Al-Qalam 
[Vecteezy]
“REGULATED FREEDOM”
– Balancing Freedom, Not Denying It!
By Ambassador Ebrahim Rasool
In the previous three columns, as we work our way towards creating the foundations of what statecraft is possible for Muslims, we have engaged with the intents of Islamic law (Maqasid al Shariah), with its rights; the Prophet’s (s) inclusive citizenship in Medina; and the centrality of shura or consultation and the decisive role of popular consent in the succession by the four Caliphs. This article grapples with the idea of freedom. The critical question that confronts us today is whether freedom is absolute or absent in the Muslim lived experience?
If freedom is to exist for Muslims, is it libertarian – without limits – or limited? This was the debate I was part of at the Doha Discussions in 2013 between leading Muslim scholars and constitution writers during the Arab Spring, when I was a respondent to Dr Hashim Kamali.
In his paper entitled “Ethical Limits on Freedom of Expression with Special Reference to Islam” he cautiously accepts that Islam stands in agreement with the fundamental underpinnings of the Universal Declaration of Human Rights, and the acceptance that freedom of expression is critical to the self-image and dignity of individuals and communities and a pillar of democracy, but such acceptance of freedom is neither unconditional nor uncontested.
Dr Kamali recognizes other approaches and philosophies, from the extreme of the modernist / secular humanists that rely essentially on science, to the extreme of post-modernism that negates the validity of any metanarrative and, therefore, has no place for religion, and whether an Islamic perspective is open to a shared and common ethical framework crossing cultural and religious boundaries. This very debate may lead to an unintended observation that Muslims continue to have a troubled relationship with freedom and seek an exceptionalism allowing the benefit of theoretically supporting freedom, but on our own terms, thus circumventing the more uncomfortable aspects of freedom.
Ethical Limits to Freedom of Expression:
The Intra-Muslim diversity and difference is itself in need of freedom of expression, speech, association, and opinion, and therefore, the debate on the limitations thereof should never precede the debate on freedom itself. An emphasis primarily on the limitations to freedom may well justify the absence of freedom and the preponderance of authoritarianism. However, suspicion exists of an attempt at a global common code of ethics, transcending political and cultural boundaries by powerful nations to overwhelm the debate with a hegemonic perspective and a code of acceptance and behaviour that may be deemed anathema to Islam itself.
It is quite worthwhile to elicit some of the ethical precepts for the limitations on freedom from the Quran which admonishes: “God loves not the public utterance of evil or hurtful speech….”
From this is derived distinctions between defamation and slander; definitions of soul-destroying arguments and hostile disputations; and other matters that may require both limitation and obligation. Obligation in this instance would mean that we prioritize other people’s sensitivities and needs.
This is strengthened by an overarching ethical value that simply says: “Harm must be eliminated!” But then there is also a precept like Baghi, which, amongst others, includes a prohibition of disobedience of a lawful government that is not engaged in transgression and sin. Vigilance is certainly needed to navigate the thin line between freedom and authoritarianism.
‘Unfreedom’ – Pre-Destined by the Politics of Order
The general Muslim condition, as was the case with Apartheid South Africa, was a condition mired in authoritarianism, exclusion, and the surveillance state, but engineered by a twentieth century right-wing ideological paradigm reflecting approaches to freedom for the Third World. It can be identified as the Politics of Order with its primary objective being the containment of any freedom or rights by any means, with strong support for authoritarian and undemocratic leaders if they were able to ensure stability. Strong government was more important than democratic government.
Samuel Huntington, in his work, Political Order in Changing Societies, articulated it thus: “The most important political distinction among countries, concerns not their form of government but the degree of government.” Huntington coined the term “institutionalization” to describe his most important objective for the developing world: a preference for strong government structures able to ensure political stability and order through the institutions of the military, bureaucracy, and even vanguard single parties. Huntington justifies this by saying: “They may not provide liberty, but they do provide authority, they do create governments that govern.
“These societies were therefore at the mercy of authoritarian rulers, military involvement in civilian functions, and counterinsurgency operations. The politics of order meant nothing more than the complete limitation of all freedoms and remains the ground from which we debate the construction of freedom.
‘Regulated Freedom’
In helping to reframe the way rights and freedom can be thought of, the idea of “regulated freedom”, to use Foucault’s term, Wendy Brown suggests: “Freedom is neither a philosophical absolute nor a tangible entity but a relational and contextual practice that takes shape in opposition to whatever… is conceived as unfreedom.” Ebrahim Moosa clarifies this even more: “Every right has to be realized contextually, in tension with other rights and the rights of others….” No right or freedom is absolute if it violates other rights or freedoms or the rights or freedom of others.
But, if there is even the thought of having to limit or constrain or regulate freedom, it must proceed from the assertion of freedom and its existence in the first place. It cannot mimic the politics of order where the obsession is with the limitations and constraints on freedom, without granting freedom in the first instance.”
Lessons From South Africa
South Africa, in constructing a post-apartheid society, also grappled with the question of whether ethical limits should apply to, among others, freedom of speech. Why did a nation that fought for over 300 years for freedom, need to grapple with this freedom, interrogate it, and then place limitations on it?
Rights and freedoms are all included but can be ordered in priority commensurate with the most pressing deprivations: the SA Constitution and the Bill of Rights preceded the right to freedom of speech with, in the first instance, equality, followed by human dignity and the right to life. Freedom of religion, belief and opinion similarly went ahead of freedom of expression. This sequence was crucial in establishing a hierarchy so that, for example, South Africans have the right to freedom of expression, but not to denigrate the dignity and equality of anyone else.
In turn, Article 16 of the South African Bill of Rights dealing with Freedom of Expression has two sub paragraphs: the first one declares the positive right to freedom of expression, the press and freedom to receive or impart information or ideas; the right to artistic creativity; as well as academic and scientific freedom. The second subparagraph proceeds to place limitations on these freedoms: they do not extend to propaganda for war, incitement of violence, or advocacy of hatred based on race, ethnicity, gender, or religion. Neither does it allow for incitement to cause harm.
Statecraft
In our search for a Muslim Statecraft that incorporates freedom, democracy and human rights, and embed them in Muslim governance, we must start the debate, not with the limitations of freedom, but with the possibility of achieving freedom. This is counter-instinctive in a contemporary Muslim world where rulers and governments seek a higher authority for the exercise of their own authority and would want us to approach the debate from its limitations.
