Letter from Alexandria

[Editor’s Note: Dr. Mohamed ‘Arafa is a law professor at Alexandria University, in Egypt, currently teaching classes in Islamic law and comparative Middle Eastern law at both Cornell Law School and Indiana University McKinney School of Law. By my count he has taught on four continents, and possibly one or two continents I haven’t counted.

Other subjects of his teaching and scholarship include criminal law, white collar crimes, human rights law, and transitional justice. Till 2018 he was managing editor of the Arab Law Quarterly in London.

Last year, Pope Francis visited the United Arab Emirates for three days to promote peace and tolerance with the Muslim world. It was an historic first visit in the Arabian Peninsula by a pontiff.

Professor ‘Arafa writes here about the contemporary human rights vision of that visit in relation to another visit, fourteen hundred years ago, of another religious leader.]

The Imām and (NOT Versus) the Pope: Awakening Religious Consciousness — In the Memory of the Prophet Mohammad’s Constitution

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.” That refers to the “Human Fraternity for World Peace and Living Together” and the Mārrākesh declarations. For Muslim communities, international rules must be compatible within the Islamic legal fiqh (jurisprudence). Thus, the citizenship notion derives back to a memorable document – the Medinā Charter (Mohammad’s Constitution) of 622 CE. It is substantial to read that Charter under the light of today’s call, to draw the concept of “inclusive citizenship” in coherence with the early Classical Sharie‘a along with these current attempts of interreligious dialogue. That Charter is a legal source that permits this new interpretation.

Mohammad’s düstür (Constitution) includes not only the religious meanings but also proves that under Sharie‘a, mu‘āhādāt/mithāq (agreements) are dutifully valuable, and, hence to endeavor for processing them is beneficial; as a paradigm of international peace treaties along with some trans-historical messages, so to draw a new interpretation appropriate for the modern – international – Muslim Ummāh (nation/community). This understanding assumes that some religious messages can have implications in common with other religious groups, as of the unity of religious practice. Moreover, the current collaboration among global faiths needs to be a product of pluralism – respecting our differences – and a recognition of the path that global creeds are entwined even as they appear in unique traditions. Historically, it is likely to realize complex mutual venues when borders and limits between the religious customs were blurred and constantly redrawn. So, historical interpretation is crucial to understand the document’s meanings for the initial religious society, and to extract from it new concepts to share with other religious denominations, as this interreligious interpretation “generates” new cultural ideals to be applied in the modern discourse of international human rights.

The Abu Dhābi Document

On February 4, 2019, Pope Francis made an apostolic trip to the Middle East, especially, to Abu Dhābi in the United Arab Emirates. The main outcome of it was the document “Human Fraternity for World Peace and Living Together,” signed by the Pope and the Grand Imām of Al-Azhār Ahmad āl-Tayieb. It represents the cornerstone regarding the relations between Christianity and Islam, but so far it has not received the interest that it deserves. On the Catholic side, the declaration has its robust theoretical precedent in the Second Vatican Council’s Declaration (the relations between the Catholic Church and the non-Christian religions). On the Muslim side, the Mārrākesh Declaration on the Rights of Religious Minorities in Predominantly Muslim Majority Communities of January 25-27, 2016, and the Al-Azhār Declaration on the conference “Freedom, Citizenship, Diversity and Integration” represent the main precedents within the Muslim World.

The document’s preface affirms that “Faith leads a believer to see in the other a brother or sister to be supported and loved,” invites “all persons who have faith in God and faith in human fraternity to unite and work together.” The Pope and the Imām 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,” “in the name of orphans, widows, refugees and those exiled from their homes and their countries…(and) all victims of wars (and) persecution.” Al-Azhār along with the Catholic Church, “declare the adoption of a culture of dialogue as the path; mutual cooperation as the code of conduct; reciprocal understanding as a method and standard.” A view of global law is understood when both parties confirm that:

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.

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.” Although recognizing the optimistic 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.” Further, both leaders sustain the vital significance of the family, and the importance “of awakening religious awareness,” particularly in youth, “to confront tendencies that are individualistic, selfish, conflicting, and also address radicalism and blind 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 its beginning up to its natural end.” Thus, they condemn all practices that represent a threat to life, such as genocide, terrorism, abortion, human trafficking, forced displacement, euthanasia, etc., and said 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.”

Likewise they declare “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” and recall that “God, the Almighty, has no need to be defended by anyone and does not want His name to be used to terrorize people.” Accordingly, Islam and Christianity’s main message is that:

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

Furthermore, all places of worship must be legally protected, and, in any event, they should not be attacked for purported religious motives, and terrorist activities shall be condemned by religions, without any appeal. In this regard, the document reads “the protection of places of worship – 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 as well as a clear violation of international law.” The Pope and the Imām said everyone has equal rights and individuals are not subject to rights because of their membership in a group, for instance to a religion or an ethnic group – this is to prevent degrading “minority” categories (women, children, the elderly and the disabled). Rather, religious individuals have rights because they are citizens, [and] different cultures should enrich each other, assuring them basic human rights.

Accordingly, this document includes “legal” contents that are explicitly cited and plainly recalls the international human rights law norms. It emphasized the important role of religions in the construction of world peace, and upholds “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…so that future generations may be protected from…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 added].”

Human Rights Discourse Status Quo and the Medinā Charter

Regarding the freedom of religion, the text reads “freedom is a right of every person: each individual 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…through which He created human beings. 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 rejected, as too the imposition of a cultural way of life that others do not accept.” More precisely, the Marrakesh Declaration reads:

Whereas this year marks the 1,400^th anniversary of the Charter of Medinā, a constitutional contract between the Prophet Mohammad…and the people of Medinā, which guaranteed the religious liberty of all, regardless of faith…[we,] 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; [and that the objectives of the Charter]…provide a suitable framework for national constitutions in countries with Muslim majorities, and the United Nations Charter and related documents, such as the Universal Declaration of Human Rights, are in harmony with the Charter of Medinā, including consideration for public order.

“Human Fraternity for World Peace and Living Together” reflects the legal concept of “citizenship” as a tool of global control and protection of religious rights. It is described in this way:

The concept of citizenship is based on the equality of rights and duties, under which all enjoy justice. It is therefore crucial to establish in our societies the concept of full citizenship and reject the discriminatory use of the term minorities which engenders feelings of isolation and inferiority. Its misuse paves the way for hostility and discord; it undoes any successes and takes away the religious and civil rights of some citizens who are thus discriminated against…

Pluralism Voices

Saïd Arjomand says Article 15 of the Charter of Medinā marks “the institution of religious pluralism in Islam, which later developed into the recognition of ‘those to whom we have given the book’ (The Qur’an 2:121; 6:21, etc.), or more frequently, the ‘peoples of the book’ (Q. 2:63, 65, etc.) under the protection (dhimmāh) of God. Religious pluralism in Medinā was endorsed in the Qur’ān: ‘There is no compulsion in religion.’”

Thus, the political idea of inclusive citizenship (cultural inclusive groups) is related to the dogmatic notion of fraternity and its recognition as “vertical,” based on superiority and faith in God. This brotherhood is not only emotional or sentimental; it is rather a solid message with a political value. Accordingly, it leads – no doubt – directly to reflect on the citizenship concept: we are all brothers, and hence citizens with equal rights and duties, under whose shadow everyone enjoys justice. Despite the Qurā’nic concept of dhimmāh (protection Q. 9:29), the notion of “minority” vanishes as it leads to tribalism and antagonism. Generally speaking, these declarations acknowledge the rampant use of violence to “enforce perspectives” and resolve conflicts in numerous parts of the Muslim world and emphasize the suffering of minority groups that have endured in the region for centuries. The document quotes Qurā’nic texts that underline the key Islamic teachings about 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 “muslimūn”, but rather “mu’minūn.” Uri Rubin affirms that “Being recognized as mu’minūn, keep to their own dīn…li-Yāhudi dinuhum wā li-l-musliminā dinuhum (the Jews shall maintain their own religion and the Muslims theirs)…the latter clause seems to convey the idea that the dīn (religion), of both parties has equal merit so…each party has the right to go on adhering to its own dīn.”

These documents reflect – directly or indirectly – Mohammad’s Constitution, as a model for contractual citizenship to guarantee equal rights for all under the law within the global legal standards, and to call Muslim ‘ulmā’ā (jurists) and authorities to use that Charter as a base for evolving contractual citizenship models in their national constitutions and develop a jurisprudence of that concept as it is deeply rooted in Islamic Sharie‘a principles and mindful of global changes. Muslim scholars argued that the 2017 Al-Azhār statement – as an Islamic system of governance – is the theoretical precedent of the Abu Dhābi proclamation that clarified the relationship among Muslims and non-Muslims. The Medinā Charter did not imply any sort of discrimination or exclusion of any social group, but it included policies founded upon religious, ethnic and social pluralism, as it reads “one community to the exclusion of others” and non-Muslims had the same rights and responsibilities of Muslims. Therefore, Mohammad’s Constitution declined to use “minorities” term and against the ‘blind loyalty’ in human rights’ discourse to avoid discrimination, racism, and disloyalty that jeopardize the states’ internal national security.

In fact, it should be noted that the three documents are not international treaties (not agreements between States) – as legal actors – but they regulate the freedom of belief, especially minorities in Christian and Muslim nations, prompting the behaviors and the agency of the faithful. Many scholars noticed that there can be a global contest between secular and divine norms (orders) due to the normative relevance of sacred classical legal customs. Legal order represents the source of the monitoring power of religions, as of their own symbolic appeal, an interpretive hierarchy, separate constitutive narratives, numerous jurisdictional concepts and conflict resolution standards, cross-border affiliations, global solidarity, and international mobilization capacity. Such documents embody global law sources, that can have an efficient legal regulatory force, different from the one of the States and international organizations. This global law is non-state law; not concerned with formalism and is polycentric and complex with more regulatory forces. If we admit the presence and the legal implication of a great diversity of universal performs – in political and jurisprudential frameworks – legal norms, values, and procedures for managing global human rights, interests, goods, creeds, groups and cultures, these agreements appear to have the features to be among those universal sources of regulation.

To conclude, the Medinā Charter was neither a constitution in the modern sense — because it lacks the nature of a social contract between equals — nor a constitution of the āl-dāwlāh āl-islāmiyyāh (Islamic State), as the Prophet was not interested in establishing a governmental system. Rather it appears to have been essentially a pact tackling the link between “religious” people of various “religions.” 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 tie of kinship, which was preponderant at that time and that was the reason for enduring conflicts and feuds in the Arab peninsula.