . . . provide a suitable framework for national constitutions in countries with Muslim majorities, and the UN Charter and related documents, such as the UDHR, are in harmony with the Charter of Medina, including consideration for public order […]"

Voices of Pluralism and the Medina Charter

The clash of civilizations, cultures, communities (tribes), and religions appears to be predominant throughout human history. At the same time, history discloses concurrent efforts to manage tensions and heal divisions which have fed hostility and animosity through negotiation, diplomacy, mediation, and dialogue. Some conflicts seem too complex to be seen solely as a “religious” issue, as struggles often revolve around land, economic grievances, or ethnic discrimination. So what perspective is best to investigate conflicts in a modern world that seems to be stirred up by finances and economics, natural resources, and racial/ethnic or religious clashes? Examining some of the clauses in the Charter demonstrates how Prophet Muhammad managed to take control and leadership in a divided city (Yathrib, later called Medina) and create a lasting peace. The most significant clause reads that, “They are a single ummah (community),” and it encapsulates the decisive message and goal of the rest of the charter. It points to the formation of a community, and it served as a unifying document in a city of diverse groups, cultures, religions, and languages.

 In the same vein, Iranian studies specialist Saïd Arjomand ties citizenship to “the institution of religious pluralism in Islam, which later developed into the recognition of ‘those to whom we have given the book’ (Q. 2:121; 6:21, etc.), or more frequently, the peoples of the book (Q. 2:63, 65, etc.) under the protection (dhimma) of God.” He adds, “Religious pluralism in Medina was endorsed in the Qur’an ‘There is no compulsion in religion.’”¹

Thus, the political idea of inclusive citizenship for all citizens of any state, regardless of creed, race, gender or ethnic belonging, is related to the notion of “human fraternity” and its recognition as “vertical,” based in the Abrahamic faiths on God’s special creation of humankind as his trustees on earth. This brotherhood is not only emotional or sentimental; it is rather a solid message with political implications. Accordingly, it leads directly to the concept of citizenship: we are all brothers, and hence citizens with equal rights and duties, under whose shade everyone enjoys justice. Despite the Qur’anic concept of dhimma (“protection“ Q. 9:29), at least as it was codified in medieval Islamic jurisprudence, we must do away with the notion of “minority,” as it leads to tribalism and mutual antagonism. Generally speaking, such interfaith declarations acknowledge the rampant use of violence to “enforce perspectives” and the fact that force can never resolve the many conflicts in the Muslim world. They also recognize the suffering endured by minority groups in the region over the centuries.

Accordingly, these international, interfaith declarations point back, at least from an Islamic approach, to Muhammad’s Medina Charter, and thereby underscore the main Islamic (Shari‘a) norms emphasized in various Qur’anic texts regarding the protection for minorities: prohibition of religious compulsion (Q. 2:256); crucial bonds of humanity among different societies and races (Q. 13:49); the need for kindness with others (Q. 60:8), and the obligation to respect contracts and covenants (Q.16:91). Also, Mohammad’s early followers were not called “muslimun” (Muslims), but rather mu’minun (believers).” Islamic Studies scholar Uri Rubin points to a clause in an early treaty Muhammad concluded with the Jews of Medina: li-Yahudi dinuhum wa li-l-muslimina dinuhum (The Jews shall maintain their own religion and the Muslims theirs).² He comments, “the latter clause seems to convey the idea that the din (religion), of both parties has equal merit so...each party has the right to go on adhering to its own din and as a confirmation of ‘There is no compulsion in religion,’ and ‘For to you is your religion, and for me is my religion” (Q.109:6) and ‘Say: It is the truth from your Lord; so let whoever wishes have faith and whoever wishes disbelieve’” (Q.18:29).³

Moreover, these universal statements recently signed by Muslim spiritual leaders define a concept of pledged citizenship that focuses on a shape of relationship justified more on “religiosity” than on “religion.” Each religion has its own creeds and rituals, but in its spiritual orientation and ethics they have much in common. Hence, the idea of religious pluralism. In fact, Muhammad’s Medina Charter (or Constitution) adds two important elements to this discussion of citizenship. The first is that under Shari‘a norms, international treaties and agreements (mu‘ahadat) are crucial for promoting peace between nations. Though this document was an internal roadmap for bringing unity and peace between feuding tribes and religious entities (hence, a constitution), it points to an application on a wider scale to international treaties of peace between nations. The importance of these was enshrined both in the Qur’an and in subsequent Islamic jurisprudence.

The second element in the Medina Charter impacting citizenship is the stress on religious pluralism: Jews, Muslims, and Arab polytheists can coexist as members of a political entity on an equal footing. In this sense, religiosity is more important than religion. This understanding assumes that some religious messages are common to several religious traditions. In fact, the current collaboration among global faiths is a product of religious pluralism – respecting our differences while recognizing our common ethical values based on the inherent dignity of all human beings.

To be sure, we live in a very different context than Muhammad’s seventh-century Arabia. Hence, historical interpretation is crucial to understanding the document’s meanings in its original context. What I am arguing here is that this interreligious interpretation of the Medina Charter “generates” new cultural ideals to be applied in the modern discourse of human rights. Muhammad’s Constitution then becomes a model for contractual citizenship to guarantee equal rights for all under today’s international legal standards.

That is why we can only celebrate the call made by the Marrakesh and Abu Dhabi declarations to Muslim jurists (‘ulama) and authorities to use that Charter as a basis for evolving contractual citizenship models in their national constitutions and develop such a jurisprudence, as it is deeply rooted in Islamic Shari‘a principles and mindful of global changes. By avoiding any sort of discrimination or exclusion of any social group, the Medina Charter promoted policies founded upon religious, ethnic and social pluralism. Non-Muslims had the same legal rights and responsibilities as Muslims. Therefore, it declined to use “minorities” discourse and thereby stood against any form of discrimination, racism, and disloyalty that might jeopardize the state’s internal security.

The Status Quo in the Muslim World

To all the idealism of the above paragraphs one might object that this is hardly the reality of the contemporary Muslim world. I would like to suggest here that the best way to understand how many Muslim regimes limit religious freedom is to take into account their respective political theologies.⁴ By this I mean their notion of political authority, justice, and the appropriate relationship between state and religion. Based on this notion of political theology, we can see three categories of regimes. First, the "religiously free" Muslim-majority states (approximately 11 out of 47, concentered in West Africa) with "low" restrictions on freedom of religion, meaning that they advocate, endorse, and protect the freedom of individuals and communities to practice their creed. Despite the strong Muslim majority population, they are striking for their robust levels of respect for Christian and other minorities, and remarkably, religiosity levels are high in these countries.  In West Africa, it is not the absence of Shari‘a but rather the sort of Islam that promotes tolerance (Sufi spirituality), which stresses individual piety and sincerity, without imposing beliefs or practices on anyone else.

On the other hand, the 36 Muslim-majority states that are not religiously free can be described as having "moderate," "high," or "very high" levels of restriction on religious freedom. Further, they can be divided into "secular repressive" and "religiously oppressive" nations. The former (around 15 countries) exemplify a political theology of Western secularism, holding that the public inspiration of Islam ought to be muted so as to make way for nationalism, economic liberalization, and modernization. The standard bearer of this model is Turkey, created in 1923 by M. K. Atatürk on secular values. Egypt followed suit under Gamal Abd al-Nasser in the early 1950’s and after the 1971 adoption of the constitutional (religious) clause “the principles of Islamic law” by President Sadat, as did other Arab nations. This only goes to show that “Islam” (however interpreted) is not the cause of religious repression.

Those other states – 21 nations – that restrain freedom of religion display a political theology of "radical Islamism" that imagines law and government rule as a vehicle for applying a rigidly traditional form of Islam in all aspects of life – personal status and family law, economy, culture, human rights, religious exercise, education, dress, among many others.⁵ These are the states that make most Westerners think of Islam as being oppressive and extreme, and indeed Saudi Arabia and Iran are at the top of the list. But one could also point to the United Arab Emirates, which, despite its open and welcoming image, is a very conservative country. Like its Gulf neighbors, it treats its many foreign workers as virtual indentured servants, dirt poor with practically no rights. Many of them are Christian, for instance, but unlike in Kuwait (the only exception in the region), but building churches is forbidden, so they have nowhere to worship during their stay. So, one could be skeptical that nations like the UAE are very truthful about respecting international law norms in the areas of workers’ rights or religious freedom.

Thus, the religiously unfree portion of the majority-Muslim world must be understood in its complexity, as some states are secular-repressive ones, powered by borrowed antireligious zealotry, while others are religiously suppressive, by imposing medieval Shari‘a norms that clash with current human rights law. To name a few, dhimmi laws gave few rights to religious minorities. These are some examples: apostasy and blasphemy laws (often leading to the death penalty); Muslim women, unlike their male counterparts, forbidden to marry non-Muslims. Clearly, “Islam” is not responsible for these oppressive statutes. One only has to note the robust differences of opinion between Salafis (including the puritanical Saudi Wahhabi sect), traditionalists (like the jurists of al-Azhar University), and more liberal Muslims. What is certain, is that religious suppression is still alive and well in the Muslim world. It is imperative that these nations launch national protection systems for human rights defenders, who need an empowering environment in which all rights – especially religious freedom – are respected. The wider reality is that these are for the most part authoritarian regimes that pay only lip service to democratic ideals. One might also argue that religious repression correlates to political repression. In any case, nations with a free and active civil society, with a free press and political parties freely contesting elections within a particular constitutional framework are nations where religious minorities are also respected. That is the “inclusive citizenship” help up by the Marrakesh and Abu Dhabi declarations.

Parting Words

To conclude, the Medina Charter was neither a constitution in the modern sense (because it lacks the nature of a social contract between equals), nor was it the constitution of an Islamic state, however that might be defined. The Prophet was not interested in establishing a governmental system. Rather it appears to have been essentially a pact establishing a bond between “religious” people of various “religions” and thereby prioritizing religiosity over religious identity. The real purpose was to launch a new order to maintain security, self-government, and religious respect among all. In other words, it was to establish a confederation where the tie of religiosity would usurp the ties of kinship and religion, which were preponderant at that time, causing enduring conflicts and feuds in the Arab peninsula.

For this reason, my contention in this essay is that both the Marrakesh and the Abu Dhabi declarations build on this heritage. They offer a loose legal framework aimed at regulating the freedom of belief, especially for minorities in majority Christian and Muslim nations, and at seeking to motivate the behaviors and agency of the faithful. Scholars have noticed the presence of a global contest between secular and divine norms due to the resurgence of religion globally since the 1970s and the resulting appeal in many quarters to sacred legal customs. Religious traditions can provide the ethical underpinning and the symbolic appeal to strengthen the legitimacy of international human rights. They also contribute important resources, like a tradition of founding narratives, religious interpretations, conflict resolution standards, cross-border affiliations, global solidarity, and international mobilization capacity.

Finally, I believe such documents embody global law sources that are both different from the laws of states and of international organizations. They are not concerned with legal formalism, but are polycentric and adaptable to a variety of cultures and sociopolitical contexts. If we admit the presence and the legal implication of a great diversity of universal platforms such as legal norms, values, and procedures for managing global human rights, these agreements can and should be seen as directly contributing to those universal sources of regulation.

Endnotes

• Saïd Arjomand, “The Constitution of Medina: A Sociolegal Interpretation of Muhammad’s Acts of Foundation of the Umma,” International Journal of Middle East Studies 41, 4 (2009): 555-575, at 562].
• This is not a hadith, but rather a clause in Prophet Muhammad’s first treaty with the Jews of Medina, available here in English, http://www.cyberistan.org/islamic/treaty22.html; or in the Arabic original, https://www.alsirah.com/وثيقة-المدينة/
• Uri Rubin, “The Constitution of Medina: Some Notes,” Studia Islamica 62 (1985): 5-23. Available online, http://www.urirubin.com/downloads/articles/constitution
• I have mostly drawn the following material from these two sources: Allan Arkush, “Conservative Political Theology and the Freedom of Religion: The Recent Word of Robert Kraynak and David Novak,” Polity 37, 1 (2005): 82-107; Jean L. Cohen, “Political Religion vs. Non-Establishment: Reflections on 21^st-Century Political Theology,” Part 2, Philosophy and Social Criticism 39, 6 (2013): 507-21.

Dr. Mohamed ‘Arafa is a Professor of Law at Alexandria University Faculty of Law (Egypt); Visiting Adjunct Professor of Law at Indiana University McKinney School of Law at Indianapolis and an Adjunct Professor of Law at Cornell Law School. He was the Managing Editor of the Arab Law Quarterly in London. His teaching/scholarship focus on criminal law, white collar crimes, human rights law, Islamic law, comparative Middle Eastern law, and transitional justice.