Oxford Journal of Law and Religion, Vol. 2, No. 2 (2013), pp. 307329 doi:10.

1093/ojlr/rwt013 Published Advance Access June 7, 2013

The Clash of Unprovable Universalisms International Human Rights and Islamic Law
NEVILLE COX*
There is a tension between Islamic Law and International human rights law in that many supporters of the latter hold that human rights are universal in nature such that where Islamic law and International human rights law conflict, the former must, empirically be wrong (and justifiable only in the name of cultural relativism). Because Islamic law is seen by its followers as the law of God, however, it also has a claim to universal validity. Hence, the clash between Western and Islamic orthodoxy is of two universalisms neither of which can convincingly and empirically prove its own truth, such that either might in fact be true. An appreciation of this fact and of the normative underpinnings of the Islamic universalism enables Western observers better to understand aspects of Islamic law which clash with Western views of human rights.

1. Introduction
The relationship between what may broadly be termed mainstream international orthodoxy and what may again broadly be termed radical or fundamentalist Islamic orthodoxy is clearly a strained one. The events of 9/11 and the invasion of Iraq in 2003 as well as historical developments since the time of the Crusades no doubt have something to do with this, but at its heart there is something more fundamental still which explains the tension between the competing ideological visions,1 namely that many people who subscribe to mainstream international moral orthodoxy (as expressed in the language of International human rights) regard the traditional approach of Islamic law and Muslim communities to certain ethical and social issues as primitive and consequently wrong. At a macro level, these largely Western observers dislike the notion of Islamism2 (somewhat simplistically the view that in a Muslim state
* Associate Professor of Law Trinity College Dublin. E-mail: ncox@tcd.ie. I am grateful to Professor Rosemary Byrne, Matthew Shearer, Professor Oran Doyle and Hannah OFarrell for their very helpful comments and insights. 1 K Armstrong, Holy War: the Crusades and their Impact on Todays World (Macmillan 1988); E Said, Covering Islam (Routledge and Kegan Paul 1981); B Lewis, The Crisis of Islam (The Modern Library 2003); J Esposito Islam the Straight Path (3rd edn, OUP 2010) 20. 2 AH Ali, It is Time to Banish Wishful Thinking about Islamism, ft.com (8 February 2012) <http://www.ft. com/cms/s/0/ba0e4e5a-524a-11e1-9f55-00144feaJ.bdc0.html#axzz21SKyA15Q> accessed 1 July 2012; JM Owen IV, Why Islamism is Winning The New York Times (6 January 2012). The Author 2013. Published by Oxford University Press. All rights reserved. For Permissions, please email: journals.permissions@oup.com

308

Oxford Journal of Law and Religion

the law should embody the rules and values contained in sharia law)3 and believe that the theocratic governments in places such as Iran4 and Saudi Arabia ideally should be replaced by political systems run on broad egalitarian and democratic lines. Thus much of the Western and broader international reaction to the Arab Spring of 2011 was one of celebration not merely because three corrupt (and in one case tyrannical) regimes were overthrown, but, at a deeper normative level, because it was felt that a new political system would emerge which would be more in line with mainstream international views of equality and democracy.5 On a micro level the Western view of the wrongness of Islamic law and Islamic thinking covers, for example, the reaction of Muslims to the publication of blasphemy (be it blasphemous cartoons in a Danish newspaper,6 Salman Rushdies The Satanic Verses7 or more recently the film Innocence of Muslims8 or the notion of defamation of religion9) which is seen as violating cherished rights of freedom of expression. It also covers the approach of Islamic law to the question of whether men and women have separate defined roles within marriage which is seen as impinging upon (universally) correct standards of freedom and equality10 and a great deal more beside. We will consider such issues later but it is worth noting that in such instances the Western reaction is not that the Islamic value merely conflicts with the Western value and hence seems wrong but that in as much as the Western value is sincerely believed to be universally right, therefore as a result the Islamic value must, by definition be (objectively and universally) wrong. Furthermore, in many such cases the clash is between mainstream international values and a comparatively orthodox (albeit traditional) interpretation of Islamic lawas
3 GP Makris, Islam in the Middle East (Blackwell Publishing 2007), J Calvert, Sayyid Qutb and the Origins of Radical Islamism (Hurst and Co 2010) and RC Martin and A Barzegar (eds), Islamism: Contested Perspectives on Political Islam (Stanford University Press 2009). 4 AA Van Engeland, Human Rights Strategies to avoid Fragmentation of International Law as Threat to Peace (20102011) 5 Interdisc J Hum Rts L 25. 5 FG Gause III, Why Middle East Studies Missed the Arab Spring: The Myth of Authoritarian Stability (2011) 90 Foreign Aff 81; F Ajami, The Arab Spring at One: A Year of Living Dangerously (2012) 91 Foreign Aff 56. It is notable that many Western commentators highlighted the (exaggerated) reports that social networking tools such as Facebook and Twitter had played a part in bringing about the seismic developments in 2011 which seemed to indicate that modern Western style factors were used to help transform a legal system which was allegedly archaic and objectively unacceptablealbeit that in fact certainly in Tunisia and Egypt no such radical transformation has occurred. S Joseph, Social Media, Political Change & Human Rights (2012) 35 BC Intl & Comp L Rev 145; E Morozv, Facebook & Twitter are Just Places Revolutionaries Go The Guardian (7 March 2011). 6 R Kahn, Flemming Rose, the Danish Cartoon Controversy and the New European Freedom of Speech(20092010) 40 Cal W Intl LJ 253; CP Foster, Prophets, Cartoons and Legal Norms: Rethinking the United Nations Defamation of Religion Provisions (2009) 48 J Cath Leg Stud 19. 7 MM Ahsan and AR Kidwai (eds), Sacrilege Versus Civility: Muslim Perspectives in the Salman Rushdie Controversy, (Markfield Islamic Foundation 1993). For Western reaction to the Islamic reaction, see A Anthony, How one Book Ignited a Culture War Observer (London 11 July 2009). 8 P Bradshaw, Innocence of Muslims: a Dark Demonstration of the Power of Film The Guardian (London 17 September2012); R Mackey and C Stack, Obscure Film Mocking Muslim Prophet Sparks Anti-U.S. Protests in Egypt and Libya The New York Times (11 September 2012). 9 R Blitt, The Challenge of Defamation of Religion (20102011) 9 NW UJ Intl Hum Rts 1; LB Graham, Defamation of Religions: The end of Pluralism? (2009) 23 Emory Intl L Rev 69; L Leo, F Gaer and E Cassidy, Protecting Religions from Defamation: A Threat to Universal Human Rights Standards (2011) 34 Harv J L & Pub Poly 769; P Danchin, Defaming Muhammad: Dignity, Harm and Incitement to Religious Hatred (2010) 2 Duke FL & Soc Change 5. 10 C Joppke, Veil: Mirror of Identity (Polity Press 2009); S Mullally, Civic Integration, Migrant Women and the Veil: At the Limits of Rights (2011) 74(1) Modern L Rev 2756 at 30.

The Clash of Unprovable Universalisms

309

distinct from that emerging from, for example Al-Qaeda. In other words, international and especially Western observers regard aspects of traditional or textual Islamic law as violating universally applicable principles.11 The converse of this, however, is also true. Many Islamic observers regard aspects of contemporary Western culture as being repugnant to universally applicable principles.12 Thus there is a view that the liberalism which characterizes Western society is simply a legitimization of licentiousness leading to unhappy consequences (unwanted pregnancies, the spread of sexually transmitted diseases, widespread criminality13 and so on) which are indicative of the flawed nature of the ideology. Less obviously, however, as we shall see, there is also an Islamic view that the Western-led obsession with rights can lead to a dysfunctional society whose members are focused on their own interests rather than the common good and misunderstand the role and nature of authority, government and law. At a legal or quasi legal level, this clash of ideological visions occurs most dramatically where traditional interpretations of Islamic law and contemporary views of international human rights law seem to collide.14 This is for a number of reasons but especially because of the utterly foundational nature of the two laws in so far as the respective communities are concerned. Thus, international human rights law has a formative impact on the public moralities of many secularized Western states, and the vision which underpins it is presented as a universally applicable standard by which fundamental and universal questions of right and wrong can be answered in those societies. On the other hand, for a devout and especially a fundamentalist Muslim it is only the law of God, as laid down in the sharia, which can represent such a standard. Hence if a provision or an interpretation of sharia law conflicts with an aspect of international human rights law (for example, on the question of whether it is legitimate to say that men and women have different roles and functions in society), the mainstream Western observer and the mainstream Muslim will both claim that their approach is right and the others approach is wrong and by that they will mean universally wrong and not merely locally or culturally unacceptable. This is not of course to say that Islamic states (or Muslims generally) are inherently ill disposed towards the notion of rights15nor indeed that there are not many Muslim commentators who would endorse a Western view of rights. Most of the 57 member states of the Organization of Islamic Cooperation are also signatories of the main International Human Rights Treaties,16 including
11 HM Khan, Nothing is Written: Fundamentalism, Revivalism, Reformism and the Fate of Islamic Law (20022003) 24 Mich J Intl L 273 at 278. 12 B Stakelbeck, The Tehran Initiative: Destroying the Great Satan, at <http://www.cbn.com/cbnnews/ world/2011/October/The-Tehran-Initiative-Destroying-the-Great-Satan/> accessed 30 July 2012. 13 S Qutb, Milestones (American trust c 1990). 14 J Temperman, Freedom of Expression and Religious Sensitivities in Pluralist Societies: Facing the Challenge of Extreme Speech (2011) BYU L Rev 729. 15 A An-Naim, Civil Rights in the Islamic Constitutional Tradition: Shared Ideals and Divergent Regimes (19911992) 25 J Marshall L Rev 267 and N Moosa, Human Rights in Islam (1998) 14 S Afr J Hum Rts 506. 16 M Baderin, A Macroscopic Analysis of the Practice of Muslim State Parties to International Human Rights Treaties: Conflict or Congruence? (2001) 1 Hum Rts L Rev 265 at 269. A An-Naim, Islam and Human Rights (Baderin ed, Ashgate Publishing Company 2010); N Abiad, Sharia, Muslim States and International Human Rights Treaty Obligations: A Comparative Study (British Institute of International and Comparative Law

310

Oxford Journal of Law and Religion

the ICCPR and CEDAW,17 albeit often on the basis of reservations in respect of various clauses of these treaties, in particular where the treatment of women is concerned.18 Pivotally, however, Muslim states and individual Muslims will often contend that they do endorse a broad view of human rights, but do not support the manner in which this broad concept has been developed in a very detailed fashion by legislatures, courts and other entities that have no connection with the Islamic vision. More importantly, whereas the mainstream Western view is that the International Bill of Rights encapsulates a universally applicable moral vision, the traditional Islamic view sees it as being universally correct only because and when it is consistent with its universal morality (the law of God). The primary submission of this article is that the most appropriate way to view this clash between mainstream international human rights law and traditionalist Islamic law is neither as a battle between a universally applicable and self-evidently correct international vision and an intransigent and fundamentalist (and generally despotic) enemy (Islam) nor even as a situation where there is a clear universal norm (human rights law) from which a particular system (Islamic law) is derogating for cultural reasons.19 Rather it is a clash of two fundamentalisms (that is to say, world views which are held to be so fundamental by their supporters that any move away from them is inherently unacceptable), both of which profess the universal20 truth of their most basic propositions21 and are challenged by and challenge the other. It is further submitted that, for different reasons, the universal truth of both fundamentalisms is empirically unprovablean inevitable consequence of the fact that they are moral rather than factual propositions. Hence either or neither (or possibly both) of them may be consistent with universal truth, if such an elusive concept exists at all. As a result, supporters of either ideology cannot proclaim their truth as a scientist might proclaim the truth of the law of gravity, but instead must operate largely on a kind of faitha proposition which is obvious in the context of a religious belief but far less so in the context of an ideology which eschews religion. Recognition of this fact is potentially hugely important in seeking to improve relations between Islam and the West

2008); M Baderin, Establishing Areas of Common Ground between Islamic Law and International Human Rights (2001) 5(2) Int J Hum Rts 72. 17 Exceptions include Iran, Palestine, Saudi Arabia, Sudan, Somalia, Oman, United Arab Emirates and Maldives, who are not parties to one or other of the ICCPR or CEDAW. M Baderin, A Macroscopic Analysis of the Practice of Muslim State Parties to International Human Rights Treaties: Conflict or Congruence? (2001) 1 Hum Rts L Rev 265 and M Baderin, Identifying Possible Mechanisms within Islamic Law for the Promotion and Protection of Human Rights in Muslim States (2004) 22/23 NQHR 329. 18 See C Warren Lifting the Veil: Women and Islamic Law 15 Cardozo JL & Gender 33 (20082009) 34 and Bharathi Anandhi Venkatraman, Islamic States and the United Nations Convention on the Elimination of all Forms of Discrimination Against Women: Are the Sharia and the Convention Compatible (19941995) 44 Am U L Rev 1949 at 1961ff. See also N Moosa (n 15) 511. 19 J Morgan-Foster, A New Perspective on the Universality Debate: Reverse Moderate Relativism in the Islamic Context (2003) 10 Int L Stud Assoc J Int Comp L 35. 20 For the difference between universality and universalism in this context see M Baderin, A Macroscopic Analysis of the Practice of Muslim State Parties to International Human Rights Treaties: Conflict or Congruence? (2001) 1 Hum Rts L Rev 265 at 266 n.5. 21 J White, Mohammed and Madison: A comparison of the Quran and the US Constitution (20012002) 11 J Transnatl L and Poly 309.

The Clash of Unprovable Universalisms

311

in that a simplistic assumption that the other is wrong with no effort to appreciate his or her motivations or sincerity can only lead to antagonism. In the first and second parts of this article, we consider the nature of the two orthodoxies focusing inter alia on how the grounding norms on which they are based lead to divergent attitudes towards law and the priorities for law22 and on the significance of the fact that the claim to universal validity made by supporters of both is susceptible neither to factual proof nor dis-proof. In the third part, and by use of three examples, I assess how an appreciation of this logic may enable a non-Islamic observer better to understand the reasoning behind certain aspects of Islamic law which might otherwise seem evil or tyrannical. One final point should be made by way of introduction. It hardly needs to be pointed out that any effort to find a single Western view let alone an international view on a particular human rights issue must inevitably be fruitless because there will likely be a myriad of views even within Western society, on such matterswith topics such as the death penalty or abortion evidencing this fact. Similarly, however, there is no such thing as a single Islamic view on most legal issues. This is largely because whereas there may be definite textual rules laid down in the Quran and whereas there may be broad agreement that these rules come directly from God, equally there are a range of interpretations of these rules. Furthermore, cultural forces impact here too and there are many Muslim commentators who would entirely endorse the mainstream international view of human rights law and would wish to see a reinterpretation of sharia law to render it consistent therewith. My focus, however, is on those situations where international standards and Islamic law are generally taken to collide, and hence inevitably my concern is with radical or fundamentalist Islam, which supports a traditional interpretation of the law and would entirely reject the proposition that it should be reinterpreted for the purposes of trying to allow it to elide with something flawed and man-made (the international human rights consensus). Accordingly when I speak of international orthodoxy and traditional Islamic orthodoxy I am essentially referencing a commonality that must, of necessity, operate at a minimalist level. This is discussed in the sections that follow, but for now suffice it to say that I see those who subscribe to the international orthodoxy as believing in the centrality and universal applicability of the concept of human rights and of various specific human rights (and, increasingly, as agreeing on what these rights mean in practice).23 I would further see those who subscribe to traditional Islamic orthodoxy as believing in the existence of God, in the fact that God has revealed His law completely through the L Prophet Muhammad and in the central proposition that this law is, consequently, perfect and unchangeable. Moreover, I do so while well aware that within the two orthodoxies there will be persons who simply do not or cannot subscribe even to these beliefs.
22 23

R Glenn, Legal Traditions of the World (4th edn, OUP 2010) 205ff. For the impact of Western orthodoxy on the International human rights model see M Glendon, A World Made New (Random House and Hi Marketing 2003).

312

Oxford Journal of Law and Religion

2. Universalism and International Orthodoxy

It is difficult of course to make any kind of claim that there is an orthodox view within the international community that international human rights are universal in nature. Thus, the proposition within the preambles to most international human rights treaties that the rights contained therein are universal must contend, with the claim of the positivist that law is law merely because it is prescribed as such in a particular jurisdiction24 and with the claim of the cultural relativist that any transcendent force that rights may have in a jurisdiction must be local in nature and the product of the cultural and moral history of the relevant jurisdiction.25 Furthermore, persons who support the basic universalist claim may disagree as to whether a particular right (or indeed a restriction on a right) flows from this universal source.26 Despite this, I would suggest that it is possible to trace a very widespread orthodox international view (Western in nature) which, albeit at a minimalist level, regards certain aspects of modern international human rights law as having universal applicability and universal validity. Such a view integrates around three related normative propositions and leads to the conclusion that all human beings, as individuals are entitled to certain rights and that a state which does not recognize and protect such rights must, in consequence and as a matter of universal truth, be a morally bad one.

A. Rights as a Prize for Membership of the Human Rights

The first proposition is that, for whatever reason, rights are the possession of all individual humans, wherever they are born. Thus, the preambles to both the UDHR and the ICCPR state that recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world. Moreover, the preamble to the ICCPR recognizes that these rights derive from the inherent dignity of the human person and Article 1 of the UDHR provides that all human beings are born free and equal in dignity and rights. Similarly, the American Declaration of Independence refers to what it terms the self evident truths that all men are created equal, but it explains this further by stating that they are endowed by their creator with certain inalienable rights. These statements reflect an implicit view that human rights are not only enjoyed by humans whose governments protect them but by all humans, in all times and in all places.
24 This concept is famously associated with Jeremy Benthams criticism of the language of natural rights as used in the French Declaration on the Rights of Man as being nonsense upon stilts. See for analysis A PerreauSaussine, Bentham and the Boot-Strappers of Jurisprudence: the Moral Commitments of a Rational Legal Positivist (2004) 63(2) Cambridge L J 346; P Scholfield Jeremy Benthams Nonsense Upon Stilts (2003) 15(1) Utilitas 1; D Lieberman, Benthams Democracy (2008) 28(3) OJLR 605 and H Bedau, Anarchical Fallacies: Benthams Attack on Human Rights (2000) 22 Hum Rts Q 261.; 25 S Lai and R Ralph, Female Sexual Autonomy and Human Rights (1995) 8 Harv Hum Rts J 202; J Tilley, Cultural Relativism (2000) 22 Hum Rts Q 501; G Binder, Cultural Relativism and Cultural Imperialism in Human Rights Law (1999) 5 Buff Hum Rights L Rev 211; J Donnelly, Cultural Relativism and Universal Human Rights (1984) 6 Hum Rights Q 400. For a response see M Perry, Are Human Rights Universal? The Relativist Challenge and Related Matters (1997) Hum Rts Quart 461. 26 M Glendon, Rights Talk: The Impoverishment of Political Discourse (The Free Press 1991).

The Clash of Unprovable Universalisms

313

This is a highly popular view within the West. Thus when we read of a woman being sentenced to death by stoning for adultery in Nigeria,27 we do not merely regard this as an unhappy event in a foreign country and are glad that we do not live there, we see it as something which should not happen (irrespective of its lawfulness in Nigeria) because it violates the rights of the woman in question. That this viewpoint is reflective of a broad international moral commonality is evidenced both by the fact that it is a proposition to which a vast number of commentators and people generally subscribe,28 but also in the extent to which it is upheld by a global organization like the United Nations29 and in a myriad of regional human rights treaties.

B. The Inherent Rightness of Rights

The second proposition is the related one that there are certain very broad elements of human rights law which are regarded as being so basic and so inherently morally right that any contravention thereof must (by definition) be wrong irrespective of when or where it happens. In other words, whereas there is disagreement among Western or indeed international observers as to the precise content of the law which flows from the universal nature of rights (whether for example a right to liberty or privacy or equality must translate into a principle that same sex couples should be allowed to marry), there is agreement that the denial of certain basic liberties to any human being is universally unacceptable.

C. The Individual as the Rights Possessor

The final related proposition is that it is the individual who is the possessor of these rights and that [s]he is an entity whose distinct individuality must be respected and vindicated by his or her state.30 Such a concern with individual liberty or individual dignity is deep rooted within Western legal philosophy and owes much, for example, to the period of enlightenment as well as the underlying motivations behind the American and French revolutions, but quite naturally a horror at the extent to which the forces of Nazi Germany subverted this principle gave it fresh impetus in the years following the end of the second world warthe years in which the International Bill of Rights and other equivalent documents were being drafted.

27 G Weimann, Judicial Practice in Islamic Criminal Law in Nigeria a Tentative Overview (2007) 14 Islamic L Soc 240. 28 N Khouri, Human Rights and Islam: Lessons from Amina Lawal and Mukhtar Mai (2007) 8 Geo J Gender & L 93; A Quaraishi, What if Sharia werent the Enemy: Rethinking International Womens Rights Advocacy on Islamic Law (2011) 22 Colum J Gender & L 173. 29 See generally on this P Steiner, R Alston and H Goodman, International Human Rights in Context 3rd ed (Oxford University press, 2008) 1243ff. 30 As K Schooley puts it, Liberalisms belief in the individual conflicts with the Islamic understanding of identity as dependent upon ones relationship to God and to the community. See Kimberley Younce Schooley, Cultural Sovereignty, Islam and Human Rights Toward a Communitarian Revision (19941995) 25 Cumb L Rev 651 at 694.

314

Oxford Journal of Law and Religion

3. The Source of the Western Universalism and the Problem of Unprovability

Assuming that it is the case that at some minimalist level we can discern an orthodox international view that as a matter of universal truth (rather than mere positivist endorsement by states) all humans, as individuals are entitled to certain rights, the far more difficult question arises as to why this should be the case.31 Put another way, unless the claim of supporters of the universality of rights is merely rhetorical or, worse, merely self-promotional, there must be some available universal standard by which this claim to universal validity can be testedone which might convince, for example, a traditionalist Muslim who endorses an understanding of Islamic law that conflicts with the international norm.32 A number of purported sources for the universality of human rights have been suggested of which three are of particular importance. Significantly, however, whereas any of them may ground the universality of rights none can be empirically proved to do so.

A. Rights and Religion

The first is the suggestion championed by, for example, Michael Perry that unless one factors God or religion into the equation (for example by saying that, as entities created by God, humans are inherently worthy of status) there is no basis for a universalist concept of rights.33 This is on one level a highly satisfying proposition (and as we shall see it is the basis for the whole Islamic universalism) in that by definition an omniscient and omnipotent God who created the universe must be universal in nature and if He is the source of rights, they must be universal. On the other hand, there are three obvious difficulties with this theory. First, it is of no value if one does not believe in such a God and of no argumentative value when dealing with a non-believer. Secondly, to the extent that the existence of God can neither be empirically proven nor disproven, this ground for claiming that rights are universal is itself also empirically unprovable. Finally, from a Judaeo-Christian standpoint (though not, as we shall see, from an Islamic standpoint) there is also the difficulty that even if God does exist, there is considerable uncertainty as to what is His will in a given area or whether particular rights (or the concept of rights) exist as a result.

B. Rights and the Human Condition

An alternative viewmore popular in contemporary times and reflected in the International Bill of Rightsis that the universalist source of human rights is the inherent and equal status, dignity and value of each human being, such that simply by virtue of being a human (and with no further metaphysical
31 K Miller, Human Rights of Women in Iran: The Universalist Approach and the Relativist Response (1996) 10 Emory Intl L Rev 779. 32 For the view that there is no particular need to find any objectively verifiable source for rights see R Rorty, Michael J, Objectivity, Relativism and Truth (CUP 1991). 33 M Perry, Is the Idea of Human Rights Ineliminably Religious? (19921993) 27 U Rich L Rev 1023.

The Clash of Unprovable Universalisms

315

grounding) one is possessed of certain rights.34 The upside of this theory is that of course one does not need to believe in anything as invisible as God to subscribe to it. The obvious downside, however, is that if this theory is to be convincing there must surely be some convincing justification offered as to why ones status as a human means that as a matter of universal truth one is entitled to certain rights; yet no such justification is available which would convince someone who does not accept the current (Western) view of rights. Indeed there is something unconvincingly rhetorical about the language of the preambles to the UDHR and the ICCPR for example which leaves them open to Benthams accusation that they may be nonsense upon stilts. Furthermore, even if one does acquire a measure of dignity by reason of ones birth, it is by no means clear why this should mean that one is necessarily possessed of individual rights of the kind listed in the International Bill of Rights. This is not to say that the human condition is not the basis of rights as a matter of universal truthit may very well be so. But to the extent that it cannot be tested against such truth (because, once again, that truth is undiscoverable) it cannot be proved to be so to the satisfaction of people who subscribe to a conflicting ideology,35 and hence for such people the Western claim to the universal applicability of its understanding of human rights may appear both arrogant and hollow.

C. Rights, Commonality and Global Application

A third and more concrete proposition is that there are certain core moral principles or rules in respect of which there is virtual global agreement, such that these principles thereby become de facto universal (or at least global). This approach sees the universality of rights as being a fundamentally positivist or statistical thingstemming not from any metaphysical source but simply reflecting the reality of the situation in so far as rights are concerned. Whereas this theory arguably most convincingly explains the concept of universal human rights in the 21st century, equally it does throw up a number of difficulties. First, presumably if one locates the universality of such principles in the fact of their global application, they lose this universality if they do not have such global support. In other words (on this basis), the enslavement of people with black skins in previous centuries did not offend against any universal principles because of the widespread fact of slavery and quasi humanization of such persons at the time. Hence, there is something unsatisfying about the fact that the universalism is located in the support that exists for the principle rather than in the principle itself.

34 This is, for example, the view which emerges from Ronald Dworkins Lifes Dominion (Harper Collins 1993) and which is challenged by Professor M Perry (n. 33). It is also arguably the view which flows from the preambles to the International Bill of Rights. 35 M Perry (n. 33), The Morality of Human Rights: A Nonreligious Ground (2005) 54 Emory L J 98 and (2005) 27 DULJ (ns) 28. For a response see Schapiro, The Consequences of Human Rights Foundationalism (2005) 54 Emory LJ 171.

316

Oxford Journal of Law and Religion

Secondly, it must be accepted that there will be relatively few rights-based principles commanding such global support and certainly that the very detailed nature of the myriad of human rights treaties cannot be explained in this way. In particular, if the universalism of a principle derives merely from the extent of its applicability then the fact that many Muslims do not support the grounding ideology of the International Bill of Rights would strongly suggest that the concept of individual rights is not universal in this sense. Thirdly, whether or not the proposition that certain norms are universal because of global consensus is true, it certainly was not the understanding of universality on which the founders of the international human rights movement operated in that the Universal Declaration of Human Rights proclaimed the universality of its principles prior to being globally accepted. Furthermore, it must be remembered that at the time of the original UN San Francisco Conference and the coming into being of the United Nations as well as at the time of the drafting of the UDHR, there was no genuine effort to include minority ethnic and religious groups with competing ideologies in the ongoing process of globalization.36 Indeed many modern-day Islamic nations (most obviously in Africa) were, at the time, still colonized.37 Moreover whereas there was more of an effort to include the views of, for example, Arab diplomats in the drafting of later human rights treaties such as the ICCPR, nonetheless it is very strongly arguable that genuinely dissenting views were not taken on board in any meaningful way. In other words, the concept of global commonality if it was relevant at all in the early days of the international human rights movement can only have been relevant in an unrealistic and idealized fashion. It was the cart of the human rights movement which went before the horse of commonality, albeit that any emerging commonality in this area influenced and influences the development of International human rights law. Finally, and most importantly, whether or not any basic moral norms exist which genuinely command global endorsement,38 it is far more difficult to conclude that there is a global consensus that these norms should be translated into law or, in particular, that they should be translated into law using the language of rights. Indeed the Muslim approach to the issueto give effect to such principles more through the language of duties than the language of rights or indeed to protect rights subject to the overarching authority of the lawis demonstrative of this fact.

4. The Detailed Nature of the International Universalism

It is curious that despite the difficulties in establishing and proving a universal basis even for the concept of rights, the international community also endorses two yet more difficult propositions, namely (i) that specific rights (with specific, distinct and detailed meanings) exist and are also of universal applicability and
36 M Glendon, The Forgotten Crucible: The Latin American Influence on the Universal Human Rights Idea (2003) 16 Harv Hum Rts J 27; Watlz, Universal Human Rights; The Contribution of Muslim States (2004) 26 Hum Rts Q 799. 37 N Moosa (n 15) 513. 38 CS Lewis, Mere Christianity (Collins Fount Paperbacks 1952).

The Clash of Unprovable Universalisms

317

validity39 and (ii) that there are universally acceptable and unacceptable principles as to when a state may legitimately restrict such rights. So for example, it is argued that where an Islamic state prohibits apostasy (riddah) or suggests that men and women have different roles within marriage, this is universally unacceptablein the first case because it constitutes an impermissible restriction on religious freedom and in the second because it goes against the Western understanding of the nature of the right to equality.40 The universalist claim of international human rights law as it is raised against Islamic law is thus an odd one. It claims to cover a great dealnot merely the basic concept of human rights (with which, as we shall see, Islamic states are broadly in agreement) but also a particular view as to the nature of individual rights and a view that to the extent that Islam does not support these rights it must be wrong. But it grounds this claim on remarkably shaky foundations and aside from amorphous references to the concept of humanity which are presented as (but are not) self-explanatory, it simply guarantees its own universality in the face of concerted opposition to its terms from different culturesand most tellingly in the 21st century, from Islamic culture.41 As shall now be contended, however, the Islamic claim to the universal applicability of its key principles is just as forceful and just as deeply held (albeit on equally unprovable grounds) as its Western counterpart. It is to this claim that we now turn.

5. Universalism and Orthodox Islamic Thought

We have previously seen that there are obvious flaws in speaking glibly of a Western orthodoxy or an international orthodoxy. Equally, as was mentioned earlier, it is completely fallacious to speak of an Islamic orthodoxy42 as if all Muslims thought the same on all issuesboth issues of principle43 and issues of detail. In fact, the nature of Islamic law means that it is open to a variety of different interpretationsand some of these Interpretations will render Islamic law far more compatible with international human rights law than others. To the extent that this article is focusing on ideological clashes between mainstream international thought and Islamic law, however, my focus
39 As M Baderin notes, it is not so much the universality or concept of human rights that is objectionable for Islamic states but rather its supposed universalism, that is to say, the manner in which Western orthodoxy has interpreted or distilled principles from the human rights ideal. See Baderin, A Macroscopic Analysis of the Practice of Muslim State Parties to International human rights Treaties: Conflict or Congruence? (2001) 1 Hum Rts L Rev 265 at 266. Baderin posits the view (at 267) that in fact, a greater level of regard for the Islamic point of view would actually enhance the notion of universalism within human rights. 40 GJ Weimann, Judicial Practice in Islamic Criminal Law in Nigeria a Tentative Overview (2007) 14 Islamic L Soc 240. 41 M Baderin, A Macroscopic Analysis of the Practice of Muslim State Parties to International Human Rights Treaties: Conflict or Congruence? (2001) 1 Hum Rts L Rev 265 at 303 suggests that in dealing with Islamic states, International human rights bodies should adopt an approach akin to the European Court of Human Rights margin of appreciation doctrine. 42 T Sonn, Islam A Brief History (2nd edn, Wiley-Blackwell 2010); WB Hallaq, An Introduction to Islamic Law (CUP 2009); R Ahdar and N Aroney (eds), Sharia in the West (OUP 2010). 43 There is, for example, no genuine consensus among Muslims in respect of the Islamist proposition that Islamic law should have some role to play in the governance of a Muslim state. GP Makris, Islam in the Middle East (Blackwell Publishing 2007); J Calvert, Sayyid Qutb and the Origins of Radical Islamism (Hurst and Co 2010) and R Martin and A Barzegar (eds), Islamism: Contested Perspectives on Political Islam (Stanford University Press 2009).

318

Oxford Journal of Law and Religion

is not on the views of scholars like Abdullah An-Naim who would favour a modernizing interpretation of Islamic law in order to render it compatible with Islamic orthodoxy. Rather it is on the approach of those who endorse a more traditionalist not to say fundamentalist view of the law which is at odds (on occasion) with the Western or international orthodoxy. Even among such persons there will be widespread differences in interpretation of the law, hence in speaking of an orthodox (and traditional) Islamic view, I am operating very much at a lowest common denominator level and with five basic propositions in mind.

A. The Existence of God and the Divine Law

First, is the proposition that there is a God who has sovereignty over the entire universe. Any temporal power exercised by humans (including secular power) is ultimately as a matter of what God has authorized (Tauheed).44 Moreover, through the various sources of law discussed below, God has revealed His truth or law, in a comprehensive and comprehensible fashion, such that that law, which regulates the totality of human behaviour and societal governance, has not merely a universalist source but a divinely universalist source.45 Furthermore, being sourced in God it is its own grounds for universal authority such that whereas Western human rights codes need to look beyond their own terms to find their purported source of universal legitimacy, sharia law is inherently self contained and objectively and universally self-legitimizing.

B. The Perfect Law

Secondly, there is the proposition that as a result, the law must unshakably be true, even where it seems (in the eyes of individual observers) to be cruel or unjust. After all, fallible humans cannot be expected to understand the mind of God, and hence if an aspect of His law appears unjust, that is simply because the human has an infantile or incomplete understanding of universal justice or has been corrupted by the world. Thus rather than presume to criticize the law, the human should simply study it more deeply in order that his or her finite mind may more accurately pinpoint and comprehend (in so far as this is possible) the mind of God.46

C. The Relationship between God and Individual

Thirdly, there is the proposition that for Muslims, the relationship between individual and state is merely a context in which a far greater and more
44 TH Jillani, Democracy and Islam: An Odyssey in Braving the Twenty-First Century (2006) BYU L Rev 727 and Khaled Abou El Fadl, Islam and the Challenge of Democratic Commitment (2003) 27 Fordham Intl LJ 4. 45 J Schacht, An Introduction to Islamic Law (Oxford Clarendon Press 1965); W Hallaq, Authority, Continuity and Change in Islamic law (CUP 2001); W Haqq, Islamic Law: An Overview of its Origins and Elements (2002) J Islamic L & Culture 27; HH Hassan, The Sources of Islamic Law (1982) 76 Am Socy Intl L Proc 65; F Vogel, An Introduction to the Law of the Islamic World (2003) 31 Intl J Legal Info 353; M Khadurri, Nature and Sources of Islamic Law (19531954) 22 Geo Wash L Rev 3. 46 R Glenn (n 22) 209 states that where an aspect of the law becomes incomprehensible this is essentially your problem, not Gods.

The Clash of Unprovable Universalisms

319

important relationship operatesnamely the relationship between individual and God (and to a lesser extent, between the individual and the Islamic community). In other words, sharia law does not actually need a state to enforce it because it is ultimately a matter between the devotee and God.

D. The Importance of Submission

The fact that the law comes directly from God has another pivotal consequence which goes to the heart of rights language. After all the religious devotee is properly to be found on his or her knees submitting to what God ordains rather than asserting his or her individual importance (and Islam literally means submission). Naturally this is, however, in the individuals best interests because God wishes the very best for his children, and in his law is the route to happiness (thus sharia means the path to a watering hole).47 Thus both as a matter of what is appropriate and also in the furtherance of his or her best interests, the individual should not seek to be an independent actor who can and should attempt to forge his or her own destiny or assert him or herself in the face of the law, but should instead follow the roadmap prepared by God and leading to paradise. Moreover in doing so, [s]he should derive her significance (and will be cherished) as a member of the community (umma) and a child of God. Logically this means that the priorities for Islamic law will differ from the priorities for the kind of law which operates within a secularized Western system. Whereas the latter seeks to assert the importance of the individuals entitlements against both the law and the state (and does so to protect the interests of the individual), the former seeks to generate a society in which the law (and thus God who gave the law) is respected and the collectivethat is to say the Islamic communityis enhanced (and the individual is cherished as a member of the collective and a child of God). What is key for the traditionalist Muslim is that the law should be obeyed rather than challenged. First because, inasmuch as the law comes from God who has granted temporal authority to the state, an over emphasis on the entitlements of the individual as against the law has the unacceptable consequence of pitting the individual directly against God48 and is therefore irreverent in the extreme. Secondly, it is counterproductive for the individual to assert himself against the law in that it represents the way of God, which is the way to peace and fulfilment.

E. The Role of Rational Thought in Relation to the Law

Finally, as a basic proposition it may be suggested that there is a very specific role for rational thought or reasoning (ray) in so far as traditional Islamic law is concerned, namely that humans should apply their minds not to improving the law but to seeing how best to submit to it. This is not surprising of course. After all, something is not simply rational or irrational; rather its rationality
JL Esposito, Islam the Straight Path (3rd edn, OUP 2010). As K Schooley puts it, Islams communal structure is antithetical to the Western belief in individual rights. Schooley (n 30) 666.
48 47

320

Oxford Journal of Law and Religion

depends on the intuitive starting point from which the actor proceeds, and actions which appear rational to persons who come from a particular intuitive starting point will appear profoundly irrational to persons who do not. The intuitive starting point for a devout Muslim is that the law is perfect, and hence it is perfectly rational to conclude that humans should be in the business of obeying rather than improving it. This fact explains a good deal about the difference between the approach of traditional Islamic thought and that of the West to a range of different issues. Thus we can say as a generalization that the intuitive view within Western culture is that the role of law is not to claim some sort of inherent immutable perfectness, but rather to fit the needs of society and, in doing so, to serve to bring about an accepted view of justice in which the individual is, ultimately, paramount. Rationally, thus, the law should be just and modern and should respond to the needs of society, and if it fails to do so, it should be amended or repealed. Rational analysis from legal scholars in the West therefore tests the law by reference to these normative values, points out where the law is deficient and suggests reform. On the other hand, as we have seen, within Islamic law, the intuitive starting point is that the law is perfect, entirely comprehensive and unchanging and, being the product of Divine revelation, deserves reverence and submission from humans, who should regard themselves as being part of a collective that is far greater than they are. With this intuitive starting point, the Islamic legal scholars rational analysis will focus on testing human views of justice and societal change by reference to whether it corresponds to the law and not vice versa. In particular, within this traditionalist view of Islam it would be irrational to critique a law because the results appeared to be unfair having regard to individual and societal views of justice because this would strike at the intuitive starting point that the law is perfect and something to which humans should submit without question and with humility and would instead promote the illogical proposition that a human might know better than God what constitutes justice. Once again it has to be noted that there are, of course, many Islamic scholars who would not adopt such a traditionalist approach and who would say that in fact sharia law can be altered and amended (albeit not in its fundamentals) through a modernizing interpretation49 (just as there are many Western scholars and commentators who would prefer a less liberal and individualist49 This is at the core of the extraordinary scholarship of Professor Abdullahi An-Naim. See inter alia AnNaim (n 16), and by An-Naim, Civil Rights in the Islamic Constitutional Tradition: Shared ideals and Divergent Regimes (19911992) 27 J Marshall L Rev 267; Globalization and Jurisprudence: An Islamic Law Perspective (2005) 54 Emory LJ 25, Islam and Human Rights: Beyond the Universality Debate (2000) 94 Am Socy Intl L Proc 95, Islamic Law, International Relations and Human Rights: Challenge and Response (1987) 20 Cornell Intl LJ 317, Human Rights in the Muslim World: Socio-Political Conditions and Scriptural Imperatives A Preliminary Inquiry (1990) 3 Harv Hum Rts J 13, Human Rights in the Arab World: A Regional Perspective (2001) 23 Hum Rts Q 701. See also M Baderin, A Macroscopic Analysis of the Practice of Muslim State Parties to International Human Rights Treaties: Conflict or Congruence? (2001) 1 Hum Rts L Rev 265 at 302 for the view that To further enhance the developing congruence between Islamic Law and International human rights law in Muslim States, Muslim States need to depart from inflexible and hard-line approaches to the interpretation of the sharia and continue to explore through Ijtihad . . . legitimate Islam legal principles . . . to achieve more unstinting application of Islamic Llaw and to ensure further guarantee of the human rights of individuals within their application of Islamic Law. Having said that M Baderin does note that various culturallegal norms within Islam cannot be repudiated in the interests of furthering such supposed congruence and he

The Clash of Unprovable Universalisms

321

centred legal order for Western society). This proposition will, however, be questioned by those Islamic fundamentalists whose approach is the focus of this article and who will see it as the fruit of a mind beguiled by Western normative ideals.50 The fundamentalist view will be that it is Islamic law which is perfect51 and that it would make no sense to re-interpret that law in order to make it more compatible with an international order which is not divine and indeed which in many respects reflects the social policy of the Western world which Islamic fundamentalists regard as failed and decadent. It would be like saying to Western observers who subscribe to the morality contained within the Universal Declaration of Human Rights that it is possible and desirable to give it a fresh interpretation which would change its traditional meaning radically but would render it acceptable for a totalitarian and tyrannical theocratic order.

6. The Source of the Universalist Claim of Islam

Analysis of the universalist claim of Islam is rather simpler than analysis of the equivalent claim of international human rights law, in that it is grounded perfectly within the existence and self-expression of God (albeit that its universal legitimacy is still objectively unprovable in that it is not possible to prove the existence of God). Hence in order to understand the universalist claim within Islam it is necessary simply to consider the connection between God and the various sources of Islamic law52something which is utterly elementary for any student of Islamic lawthough in reality the law has only one source and that is God. It can broadly be said that that the law itself (sharia) derives from two sources53 namely the Quran (the revealed word of God) and the sunna [the traditions and sayings (hadiths) associated with the prophet and his closest followers]. In addition, and to the extent that the meaning of the law is given life through its practical application, the role of Islamic jurisprudence (fiqh) is also relevantin particular the role of legal scholars (ulama) in determining the meaning of law on a consensus basis (ijma) and the role of judges (qadiz) in determining how the law should be applied in particular cases by analogy with what had happened in previous cases (qiyas). Of these sources the Quran (which literally means that which should be read or studied) is clearly the most important in that it is the Word of God revealed word for word to the L Prophet Muhammad over 22 years from 610 to 632 AD. These revelations (wahy zahir)54 represent of course the birth of Islam as it sprung up among the nomadic Arabs of the time, but according to

calls for greater appreciation from International human rights bodies of the cultural imperatives within Islam. For analysis see K Schooley (n 30) 685ff. Generally see N Moosa (n 15). 50 K Schooley (n 30) 711 comments that An-Naim no longer criticised Islamic culture through comparison with the practices of the West, but he adopted Western standards as the measure for change within the Islamic culture. 51 J Morgan-Foster (n 19) 47. 52 H Esmaeili, The Nature and Development of Law in Islam and the Rule of Law Challenge in the Middle East and the Muslim World (20102011) 26 Conn J Intl L 329. 53 W Haqq (n 45). 54 MH Kamali, Principles of Islamic Jurisprudence (Cambridge Islamic Texts Society 2003) 15.

322

Oxford Journal of Law and Religion

the Quran itself, they are also the culmination of a process of revelation dating back to the book Genesis and the time of the patriarch Abraham.55 Pivotally also, the Quran is more than just the Muslim Bible; rather it is the embodiment of the self-expression of God. Indeed the point has been well made that for the Christian observer or indeed anyone acquainted with Christianity, the Quran as the repository of Gods law is analogous not to the Bible but rather to the figure of Jesus.56 What is key for present purposes, of course, is the fact that these revelations were directly received from God. In other words, at a minute level, the proposition is that every word within the Quran came from God and represented his self-revelation to his Prophet which the latter duly recorded and which was passed down both through the oral tradition and in written form. Not one word in the Quran therefore is humanly created and hence (in so far as traditional Islamic belief is concerned) the law must, by definition have a perfect and unchangeable quality to it (presuming that the central law of God itself does not change over time). As has been pointed out, moreover, the Quran is its own grounds for its universal validityvalid as a complete and perfect embodiment of the self-expression of God. Finally, in as much as it derives from the creator of the universe it must, by definition be universal. Even when one accepts the claim of the Quran to be utterly complete and self contained, this does not gainsay the fact that its terms are sufficiently broad that they are open to a variety of different interpretations and thus that the concept of interpretation (tafsir) becomes extremely important. Again, of course, this does not in any sense imply that the Quran is somehow imperfect or that God has somehow made mistakes in the context of his self-revelation. Rather the uncertainty or ambiguity in interpretation of the Quran can be seen to derive from the fact that it will be fallible, finite human minds which are seeking to learn of and from the infinite. Indeed the Quran makes it clear that differences of interpretation (ikhtilaf) are the result of the bounty of God.57 Furthermore, clarification of the law is provided by the sunna58 and ijma (albeit that these two sources of law can tend to generate a range of different conclusions as to what is the law on a particular issue), the validity of both of which as divinely ordered is grounded within the Quran.59 Nonetheless it has to be accepted that these uncertainties of interpretation can mean that the terms of the Quran can be used by people with different agendas (be they the agenda of fundamentalist terrorism or the agenda of Western style liberalism) to suit those agendasa problem common to all religious teachings.60
55 Thus the Quran (sura 5 ayat 3) contains the words This day have I perfected your religion for you, completed my favour upon you and have chosen for you Islam as your religion. 56 FA Hassan, The Sources of Islamic Law (1982) 76 Am Socy Intl L Proc 65. 57 Thus as one Hadith puts it Difference of opinion among my community is a sign of the bounty of God. See R Glenn (n 22) 209. Naturally, the view has been expressed that there is a dissonance between this rule and the Hadith which states My people will never agree to error but as Glenn notes, the orthodox Islamic view is that there is in fact no such dissonance and if such is perceived to exist this is indicative of the fact that the reader is human and cannot comprehend the complexities of the mind of God. 58 A Duderija, Toward a Methodology of Understanding the Nature and Scope of the Concept of Sunnah (2007) 21 Arab LQ 269. 59 Holy Quran Sura 33 Ayat 21. Haqq (n 45) 34. 60 As H Reisman puts it [The Quran] contains statements that could be interpreted to sustain the view that Islam is a tolerant and adaptable religion compatible with change and consistent with International human rights

The Clash of Unprovable Universalisms

323

Irrespective of this fact, what binds all of these roots of Islamic law together are the workings of God. Thus God revealed his law, God inspired the Prophet and his followers to know and understand, act and speak his will, and God also inspired (and possibly inspires) the work of scholars such that they can achieve consensus on the meaning of a particular aspect of the law. In other words, the law must be universal because its source is universal even if the existence of this source is not empirically provable as long as the existence of God remains uncertain. What this means, in so far as clashes between international human rights law and traditional Islamic law is concerned, therefore, is that proponents of each will see the approach of the other as wrong and false because and to the extent that it does not correlate with their view of right and wrong as laid down in their grounding moral visionyet whether or not either viewpoint is actually true, supporters of neither will be able to offer proof confirming that what they are proposing does actually represent universal truth.

7. Learning from the Clash of Universalisms

The core proposition of this article, then, is that the clash of mainstream (Western-led) international human rights law and Islamic fundamentalism involves two competing faith claimsthat is, they are ideologies believed by their supporters to represent universal truth but whose truth is as unprovable as their falsitya disconcerting proposition for supporters of international human rights law in the face of certain controversial provisions (or traditionalist interpretations) of Islamic law. If this proposition is correct, it must also be accepted that certain controversial aspects of Islamic law which seem to a Western observer to be immoral or irrational may simply be alien to him or her, having regard to the cultural background in which [s]he has been raised and which [s]he has been told is empirically right. These aspects of the Islamic law may, however, be entirely comprehensible when viewed in the context of the (purportedly universal) normative principles on which they are based.61 So, most obviously, Quranic principles on the veiling of women, while repellent to a community which prioritizes one view of equality and (more generally) which sets great store by concepts of freedom of conscience and freedom of expression, are entirely understandable within a community which regards the individual as having a complete obligation to submit to God in respect of every facet of his or her existence. Moreover, whereas the Western observer may rail against this central proposition that the individual is required completely to submit to God,

standards. The Quran also contains statements that can lead to the conclusion that Islam is a rigid and unforgiving religion, built on intolerance of diversity. See H Reisman Some Reflections on Human Rights and Clerical Claims to Political Power 19 Yale J. IntL L (1994) 509. 61 See H Reisman (n 60) says of Islamic fundamentalists [they] have a simple conception of right and wrong. In general any disagreement with them puts one in the category of wrong. This may well be true but it is equally true of Western human rights proponents. A similar approach is taken to the question of Islamic rules pertaining to the death penalty by Professor Schabaas. See W Schabaas, Islam and the Death Penalty (20002001) 9 Wm & Mary Bill Rts J 223.

324

Oxford Journal of Law and Religion

[s]he must accept that this is the most fundamental moral principle laid down by a law which is claimed to be (and cannot be proved not to be) universally true. For persons who are not simply interested in unthinkingly asserting the moral correctness of their own views, the benefit of analysing Islamic rules (and, on occasion, traditionalist understandings thereof) in this more holistic and thoughtful way is that it may enhance (Western) understanding of the mindset which endorses such rules and may enable the Western observer more fully to understand and appreciate their possible rationality and legitimacy and to dispel some of the sensationalist and pejorative attitudes to Islamic law which are often heard in the Western world. By way of example, we now consider three different situations where the Islamic approach to particular issues connected with rights is criticized by the West but where this criticism may in fact be based on the fact that the Western analysis occurs through the prism of the normative principles which underpin (and are seen as universal by) Western society rather than through the prism of the equivalent (purportedly universal) principles within Islamic law.

A. The Approach of the Cairo Declaration on Human Rights

There has long been a view among governments of Muslim Countries that the current International Bill of Rights (as well as other international human rights treaties such as, most obviously, CEDAW), while claiming the mantle of universalism do not in fact represent universal values in any meaningful way in the sense that they do not make any attempt to reflect the Islamic approach on issues such as polygamy, treatment of women and children generally, religious freedom,62 freedom of expression,63 due process in criminal trials and criminal punishments.64 More generally though, as we have seen, the whole tone of the international human rights movement with its stress on the value of individual humans deriving from their individual humanity (as distinct from their status as members of the community of God) and its emphasis on rights representing trumps against the law simply does not sit easily with the Islamic mindset.65 It was arguably for this reason that the Organization of the Islamic Conference produced the Cairo Declaration on Human Rights. This document (which has little significance in practice) outlines an Islamic approach to the whole deep ethical question of how the relationships between human and human and human and the state should operate66 and its answers to these
62 See M Perry, A Right to Religious Freedom? The Universality of Human Rights, the Relativity of Culture (2005) 10 RWU L Rev 349; RIJ Hackett, Regulating Religious Freedom in Africa (2011) 25 Emory Intl L Rev 853; Ahmad, A study of Individual Freedom and Religious Liberalism in Islamic Jurisprudence (2010) 5 J Juris 41; A Leeman, Interfaith Marriage Islam: An Examination of the Legal Theory behind the Traditional and Reformist Positions 84 Ind LJ (2009) 74. 63 A An-Naim, The Contingent Universality of Human Rights: The Case of Freedom of Expression in African and Islamic Contexts (1997) 11 Emory Intl L Rev 29. 64 E Peiffer, The Death Penalty in Traditional Islamic Law and as Interpreted in Saudi Arabia and Nigeria (20042005) 11 Wm & Mary J Women and L 507. 65 See R Glenn (n 22) 205 for the view that If rights had become necessary as a means of levering people out of arbitrary hierarchies in Europe, Islam rejects hierarchy even in religion and rights are both unnecessary and potentially disruptive of mutual obligation. 66 AE Mayer, Universal versus Islamic Human Rights: A Clash of Cultures or a Clash with a Construct? (19931994) 15 Mich J Intl L 307.

The Clash of Unprovable Universalisms

325

questions, albeit using the language of rights, have a distinctively Islamic view. Thus the preamble states that fundamental rights and universal freedoms in Islam are an integral part of the Islamic religion, yet the document itself speaks both of duties and of rights and also links everything within its terms to the overall relationship between God and humans. More generally, the rights in the declaration are not independent rights exercisable against the operation of Islamic law but rather are both protected and constrained by reference to the Law. Thus for example Article 22, dealing with freedom of expression provides that Everyone shall have the right to express his opinion freely in such manner as would not be contrary to the principles of the sharia. Most pointedly, Article 24 provides that All the rights and freedoms stipulated in this Declaration are subject to the Islamic Sharia and Article 25 that The Islamic Sharia is the only source of reference for the explanation or clarification of any of the articles of this Declaration. Quite clearly there are significant differences between this approach to human rights and that contained in the International Bill of Rights67 with the most compelling difference being that it seems to reduce the rights of citizens to a level of subservience to the law rather than serving as a trump against that law, and it has, in consequence, been criticized by many Western commentators. Yet given the different (and allegedly universal) normative starting points taken by the two orthodoxies these differences in approach are entirely logical and non-surprising. Moreover, the inherent unprovability of either orthodoxy means that a disciple of one who seeks to make criticisms of the moral legitimacy of the other is on disconcertingly shaky ground.

B. Mechanisms for Effecting a Moral Vision

The second aspect of the Islamic approach to rights which may be better understood if one accepts that Islamic fundamentalists (like human rights fundamentalists) believe that Islamic law is universally true, goes to the very heart of rights language. As we have seen, one potential source of the alleged universality of international human rights law focuses on the notion of commonalitythat is, that rights are de facto universal because they have global application. As we have also seen the fact that a gigantically popular ideology (Islam) has difficulty with the current breadth of international human rights law makes this proposition difficult to sustain. On the other hand, it is far easier to make the argument that there are certain core moral rules (typically flowing from the idea of treating other people as one would oneself wish to be treated) which do find resonance globally (albeit that there will be relatively few such rules). Such principles may possibly be characterizable (as for instance CS Lewis characterized them68) as constituting a sort of universal moral law comprising rules of basic human decency. The question then becomes how such universal moral rules are to be given effect in both a legal and a moral sense. Clearly within mainstream
67 L Hilal, The Cairo Declaration on Human Rights in Islam and International Womens Rights (1997) 5 Buff Womens J L & Soc Poly 85. 68 See CS Lewis, Mere Christianity (Collins Fount Paperbacks 1952) generally and especially in Ch 1.

326

Oxford Journal of Law and Religion

Western jurisprudence they are given effect through the mechanism of human rights to the point that it is arguable that the core moral rules are so synonymous with the rights by which they are given effect that, within colloquial discussion, it is assumed that the rights are the universal moral rules. Thus for many in the Western world it would be morally unacceptable for a legal order to use a mechanism other than the mechanism of rights to give effect to this basic shared moral law. But it is clearly erroneous to confuse the moral rules with the mechanisms by which they are given effect. Put simply, the principle that one should not steal is not the same as a larceny statute. And within the Islamic approach to these issues, there is a clear view that effect can be given to a common moral rule that one should treat other people well either through use of the language of duties and responsibilities and not the language of rights or through a combination of the two. This is an important point and indeed it is a criticism of rights exponents that they view rights as the only acceptable way of achieving a basic commonality of moral decency when this is simply not the case. If, for example, it is an aspect of the common moral law that human life is valuable and should not be interfered with arbitrarily, this law can be given practical force either by recognition of a right to life or of a duty not to kill. The adoption of one mechanism over another does not necessarily mean that a state is tyrannical or benign but may simply reflect a societal choice as to whether it is preferable to take an approach which focuses on the claims of the individual or one related to the responsibilities of the community. Given that Western society prioritizes the individual and traditionalist Islamic law prioritizes the community it is unsurprising that they make different choices on the question of the relative usefulness of rights and duties.69 In other words, the two orthodoxies may be closer than is often thought on the core moral principles by which society should operate and differ simply on the question of the mechanics for achieving such care by reason of their different (universal) normative starting points.

C. Justifications for Restrictive Laws

The final example of a dissonance between the traditional understanding of Islamic law and international human rights law which may be better understood by characterizing the relationship between the two as a clash of universalisms relates to the circumstances in which rights may justifiably be limited. Both Islamic law and international human rights law recognize, after all, that most rights are not absolute and can be restricted. However, there is no commonality as between the two (or indeed within either orthodoxy) on the question of when, as a matter of principle, it is legitimate to use the law to restrict liberty. Thus some Western observers will say that it is only where an action causes an identifiable harm to someone else that it may be restricted, whereas others will permit restriction in a broader range of circumstances

69

See N Moosa (n 15) 512.

The Clash of Unprovable Universalisms

327

including, for example, where there is an objection to the moral quality of the action simpliciter. For present purposes, it is obvious that the different moral starting points from which Islam and the West proceed will inevitably factor into the question of when, as an intuitive matter of justice, it is legitimate for the law to be used to restrict the liberty of an individual. So in broad terms, it may be suggested that from a Western standpoint (and especially within a Western liberal tradition with its focus on the individual qua individual) the first and most prominent reason why someone may be stopped by law from doing something is because the action causes harm to another person.70 On the other hand, from an Islamic perspective, with its concern for reverence for God and the well being of the community, it may be that the moral quality of an action and especially its irreverence will be a more obvious basis for a principled determination as to whether it should be permitted. More importantly still, of course, within Islam the law is perfect. Hence if the law states that a particular action is illegal or carries a particular sanction [as is the case with the fixed penalty (hadd) crimes] then that becomes the principled moral justification for the illegality of the action nor is there any need to find any other form of justification. Thus the mere fact that certain actions which are legal in the West are criminalized within Islam does not mean that the latter is necessarily tyrannical or draconian, but may merely indicate that it takes a different foundational view of how the competing interests of individual and society should be balanced. An obvious example of this issue in practice concerns the respective attitudes within much of contemporary Western society and Islam to the criminalization of blasphemy.71 The notion of a blasphemy law in most Western jurisdictions is regarded as (i) inherently anachronistic, (ii) morally unacceptable in that it restricts free speech to protect persons in respect of an aspect of their makeup which they have freely chosen (namely their religion), (iii) aimed at protecting the rights of individuals (that is the putative right of devotees not to be offended) rather than aimed at ensuring society is not polluted by something intrinsically immoral.72 In Islamic law, on the other hand (and whereas, as ever, the law is open to interpretation on these issues), there are significant rules prohibiting blasphemy, apostasy and heresynot in order to protect the individual but rather to ensure that God is not insulted and that the community is not infected with corruptive and repugnant material. The point is, however, that given the priority for the law within Islamic culture is to ensure respect and reverence for God and support for the community of believers, such a law is almost inevitable nor can or should the legitimacy of the
70 See JS Mill, On Liberty and Other Essays (Himmelfarb G ed, Penguin 1985). In his magisterial works on The Moral Limits of the Criminal Law, Joel Feinberg identifies three other potential reasons for restricting liberty; two of these relate to a desire to protect individuals (namely where the behaviour of X offends Y or where the behaviour of X threatens to harm X himself) and one, albeit one which is arguably unfashionable within 21st century Western culture, relates to the moral quality of the action. See J Feinberg, Harm to Others (OUP 1984), Offence to Others, (OUP 1985), Harm to Self (OUP 1986), Harmless Wrongdoing , (OUP 1988). See also by the same author Rights, Justice and the Bounds of Liberty (Princeton University Press 1980). 71 MH Kamali, Freedom of Expression in Islam (Islamic Texts Society 1997). 72 N Cox, Blasphemy and the Law (Edwin Mellen Press 2000).

328

Oxford Journal of Law and Religion

Islamic law be gauged from the starting point of the normative vision underpinning the international human rights universalism. It is further worth making the point that the differences between the Islamic approach and the Western approach in terms of the acceptability of laws restricting liberty may not in fact even be at the level of principle. So for example, as has been pointed out elsewhere, the attitude of many Muslim groups to blasphemy is very like the attitude of, for example, Germans towards holocaust denial or indeed many Western commentators towards hate speech.73 Hence the principle that applies (that profoundly immoral and consequently offensive speech may on occasion be restricted by the criminal law) is common to both ideologies and all that separates the two is the question of what is deemed to be profoundly immoral. In similar vein, Western observers often refer to the Muslim attitude to the requirement that women wear a veil as being a tool of oppression. Yet in reality what is involved may be characterized simply as a rule which requires all persons (in the name of modesty) to cover up those parts which have been sexualized by societya process which, even in the West has led to women having to cover more of their bodies than men and which requires Islamic women to cover up more body parts than their Western counterparts. Hence, the principle (that sexualized body parts be covered) is common to both orthodoxies, and the difference between the laws that exist is not at the level of principle, but rather in respect of the far more mundane factual question of which parts of the body society regards as being sexualized.74

8. Conclusion
The purpose of this article is not, of course, to seek to claim that there is no difference between Islamic fundamentalists and supporters of international human rights law where core aspirational and legal values are at stake. Nor is it seeking to persuade a supporter of either orthodoxy that it must or should accept the laws and practises that exist in the other. Rather it is aimed at pointing out (i) that many of the perceived differences between laws in the respective systems arise not at the level of principle but rather at some considerably more mundane level related to history, tradition or culture, and (ii) more importantly, that where such differences do exist at the level of principle, this should be seen not as a situation where Islam is an evil ethos deviating from universally correct norms. Rather Islam is a fast growing and already very large religion with its own deeply held universal truths which, on occasion, clash with the universal truths of the Western observerneither of which truths can empirically be proven to be true or false. Truth (if such a thing does objectively exist) is an elusive concept precisely because there is no way of achieving any empirical acknowledgement that one is actually possessed of it. People may believe in something as truth and do so
73 N Cox, The Ethical case for a Blasphemy Law at p 263 in R Fortner and M Fackler (eds), The Handbook of Global Communication and Media Ethics (Wiley-Blackwell Publishing Ltd 2011). 74 S Poulter, Muslim Headscarves in School: Contrasting Legal Approaches in England and France (1997) 17 Oxford J Legal Stud 44.

The Clash of Unprovable Universalisms

329

to the point that they will die for it, be they human rights activists or the men who flew planes into the World Trade Center on 9/11. But no matter how strong the belief, the objective reality is that even though what is perceived to be truth may in fact be truth, nonetheless this is something which cannot be objectively testedcertainly this side of the grave. From a Western perspective then (although obviously vice versa as well), this means that when an observer is presented with some aspect of Islamic law which [s]he regards as repugnant, [s]he has the option either of saying that the law is alien to him or her, having regard to the culture in which [s]he was raised and has been inculcated or else of saying that the law is empirically and eternally morally wrong. But this latter course of action is a very difficult one because that observer will be met by an equally sincere observer from within the Islamic community who will reply that the law comes directly from God and hence is empirically and eternally morally right. And unless the Western observer is either arrogant or uninterested in thinking things through, this must surely give him or her substantial pause for thought.