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Reply - Justice Laurie Ackermann 221
be shown to be the natural and legitimate evolution of the cultural
tradition of the particular community.’ Although cultural norms have
complex origins, An-Na’im argues that ‘the religious factor seems to
be a major formative force.’ 9
John Rawls, in A theory of justice, develops a concept of
‘overlapping consensus’ which, although expressed in the context of
civil disobedience, is of general import and relevant to the use of
theological ethics:
In [certain previous] remarks I have assumed that in a nearly just society
there is a public acceptance of the same principles of justice.
Fortunately this assumption is stronger than is necessary. There can, in
fact, be considerable difference in citizens’ conception of justice
provided that these conceptions lead to similar political judgments. All
this is possible, since different premises can yield the same conclusion.
In this case there exists what we may refer to as overlapping rather then
strict consensus. 10
This idea is discussed more fully by Rawls in Political liberalism, 11
where he places the following gloss on the notion of an ‘overlapping
consensus’:
All those who affirm the political conception start from within their own
comprehensive view and draw on the religious, philosophical, and moral
grounds it provides. The fact that people affirm the same political
conception on these grounds does not make their affirming it less
religious, philosophical, or moral, as the case may be, since the grounds
sincerely held determine the nature of their affirmation. 12
9
n 8 above, 9. Lest I unwittingly do an injustice to An-Na’im, I must point out that
the whole thrust of his article, see eg pp. 17-18, is to the effect that:
(1) The status of non-Muslim religious minorities under Shari’ah is not
consistent with current universal human rights. (2) The current state of
affairs cannot be justified under claims of Islamic cultural relativism.
(3) It is not only possible, but also imperative, that the status of non-
Muslims under Shari’ah be reformed from within the fundamental sources
of Islam, namely the Qu’rn and Sunnah. Such reform would be at once
both Islamic and fully consistent with universal human rights standards.
Very broadly stated his argument (9-11) is that the Shari’ah is ‘not the totality of
the word of God.’ According to Muslim belief, ‘the Qu’rn is the literal and final
word of God while Sunnah is the record of what the Prophet is believed to have
said.’ While conceding (17) that not all aspects of Shari’ah are open to
restatement and reinterpretation, he does contend (10) that Shari’ah is no more
than the ‘understanding of the early Muslims of the sources of Islam’ influenced
by their historical context and ‘experience and perception of the world’. It
developed under the conditions and influenced by the problems of an Islamic
state in seventh century Arabia. Since these problems have altered and the
historical answers are no longer valid, An-Na’im argues (11) that ‘new answers
must be developed out of the Qu’rn and Sunnah ... [For] the Islamic Shari’ah for
today.’
10 (1973) 387.
11
(1993) 133-172.
12 n 11 above, 147.