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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