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

A COMPARATIVE STUDY OF MODERN AND CUSTOMARY ARBITRATION IN NIGERIA
August 16, 2017
A COMPARATIVE ANALYSIS OF THE ENFORCEMENT OF FOREIGN JUDGMENT IN NIGERIA AND UNITED KINGDON: A CASE FOR CYBER JURISDICTION
August 16, 2017
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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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