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

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

This
study analyzes the compatibility of Shariah with International Law on
freedom of religion. As a subject of colossal complexity and variation,
detailed examination is restricted to the highly contentious issues of
the right to change religion (otherwise termed apostasy in Islamic law),
the religious rights of non-Muslims (Dhimma) in an Islamic State,
relations of law and religion (state religion), blasphemy/defamation of
religion, and the application of the doctrine of jihad in defence of the
Islamic faith, etc. Today, the serious disregard and infringement of
freedom of religion by both State and non-State actors has kindled
hatred and caused violence among people, as evidenced by severe and
systematic persecution, domination and suppression by one religion or
sect over the other using the instrumentality of State power in many
countries across the globe. Many instances abound on the oppressive
treatment and discrimination of members of minority religion or faith
within a nation; arbitrary killing and violence to the life and
properties of the holders of certain beliefs or sects; willful
destruction of or damage to places of worship and other sacred sites of
cultural and religious memory and learning in many parts of the world.
In view of this, the main objective of this work therefore, is to
examine what comparable or divergent visions and precepts underlie
Shari‟ah law and international law in providing for freedom of religion
given the fact that as to Shariah, preserving the Islamic faith is among
its fundamental principles and as to international law, promotion of
tolerance and friendly relations forms its very basis. To achieve this,
doctrinal method of legal research was adopted, and reliance was placed
on sources of information such as the primary and secondary sources of
Islamic law as well as the sources of international law on the subject.
It is argued that while international law contemplate protection of
freedom of religion only of recent, the Shariah as a system of law and
religion was the first to recognize religious toleration right from the 7
th
Century A.D. and in view of this, it was observed that religious
accommodation in Islamic tradition is only tenable under Islamic Rule
than in democracy, socialism or communism, therefore a return to Islamic
Khilafah system was advocated. It was further submitted that freedom of
religion in its international law conception is far from being
universal and remain the most contested freedom in view of its failure
to recognize other legal and cultural traditions, the Shariah in
particular. The findings reveal that rules of international law related
to freedom of religion are to a large extent, contradictory to those
found under the  Shari‟ah, it being the formulations of international
standards remain largely reminiscent of Western as well as
Judeo-Christian traditions to the exclusion of Islamic particularities.
Consequently, much of the current legal problems associated with
violations of freedom of religion in Western countries as well as by
Muslim majority countries are argued as being partly due to the existent
doctrinal incongruence between the two systems of laws. The study
concludes with the view that attainment of “universal” standards on
protection of freedom of religion is possible, only if the international
community appraises itself of the relevance of Shariah within
international human rights discourse as an alternative legal tradition.

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