Islamic Law and International Human Rights Law (PDFDrive)

ISLAMIC LAW AND INTERNATIONAL
H U M A N RI G H T S L A W
Islamic Law and
International Human
Rights Law
Searching for Common Ground?
Edited by
AN VER M EM ON
M AR K S EL L I S
BENJAMIN GLAHN
1
3
Great Clarendon Street, Oxford, OX2 6DP,
United Kingdom
Oxford University Press is a department of the University of Oxford.
It furthers the University’s objective of excellence in research, scholarship,
and education by publishing worldwide. Oxford is a registered trade mark of
Oxford University Press in the UK and in certain other countries
# The several contributors 2012
The moral rights of the authors have been asserted
First Edition published in 2012
Impression: 1
All rights reserved. No part of this publication may be reproduced, stored in
a retrieval system, or transmitted, in any form or by any means, without the
prior permission in writing of Oxford University Press, or as expressly permitted
by law, by licence or under terms agreed with the appropriate reprographics
rights organization. Enquiries concerning reproduction outside the scope of the
above should be sent to the Rights Department, Oxford University Press, at the
address above
You must not circulate this work in any other form
and you must impose this same condition on any acquirer
Crown copyright material is reproduced under Class Licence
Number C01P0000148 with the permission of OPSI
and the Queen’s Printer for Scotland
British Library Cataloguing in Publication Data
Data available
Library of Congress Cataloging in Publication Data
Library of Congress Control Number: 2012945097
ISBN 978–0–19–964144–4
Printed in Great Britain by
CPI Group (UK) Ltd, Croydon, CR0 4YY
Links to third party websites are provided by Oxford in good faith and
for information only. Oxford disclaims any responsibility for the materials
contained in any third party website referenced in this work.
Foreword
Edward Mortimer
‘Common Ground’ to ‘Clearing Ground’:

A Model for Engagement in the 21st Century
Since the Iranian revolution of 1979, innumerable gatherings have been held, and
books and articles published, on the theme of ‘Islam and the West’. Many, taking
their cue from the title of Samuel Huntington’s 1993 Foreign Affairs article ‘The
Clash of Civilizations?’, have started from the premise that these terms, even in the
modern world, represent distinct civilisations which are dominant in different parts
of the world and can engage in ‘dialogue’, or even ‘alliance’, with one another.
Implicit in this premise is the notion that these two civilisations are self-contained
and mutually exclusive, and that one of them, at least, is unchanging and static in
its fundamental principles. That such notions continue to enjoy wide popularity in
an age of globalisation, when millions of people clearly identify themselves as both
Muslims and Westerners, is disconcerting and frankly somewhat depressing. Few
scholars would now deny the contribution made by Islamic thought and culture to
the development of what we now think of as the West; and few travellers in
predominantly Muslim countries today can fail to notice the myriad ways in
which, for both good and ill, they have been affected by the spread of Western
ideas and institutions over the past two centuries or more.
Happily, the present volume starts from no such simplistic assumption. It treats
human rights law, as codified in a series of international instruments since 1945,
and Islamic jurisprudence not as separate and incompatible systems but rather as
two among many components of a highly complex contemporary legal universe,
influencing and reacting to each other but also both responding to, and profoundly
affected by, the phenomenon of the modern sovereign state, as well as the limits to
absolute sovereignty which are increasingly seen as the inevitable concomitant of an
evolving global society. The authors do not seek final answers so much as they try to
redefine some essential questions about the way different legal traditions are
interpreted and applied in the real world. They interrogate and criticise each
other, and perhaps the only firm point they have in common is the understanding
that both traditions are living and mutable, not frozen in time. Taken together,
their contributions form a fascinating snapshot of the current state of an important
global conversation, but also move that conversation forward and expand the space
for its further development.
The Salzburg Global Seminar is proud to have convened and hosted the series of
dialogues that have led to this book. We have been especially honoured to have the
vi Foreword
International Bar Association as a partner, and to work with such distinguished
legal scholars as co-editors Mark Ellis and Anver Emon. We owe a great debt of
thanks to all the editors and contributors for allowing us to be associated with their
work, and not least to the third co-editor, our former colleague Benjamin Glahn,
who not only brought this glittering constellation to Salzburg but continued to
guide it, pro bono, even after he had left to take up other employment.
We do not claim to have made the same kind of substantive contribution as the
authors of the various essays and commentaries in this volume, but we believe we
have brought to the mix three other things almost equally important: an incompar-
able setting, whose combination of natural and man-made beauty is calculated to
inspire creative dialogue while cooling the heat of controversy; a tradition of
interactivity which ensures that all have the chance to listen as well as speak, to
contribute as well as learn; and a capacity to bring together in a single conversation
people of widely different geographical, professional, and academic backgrounds, so
that each can absorb new insights and perspectives even on a subject with which she
or he is already familiar.
We also remain convinced of the importance of this topic, within the broader
framework of the Rule of Law, and hope to have further opportunities to help
continue the dialogue.
Edward Mortimer
Senior Program Advisor, Salzburg Global Seminar
Acknowledgements
This book is the culmination of many years of collaboration between the editors,
the authors, and various institutions that have supported this endeavor. They
brought to the process, and to this publication, a shared commitment to increasing
understanding and fostering new forms of engagement and cooperation across
sectors of society and regions of the world. First off, we would like to thank the
International Bar Association and the Salzburg Global Seminar. They co-sponsored
three seminars, each held on the Salzburg Global Seminar’s beautiful grounds at
Schloss Leopoldskron in Salzburg, Austria. Each seminar fed into the next, and
ultimately led to the pages of this book. Their institutional support and commit-
ment to this project has been indispensable to the success of this endeavor, and has
illustrated to all of us involved the importance of bringing together civil society, the
legal profession, and the academy in a sustained conversation over a period of years.
This was not an inexpensive endeavor, much of which occurred during a period of
significant global economic turmoil. Yet these two organizations remained steadfast
in their commitment to this project throughout its various phases. Additionally, the
IBA, through its Public Law Section, sponsored a panel at its 2009 Annual
Conference in Madrid, Spain, where the editors and some of the authors included
in this book presented the project to the IBA’s membership. We are grateful to the
Public Law Section and to those in attendance who offered us important feedback.
A third organization played a pivotal role in supporting the community
of authors in this book. The Center of Theological Inquiry in Princeton, New
Jersey, and its director William Storrar, sponsored a workshop in May 2010
where the authors presented early drafts of their papers. In the idyllic setting of
Princeton, New Jersey and with the generous hospitality of the Center, the authors
found a unique space that allowed them to explore important topics and draw
upon resources that spanned reason and faith, theology and philosophy, law and
morality.
As noted above, this project arose out of three seminars hosted by the Salzburg
Global Seminar in Salzburg, Austria. During the second and third seminars, which
focused narrowly on Islamic law and human rights, 60 fellows and authors
committed a week of their lives to discuss and debate the topics featured in this
volume. Those seminars offered testing grounds for the ideas that are featured in
this book; and the participants in each seminar, therefore, played an important role
in the final version of this book. To them we owe a great deal of thanks. Indeed, it is
because of them that we can claim that this book has undergone a review process
that was truly global, and which involved viewpoints across a vast array of profes-
sional sectors of society (eg, academy, government, law, and civil society).
The editors also want to thank the authors who contributed to this volume.
Their commitment to the extended discussion over the course of several years, and
viii Acknowledgements
their contributions to the debate and discussion at the workshop and seminars are a
testament to their own dedication to exploring and experimenting with new models
of engagement across intellectual, philosophical, regional, and religious divides.
As editors, we also want to take a moment to thank those who have made our
work on this project possible.
For Anver Emon, working on this project has been an amazing opportunity, and
he wants to thank the International Bar Association, the Salzburg Global Seminar,
and the Center of Theological Inquiry for their support of the project. His
introduction to the Salzburg Global Seminar and his ongoing work on this project
would not have been possible without the support of the Faculty of Law at the
University of Toronto and its dean, Mayo Moran. He also wants to thank his co-
editors, Mark and Ben, for being such fantastic colleagues. We make a great team!
And lastly, he wants to thank his wife Allyssa for her moral support and encourage-
ment throughout the various phases of this project.
Mark Ellis would like to thank Anver and Ben for being part of this remarkable
journey. Without their dedication, this book would not have happened. He would
like to thank the International Bar Association for their ongoing support of this
important project and for committing financial resources to it. Finally, for his son
Andrew, may he always embrace the diversity of opinions, cultures, religions, and
humanity.
For Benjamin Glahn, this project has been the culmination of work that began at
the Salzburg Global Seminar in 2006, and without the support of Salzburg—its
President Stephen Salyer and then-Senior Vice President Edward Mortimer—this
project would not have been possible. It was the support of the Salzburg Global
Seminar that helped foster the cooperation with the International Bar Association,
and ultimately led to the partnership with Mark and Anver, with whom he has
found it an absolute pleasure and an honor to work throughout the process. He also
wishes to thank his wife Kaja for her endless support and encouragement through-
out the process.
Finally, this book owes a debt of gratitude to the Fellows of Salzburg Global
Seminar sessions 443, 457, and 475, for their ideas, feedback, and support.
Anver M Emon
Mark S Ellis
Benjamin Glahn
July 2012
List of Contributors
John B Bellinger III is a Partner at Arnold & Porter LLP in Washington, DC and Adjunct
Senior Fellow in International and National Security Law at the Council on Foreign
Relations; formerly the Legal Adviser to the US Department of State, 2005–2009.
Nehal Bhuta, Professor of Public International Law at the European University Institute,
Florence, Italy.
Kathleen Cavanaugh , Lecturer of International Law at the Faculty of Law, Irish Centre for
Human Rights, National University of Ireland, Galway.
Hans Corell was Under-Secretary-General for Legal Affairs and the Legal Counsel of the
United Nations 1994–2004. From 1962 to 1972, he served in the Swedish judiciary. In
1972, he joined the Ministry of Justice where he became Director of the Division for
Administrative and Constitutional Law in 1979. In 1981, he was appointed Chief Legal
Officer of the Ministry. He was Ambassador and Under-Secretary for Legal and Consular
Affairs in the Ministry for Foreign Affairs from 1984 to 1994. Since his retirement from
public service in 2004 he has been involved in the work of the International Bar Associ-
ation, the International Center for Ethics, Justice and Public Life at Brandeis University and
the Hague Institute for the Internalisation of Law. He is Chairman of the Board of Trustees
of the Raoul Wallenberg Institute of Human Rights and Humanitarian Law at Lund
University, Sweden.
Mark S Ellis is executive director of the International Bar Association (IBA), the foremost
international organization of bar associations, law firms and individual lawyers in the world.
A frequent speaker and media commentator on international legal issues, he appears
regularly on CNN International, Al Jazeera, and BBC. He has published extensively in the
areas of international humanitarian law, and the rule of law, and his op-eds have appeared
in The New York Times, The International Herald Tribune, and The London Times. Twice
a Fulbright Scholar at the Economic Institute in Zagreb, Croatia, he earned his JD and
BS (Economics) degrees from Florida State University and his PhD in Law from King’s
College, London. He serves on the editorial boards for the Journal of National Security Law
and Policy and The Hague Journal on the Rule of Law.
Anver M Emon BA (UC Berkeley); JD (UCLA School of Law); MA (University of Texas at
Austin); LLM (Yale Law School); PhD (UCLA) and JSD (Yale Law School). Emon is
Associate Professor at the University of Toronto Faculty of Law, where he teaches in both
fields of Islamic law and the Common Law. His scholarly research focuses on premodern
and modern Islamic legal history, and on Shari‘a-related debates both inside and outside the
Muslim world. The author of numerous articles, his publications include Islamic Natural
Law Theories (Oxford: OUP, 2010) and Religious Pluralism and Islamic Law: Dhimmis and
Others in the Empire of Law (Oxford: OUP, 2012). He is the founding editor-in-chief of the
journal Middle East Law and Governance and a general editor of the Oxford Islamic Legal
Studies monograph series.
Benjamin Glahn, Former Deputy Chief Programme Officer and Program Director, Salz-
burg Global Seminar.
xiv List of Contributors
Richard J Goldstone was a judge in South Africa for 23 years, the last nine as a Justice of the
Constitutional Court. Since retiring from the bench he has taught as a visiting professor in a
number of United States Law Schools. From August 1994 to September 1996 he was the
chief prosecutor of the United Nations International Criminal Tribunals for the former
Yugoslavia and Rwanda. He is an honorary Bencher of the Inner Temple, London and an
honorary fellow of St John’s College, Cambridge. He is an honorary member of the
Association of the Bar of the City of New York and a foreign member of the American
Academy of Arts and Sciences. He is also an honorary life member of the International Bar
Association and Honorary President of its Human Rights Institute. He chairs the Executive
Committee of the Institute for Historical Justice and Reconciliation. He serves on the board
of the Salzburg Global Seminar.
Murad Hussain is an Associate at Arnold and Porter LLP in Washington, DC; formerly a
law clerk to the Honorable Ellen Segal Huvelle of the US District Court for the District of
Columbia.
Malik Imtiaz Sarwar LLB (International Islamic University, Malaysia); LLM with Distinc-
tion (University of Hong Kong); MSt, International Human Rights Law with Distinction
(Oxon); Advocate and Solicitor of the High Court of Malaya; President, National Human
Rights Society, Malaysia; recipient of the 2009 Index on Censorship Freedom of Expression
(Law and Campaigning) Award.
Ratna Kapur is a Distinguished Professor of Law at the Jindal Global Law School, Sonepat
(NCR, Delhi), India. She is also the titular head of the Centre for Feminist Legal Research,
New Delhi.
Urfan Khaliq, Reader in Public International and EU Laws, Cardiff Law School, Cardiff
University, United Kingdom.
Robin W Lovin, Cary Maguire University Professor of Ethics, Southern Methodist Univer-
sity; Don S. Browning Research Fellow, Center of Theological Inquiry.
Muhammad Khalid Masud, MA, PhD (1973) McGill University. Formerly Chairman,
Council of Islamic Ideology, Islamabad, and Academic Director ISIM, Leiden, Masud is the
Director General, Islamic Research Institute, Islamabad, and editor of the quarterly Islamic
Studies. He has published extensively on Islamic law, contemporary issues, and intellectual
trends in the Muslim societies.
Errol P Mendes, Professor of Law, University of Ottawa.
Ziba Mir-Hosseini, Research Associate, Islamic and Middle Eastern Law, School of Orien-
tal and African Studies, UK.
Edward Mortimer, Senior Program Advisor and former Senior Vice-President, Salzburg
Global Seminar; former Director of Communications, United Nations Secretary-General;
author of Faith and Power: The Politics of Islam (New York: Random House, 1982).
Justice Sandra Day O’Connor (Ret.), US Supreme Court.
Intisar A Rabb is an associate professor at the NYU School of Law and in the NYU Middle
Eastern and Islamic Studies Department. In Fall 2012, she served as a visiting associate
professor of law at Harvard Law School. Previously, she served as a member of the law
faculty at Boston College Law School, was named a Carnegie Scholar for research on
contemporary Islamic law, and served as a law clerk for Judge Thomas L Ambro of the
United States Court of Appeals for the Third Circuit. She has published on Islamic law in
List of Contributors xv
historical and modern contexts, and is currently working on a book called The Burden and
Benefit of Doubt: Legal Maxims in Islamic Law. She received a BA from Georgetown
University, a JD from Yale Law School, and an MA and PhD from Princeton University.
Javaid Rehman, Professor of Law, and Head of Brunel Law School, Brunel University,
London, United Kingdom.
Abdullah Saeed is currently the Sultan of Oman Professor of Arab and Islamic Studies and
Director of the National Centre of Excellence for Islamic Studies at the University of
Melbourne, Australia. His research focus is the negotiation of text and context, ijtihad
and interpretation. Among his publications are: Islamic Political Thought and Governance
(edited, 2011); The Qur’an: An Introduction (2008); Interpreting the Qur’an: Towards a
Contemporary Approach (2006), Islamic Banking and Interest (1999); Freedom of Religion,
Apostasy and Islam (co-authored, 2004); Islam in Australia (2003). He is a member of the
UNESCO Commission of Australia and a Fellow of the Australian Academy of Humanities.
He has a wide range of professional and research relationships around the world and is on
the editorial board of several international refereed journals. He is well-known for his inter-
faith activities in Australia and overseas and for his reformist outlook.
Adel Omar Sherif is a career judge who has been acting as a Deputy Chief Justice
of the Supreme Constitutional Court of Egypt since 2002. He is also a Distinguished
Visiting Professor of Law at SMU’s Dedman School of Law, Dallas, Texas. Additionally,
he is the Vice President of the International Judicial Academy in Washington,
DC. Throughout his career, he has been fully engaged in various activities within the
legal community in Egypt and also abroad, contributing intensely to the development of the
international judicial movement. He has worked closely with many international organiza-
tions in developing capacity building programs for judges and lawyers from different legal
traditions, especially in the area of environmental law and sustainable development, human
rights, and child protection. Occasionally, he has been dispatched to and/or become
affiliated with a number of academic institutions, both inside Egypt and outside. His
published works cover many aspects of human rights, constitutional issues, Islamic law,
and environmental law.
Sumner B Twiss, Distinguished Professor of Human Rights, Ethics, and Religion at Florida
State University and Professor Emeritus of Religious Studies at Brown University. He is the
co-author or co-editor of seven books and the author of over fifty major articles. His fields of
expertise include comparative religious ethics and intercultural human rights.
Lynn Welchman, Professor of Law in the Middle East and North Africa, School of Oriental
and African Studies, University of London. Publications include Women and Muslim Family
Law in Arab States. A comparative overview of textual development and advocacy (2007);
‘Honour’. Crimes, Paradigms and Violence Against Women (2005, co-edited with Sara
Hossain); Women’s Rights and Islamic Family Law: Perspectives on Reform (2004, ed.); and
Beyond the Code: Muslim Family Law and the Shar‘i Judiciary in the Palestinian West Bank
(2000). Founding Editor, Muslim World Journal of Human Rights; series editor, Oxford
Islamic Legal Studies; Board of Directors, INTERIGHTS (The International Centre for the
Legal Protection of Human Rights); Board Member, Euro-Mediterranean Foundation of
Support to Human Rights Defenders.
Editors’ Introduction
From ‘Common Ground’ to ‘Clearing Ground’: A Model
for Engagement in the 21st Century
Anver M Emon, Mark S Ellis, and Benjamin Glahn
A. Interrogating ‘common ground’
This book is the culmination of a multi-year effort by the International Bar

Association, the Salzburg Global Seminar and a group of global leaders in law,
education, and civil society. The book itself focuses on the intersection of, and
often conflict between, international human rights law and Islamic law. It repre-
sents nearly five years of dialogue between people of different perspectives, all of
whom share the hope of a more humane global order. At a time when the
foundations and universal claims of international law have been openly chal-
lenged,1 and when the long and rich tradition of Islamic law has been degraded
by extremists on all sides, our collective objectives have found expression in the
pages of this anthology. This book emerges from that context and those aims at a
time when the language of fear and the primacy of security have made the
aspirations of openness and pluralism more difficult than they should be.2 As a
result, the difficulties of engagement, particularly on the most contentious issues
lying at the intersection of Islamic law and international human rights law, have
become more important than ever. Those who have contributed to this book over
the past five years, whether as authors or discussants, have endeavored to design and
delineate a space for dialogue about the demands and aspirations of each tradition
that is also characterized by critical analysis, self-reflection, and mutual respect in
the pursuit of common ground.
Pursuing that dialogue, though, has required a long-term commitment and
engagement, and the results have been transformative for all involved. The seed
1 Antony Anghie, Imperialism, Sovereignty, and the Making of International Law (Cambridge:
Cambridge University Press, 2007); Martti Koskenniemi, Gentle Civilizer of Nations: The Rise and
Fall of International Law 1870–1960 (Cambridge: Cambridge University Press, 2001).
2 Islamic law is increasingly being framed and evaluated by a concern for security. See for instance,
Sharia: The Threat to America (Washington DC: Center for Security Policy, 2010).
Islamic Law and International Human Rights Law. Anver M Emon, Mark S Ellis and Benjamin Glahn.
© Oxford University Press 2012. Published 2012 by Oxford University Press.
2 Editors’ Introduction
for this project—and for this book—was planted in 2007, when the Salzburg
Global Seminar and the International Bar Association co-hosted an international
seminar on the challenges of balancing security, democracy, and human rights in an
age of terrorism. In a post 9/11 context, after the invasions of both Afghanistan and
Iraq, and alongside the increasing tensions, violence, and mistrust between the
countries of North America and Europe on one hand, and those of the Muslim
world on the other hand, serious questions had arisen about the ability of inter-
national law to protect fundamental rights and minimum standards of human
decency in an age of terrorism. In hindsight, it is perhaps not surprising that the
result of that seminar was a desire among all the participants not only to examine
the elevation of security concerns to the potential detriment of the rule of law, but
to understand more completely the diversity of Islamic law and its interpretations,
and in particular, to identify areas of common ground that might exist between
both traditions.
Seen from this perspective, the collective imperative to search for common
ground is perhaps all too natural, especially in the context of the continuing
conflicts since 11 September 2001. However, that imperative is not solely the
product of 11 September 2001. Rather, it has its own unique historical genealogy,
which was pushed to the forefront of geo-political considerations by the events of
that day, but does not find its origins there. The desire to identify ‘common
ground’ must be understood as situated within a larger history of engagement,
conflict, and tension. That history involves the centuries-long development of
religious traditions, the tensions inherent in Muslim encounters with Europe
(and vice versa), the breakup of predominantly multinational empires, including
the Ottoman Empire, the advent of modern European states and their colonial
endeavors, and the rise of independent nation-states in the Muslim world after
World War II.
Addressing that history necessitates the exploration of important questions about
the meaning of ‘common ground’. Contemporary scholarship on Islamic law and
human rights has involved different approaches and methods in the search for
common ground. One method is to identify those instances where Islamic legal
doctrines coincide with the content of human rights law, while proclaiming as
outdated or inapplicable those other areas of Islamic law that conflict with the
contemporary body of international human rights law. For advocates of human
rights, this approach is satisfying—it pays respect to the contributions Islamic law
can make, but forfeits no ground and makes no concessions to a commitment to
the full scope of human rights protections and doctrines.3 Yet, for those suspicious
of human rights, this approach showcases an important problem—it assumes either
the universality, the truth, or simple authority (if not authoritarianism) of human
rights doctrines over and against all other traditions of value. This approach
employs an implicit (and sometimes explicit) hierarchy of values, where human
3 See for instance, Abdullahi Ahmed An-Na’im, Toward an Islamic Reformation: Civil Liberties,
Human Rights and International Law (new edn, Syracuse: Syracuse University Press, 1996).
From ‘Common Ground’ to ‘Clearing Ground’ 3
rights are at the top, and other traditions, such as Islamic law, rise or fall based upon
their capacity to meet the standards set by the human rights tradition.
Unsurprisingly, the Muslim world has generated a second approach, which is
perhaps best understood as a response to the hierarchy implicit in the first
approach. Advocates of this second approach argue, in apologetic fashion, that
the traditions of Islamic law espoused human rights protections centuries before
those enshrined in Western doctrine. Proponents of this view refer to the condi-
tions of women, for instance, in pre-Islamic Arabia (ie pre-7th century ce) and
suggest that the rules concerning women that were introduced by the Qur’an and
Muhammad’s teachings were designed to enhance the standing of women in
society.4 Certainly as a historical matter that may be true. But they fail to account
for the conditions of modernity, and the way in which the early doctrines to which
they refer are at best non-responsive to the context of contemporary human rights
concerns and aspirations, and at worst, contrary to the very human rights norms
that they proclaim are embedded in Islamic legal history.
Furthermore, this second approach does not adequately account for the complex
history of human rights, and the processes by which its aspirations have become
embedded in a global language of rights and protection. The adoption of human
rights conventions at the end of World War II and following the Cold War marked
the beginning of a new era in which certain international human rights principles
transcended boundaries of culture, religion, and even the state. From a substantive
perspective, many human rights can now be regarded as universally protected. This
idea has gained broad currency, as evidenced by the Charter of the United Nations,
the Universal Declaration of Human Rights, multilateral treaties, developments in
international humanitarian law, and, importantly, their incorporation within the
more general framework of international customary law.5 In the aggregate, this
points to an effective global consensus that the protection of human rights is
universally applicable.
A third approach might suggest that no common ground can be found at all, and
that we must instead embrace the reality of distinct systems of meaning and value,
which cannot be evaluated except on their own terms. This argument, a crude form
of the cultural relativist position, implies that traditions all have a history and
provenance uniquely their own, should be valued on their own terms, and cannot
be compared or contrasted to other traditions or foreign frameworks.6 In an era of
deep conflict and political correctness, this approach is tempting because it seeks to
understand each tradition on its own terms and neither condemns nor judges one
tradition over another. However, if left unchecked this third approach has the
4 James C N Paul, ‘Islam and the State: The Problems of Establishing Legitimacy and Human
Rights’ (1991) 12 Cardozo LR 1057–71, 1067; M K Nawaz, ‘The Concept of Human Rights in
Islamic Law’ (1965) 11 Howard LJ 325–32, 325.
5 The Princeton Principles on Universal Jurisdiction (Princeton: Program in Law and Public Affairs,
2001). For an online copy of the document, see <http://www.lapa.princeton.edu/hosteddocs/unive_

jur.pdf> accessed 6 March 2011.
6 Reza Afshari, ‘An Essay on Islamic Cultural Relativism in the Discourse of Human Rights’ (1994)
16(2) Human Rights Quarterly 235–76.

potential to essentialize and rarify traditions without accounting for how each is
embedded in a dynamic of contest, adjudication, and governance.
A fourth and final approach situates the dialogue about common ground
at a more abstract level, positing parallel lists of core values in both Islamic law
and international human rights law. Where the lists overlap is where common
ground exists.7 However, this approach suffers from an altogether different failing:
the triumph of hope over experience. To identify common ground as simply the
overlap of abstract common values is easily rendered naïve. In this instance, the
failure to account for the particular, contextual, and more nuanced issues and
conflicts that arise between—and even within—each tradition often undercuts the
sometimes legitimate and parallel values that may, in fact, exist within the trad-
itions.
As this project developed, it became clear that none of the above approaches
would be satisfactory, either from the perspective of academic inquiry or from
the perspective of experience and practice. This collection of essays and commen-
taries therefore adopts an altogether different approach. It espouses a genealogical
approach, which the authors collectively refer to as ‘clearing ground’, and is
explained further below. This is not to suggest a retreat from the search for
common ground, but rather a recognition that the aspiration for common ground
is one that must be approached carefully, with due attention to the historical,
intellectual, and political contours of each tradition.
B. On ‘clearing ground’
In this book, the authors clear ground by examining the deeply contextual nature of
how Islamic law and international human rights law are legitimately formed,
interpreted, and applied. Rules of law or statements of fundamental freedoms do
not exist in the abstract or in a vacuum. They are made manifest in the world often
through institutions of law and government. From human rights commissions to
legislative assemblies, laws are designed with competing interests at stake, and their
claim to legitimacy is, ultimately, a claim that they are authoritative and thereby
deserving of obedience and adherence.
Most importantly, there are innumerable instances in which freedoms—in both
traditions—may be legitimately limited, which raises important questions about
the intelligibility of the arguments that justify such limitations. For instance, we
might accept as a given that human rights documents protect the freedom of
speech. Yet it would be naïve to think that such a freedom is absolute. Rather,
jurisdictions around the world recognize that not all speech is protected; speech
must, in some cases, be limited. But limited in light of what set of interests? For
instance, what does freedom of speech mean in many European countries where
7 A recent example of this approach is modeled in the letter from Muslims to the Christian world
entitled ‘A Common Word Between Us and You’. For the letter and other related materials, see
<http://www.acommonword.com> accessed 24 October 2011.
denial of the Holocaust is strictly prohibited? Likewise, while many Muslim

countries uphold the freedom of speech, what do they mean by that freedom
when they also invoke Islamic law to justify punishing those who blaspheme against
Islam? In both contexts, freedom of speech is protected; but it is also limited by
certain considerations that are deemed legitimate in a given legal system. Those
considerations—their content, provenance, and application—are the object of
study in this volume. Consequently, the relevant question is not whether Islamic
law and international human rights law uphold a particular freedom or not. Rather,
the fundamental question asked by the authors in this volume is: what does it mean
to legitimately limit a particular freedom, and what do those limits signify about the
legal system under consideration?
This book is structured around particular topics that offer flash-points for
debate, but also require considerable contextual analysis. In each of the following
Parts, a scholar of international human rights law and a scholar of Islamic law
address a single issue from the perspective of his or her respective area of specializa-
tion. The authors were not asked to address or critique the other tradition. Rather,
each author has researched his or her own tradition to uncover and lay bare the
ground on which the particular tradition (whether human rights or Islamic law) has
been built. Far from embracing either a universalist, cultural relativist, or hierarch-
ical model of engagement, this project attempts to adopt a model of engagement
that prioritizes humility and self-reflection. Before attempting to build bridges or
seek common ground across a river of discontent or a chasm of disagreement, we
must first assess how firm and settled our starting points may be.
What makes something firm or settled, though, may differ when considered by
the scholar residing in the university, the legal advisor to the United Nations, and a
grass roots civil society leader. For that reason, each pair of essays is followed by
commentaries from leading figures representing a diverse range of sectors. The
commentators include senior domestic judges from different parts of the globe,
international legal advisors to domestic governments and international organiza-
tions, and civil society leaders working as advocates (whether in the classroom or
the courtroom). The commentators offer written responses to one or both essays
on the particular substantive topic, bringing their expertise, experience, and voices
to the discussion. The combination of scholars and international leaders, methodo-
logically speaking, forces a conversation between different communities which are
not often in dialogue with one another. This book thereby presents a series of
conversations that, in the aggregate, reveal how getting past our own essentialisms
about our values and our communities (ie clearing ground) is a precondition for an
effective model of engagement when contending with difficult questions that arise
when juxtaposing Islamic law and international human rights law.
C. Clearing ground, revealing the state
Although the title of this book juxtaposes Islamic law and international human
rights law, the juxtaposition hides something that the international participants
involved in this project have emphasized repeatedly. Namely, the juxtaposition
posits two traditions without sufficiently problematizing the role of the modern
state in giving these traditions force and effect. To address Islamic law or inter-
national human rights law without recognizing and accounting for the mediating
role of the state is to address abstract ideas in a vacuum, and to run the risk of
pursuing ‘red herrings’.
For instance, Islamic law has a history that is rooted in the 7th century ce. For
hundreds of years students studied the Qur’an, the prophetic traditions (hadith),
and the sea of legal doctrines (fiqh) that premodern jurists developed through their
interpretive engagement with source-texts, namely the Qur’an and hadith. This
early history of Islamic law is well documented in accessible introductions to the
field and is addressed in Part I, so will not be repeated at length here.8 The
important point, for the purpose of this book, is that the early tradition of Islamic
law, which had a broad scope of application (eg criminal law, contracts, torts,
judicial administration, bailments, religious rituals, etc), has been drastically limited
in its scope and application in the modern Muslim state. With the advent of
colonialism in the Muslim world, the local institutions of Islamic learning and
government were dismantled to make room for the institutions of colonial adminis-
tration. By the second half of the 19th century, the Ottoman Empire had initiated a
series of legal reforms that effectively incorporated European legal codes and
supplanted the jurisdiction and force that the premodern Islamic legal tradition
once held. Later, when colonial occupation ended and Muslim majority states
gained their independence, these states did not return to a rule of law system that
embraced the full scope and extent of premodern Islamic legal doctrines. While
many Muslim states incorporated constitutional provisions identifying Shari‘a as a
source of law, such as Egypt and Iraq,9 most have also introduced European legal
models to develop their own nascent national legal systems. In doing so, they
continued to limit the force and effect of Islamic law in national legal systems, while
allowing non-state actors to develop and espouse their Islamist agendas outside the
control of formal, official government institutions.
In today’s Muslim countries, the principal area of substantive law still influenced
by Islamic law is the area of personal status, namely marriage, divorce, inheritance,
and child custody. Many states have special personal status statutes that govern
these matters; and the statutes often reflect the premodern Islamic legal doctrines
governing marriage and divorce. A few states may attempt to apply Islamic criminal
law, but that is both rare and more often politically significant than legally
significant. For instance, the state of Kelantan in Malaysia passed an Islamic
criminal law statute in 1993, which might raise concerns about Islamic law and
human rights. But since criminal law is a federal and not a state matter in Malaysia,
the Kelantan legislation is more a symbol of the politics of Islam in Malaysia, rather
8 Knut S Vikr, Between God and the Sultan: A History of Islamic Law (New York: Oxford
University Press, 2005); N J Coulson, A History of Islamic Law (1964; reprint. Edinburgh: Edinburgh
University Press, 1997).
9 For a study on Egypt’s constitutional provision on Islamic law and related jurisprudence, see Clark
B Lombardi, State Law and Islamic Law in Modern Egypt (Leiden: Brill, 2006).
than a legal challenge to the international human rights regime. To view the
Kelantan legislation as indicative of the threat and challenge of Islamic law to
international human rights law fails to appreciate the effect of the state on the
content, scope, and application of Islamic law today.
In a similar sense, international human rights law cannot be viewed in the
abstract. Its meaning, application, and effect cannot be fully evaluated without
reference to the state. Generally speaking, international law does not operate
without states. While international human rights law has increasingly been brought
to bear on non-state actors, states remain the principal focal point of international
law generally, and international human rights law specifically. For instance, states
may be parties to human rights conventions, agreeing to accede and ratify, with or
without reservations, restrictions, and covenants. State representatives appear before
treaty bodies to account for their compliance or derogation from the terms of
the treaties. Judicial bodies that adjudicate human rights conventions, such as the
European Court of Human Rights, have developed doctrines that defer to the power
and authority of state-parties which are brought before the Court, such as the
doctrine of the margin of appreciation. Even the newest international war crimes
tribunal—the International Criminal Court—can penetrate the sovereignty of the
state, but it does so with great caution and restraint, under a principle of comple-
mentarity, in the interest of upholding the sovereign interests of modern states.
The contributions in this volume recognize that to understand either Islamic law
or international human rights law requires a deep engagement with the ways one or
both are framed by state actors. For some authors, their focus on human rights and
the state will lead to an exploration of the disagreements between state representa-
tives when considering the language of a human rights treaty protecting religious
freedom. For others, accounting for the modern state in any study of Islamic law
allows them to appreciate how premodern Islamic governance elided the political
and the religious in ways that are kept different, distinct, and separated in more
secular models of the modern state. In other words, the question about legitimate
limits and what such limits signify implicitly suggests that no study on Islamic law
and international human rights law can proceed without also taking into account the
ways in which the modern state conditions the scope and meaning given to both.
D. ‘Clearing ground’ as modus vivendi
For the reader to appreciate what this book attempts to offer, it is important to
understand that the ‘clearing ground’ approach adopted by the authors herein has
been informed by a method of engagement that transcends the contents of these
pages. This book is the result of a partnership between two international insti-
tutions, the International Bar Association and the Salzburg Global Seminar,
thereby bringing to bear upon this work the influence of two institutions commit-
ted to the legal profession, global education, and engagement across different
sectors of society. This book brings together authors from nearly a dozen countries,
all of whom have occupied (and in many cases still do occupy) positions in
government, the judiciary, the legal profession, civil society (domestic and inter-
national), and the academy. The partnership and participation of such diverse
organizations and people presents a model of engagement that is characterized by
the openness and commitment of an international group of institutional partners,
scholars, legal professionals, and civil society leaders to set a new stage for long-term
engagement. At a time when so much of the dialogue on Islam and international
law is sponsored by government agencies, many of which are responsible for
national security and counter-terrorism portfolios, the institutional partners behind
this project help to clear ground by virtue of their very different points of departure.
The partners in this project recognize that international legal principles and edicts
that isolate, offend, or simply ignore one-fifth of the world’s population—the 1.2
billion people who adhere to the diverse principles of Islamic law—risk emasculat-
ing the word ‘international’ in law.
The success of the 2007 seminar in Salzburg referred to at the beginning of this
introduction led to a follow-up programme, which the Salzburg Global Seminar
and the International Bar Association convened from 25–30 October 2008. This
programme brought together 60 experts in Islamic and international law, leading
members of the international legal profession, and civil society advocates from
25 countries in an attempt to find common ground between these traditions and to
search for complementary principles that might enable a harmonization over time.
The assembled experts from government, civil society, and academia confirmed
that—at that time—a sustained international dialogue focusing on this critical
agenda was not occurring elsewhere. Certainly there were—and continue to be—
scholarly debates about this issue, and international organizations such as the UN,
World Bank, and WTO must contend with varying concerns about human rights,
development, and structural adjustment programs in the Muslim world. Nonethe-
less, the audience gathered at the 2008 Seminar noted that the international
community has limited opportunities to engage in a committed cross-sectoral
dialogue on issues of shared concern, especially on issues that manifest themselves
differently depending on the context and mandate of one’s institutional position.
Furthermore, the Seminar’s findings indicated that any attempt to bridge the gap
between Islamic law and international human rights law will not only require a
series of high-level meetings between Muslim scholars and jurists, international
lawyers, and academics, but also a sustained, focused, and practically oriented
project that can nurture critical research and dialogue across both traditions and
across different stake-holder communities. Most tellingly, however, those gathered
in Salzburg at the 2008 seminar raised serious doubts about the intelligibility of
‘common ground’. The participants argued that the search for ‘common ground’
can be intellectually unsatisfying when commonalities are pitched at the most
abstract level. Furthermore, such an approach can risk framing the apparent
commonalities in terms of the supremacy of human rights over Islamic law, or
vice versa. In other words, such approaches rely on the normative primacy of one
tradition, while inquiring whether the other can ‘catch up’, so to speak.
To build on the October 2008 findings, to explore the intelligibility of and
alternatives to common ground, and to set out an agenda of research and engage-
ment, the Salzburg Global Seminar and the International Bar Association thereafter
sought to develop a research project that would bring together:
• an international group of scholars with expertise in the modern body of
international human rights law;
• scholars of Islamic law from around the world;
• government officials from the United States, Europe, and different countries
in the Muslim world;
• civil society leaders who are active at the intersection of law, religion, and
human rights in their countries.
Scholars who specialize either in international human rights law or Islamic law were
invited to draft research papers on pre-selected topics that are often flash-points
of international debate (if not polemics) about Islam and the West, Islamic law and
the modern world, or, to invoke a now well-known phrase from Samuel Hunting-
ton, the ‘clash of civilizations’. The authors presented their initial drafts at a
workshop in May 2010, which was sponsored and hosted by the Center of
Theological Inquiry (CTI), based in Princeton, New Jersey. CTI is an ecumenical
institution that supports scholarly research in and about religion in our world
today. It is a place where discourses about religion, theology, and society are
respected and taken seriously. CTI’s director William Storrar offered the authors
a space where faith and scholarly excellence go hand-in-hand. In the idyllic setting
of Princeton, and within the comfort and intellectual openness provided by CTI,
the authors convened a frank discussion and analysis of each other’s work, as well as
the aim of the project as a whole. This workshop was an important turning point
for the project. At the workshop, the authors came to terms with the limits of the
four approaches noted above, and began to embark on the ‘clearing ground’
method that characterizes this volume. The value of this method was made plain
when approximately 50 people met in Salzburg for a third seminar from 14–19
November 2010 under the sponsorship of the International Bar Association and
the Salzburg Global Seminar. The participants represented a cross-section of
scholars, government officials, and civil society leaders from over 15 countries.
Together they evaluated the project and offered important feedback and criticism
to the authors and editors.
This book, therefore, is more than a series of essays and commentaries. It
represents the commitment of an international group of institutional partners,
scholars, legal professionals, and civil society leaders in dialogue with each other
over a period of years. As the embodiment of this sustained commitment, this
book aims to model the kind of engagement needed for the 21st century. Beyond
the publication of the book itself, the International Bar Association, the Center of
Theological Inquiry, and the Salzburg Global Seminar will continue to pursue their
commitment to these critical issues, seeking to find and facilitate solutions to the
challenges facing the international legal community.
E. Overview of the book
This book is divided into five Parts. Each Part presents an essay by a specialist in
international human rights law and a second by a specialist in Islamic law and legal
history. Both essays are followed by commentaries by leading figures from the
academy, judiciary, international legal profession, and civil society. The commen-
tators were asked to reflect on one or both of the essays by bringing their experience
and expertise to bear upon their assessment and analysis. With the exception of
Part I, each part focuses on a particular flash-point in the debates on Islamic law and
international human rights law. The focus on flash-points is not meant to suggest
that the full scope of debate on Islamic law and international human rights law is
reducible to these few issues. Rather, these issues offer sites of engagement where
the authors model the method of ‘clearing ground’, in the hope that others will
pursue similar lines of inquiry and engagement on other compelling issues. There
are many topics that remain unaddressed in this anthology. The aim of this project,
however, was never to offer a comprehensive account of all such flash-points.
Rather, this project is offered as a model that we hope others will adopt or build
upon in the pursuit of greater understanding between and across traditions of value.
In Part I, Kathleen Cavanaugh and Anver M Emon provide an introduction to
the disciplines of Islamic law and international human rights law, while framing
their discussion in terms of the genealogical approach that defines the contributions
in this volume. While reading these two initial essays and the commentaries on
them, the reader is asked to keep the following questions in mind, and revisit them
when reading each subsequent part of the book:
• Where, under what circumstances, and by whom are transgressions of Islamic
law and international human rights law adjudicated?
• What are the implications of regional human rights systems on domestic and
international legal systems? Likewise, what are the implications of Islamic law
on domestic and international legal systems?
• To what extent do individual states mediate what we experience as Islamic law
and international human rights law?
• How will the significance of Islamic law and international human rights law
change as the efficacy of the state rises and falls?
• What is the role of civil society in the development and jurisprudence of
Islamic law and international human rights law?
These are the questions that animate the essays and commentaries in Part I. No
specific contribution necessarily responds to all of these questions. And some
readers may find that none of the contributions address them in part or in whole.
Nonetheless, these questions are relevant not only to the contributions to Part I,
but to the project as a whole. Part I is designed to set the framework of analysis that
animates the subsequent chapters in the book.
Part II addresses the regulation of speech under both Islamic law and inter-
national human rights law. The global community has become keenly aware of how
contentious freedom of speech can be, particularly between human rights advocates
and those claiming to represent Muslim interests. The 2006 Danish cartoon
controversy presents a memorable instance of such contests. For some, this contro-
versy pitted freedom of speech against religious intolerance. Yet as most legal
academics would readily acknowledge, no society protects the freedom of speech
absolutely. While Pakistan and Austria may support freedom of speech, for in-
stance, the former criminalizes blasphemy against the Prophet and his family, while
the latter prosecuted Holocaust denier David Irving in February 2006. The essays
by Nehal Bhuta and Intisar Rabb are offered as initial models of ‘clearing ground’,
using speech and other forms of expressive acts as points of departure.
Religious freedom is the subject of Part III. Across the globe, religious freedom
has been and continues to be a hotly contested issue that animates not only civil
society activism, but also the determination of the scope and quantity of govern-
ment foreign aid packages. For instance, in Malaysia’s Lina Joy case, a Malay
Muslim woman who disavowed Islam was required to appear before a Shari‘a
court before changing her identity on her identity card. Her simple proclamation
of a change in her faith was not sufficient for government identification purposes,
thus raising doubts about the quality of Malaysia’s commitment to religious
freedom. In Sahin v Turkey,10 the European Court of Human Rights held that
Turkish rules against women wearing headscarves at university are justifiable limits
on the petitioner’s freedom of religion. Despite no showing of harm to others, the
Court deferred to the Turkish state’s claims about the impact of the headscarf in the
university in light of Turkey’s commitment to a democratic secular ideology. When
reviewing the relevant constitutional and human rights conventions in Malaysia
and for the European Court of Human Rights respectively, religious freedom is
identified as an important value to protect. But in both cases above, petitioners
seeking to vindicate their religious freedom were told that the limits imposed upon
them were legitimate, whether under domestic Malaysian law or under the juris-
prudence of the European Court of Human Rights. To better appreciate the nature
and significance of these limitations, Urfan Khaliq pursues an important set of
questions about the history of religious freedom protection in human rights law,
while Abdullah Saeed problematizes the all-too-easy distinction between religious
and political identity when addressing premodern Islamic legal traditions on
apostasy. Khaliq’s and Saeed’s chapters, together, showcase the difficulty of separ-
ating the two when considering the way religious freedom is to be understood,
whether under an international human rights law regime or an Islamic legal one.
Their essays, along with the commentaries, pose important questions about the
meaning and content of ‘religion’ in both international human rights law and
Islamic Law, the justifications used to limit religious freedom, and the implications
of a deeper appreciation of the rationale for such limits.
Part IV focuses on women’s equality under both international human rights law
and Islamic law. Women’s equality represents a unique challenge for the world
10 Application no 44774/98 [2005] ECHR 819 (10 November 2005).

community. The explicit friction between Islamic law and international human
rights law in the area of gender equality may be the most perplexing problem that
brings readers to this book. Clearly, for human rights activists, the issue of women’s
equality is one of the most troubling aspects of Islamic law. Around the world news
accounts abound with horrific stories of abuse against women, often justified by
reference to Islamic law. Yet many post-colonial feminists have taken issue with the
way in which women’s rights activists who promulgate a formal equality agenda fail
to understand the limitations of such an approach, or the way in which such a
model of equality can become dangerously hegemonic and run counter to the
interests of the lived experience and realities of women on the ground. In their
essays, Ziba Mir-Hosseini and Ratna Kapur explore the jurisprudence on women
and equality by bringing distinct international perspectives to gender equality
debates from India and the international context of Islamic legal reform. In
combination with the commentators, they raise important insights about the
rationales used to justify certain arguments about gender equality, the limits on
the scope of women’s equality, and the principles, values and politics that animate
global debates on women’s equality.
Part V addresses the issue of minority rights. This issue is of paramount concern
given the global concerns about the rights of indigenous peoples, the treatment of
the Roma in Europe, and the more recent tensions in North America and Europe
over the issue of immigration and multiculturalism. Multiculturalism—and recent
suggestions of its failure—has become an important issue in Europe and North
America as governments contend with the challenge and limits of accommodation.
Immigration is not the only factor inciting such debates. In the Muslim world,
minority groups (especially religious minorities) seek greater inclusion in the polity,
despite being actively discriminated against. There is considerable concern about
the extent to which an Islamically inspired state can and will treat religious
minorities with equal respect. The essays by Anver M Emon and Errol P Mendes,
and the commentaries on both, examine the protections offered to minority groups
under both Islamic law and international human rights law, raising important
insights about the limits of the law, and the increased vigilance required to protect
those who are otherwise under-represented.
The book closes with an epilogue by Robin Lovin, who participated at the
authors’ workshop at the Center of Theological Inquiry and again at the Salzburg
session in November 2010. Having worked with a group of Christian theologians
and legal scholars on issues pertaining to Christianity and international law, Lovin’s
epilogue reminds us that the challenge of pursuing common ground is not simply
one that faces the Islamic and human rights traditions, but rather is common to any
tradition of faith and/or value that comes into contact with another. Given how
technology allows us to be in touch with so much more of the world than before,
the imperative to find new models of engagement and dialogue is only increasing in
importance as older models reveal their limits.
This book is far from a complete assessment of flash-points that arise at the
intersection of Islamic law and human rights. It was never meant to be comprehen-
sive. Rather, it represents a method of engagement that requires an expertise and
scholarly rigor that are in large part possible because each contributor starts from
the position of honest self-reflection and humility about the tradition that he or she
works within or studies. Indeed, a project like this is possible because of the
sentiments and values each contributor to this book brings to this endeavor. In
other words, this volume offers the reader both scholarly excellence and an ethic of
self-reflection that each author has brought to bear on each page. That ethic is
represented by the contributors as they delve deeply into the ways in which human
rights principles and/or Islamic doctrines rest on assumptions of value that are all-
too-often implicit, but which these studies make explicit. By making those
assumptions explicit, they provide initial direction for new questions and avenues
of inquiry that we hope readers will pursue both on their own and in conversation
with others.
PART I
I S L A M I C LA W A N D
INTERNATIONAL HUMAN
RIGHTS LAW
In our current political and cultural era, an era marked by suspicion and misun-
derstanding in the vast majority of debates about Islam and the role of Islamic legal
traditions, both the international law and human rights community and the Islamic
legal and scholarly community have a tendency to speak in categorical terms when
discussing each other’s legal traditions. In this environment, attempts to ‘define’ the
essential meaning of human rights in these traditions often result in references to
broad, abstract notions of various freedoms, or a devolution into a debate about
extreme punitive measures, such as hand amputation and stoning. Such reductive
approaches to both traditions leave very little room for flexibility in establishing
‘common ground’. The problem is deepened by confusion over what Islamic law is
and who speaks for it, and also over the definition and application of international
human rights law.
This is not surprising. Islamic law, like many aspects of Islamic cultural and
religious heritage, is currently at the center of a long-standing public debate about
the nature of Islam, the role it plays in the lives of its adherents, and the scope to
which it can and should be accommodated in various parts of the public sphere,
whether in Muslim majority states or in states where Muslims are minorities.
At times, the tenor of these debates can become polemical, all too often fueled by
fears of terrorism, immigration, and human rights abuses. While this debate goes
back several decades, recent years have seen a dramatic increase in the tensions
between the Islamic world and the West, particularly as some states have pursued
the so-called ‘War on Terror’. That, coupled with a series of controversies over
Islamic law in the Muslim world, has heightened anxieties about Islamic law in
countries from South and Southeast Asia to Europe and North America. These
anxieties are not entirely baseless. The prosecutions for adultery of Amina Lawal in
Nigeria and Sakina Ashtiana in Iran (with the consequent punishment of stoning to
death) have galvanized the international community into condemning such prac-
tices. The way in which al-Qaeda leaders invoke Islamic legal doctrines on jihad
to justify their acts of terrorism increases the fears of those who worry about
16 Islamic Law and International Human Rights Law
indiscriminate acts of violence. Given these and other incidents, Islamic legal
doctrines have come to be viewed as synonymous with violent punishment, gender
inequality, and the application of a rigid, premodern, and bigoted religious code.
The authors of this volume recognize that there are clearly examples where Islamic
law has been implemented in harsh and offensive ways. However, widespread and
categorical perceptions of Islamic law as an inflexible and codified legal regime fail
to allow for a nuanced and constructive public discourse about the specific rights,
obligations, and processes that are part of the Islamic and international human
rights traditions, the extent of real conflict between them, and the possibility for
dialogue on issues of common concern.
The contributors to Part I show that as traditions based upon both legal doctrine
and interpretation, neither Islamic law nor international human rights law exists in
a vacuum. For example, Islamic law is not applied completely in any single country.
Instead, it most often exists within a modern state system and is limited in both its
scope and application. Appreciating that limit, and the way in which individual
states arrive at a legal understanding of that limit, is a critical aspect of understand-
ing Islamic law as it is applied in specific contexts, as well as the possible common
ground that exists between Islamic and international law. Likewise, international
human rights law takes various forms, whether in terms of declarations, inter-
national treaties, or regional agreements. Whether and to what extent they are
applied in any given state will depend on the terms by which a state ratifies a
particular treaty or convention. Furthermore, in some cases, the meaning of a
particular human right is subject to ongoing judicial interpretation, as witnessed by
the developing jurisprudence of the European Court of Human Rights. These
observations have serious and significant implications on whether and to what
extent ‘common ground’ can be found. They have also helped to lay the founda-
tions for both the initial engagements which gave rise to this book, and an agenda of
‘clearing ground’ between these two legal traditions.
1
Narrating Law
Kathleen Cavanaugh
A. Introduction
The idea that law is ‘narrated’ disrupts the notion that, within international
relations, there exists an institutional framework of legality and a rule of law that
is pre-political. If our reading of international law is one in which the space between
law and politics is blurred, then law cannot be read as either ‘divine’ or unmediated
but must be understood ‘as an aspect of hegemonic contestation, a technique of
articulating political claims in terms of legal rights and duties’.1
The dialectic between the textualist and contextualist readings of the primary
sources of international law illuminates a hegemonic contest; a performance of sorts
where law is mediated, or narrated. That law ‘performs’ is to argue that its function
is to ‘disguise the true realities of power, [whilst], at the same time [appear to] curb
that power and check its intrusions’.2 The normative developments within inter-
national law that dominated the post 9/11 landscape brought this performance into
the public square and the differentiated readings (yielding differentiated ap-
proaches) to the interpretation and application of international law into sharp
focus.
Within the current legal landscape of ‘exception’,3 states attempt to displace the
rules that govern the use of force with notions of pre-emptive self-defence and
‘humanitarian’ intervention (whilst asserting claims to ‘self regulation’). Other
normative developments have included the introduction of an armed conflict
paradigm, and changes to the derogation regime, to name but a few. Although
the political regimes of both the US and the UK, the most visible architects of these
narrations, have changed, the vestiges of their ‘war on terror’ policies remain. The
impact on the rights framework has been twofold. The endeavours to place war in a
1 Martti Koskenniemi, ‘International Law and Hegemony: A Reconfiguration’ (2004) 17(2)
Cambridge Rev Int’l Affairs 197.

2 E P Thompson, Whigs and Hunters, the Origins of the Black Act (Pantheon, 1975), 265.
3 The notion of ‘exception’ is present in international law, where a state declares a state of
emergency under the derogation regime, but I am also using it here to characterize measures taken
by the state which are extra-legal but framed in a ‘state of emergency’ discourse.
legal framework4 and to regulate states of exception have been strained and in some
cases eroded. At a more theoretical level, this has also exposed the assumptions of
modernity; that is, the (effective) fictional division between law, politics, juridical
order, and life itself.5 Unveiling these assumptions has left us in a ‘no man’s land
between public law and political fact’;6 a land that is now (more or less) perman-
ently occupied by a state of ‘exception’.
‘Unlearning’ the notion of law as stable and fixed, and disrupting the premise
that universality has captured an objective and universalizing truth of modernity,
underpins the task at hand; that is, to unpack what is meant by international law.
Martti Koskenniemi’s understanding of international law as a ‘technique’ is a useful
starting point. In such a reading, legal words and concepts are not outside of, but
situated within political struggle, where:
Law is a surface over which political opponents engage in hegemonic practices, trying to
enlist its rules, principles and institutions on their side, making sure they do not support the
adversary. In order to bring that perspective into focus, analysis must be shifted from rules to
broad themes of legal argument within which hegemonic contestation takes place.7
Nowhere is this contestation more evident than within international human rights
law (IHRL).8 The re-imaging of torture as a moral imperative, the tipping of the
security–rights scale (decidedly in favour of the former), and the creation of an
4 Through the creation of a just war doctrine (jus ad bellum) and by creating a body of independent,
objective and supra-personal rules applying to all belligerents alike and governing the conduct of
hostilities in a de facto situation (jus in bello).
5 This idea is interrogated further in Giorgio Agamben’s State of Exception. See Giorgio Agamben,
State of Exception (University of Chicago, 2005).

6 Agamben, State of Exception, 1.
7 Koskenniemi, ‘International Law and Hegemony’, 197.
8 IRHL occupies only a very small part of the Public International Law (PIL) system and whilst this
essay will focus on IHRL, this is not to suggest that it is the only part of PIL that is in trouble. Indeed
many of the contestations we examine within an IHRL framework extend to other parts of inter-
national law, and the following all spring to mind: the use of force (see International Law Study Series,
International Law and the Changing Character of War edited by Raul A (Pete) Pedrozo and Daria
P Wollschlaeger, Vol 87 (US Naval War College, 2010)), globalization and trade (see particularly,
A Lindroos and M Mehling, ‘Dispelling the Chimera of “Self-Contained Regimes” International Law
and the WTO’ (2005) 16(5) European J Int’l L 857–77), refugee law (see Jim Hathaway and Colin
Harvey, ‘Framing Refugee Protection in the New World Disorder’ (2001) 34(2) Cornell Int’l LJ
257–320), and the laws of peace (see particularly, Section III of C Bell, On the Law of Peace: Peace
Agreements and all the Lex Pacificatoria (Oxford: Oxford University Press, 2008). For a more general
critique of international law, the work of Martti Koskenniemi is particularly relevant. See Martti
Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument (Helsinki, Finnish
Lawyers’ Publishing Company, 1989); ‘The Wonderful Artificiality of States’, Proceedings of the
American Society of International Law (Washington, ASIL, 1994), 22–9; ‘The Effect of Rights in
Political Culture’, in P Alston (ed), The EU and Human Rights (Oxford, Oxford University Press,
1999); The Gentle Civiliser of Nations: The Rise and Fall of International Law 1870–1960 (Cambridge,
Cambridge University Press, 2001); ‘Between Impunity and Show Trials’ (2002) 6 Max Planck
Yearbook of United Nations Law, 1–35; ‘The Lady Doth Protest Too Much: Kosovo, and the Turn
to Ethics in International Law’ (2002) 65 Modern Law Review 159–75; ‘Judicial Review of Foreign
Policy Discretion in Europe’ in P Helander, J Lavapuro, and T Mylly (eds), Yritys eurooppalaisessa
oikeusyhteisössä (Turku: Turku University, 2002); ‘What Is International Law for?’ in M Evans (ed),
International Law (Oxford: Oxford University Press, 2003); M Koskenniemi and P Leino, ‘Fragmen-
tation of International Law? Postmodern Anxieties’ (2002) 15 Leiden J Int’l L 553–79.
Narrating Law 19
‘armed conflict’ paradigm that endeavours to replace both the norms and rules of
human rights and humanitarian law, are just a few examples across which a political
struggle has been waged.
In mapping out what I argue to be a re-narration of international law within an
IHRL regime (shifting the focus from the rules to the broader themes), Section B will
begin by providing a brief overview of the frameworks and primary sources of
international law as well as the various interpretive approaches. Scholarly comparisons
of the different rights regimes across cultures, which include attempts to either wed or
contrast international law and other rights schemes (eg Islamic, Asian, Customary),
enter contested terrain. Underpinning the debates, which are often ignited in this
space, are questions related to how rights are conceived and applied, and the lens
through which we approach the answers to these questions plays out in how we read
the law. Section C will, therefore, turn to these broader debates about the development
and language of international law, looking specifically at the question of universality.
Section D will concentrate on how the ‘technique of articulating political claims’
has played out specifically within the international human rights field by mapping out
the relationship of law to states of exception;9 that ‘point of imbalance between public
law and political fact’.10 I argue that the permanency of exception, ‘the legal form of
what cannot have a legal form’,11 has become the dominant legal paradigm and it is
within this dystopia that a re-narration of law is unfolding. As I will detail, the roots of
this process are deep but as Agamben has rightly argued, ‘ . . . the state of exception has
today reached its maximum worldwide deployment’.12 This section will, therefore,
focus on the performance of law in the ‘no man’s land’13 of exception to distil the
normative developments and arguments that have played out in this space.
Finally, Section E will situate these broader debates within a review of how these
approaches affect Muslim state engagement with the international human rights
machinery at the UN level. In the context of this project, the focus on IHRL is
particularly instructive as it is here where Islamic formulations of law meet the sharp
end of the norms of international law. Whether fixing on the debates within the
Muslim world or, as I will detail, at the international level, there is symmetry in the
ways in which differentiated approaches to the interpretation of law (and related
doctrines) have endeavoured to capture and shape how law is understood and applied.
B. Defining the space
There are a number of ways in which lawyers, legal scholars, and indeed political
actors articulate the law—reproducing a particular conception of legality; that of a
fixed and stable set of norms and rules that transcends the body politique. While
9 It is this exception, I argue, that now has displaced the rules of international law.
10 Francois Saint-Bonnet, L’etat d’exception (Paris: Presses Universitaires de France, 2001).
11 See Agamben, State of Exception, 1.
this essay breaks apart this particular reading of international law, a useful starting
point will be to briefly look at the background, institutions, and functions of IHRL.
The expressed purpose of IHRL is to protect the individual—and increasingly the
community—from human rights violations and positively to provide an environ-
ment in which rights can be enjoyed. It applies in times of peace as well as armed
conflict.14 Depending on the source, the origins of the human rights movement are
rooted in the advent of Western civilization, or in the American and French
Revolutions, or in the post World War II moment where, it is suggested, a collective
international conscience found expression in the Universal Declaration of Human
Rights. Whatever the trajectory, the developments of the human rights regime and
its institutions challenge the Westphalian ideal of state sovereignty, as unlike other
international institutions, ‘international human rights institutions are not designed
primarily to regulate policy externalities arising from societal interactions across
borders, but to hold governments accountable for purely internal activities’.15 Just
why states would develop such a system, one which seemingly undermines the
notion of sovereignty, has been captured in Samuel Moyn’s historical review of the
human rights movement.16 Moyn’s thesis challenges some of the rather stubborn
readings of human rights and as some critics have noted, his own contribution to this
literature is not without its own limitations.17 However, in focusing on the political
14 IHRL and the International Humanitarian Law (IHL) are two sets of complementary legal
frameworks. While both sets of legal rules [ostensibly] govern the conduct and actions of states (and in
limited cases, non-state actors) and are designed to protect the individual from violations; they apply to
different circumstances and function in different ways. The purpose of the IHL is to govern the
conduct of state actors during times of war and to limit the suffering that is inflicted during war. These
‘laws of armed conflict’ are contained in treaty-based as well as customary international law. The body
of law that regulates the conduct of hostilities is to be found in a collection of treaties often referred to
as the ‘law of the Hague’, with the modern laws of war found in the 1949 Geneva Conventions and
their related Protocols. Amongst others, the basic principles of the laws of war bind state parties
to conflict to respect the principles of distinction and proportionality (to make every endeavour to
distinguish civilians from combatants and to conduct military operations in such a manner as to keep
civilian casualties and damages to a minimum) and to ensure proper treatment of prisoners of war.
Additionally the 1954 Convention for the protection of cultural property in the event of armed conflict
confers responsibilities to protect cultural property from theft, pillage and vandalism. In the case of an
occupation, specific duties and indeed restrictions are placed on the occupying power, of primary
concern is that the occupation is temporary and that territory is returned to a situation of normalcy.
Although humanitarian law assumes lexis specialis during armed conflict, the Human Rights
Committee and other competent legal authorities have noted that a state’s human rights obligations
(under treaties which they have ratified) extend to territories to which the High Contracting Party
exercises effective control; including territories occupied as a result of military action. This final point is
important, as IHL remains unspecific with regard to a number of aspects of interpretation. As well,
human rights law affords a higher level of protection in a number of areas, especially with relation to
detention. Coupling these two frameworks provides protection for civilians not only in the conflict but
also in the post conflict stage.
15 Andrew Moravcsik, ‘The Origins of Human Rights Regimes: Democratic Delegation in Postwar
Europe’ (2000) 54 International Organization 217–52.

16 In The Last Utopia: Human Rights in History (USA: Harvard University Press, 2010), Samuel
Moyn argues that the ever expanding agenda of the human rights movement (which he suggests is now
a political ‘good governance’ lobby) may be too great a burden on the human rights movement and
may like other failed utopias—revolutionary communism and nationalism—collapse.
17 Moyn’s reflections on the historiography have, unsurprisingly, been challenged by lawyers who
doubt the capacity of a historian to understand the complexities of law. Moyn does not deny that the
Narrating Law 21
motivations of the human rights history, Moyn suggests that whilst human rights
‘[ . . . ] have long existed, [ . . . ] they were from the beginning a part of the authority
of the state, not invoked to transcend it’.18
It is exactly here, in this complexity of international law (in all its forms) and its
relative autonomy from sites of power, where the ‘reality’ of international law is
contested. The international institutions that were developed to monitor and
enforce the rules and standards of the human rights movement demonstrate this
complexity as well as the struggle to transcend politics.
The functions of IHRL are expressed in both Charter and treaty-based organs
and are housed both internationally (under the umbrella of the United Nations)
and regionally (there are active regional bodies within Europe, the Americas, and
Africa).19 The instruments, procedures and mechanisms that make up the inter-
national human rights machinery are quite large; examining these is beyond the
scope and purpose of this essay and, in any event, quite detailed reviews have been
undertaken elsewhere.20 The remainder of this section will re-canvass this territory
only briefly.
The UN human rights system comprises the UN treaty-based systems, which are
binding upon states parties, and the UN Charter-based system, which applies to all
member states, as well as three regional arrangements—European, Inter-American,
and African. Within the treaty-based system, the Universal Declaration of Human
Rights (UDHR), the International Covenant on Civil and Political Rights
(ICCPR), and the International Covenant on Economic, Social and Cultural
Rights (ICESCR), often referred to as the International Bill of Rights, are the
most prominent. There are, additionally, seven other major UN human rights
treaties21 and a number of other treaties in the area of human rights. The core UN
human rights treaties are distinguishable from other human rights treaties in that
they create specific accountability mechanisms to monitor state practice with regard
to these treaties.22 There are limitations in this system, however, as only those states
rights-based discourse has a much longer trajectory but one critique of Moyn’s approach is that he
grounds his review in the post 1968 era, which suggests a rather limited reading of the human rights
movement. See Geoffrey Robertson, ‘All Things to All Men’, The New Statesmen (18 October 2010).
18 Moyn, The Last Utopia, 7.
19 Whilst there have been some attempts to provide a framework for articulating human rights in
Islamic countries (see Section E.4); these mechanisms are largely dormant. In addition, there is
currently no regional system for Asia.
20 For a detailed discussion on the workings of international human rights machinery see H Steiner,
P Alston, and R Goodman, International Human Rights in Context: Law Politics and Morals (3rd edn,
Oxford: Oxford University Press, 2008).
21 These are: International Convention on the Elimination of All Forms of Racial Discrimination;
Convention on the Elimination of Discrimination Against Women; Convention Against Torture and
Other Cruel, Inhuman and Degrading Treatment or Punishment; Convention on the Rights of the
Child; International Convention on Protection of the Rights of All Migrant Workers and Members of
Their Families; International Convention for the Protection of All Persons from Enforced Disappear-
ance; and Convention on the Rights of Persons with Disabilities.
22 For example, the ICCPR created a Human Rights Committee (HRC), an expert body whose
18 members are elected by states parties. The HRC receives periodic reports on compliance from states
parties, provides a public examination of report, and issues ‘concluding observations’. The ICESCR,
however, does not have an equivalent body.
that have ratified the relevant treaty will be scrutinized by the relevant treaty body,
and as the scrutiny takes place in a non-contentious manner; the final outcome is
limited to a series of ‘recommendations’ or ‘observations’ to which the state is
‘encouraged’ to adhere.
While the operation of Charter-based mechanisms is not restricted to specific
states, they operate in a largely investigative mode, raising questions that states need
to address, rather than binding them in a manner that a legal organ would do. For
the Charter-based system, the ‘constitution’ is the Charter of the United Nations.
Whilst there is no specific declaration on fundamental rights included in the
Charter, there are a number of human rights clauses found throughout,23 that
have been developed through the auspices of bodies named in the Charter.24 The
Charter-based system has often been characterized as highly politicized. The
establishment of the Human Rights Council and the Universal Periodic Review
(UPR) mechanism was one attempt to move beyond what was argued to be the
deeply political nature of the previous Human Rights Commission. One of the
challenges of the Council, then, was to ‘depoliticize’ human rights; a challenge that
has met with mixed reviews.25 Criticisms of the Council tend to be focused on its
23 These are to be found in the Preamble, Arts 1, 13, 24, 55, 62, and 68.
24 These are: the UN Secretariat, General Assembly, Economic & Social Council, Security Council
and the International Court of Justice (ICJ). Aside from the Secretary General, the Secretariat of the
UN also includes the High Commission for Human Rights, Special Representatives, and the Special
Court for Sierra Leone (set up to try serious violations of international humanitarian law and Sierra
Leonean law committed in the territory of Sierra Leone since 30 November 1996). In the General
Assembly (GA), the principal human rights work takes place in the Third Committee. The GA is also
responsible for adopting resolutions, including texts of international treaties. The Security Council’s
responsibility is to maintain international peace and security and it can also authorize ‘humanitarian
intervention’. The Economic and Social Council authorizes a variety of human rights initiatives
derived principally from the Human Rights Council. The HRC has 47 member states and was created
by the UN General Assembly on 15 March 2006 with the main purpose of addressing situations of
human rights violations and make recommendations on them which is primarily undertaken through
the Universal Periodic Review (UPR) mechanism, which assesses the human rights situations in all 192
UN Member States. The International Court of Justice (ICJ) is the principal judicial organ of the
UN. In the past, the ICJ has issued a number of advisory opinions that have engaged human rights
issues including on matters related to self-determination, nuclear weapons, the Wall (Israel/OPT),
and a number of contentious cases touching upon human rights genocide cases (Bosnia/FRY, FRY/
NATO, Croatia/FRY, DRC/Uganda, DRC/Rwanda); immunities, universal jurisdiction (DRC/Bel-
gium, Congo/France, Liberia/Sierra Leone); and the death penalty (Paraguay/USA, Germany/USA,
Mexico/USA). There are a number of other Subsidiary Organs of the General Assembly, including the
Human Rights Council (HRC) which replaced the Human Rights Commission.
25 It should be noted that these are still (relatively) early days for the HRC and the UPR
mechanism. In contrast to the old Commission, however, the Council has made some improvements.
It is more representative of the world and it has created a mechanism that provides an opportunity to
review all states, irrespective of the legal human rights obligations they have taken on. What is less
certain is whether the peer review process and the move away from ‘Naming and Shaming’ and towards
‘Technical Co-operation’ led by the Chinese, Indians, and Iranians (sometimes referred to as the ‘Like-
Minded Group of States’) will bring more cooperation amongst states (and therefore more willingness
to engage in a human rights discourse) or simply allow states to evade public scrutiny of their human
rights record. For more information on the functioning and challenges to the UPR see Elvira
Dominguez Redondo, ‘The Universal Periodic Review of the UN Human Rights Council: an
assessment of the first session’ (2010) 7(3) Chinese J Int’l L 721–34 and a more recent assessment of
the Council in a Human Rights Watch publication, ‘Keeping the Momentum: One Year in the Life of
the UN Human Rights Council’, 11 September 2011.
Narrating Law 23
composition and functioning, as the Council’s membership includes states with

particularly poor human rights records and questions of selectivity have been raised
as some states (particularly Israel) are given disproportionate attention, whilst other
equally egregious offenders are overlooked. Human Rights Watch’s recent overview
of the Council suggests that the newly configured system may be moving in the
right direction but has yet to fully overcome the legacy of the Commission. It notes
that ‘some states played key roles in advancing human rights in thematic areas’ but
this has been somewhat tempered by ‘engagement by other states in these debates
[women’s rights and freedom of religion are noted as two examples] [which
threaten] existing standards’.26
The regional promotion and protection of human rights, expressed in three regional
arrangements—European, Inter American, and African, forms the third major insti-
tution in the human rights regime. Whilst the language of human rights fixes on the
notion of ‘universality’, its effectiveness is in its ability to take root in domestic
situations27 and the regional systems are seen as an interim step in this process. The
rationale for a regional system, as Claude summarizes, was underpinned by the view
that the world is both ‘too diverse and unwieldy; the distances—physical, economic,
cultural, administrative, and psychological—between peoples’28 is too vast to allow for
a development of a common purpose. Regionalism, in contrast, allows for states to
adapt international solutions to real problems in a more manageable way. Critics are
less certain and have quite rightly argued that the ‘world does not break in to neatly
perforated lines’.29 Moreover, if rights are universal, then the necessity of regional
mechanisms is unclear. A more balanced reflection on regional systems is that they are
useful in reflecting differences from region to region and are complementary to, rather
than incompatible with international mechanisms.
In terms of their effectiveness, the regional systems differ greatly. On the one hand,
the European system has a productive and relatively effective Court. The African
system, in contrast, is the least developed of the three and has only recently established
an African Court on Human and People’s Rights. In addition, the absence of either an
effective Arab or Asian regional system makes the idea of regional protection of human
rights far from complete.30 And, as we will revisit later in this essay, even the most
robust of the three regional mechanisms, the European system, has been subject to
‘logistical (access to information and ability to act promptly) and attitudinal (deference
to national authorities, eg by extension of a “margin of appreciation”) factors’31 which
have impacted its ability to protect rights during emergencies.
The primary sources of international law (eg custom, general principles, and
judicial decisions), from which these institutions draw, are not contested, but
competing theories (narrations) do arise regarding their interpretation. The distinct
26 Human Rights Watch, ‘Keeping the Momentum’.

27 The idea that human rights are most effective when ‘brought home’.
28 Inis Claude, Swords into Plowshares (4th edn, New York: Random House, 1984), 102.
29 Claude, Swords into Plowshares, 102.
30 See n 17.
31 Joan Fitzpatrick, Human Rights in Crisis: The International System for Protecting Rights During
States of Emergency (UPENN, 1994), 60.

approaches to interpreting international law are captured in three ways. The first is
a textualist approach, in which a restrictive interpretation, based on an ordinary
meaning of the text is applied. Similar to textualists’ readings of Islamic law, this
approach places a great deal of weight on the literal meanings of the texts. The
second ‘subjective’ approach factors the intent of its drafters into the underpinning
of a treaty, and reads a treaty ‘in its context’ when interpreting respective principles.
A third approach is interpretative (sometimes called effective interpretation).32
Here a text is read ‘in the light of its object and purpose’.33
So even as we adopt an approach to the question of what is international law by
reading outside the rather narrow space that some argue contains it, it is important
to note that there is contestation over the meaning and application of these legal
rules and principles as ‘state actors routinely challenge each other . . . [and project]
meanings that support their preferences and counteract those of their opponents’.34
Therefore, any endeavour to define what we mean by international law is likely to
graft onto a particular reading which may provide either a restrictive interpretation
or one that is more permeable to context. The differentiated readings of inter-
national law have mapped out in a human rights context in a number of ways. For
our purposes, however, this essay will focus on two of the debates that capture the
meta contest over the meaning of IHRL: the question of culture in rights, and the
permanency of exception.
C. Narrating law through the ‘other’
Koskenniemi reminds us that ‘“Universal values” or “the international community”

can only make themselves known through mediation by a state, an organisation or a
political movement’.35 It follows, then, that before we can begin to explain
universal international law, we must first clarify ‘what or whose view of international
law is meant’.36 For some, the answer is found in the principle of universality in
which rights are and must be the same everywhere and are applicable to all human
beings, whilst for others, culture and context must be necessary to understand, as
well as apply, international legal norms and principles. For cultural relativists, the
hegemony of the ‘West’ is read into the historical social formation of the inter-
national legal system and defines the application of its rules and norms. Universalists
counter that this particular reading of the development of the human rights
32 It is important to note here that whilst the approaches to international law are often divided in to
these three components, it is possible to posit the interpretative approach as a subset to the textualist
approach. That is, that there is an element of a margin of appreciation here as states agree to restrict
their sovereignty in relation to issues in a particular treaty based on their promise to other High
Contracting States.
33 These final two approaches move us closer to what is best described as a contextualist approach
within Islam.
Narrating Law 25
machinery is both selective and incomplete and believe that there are basic and
shared normative rights and values, ‘for all without distinction’.
This question of universality versus cultural relativity canvasses some well-
covered terrain and I do not intend to revisit some of the more familiar arguments
here. That said, in much of the legal discourse, cultural relativism tends to be
examined in contrast to universality and, in doing so, some of the narrative
framework is lost. Cultural relativism is not a legal concept and was not developed
for legal application; rather its roots are in anthropology and philosophy and it
must, therefore, be understood within these disciplinary frameworks. Cultural
relativists do not disassociate themselves from the norms of universality, but
argue that we reason through a process of enculturation. The lens through which
we see the world and shape and receive values and norms is mediated through our
experiences and a priori concepts.
Despite the significant analytical value, factoring both culture and context into
how we understand the interpretation and application of IHRL requires some
consideration. Mayer reminds us that cultural relativism has served a ‘political
usefulness’ for ‘foes of human rights’.37 Asian or Islamic culture-bound values
and norms provide a useful tool for governments seeking to deflect attention
from a poor domestic human rights record, and there are challenges in wrestling
this concept from political agendas.
Some of the more interesting recent scholarship which endeavours to apply a
forensic lens to the questions raised by this debate maps the socio-legal landscape in
a postcolonial framework. There is, according to this framework, continuity
between the colonial past and the colonial present. It fixes on the relationship
between culture and power where colonization is understood as a cultural process.
Here culture ‘involves the production, circulations, and legitimation of means
through repetitions, practices, and performance that enter fully into the consti-
tution of the world’.38 Through this analytical lens, the colonial present is articu-
lated through legal constructs.
Whilst this discussion takes place primarily outside of the field of law, situating
the application of law in the ‘colonial present’ opens up several interesting analytical
points of departure and suggests a narration of modern international law (the
colonial present) that cannot be separated from the historical, cultural, economic,
and political backdrop of the European colonial project. The shape and form of this
‘colonial present’ differs, of course, but the conquest and domination between the
‘Occident and the Orient’ find its contemporary articulation in alternative spheres;
and, specific to a public international law framework, can be located in inter-
national economic and trade law, human rights, in the laws governing the use of
force ( jus ad bellum), and in international humanitarian law39 ( jus in bello) in the
context of the state of exception of the ‘global war on terror’.
37 Ann Mayer, Islam and Human Rights (4th edn, Boulder: Westview, 2007), 10.
38 Derek Gregory, The Colonial Present (Oxford: Blackwell, 2004), 8.
39 There is some debate over the use of the term International Humanitarian Law (IHL), with some
arguing that a more appropriate way of referencing this framework is the Laws of Armed Conflict.
Rather than framing this ‘debate’ as between an essentialized [universal] ‘truth’
and that which lies at the margins of modernity; read through a postcolonial lens,
the privileging of the elite human experiences40 concomitantly creates and subju-
gates the very real ‘Other’ human experiences. This approach suggests that far from
holding ‘relativity’ hostage in a Eurocentric read of these margins, we must be
willing to deconstruct the very notion that suggests that there is a universal Truth
and that alternative voices which do not adhere to this narrative lie on the margins
of modernity. As Ratna Kapur argues in Chapter 14:
Culture and cultural diversity have entered into the women’s human rights discourse
primarily as a negative and subordinating aspect of women’s lives and invariably displaced
onto a first world/third world divide. In the process colonial assumptions about cultural
differences between the West and ‘the Rest’ and the women who inhabit these spaces are
replicated. Some cultural practices have come to occupy our imaginations in ways that are
totalizing of a culture and its treatment of women, and that are nearly always overly
simplistic or a misrepresentation of the practice.41
Undoubtedly states do devise culturally specific arguments, manifested in reserva-
tions and declarations,42 as a means of subjugating the rights of women, of
minorities, and so on. Yet, severed from this hegemonic technique, rethinking
the notion of difference pries open a space allowing us to critique the ‘universal’,
removing the dichotomy between an essential ‘good’ of the Truth of universalism
and the ‘Otherness’ of anything that lies outside. The almost missionary zeal of
some of the advocates of the universal Truth rests on two problematic assumptions.
First, the revival of Kantian liberalism replete with its language of human rights and
democracy, ‘invites us to assume that everyone wishes to be treated like we would
like’.43 As Joan Scott argues, ‘[t]he only alternative, it seems to me, is to refuse to
oppose equality to difference and insist continually on differences—differences as
the condition of individual and collective identities, differences as the constant
challenge to the fixing of those identities, history as the repeated illustration of the
play of differences, differences as the very meaning of equality itself ’.44 And second,
that states can be ascribed a morality;45 that is, that there are ‘genuinely “non-
violative” relations between the Self (the “West”) and its Other’.46
Much of the debate over the use of IHL relates to the term ‘humanitarian’. That said, IHL is the term
adopted by the UN and other relevant bodies and therefore I have included it here.
40 This has often been read as capturing a notion of experiences that are framed from Western
liberal ideas of rights and duties. Whilst this argument is quite powerful, it is also important to note
that all forms of law privilege the ‘elite’ experience, very often subjugating the voices at the margins.
41 Ratna Kapur, Chapter 14, Section D.2.
42 This is highlighted in Section E where we look at state practice with regard to treaty-based and
Charter-based bodies.
43 The author goes on to assert (and I agree) that ‘[t]his is rubbish’. See Martti Koskenniemi, ‘The
Politics in the Temple, Order, Justice and the UN: I Dialectical View’ (1995) 6 Eur J Int’l L 325, 343.
44 Joan E Scott, ‘Deconstructing Equality-Versus-Difference: or, the Uses of Poststructuralist
Theory for Feminism’ (1988) 14 Feminist Studies 33, 43.

45 This is perhaps most evident in the discourse surrounding the responsibility to protect.
46 Dipesh Chakrabarty, ‘Marx after Marxism’ (1993) 52 Meanjin 421, 426.
Narrating Law 27
The cultural relativity versus universality debate has been present ‘and a source of
debate and contention from the movement’s start’,47 and whilst I do not intend to
resolve it here, finding a common ground on which to frame an inclusive rights-
based discourse demands that we must (as this book argues) clear some ground first.
Rethinking how relativity is read within a human rights discourse is, I argue, a
necessary first step in this process.
D. The state of exception and the ‘war on terror’

Whilst the cultural relativity versus universality debate captures one aspect of the
contest over how we read IHRL, the language of exception reveals yet another: that
international law is situated within, not apart from, political realities is not in
question. Such a view of international law, as one shaped by interests as opposed to
universally shared values and norms, is hardly new; that said, the normative
developments which have occurred within the state of emergency ‘maximally
deployed’ post 9–11 have brought this particular reading of law into sharp focus.
That the boundaries of permissible state action have been reconfigured as a result is
unquestionable; where the debate lies is whether the current state of exception has a
relation to law or exists outside of it.
A significant part of the struggle to calibrate the life–law relationship48 is the
seeming failure of ‘the language and institutions of law’49 to adequately address
the ‘war on terror’ discourse that has dominated the legal landscape in the wake of
the events of 11 September 2001. International human rights’ law strives to create
universal standards and, ‘employs the language and the institutions of law to limit
the harm the powerful inflict on the vulnerable’.50 At the international level, the
most critical of these legal norms have been replaced by terms that lack legal
determinacy, with battles fought against ‘legal phantoms’.51 Concepts such as
‘terrorism’ and the ‘war on terror’, which dominate the conflict narrative and
court ambiguity with pernicious effect, have no fixed meaning in international
law. The official discourse can construct the identity of such terms (and has done
so) creating, as Gross has argued, a ‘normless and exceptionless exception’.52 The
47 Steiner, Alston, and Goodman, International Human Rights in Context, 517.

48 This concept was applied to states of emergency by Giorgio Agamben but had been used
previously in the works of Walter Benjamin (‘Critique of Violence’, in Walter Benjamin: Selected
Writings, Vol I, 1913–1926 (Cambridge: Harvard University Press, 1996) and Michel Foucault
(Abnormal: Lectures at the Collège de France 1974–1975 (New York: Picador Press, 2003)). For
Agamben, the importance of this relationship in the context of emergencies is:
To show law in its nonrelation to life and life in its nonrelation to law means to open a space
between them for human action, which once claimed for itself the name of ‘politics’.
Politics has suffered a lasting eclipse because it has been contaminated by law, seeing itself,
at best, as constituent power (that is, violence that makes law), when it is not reduced to
merely the power to negotiate with the law. (State of Exception at 88.)
49 See Joan Fitzpatrick, ‘Speaking Law to Power’ (2003) 14(2) European J Int’l L, 242, 241.
50 Fitzpatrick, ‘Speaking Law to Power’, 242.
52 Oren Gross, ‘The Normless and Exceptionless Exception’ (2000) 21 Cardozo LR 1825.
proliferation of emergency measures in the ‘war against terrorism’ has created a
temporary permanence of emergency, radically changing the emergency exception-
normalcy rule.53 Checking repressive measures taken by states and policing the
space for dissent at the international level underpins the human rights framework.
Yet, the legalist approach adopted by the human rights regime in response to state
anti-terrorism measures burdened the state but, critics argue, did not sufficiently
address the conduct of ‘terrorists’, which left a gap between the rights discourse and
terrorism discourse that states were only too willing to exploit.
As judicial supervision of extraordinary measures provided by anti-terrorism
legislation happens, primarily, at the domestic level, it is often relative to the state
party (and human rights culture) in question. Where IHRL is engaged, the
suggestion by states that this is a ‘war’ endeavours to shift the attention from the
rules contained within a law-enforcement framework to a broader theme of
security. Displacing the norms and rules of human rights law, states articulate
counter-terrorism as a ‘new species of international armed conflict’54 leaving the
international rights regime in a legal dead zone.
At the national level, the post 9–11 landscape has been accurately described as an
‘anti-terrorist legislative wildfire’.55 Refugees and asylum seekers as well as non-
citizens have found themselves at the sharp end of these extraordinary measures.56
In addition, combatting ‘terrorism’ activities is often undertaken by security experts
who operate outside of any accountability mechanism. Individuals or groups can be
blacklisted or excluded (allegedly for having ties to terrorist organizations) without
being heard or given effective remedy.57 Anti-discrimination measures are stretched
(and may be clarified) as racial profiling is allowing states to classify actors based on
preconceptions of relative power, perceived threat, and culture. Dissenters who fit
this profile can, over time, become suspect communities (a trend which is now all
too familiar to Muslim minority communities living in the West).58
53 The exception-normalcy rule suggests that during times of peace, the normal rules of inter-
national law apply. International legal frameworks are crafted around the presumption that this is the
dominant paradigm. A state of emergency is meant to be of a temporary nature and exists only during a
time of emergency as defined by derogations; it is truly the exception to the norm. As we enter in to a
permanent state of emergency, a paradigmatic shift occurs whereas what is now considered a normal
state of affairs (a state of peace and therefore full human rights protection) to a state of exception.
55 Joshua D Zelman, ‘Recent Developments in International Law: Anti-Terrorism. Legislation–
Part One: An Overview’ (2001) 11(2) J Transnat’l L & Pol’y 2, 1–17.

56 For example, in the wake of 11 September, Amnesty International reported that most, if not all
of those detained by the UK under newly enacted measures were either refugees or asylum seekers,
despite the fact that those who were involved in the 11 September attacks were neither. See Amnesty
International, Rights Denied: the UK’ s Response to 11 September 2001, 5 September 2002, EUR 45/
016/2002.
57 There are a number of NGOs that monitor State activity in this regard. Amnesty International
(<www.amnesty.org>) and Human Rights Watch (<www.hrw.org>) provide global overviews whilst
ACLU (<www.aclu.org>) and Liberty (<www.liberty-human-rights.org.uk>) provide domestic moni-
toring for the US and UK respectively.
58 This, I argue, is an interesting application of image theory. Whilst I am re-imaging the
application, Hermann, Fischerkeller, and Michael’s theory was applied to states and was developed
to move away from structuralist theories of state action or policy. They suggested that to understand
state action, we must first understand how states perceive other states. These images of each other will
Narrating Law 29
As emergencies have taken root with domestic legal regimes, the need for ‘active
and informed organs of supervision’59 to protect human rights during times of crisis
is all the more salient. Indeed, IHRL is not silent on the question of emergencies;
when faced with an emergency that ‘threatens the life of a nation’ states are allowed
to derogate from some (although not all) of their treaty obligations.60 Civil and
political rights (under the International Covenant on Civil and Political Rights
(ICCPR), as well as regional treaty-based mechanisms on civil and political rights
such as the European Convention on Human Rights) are subject to such derogations.
Article 4 ICCPR, Article 15 European Convention on Human Rights, and Article 27
American Convention on Human Rights codify the notion of derogation in the
context of human rights law. Article 4 of the International Covenant on Civil and
Political Rights (ICCPR) provides that ‘in times of public emergency which threatens
the life of the nation and the existence of which is officially proclaimed’ a state
may need to take measures that derogate from certain rights. However, Article 4(2)
limits application of this provision by providing a list of non-derogable rights to
which no interference, even during states of exception, can be made.61
A reading of the jurisprudence of the various treaty-based bodies reveals two
other qualifiers to the derogation regime. First, derogations are meant to be ‘of an
exceptional and temporary nature’62 and second, the extraordinary measures taken
are meant to be limited to only that which is necessary to restore normalcy (that is,
the means taken must be proportional to the legitimate aim of restoring normalcy).
Therefore, ‘[r]espect for human rights and fundamental freedoms is the rule;
derogations are the exception to the rule’.63 These rules indeed remain and place
limitations and conditions on the state that engage questions of severity (does it
threaten the life of the nation?) and proportionality (are the actions limited to only
that which is necessary?). In practice, however, there are two factors that have
plagued the derogation regime from the start and have been particularly vulnerable
to manipulation in the current legal landscape. Firstly, states are afforded broad
produce certain strategies, which will result in certain outcomes. See Richard K Herrmann and Michael
Fischerkeller, ‘Beyond the Enemy Image Spiral: Cognitive-Strategic Research after Cold War’ (1995)
41(3) International Organization 403–33.
59 Fitzpatrick, Human Rights in Crisis, 60.
60 It should be noted that not all treaties contain derogation clauses. For example, the Covenant on
Economic, Social and Cultural Rights, the Convention on the Elimination of Racial Discrimination,
the Convention Against Torture, and the Convention on the Rights of the Child do not contain
derogation clauses. In addition, the Geneva Convention of 1949 and its Additional Protocols of
1977—which, amongst other things, protect civilians and persons detained in conflict from torture, by
making unlawful hostage taking, murder, humiliating or degrading treatment, and the passing of
sentences without judgements pronounced by properly constituted courts and other judicial guaran-
tees—cannot be derogated from in any circumstances.
61 These are: the right to life; freedom from torture, inhumane or degrading treatment or
punishment; freedom from slavery; freedom from imprisonment because of inability to fulfil a
contractual obligation; principle of legality in the field of criminal law; right to recognition before
the law; and freedom of thought, conscience and religion. See General Comment 29 (CCPR/C/21/
Rev. 1/Add. 11, 31 August 2001).
62 General Comment 29 (CCPR/C/21/Rev. 1/Add. 11, 31 August 2001).
63 Sabine Von Schorlemer, ‘Human Rights: Substantive and Institutional Implications of the War
Against Terrorism’ (2003) 14 EJIL 2, 265–82, 278.

discretion to assess their own security circumstance and decide for themselves
whether or not there is an emergency threatening the life of the nation.64 Second,
as Fitzpatrick noted, from the very beginning, the supervisory capacity of the
international system for protecting rights during states of emergency has been
weak, something that ‘at the national as well as at the international level is vital if
the proportionality principle is to have meaning in practice’.65
A review of the supervisory organs at both regional (specifically, the jurispru-
dence of the European Court of Human Rights) and international level (the
Comments and observations of the Human Rights Committee) during entrenched
emergencies, where state repressive measures are most often deployed, bring these
limitations into sharp focus. Indeed, as Gross has argued that there has been a
rollback in the judicial supervision of emergencies.66
In the European system, the Strasbourg authorities have considered challenges to
derogation claims on a number of occasions. The seminal cases in which derogation
claims have been evaluated by the Commission are: the Cyprus case,67 an inter-state
case that was terminated following diplomatic initiatives; the Lawless case,68 which
was an individual application to the European Court; the Greek case,69 another
inter-state case that was disposed of by the Council of Ministers but was important
as it was the first and only such case where an Article 15 violation was found;
Ireland v UK,70 the first inter-state complaint to be referred to the Court; and, most
recently, in A v UK 71 (the Belmarsh case). In each of these cases, the opinion of the
Court and the Commission provide some standards of evaluation, but these have
been inconsistent. What has been consistent in the Court’s handling of derogation
challenges is the use of the Court-constructed doctrine of a margin of appreciation,
which first appeared in the Cyprus case. The doctrine’s application, not limited to
Article 15 cases, allows the state a margin or discretion in determining state actions.
The court has noted that the state is, in principle, in a better position to assess the
legitimacy of its claim of derogation.72 The Court’s use of the margin of appreci-
ation has been accurately termed by the Court as a form of ‘judicial self restraint’
and proves critical in understanding how the Court sees its role and approach in the
protection of human rights during states of emergency. Whilst the court recognizes
that even during states of emergency judicial supervision is required, the level of the
64 Lawless v Ireland (1979–80) 1 EHRR 15, para 28.

65 Fitzpatrick, Human Rights in Crisis, 60.
66 See Oren Gross, ‘ “Once More Unto the Breach”: The Systemic Failure of Applying the
European Convention on Human Rights to Entrenched Emergencies’ (1998) 23 Yale J Int’l L 437.
67 Cyprus Case, YB Eur Conv on Human Rights 182 (Eur Comm on Human Rights) (report),
1958–59.
68 Lawless case, ECHR, ser B at 82 (1960–61).
69 Greek case, YB Eur Conv on Human Rights (Eur Comm on Human Rights) (judgment), 1969.
70 Ireland v UK, YB Eur Conv on Human Rights (Eur Comm on Human Rights) (report);
Judgment of the ECHR, Ireland v UK, Eur Ct of Human Rights, ser A (1978).
71 A v Secretary of State for the Home Department [2005] 2 WLR 87; A and Others v United Kingdom
[hereinafter ‘Belmarsh’], Judgment of 19 February 2009, 3455 Eur Ct HR 5 (2009). This case
concerned the legality of the indefinite detention of the applicants in Belmarsh Prison, London
under s 23 of the Anti-Terrorism, Crime and Security Act 2001.
72 See Lawless case, ECHR, ser B at 82 (1960–61).
Narrating Law 31
supervision and the extent to which the Court is willing to challenge the state on
individual criteria is limited.
The two essential criteria for instituting a derogation are that the threat consti-
tutes a public emergency threatening the life of a nation and that measures instituted
are strictly required by the exigencies of the situation. In the Lawless case, the
Commission evaluated whether or not there was an emergency that threatened the
life of a nation. The Commission held that although the mere existence of a group
such as the IRA constituted a threat to the democratic state, it may not be sufficient
to satisfy the level set by Article 15, although it did go on to vaguely refer to the fact
that acts that would endanger external relations may also constitute a threat to the
life of the nation. Whilst the criteria determining what would reach that threshold
remained vague in this case, the Commission did reject Ireland’s claim that assessing
whether a state of emergency existed was the ‘sole discretion’ of the government
concerned. Instead, the Commission indicated that the margin of appreciation was
not unlimited and some standards were required to show that a danger existed. The
case was subsequently referred to the Court, which based its assessment on a number
of factors including the existence of a paramilitary group (IRA), an increase in
‘terrorist’ activities, and jeopardy to foreign relations. What can be derived from
the Commission’s deliberations, and (although much more limited) the Court’s
finding, is that the emergency must be of an exceptional nature affecting the whole
population thus constituting a threat to organized national life.
The second criteria, that measures taken by a state must be strictly required by the
exigencies of the situation, yields some specifics for evaluation in the European
Convention jurisprudence. In the Lawless case, whilst the Commission gave a rather
wide margin of appreciation to the state when determining whether the actions taken
were strictly required, it did enter two other modes of evaluating appropriate measures.
The first was to look to see if any other less restrictive but effective measures were
present. The second sought to establish where there were safeguards in place to prevent
abuse of the measures used. The review of this second criterion in Ireland v UK proves
disappointing, with almost no emphasis placed on safeguards and a wide margin of
appreciation given to the state in assessing the necessity of its measures.
The Greek case gives us a much more stringent approach and definition to what
constitutes a threat to the life of a nation. Here the Commission gave little regard to
the margin of appreciation that played so readily in the Lawless decision and instead
framed the inquiry around objective criteria—was there a threat? Was it imminent?
And, was the threat of such an extent that it was likely to create political instability and
disorder that would impact the organized life of the community? No such criteria was
applied in the Belmarsh case, however, where the Court’s judicial rollback on
supervision of emergencies is stark. In this case, the Court was asked to rule as to
whether a state of emergency existed in the United Kingdom (UK) in the aftermath
of the attacks on the US on 11 September 2001. The approach of the Court, in this
case, was to neglect the question of severity73 and, critically, to remove one aspect of
73 Invoking the doctrine of a margin of appreciation.

the judicial review of Article 15; the notion of the exceptional (and temporary)
nature of what triggers an emergency. It followed then that ‘[the] “duration”
becomes merely another factor in determining whether the measures undertaken
were proportionate to the exigencies of the situation’.74 In removing the exception-
ality of emergency, the first element of review, the Court contemplates an emer-
gency-normalcy paradigmatic shift, and suggests that its role now is confined to
ensuring that the principle of proportionality is observed:
The result is that Article 15 has been interpreted to corroborate more accurately to a view
that states of emergency are merely another factor restricting the absolutist claims of certain
human rights. Much as the right to free speech is limited by another person’s right to his or
her good name, so too must the right to liberty, privacy and other rights that may be
derogated from during an emergency be limited by another person’s right to security.
Accordingly, Article 15’s singular role as a ‘sword’ remains.75
As only a quasi-judicial body, the Human Rights Committee has not been given the
same opportunity to review Article 4 and therefore its approach is fairly vague and
inconsistent. Despite General Comment 2976 of the Human Rights Committee, the
Committee’s assessment of what constitutes a state of emergency—that is, what
criteria must be filled before the threshold is reached—is unclear. Some standards
may be gleaned from individual members’ comments on specific cases (Chile and the
United Kingdom for example) but no clear pattern emerges that would allow
reasonable assessment as to how the legitimacy of derogations are assessed.
The Human Rights Committee has few standards developed to assess whether a
derogation has been used that is strictly required by the situation, although they have
given some attention to the procedural requirements77 and whether violations are
being made on non-derogable rights. General Comment 29 outlines that any measure
taken must not be discriminatory and must not impact fundamental rights.78 Beyond
this, however, assessment of what is ‘strictly required’ remains vague.
Before undertaking a closer look at how the politics of IHRL play out in practice,
I will return, briefly, to the idea of narrating law. Entrenched emergencies are not
74 Alan Greene, ‘Separating Normalcy from Emergency: The Jurisprudence of Article 15 of the
European Convention on Human Rights’ (2011) 12 German LJ 1764–5, 1766.

75 Greene, ‘Separating Normalcy from Emergency’, 1782.
76 States of Emergency (article 4), UN Doc CCPR/C/21/Rev.1/Add.11 (2001), reprinted in
Compilation of General Comments and General Recommendations Adopted by Human Rights

Treaty Bodies, UN Doc HRI/GEN/1/Rev.6 at 186 (2003).
77 In Silva v Uruguay, Communication No 34/1978 (1981), the HRC stated that Art 4 contained
two procedural elements—that a state must make an official proclamation of a public emergency and
that it must also notify other state parties.
78 Paragraph 8 states: ‘According to article 4, paragraph 1, one of the conditions for the justifiability
of any derogation from the Covenant is that the measures taken do not involve discrimination solely on
the ground of race, colour, sex, language, religion or social origin. Even though article 26 or the other
Covenant provisions related to non-discrimination (articles 2, 3, 14, paragraph 1, 23, paragraph 4, 24,
paragraph 1, and 25) have not been listed among the non-derogable provisions in article 4, paragraph
2, there are elements or dimensions of the right to non-discrimination that cannot be derogated from
in any circumstances. In particular, this provision of article 4, paragraph 1, must be complied with if
any distinctions between persons are made when resorting to measures that derogate from the
Covenant.’
Narrating Law 33
new, nor are the dangers they pose to the human rights regime. That said, the
current disarticulation between the international human rights regime and anti-
terrorism (state of exception) discourse reflects more a chasm than a gap, one that
has been occupied by an ‘ambiguity advantageous to avoid legal constraints and to
shift policy objectives with minimal accountability’.79 Yet even as states sideline (or
indeed discard entirely) the rules of law, they continue to engage in the rhetoric of
law, endeavouring to control the narration on what we mean by IHRL and
therefore controlling the political costs of either adopting or discarding. The
‘national universalism’ of the United States has been countered by a European
‘sovereign egoism’ with a contestation as to which hegemon controls this space.80
Whilst these divisions in the approach to law are clear, what is shared is the
absoluteness within which each reads the law as ‘distinct from politics’.81 Kosken-
niemi has argued that the result has been that, depending on which project we refer
to, international law is then either ‘celebrated or discarded’.82
Giorgio Agamben pushes the examination of law’s relationship to exception
further. He identifies two main schools of thought on the legality of the state of
exception, which provokes the legal state of emergency. In the first, exception is ‘an
integral part of positive law because the necessity that grounds it is an autonomous
source of law’.83 This approach is today codified in international law through the
notion of derogation, which we have previously discussed. The second approach
understands the state of exception as ‘essentially extrajuridical’ something that is,
strictly speaking, outside of the law. Writers who have adopted this view of
emergencies argue that ‘[t]he circumstances that endanger the safety of nations
are infinite; and for this reason no constitutional shackles can wisely be imposed on
the power to which the care of it is committed’.84 This ‘inside-outside’ relationship
of the state of exception to the law is characterized as one in which there must be
something that is, ‘ . . . strictly speaking, outside of law in order to claim this
“outside” as the source of emergency. On the other hand, in so doing, law
effectively denies that this outside is truly outside, since it must be susceptible to
regulation and intervention of some kind.’85
Agamben’s read of exception rejects both of these approaches. He argues that
‘the state of exception is neither internal nor external to the juridical order, and the
problem of defining it concerns precisely a threshold, or a zone of indifference,
where inside and outside do not exclude each other but rather blur with one
another’.86 For Agamben, the normative developments that unfolded post 9–11

83 Agamben, State of Exception, at 23. Agamben refers to the jurists Santi Romano, Hauriou,
Mortati, Hoerni, Ranelletti, and Rossiter.

84 Agamben, State of Exception, at 23. Here Agamben draws from the writings of jurists Biscaretti,
Balladore-Pallieri, and Carré de Malberg.

85 Jonathan Short, ‘Life and Law: Agamben and Foucault on Governmentality and Sovereignty’,
(2005) 3(1) Journal for the Arts, Sciences, and Technology 16, 17.
cannot be read as a juridical problem: the state of exception must be understood as a
‘paradigm of government’ obliterating all notions of law as distinct from power.
Here law has no form, no dialogue with morality. It is here that life and law are
fused; law becomes indistinguishable from power. Law as its factual self continues
to replicate a particular conception of legality but it has been severed from (if we
believed it to ever have been fused) its ontological roots.
Such a reading of the international legal landscape is mindful that ‘international
law is preoccupied with crafting relationships of order across diverse kinds of social
and political legitimacy, and its normativity and efficacy are finely balanced between
accommodating power and restraining it’.87 That law is fused to the notion of order
is not in doubt; through public and enforceable rules, individuals are given order and
protection. Yet if one of the social roles of law is to ensure stability, the other is to
ensure that there is no overreach of power by the state; it is at this intersection we
come to understand the force of law. In liberal theory, law acts as the gatekeeper
between state actions and individual liberties (responsible for ensuring that ‘fine
balance’). Agamben’s argument is that the coercive capacity of the state, which now
takes the form of law, blows apart any notion that the gatekeeper is on duty. In this
space ‘governmental violence—while ignoring international law externally is produ-
cing a permanent state of exception internally’.88
It may be argued that it is not possible to arrive at what we mean by international law
by reading this exception so firmly into the rule. Perhaps. But I suggest an altogether
different reading. Firstly, that within the current political landscape, the ‘exception’ has
become the ‘rule’. In this paradigmatic shift of the normalcy-emergency rule, IHRL is
displaced with the language of exception. Secondly, and at a much broader level, the
events of 11 September sharpened but did not redefine the relationship between law
and politics, rights, and authority. In re-imagining the life–law connection, emergency
measures are understood to be the result of political decision making narrated through
law, and as Agamben quite rightly argues, this has left us in the ‘paradoxical position of
[having] juridical measures that cannot be understood in legal terms’.89
E. Narrating human rights in treaties
The final section of this essay turns to a more forensic accounting of how the
broader themes I have addressed, questions related to relativity and revisionist
readings of the historical social formation of IHRL, play out in practice. Against
the backdrop of the larger project, this section will focus on Muslim states’
participation in the UN Human Rights machinery. The differentiated readings of
the ‘what or whose view of international law’90 do raise significant and credible
87 N Bhuta, ‘New Modes and Orders: The Difficulties of a Jus Post Bellum of Constitutional
Transformation’ (2010) 60(3) University of Toronto LJ 799–854, 799.

Narrating Law 35
critiques of the international human rights machinery. That said, imposing a

Western narrative of human rights on to the East at the very least misunderstands
(and, at worse, distorts) the post-colonial critique of the otherness of this thesis.
A more forensic accounting of the development and implementation of human
rights law yields a more complicated record. The development and formulation of
the UN human rights system has not occluded the input of non-European states
and their representatives. Susan Waltz’s review of Muslim state participation in the
drafting of the Universal Declaration of Human Rights, for example, challenges the
perception that the development of these rights and principles was somehow
exclusive to the ‘West’.91 In fact, Waltz’s review suggests that far from being
adversarial, Muslim states (and indeed other Asian states) participated fully in the
drafting and where there were objections raised from representatives of Muslim
states, the characterization of these as ‘Islamic’ challenges did not fully capture the
essence or underpinnings of the debates at the time of the drafting. Similarly, when
reviewing current state practice and compliance with the international human
rights machinery, analysis which emphasizes the role of Islamic law (and therefore
ostensibly the exceptionalism of the Middle East and Muslim states) often clouds
(and diverts) the more forensic (and I argue, more useful) accounting of state power
politics as it relates to the application (or interference) of IHRL.
1. State participation in the UN human rights regimes

Although many states within the UN system apply a culturally relativistic approach
to their engagement with the human rights discourse, this has not precluded their
participation in the drafting and adoption of international human rights treaties and
declarations. There are a significant number of international human rights treaties; a
majority of these have been adopted by the UN General Assembly. To understand
how states engage within these frameworks, this section will review Middle Eastern
state participation in the UN human rights regime. Whilst there are other Muslim or
predominately Muslim states that fall outside this remit, for purposes of this project,
I have elected to focus on 24 states that lie along several fault lines: the oil producing
countries of Bahrain, Kuwait, Saudi Arabia, Oman, Qatar, the United Arab Emir-
ates, and Yemen; the Fertile Crescent region of Israel/Occupied Territories, Iraq,
Jordan, Lebanon, and Syria; the North African countries of Algeria, Egypt, Libya,
Morocco, and Tunisia; the sub-Saharan states (which are members of the League of
Arab States) of the Sudan, Mauritania, Djibouti, Somalia, and the Comoros Islands
and finally the non-Arab states of Iran and Afghanistan.
With regard to the core human rights treaties, a majority of the surveyed states
have signed and ratified (or acceded to) the ICCPR and ICESCR as well as the
Convention on the Elimination of all forms of Racial Discrimination (CERD), the
Convention on the Elimination of All Forms of Discrimination against Women
(CEDAW), the Convention on the Rights of the Child (CRC), and the Convention
91 Susan Waltz, ‘Universal Human Rights: The Contribution of Muslim States’, Human Rights
Quarterly 26 (November 2004), 799–844.

Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
(CAT). A smaller number have ratified and/or signed three other core treaties: the
International Convention on the Protection of the Rights of All Migrant Workers
and Members of their Families (ICRMW), the Convention on the Rights of Persons
with Disabilities (CRPD), and the International Convention for the Protection of All
Persons from Enforced Disappearance. Within our territorial ambit of 24 states,
ratification or accession in descending order is as follows: 23 have ratified or acceded
to the CRC;92 23 have ratified or acceded to CERD;93 21 have ratified or acceded to
CEDAW;94 19 have ratified or acceded to the ICCPR and ICESCR;95 18 have
ratified or acceded to CAT;96 9 have ratified or acceded to the CRPD;97 and 6 have
ratified or acceded to the ICRMW.98 Whilst 5 of our 24 states have signed the
International Convention for the Protection of All Persons from Enforced Disappear-
ance, none have (to date) ratified.99 These figures largely mirror the overall ranking of
treaties at the universal level.100
There are a number of Operational Protocols attached to these core treaties.
Three of these (the Optional Protocol to the International Covenant on Civil and
Political Rights (ICCPR-OP1),101 the Optional Protocol to the International
Covenant on Economic Social and Cultural Rights (ICESCR-OP1),102 and the
Optional Protocol to the Convention on the Elimination of Discrimination
Against Women (OP-CEDAW)103) relate to procedures for individual communi-
92 Somalia has signed but not ratified the CRC <http://treaties.un.org/doc/Publication/MTDSG/
Volume I/Chapter IV/IV-11.en.pdf> accessed 14 July 2010.

93 All except Djibouti have acceded to CERD <http://treaties.un.org/doc/Publication/MTDSG/
Volume I/Chapter IV/IV-2.en.pdf> accessed 14 July 2010.

94 All except Iran, Somalia and Sudan have ratified or acceded to CEDAW <http://treaties.un.org/
doc/Publication/MTDSG/Volume I/Chapter IV/IV-8.en.pdf> accessed 14 July 2010.

95 All except Oman, Qatar, Saudi Arabia, and the UAE are parties to the ICCPR and the
ICESCR, and the Comoros Islands have signed but not ratified the treaties. <http://treaties.un.org/
doc/Publication/MTDSG/Volume I/Chapter IV/IV-3.en.pdf>, <http://treaties.un.org/doc/Publica-
tion/MTDSG/Volume I/Chapter IV/IV-4.en.pdf> accessed 14 July 2010.
96 All except Iran, Iraq, Oman, and the UAE have acceded to CAT; Sudan and the Comoros
Islands have signed but not yet ratified <http://treaties.un.org/doc/Publication/MTDSG/Volume

I/Chapter IV/IV-9.en.pdf> accessed 14 July 2010.
97 Algeria, Egypt, Iran, Jordan, Lebanon, Oman, Qatar, Syria, and Tunisia have ratified the CRPD
<http://treaties.un.org/doc/Publication/MTDSG/Volume I/Chapter IV/IV-15.en.pdf> accessed 14

July 2010.
98 Algeria, Egypt, Libya, Mauritania, Morocco, and Syria have ratified the ICRMW <http://treaties.
un.org/doc/Publication/MTDSG/Volume I/Chapter IV/IV-13.en.pdf> accessed 19 July 2010.

99 Signatory states are: Algeria, Comoros Islands, Lebanon, Morocco, and Tunisia. It should be
noted that this treaty was adopted in December 2006 and is not yet in force having secured (at the time
of writing) 81 signatories but only 18 parties to the Convention <http://treaties.un.org/doc/Publica-
tion/MTDSG/Volume I/Chapter IV/IV-16.en.pdf> accessed 19 July 2010.
100 At the universal level, the rankings are almost the same. The only exception is that CERD and
CEDAW are inverted; at the international level, CEDAW has secured a larger number of state parties.
101 Only four states—Algeria, Djibouti, Libya, and Somalia—have signed and acceded to the
ICCPR-OP1 <http://treaties.un.org/doc/Publication/MTDSG/Volume I/Chapter IV/IV-5.en.pdf>

accessed 19 July 2010.
102 None of the 24 states have signed the ICESCR-OP1.
103 Only two states (Libya and Tunisia) have signed and acceded to the CEDAW-OP1 <http://
treaties.un.org/doc/Publication/MTDSG/Volume I/Chapter IV/IV-8-b.en.pdf> accessed 23 July

2010.
Narrating Law 37
cations with treaty monitoring bodies. Additionally, there is an additional Optional

Protocol attached to the ICCPR which deals with the abolition of the death penalty
(OP2).104 The Convention on the Rights of the Child has two additional protocols
which endeavour to regulate, respectively, the involvement of children in armed
conflict (OP-CRC-AC)105 and the sale of children, child prostitution, and child
pornography (OP-CRC-SC).106 Fifteen of the 24 states have ratified or acceded to
the OP-CRC-AC, and 20 of the 24 states have ratified or acceded to the OP-CRC-
SC. Lastly, the Optional Protocol to the Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment (OP-CAT) provides for a
monitoring mechanism, allowing for access by the Special Rapporteur to detention
centres. Only Lebanon is a party to OP-CAT.
Whilst ratification or accession means that contracting state parties are bound to
abide by the principles enumerated in these treaties and to the attached reporting
systems; this is not uniformly the case. There are several areas where problems of
compliance are evident—through reservations and declarations to treaties (which can
have the effect of nullifying specific treaty obligations); and in engagement (reporting
to the treaty based organs and participation in the monitoring mechanisms).
2. Participation in the treaty-based system: a brief analysis

When reviewing state practice in the Middle East there are, as previously noted,
principles and objectives of modern international law that are incompatible with
particular readings of Islamic law. Reservations and/or declarations entered when
states ratify international human rights treaties mark, in part, these differences. Save
for language in art 20(2) CERD,107 art 28(2) CEDAW,108 art 51(2) CRC,109 and
art 91(2) ICRMW110 which prevents reservations which are ‘incompatible with the
objects and purpose of the Convention[s]’, all of the core treaties we have discussed
allow for states to make reservations, declarations, or provide interpretations (which
give an indication as to how that state body reads a particular text) at the time of
adoption. Although not at all specific to this region, states in the Middle East have
engaged these facilities, with a significant number of states entering reservations,
declarations, or interpretations.
104 Djibouti is the only state, amongst the 24 designated, to have signed and acceded to ICCPR-
OP2 <http://treaties.un.org/doc/Publication/MTDSG/Volume I/Chapter IV/IV-12.en.pdf> accessed

23 July 2010.
105 Somalia, Lebanon, and Djibouti have signed but not ratified; the Comoros Islands, Iran,
Mauritania, Saudi Arabia, Sudan, and the UAE are not signatories <http://treaties.un.org/doc/Publi-
cation/MTDSG/Volume I/Chapter IV/IV-11-b.en.pdf> accessed 23 July 2010.
106 Djibouti signed in 2006 but has not ratified; Saudi Arabia, Somalia, and the UAE are not
signatories <http://treaties.un.org/doc/Publication/MTDSG/Volume I/Chapter IV/IV-11-c.en.pdf>

accessed 23 July 2010.
107 660 UNTS 195.
108 1249 UNTS 13.
109 1577 UNTS 3.
110 2220 UNTS 3.
A majority of the reservations or declarations attached by the surveyed States to
the core treaties tend to fall into one of two categories—those that do not have any
legal effect as to the application of the particular treaty or those that relate to
procedural matters. Of the states reviewed, the first category is preoccupied with
reservations or declarations which relate to non-recognition of another state; for
these states, it is specific to the non-recognition of Israel. Bahrain’s reservation to
CERD is typical in stating: ‘[T]he accession by the State of Bahrain to the said
Convention shall in no way constitute recognition of Israel or be a cause for the
establishment of any relations of any kind therewith’.111 Iraq, Kuwait, Libya, Syria,
the UAE, and Yemen have all entered similar reservations.112 The second category
relates to reservations to the submission of disputes to the International Court of
Justice (ICJ). Afghanistan, Bahrain, Egypt, Israel, Kuwait, Lebanon, Libya, Mo-
rocco, Saudi Arabia, and Yemen all took reservations to Article 22 of CERD which
dealt with the submission of disputes to the ICJ.113 Algeria and Morocco also took
reservations to the ICJ provision (Article 92) of the ICRMW.114
There are two other categories which capture the remaining reservations and
declarations entered into by Middle Eastern states. The first relates to a condition-
ality attached to specific obligations raised by the treaty which, in effect, limits the
application of the treaty to what is provided for within domestic law. The final
category applies Islamic formulas to limit rights, either through a general declara-
tory statement or specifically attached to a particular core right. These final two
categories—where treaty reservations or declarations are conditional (subject to
domestic law) or are interpretive115 (on Shari‘a standards)—are particularly rele-
vant to this study as they give some indication as to how much manoeuvrability
state actors have within the framework of these ostensibly international binding
norms.116
There are conditional attachments in force for the CRC, ICCPR, CEDAW,
and CRPD. Eight states (Afghanistan, Algeria, Kuwait, Morocco, Oman, Syria,
Tunisia, and the UAE) issued conditional attachments to the CRC.117 Most of
these attachments included broad declarations that were both conditional and
interpretive. For example, Afghanistan’s declaration stated: ‘The Government
of the Republic of Afghanistan reserves the right to express, upon ratifying the
Convention, reservations on all provisions of the Convention that are incompatible
111 See n 48. 112 See n 48.

113 See n 48. 114 See n 53.
115 It is important to note that the term ‘interpretative’ here is attached to those reservations or
declarations to which State compliance to a particular right is to be interpreted through Shari‘a. At

times, when states enter an ‘interpretative declarations’ it conforms to this definition. However, some
states have also used this phrase when endeavouring to ensure that their own particular domestic
legislation is read as in conformity with the requirements of a particular right.
116 As will be apparent in the formulation in the reservation and declaration language, there is some
fluidity between these last two categories. Whilst some of the reservations entered by states attach
conditionality based on domestic law (preferencing the domestic legal provisions over the treaty
provisions), other formulations preference Islamic law. In some case, formulations of Islamic law are
contained in domestic law, making the divisions between these two categories somewhat artificial.
117 See n 47.
Narrating Law 39
with the laws of Islamic Shari‘a and the local legislation in effect.’118 Algeria,
Kuwait, Morocco, Oman, and Syria entered similarly broad declarations to the
CRC. Some of these reservations and declarations specified provisions that were
viewed as likely to conflict with Shari‘a law, such as those that touch upon the law
concerning family or nationality. For example, Algeria and Syria both specifically
mentioned Article 14 concerning a child’s freedom of religion as something that
could potentially conflict with their domestic law, and Tunisia was specific in
declaring that it would not allow Article 6 of the CRC to impede Tunisian
legislation ‘concerning voluntary termination of pregnancy’.119 The UAE was
also specific when it issued a reservation on Article 7 which addressed the subject
of a child’s nationality as ‘an internal matter’, and Oman issued a similar reservation
stating that the nationality of a child would be determined by Omani law.120
Eight states (Algeria, Israel, Kuwait, Morocco, Oman, Qatar, Tunisia, and the
UAE) issued conditional declarations or reservations to CEDAW.121 All of these
states limited the application of CEDAW to the extent that it comported with their
own domestic and religious laws. As with the CRC, certain provisions proved to be
particularly problematic. For example, Article 9, para 2,122 which concerned the
process for determining the nationality of a child prompted reservations or declar-
ations from Kuwait, Algeria, Morocco, Oman, Qatar, Tunisia, and the UAE.123
Article 15, para 4 concerning the rights of women to choose their residence and
domicile was limited by the domestic law of Algeria, Morocco, Oman, Qatar, and
Tunisia.124 These states also made reservations to all or parts of Article 16 which
addressed the personal status of men and women as well as adoption rules.125
Only two states (Algeria and Kuwait) made conditional declarations and reserva-
tions to the ICCPR. Kuwait limited the application of the ICCPR to what was allowed
under Kuwaiti law, and it also reserved the right not to apply Article 8, para 1.126
Algeria interpreted Article 23, para 4 concerning the rights and duties of spouses as in
no way impairing the essential foundations of the Algerian legal system.127
Regarding the CRPD, only Egypt, Iran, and Syria made conditional declarations
or reservations. Egypt entered a declaration and Syria entered a reservation for
Article 12, which concerned the legal status and capacity of persons with disabil-
ities.128 Iran entered a conditional declaration on Article 46, stating that it would
not apply if incompatible with the ‘applicable rules’ of Iran.129
As demonstrated in the above paragraphs, many states entered reservations or
declarations to provisions of treaties that touched upon areas of law that were
considered incompatible with Shari‘a or domestic law, such as those having to do
with nationality, marriage, or family. The fact that so many of the reservations and
declarations attached to all of these conventions concern specific substantive
provisions raises questions as to whether a given reservation is incompatible with
a treaty’s objects and purpose.
118 See n 47. 119 See n 47. 120 See n 47. 121 See n 49.
Interpretative declarations based on Islamic (or religious130) formulations of
rights also raise similar concerns. States have entered reservations or declarations
based on Islamic or religious formulations for the CRC, CERD, CEDAW, ICCPR,
and CAT. Thirteen states (Afghanistan, Algeria, Iran, Iraq, Jordan, Kuwait, Mauri-
tania, Morocco, Oman, Qatar, Saudi Arabia, Syria, and the UAE) entered reserva-
tions or declarations based on religion to the CRC.131 Many of these were broad
declarations such as the one entered by Afghanistan discussed above, including
those entered by Algeria, Iran, Kuwait, Mauritania, Oman, Saudi Arabia, and
Syria.132 The UAE’s reservation expressed ‘respect’ for the CRC as long as it was
in accordance with the state’s ‘traditions and cultural values’.133 Initially, Qatar
issued a general reservation to any provisions that were inconsistent with Shari‘a,
but it withdrew its reservation in 2009 and substituted a partial reservation which
applied only to Articles 2 and 14.134 Other reservations were specific from the start,
such as the reservations from Jordan, Iraq, and Morocco regarding Article 14 which
grants children freedom of religion and was considered to ‘run counter to the
provisions of the Islamic Shariah’.135
Eight states (Bahrain, Egypt, Iraq, Israel, Jordan, Qatar, Saudi Arabia, and the
UAE) made reservations or declarations on religious grounds to CEDAW.136 Egypt
and Saudi Arabia entered general reservations that the treaty would have effect only
insofar as it did not conflict with Shari‘a.137 Other states addressed specific provi-
sions, which were considered problematic according to domestic religious law. For
example, Bahrain, Egypt, Iraq, Jordan, and the UAE all issued reservations stating
that Article 16 concerning divorce and personal status and rights of spouses would
not apply or would only be applied to the extent that it did not conflict with Shari‘a
or domestic legislation.138 Israel entered interpretive reservations on Article 7(b)
concerning the appointment of women as judges of religious courts as well as
Article 16, stating that they would be binding only insofar as they do not conflict
with any of the laws of religious communities in Israel.139
Seven states (Kuwait, Lebanon, Libya, Mauritania, Oman, Saudi Arabia, and
Syria) issued religion-based reservations or declarations to CERD. Mauritania,
Oman, and Saudi Arabia entered general reservations or declarations that the treaty
would only have effect insofar as it does not conflict with Shari‘a law.140 The other
states made reservations to specific provisions, such as Article 16 concerning
130 Israel entered a reservation on personal status under the ICCPR. See n 50.
131 See n 47. 132 See n 47.
133 See n 47. 134 See n 47.
135 The quoted text comes from Iraq’s reservation. Morocco’s interpretive declaration stated that art
14 would be interpreted ‘in light of domestic law’ and Jordan’s reservation stated that Art 14, as well as
Arts 20 and 21 concerning adoption, would not be applied in Jordan because ‘they are at variance
with the precepts of the tolerant Islamic Shariah’. See n 47.
136 See n 49.
137 See n 49.
138 See n 49.
139 See n 49.
140 See n 48.
Narrating Law 41
marriage and divorce, to which Kuwait, Lebanon,141 Libya, and Syria all entered
reservations.142
Five states (Bahrain, Egypt, Israel, Kuwait, and Mauritania) made reservations or
declarations on religious grounds for the ICCPR. Egypt issued a declaration and
Bahrain issued a reservation that it would only apply the treaty insofar as it did not
conflict with Shari‘a.143 Israel made a reservation and Kuwait made a declaration
that it would only apply Article 23 regarding personal status insofar as it did not
conflict with domestic religious law.144 Mauritania reserved that it would only
apply Article 18 pertaining to freedom of thought, conscience, and religion insofar
as it did not conflict with Shari‘a.145 Qatar is the only Muslim state party to CAT to
attach an interpretive reservation. It reads: ‘Any interpretation of the provisions of
the Convention that is incompatible with the precepts of Islamic law and the
Islamic religion.’146
The theological and legal classifications derived from Islamic authorities that are
related to human rights differ from Western discourses which, ‘[ . . . ] thinks and
argues in quite different terms’.147 Yet at the international level, it is the inter-
national human rights narrative that serves as a point of departure as authors of
‘Islamic’ human rights formulations engage with the UN human rights machinery.
Grafting 9th century principles onto 20th century formulations entails a specific
reading of rights, exploiting areas where limitations are provided for within the
international texts or ‘borrowing substantive human rights from international
human rights instruments whilst restricting the rights by providing that they can
be enjoyed only within the limits of Shari‘a . . . ’148
One such example of this kind of formulation is the Egyptian declaration to the
ICCPR. It prefaces the adoption and ratification of the text by reading the ICCPR’s
provisions as compatible (‘not in conflict with’) with Islamic Shari‘a.149 Similarly,
under CEDAW, Bahrain, Egypt, Libya, Mauritania, Morocco, Oman, Saudi
Arabia, and UAE all have entered general reservations limiting interpretation or
implementation (on Article 2) as subject to Islamic Shari‘a.150 Compatibility, in this
formulation, necessitates that international human rights norms are to be inter-
preted and applied through the lens of Shari‘a. With regard to specific substantive
treaty provisions that intersect group rights (on matters related to discrimination),
those related to personal status have the most significant number of reservations
141 Although no explicit reference is made to Shari‘a in Lebanon’s reservation, its reservations to
Arts 9(2) and 16(1)(c)(d)(f) and (g) (regarding the right to choose a family name) suggest that Shari‘a
was the underpinning of these particular reservations.
142 See n 141.
143 See n 50.
144 See n 50.
145 See n 50.
146 See n 51.
147 Richard Martin, ‘From Dhimmis to Minorities, Shifting Constructions of the Non-Muslim
Other from early to Modern Islam’ in M Shatzmiller (ed), Nationalism and Minority Identities in
Islamic Societies (Montreal and Kingston: McGill-Queen’s University Press, 2005), 3, 9.
148 Mayer, Islam and Human Rights, 80.
149 See n 34.
150 See n 33.
attached. These reservations preference Islamic law, as lexis specialis, in matters of
nationality, marriage, and family.151 These are particularly prevalent in CEDAW
where reservations have been attached to a number of Articles so as to limit a reading
of equality to Islamic law ‘whereby women are accorded rights equivalent to those of
their spouses so as to ensure a just balance between them’.152 As noted earlier, this
‘true equality’ can only be achieved when the differences between men and women
are acknowledged. These differences, which are found in Islamic Shari‘a provisions,
are read into an understanding of equality that is distinct.
Moreover, whilst rules which restrict women or relate to apostasy are found in
Islamic law, there are (equally) many areas within Shari‘a which are underdeveloped
or where the rules are unclear. In these areas, a wide margin is assumed within
which certain rights have been limited based on state-crafted ‘Islamic’ formulations.
The result is often a ‘nullification of rights in areas where the Shari‘a calls for
restrictions on rights and freedoms’ or where there is little or no guidance on a
particular issue, which allows ‘states [to] enjoy wide leeway in constructing Islamic
rationales to curb rights’.153 Such formulations lend some insight as to why a
specific understanding or reading of human rights, as narrated by the international
human rights machinery, has failed to gain traction in Muslim states.
3. Charter-based system and related procedures

The second aspect of the two track approach to the UN human rights monitoring
comes from the Charter-based organs. Under the Charter-based system there are
bodies either directly mandated by the UN Charter (eg General Assembly or the
Human Rights Council154) or authorized by one of the Charter bodies (eg Sub-
Commission on the Promotion and Protection of Human Rights155) to monitor
human rights compliance. As Charter-based bodies are political organs they con-
trast with the treaty-based system. Whereas the treaty-based systems are client
based and are limited to the terms and application of a specific treaty-based
obligation, Charter-based bodies have a wider audience; in theory every state is
an actual or possible client. Within the UN Charter system, it is the UN Human
Rights Council and the Office of the High Commission for Human Rights (and
the monitoring procedures therein) which are the main human rights players and
our review will focus primarily on the surveyed states’ participation in their work.
In 2006, when the Human Rights Council replaced the Commission on Human
Rights (UNCHR), it also made redundant the intermediary role previously played
151 Whilst the majority of reservations relate to personal or family status issues, Kuwait attached an
additional reservation to Art 25(b) of the ICCPR which limits the right to stand and vote in election to
males.
152 See n 49.
154 The Human Rights Council succeeded the Commission on Human Rights in 2006.
155 Formerly the Sub-Commission on the Prevention of Discrimination and Protection of Minor-
ities. The Sub-Commission ceased to operate in 2006 with the establishment of the Human Rights
Council.
Narrating Law 43
by the Economic and Social Council (ECOSOC), which served as liaison between
the then Commission and the General Assembly. Whereas the Commission was a
functional body of ECOSOC, the Council has an elevated status as it is now a
subsidiary organ of the General Assembly. The Council’s composition and func-
tioning also differs from the Commission. It has a smaller membership (47 states)
and its members are elected by an absolute majority of the Assembly (97 states) and
members can serve for only two consecutive three-year terms. Unlike the Commis-
sion, the Council serves as a standing (permanent) body and meets regularly. The
Assembly may, by a two-thirds majority vote, suspend a Council member that
engages in gross and systematic human rights violations. Ostensibly, the creation of
this new Council was intended to redress some of the deficiencies and criticisms
that had plagued the Commission.156 Whatever the assessment of the workings of
the Commission (and now the Council), for a number of states within our
territorial ambit, Charter-based organs (in particular the Commission/Council
and High Commissioner’s Office) remain the only avenues for engagement on
human rights issues at the international level.
Under the Commission, two mechanisms emerged, the ‘1235’ (public) and
‘1503’ (confidential)157 procedures which were set up to address situations where
there was ‘a consistent pattern of gross and reliably attested violations of human
rights and fundamental freedoms within the terms of reference of the Sub-Com-
mission’.158 The 1235 procedure also served as a basis for a number of special
procedures which include special rapporteurs, independent experts, or working
groups looking at a particular country (country-specific mandate) or focusing on a
thematic issue (thematic mandate). The Human Rights Council retained most of
the special procedures, including the confidential ‘1503’ procedure (now called the
‘compliant procedure’), and introduced the Universal Periodic Review (UPR).159
As noted earlier, the 1503 procedures under both the Commission and Council
are confidential but some information is within the public domain including the
number of states that have been subject to scrutiny. Of the 84 states examined
under the 1503 procedure by the Commission on Human Rights (as up to 2005),
13 were from among the surveyed states: Afghanistan (37th–40th Sessions),
Bahrain (47–49th Sessions), Djibouti (59th–60th Sessions), Iran (30th–31st and
39th Sessions), Iraq (44th–45th Sessions), Israel (31st–33rd Sessions), Kuwait
156 This included questions related to the composition of the membership of the Commission, with
a number of states with questionable human rights records seeking and securing membership, as well as
criticisms that the Commission was used as a political vehicle, rather than a constructive forum for
addressing human rights concerns.
157 In 1971, the Sub-Commission under Res 1 (XXIV) adopted procedures on admissibility for the
1503 procedures that allowed any individual or group claiming to be the victim of such human rights
violations to submit a complaint (UNDOC E/CN.4/1070 at 50–1). NGOs can also submit com-
plaints if they have direct and reliable knowledge of violations. ECOSOC streamlined the 1503
procedure in 2000 and, in doing so, bypassed the Sub-Commission as a whole and permitted
consideration by the Commission of communications or situations referred to it by a five-member
Sub-Commission working group (one on Communications and the second on Situations) (UNDOC
E/RES/2000/3).
158 Para 1, ECOSOC Res 1503 (XLVIII), 27 May 1970. UNDOC E/4832/ADD.1
159 To date, approximately one third of UN Member States have undergone this process.
(50th Session), Lebanon (53rd Session), Saudi Arabia (51st–55th Sessions), Syria
(45th, 48th, and 53rd Sessions), Sudan (47th–49th Sessions), UAE (56th Session),
and Yemen (54th–56th Sessions).160
The problems associated with the 1503 procedures161 were highlighted by the
‘flagrant abuse and manipulation of the procedure by the Argentinean Government
at the time of the Dirty War’ in the 1970s,162 and proved to be the catalyst for the
Public Special 1235 Procedures.163 There are a number of processes under the 1235
procedures, which signal varying degrees of engagement (compliance) of a state with
the UN human rights machinery. Under a country-specific mandate of the Public
Special Procedures, state compliance is not necessary and therefore is not a particu-
larly apt indicator of state engagement or compliance. In fact the very political nature
of the Charter-based systems suggests that the decision to select a particular country,
under the Commission,164 reflected the composition (and agenda) of its members at
the time. Since 1998, there have been 22 countries that have had country-specific
mandates, five of which were from within our territorial ambit—Sudan, Somalia,
Occupied Palestinian Territories, Iraq, and Afghanistan. Currently, there are 8
territories that have a country-specific mandate; three of which, the Occupied
Palestinian Territories, Sudan, and Somalia, fall within our study area. A Special
Rapporteur on the human rights situation in the Palestinian territories occupied in
1967 was established by the UNCHR in 1993 to last ‘until the end of the Israeli
occupation’,165 and a Special Rapporteur has been in place for Sudan since 1993.166
An Independent Expert on the human rights situation in Somalia has been in place
since 1993,167 and an Independent Expert on the human rights situation in Sudan
was established in 2009 to last for one year.168
In contrast, a standing invite under the thematic procedures is generally more
reflective of a state’s cooperation as it is an open invitation extended by a govern-
ment to all thematic special procedures. By extending a standing invitation, states
160 For more details on these, see <http://www2.ohchr.org/english/bodies/chr/special/visits.htm>.

161 This particular case highlighted, as one commentator noted that ‘this emphasis on confidential-
ity during the entire process that made the procedure even more vulnerable to abuse and political
manipulation’. See Jeroen Gutter, Thematic Procedures of the United Nations Commission on Human
Rights and International Law: in Search of a Sense of Community (Antwerp: Intersentia, 2006), 65.
162 For detailed accounts and analysis of the case of Argentina in the United Nations, see Iain
Guest, Behind the Disappearances, Argentina’s Dirty War Against Human Rights and the United Nations
(University of Philadelphia Press, 1990) and David Kramer and David Weissbrodt, ‘The 1980
U.N. Commission on Human Rights and the Disappeared’ (1981) 3 Human Rights Quarterly 18.
163 The 1967 Resolution 1235 (UNDOC E/4393) is generally regarded as the basis for the
establishment of country or thematic procedures, however, the Commission rarely used these func-
tions, save for cases it considered sui generis (eg Israel and South Africa). It appears that this trend was
broken in 1975 Chilean case.
164 Although the reform of the Commission into the Human Rights Council was meant to have
addressed some of the criticisms that plagued the Commission, including the proffering of political
agendas, it is yet unclear whether the newly configured Council will be successful.
165 UNCHR Res 1993/2 A (UNDOC E/CN/4/RES/1993/2).
166 UNCHR Res 1993/60 (UNDOC E/CN/4/RES/1993/60/).
167 The independent expert was established by UNCHR Res 1993/86 (UNDOC E/CN/4/1993/
86), and was recently renewed for a year by Human Rights Council Res 12/26 (UNDOC A/HRC/
RES/12/26).
168 Human Rights Council Res 11/10 (UNDOC A/HRC/RES/11/10).
Narrating Law 45
announce that they will always accept requests for country visits under special
procedures without requiring express permission on each occasion. As of February
2010, there are 67 states169 that have extended standing invitations to the special
procedures including two from the Middle East—Iran and Jordan. Similarly, the
establishment of a field Office of the High Commissioner for Human Rights
(OHCHR) or the issuing of Memorandums of Understanding (MOUs) which
invite ‘technical’ cooperation also reflect some degree of cooperation with the UN
special procedures mechanisms. Currently the OHCHR have field offices in 11
countries,170 which includes the Occupied Palestinian Territories, and eight
regional offices, including one in the Middle East (Beirut).
Auditing the relationship between the surveyed states and the UN human rights
machinery through the special public procedures reveals a rather mixed level of
cooperation and engagement.171 On the one hand, Middle Eastern states have been
openly critical of the international human rights regime and reject the hegemonic
language of international human rights. Situated within the larger Asian/Islamic
values debate,172 these criticisms have highlighted the politicization of the former
UNHRC, although the current Council has been similarly accused of pursuing a
political rather than a human rights agenda, particularly with regard to Israel.173
These criticisms emanating from the Middle East also highlight the use of ‘double
standards’ by the human rights regime.174 On the other hand, states from the
region have accepted even the most intrusive of the UN’s monitoring mechanisms,
often with surprising levels of engagement. Iran and Jordan, for example, have
issued standing invitations under thematic procedures175 and other states have
extended individual invitations to, or cooperated with the visitation requests of,
Special Rapporteurs or Independent Experts. In fact, the OHCHR has reported
that since 1998, the vast majority (20 out of 24) of the surveyed states have
accepted requests for visits from thematic rapporteurs.176 Only Libya, Comoros,
Djibouti, and Syria have not, to date, allowed country visits by special procedure
mandate holders. However, Israel has not allowed the Special Rapporteur for
169 See <http://www2.ohchr.org/english/bodies/chr/special/invitations.htm> for a complete list.

170 The OHCHR has field offices in: Angola, Bolivia, Cambodia, Colombia, Guatemala, Mexico,
Nepal, the Occupied Palestinian Territories, Kosovo (Serbia), Togo, and Uganda <http://www2.
ohchr.org/english/bodies/chr/special/invitations.htm> <http://www.ohchr.org/EN/Countries/Pages/
CountryOfficesIndex.aspx> accessed 21 July 2010.
171 Data obtained through the Office of the UN High Commission for Human Rights for the
period 1998 to date.

172 On this debate, see Jeroen Gutter, ‘Special Procedures and the Human Rights Council:
Achievements and Challenges ahead’ (2007) 7(1) Hum Rts L Rev 93, but see also Richard Falk,
‘Human Rights’, Foreign Pol’y 18 (1 March 2004).
173 It is worth noting that the current Council includes five Middle Eastern States (Bahrain, Egypt,
Jordan, Qatar, and Saudi Arabia) and a significant representation by Muslim and African nations.
174 On this debate, see Jeroen Gutter, ‘Special Procedures and the Human Rights Council’, 93, but see
also Richard Falk, ‘Human Rights’ (2004) Foreign Policy 141 (March–April), 18–20, 22, 24, 26, 28.
175 See <http://www2.ohchr.org/english/bodies/chr/special/invitations.htm> for a complete list.
176 See <http://www2.ohchr.org/english/bodies/chr/special/countryvisitsa-e.htm> for a list of all
Special Procedure visits organized by country. Last accessed 23 July 2010.

human rights to enter the Occupied Territories since the appointment of Richard
Falk to that position in May 2008.177
The only substantial departure of the Council from its predecessor, the Com-
mission, was the establishment of the Universal Periodic Review (UPR).178 Created
by General Assembly Resolution 60/251, the HRC was mandated to:
. . . undertake a universal periodic review, based on objective and reliable information, of the
fulfilment by each State of its human rights obligations and commitments in a manner
which ensures universality of coverage and equal treatment with respect to all States; the
review shall be a cooperative mechanism, based on an interactive dialogue, with the full
involvement of the country concerned and with consideration given to its capacity-building
needs; such a mechanism shall complement and not duplicate the work of treaty bodies.179
Just how the UPR system would operate was left to the HRC to decide.180 Under
the UPR system, all 192 UN member states are subject to review, with the first
cycle of reviews to be undertaken in the Council’s first four years (therefore, 48
states will be reviewed per year in one of the three Working Group sessions that will
convene each year).181 Amongst the requirements is that all member states to the
HRC must be reviewed during their membership tenure.182 As a result, the first
states to be reviewed were those that were rolling off the HRC in 2007. The rest of
the selection was made either by states voluntarily submitting for review or by lots
drawn from each of the Regional Groups. To date, 128 states183 have undergone
the UPR, including 17 of the states184 under this review. What is perhaps notable
about the UPR system thus far is the ‘prevailing gentility’185 in the process itself.
The restraint in the discourse may well, as Carey has argued, ‘result from the fact
that each country is itself scrutinized every four years. Some countries that have
probed a bit sharply may regret it when their turn comes. Others will go easy in a
spirit of mutual back-scratching.’186 That said, early reviews of the system have
indicated that whilst the gentility of the approach was palpable during the first
working group session of the UPR, what was also notable was the degree of
177 See Report of the Special Rapporteur on the situation of human rights in the Palestinian
territories occupied since 1967 (A/HRC/10/20).

178 For an excellent assessment on the formation and workings of the UPR, see Dominguez
Redondo, ‘Universal Periodic Review of UN Human Rights Council’.

179 UN GA Res 60/251, para 5(e) UNDOC A/Res/60/251.
180 See n 179.
181 See United Nations Human Rights Council: Institution Building, at para 5–14. Adopted by HRC
resolution 5/1 of 18 June 2007 (A/HRC/RES/5/1), endorsed by the General Assembly by Resolution
62/434 of 3 December 2007 (A/RES/62/434).
182 See United Nations Human Rights Council: Institution Building, at para 8.
183 This number includes all those reviewed up to and including the 8th Session of the Human
Rights Council Universal Periodic Review.

184 In order of UPR review, these are: Bahrain, Tunisia, Morocco, Algeria (A/HRC/8/52), UAE,
Israel (A/HRC/10/29), Djibouti, Saudi Arabia, Jordan (A/HRC/11/37), Afghanistan, Yemen, Com-
oros (A/HRC/12/50), Qatar (A/HRC/14/2), Iran (A/HRC/14/12), Iraq (A/HRC/14/14), Egypt
(A/HRC/14/17), Kuwait (A/HRC/WG.6/8/L.14).
185 John Carey, ‘The UN Human Rights Council: What would Eleanor Roosevelt Say?’ (2009) 15
ILSA J Int’l & Comp L 459, 460.

186 Carey, ‘The UN Human Rights Council’.
Narrating Law 47
participation (including Middle Eastern member and non-HRC member states):

‘More than half of the States of the UN (98) took the floor during the first session
of the UPR’.187
4. Regional systems
It is when we turn to regional (in the form of the Arab Charter) and Islamic human
rights schemes (such as the Beirut and Cairo Declarations and the Universal Islamic
Declaration of Human Rights), however, that the differences Richard Martin notes
in Nationalism and Minority Identities in Islamic Societies emerge so clearly. Martin
argues that the starting point of how rights are conceived of and argued about is
framed differently in the Muslim world.188 These systems have emerged under the
League of Arab States and the Organization of the Islamic Conference (OIC).189
The League of Arab States was founded under the Pact of the League of Arab States
of 1945, ‘[w]ith a view to strengthen[ing] the close relations and numerous ties
which bind the Arab States’. The independence and sovereignty of member States
is emphasized in the Pact, and there is no reference in its founding document of
either the contents or principles of human rights. The OIC was established in 1969
to promote Islamic ‘unity and solidarity among the [56] Member States in securing
their common interests at the international arena’ and to work towards socio-
economic, political and environmental cooperation. Unlike the Pact, the OIC
Charter does reference member states’ international law and human rights com-
mitments. For example, the Preamble to the Charter references: ‘a commitment to
the principles of the United Nations Charter, the present Charter and International
Law’; ‘to promote the lofty Islamic values of peace, compassion, tolerance, equality,
justice and human dignity’; ‘to contribute to international peace and security,
understanding and dialogue among civilizations, cultures and religions and pro-
mote and encourage friendly relations and good neighbourliness, mutual respect
and cooperation’; and ‘to promote human rights and fundamental freedoms, good
governance, rule of law, democracy and accountability in Member States in
accordance with their constitutional and legal systems’. The Charter also references
protection for women, religious minorities, respect for self-determination rights,
and support for the ‘struggle’ of Palestinians.
At the 1968 Tehran World Conference, the situation of Arabs in territories
occupied by Israel was placed on the agenda of Arab States and led to one of the first
‘human rights’ related issues to be raised by Arab States. This intervention did
shape awareness amongst Arab states of the human rights discourse. That said, both
during and after the Tehran conference, when human rights concerns were raised
by Arab states it would mainly be confined to criticism of Israel over its treatment of
Palestinians. Also in 1968, the Permanent Arab Commission on Human Rights
187 Elvira Dominguez Redondo, ‘The Universal Periodic Review of the UN Human Rights
Council: An assessment of the first session’ (2008) 7(3) Chinese J Int’l L 24.
188 Martin, ‘From Dhimmis to Minorities’, 9.
189 See <http://www.oic-oci.org/>.
(ACHR) was established during a regional conference on human rights. Unlike
many human rights bodies, the Commission is not comprised of independent
experts but of political appointments, which has created a highly politicized body.
The first Arab Charter on Human Rights was adopted by the Council of the
League of Arab States in 1994, but failed to attract any state ratification. The
Council of the League of Arab States then adopted resolutions in 2002 and 2003 to
‘modernize’ the 1994 Charter through the Arab Standing Committee on Human
Rights.190 After consultations with Member States, independent experts, and
nongovernmental organizations in 2004, a revised Arab Charter on Human
Rights191 was adopted during the 16th Ordinary Session of the Arab Summit.192
In 2008, it reached a sufficient number of ratifications and entered into force.193
Other Islamic human rights schemes include: the Cairo Declaration on Human
Rights in Islam, adopted in 1990 by the Organization of the Islamic Conference;
the Universal Islamic Declaration of Human Rights adopted by the Islamic
Council of Europe in 1981;194 and the 2003 Beirut Declaration on the Regional
Protection of Human Rights. The Cairo Declaration is non-binding and as its title
suggests, the declaration is closely based on Islamic principles. In 2004, OIC
adopted a binding instrument with a specific focus: the Covenant on the Rights
of the Child in Islam. This Convention is open for ratification and will enter into
force after 20 OIC member states have ratified it. Although the Convention
provides for a monitoring mechanism—the Islamic Committee on the Rights of
the Child—its mandate is only vaguely drafted.
The engagement by the surveyed states in the international human rights regime as
state parties to international human rights treaties and, in some cases, related moni-
toring mechanisms suggests that there is a willingness by these states to participate in
‘the human rights objective of the UN’195 whilst at the same time (through reserva-
tions and derogations), take exception to their expression. Mayer has argued these
tensions are mirrored in engagement between Western scholars and those who ‘put
forward distinctive Islamic schemes of human rights’. In some cases, these scholars
‘seek to accentuate the formal resemblance between their schemes and the inter-
national ones even where that resemblance is misleading in terms of the actual level of
rights protections they intend to provide’. The result is that differences are concealed
in order to ‘minimize their importance’. Whereas IHRL provides for individual rights
190 Resolutions of the Council of Ministers of the League of Arab States: 6184 March 2002, 6243
September 2002 and 6302/119 (Part II) March 2003 only available in Arabic on <http://www.
arableagueonline.org/las/index.jsp>, noted in ‘The Revised Arab Charter on Human Rights: A Step
Forward?’ (2005) 5(3) Mervat Rishmawi, 362–3, fns 4 and 7.
191 League of Arab States, Revised Arab Charter on Human Rights, 22 May 2004, reprinted in
(2005) 12 Int’l Hum Rts Rep 893 entered into force 15 March 2008.
192 Summit was held on 23 May 2004 in Tunis.
193 Seven states were required for ratification. The UAE, Jordan, Bahrain, Algeria, Syria, Palestine,
and Libya were amongst the first seven to ratify and, to date, have been joined by Qatar, Saudi Arabia,
and Yemen.
194 21 Dhul Qaidah 1401 19 September 1981.
195 Mashood A Baderin, International Human Rights and Islamic Law (Oxford: Oxford University
Press, 2005), 2.
Narrating Law 49
protection, the narrative that accompanies Islamic human rights schemes remains a
purposeful ‘idealistic abstraction’.196 Two sites of conflict—on questions related to
equality and minority communities—will be reviewed here briefly.
The question of what comprises ‘true’ equality which has engaged debate by some
Muslim scholars is an interesting one. According to this argument, the equality
espoused and protected within Islam is a more genuine form of equality as it recognizes
the different roles of men and women and endeavours to bring a ‘just balance’ between
both. This view is reflected in a reservation by Egypt to Article 16 of the CEDAW197
as well as several reservations to Article 23 of the ICCPR.198 This distinction between
what the law requires and how it is enforced in relation to gender equality is also
reflected in some of the discourse by Muslim scholars who are critical of the
international human rights regime.199 Within Islamic human rights schemes, ques-
tions of equality are addressed in distinct ways. Under the UIDHR, equality is
provided for under Article 3(a) which states that ‘all persons are equal before the
Law and are entitled to equal opportunities and protection of the Law’. However, in
Arabic, this has been translated to equality under Shari‘a, without any discrimination
in application or practice. Mayer has argued that the provision recognizing equality
before a law ‘in its premodern formulations is inherently discriminatory and thereby in
violation of international standards’.200 Mayer’s argument on this provision mirrors
her reservations with regard to this regional project as a whole as she notes that the
drafters fail to adequately address the tensions that exists at the interface of Shari‘a (as it
is codified) and human rights law.201
The Beirut Declaration on the Regional Protection of Human Rights of 2003, in
contrast, suggests a different engagement with the question of equality. The
Declaration was the result of a conference which engaged a range of non-state
actors, drawn from the NGO community, academics, the media, and the legal
profession. Mayer argues that given the participation of civil society in the drafting,
the Declaration better reflects the norms and values of the Muslim world. This
stands in contrast to the UIDHR, where the principles were ‘principles imposed by
Iran’s theocrats or the Saudi royal family’.202 In this text, equality is framed as
‘absolute equality in dignity and citizenship’203 and when specifically addressing

197 Convention on the Elimination of All Forms of Discrimination against Women [hereinafter
CEDAW], GA Res 34/180, 34 UN GAOR Supp (No 46) at 193, UN Doc A/34/46 (1981).
198 The Mauritanian reservation to Art 23 which states ‘The Mauritanian Government interprets
the provisions of Article 23, paragraph 4, on the rights and responsibilities of spouses as to marriage as
not affecting in any way the prescriptions of the Islamic Shariah’ is reflective of the view of a number of
other states, including Algeria and Kuwait and, separately, Israel who also invoked a reservation to
signal the precedence for ‘religious law’.
199 See Shaheen Sadar Ali, ‘Gender and Human Rights in Islam and International Law: Equal
Before Allah, Unequal Before Man?’ (London: Kluwer Law International, 2000).
200 Mayer, Islam and Human Rights, 105–6.
202 Ann Elizabeth Mayer ‘The Islam and Human Rights Nexus: Shifting Dimensions’ (2007) 4(1)
Muslim World J Human Rights, Art 4 at 7.

203 Beirut Declaration on the Regional Protection of Human Rights, ‘Towards an Effective
Regional Protection of Human Rights: Which Arab Charter on Human Rights?’ Art 7 (Beirut,
gender equality, the Declaration states: ‘Women have the right to dignity and legal
status, which makes them able to control their own destiny and to practice their
equal duties and rights as men within the private and public spheres’.204 Principle 3
of the Declaration marks a departure from the cultural relativity that litters other
Islamic alternatives to the human rights regime. It states:
Civilization or religious particularities should not be used as a pretext to cast doubt and to
question the universality of human rights. The ‘particularities’ that deserve celebration are
those which make a citizen have a sense of dignity, equality and enriches his/her culture and
life, and promote his/her participation in their own country’s public affairs. Assuring the
tolerant principles of Islam and religions in general should not be put in a false contradiction
to human rights principles. The conference [rejects the authority] of aged interpretations of
Islam that distort Islam and insult Muslims and leads to violations of human rights,
particularly when excluding women and not allowing freedom of thought, belief, creative
art, literature and scientific research.205
Although not unique to the Middle East,206 the language of rights rests on uncommon
ground; it is received and, in turn, engaged quite differently and remains, in the region,
a very contested discourse.207 The crafting of Islam as the gatekeeper which limits
access to a ‘universalist’ reading of human rights is, of course, unique to Muslim states.
Yet, as the other contributors to this book will note, both value (and indeed interests)
systems are challenged by the social realities they confront. Indeed, it is only when we
examine what is unfolding in the broader political space that we come closer to
understanding the legal landscape of any particular state or regional system. The
interests (moral, political) of states (Muslim or non-Muslim) sometimes overlap but
often are in conflict with the international rights machinery; a machinery that, as
Section A of this essay has argued, is in conflict with itself.
F. Conclusion
I suggested earlier in this essay that there is symmetry in the ways in which the
differentiated approaches to the interpretation of law (and related doctrines) within
both international and Islamic law seek to capture and shape how that law is
applied. Each of these occupies a contested space—with a particular reading or
Lebanon: Cairo Institute for Human Rights Studies and the Association for the Defence of Human
Rights and Liberty, 2003).
204 Beirut Declaration on the Regional Protection of Human Rights, Art 15 (see n 203).
205 Beirut Declaration on the Regional Protection of Human Rights, Art 3 (see n 203).
206 As Castellino and Dominguez note in their review of Asian participation in treaty and Charter-
based systems, this criticism is shared. See Joshua Castellino and Elvira Dominguez Redondo, Minority
Rights in Asia (Oxford: Oxford University Press 2006) 26–42.
207 The contested nature of the rights discourse is also evident in the rather diverse grouping of
states in the Asia-Pacific region, which to some extent intersects and overlaps with the Muslim world
and has been cited as a factor which has prevented the United Nations from establishing a supra-
national human rights convention or body in these regions. Without an intergovernmental organiza-
tion to serve as a regional umbrella for such a diverse group of states in this region, a regional human
rights system remains unlikely.
Narrating Law 51
understanding situated with ‘context’ (eg security/colonial) or ‘culture’ (values/

nationalist-universalist). Within each domain, a selective or specific reading of the
doctrine or text has been used to legitimate the ‘struggle’. In the Muslim world,
those who invoke jihad, for example, engage earlier doctrinal writings on jihad, as
well as their exegeses of Qur’anic and hadith texts to justify the use of political
violence in the struggle against regimes deemed to be corrupt. Similarly, in the so-
called ‘war against terrorism’ the use of militant democratic language has been read
into acts of anticipatory self-defence. The human reasoning that interfaces with the
doctrines of international law (and indeed, as Anver Emon argues in Chapter 2,
Islamic law) has left the rules of each lost in the rhetoric of the actors that control
that discourse.
Situating international law in the state of exception, as I have endeavoured to do,
is to argue that the juridical order is indeed ‘bound and blurred’ into a political
system that seeks to transform it. Critics will undoubtedly point out that the
machinery still functions, cases are heard and adjudicated; and states continue to
engage with its language (however reconstructed) and argue compliance. And even
the most insightful and challenging of writings on international law endeavour to
end on a note of optimism; fearing perhaps the consequence of moving too far into
such an abyss. And, even within this more sober reading of international law
wedded to, rather than separate from politics, there is little doubt that it is ‘a
form of politics that has some particular virtues’.208 Yet I argue that the disquiet in
laying law bare is necessary if we, as scholars of Islamic law and of public
international law, are to reclaim the narrative, which speaks law to power.
208 R Wai ‘Countering, Branding, Dealing: Using Economic, Social and Cultural Rights in and
around the International Trade Regime’ (2003) 14 European J Int’l L 35–84, 84.
2
Shari‘a and the Modern State
Anver M Emon
Introduction
When Islamic law and international human rights law are juxtaposed in the same
sentence or title, the assumptions that arise can vary. Some might see in that
juxtaposition an attempt to challenge contemporary Islamic legal practices in the
interest of human rights agendas. Others might see in the juxtaposition an implicit
attempt to perpetuate the colonial dominance of the global North over the Muslim
parts of the global South. Yet others may see in the juxtaposition a qualification of
any claim to truth or any aspiration for a shared language of global cooperation.
In the context of this book, the juxtaposition is designed to shift the debate from
the content of the law to the dynamics of legal ordering. In other words, the authors
writing about Islamic law and international human rights law approach their
respective topics by inquiring into the dynamics of law (whether international or
Islamic) as a system, or as Ronald Dworkin might say, as having integrity, or in a
phrase of increasing popularity, as ‘rule of law’. This introduction to Islamic law
argues that ‘rule of law’ provides a useful conceptual frame to illuminate how
Shari‘a is not simply a doctrinal corpus, or catalog of legal rules. It is, rather, both
constitutive of and constituted by a view about the enterprise of governance. To
view Shari‘a in this fashion is to recognize the inevitable relationship between law
and politics as features of Shari‘a’s legitimacy and legitimating power. Conse-
quently, instead of pursuing a methodology of listing shared values, this project
juxtaposes separate analyses of international human rights law and Islamic law to
show that, at the heart of both legal systems, is an aspiration to regulate and govern
in accordance with an idea(l) of the individual’s place within a regulated polity built
upon and organized around different and at times competing core values.
By framing this introduction to Islamic law in terms of rule of law and
governance more generally, this essay does not attempt to impose a modern concept
anachronistically upon a premodern tradition. Rather, ‘rule of law’ offers a concep-
tual approach to help situate the study of Islamic law in a manner that allows for a
juxtaposition of Islamic and international human rights law in Part I and through-
out this book. Indeed, the chapters of this volume depart from the often important,
but sometimes trite, effort to find shared or common values between competing
traditions. Instead, many of the authors in this volume recognize that at the heart of
both Islamic law and international law lies the aim and aspiration to regulate and
Shari‘a and the Modern State 53
order, or to ensure good and right governance. The subjects of governance and the
institutions of governance may change or differ across traditions, but that both legal
traditions are mindful of governance is the one common denominator of both
traditions that is featured throughout this collection of essays.
Given the rule of law and governance framework, this introduction to Islamic
law will depart from conventional works that seek to introduce Islamic law to the
uninitiated. Many introductory books and chapters provide:
• an overview of the history of Islamic law;
• an account of its primary source texts (ie the Qur’an and traditions of the
Prophet);
• an outline of the methods of legal analysis; and
• a narrative discussing the transformation of Islamic law from the ‘classical
period’ to the Ottoman Empire, and beyond to the age of European colonial-
ism and the era of the independent modern state.
Studying these topics is an important part of understanding Islamic law, and all of
them will of course be addressed in this essay. They provide an insight into the
complex features of Islamic law in terms that reflect and respect the way in which
jurists within the tradition understood and expounded the law. But in the context
of this study, these basic features of Islamic law will be situated within a larger
argument about Islamic law as a system of legal ordering.
This introduction to Islamic law will proceed as follows. Section A introduces the
reader to basic themes in Islamic law by providing an overview of the received narrative
of the legal tradition, by which is meant the history of the legal tradition as encapsu-
lated by leading scholarly research in the 20th and 21st centuries. Section B will move
beyond the premodern tradition as outlined in Section A and bring the narrative into
the modern period. Section B will show how the shifts in governance frameworks that
came with the era of European colonialism and the modern state system has drastically
altered the substance and authority of Islamic law in contemporary legal systems. This
does not change the fact that Islamic law remains part of modern Muslim states; but its
role is considerably different from what existed in the premodern period. As such, any
effort to juxtapose Islamic and international law without also accounting for the
mediation of the modern state will more often than not create fears and anxieties
that are imagined and not real—‘red herrings’, so to speak.
Section C will offer an intervention to the received narrative of Islamic law in the
premodern and modern periods by recasting it in a different thematic frame,
namely Shari‘a as rule of law. By adopting this frame, Section C will link together
various features of the historical narrative of Islamic law to show the ways in which
the Islamic legal system is both constituted by and constitutive of the enterprise of
governance. As such, Islamic law is neither separate from the political order nor
wholly reducible to the political. Because of this constitutive mutuality, Islamic law
does not, and indeed cannot, escape the hegemonic character that attends to any
institution that is empowered not only to decide matters of value or truth, but to
make such values manifest in the world.
Section D will bring this essay to a close by explicating how the proposed
systemic approach to Islamic law allows us to appreciate the way in which it (and
human rights law) are embedded in different systems of governance, and co-exist
with multiple traditions that contribute to the way in which society is governed. In
the case of Islamic law, the rule of law approach reminds us how, over the course of
centuries, Islamic law has become a system of rules that constitutes an important
source of law for modern Muslim states, but does not preclude other sources from
having legal legitimacy. Muslim states that wish to adopt Islamic legal principles or
doctrines in their legal systems are situated in complex webs of political and legal
authority operating at the local, national, and international levels. The challenge
therefore is less about learning about Islamic law in a disciplinary vacuum, and
instead to explore what it can and does mean, given that the prevailing unit of
governance (the state) exists in a legally pluralist context that begs fundamental
considerations about authority and legitimacy in both law and politics.
A. The received narrative of Islamic law
1. Source texts, interpretive authority, and doctrinal development

Shari‘a has a history whose normative foundations and development stretch from
the 7th century to the present.1 Its history illustrates that legal rules were often the
product of a legal discipline that was both inculcated and deployed amidst a culture
and institution of education, precedent, principles, and doctrines.2 The interpretive
theory of Islamic law certainly espouses a commitment to the Qur’an and traditions
of Prophet Muhammad (d 632 ce), the latter called hadith. These foundational
sources, herein called source-texts, provide an authoritative basis for juristic analysis
and interpretation. As foundational texts, they anchor the legal tradition, in large
part because of a theology that underlies both of them. The Qur’an is understood to
be the revelation of God to Muhammad, the prophet of God who bore the
responsibility for conveying God’s message to his people. The hadith are statements
of the Prophet about his deeds, decisions, and actions, all of which are meant to
have normative implications for the adherent Muslim. The authority of these two
sources for the Islamic legal tradition is based upon a theology that recognizes the
importance of the Qur’an as God’s guidance to humanity, and the significance of
the hadith as inspired prophetic guidance that both gives additional insight into the
Qur’an and addresses those issues not covered expressly or impliedly by the Qur’an.
1 For historical introductions to Islamic law, its origins and evolutions, see Joseph Schacht, An
Introduction to Islamic Law (1954; reprint, Oxford: Clarendon Press, 1993); N J Coulson, A History of
Islamic Law (1964; reprint, Edinburgh: Edinburgh University Press, 1997); Christopher Melchert,
The Formation of the Sunni Schools of Law, 9th–10th Centuries, CE (Leiden: Brill, 1997); Yasin Dutton,
The Origins of Islamic Law: The Qur’an, the Muwatta’, and Madinan ‘Amal (Curzon Press, 1999); Wael
Hallaq, The Origins and Evolution of Islamic Law (Cambridge: Cambridge University Press, 2005).
2 For a discussion of the curricula that was characteristic of Islamic legal education in the medieval
Muslim world, see George Makdisi, The Rise of Colleges: Institutions of Learning in Islam and the West
(Edinburgh: Edinburgh University Press, 1981).
But guidance in life and legal rules are two very different things. Islamic law can
be viewed as a tradition that has historically attempted to draw out the legal
significance from the Qur’an and hadith on a great variety of issues not necessarily
addressed by either source-text. The Qur’an contains 114 chapters and over 6,000
verses, but only a small fraction of its content can be characterized as ‘legal’.3
Likewise, the hadith pose problems of authenticity and meaning, given that they are
a textual rendition of an oral tradition, and were reduced to written form in vastly
different historical contexts. A hadith has two parts, namely the chain of transmit-
ters (isnad ) and the text of what the Prophet reportedly said (matn). The chain of
transmitters is a list of all the people who conveyed the Prophet’s statement across
generations before the hadith was written down in a compiled source. A hadith
might look something like this:
David said that Chantal said that Brenda said that Adam said that the Prophet said: ‘[textual
content or matn].’
Many authoritative compilations of hadith were written in the mid-9th century,
which means the hadith assumed recorded form over two centuries after the
Prophet’s death.4 Subsequently, Muslim jurists developed methods to authenticate
the hadith. Some of those methods involved a historical analysis of each member of
the chain of transmission and an assessment of their reputation for truthfulness.
Other methods focused on the textual content itself and its implications on other
authoritative texts, whether from the Qur’an or other established hadith sources.
Nonetheless, as both Muslim jurists and Western scholars of Islam have noted, as
the embodiment of an earlier oral tradition, the hadith cannot always be relied upon
as authentic statements of what the Prophet said, did, or decided.5 For instance,
some traditions were fabricated for socio-political reasons having to do with early
3 Various commentators suggest that there are anywhere from 80 to 600 verses of the Qur’an that
have content that can be called legal. For instance, Mohammad Hashim Kamali, Principles of Islamic
Jurisprudence (3rd edn, Cambridge: Islamic Texts Society, 2003), 26, states that the Qur’an contains
350 legal verses. Abdullahi Ahmad An-Na’im, Toward an Islamic Reformation: Civil Liberties, Human
Rights, and International Law (Syracuse: Syracuse University Press, 1990), 20, notes that some scholars
consider 500 or 600 of the over 6,000 verses in the Qur’an to be legally oriented. However of those,
most deal with worship rituals, leaving about 80 verses that deal with legal matters in a strict sense.
4 Jonathan Brown, The Canonization of al-Bukhari and Muslim: The Formation and Function of the
Sunni Hadith Canon (Leiden: Brill, 2007). Notably, Sunni and Shi‘a Muslims will have their own
canonical collections of hadith. For a list of Shi‘a sources and an introduction to the jurisprudence of
the Ja‘fari school, see Hossein Modarressi, An Introduction to Shi‘i Law: a bibliographical study
(London: Ithaca Press, 1984).
5 Many authors address the oral tradition that culminated in the hadith literature, and provide
alternative methods of understanding their historical import. Some such as Schacht argue that the
hadith are complete forgeries and cannot be relied on for knowing anything about what the Prophet
Muhammad said or did during his life. Joseph Schacht, The Origins of Muhammadan Jurisprudence
(Oxford: Clarendon Press, 1967). Others such as Fazlur Rahman suggest that the hadith tradition
reflects the collective memory of Muslims about the Prophet, although some certainly reflect later
historical political and theological controversies. Fazlur Rahman, Islamic Methodology in History
(Islamabad: Islamic Research Institute, 1964). Khaled Abou El Fadl, Speaking in God’s Name: Islamic
Law, Authority and Women (Oxford: Oneworld Publications, 2001), suggests that the hadith literature
represents an ‘authorial enterprise’ and the challenge is to determine the extent and degree to which the
Prophet’s voice has been preserved.
sectarian rivalries, political concerns about the legitimacy of rulers, and even
theological disputes. Fazlur Rahman offers various examples of hadiths that reflect
underlying theological and political disputes that arose well after the Prophet’s
death, but were nonetheless seemingly anticipated and even resolved by the
Prophet in traditions attributed to him. Rahman argues that ‘the basic function
of hadith was not so much history-writing but history-making. Contemporary
phenomena were projected back in the form of hadith in order to mold the
community on a certain spiritual, political, and social pattern.’6
a. Islamic law and legal interpretation

Both the Qur’an and hadith occupy an undeniable position of authority within
Islamic law. But they alone do not and cannot, given their finitude, define for all
times and for all situations the relevant Islamic legal ruling. Indeed, premodern
Muslim jurists were well aware that the finitude of these source-texts cannot meet
the needs of the infinite issues that can and do arise in human experience.
Consequently, premodern Muslim jurists developed different methods that consti-
tuted authoritative bases of legal analysis. Their debates about the viability of these
methods are found in a genre of Islamic legal literature called usul al-fiqh. This
phrase has been translated in different ways, whether as ‘philosophy of Islamic law’,
‘principles of Islamic law’, or ‘Islamic legal theory’.7 At their core, the different
treatises that fall into this genre outline at times competing philosophical and
methodological frameworks for deriving a ruling of Islamic law. Within those
frameworks, jurists debate the authority of many principles and methods in Islamic
law. Below are just a few examples of the topics of debate in such treatises:
• The authority of reason as a source of law, where revelation is silent.8
• The nature and authority of consensus (ijma‘) in Islamic law.9
• The methodology and scope of reasoning by analogy (qiyas) and related
principles of logic.10
• The place of the public interest (maslaha) in accounting for changing mores
that may affect change in the law.11
6Rahman, Islamic Methodology in History, 47.

7For general overviews of the field of usul al-fiqh, see Kamali, The Principles of Islamic Jurispru-
dence; Wael Hallaq, A History of Islamic Legal Theories (Cambridge: Cambridge University Press,
1997); Bernard G Weiss, The Search for God’s Law: Islamic Jurisprudence in the Writings of Sayf al-Din
al-Amidi (Salt Lake City: University of Utah Press, 1992); Bernard G Weiss, The Spirit of Islamic Law
(Athens, Georgia: University of Georgia Press, 1998); Muhammad Khalid Masud, Islamic Legal
Philosophy: A Study of Abu Ishaq al-Shatibi’s Life and Thought (Delhi: International Islamic Publishers,
1989).
8 See Anver M Emon, Islamic Natural Law Theories (Oxford: Oxford University Press, 2010).
9 See Ahmad Hasan, The Doctrine of Ijma’ in Islam: A Study of the Juridical Principle of Consensus
(1978; reprint, Islamabad: Islamic Research Institute, 1984).

10 See Ahmad Hasan, Analogical Reasoning in Islamic Jurisprudence: A study of the juridical principle of
Qiyas (Islamabad: Islamic Research Institute, 1986); Hallaq, A History of Islamic Legal Theories, esp ch 2;
Wael B Hallaq, ‘Non-Analogical Arguments in Sunni Juridical Qiyas’ (1989) 36(3) Arabica 286–306.
11 Felicitas Opwis, Maslaha and the Purpose of the Law: Islamic Discourse on Legal Change from the
4th/10th to 8th/14th Century (Leiden: Brill Publications, 2010).

• The authority of de novo interpretation (ijtihad) and the requirements for one
to exercise ijtihad authoritatively.12
The above topics are only a small fraction of the range of issues debated in the genre
of usul al-fiqh. They are introduced here to illustrate the kinds of issues, topics, and
debates that fall within the general label of ‘Islamic law’. Consequently, despite
popular representations to the contrary, Muslim jurists did more than simply read
the Qur’an and hadith as if they were codes and thereby transparently and determin-
ately meaningful. It is highly misleading to suggest that Islamic law was and remains
constituted by the Qur’an and traditions of the Prophet without further recourse to
techniques of juristic analysis that allowed the law to remain socially responsive
without at the same time undermining the legal tradition’s authority.
As an illustration, premodern Sunni jurists differed on whether a victim of theft
could seek financial compensation for his stolen property in the event that the thief
no longer possesses the property. The Qur’anic injunction against theft reads as
follows: ‘Regarding the male and female thieves, cut their hands as punishment for
what they did as a warning from God’.13 This verse provides for corporal punish-
ment, but makes no mention of compensatory damages. In a hadith, however,
Muhammad is reported to have denied compensation if the thief suffers amputa-
tion.14 Jurists of the four Sunni schools debated the authenticity of this hadith. For
instance, the Maliki Ibn Rushd al-Hafid and the Hanbali Ibn Qudama were
skeptical of its authenticity.15 The Shafi‘i al-Mawardi stated that in the time of
the biblical Jacob, thieves simply compensated their victims for their crimes. He
argued that the Qur’an abrogated that earlier law, and the hadith merely corrobor-
ates that fact.16 Nonetheless, the Hanafis relied on this tradition to deny compen-
sation to the victim if the thief had already suffered amputation of his hand. Indeed,
Hanafi jurists said that the Qur’an requires only one punishment. For them, to
12 Wael Hallaq, ‘Was the Gate of Ijtihad Closed ?’ (1984) 16 Int’l J Middle East Studies 3–41.
13 Qur’an, 5:38.
14 Jalal al-Din al-Suyuti, Sharh Sunan al-Nisa’i (Beirut: Dar al-Kutub al-‘Arabi, n.d.), 8:93; Ibn
Rushd, Bidayat al-Mujtahid wa Nihayat al-Muqtasid, ‘Ali Mu‘awwad and ‘Adil ‘Abd al-Mawjud (eds)
(Beirut: Dar al-Kutub al-‘Ilmiyya, 1997), 2:662. See also al-Mawardi, al-Hawi al-Kabir, ‘Ali Muham-
mad Mu‘awwad and ‘Adil Ahmad ‘Abd al-Mawjud (eds) (Beirut: Dar al-Kutub al-‘Ilmiyya, 1994),
13:184, who cited a different version of the hadith in which the Prophet is reported to have said, ‘If the
thief is amputated, there is no liability for compensation’ (idha quti‘a al-sariq fa-la ghurm). For this
version, see also al-Kasani, Bada’i‘ al-Sana’i‘ fi Tartib al-Shara’i‘, ‘Ali Muhammad Mu‘awwad and ‘Adil
Ahmad ‘Abd al-Mawjud (eds) (Beirut: Dar al-Kutub al-‘Ilmiyya, 1997), 9:341. Badr al-Din al-‘Ayni,
al-Binaya Sharh al-Hidaya, ed Ayman Salih Sha‘ban (Beirut: Dar al-Kutub al-‘Ilmiyya, 2000), 7:71
cited yet a third version of the hadith, which states: ‘There is no liability for compensation on the thief
after his right hand has been amputated’ (la ghurm ‘ala al-sariq ba‘da ma quti‘at yaminuhu). For other
versions of this tradition, see also al-Dar Qutni, Sunan al-Dar Qutni, ed Magdi al-Shura (Beirut: Dar
al-Kutub al-‘Ilmiyya, 1996), 3:129–30. Notably, ‘Ayni said that this tradition occurs in the collections
of both al-Nisa’i and al-Dar Qutni. Al-‘Ayni, Binaya, 7:71.
15 Ibn Rushd, Bidayat al-Mujtahid, 2:662–3; Ibn Qudama, al-Mughni (Beiut: Dar Ihya’ al-Turath
al-‘Arabi, nd), 8:271.

16 Mawardi, al-Hawi al-Kabir, 13:184. For the Hanbali Abu Ishaq Ibn Muflih (d 804/1401), the
hadith means that no one should be compensated for amputating a thief ’s hand (ie ujrat al-qati ‘). Abu
Ishaq Ibn Muflih, al-Mubdi‘ fi Sharh al-Muqni‘, ed Zahir Shawish (Beirut: al-Maktab al-Islami, 1974),
9:144.
impose liability for compensation in addition to the amputation not only contra-
vened the Qur’anic stipulation of a single punishment, but also the hadith denying
compensation from a thief who had suffered amputation.17
The other schools of law, though, did not rely on that hadith. In rejecting it as
dispositive, they had to reason to a legal conclusion. For jurists of the Shafi‘i,
Hanbali, and Maliki schools, the thief committed a social wrong, and thereby
deserved the corporal punishment for retributive purposes. But the corporal
punishment alone did not redress the injury suffered by the victim. The victim’s
lost property was not something that the jurists of these schools could ignore.
Consequently, Shafi‘i and Hanbali jurists concluded that the victim could seek
compensatory damage, even if the thief suffered corporal punishment. The Malikis,
while attentive to the victim’s plight, were also mindful of the fact that the
thief might suffer unduly if he both lost his hand and was indebted financially. If
the thief were poor, the debt might appear to be a second punishment. Therefore,
the Malikis concluded that if the thief was sufficiently wealthy from the moment he
stole to the moment his hand was amputated, he must pay compensation. But if
he was poor in that period, he owed no compensation. For the Malikis, the prospect
that such a financial debt might be punitive seemed unduly retributive.18 This brief
example showcases the interpretive role of the jurist. Between authoritative text and
the demands of a legal controversy sat the jurist who had to devise an authoritative
legal ruling to resolve a case at hand, a ruling that could have precedential effect on
future issues that may be analogous.
b. Legal doctrines (fiqh) and the schools of Islamic law (madhahib)

As interpreter, the jurist brought a wealth of training about the Qur’an and
prophetic traditions, as well as the vast body of rulings of his own legal school,
and possibly others. Bringing them all to bear in his legal analysis required an
awareness of the authority of source-texts, of where they were dispositive, of where
they were ambiguous, and of the lacuna in the source-texts that needed to be
supplemented with disciplined legal analysis. Their interpretations of the law
offered touchstones of legal authority. Their legal rulings are called fiqh and
represent the doctrines of Islamic law with which many are familiar. The fiqh
tradition addresses issues that include, but are not limited to the following:
• Rules of ritual practice (eg prayer, purification).
• Contract law (eg formation, breach, liability).
• Tort law (eg categories of injuries, liability, and damage rules).
• Court administration (eg witness testimony, evidence, pleadings).
• Criminal law (eg substantive crimes, evidentiary requirements, sanctions).
17 See, for example, Abu Bakr al-Sarakhsi, Kitab al-Mabsut (Beirut: Dar al-Kutub al-‘Ilmiyya,
1993), 9:157; Kasani, Bada’i‘, 9:340–1.

18 For a fuller discussion of this issue, see Anver M Emon, ‘Huquq Allah and Huquq al-‘Ibad:
A Legal Heuristic for a Natural Rights Regime’ (2006) 13(3) Islamic Law and Society 325–91, 358–72.
Fiqh doctrines on whole areas of law arose through a systematic process of juristic
commentary and analysis that stretched over centuries. During this process, differ-
ent interpretations of the law arose, leading to competing ‘interpretive commu-
nities’19 of the law or what are often called ‘schools of law’ (madhahib, sing.
madhhab)—all of which were historically deemed equally orthodox and authorita-
tive.20 Over time, the number of Islamic law schools diminished, to the extent that
there are now four remaining Sunni legal schools and three Shi‘a schools. The
Sunni schools are the Hanafi, Maliki, Shafi‘i, and Hanbali schools. The Hanafi
school is predominant in South Asia and Turkey; the Maliki school is prevalent in
North Africa. The Shafi‘i school is pervasive in Southeast Asia and Egypt, while the
Hanbali school is found in the Gulf region. The Shi‘a schools are as follows: Ja‘fari
(mostly in Iran),21 Isma‘ilis,22 and Zaydis.23 A different school, with an intellectual
genealogy to the premodern kharijis is the ‘Ibadi school, which is dominant today
in Oman, East Africa, and Algeria.24 Consequently, if one wants to determine a
rule of Islamic law, one will often start with a fiqh treatise of one or another school
of law, rather than with the Qur’an or hadith. Fiqh treatises come in a variety of
sizes depending on the use to which they are put. One may consult a summary of a
particular school’s fiqh (ie mukhtasar) for quick reference,25 or an elaborate encyclo-
pedia written by a jurist who not only addresses the doctrines of his own school, but
also shows how and why others schools differ.26
For instance, in the fiqh on marriage and divorce, a husband has the right to
unilaterally divorce his wife through a procedure known as talaq, while the wife
does not have this power, unless she negotiated to have this power included as a
condition in her marriage contract (‘aqd al-nikah).27 If a wife has not done so, she
19 The phrase ‘interpretive community’ is borrowed from the work of Stanley Fish, Is There a Text
in this Class? The Authority of Interpretive Communities (Cambridge: Harvard University Press, 1980).
20 For the history of the legal madhhab, see Melchert, Formation of the Sunni Schools of Law; Hallaq,
The Origins and Evolution of Islamic Law. For the curriculum often taught at these legal schools, see
Makdisi, The Rise of Colleges.
21 For an introduction to Shi’ite law, see Hossein Modarressi, An Introduction to Shi‘i Law.
22 On the Isma‘ilis, see Farhad Daftary, The Ismailis: Their History and Doctrines (Cambridge:
Cambridge University Press, 1990).

23 On the Zaydi school, see W Madelung, ‘Zaydiyya’, Encyclopaedia of Islam, Second Edition,
P Bearman, Th Bianquis, C E Bosworth, E van Donzel, and W P Heinrichs (eds) (Brill Online).
24 For more on the ‘Ibadiyya, see T Lewicki, ‘al- ‘Ibadiyya’, Encyclopaedia of Islam, Second Edition.
25 Mohammad Fadel, ‘The Social Logic of Taqlid and the Rise of the Mukhtasar’ (1996) 3(2)
Islamic Law and Society 193–233.

26 For a bibliographic listing of medieval Arabic fiqh sources from the various Islamic legal schools,
see John Makdisi, ‘Islamic law bibliography’ (1986) 78(1) Law Library J 103–89. An example of a fiqh
text that also explains the differences between legal schools is the treatise by Ibn Rushd (d 1198)—
known in the West as the philosopher Averroes—entitled Bidayat al-Mujtahid wa Nihayat al-Muqta-
sid. For a translation of his masterful text, see Ibn Rushd, The Distinguished Jurist’s Primer, trans Imran
Nyazee, 2 vols (Reading, UK: Garnet Publishing Ltd, 1996).
27 One of the formalities of a valid Islamic marriage is that the parties have a marriage contract,
which can be analogized to a premarital agreement. There is a lengthy juristic tradition of allowing
parties to a marriage to negotiate certain provisions and create conditions in a marriage contract. One
such condition is for the husband to grant his wife the power to unilaterally divorce herself. This
procedure is known as tafwid al-talaq. Haifaa A Jawad, The Rights of Women in Islam (New York:
St Martin’s Press, 1998), 35–40; Lucy Carroll, Talaq-i-Tafwid: the Muslim Woman’s Contractual Access
to Divorce (Women Living Under Muslim Law, 1996). For a general discussion on marriage law and
must petition a court to issue a divorce. A wife can seek either a for-cause divorce or
a no-cause divorce. In a for-cause divorce, she alleges some fault on the part of her
husband (eg failure to support, abuse, impotence) and seeks a divorce while
preserving her financial claims against her husband. In a no-cause or khul‘ divorce,
a woman asserts no fault by her husband, and agrees to forgo any financial claim
against her husband to be free from the marriage.28 The difference between a
husband’s right of divorce and a wife’s right in this case is fundamentally a matter of
the degree and scope of the power to assert one’s liberty interests.
According to the Shafi‘i jurist Abu al-Hasan al-Mawardi (d 1058), the husband’s
unilateral power to divorce is based on a Qur’anic verse which reads: ‘O Prophet,
when you divorce women, divorce them at their prescribed periods.’29 One might
ask why this verse should be read as giving men a substantive unilateral right to
divorce their spouses to the exclusion of women, rather than as a mechanism
prescribing the procedure a man should follow when divorcing his wife? Read as
providing a procedural mechanism, the verse arguably grants implicitly the right of
unilateral divorce to both men and women, while requiring men to utilize their
power in a certain procedural manner. However, most jurists held the verse
substantively grants men a unilateral power of a divorce to the exclusion of
women. The challenge for jurists was to provide a rationale for extending the
substantive right of divorce only to men.30 Al-Mawardi, for example, argued that
since the duty to provide support and maintenance (mu’una) falls exclusively on the
husband, he is entitled to certain special rights given this difference.31 Second, and
most troubling, al-Mawardi stated that the power of talaq is denied to a woman
because her whims and desires overpower her (shahwatuha taghlibuha) and hence
she may be hasty to pronounce a divorce at the first sign of marital discord. But
men, he said, dominate their desires more than women, and are less likely to hastily
invoke the talaq power at the first sign of discord.32
Certainly many readers, Muslim and otherwise, will find al-Mawardi’s reasoning
not only patriarchal but frankly offensive. The rationale provided for distributing
the right of talaq to men and not women is hardly persuasive, given a contemporary
liberal democratic context where gender equality is generally an honored and
respected norm.33 Consequently, one might suggest that the patriarchal tone of
the marriage contract, see Susan Spectorsky, ‘Introduction’ in Chapters on Marriage and Divorce
(Austin, Texas: University of Texas Press, 1993).
28 For discussions on this distribution of rights scheme concerning the right of divorce, see Susan
Spectorsky, ‘Introduction’, 27–39, 50–2; Jawad, The Rights of Women in Islam. For a survey of how
modern Muslim states deal with divorce right schemes, see Abdullahi A An-Na’im (ed), Islamic Family
Law in a Changing World: A Global Resource Book (London: Zed Books, 2002).
29 Qur’an 65:1.
30 Mawardi, al-Hawi al-Kabir, 10:111.
33 See, for instance Art 15 of the Canadian Charter of Rights and Freedoms, providing: ‘Every
individual is equal before and under the law and has the right to the equal protection and equal benefit
of the law without discrimination and, in particular, without discrimination based on race, national or
ethnic origin, colour, religion, sex, age or mental or physical disability.’
al-Mawardi’s reading was elemental to a particular context that gave meaningful-

ness to this rule, but which no longer prevails. To do so need not necessitate
countering the Qur’anic verse. Rather the Qur’anic verse noted above is arguably
broad and ambiguous enough to tolerate multiple readings. However, as discussed
below, the challenge of reforming Islamic law today is not as simple as arguing that
a particular reading of the Qur’an is unpersuasive. Rather, one must account for
how source-texts such as the Qur’an and hadith were used to justify certain
positions. Indeed, the example from al-Mawardi illustrates the interplay between
source-text, the jurist as interpreter, and the development of legal doctrines meant
to distribute rights and duties across different members and sectors of society.
2. Islamic law and institutions

Thus far, the narrative of Islamic legal history has focused on textual traditions,
legal doctrines, and the role of the jurist as a legal interpreter. An additional aspect
to the narrative of Islamic legal history is institutional. The institutions of adjudi-
cation and enforcement were the means by which legal doctrines were applied to
actual cases in controversy. Whether deciding rules of pleading, sentencing, or
litigation; or exercising jurisdiction over a range of controversies, the way jurists
determined and at times constructed rules, individual rights, and entitlements was
significantly influenced by assumptions of institutions of adjudication and enforce-
ment.34 The law was not simply created in an academic vacuum devoid of real
world implications. Rather the presumed existence of institutions of litigation and
procedure contributed in part to the determination and meaningfulness of the fiqh.
Three examples of legal institutions in Islamic legal history are those associated
with the offices of the qadi, mufti, and muhtasib. The qadi was a judicial officer
appointed by the ruling authority with the power to make and enforce judgments
of law. Historians situate the beginnings of the judicial office (qadi) in the late
Umayyad (r 41–132/661–750 CE) or early ‘Abbasid periods (r 132–656/750–
1258) of Islamic history. The qadi started out as an appointee by the executive (eg
caliph, sultan, etc) tasked with responsibilities that included tax collecting and
government administration. Only over time did the scope of the office focus on
judicial decision-making. As judge, the qadi’s rulings were backed by the coercive
force of the ruling regime.35 In contrast to the qadi was the mufti. While the qadi
was a government appointee with the power to enforce his judgments, the mufti
operated outside the circles of officialdom. Often considered the most knowledge-
able jurist in a region, the mufti would provide non-binding determinations for
questions of law posed to him. A questioner, the mustafti, would approach the mufti
with a particular legal question. The mufti would provide an answer in the form of a
fatwa. The questioner, who might also be a petitioner in a case before a qadi, might
submit the fatwa to the qadi as evidence of the proper legal outcome of a given
34 For examples of how jurists created rules of pleading, litigation and sentencing in light of
presumptions of an efficacious institutional framework, see Emon, ‘Huquq Allah and Huquq al-‘Ibad.’
35 Hallaq, The Origins and Evolution of Islamic Law, 57–101.
dispute. Consequently, while the qadi and mufti were distinct offices with different
competences and authority, they nonetheless interacted with one another in certain
cases.36 The third institution is the muhtasib, often called the ‘market inspector’.
The muhtasib as an office seems to have appeared in the 9th century. It was tasked
with, specifically, managing and overseeing the marketplace, and more generally
with ensuring social order in accordance with general religious precepts. The
distinction between the muhtasib and qadi lay less in their jurisdiction over certain
issues than in the methods by which they approached their work. The qadi ‘judged
matters concerning which there had been a complaint and held an inquiry to
discover the truth . . . the muhtasib, on the other hand, concerned himself only with
obvious and incontestable facts: he did not hold an inquiry, but intervened of his
own accord, without waiting for a complaint’.37
While there is much that can be further written about the received narrative of
Islamic law, it is important at this point to recognize that Islamic law was,
historically speaking, more than just a collection of rules in the abstract. Rather,
the institutional features of Islamic legal history constituted part of the backdrop
that informed the jurists as they developed legal doctrines. For instance, the
medieval Shafi‘i jurist Abu al-Ma‘ala al-Juwayni (d 1098) related a hypothetical
about a Hanafi husband and a Shafi‘i wife. Suppose the husband declares to his wife
in a fit of anger that he divorces her. According to al-Juwayni, the Hanafis held that
such a pronouncement is invalid and ineffective, whereas the Shafi‘is considered it
to be valid. Are the husband and wife still married? According to the husband they
are married, but according to the wife they are divorced. Which view should
prevail? Certainly the two parties can insist on their respective views and claim to
be justified in doing so. But to resolve the dispute, the parties must resort to a legal
process, namely adjudication. They will submit their case to a qadi whose decision,
based on his own analysis, will be binding on both parties. The qadi’s decision is
authoritative not because it accords with one specific legal rule or another; rather it
is authoritative because of the imperium tied to his institutional position within a
Shari‘a rule of law system.38
Section A has thus far provided an overview of various features of the received
narrative of Islamic law. It is received in the sense that scholars have contributed
extensive time, research, and effort to paint a historical picture of this long-standing
36 See for example, David S Powers, Law, Society and Culture in the Maghrib 1300–1500
(Cambridge: Cambridge University Press, 2002).

37 Claude Cahen, R Mantran, A K S Lambton, and A S Bazmee Anar, ‘Hisba’, Encyclopaedia of
Islam, Second Edition.

38 Abu al-Ma‘ali al-Juwayni, Kitab al-Ijtihad min Kitab al-Talkhis (Damascus: Dar al-Qalam,
1987), 36–8. For a discussion of al-Juwayni’s hypothetical, see Abou El Fadl, Speaking in God’s
Name, 149–50. Elsewhere Abou El Fadl argues that in the hypothetical above, if the judge decides in
favor of the husband, the wife should still resist as a form of conscientious objection. Abou El Fadl, The
Authoritative and Authoritarian in Islamic Discourses: A Contemporary Case Study (3rd edn, Alexandria,
Virginia: al-Saadawi Publications, 2002), 60 n 11. However this position seems to ignore the fact that
Shari‘a as a rule of law system is more than abstract doctrine of fundamental values that governs
behavior. Rather, as suggested in this study, Shari‘a as a rule of law system implies the existence of
institutions to which members of a society may grant authority either through certain social commit-
ments or even through the very act of seeking the court to adjudicate disputes.
tradition. It is a picture that reflects themes associated with substantive and

procedural law, legal doctrines, and legal institutions. This overview, therefore,
rests upon a vast amount of scholarly effort since the late 19th century, only some
of which could be cited in the footnotes herein due to space limitations. But this
only takes us part of the way into the story. For various reasons, the image of
Islamic law today is far removed from the image of that tradition as described
throughout Section A. As Section B will illustrate, after the 18th century, the
doctrinal corpus and institutional structure that gave real-world significance to
Islamic law began to be lost or changed. This more recent story of Islamic law is
crucially important if we are to appreciate the thrust of this anthology regarding
Islamic law and human rights. The modern context of Islamic law is conditioned by
the existence of the international state system, which defines the principal arena
within which human rights doctrines and institutions operate. To appreciate the
impact of the state on Islamic law is, in part, to better understand what is at stake
when juxtaposing Islamic law and human rights.
B. Shari‘a, the modern state, and the international system

The historical picture of Islamic law, as addressed in Section A, no longer prevails in
the modern world. By the 18th century if not earlier, the institutional structures
that gave real-world significance to Islamic law began to be dismantled or modified
in the Muslim world For instance, pursuant to the Capitulation agreements with
the Ottoman Sultan, non-Muslim Europeans were exempted from the jurisdiction
of Ottoman courts. In Egypt, the use of the Mixed Court to hear cases involving
non-Muslim parties and interests further eroded the extent to which Shari‘a was
applied. When Egypt adopted the Napoleonic Code in the late 19th century and
created national courts to adjudicate it, Shari‘a courts and the law they applied
began to lose relevance and institutional efficacy in resolving legal disputes. The
image of Islamic law today suffers from a discontinuity with its past—a discontinu-
ity brought on by the era of colonial rule and the relatively recent rise of the modern
Muslim state in an international system of sovereign states. Consequently, when
discussing Islamic law today, there are two features that stand out most promin-
ently. The first is the emphasis on source-texts and fiqh treatises as definitive of
what Islamic law is and what it requires. The second is the plurality of legal
authorities that operate upon the state, such that Islamic law is only one among
multiple legal traditions that operate within and upon a state whose legitimacy
often consists of a delicate, and often politically fraught, balance of different and
authoritative traditions.
In the era of European colonialism over the Muslim world, Islamic law posed a
challenge for colonial administrators. On the one hand, it offered a local, indigen-
ous tradition of law and order that could not be forcefully removed without
engendering massive protest and opposition to colonial control. On the other
hand, the more Islamic law remained part of the socio-legal and political fabric,
the greater the danger that it could be utilized as part of an opposition movement
against a colonial regime. In the colonial period, Islam had ‘played an important
role in mobilization against European colonial rule in nearly all Muslim countries’,
and administrators reasoned that to support the prevailing Islamic legal systems
would undermine the colonial venture.39 Consequently, the colonial period
marked a decrease in the degree to which Islamic law was given jurisdiction, and
thereby authority.
For instance, to protect Europeans living in the Ottoman Empire to conduct and
manage trade relations, Western powers negotiated ‘Capitulation’ agreements with
the Ottoman sultan. These agreements, in part, immunized European foreigners
from the jurisdiction of the Ottoman courts of law.40 Their cases were adjudicated
by consuls representing the different European countries. Commercial disputes
between foreigners and indigenous claimants were heard before special tribunals
adjudicated by both foreign and Ottoman judges, or were heard before ordinary
Ottoman courts generally with the presence of a consular official.41 As local leaders
looked to Europe for financial investment and deeper economic relations, they were
asked to grant foreigners greater immunities from the application of Shari‘a law,
thereby expanding consular jurisdiction in managing the legal affairs of foreigners.
But to grant consular officials jurisdiction to hear such cases contributed a degree of
indeterminacy in legal outcomes. From the chaos of venues that arose from
consular jurisdiction, the Mixed Court, for example, was established in Egypt to
adjudicate cases involving foreign interests, ie where one of the parties was a
foreigner or where a foreign interest was implicated even if both parties before
the court were native Egyptians. Gradually, the Mixed Court acquired greater
jurisdiction.42
In places like Algeria in the 19th century, French colonial officials restructured
the prevailing Shari‘a legal system to create an active commercial market in land
with favorable implications for colonial entrepreneurs. Under the prevailing Islamic
legal system, much of the land was tied up in family waqfs or trusts that were held in
perpetuity under Islamic law. The Islamic waqf structure ensured that property
would remain in a family’s possession without being dismantled into smaller
fragments by the Islamic laws of inheritance. But this Islamic legal arrangement
undermined French interests in buying and cultivating land for industrial purposes,
and ultimately in creating a land market of freely alienable property. To challenge
the continuity of these family waqfs, two tactics were adopted: to marginalize
Islamic law by substituting new legal orders, and to reinterpret and re-assert Islamic
law for the Muslims, who were deemed unable to see the truth of their own
tradition.43 As David Powers explains,
39 Allan Christelow, Muslim Law Courts and the French Colonial State in Algeria (Princeton:
Princeton University Press, 1985), 6–7.

40 Jasper Y Brinton, The Mixed Courts of Egypt (rev edn, New Haven: Yale University Press, 1968), 4.
41 Brinton, The Mixed Courts, 4.
42 For a history of the Mixed Courts of Egypt, see Brinton, The Mixed Courts.
43 David S Powers, ‘Orientalism, Colonialism, and Legal History: The Attack on Muslim Family
Endowments in Algeria and India’ (1989) 31(3) Comparative Studies in Society and History 535–71.
To exploit the colony’s important agricultural and mineral resources, France had settled
increasing numbers of its civilians in the Algerian countryside . . . It was essential that the
government facilitate the colonists’ acquisition of Muslim land and assure them of their
rights . . . To this end, the French endeavored to elaborate a new system of property law that
favored the colonists.44
However, as Powers further indicates, the new legal regimes were not sufficient to
settle the matter of waqf land held in perpetuity. While the colonial government
imposed new legislative schemes, French jurists began expounding on various
features of Islamic law, in particular the family waqf. As Powers notes, French
orientalist scholars redefined ‘Islamic law so that it would be in harmony with
French legal conceptions’.45
Importantly, this pattern of limiting or removing the jurisdiction of Shari‘a (and
thereby its legitimating force) was not perpetuated only by colonial administrators
and officials. It was done by the Muslim elites themselves, working within the
prevailing systems of governance while contending with the increasing plurality of
legal regimes with which they came into contact. In the late 19th century, the
Ottoman Empire initiated a series of legal reforms that involved modeling Euro-
pean legal codes. In offering their own interpretations and codifications of Islamic
law, Muslim elites challenged the occupier’s treatment of Islamic law, but only by
attempting to fit Islamic law into a European mold.46 Notably, while many argue
that this reform approach, the Tanzimat, was an Ottoman response to a Euro-
centrically defined notion of modernity, recent scholarship has shed light on how
the Tanzimat reforms were meant to bolster the Islamic legitimacy of an Ottoman
sultanate contending with domestic challenges to its authority.47
Premodern Islamic law was characterized by a multiplicity of opinions, different
doctrinal schools, and competing theories of interpretive analysis. In the Ottoman
reform period, this complex substantive and theoretical diversity was reduced
through a selective process of codification. For instance, when Muslims began to
codify Islamic law, such as when the Ottomans drafted the Islamic law code The
Majalla,48 they had to decide which rules would dominate. Would they create a
Hanafi, Maliki, Hanbali, or Shafi‘i code for those countries that were mostly Sunni?
What would they do about their Shi‘a population? Often, these reformers would
pick and choose from different doctrinal schools to reach what they felt was the best
44 Powers, ‘Orientalism, Colonialism, and Legal History’, 539–40.

45 Powers, ‘Orientalism, Colonialism, and Legal History’, 543.
46 For a brief study of how subaltern communities might fit their indigenous custom or law within
models or frameworks that put their respective traditions in at least the same form as the imposed law
of the colonialist, see Sally Engle Merry, ‘Law and Colonialism’ (1991) 25(4) Law and Society Review
89–922.
47 Frederick F Anscombe, ‘Islam and the Age of Ottoman Reform’ (2010) 208(1) Past and Present
159–89. The reforms emanating from this period are called, collectively, the Tanzimat. For a history of
the reforms in this period, see Herbert J Liebesny, The Law of the Near & Middle East: Readings, Cases
and Materials (Albany: State University of New York Press, 1975), 46–117.
48 For an English translation of the Majalla, see C R Tyser et al, trans, The Mejelle: Being an English
Translation of Majallah El-Ahkam-I-Adliya and a Complete Code on Islamic Civil Law (Kuala Lumpur:
The Other Press, 2001).
outcome. This process of selection (takhayyur) and harmonization (talfiq) of
conflicting aspects of medieval opinions allowed reformers to present a version of
Islamic law that paralleled the European model of law in form and structure; but in
doing so, they reduced Islamic law to a set of positivist legal assertions divorced
from the historical, institutional, and jurisprudential context that contributed to
the intelligibility of fiqh doctrines in the first place.49
As another example, the Egyptian government in 1883 adopted the Napoleonic
Code as its civil law and created national courts to administer that Code. The result
was three Egyptian court systems: the Mixed Courts, the secular National Courts,
and the Shari‘a courts.50 In 1949 Egypt adopted a civil code borrowed mostly from
the French Civil Code, and which also incorporated minimal elements of Islamic
law. Subsequently, in 1955 the Shari‘a courts were disbanded in the country.51
Importantly, these alterations in the authority and power of Shari‘a to define
both the nature of legal inquiry and the system of governance should not suggest
that Shari‘a does not exist in today’s Muslim majority state. Nor should the Muslim
elites be accused of ignoring the role Shari‘a can play in the design of modern
governance regimes. For instance, when ‘Abd al-Razzaq al-Sanhuri drafted the
Egyptian Civil Code of 1949, he relied heavily on the French Civil Code, but
was mindful of the potential contribution of Islamic law to the Egyptian legal order.
Defining Shari‘a by reference to the premodern rules of law (or fiqh), he held, could
fill in any lacuna in the Code or customary law, so long as no fiqh ruling
contravened a general principle of the Code.52 Furthermore, in the modern legal
curriculum of law schools in the region, such as Jordan for instance, students must
take two or three courses on Islamic law during a full course of legal study.53
Correlatively, while Islamic law is certainly present, it is subsumed within a
contemporary system of diverse statutes with various provenances, is often defined
as a body of premodern rules, and is significantly circumscribed in its application in
modern legal systems. For instance, one field of Islamic law that is most commonly
found in modern Muslim state legal systems is Islamic family law. Both colonial
administrators and Muslim nationalist assemblies preserved Islamic family law in
codified form while modernizing other legal areas such as commercial law. This
reduction in jurisdiction and application arguably placated Islamists who con-
sidered the preservation of traditional Islamic family law to be necessary to maintain
49 On the process of doctrinal selectivity and its effect on the nature of Shari‘a, see Wael Hallaq,
‘Can the Shari‘a Be Restored?’ in Yvonne Yazbeck Haddad and Barbara Freyer Stowasser (eds), Islamic
Law and the Challenge of Modernity (New York: Altamira Press, 2004); Hallaq, A History of
Islamic Legal Theories, 210.
50 For a discussion of the gradual demise of Shari‘a courts in Egypt, see Nathan Brown, The Rule of
Law in the Arab World: Courts in Egypt and the Gulf (Cambridge: Cambridge University Press, 1997).
51 For a historical account detailing the move from Islamic to secular law in Egypt, see Brown, The
Rule of Law in the Arab World, esp 61–92.

52 ‘Abd al-Razzaq al-Sanhuri, al-Wasit fi Sharh al-Qanun al-Madani al-Jadid, ed Ahmad al-Maraghi
(Cairo: Dar al-Nahda al-‘Arabiyya, 2007), 1:44–50.

53 Abu-Odeh tells of her own legal education in Jordan, where she took only three courses on
Islamic law (marriage and divorce, inheritance and wills, and Islamic jurisprudence) over a four-year
legal curriculum. See Lama Abu-Odeh, ‘The Politics of (Mis)recognition: Islamic Law Pedagogy in
American Academia’ (2004) 52 Am J Comp L 789–824, 791.
an Islamic identity in the face of an encroaching modernity.54 This phenomenon is

widespread across the Muslim world, and has a profound effect on the Muslim and
European assumptions of what Shari‘a is and can be. In redefining Shari‘a, reducing
its scope, and incorporating it piecemeal into particular statutes without historical
contextualization, colonial powers and Muslim elites have contributed to a particu-
lar image of Shari‘a as rigid, static, and codified, while situating it as one among
many legal traditions that operate within a modern state.55
In the modern world, law-making and legitimized coercion are often considered
to be rightfully in the hands of a centralized sovereign state government that issues
decrees or legislation defining the law for a region that is delineated by geo-political
boundaries. The state operates within an international state system in which all
states are considered equal sovereigns and entitled to their territorial integrity.56
These states engage each other as actors on a global stage, whether through trade
negotiations, diplomatic relations, or international organizations such as the United
Nations. Those states whose territory was once under the rule of Islamic empires
often incorporate Islamic law in their legal systems. However, as many have shown
already and in great detail, these states only incorporate Islamic law in piecemeal
fashion. Such states often adopt only premodern Islamic family law in modern
personal status codes, while borrowing or modifying legislative schemes from
European and North American states on matters of obligations, procedure, com-
mercial law, finance, and so on.57 Modern lawyers in Muslim states that apply
Islamic law do not often study Islamic law in the fashion once taught in premodern
madrasas (Islamic law colleges) centuries ago, but instead take a few courses on the
topic, while focusing on a ‘secularized’ legal curriculum for the most part.58 In fact,
54 Locating an authentic past on the bodies of women within the family has been used to construct
modern national identities in post-colonial societies where the past provides an authentic basis for the
national identity of new states immersed in a modern world. Traditional family law regimes may be
used to bring the values of the past into the present national consciousness to provide a sense of identity
in opposition to the norms perceived to emanate from the colonizing world. For an excellent analysis of
women, family, and nationalism, see Anne McClintock, ‘Family Feuds: Gender, Nationalism and the
Family’ (1993) 44 Feminist Review 61–80. One exception to this colonial inspired narrative about the
narrowing of Shari‘a is the case of Saudi Arabia. Colonial powers did not seem to exert much control
over Saudi Arabia, and consequently the colonial narrative does not universally apply across the
Muslim world. However, I would suggest that the narrative about the reduction of Shari‘a is not
dependent on colonization as its only topos. Rather the colonial topos is only part of the narrative,
which fundamentally involves a relationship between power, law, and the formation of political/
nationalist identities. For instance, colonists used a reductive but determinate notion of Islamic law to
bolster their legitimacy and ensure administrative efficiency, while also marginalizing the tradition
when necessary to attain colonial goals. Likewise, the Saud family’s use of Wahhabism as an ideological
narrative that trumped tribal loyalties in the Najd, has also allowed the Saudi state to utilize a reductive,
often literalist approach to Islamic law to bolster its own political legitimacy and authority.
55 For a discussion of the impact the reified and static version of Islamic law had on Muslims under
colonial occupation, see the excellent study by Scott Alan Kugle, ‘Framed, Blamed and Renamed: The
Recasting of Islamic Jurisprudence in Colonial South Asia’ (2001) 35(2) Modern Asian Studies
257–313.
56 See for instance, the UN Charter, Art 2, Sec 1, which provides: ‘The Organization is based on the
principle of the sovereign equality of all its Members’.

57 Abu-Odeh, ‘The Politics of (Mis)recognition’, 789, 791.
58 Abu-Odeh, ‘The Politics of (Mis)recognition’, 791.
Lama Abu-Odeh has vociferously argued that to understand Islamic law in the
modern day, one need not concern oneself with the premodern period at all.
Islamic law today is immersed within a complex, bureaucratic state system, in
which Islamic law is a partial source, if even that, for legal systems that are primarily
based on European models of civil law and governance.59 But that does not mean
Shari‘a plays no role in governing society. If Shari‘a implies an active engagement
with ordering society, we cannot easily divorce it from the modern context. Indeed,
for that reason, studies such as this one remain vital opportunities of critical
engagement and reflection on the complexity that attends to any study that
operates at the intersection of law, politics, and the demands of lived experience.
C. Shari‘a as ‘rule of law’
Sections A and B provided an overview and introduction to Islamic law across a

historical period that has witnessed considerable change. Whereas the premodern
Islamic mode of governance was, at least in aspirational terms, imperial in nature,
the prevailing unit of governance today is the state. While some might claim that
the state is not nearly as significant today as it once was, there is little to deny its
ongoing relevance and significance as a feature on the world stage in matters of
economics, security, and most significantly for our purposes, the law. Indeed, the
relationship between the law and the state is an important feature that is often used
to distinguish the modern context of Islamic law from the premodern one. Indeed,
as suggested by the hypothetical from al-Juwayni about a divorcing husband and
wife, the intelligibility of his legal conclusion is in part based upon his presumption
about the prevailing political order that permits him to posit the existence of qadis
who can resolve disputes.
This section introduces the concept of ‘Shari’a as rule of law’ by building upon
the observations about the relationship between the political order and the legal
order. In doing so, it does not add or subtract from the received narrative outlined
in Sections A and B. Nor does it aim anachronistically to impose a modern concept
on a historical tradition. To imagine Shari‘a as a rule of law system is in no way
meant to suggest that it existed in actual fact throughout the regions inhabited by
Muslims. This introduction uses ‘rule of law’ to frame the study of Shari‘a to
highlight how various factors of Islamic legal history—from educational institu-
tions to adjudicatory ones—contributed to a set of background assumptions for
jurists who debated and justified various rules of Islamic legal doctrine, many of
which are the topics of essays in this book.
Admittedly, definitions of rule of law abound.60 The term has assumed a
panacea-like (if not trendy) quality in recent decades, being offered as the principal
59 Abu-Odeh, ‘The Politics of (Mis)recognition’.

60 Brian Z Tamanaha, On the Rule of Law: History, Politics, Theory (Cambridge: Cambridge
University Press, 2004), 3 (quoting International Commission of Jurists, The Rule of Law in a Free
Society (Geneva, 1959), p VII).
solution to the development of effective, efficient, and just government in transi-

tional states.61 That might be reason enough to be skeptical of its usage. To define
rule of law is not the task of this essay. Rather, this essay recognizes that a significant
characteristic of rule of law is its rhetorical power at the site of contestations about
justice. Writing about the rhetorical feature of rule of law, John Ohnesorge writes:
‘Rule of Law rhetoric is more typically invoked when a commentator wishes to
criticize a particular legal rule or judicial decision.’62 Adopting this rhetorical
approach, ‘rule of law’ is used herein to emphasize the various features of Shari‘a
as constituting a site of ongoing contestations about what justice requires. Viewing
Shari‘a through the lens of rule of law makes possible an inquiry into Shari‘a as a
conceptual site in which debates between competing and compelling interests are
resolved using a disciplined mode of inquiry that is nonetheless framed by the given
political context in which individuals, officials, and institutions of government
make demands on each other. This final section will weave together various features
of the received narrative of Islamic law to illustrate why ‘rule of law’ offers a useful
approach for imagining how to ‘clear ground’ when inquiring into what Shari‘a is or
might be. To illuminate why and how ‘rule of law’ offers a useful organizing
concept for understanding Shari‘a, the remainder of this essay will examine three
examples. The first concerns juristic debates on the relationship of Shari‘a to good
governance. The second addresses the debates among jurists about whether to
accept judicial appointments made by the governing authorities. The third and
final example relates to the professionalization of legal education and its role in
constituting the legitimacy of the political order.
1. Governing, core values, and law

The first point to draw from ‘Shari’a as rule of law’ is that doctrinal debates are
embedded within a presumed enterprise of governance, thus placing the two in a
mutually constitutive relationship. This relationship between the two was not lost
on premodern jurists, who recognized that governing well requires a framework for
evaluating various outcomes. That evaluative framework is constituted by the core
values that unify a polity and contribute to the vision of its enterprise of govern-
ance. Importantly, the language of those core values is mediated through the
language of law, and juridified in the name of Shari‘a.
For instance, the 10th century jurist al-Mawardi (d 450/1058) wrote that
experience dictates that no kingdom can exist without having at its foundation a
faith or ideological tradition (diyana min al-diyanat). The legal system depends
upon an acceptance of one’s obligation or sense of duty. According to al-Mawardi,
every faith tradition espouses the virtue of knowing God, thus inculcating a sense of
duty in the individual to adhere to God’s will. By extension, this duty can be
directed toward the ruling authority. He remarked that the underlying tradition is
61See for example, Fareed Zakaria, ‘The Rise of Illiberal Democracy’ (1997) 76 Foreign Affairs 22–43.
62John K M Ohnesorge, ‘The Rule of Law’ (2007) 3 Annual Review of Law and Social Science
99–114, 102.
the foundation upon which all conditions and rules of governance are built. In fact,
if any kingdom were to stray from its foundational value system, internal schisms
and contestations would arise, and thereby adversely affect the legitimacy and
continuity of the sovereign.63 He reminded his reader that rules and regulations
in a legal system arise out of a set of foundational commitments that legitimate
governance in the first place.
Interestingly, for al-Mawardi the relevant tradition that makes governance
possible need not be Islam, although he did not hesitate to assert that the Islamic
tradition offers the best path to obedience to God and thereby to good govern-
ance.64 Nonetheless, espousing the virtues of the Islamic tradition is not central to
the larger, more pragmatic concerns among Muslim jurists for good and right
governance. In fact, the later jurist Abu Hamid al-Ghazali (d 505/1111) held that
whether a polity is governed Islamically or not, its longevity depends on the quality
of justice that it upholds. Referring to a prophetic tradition, al-Ghazali wrote:
‘Dominion [will] continue even if there is disbelief (kufr) but will not continue
where there is oppression (zulm).’65 Al-Ghazali’s advice to rulers was meant to
ensure that they are just; the importance of applying Shari‘a was either assumed by
al-Ghazali or was deemed separate from the question of good governance.66
By linking core values to substantive doctrines, al-Mawardi and al-Ghazali
recognized the inevitable relationship between rule of law and governance. Good,
effective, and lasting governance requires a shared language of justice. That language
may or may not be Islamic. The language will differ as we shift our attention to
different systems of political ordering. Indeed, the underlying system of governance
delineates and delimits the claim space of a rule of law tradition. As the governance
system shifts, so too do the boundaries that define the space from which claims of
justice are made.
The link between rule of law and governance is evident in the different ways by
which Muslim jurists granted rulers discretionary power while also limiting the
legitimate scope of their activity. For instance, as much as Muslim jurists may have
attempted to articulate legal doctrines on as many issues as possible, they nonethe-
less recognized that inevitably, the political leader would need to make new rules to
govern unanticipated situations. Although such discretionary rules may not be
based on the epistemic methods sanctioned in the curriculum of legal study (to
63 Mawardi, Nasihat al-Muluk, ed Fu’ad ‘Abd al-Mun‘im Ahmad (Alexandria: Mu’assasat Shabab
al-Jami‘a, 1988), 85.

64 Mawardi, Nasihat, 88–9.
65 Ghazali, al-Tibr al-Masbuk fi Nasihat al-Muluk, ed Muhammad Damaj (Beirut: Mu’assasat ‘Izz
al-Din, 1996), 148.

66 Q 11:117 states that despite God’s destruction of peoples in the past, those who are righteous will
remain untouched: ‘for never would your Lord destroy a town for being oppressive, while its people act
righteously’. In his commentary on this verse, al-Qurtubi remarks that despite a people’s disbelief in
God (shirk, kufr), the people will not suffer God’s wrath. Instead, he says, ‘Sin brings one closer to the
punishment of extermination in the world than disbelief [in God]’. But he is also careful to remind us
that the punishment for disbelief is greater in the afterlife anyway. In other words, both injustice and
disbelief in God will lead to punishment. But the latter alone is not a reason for ridding the world of
them. Al-Qurtubi, al-Jami‘ li’l-Ahkam al-Qur’an (Beirut: Dar al-Kutub al-‘Ilmiyya, 1993), 9:75–6.
be addressed below), such rules nonetheless are recognized as authoritative. Muslim

jurists, although unable to determine the rules for such unanticipated situations,
nonetheless used the law to delineate the arena of such discretionary legislative
activity. Specifically, they developed the legal doctrines of ta‘zir and siyasa al-
shar‘iyya.
Siyasa shar‘iyya can be understood as ‘Governance in accordance with the shari‘a’,
and requires the ‘harmonisation between the law and procedures of Islamic juris-
prudence (fikh) and the practical demands of governance (siyasa)’.67 Ibn Taymiyya
(d 1328) has often been associated with this jurisprudential topic; his interest was to
theorize how governance can and should abide by the dictates of Shari‘a, and not
deviate from their demands. In this sense, his work reflected an interest in making
rulers subservient to the law. Yet he also recognized that at times, there are zones of
activity where Shari‘a doctrines are silent. In such areas, the ruler must have
discretionary authority to punish offenders, as long as he does so within the legally
defined bounds of that discretionary authority.68
Ta‘zir is a term of art meaning ‘discretionary punishment’; this vests authority
with the ruler or his agents (such as judges) to punish offenders when their acts are
not otherwise provided for by source-texts.69 It is a type of discretionary punish-
ment that jurists granted to the ruling authorities; not even Ibn Taymiyya could
deny such authority given the finitude of source-texts and the infinite possibilities
of human activity that will nonetheless be subject to governance and regulation.
This is not to suggest that the discretionary authority was absolute. While granting
the ruling authority limited discretionary authority, jurists still sought to limit how
this authority could be utilized.70
Siyasa shar‘iyya and ta‘zir are legal terms of art that jurists used to espouse the
legitimating feature of Shari‘a as rule of law and to juridify the zone within which
the political leader could legitimately delineate new rules in light of new situations
without recourse to the substantive doctrines of fiqh. Consequently, jurists knew
their own limitations in delineating the fiqh, and used the law to empower those
entrusted with the enterprise of governance to govern as they saw fit. Shari‘a as rule
of law contributes to the legitimacy of the enterprise of governance, and makes
possible the discretion of the ruler to act he sees fit, given certain limitations as
defined by the law. The jurists may not be able to determine the content of such
discretionary regulations; but they can define the zone within which such regula-
tions can legitimately arise. Defining that zone or boundary is a juridification of the
acceptable scope of political discretion for those managing the enterprise of govern-
ance. But by granting the zone at all, the jurists utilized Shari‘a doctrines to
constitute and enable the very enterprise that they sought to regulate.
67 C E Bosworth, I R Netton, F E Vogel, ‘Siyasa’, Encyclopaedia of Islam, Second Edition.

68 Ibn Taymiyya, al-Siyasa al-Shar‘iyya fi Islah al-Ra‘i wa al-Ra‘iyya (Beirut: Dar al-Kutub
al-‘Ilmiyya, 1988), 101.
69 M Y Izzi Dien, ‘Ta‘zir (a.)’, Encyclopaedia of Islam, Second Edition.
70 For more on ta‘zir as a discretionary authority, see Emon, ‘Huquq Allah and Huquq al-‘Ibad ’,
386–90.
2. Rule of law, qadis, and governance

The received narrative of Islamic legal history regards Shari‘a as a mechanism by
which rulers asserted the legitimacy of the enterprise of governance to their subjects.
Jurists claimed authority to define the Shari‘a, to the exclusion of the ruling regime.
As such, jurists could at one and the same time claim the independence of the Shari‘a
from the politics of governance, and espouse the legitimating function of Shari‘a for
the ruling regime. This claim of legal independence, often referenced in terms of
autonomy or decentralization, is urged by some scholars as a defining feature of the
premodern Islamic legal tradition. For instance, Jonathan Brockopp states:
It seems that the very methods of collecting hadith from many individual sources promoted
view of legal authority which enshrined decentralization. This diffusion of authority among
a broad base of individual jurists [fuqha’] made the work of the Umayyad and ‘Abbasid
caliphs difficult, as they tried to establish a codified form of the law. Their attempts at
political control, through appointments and inquisitions, ultimately failed and only served
to demonstrate the power of the legal community in resisting centralization of authority.71
The received narrative generally holds that Islamic law and legal doctrines were
developed outside the ambit of government, in a decentralized fashion. Those
adopting the decentralization thesis should not be understood as insulating the
jurist from his context, political or otherwise. Jurists may have debated the law in
light of an ideal or normative vision of a governing regime, but that did not mean
they were unmindful of the impact that institutions of governance could and did
have on the intelligibility of their legal doctrines and disputes. Islamic legal
historians such as Kristen Stilt have shown that jurists were fully aware of the
imperatives of governance, and that government officials could have an effect on
the application or experience of the law.72 Abou El Fadl’s study on rebellion shows
that jurists participated in a corporate culture that was not immune from socio-
political demands and realities.73 In other words, when jurists developed their legal
doctrines, they were mindful of the existence, organization, and demands of
political society. By introducing Shari‘a as ‘rule of law’, though, the aim of this
essay is to emphasize that the jurists’ mindfulness of the background factors of the
71 Jonathan E Brockopp, ‘The Essential Shari‘ah: Teaching Islamic Law in the Religious Studies
Classroom’ in Brannon M Wheeler (ed), Teaching Islam (New York: Oxford University Press, 2003),
77–93, 81. See also, David Waines, An Introduction to Islam (2nd edn, Cambridge: Cambridge
University Press, 2003), 100, who writes that jurists saw themselves as the ‘expositors of the prophetic
message and the will of Allah to which even the Caliph lke very ordinary believer, was ultimately
subject’. Furthermore, he writes, while the caliph may provide various regulations in his capacity as
ruler, such regulations are separate and distinct from Shari‘a ‘pure and simple’. Likewise, Abou El Fadl
distinguishes between Shari‘a as the law articulated by jurists, and the administrative practices of the
state. He writes: ‘By the fourth/tenth century, Muslim jurists had established themselves as the only
legitimate authority empowered to expound the law of God’. Abou El Fadl, Islam and the Challenge of
Democracy (Princeton: Princeton University Press, 2004), 14.
72 Kristen Stilt, Islamic Law in Action: Authority, Discretion, and Everyday Experiences in Mamluk
Egypt (Oxford: Oxford University Press, 2012).

73 Khaled Abou El Fadl, Rebellion & Violence in Islamic Law (Cambridge: Cambridge University
Press, 2001).
enterprise of governance deemed them more than mere historical fact (whether
inconvenient or not). Rather, the ‘rule of law’ frame holds that the jurists’ mindful-
ness actually contributed to and helped constitute (and thereby limit) the bound-
aries of the claim space that was Shari‘a.
One example will help illustrate this last point. The example concerns the issue of
whether or not jurists should accept appointments to government offices, such as the
position of judge (qadi), discussed above. As judge, the qadi’s rulings were backed by the
coercive force of the ruling regime.74 Because of the qadi’s link to the ruling authority,
though, some jurists were wary of, if not absolutely opposed to, assuming such an
office.75 For them, the very independence and legitimacy of the law was at stake. They
feared that an unprincipled executive could use his power of appointment to ensure that
judges would resolve cases and articulate Shari‘a doctrines in a manner favorable to the
ruler. Indeed, they feared for the independence and integrity of the Shari‘a as a claim
space within which arguments of justice could be made against the ruling authority.
Consequently, stories abound about premodern jurists avoiding any and all entangle-
ments with the government.76 Yet we also find a jurist such as the famous Shafi‘i
al-Mawardi (d 450/1058), a highly respected scholar, who assumed the office of qadi.77
The inconsistency in historical practice parallels an inconsistency in traditions that
counsel both options—to avoid or occupy judicial office. For instance, the Prophet is
reported to have said ‘No man judges except that God most high appoints for him two
angels to direct, guide, and ensure his success. If he is unjust, [the angels] abandon him
and ascend to heaven.’78 Judging is not an easy matter, and it should not be taken
lightly. But those who judge justly do so with the benefit of angels, thereby receiving a
divine blessing that cannot be ignored or undervalued. The blessings that come with
performing the judicial function are emphasized by the companion of the Prophet,
Ibn Mas‘ud, who said: ‘Sitting to judge [a dispute] between people pursuant to the
demands of truth is more pleasing to me than engaging in worship for seventy years.’79
In other traditions, though, the Prophet warns against the harm that could arise by
assuming the office of qadi: ‘He who is made a judge shall be slaughtered without a
knife.’80 Such a tradition does not bode well for those who might occupy judicial
office.81 Yet Ibn Abi al-Damm, a premodern jurist writing on the office of the qadi,
recognized that traditions antagonistic to holding office could be interpreted to mean
74 Hallaq, The Origins and Evolution of Islamic Law, 57–101.

75 Benjamin Jokisch, Islamic Imperial Law: Harun al-Rashid’s Codification Project (Walter de
Gruyter, 2007), 285.
76 See for instance, the biography of Sufyan al-Thawri, who refused to serve as judge in Kufa. Ibn
‘Imad, Shadharat al-Dhahb fi Akhbar man Dhahab (Beirut: Dar al-Kutub al-‘Ilmiyya, nd), 1:250.
Likewise, Malik b Anas refused attempts by rulers to render his Muwatta’ as a uniform law for the
Islamic territories. Jalal al-Din al-Suyuti, Ikhtilaf al-Madhahib, ed ‘Abd al-Qayyum Muhammad Shafi‘
al-Bastawi (Cairo: Dar al-I‘tisam, 1404 AH), 22–3; Abou El Fadl, Speaking in God’s Name, 10.
77 C Brockelmann, ‘al- Mawardi Abu ‘l-Hasan ‘Ali b. Muhammad b. Habib’, Encyclopaedia of
Islam, Second Edition.

78 Ibn Abi al-Damm, Kitab Adab al-Qada’, ed Muhammad al-Qadir ‘Ata (Beirut: Dar al-Kutub
al-‘Ilmiyya, 1987), 23.

79 Ibn Abi al-Damm, Kitab Adab al-Qada’, 23.
81 Indeed, this was one way to read this tradition. Jokisch, Islamic Imperial Law, 285 n 23.
different things. In fact, he said that ‘slaughter’, as used in the above tradition, should
be understood metaphorically to mean that the judge must put aside his own desires,
and ‘slaughter’ his own perspective to ensure that he judges justly.82
In an effort to account for the conflicting traditions, Ibn Abi al-Damm offered a
particular insight into the contentious issue of assuming judicial office.
The hadiths supporting [holding office] are based on the benefit (al-salih) of adjudication,
[one’s] ability to bear its burden, and uphold the obligation [to adjudicate]. The [hadiths]
against [holding office] are based on [one’s] inability to do so. Based on that, ‘ulama’ will
enter [the profession] or not. After [the Prophet’s death] . . . the first four caliphs continued
[to adjudicate] . . . and adjudicated among the people in truth. Their entry into [the office] is
principal evidence for the magnitude of its inescapability and the abundance of its reward.
Those after [the four caliphs] followed their [practice], and thereafter the Muslim imams of
the [next generations] upheld [the practice too].
Those who dislike entering [the profession] include imams of great merit, competence,
and righteousness. [Their view] is based on an exaggerated [concern] for preserving their
souls and for the ways to reach a state of blamelessness. Indeed the command to [adjudicate]
is a significant matter, and perhaps they considered themselves weak or slack. Or [maybe]
they feared a diminution in night time worship or study if they were to occupy themselves
with [adjudication].83
To view Shari‘a through the conceptual lens of ‘rule of law’ cautions against over-
estimating the hard distinction often made in Islamic legal history between the
jurists and the ruling authorities. While jurists certainly were scholar-authors of
legal treatises and legal exponents of the law,84 their authority to articulate the law,
in contrast to the ruling elite, should not lead to the presumption that their legal
doctrines did not also anticipate the existence of government administration.
Consequently, the intelligibility of their legal discourses cannot be fully appreciated
without also accounting for the background factors associated with the enterprise of
governance, whether real or imagined. Certainly informal dispute resolution mech-
anisms existed in early Islamic history, as well as various jurists who offered non-
binding legal responses to those who presented questions (eg muftis).85 But those
jurists existed alongside the institutional, and at times coercive, power of an
enterprise of governance that both relied upon and helped constitute Shari‘a as a
claim space from which claims of justice could be made.
For example, recall the hypothetical noted above by the Shafi‘i jurist Abu al-Ma‘ali
al-Juwayni (d 1085) about a Hanafi husband and a Shafi‘i wife, both of whom were
legal scholars or mujtahids. The husband declared to his wife in a fit of anger that he

83 Ibn Abi al-Damm, Kitab Adab al-Qada’, 23–4.
84 For more on the jurist as scholar-author, see Wael Hallaq, Authority, Continuity and Change in
Islamic Law (Cambridge: Cambridge University Press, 2005).

85 The mufti or jurisconsult would issue responsa to those who made inquiries about the law. The
mufti’s response, or fatwa, was deemed non-binding, in contrast to the decision of a qadi, who exercised
the coercive force of the government. For studies on the mufti, and the relationship between the qadi,
see Powers, Law, Society and Culture in the Maghreb. See also Muhammad Khalid Masud, Brinkley
Messick and David Powers (eds), Islamic Legal Interpretation: Muftis and Their Fatwas (Harvard
divorces her. The question that arose for al-Juwayni was whether the spouses were
divorced as a matter of law, since the Hanafis did not recognize a divorce pronounced
in a fit of anger, whereas the Shafi‘is did.86 Al-Juwayni’s resolution implicitly revealed
how the background factor of the enterprise of governance informed his analysis of this
particular hypothetical. The significance of this assumption can be determined by
asking counter-factually how al-Juwayni would have resolved the issue were there no
assumptions about an enterprise of governance at all. In such a case, he arguably would
not have referred to the qadi at all, since the qadi would not have been a factor to
incorporate into his analysis. He would have had to decide the conflict between the
parties on other grounds, without having recourse to this particular institutional
approach. What those alternative grounds might have been are hard to speculate on
al-Juwayni’s behalf. Nonetheless, the counterfactual illustrates how presumptions
about the enterprise of governance not only contributed to, but also made certain
legal outcomes intelligible.
Importantly, this is not to suggest that a ‘rule of law’ approach would collapse
Shari‘a into the realm of politics, or that Shari‘a bears no autonomy whatsoever.
Rather it is a reminder that any neat bifurcation between the jurists and the ruling
elite becomes blurred. The arena of their work necessarily over-lapped. Not only
did jurists assume offices of government, but they also took into account the reality
of those governmental offices as they developed their jurisprudence and legal
doctrines. It would be far too simplistic, if not naïve, to think that Shari‘a and
politics ever were or could be separable.
3. Curriculum and educational institutions (madrasa)

This section further elaborates on the boundaries of the claim space connoted by
Shari‘a if viewed in terms of ‘rule of law’ by focusing on curriculum and the institu-
tionalization of education (ie the madrasa). These two factors contributed to defining
what counted as a species of legal argument under a Shari‘a as rule of law system. They
give content to the rule of law concept by providing a disciplinary character to Shari‘a
discourses, thereby preventing Shari‘a discourses from collapsing into mere politics.
The educational institutions and curricula provided both form and content that
defined and delimited the claim space that we are calling ‘Shari‘a as rule of law’.
Indeed, educational curricula provided the touchstone that designated a given argu-
ment as legal, and thereby appropriate within the claim space of Shari‘a as rule of law.
a. Islamic legal curriculum

Those who are considered to represent the Shari‘a authoritatively have historically
been called the ‘ulama’ or jurists.87 The tradition the jurists represented was made
86 Juwayni, Kitab al-Ijtihad, 36–8. For a discussion of al-Juwayni’s hypothetical, see Abou El Fadl,
Speaking in God’s Name, 149–50.

87 For studies on the ‘ulama’, see Cl Gilliot, R C Repp, K A Nizami, M B Hooker, Chang-Kuan
Lin, J O Hunwick, ‘‘Ulama’’, Encyclopaedia of Islam, Second Edition; Muhammad Qasim Zaman, The
Ulama in Contemporary Islam: Custodians of Change (Princeton: Princeton University Press, 2007).
tangible through the curriculum of legal study. The course of study to become a
jurist generally included four years of training in religious law and ‘ten or more
graduate years, leading to a “license to teach”. The graduate students were trained
in the scholastic method’88 and studied various topics in the course of becoming a
jurist, such as the following:
• Qur’an: including interpretive sciences, exegesis, and the various readings of
the text.
• Hadith: including the interpretive tradition, biographies of transmitters.
• Principles of Religion (usul al-din).
• Principles of Law (usul al-fiqh), ie the sources and methodologies of law.
• The legal doctrine of the school of law to which the student belonged.
• The divergent doctrines within one school and across legal schools.89
This curriculum required the student to engage foundational sources of authority,
some of which have a provenance that is understood within the jurisprudence to
originate with God (ie Qur’an). Given the foundational role these and other sources
play in Shari‘a discourses, the curriculum offers a basis by which to inform the
discipline of Shari‘a, thus distinguishing it from the modalities of governance.
The fulfillment and satisfaction of curricular requirements would culminate in
an ijaza or diploma of successful completion of a course of study, thus ‘guarantee
[ing] the transmission of authoritative religious knowledge’.90 An ijaza could be
issued upon completing a single book or mastering an entire subject area. These
diplomas could also authorize the recipient to teach and issue legal responsa (ijaza
al-tadris wa al-ifta’ ). The aim of the student entering the Islamic educational
process was to receive such certification. Hence the ijaza assumed a central place
within the system of education; it was a measure of accomplishment, and thereby
provided a degree of transparency about a jurist’s training and capacity.91
b. The madrasa: institutionalizing legal education

Scholars of the premodern madrasa or Islamic law college have shown that it
proliferated in part due to the efforts of wealthy individuals who created charitable
trusts or awqaf (sing. waqf ) to found educational institutions. The fact that these
madrasas were privately endowed is often used to support the received narrative of
the independence of Islamic law from the ruling enterprise.92 That narrative holds
88 George Makdisi, ‘Baghdad, Bologna, and Scholasticism’ in J W Drijvers and A A MacDonald
(eds), Centres of Learning: Learning and Location in Pre-Modern Europe and the Near East (Leiden: Brill,
2005), 144.
89 Makdisi, Rise of Colleges, 80.
90 Makdisi, Rise of Colleges, 140.
91 Although the scholars write about ijazas extensively, most of their information about the ijaza
comes from biographical dictionaries. See Makdisi, Rise of Colleges, 140–52.

92 Khaled Abou El Fadl, The Great Theft: Wrestling Islam from the Extremists (New York: Harper-
One, 2007), 35; Abou El Fadl, Speaking in God’s Name, 16–17; Coulson, A History of Islamic Law,
149–81. This view of the madrasa supports the decentralization thesis noted above.
that the independence of the madrasa contributed to the development of a scholarly

ethic of disciplinary integrity that might cut against ruling regimes seeking to co-
opt the learned elite to legitimate the regime’s actions. Nonetheless, the efforts by
the Seljuq vizier Nizam al-Mulk to endow some of the most wealthy and illustrious
law colleges of his day suggest that we should use some caution when advocating
the narrative of legal independence in the premodern period.
George Makdisi suggests that the madrasa was the end-result of an institutional
development process that aimed to organize and administer the transfer of
knowledge. The first institution in which knowledge was transmitted was the
mosque (masjid ). Principally considered a religious place of worship, the mosque
became the center of learning in early Islamic history. Even after the birth of
the madrasa in the 11th and 12th centuries,93 the ‘mosque preserved its primacy
as the ideal institution of learning, and law, its primacy as the ideal religious
science’.94 While there were different types of mosques with varying terminology,
there is significant agreement that early in Islamic history, most education took
place in mosques where scholars would sit in teaching circles (halqas) with their
students.95
As students began to visit mosques for educational purposes in increasing
numbers, the need for residential facilities arose, thus contributing to the develop-
ment of the second institution: the masjid-khan, or mosque-residence. The khan or
college was a residential complex associated with a mosque. ‘Since the masdjid could
not serve as a lodging place for teaching staff and students . . . khans were founded
next to the masdjids to serve as lodging for students from out-of-town’.96 The next
institutional development was the madrasa. It combined the facilities for teaching,
thus far characteristic of the masjid, with the residential complex introduced by the
masjid-khans. The madrasa, therefore, was where students could both reside and
study in a facility that catered to their specific needs.
Founders of madrasas often used trust law (waqf ) to formalize their financial
commitment and thereby arrange for the administration of institutional and
curricular activities. The desire to create a charitable trust in the form of a madrasa
as opposed to a mosque may have had much to do with the tax implications
associated with such trust arrangements. To avoid paying taxes on accumulated
wealth, a donor could create a charitable trust. Because the endowment consumed
the capital, the donor was not subject to taxation. But by endowing a madrasa, for
instance, the donor could nonetheless arrange to receive personal income from the
93 J Pedersen and G Makdisi, ‘Madrasa’ in Encyclopedia of Islam, Second Edition, 1125–8.

94 Makdisi, Rise of Colleges, 12. Many other authors stress that the subject matter taught in the
masjids was the law, and that it is this early concern for the law which eventually gave the madrasa its
character as a college of law. See, Jonathan Berkey, Transmission of Knowledge in Medieval Cairo:
A Social History of Islamic Education (Princeton: Princeton University Press, 1992), 47; Pedersen and
Makdisi, ‘Madrasa’, 1124. Notably, there is some disagreement on this point. See A L Tibawi, ‘Origin
and Character of Al-Madrasah’ (1962) 25(2) Bulletin of the School of Oriental and African Studies
225–38. More on the curriculum will be discussed below.
95 See for example, Berkey, Transmission of Knowledge, 7; Pedersen and Makdisi, ‘Madrasa’, 1123;
Makdisi, Rise of Colleges, 10–23.

96 Pedersen and Makdisi, ‘Madrasa’, 1124.
endowment by appointing himself as a salaried administrator.97 Additionally, he
could also appoint his heirs as future administrators of the trust. Effectively, the
donor generated an income-producing investment for himself and his heirs in
perpetuity while at the same time creating a tax shelter. On the other hand, if a
donor endowed a masjid, he lost all rights to the property, including the power to
appoint himself and his heirs to administrative posts.98 The grantor could not
thereby create for himself and his heirs an income stream for future support and
maintenance, as that would impinge on the freedom of the trust. Trust doctrine,
therefore, provided an incentive for some to endow madrasas, and thus contribute
to the development of private endowments for institutions of legal learning.99
As much as the madrasa was subject to private trust law, and the curriculum
provided formalized, if not idealized, prerequisites of instruction and certification,
the system of Islamic legal education was not immune from the efforts of govern-
ment officials to tap into the authority that a legal education offered to those who
would become the arbiters of the moral and legal order. Indeed, government
officials also endowed madrasas. Some historians have suggested that these actions
by government officials evinced an interest in harnessing the authority associated
with the study of Shari‘a to bolster the legitimacy of the enterprise of govern-
ance.100 The political implications of endowing madrasas are often addressed with
respect to the endowments of Nizam al-Mulk (d 1092), the vizier to the Seljuq
Sultans Alp Arslan (r 1063–1073) and Malik Shah (r 1072–1092). Some suggest
that Nizam al-Mulk founded the first madrasa in the Islamic world, the Nizamiyya
madrasa in Baghdad in 1067. Other historians, though, suggest that madrasas
existed much earlier.101 Regardless, an important inference drawn from Nizam
al-Mulk’s Nizamiyya colleges (located in Baghdad, Nishapur, Balkh, Mosul, Herat,
and Marv) is that those in political power could leverage their wealth to gain control
over the religious elite by endowing the most illustrious colleges and endowing the
most impressive professorships. Makdisi states that Nizam al-Mulk ‘founded his
network of madrasas to implement his political policies throughout the vast lands of
the empire under his sway’.102
In fact, Tibawi argues that Nizam al-Mulk could not have founded his Niza-
miyyas as a private individual given the likelihood that he did not have the wealth to
do so. Instead, he argues that Nizam al-Mulk built the madrasas in his capacity as a
government official, thus situating the madrasa and curriculum of study as a feature
97 Makdisi indicates, though, that under the Maliki school, such a possibility does not exist. The
Malikis do not permit a donor to appoint himself or herself as the administrator of a waqf-based
institution he or she endowed. Makdisi, Rise of Colleges, 238.
99 Writing in 1980, Ulrich Haarmann noted that no comprehensive study of the beginnings of
waqf was available. Ulrich Haarmann, ‘Mamluk Endowment Deeds as a Source for the History of
Education in Late Medieval Egypt’ (1980) 28 Al-Abhath 31–47, 31.
100 Waines, An Introduction to Islam, 85.
102 George Makdisi, ‘Muslim Institutions of Learning in Eleventh-century Baghdad’ (1961) 24
BSOAS, reprinted in George Makdisi, Religion, Law and Learning in Classical Islam (Great Britain:
Variorum, 1991), 1–56, 51.
of the mutually constitutive relationship between Shari‘a and the governing

regime.103 However, Makdisi counters that at least in premodern Baghdad, with
its large number of madrasas, a single madrasa like the Nizamiyya could not exercise
the kind of power that might be required to implement government-sponsored
policies. In Baghdad, there were a variety of madrasas with different law school
affiliations. Each had their own teachers and institutions for appointing faculty.
While Makdisi would agree that the jurists constituted a significant political force,
he shows that any attempts to control the ‘ulama’, or jurists, via the Nizamiyya were
doomed to failure because of the diversity of schools, with their attendant diversity
of opinions, in the vicinity.104
Importantly, Jonathan Berkey suggests that the institutional setting of the
madrasa was less significant to the education of a jurist than the informal relation-
ship that a student had with his teacher. Berkey argues that the informality of
teacher-student relationships, rather than the formality of madrasa institutions,
characterized the premodern Islamic educational system, thereby making the
political contest over the madrasa less significant. ‘[T]he institutions themselves
played no actual role in Islamic education . . . Islamic education remained funda-
mentally informal, flexible, and tied to persons rather than institutions.’105 Berkey
bases his argument, though, on negative evidence. He argues that many deeds of
trust for madrasas do not mention salaries to teachers or stipends for students, thus
suggesting the madrasa itself was more form than content-determinative. Further-
more, he notes that biographical dictionaries generally do not mention the specific
schools where scholars taught or studied. Berkey recognizes that none of this
evidence suggests that teaching did not occur in such institutions. Rather, he argues
that premodern contemporaries ‘considered the venue of instruction and education
to be of secondary importance: what was critical was the character and knowledge
of the individuals with whom one had studied’.106
Between Tibawi, Makdisi, and Berkey, we find competing views about the
significance of the madrasa, as both a site of legal education and a site of political
contest. Often this difference plays into arguments about the autonomy and
separation of legal learning from government manipulation or centralization. The
more one emphasizes the personal relationship between the teacher and student,
the more one implicitly supports the thesis of separation in early Islam between the
jurists and the ruling elite. The more the institutional context of the teacher-
student relationship matters, then the more the relationship may be embedded in
a larger contest over the autonomy of Shari‘a from the ruling regime.
This historical debate has the potential to fuel contemporary debates about the
nature of Shari‘a, and whether modern state efforts to codify Islamic law and
nationalize Islamic legal academies are legitimate or authentic. This study remains
agnostic on the different positions noted above about the site of legal education in
the premodern period. Furthermore, even if Berkey is correct in asserting the
priority of the teacher–student relationship, nothing denigrates the institutional
103 Tibawi, ‘al-Madrasah’, 232. 104 Makdisi, ‘Muslim Institutions’.

105 Berkey, Transmission of Knowledge, 17–18. 106 Berkey, Transmission of Knowledge, 18.
role of the madrasa in organizing and ensuring a system of licensing.107 There is no
prerequisite that one adopt either the thesis of informality or the thesis of insti-
tutional formality to accept that the jurists represented a tradition that conferred
upon them an authority about which government officials were wary, or alterna-
tively covetous.108 The madrasa as endowed (whether by private individuals or
government officials) the scholar as a licensed authority, and the curriculum as a
disciplinary feature, helped to constitute the boundaries of legality for Shari‘a as a
claim space. The fact that the madrasa became a site of contest between the juristic
class and government officials only reminds us of how a rule of law frame of analysis
allows us to appreciate the sometimes uneasy, but nonetheless mutually consti-
tutive, relationship between Shari‘a and the governing regime.
D. Conclusion
This introduction to Islamic law is meant to do more than offer an overview of

Islamic legal history. In conjunction with the introduction to international human
rights law by Kathleen Cavanaugh and the other chapters in Part I of this book, the
aim of this essay is to aid the reader to understand and embrace the analytic
paradigm that the authors of this volume utilize, namely the paradigm of ‘clearing
ground’ that was referred to in the editors’ introduction to this volume. Before we
can clear ground, we must first have an initial understanding of where and what
that ‘ground’ is and what is erected on top of it. To that end, Sections A and
B offered an overview of Islamic law: its history, sources, and development.
Section B brought the story of Islamic law into the 19th, 20th, and 21st centuries,
which witnessed colonialism, anti-colonial resistance, and finally the independence
of Muslim-majority states, many of which apply some aspects of Islamic law while
drawing extensively on European legal paradigms for many, if not most, areas of law
and regulation.
This is not to suggest that Islam and Islamic law are unimportant in these
countries. Rather, the modern story of Islamic law in Muslim states, when viewed
through the lens of rule of law, is a story of extensive legal pluralism, where multiple
legal traditions constitute and define the claim space that confers legality to
arguments of justice. From the historical overview provided in Sections A and
B a certain irony arises. Premodern Islamic law was characterized by a certain kind
of legal pluralism—a pluralism within Islamic law. Modern reforms, in the effort to
give a semblance of order to that premodern diversity, have led to a different kind of
legal pluralism: the pluralism of legal traditions (Islamic, European, international)
107 See also Richard Bulliet, Patricians of Nishapur. A Study in Medieval Islamic Social History
(Cambridge: Harvard University Press, 1972), 50.

108 The definition of the ‘ulama’ and whether there is a strict correlation between scholars and legal
education in the madrasa is a separate debate that is beyond the scope of this study. For scholarly
accounts on this issue, see Bulliet, Patricians of Nishapur; Roy Mottahedeh, Loyalty and Leadership in
an Early Islamic Society (Princeton: Princeton University Press, 1980).
in a modern administrative state that exists alongside other equal and sovereign
states in an international system of global governance.
Notably, this shift from one pluralism to another, combined with the piecemeal
implementation of Shari‘a doctrines in the modern state, have led some commen-
tators to espouse a tragic narrative of Islamic law. That tragic narrative is character-
ized as a story of the subordination, marginalization, and even death of Islamic
law.109 Yet those who adopt the tragic narrative also adopt a view of the ‘good’ and
‘authentic’ Shari‘a as the premodern tradition taught in the premodern madrasa,
pursuant to a curriculum that contributed to a disciplined mode of inquiry, and
independent from the systems and structures of governance.
As suggested in Section C, though, the contribution of rule of law as an
interpretive lens reveals that the view of premodern Shari‘a as decentralized,
independent, and outside the sphere of governance is arguably more ideal than
real. To view Shari‘a from the perspective of rule of law is to recognize that it was
and continues to be positioned at the intersection of both legal discipline and
governance. That positioning has not changed, even in today’s context of the
modern state. What has changed is the extent to which Shari‘a confers legitimating
conditions of legality in the modern state, given the state’s immersion in an
international system beset by a plurality of legal regimes, all of which in the
aggregate constitute the claim space of justice for a modern state. This is not
meant to deny the violence done to the status and systemic coherence of Shari‘a
in the colonial period. Instead, it illustrates that despite the alteration in the kind
and degree of Shari‘a’s role in governance, it continues to play (along with other
legal traditions) a legitimizing role in a highly complex system of governance.
To focus on the legitimating function of Shari‘a discourses is to take important
steps toward the goals of this volume, namely to ‘clear ground’. Such steps will
reposition and reorient the questions we may ask of Shari‘a as a historical tradition
that remains very much part of contemporary debate across the world. Today both
state and non-state actors invoke Islamic legal arguments to serve their own
respective ends. In some cases, those ends concern political legitimacy. Shari‘a
offers a language of legitimacy that moves across the religious, legal, and political
domains. Shari‘a offers different groups a discipline and language by which to claim
authority, to attack the legitimacy of others who claim authority, and even to
fashion community identity in opposition to a threat, whether real or perceived.
109 Khaled Abou El Fadl, ‘My Friend’ in Conference of the Books: The Search for Beauty in Islam
(Lanham: University Press of America, 2001), 159–62. See also Wael Hallaq, ‘Can the Shari’a Be
Restored?’, 22.
3
Commentary to ‘Shari‘a and the Modern
State’ and ‘Narrating Law’
Hans Corell
The essays by Anver M Emon (Chapter 2) and Kathleen Cavanaugh (Chapter 1)

provide an excellent, not to say fascinating, introduction to the present volume. To
someone who, like myself, is not so familiar with Islamic law these essays constitute
a most helpful summary of topics with which all lawyers in modern society, and
others too for that matter, ought to acquaint themselves.
First, a point of clarification: the comments that follow should be read in light of
the fact that my background is in the continental legal system. It may very well be
that someone with a common law background would focus on other elements. An
interesting question in this context is to what extent there are similarities from a
legal technical point of view between the common law—in which case-law plays a
very important role and where there are often references to judge-made law—and
the role of fiqh (see below) in Islamic law.
More importantly, because of my experiences in the field of public international
law in later years, it is obvious that I read the essays through that prism.
In Chapter 2, Anver Emon starts out by stating that the challenge is less about
learning about Islamic law in a disciplinary vacuum, but instead to explore what it
can and does mean. On several occasions he emphasises that the prevailing unit of
governance today (the modern nation state as opposed to the premodern period of
imperial rule) exists in a legally pluralist context that requires fundamental consid-
eration about questions of authority and legitimacy in both law and politics. He
also indicates that the juxtaposition of the elements discussed is designed to shift
the debate from the contents of the law to the dynamics of legal ordering.
This is a very important point of departure, in particular since the essay reveals
that Islamic law and its different elements are more complex than someone from a
different legal tradition might realise.
A key clarification is that it is highly misleading to suggest that Islamic law is
constituted by the Qur’an and traditions of the Prophet without further recourse to
techniques of juristic analysis that allowed the law to remain socially responsive
without at the same time undermining the legal tradition’s authority.
Another interesting theme running through the essay is that the basic function of
the hadith (a saying, act, or tacit approval attributed to the Prophet) was not so much
Commentary to ‘Shari‘a and the Modern State’ and ‘Narrating Law’ 83
history-writing but history-making; contemporary phenomena were projected back

in the form of hadith in order to mould the community on a certain spiritual,
political, and social pattern. It is said that both the Qur’an and hadith occupy an
undeniable position of authority within Islamic law. It is obvious, however, that they
alone do not and cannot, given their finitude, define for all times and for all situations
the relevant Islamic legal ruling.
I am sure that this is a highly contested issue. While many would adopt this
position, more traditionally minded Muslims would reject it and state that the
methods of hadith analysis allow for a determination of what the Prophet said and
what was a later addition.
A striking element in the presentation is the focus on the interpretive role of
jurists. Their legal rulings, called fiqh, represent the doctrine of Islamic law
developed over centuries. A very important point made in the essay and which
was also confirmed to me by others at the Salzburg seminar is that if one wants to
determine a rule of Islamic law, one will often start with a fiqh treatise of one or
another school of Islamic law, rather than with the Qur’an or hadith.
In my opinion, the elements referred to here are extremely important if one
views Islamic law in an international law context. Also, someone who believes that
governance should by definition be secular must accept that religion plays an
important role in the administration of many societies in the world. The question
is how best to develop a system of governance that protects those governed and
guarantees them the fundamental human rights that are now widely recognised by
the international community.
Anver Emon’s essay brings to mind the Roman saying ‘ubi societas ibi jus’ (where
there is a society there is law). It is obvious that, in many societies, in the beginning
this law was to a large extent based on religion. But as societies developed and new
phenomena required further rule-making, the secular elements gradually became
predominant. This is not to say that religion does not also play an important role in
the legislative work in modern societies. Furthermore, there are common features in
different religions, and those may be reflected in international law as it has
developed through custom and treaty law.
The law will continue developing; this process is a constant companion to
humankind. And it is certainly not confined to the national level only. On the
contrary, in the future we will see an ever-increasing interconnection between
national and international law.1 The question is how this development will evolve
and to what extent there is preparedness at the national level to reach out and find
common ground—also across religious and cultural borders.
To a stalwart supporter of the idea that the progressive development of inter-
national law2 should be encouraged, it is interesting to note that the essay contains
1 See H Corell, ‘The Increased Interconnection between International and National Law and the
Need to Coordinate the Legislative Process in the Future’ in S Muller, S Zouridis, L Kistemaker, and
M Frishman (eds), The Law of the Future and the Future of Law (Torkel Opsahl Academic EPublisher),
freely accessible as e-publication (ISBN 978-82-93081-27-2), available at <http://www.fichl.org/
fileadmin/fichl/documents/FICHL_11_Web.pdf>.
2 Cf Art 13 of the Charter of the United Nations.
many elements that suggest that there would be a greater preparedness within the
Islamic community to participate in this process than is sometimes believed. It is
my firm conviction that, basically, the aspirations of human beings are very similar
all around the world. However, it is clear that the development will take longer in
certain regions than in others.
An interesting element in this context is the observation in the essay that the
image of Islamic law today suffers from a discontinuity with its past. It is said that
this discontinuity is brought on by the era of colonial rule and the relatively recent
rise of the modern Muslim state in an international system of sovereign states.
Against this background, Anver Emon highlights two features that stand out
most prominently and which must be kept in mind when discussing Islamic law
today: (1) the emphasis on source-texts and fiqh treatises as definitive of what
Islamic law is and requires; and (2) the plurality of legal authorities that operate
upon the state, such that Islamic law is only one among multiple legal traditions
that operate within and upon a state whose legitimacy often consists of a delicate,
and often politically fraught, balance of all relevant traditions.
I believe that these elements must be kept in mind if we are to ‘clear the ground’
for a constructive debate. Equally notable is the observation that modern lawyers in
Muslim states that apply Islamic law do not often study Islamic law in the fashion
once taught in the Islamic law colleges in the past, but instead take a few courses on
the topic, while focusing on a ‘secularized’ legal curriculum for the most part.
In discussing the modern story of Islamic law, Anver Emon concludes that
modern reforms have led to a pluralism of legal traditions (Islamic, European,
international) in a modern administrative state that exists alongside other equal and
sovereign states in an international system of global governance. In my view this
ought to bode well for a dynamic development in the future. However, for this kind
of pluralism to come true, it needs to be affirmatively accounted for within an
Islamic context, including its different components, such as commitment to law,
theology, spiritual mysticism, etc.
In Chapter 1, Kathleen Cavanaugh begins by pointing to two sets of comple-
mentary legal frameworks: international human rights law and international hu-
manitarian law. Taking the post 9/11 landscape and the ‘war on terror’ as a point of
departure, she points to the sad development in which the narration of inter-
national law has in a sense ended up in a state of exception.
In my view, this represents one of the most tragic experiences in the legal field in
later years. This is all the more sad since the main responsibility for this develop-
ment has to be laid at the feet of certain Western democracies.
By way of example the defence policy announced by the US administration in
September 2002, expressing the intention to employ pre-emptive self-defence, flies
in the face of the UN Charter:
The United States has long maintained the option of preemptive actions to counter a
sufficient threat to our national security. The greater the threat, the greater is the risk of
inaction—and the more compelling the case for taking anticipatory action to defend
ourselves, even if uncertainty remains as to the time and place of the enemy’s attack. To
forestall or prevent such hostile acts by our adversaries, the United States will, if necessary,
act preemptively.3
The ‘war on terror’ is a dangerous misnomer that constitutes a disservice not only to
the country where the term was invented but also to the world at large. Traces of
this misnomer have spread in wide circles, and even crept into the manner in which
resolutions by the UN Security Council are formulated and applied.4
Basically, terrorism is a crime that should be addressed through law enforcement.
Reference could in this context be made to the following quotation from the Madrid
Agenda, adopted on 11 March 2005 by the Club of Madrid (an organisation of former
heads of state and government in democratic states) to remember and honour the
victims of the terrorist attacks in that city the year before on the same day:
Democratic principles and values are essential tools in the fight against terrorism. Any
successful strategy for dealing with terrorism requires terrorists to be isolated. Consequently,
the preference must be to treat terrorism as criminal acts to be handled through existing
systems of law enforcement and with full respect for human rights and the rule of law.5
It is therefore an extremely serious fact that, as Kathleen Cavanaugh puts it, the
current and pressing needs of international security against ‘terrorist’ threats defy
norms codified decades ago. The confusion created by moving the fight against
terrorism from the area of law enforcement to an armed conflict conception has
caused great damage to the norms carefully negotiated—as should always be
remembered—against the backdrop of two world wars fought among ‘civilized’
nations. This disorder simply must be remedied.6
Addressing narrating law through the ‘other’, Kathleen Cavanaugh maintains
that the discussion opens up several interesting analytical points of departure and
suggests a narration of modern international law (the colonial present) that cannot
be separated from the historical, cultural, economic, and political backdrop of the
European colonial project.
Addressing narrating human rights in treaties, Kathleen Cavanaugh points to
one of the most crucial issues in this field, namely the importance of challenging the
perception that the development of these rights and principles was somehow
exclusive to the ‘West’. In fact, Muslim states (and indeed other Asian states)
participated fully in the drafting of the Universal Declaration of Human Rights.
To this could be added that, when the votes were cast in the General Assembly on
3 Available at <http://www.georgewbush-whitehouse.archives.gov/nsc/nss/2002/nss5.html>.
4 See H Corell, ‘Reflections on the Security Council and Its Mandate to Maintain International
Peace and Security’ in O Engdahl and P Wrange (eds), Law at War—The Law as it Was and the Law as
it Should Be (Koninklijke Brill BV, 2008), 68–72, available at <http://www.havc.se/res/SelectedMa-
terial/20080901corellonunsecuritycouncil.pdf>.
5 Available at <http://www.summit.clubmadrid.org/agenda/the-madrid-agenda.html>.
6 See A M Salinas de Friás, K L H Samuel, and N D White (eds), Counter-Terrorism: International
Law and Practice (Oxford: OUP, 2012). See also H Corell, ‘Was the Killing of Osama bin Laden
Legal?’ in (2011) 5 Advokaten (June 2011), available at <http://www.havc.se/res/SelectedMaterial/
20110623osamabinladen.pdf>.
10 December 1948, all Islamic states participating voted in favour of the resolution,
except for Saudi Arabia which abstained.7
Focusing on 24 states in the Middle East and Africa, and the non-Arab states of
Iran and Afghanistan, Kathleen Cavanaugh provides an interesting overview of the
status of ratification or accession to a number of core human rights treaties. Noting
that nearly all these treaties allow for states to make reservations, declarations, or
provide interpretations, she concludes that states in the Middle East have engaged
these facilities to a significant extent. Of particular importance are the ones that
apply Islamic formulas to limit rights, either through a declaratory statement or
specifically attached to a particular core right.
Whether the reservations and declarations make the treaty commitment condi-
tional subject to domestic law or to Shari‘a standards, they constitute a sad feature
in the field of human rights treaties. During my tenure in the United Nations,
I received on behalf of the Secretary-General numerous communications of this
nature. The depositary has only one option. He has no other choice but to register
such documents.
It should be noted, however, that such reservations or declarations almost
invariably provoke objections from other states parties to the treaty in question.
Such objections could be along the following lines:
In the view of the Government of—, a statement by which a State Party purports to limit its
responsibilities by invoking general principles of internal law may create doubts about the
commitment of the reserving State to the objective and purpose of the Convention and,
moreover, contribute to undermining the basis of international treaty law. Under well-
established treaty law, a State is not permitted to invoke internal law as justification for its
failure to perform its treaty obligations. For these reasons, the Government of—objects to
the said reservations made by the Government of—.
It is obvious that at the international level it is the international human rights
narrative that must serve as a point of departure. The problem lies in finding
a common ground between two traditions with different histories, and which
are built upon different presumptions about the individual in society. In my
opinion, the reservations against the provisions of the Convention on the
Elimination of All Forms of Discrimination against Women (CEDAW) repre-
sent a particular problem in view of the fact that empowerment of women is
one of the most important elements in our efforts to create good governance for
the future.
Kathleen Cavanaugh also discusses the Charter-based system for the protection
of human rights and related procedures and regional systems. On a positive note,
attention should be drawn to the fact that, since 1998, 20 out of 24 Middle Eastern
states have accepted requests for visits from thematic rapporteurs. At the same time
7 Numerous publications exist on the Universal Declaration of Human Rights. In this context
reference could be made to Gudmundur Alfredsson and Asbjrn Eide (eds), The Universal Declaration
of Human Rights—A Common Standard of Achievement (The Hague: Martinus Nijhoff Publishers,
1999).
it is obvious from the presentation that there are serious tensions at the interface of
Shari‘a, at least as it is codified, and international human rights law.8
What the two contributions demonstrate is that the reasoning that interfaces
with the doctrines of international law and Islamic law ‘has left the rules of each lost
in the rhetoric of the actors that control that discourse’.9 This very much coincides
with my own reflections, based in particular on my experiences during my ten years
as the UN Legal Counsel.
As indicated, this volume is dedicated to exploring conflicts that arise when
human rights law and Islamic law differ. Let me in this brief commentary broaden
the perspective to see whether the question could not be discussed also in terms of
tradition in a religious guise, mainly reflecting the attempts by a few to exercise
control and exert power over the many, as compared to the society that we now see
gradually emerging where increased access to information via the Internet and other
sources provides the right conditions to encourage mass movements for freedom.
The focus of my farewell lecture to the United Nations on 24 February 2004 was
on the prospects for the rule of law among nations.10 One point of departure in the
address was the following:
There is a tendency among some States to criticize others for not respecting international
rules on human rights. Unfortunately, this criticism is often all too well founded. But in
order for a State to criticize others with legitimacy, that State must pay attention to its own
observance of human rights.
In preparing the lecture, I had reflected on St. Matthew 7:3 (see below). Surely,
something similar must be found in other religious or philosophical sources. I had
asked colleagues in the UN Office of Legal Affairs of different creeds to assist me.
Our common effort produced the following quotations that I presented to the
audience:
And why beholdest thou the mote that is in thy brother’s eye, but considerst not the beam that is in
thine own eye?
Holy Bible, Matthew 7:3
Not the faults of others, nor what others have done or left undone, but one’s own deeds, done
and left undone, should one consider.
50th Stanza from the Dhammapada (The Path of Wisdom)
Believers, let not a group of you mock another. Perhaps they are better than you. . . . Let not one
of you find faults in another nor let anyone of you defame another.
Holy Qur’an, Chapter 49:11 (Al-Hujarat)
You see in others what you actually see in yourself.
The Guru Dronacharya in Mahabharata
I went in search of a bad person; I found none as I, seeing myself, found me the worst.
8 See also S Mahmoudi, ‘Islamic Approach to International Law’ (April 2011) in R Wolfrum (ed),
Max Planck Encyclopedia of Public International Law (Oxford: Oxford University Press, 2008–2011)
<http://www.mpepil.com>.
9 See Chapter 1, Section F.
10 ‘Prospects for the Rule of Law Among Nations’, available at <http://www.untreaty.un.org/ola/
legal_counsel3.aspx>.
Kabir, Saint Poet of North India
I wonder whether there is any one in this generation who accepts reproof, for if one says to him:
Remove the mote from between your eyes, he would answer: Remove the beam from between your
eyes!
Talmud: Baraitha: Rashi (1050–1115 ce) quoting Rabbi Tarfon
It is easy to see the faults of others, but not so easy to see one’s own faults.
Gautama Buddha (563–483 bce)
The first half of the night, think of your own faults, the second half, the faults of others when
you are asleep.
Chinese proverb
I submitted that learned theologians and philosophers would probably have views
about this kind of comparison. But to me it was important that the quotations were
contributed by my own staff. I maintained that this comparison proves again the
point that the Secretary-General often makes, namely that there are very similar
thoughts in the religious and philosophical sources that guide people all over the
world. I ended on the following note:
Freedom of religion is a fundamental human right. This freedom entails not only the right
to freely manifest one’s own religion but also the obligation to respect others when they
manifest theirs.
The values upon which international law is based are often similar to the values expressed
in different religious sources. But it is important that we do not mix religion and the secular
here. International law should be acceptable to all people, and this is precisely why the
United Nations as one of its first measures adopted the Universal Declaration of Human
Rights.11
Having read the essays by Anver Emon and Kathleen Cavanaugh, I made a
corresponding examination of another verse in the same chapter of the Bible,
Matthew 7:12, which reads: ‘So whatever you wish that others would do to you, do
also to them, for this is the Law and the Prophets’. The examination produced a
similar result. The Islamic analogue I found was: ‘Do good to others as you would like
good to be done to you’ (hadith; Ali ibn Abi Talib, 4th Caliph in Sunni Islam, and
first Imam in Shia Islam).
I am fully aware that criticism can be directed against exercises of this nature.
Some are even prepared to refer to them as ‘rubbish’.12 This verdict is of course easy
to pronounce from the comfort of an academic institution. However, there is a
serious lesson to be learnt here from all those who suffer from conflict or repression.
For someone who in the course of his duties has had to meet with children in
Sierra Leone who have had their hands and feet cut off and discuss their plight with
the dignified traditional chiefs in that country, the picture is different. The same
impression remains after my visits to the killing fields in Cambodia and the
meetings with the modest non-governmental organisations in that country to listen
11 Adopted by General Assembly resolution 217 A (III) of 10 December 1948.

12 Cf Chapter 1, Section C.
to their grievances. A closer involvement in the Middle East would surely have
added similar reactions.
What I have found as a common denominator among people who have been
subjected to violations of this nature is a deep sorrow over what happened to them,
accompanied by the question of why other human beings could be so cruel. To
these people ‘the Golden rule’, which can be traced in many other sources than the
ones just referred to, carries an important message. It is those whose rights have
been violated who fully understand the meaning of this universal rule of humanity.
We should learn from them.
It is important to bear in mind the reality that religion, be it Islam, Christianity,
Judaism, or other, plays an important role in the lives of millions on the globe and
will continue to do so. Anver Emon also points to Shari‘a as a historical tradition
that remains very much part of contemporary debate across the world.
It is therefore vital to demonstrate that there are common features in the religious
and philosophical sources. It is critical to convince those with an open mind that
there are these common features. The problems that we encounter are mostly
generated by fundamentalists. Those are found in all camps and will always present
a challenge to those who are charged with establishing good governance.
However, this being said, I believe that religion should be kept to the personal
sphere. Governance has to embrace all citizens and residents in a given nation state
and should therefore be secular. In addition, it should be based on international
standards, in particular in the field of human rights, construed in good faith and not
in the state of exception that we have experienced lately.
Looking to the future, this is all the more important since globalisation means
that people will be moving around in the world in a way that we have never
experienced before. And competition over space and scarce resources will increase
in a manner that may entail tremendous risks.
Let me also reiterate my firm conviction that democracy and the rule of law are
preconditions for international peace and security. As I said in my farewell address
to the United Nations, I believe that human beings have one thing in common,
irrespective of the circumstances in which we live: the yearning for freedom. The
events during the Arab Spring are yet another testimony to this.
What is necessary for the future is to establish good governance. Two indispens-
able components for good governance are democracy and the rule of law. In this
context the interaction between religion and culture at the national level on the one
hand and international law, in particular in the field of human rights, on the other
is a very important ingredient. All of this must be explained already at the grassroots
level and in particular to the younger generation. As a matter of fact, this element
should be one of the most prominent topics in school curricula all over the world.
Could there be a more central question for future research?
Anver Emon asserts that many of the authors in this volume recognise that at the
heart of both Islamic law and international law lies the aim and aspiration to
regulate and order, or in a word, to ensure good and right governance. In my view
this is the very point—what it is all about. And it should be at the heart of all
national and international law.
In this discourse it is crucial that we engage in a frank and self-critical debate in
all societies. And the directive must be to speak law to power. That this is necessary
can also be concluded from the acknowledgement by the InterAction Council of
Former Heads of State and Government in their 2008 Communiqué ‘that the
challenges mankind faces must be addressed through multilateral solutions within a
rule-based international system’.13
13 Available at <http://www.interactioncouncil.org/final-communiqu-29>.
4
Islamic and International Law:
Convergence or Conflict?
Mark S Ellis
Too often, popular debate has it that Islamic law is in conflict with international
law, that a hegemonic West seeks to impose foreign legal values on Muslim states,
or that Islamic culture and law is out of sync with the cultural and legal traditions
that inform current international law. Indeed, there is a widely believed but
erroneous assumption that Islamic law is incompatible with modern international
law, particularly in the context of human rights law.1
Amidst a growing cloud of disinformation and half-truths that have proliferated
since 9/11 and the subsequent ‘war on terror’, we are losing an opportunity to
recognize and accept the common substantive principles that tie contemporary
international law with Islamic law. Considering that Islam is the fastest growing
religion in the world, practiced by one-fourth of the world’s population, building a
more settled common ground of law is paramount.
As an international lawyer, I tend to align myself with, and search for, a universal
application of law. As well as believing Universalism to be correct as a matter of
theory, I find that the modern law of nations relies on it in practice and is weakened
without some degree of clarity and enforcement at the international level.2 This is
particularly the case with human rights. The very fact that we speak of international
human rights norms suggests to me that these norms are meaningless if applied
selectively or viewed as relative to cultural norms. On this basis alone, there is a
strong prima facie case for holding Universalism to be part of the ‘internal perspec-
tive’ of international human rights law.3
As I shall discuss below, it is incumbent upon states to uphold certain agreed upon
human rights protections. If protective human rights principles are part of a jus cogens
norm, they cannot be abnegated, subverted, or weakened by any unilateral state
action. They bind all nations; a state’s breach of any one is unlawful. Nor can states
1 Mashood A Baderin, ‘Human Rights and Islamic Law: The Myth of Discord’ (2005) EHRLR 2,
165–85, at 165. See also John Strawson, ‘Islamic Law and the English Press’ in J Strawson (ed), Law
after Ground Zero (London: Grasshopper Press, 2004), 205–14.
2 J Waldron, ‘How to Argue for a Universal Claim’ (1998) 30 Columbia Human Rights L Rev 305.
3 H Hart, The Concept of Law (Oxford: Oxford University Press, 1997), 18–20.
claim exemption on the basis of national, cultural, or religious differences. These
norms must be viewed as transcending specific law traditions, such as common law,
civil law, or Islamic law. While respecting the belief that certain legal systems derive
their authority from a deity, this respect should never move us to compromise the
most important non-derogable rights within the international legal system. Any
regional, municipal, or religious legal order must recognize that we operate as part
of an international community and that certain duties within it are absolute.
The universality of certain human rights norms is relatively new. Historically,
the principal objective of international law has been to protect international peace
and security by regulating the relationship between states.4 Where there are
political differences, international law has been a neutral arbiter and mechanism
for applying order. As noted by Martti Koskenniemi, ‘it is international law’s
formalism that brings political antagonists together as they invoke contrasting
understandings of its rules and institutions’.5
However, international law has diverged sharply from its focus on state sover-
eignty and become significantly more intrusive over the past 60 years; it has entered
the once sacred domain of the state and now requires that authority be exercised in
a way which preserves human dignity and fundamental human rights. International
sensibilities have shifted.
The impetus for this shift was the realization that state sovereignty has changed.6
This legal development has become controversial since the overriding concern for
human rights may contradict principles of international law that were once sacro-
sanct, such as non-intervention, state sovereignty, immunity for heads of state, and
preservation of territorial integrity. The once accepted doctrine that human rights
law was the exclusive domain of the sovereign state is now dated, if not defunct.7
From a substantive perspective, human rights can now be regarded as universal
and inalienable. The Charter of the United Nations, the Universal Declaration of
Human Rights, multilateral treaties, international humanitarian law, and many
other human rights instruments have inextricably linked the protection of human
rights to a broader universal domain. However, while international law may appear
to privilege human rights over state rights, this transformation is not set in stone.
One of the unfortunate consequences of the so-called ‘war on terror’ is that the hard
fought effort to enhance international human rights norms is being weakened. As
articulated by Kathleen Cavanaugh in Chapter 1, Western states (principally the
United States) have sought to displace international laws governing the use of force,
changing definitions of conflict, and excusing systematic breaches of human rights
norms. Other states have shunned international law altogether and demonstrated
a pattern of increasing violations of individual rights.
4 Martti Koskenniemi, ‘What is International Law for?’ in M D Evans (ed), International Law (2nd
edn, Oxford: Oxford University Press, 2006), 57 et seq.

5 Koskenniemi, ‘What is International Law for?’, 77.
6 See Mark S Ellis, ‘Combating Impunity and Enforcing Accountability as a Way to Promote Peace
and Stability—The Role of International War Crimes Tribunals’ (2006) 2(1) J National Security Law
and Policy.
7 Ellis, ‘Combating Impunity’.
Islamic and International Law: Convergence or Conflict? 93
Understanding the historical context of Islamic law is crucial to understanding

the ways in which it intersects with the body of international law. In Chapter 2,
Anver Emon does a masterful job in describing the development of Shari‘a—the
body of law drawn from the Qur’an and from the example (sunna) and sayings
(hadith) of the Prophet Muhammad. These source-texts provide an authoritative
basis for analysis and interpretation of Islamic law. However, even more revealing is
where juristic commentary and analysis has taken the early lessons of these source-
texts into new areas that enable Islam to, in Emon’s words, ‘remain socially
responsive without at the same time undermining the legal tradition’s authority’.
These interpretations (called ‘fiqh’) are undertaken by jurists and have become
the common reference materials in modern Islamic law. These same interpretive
exercises have also led to a diversity of meaning for these source-texts across
the Muslim world. However, it is the very fact that Islamic law has been and can
be interpreted to fit changing socio-political and legal contexts that allows it to find
common ground with modern universalist principles of human rights.
The real problem here is that, according to Emon, Shari‘a has been regarded as ‘a
mechanism by which rulers asserted the legitimacy of the enterprise of governance to
their subjects’. This implies that Shari‘a law may be interpreted as lexically prior to
any other law that may be applied. An analogy familiar to international lawyers is the
relationship between jus cogens and other conflicting norms. It is entirely possible
that if Shari‘a law is interpreted as forming the sole basis for legal authority, coming
as it does from divine sources, then principles of international law that conflict with
it might automatically be void. What must be remembered is that many other legal
systems claim legitimate authority on other bases. International law is one of those
systems. While I am prepared to concede that some rights under international law
may be superseded by a legal system that sees itself as normatively superior to all
others, for those rights that are both universal and absolute there can be no such
concession. I shall discuss these in greater detail later in this commentary.
There is however another interpretive path to be pursued. As persuasively argued
by Anver Emon, Islam is a pluralistic system in which ‘multiple legal traditions
constitute and define the claim space that confers intelligibility to arguments of
justice’, and any analysis should give weight to the range of legal sources available in
the modern Muslim state. This is a path to a broader understanding of Islamic law
within the modern Muslim state. As Emon notes, the impact of European coloni-
alism dramatically reduced the role of Islamic law in Muslim states, with the result
that Islamic laws are only one source of law upon which Muslim states rely to
administer the modern state.
This point is important. It forcefully counters the notion that Muslim states
cannot be compliant with international law if they also rely on Shari‘a, particularly
if that is understood as a pure and static form of law practiced in the premodern
period. According to Emon, it is folly to suggest that law today is comparable to
early Islamic law. When premodern Islamic law is positioned in a modern legal
context, it is out of place and serves only to create fear and anxiety. More
importantly, focusing too closely on the distinctiveness of Shari‘a is a red herring;
while Islamic law remains part of modern Muslim states, it is neither the sole source
of law nor, in most cases, does it provide more than a set of principles that inform
modern legislation.
Few Muslim states apply Islamic law in the same way, with the majority falling
somewhere between the poles of secular Turkey and ‘purist’ Saudi Arabia.8 Despite
the theoretical possibilities created by a pluralist view of Islam, pluralism is not the
same as liberalism. It cannot be denied that many Muslim states have notoriously
poor human rights records, routinely violating international human rights law,
particularly in the areas of women’s rights and criminal law.9 Some of the more
shocking incidents have included the sentencing of Sakineh Mohammadi Ashtiani
to death by stoning in Iran, the arrest of a US businesswoman for sitting with a
male co-worker at a café, and the proliferation of forced marriage in Saudi Arabia,
often in relation to children.10 Positive law based on Islamic doctrine has also
excited controversy, including the adoption of stoning as a punishment for adultery
by Indonesia’s Aceh Province (opponents abstained from voting for fear of being
perceived as bad Muslims) and the adoption of a law legalizing marital rape and
marriage at the age of nine in Afghanistan during 2009.11
Still, there are many who argue that these actions are wrong even as a matter of
Islamic law, which, they claim, morally and legally supports the protection of
human rights among other international law obligations.12 For instance, Niaz
Shah has argued ‘the Koran protects the rights of women fully, if these verses are
interpreted in their proper context and according to the holistic spirit of the
Koran’.13 Thus, it could be argued that the controversy does not stem from Islamic
law per se, since human rights are violated by hard-line Islamic states as well as by
non-Muslim secular states. Such distinctions are, however, often lost on the
international community.
This is evident from a recent ruling of the European Court of Human Rights. In
the case of Refeh Partisi (the Welfare Party) v Turkey, the Court observed, ‘it is
difficult to declare one’s respect for democracy and human rights while at the same
time supporting a regime based on Shari’a’.14
8 J L Esposito, ‘Contemporary Islam: Reformation or Revolution?’ in J L Esposito, The Oxford
History of Islam (Oxford: Oxford University Press, 1999), 643.

9 Nasr Hamid Abu Zayd, Mufhum al-Nass; Dirash fi ‘Ulum al-Qur’an (al-Markaz al-Thaqafi
al’Arabi, 1990); Qudsia Mirza, ‘Islamic Feminism, Possibilities and Limitations’ in J Strawson (ed),
Law after Ground Zero (London: Grasshopper Press, 2004), 116–17.
10 See various reports at <http://www.timesonline.co.uk/tol/news/world/middle_east/art-
icle3321637.ece> (subscription required); <http://www.bbc.co.uk/news/world-middle-east-
11681837>; <http://www.hrw.org/fr/node/86805/section/7> (accessed 28 June 2011).
11 See <http://www.telegraph.co.uk/news/worldnews/asia/afghanistan/5080797/Hamid-Karzai-
signs-law-legalising-rape-in-marriage.html>; <http://news.bbc.co.uk/1/hi/8254631.stm> (accessed
28 June 2011).
12 Baderin, ‘Human Rights and Islamic Law’.
13 Niaz A Shah, ‘Women’s Human Rights in the Koran: An Interpretive Approach’ (2006) 28 Hum
Rts Quart 868–903, at 869; also published as ‘Women’s Human Rights in the Koran: An Interpretive
Approach’ in Mashood A Baderin (ed), International Law and Islamic Law (Hampshire: Ashgate,
2008), 461–99, at 462.
14 ECHR, Refeh Partisi (the Welfare Party) v Turkey (2001) 35 EHRR 3, 72.
In Refeh v Turkey, the European Court of Human Rights was asked to pass
judgment on Turkey’s dissolution of Refeh, a political party that promotes adher-
ence to Islamic law and challenged Turkey’s strict secularism as a violation of the
Art 11 right to freedom of association. The Court found that dissolving the party
was justified on the grounds that it was prescribed by law and necessary in a
democratic society. In making its judgment, the Court considered that Islamic
religious concepts including jihad and Shari‘a were incompatible with Turkey’s
obligations under the European Convention on Human Rights: ‘Sharia, which
principally reflects the dogmas and divine rules laid down by religion, is stable and
invariable. Principles such as pluralism [ . . . ] or the constant evolution of public
freedoms have no place in it’.15
To my mind, this is the type of misunderstanding, ie ignoring the plurality and
diversity of Islam, which unnecessarily widens the gap between international law
and Islamic law. It is unfortunate that international tribunals feel they have to focus
on how Islamic law might theoretically be applied, rather than engage in a more
faithful analysis of its content. Of course, in cases like Refeh, where it is precisely the
potential for harm that is being considered, tribunals will largely have their hands
tied.
This misunderstanding is often based on a too common perception that each
cultural perspective, either from Islamic law or international law, attempts to
eliminate the other’s influence to preserve its own unique distinctiveness. While
the debate is not limited to human rights discourse, it is perhaps easiest to find
critical commentary in the field of human rights. As one critic said: ‘Proponents of
cultural relativism argue that since Western Europe and the USA devised most
human rights provisions enshrined in various UN treaties, and continue to define
their scope, these principles remain culturally biased at the expense of non-Western
cultures’.16 Confrontation becomes an effective way to deny human rights, ‘and
reinforces and strengthens the theory of incompatibility’.17 Quite apart from the
fact that the specific legal framework for human rights is less important than the
moral imperative, as Mashood Baderin argues, such discord is a classic misappli-
cation of human rights theory to Islamic law, as the latter system developed a
comparable set of rights. Baderin traces such rights in Islamic law to as early as the
11th century, and concurs that Islamic jurisprudence allows for the enactment of
positive law to ensure human rights protection.18
Modern Muslim states have also shown genuine enthusiasm for protecting
human rights, as demonstrated by their cooperation at both the regional and
international level, and their adoption of contemporary human rights treaties
such as the Universal Islamic Declaration of Human Rights and the Cairo Declar-
ation on Human Rights in Islam. These have sought to extend human rights into
15 Refeh Partisi (the Welfare Party) v Turkey, 72.

16 The critic is described in Ayla Karmali, ‘Publication Review of Mashood A. Baderin, Inter-
national Human Rights and Islamic Law’ (2005) 19(3) Journal of Immigration, Asylum and Nationality
Law 204–5.
17 Baderin, ‘Human Rights and Islamic Law’, 168.
more areas of life and reference Islam as a relevant factor in determining and
interpreting international law in the Muslim world.
Several scholars and commentators have conducted comparative reviews of the
International Covenants to show that human rights and Islamic law share many
more similarities than differences.19 For instance, Baderin has argued that ‘the
myth that the Shari‘a is an antithesis to civil and political rights has been sustained
for so long mainly due to the generalized and confrontational approach often
adopted in comparisons between Islamic law and international human rights
law’.20 Where there are conflicts, he suggests that they are ‘not insurmountable
where addressed open-mindedly and in a well-informed manner’.21
Significantly, in Chapter 1, Kathleen Cavanaugh has asserted that non-European
states were fully involved in the development of rights at the UN. She examines the
participation of 24 Muslim states in the UN Human Rights machinery to demon-
strate high levels of engagement, support, and debate. Many states have signed
applicable treaties such as the International Covenant on Civil and Political Rights,
the International Covenant on Economic Social and Cultural Rights, the Conven-
tion on the Elimination of Racial Discrimination, the Convention on the Elimin-
ation of All Forms of Discrimination Against Women (CEDAW), the Convention
on the Rights of the Child, and the Convention Against Torture. She also reports
that Muslim states have been observed to take a full and active part in the Universal
Periodic Review process of the UN Human Rights Committee.
However, Cavanaugh rightfully notes that several states have utilized derogations
and reservations to limit the protections of some basic rights.22 For instance, many
Muslim states employ faith-based exceptions/reservations to the instruments’ do-
mestic application, limiting the treaty’s scope to that provided in domestic or
religious law, or reformulating rights to reflect generally accepted Islamic norms.
Where an interpretive reservation is attached to ratification, it requires that inter-
national human rights law norms are to be interpreted through the lens of Shari‘a.
A classic example of this is Iraq’s reservation to Article 16 of the CEDAW, which
includes a caveat that the equal enjoyment of rights by women should be read in
accordance with Shari‘a law, which gives them equal but different rights from men.
However, Cavanaugh observes that many areas of the Shari‘a are underdeveloped
or unclear, and ‘a wide margin is assumed with which rights have been limited
based on state crafted “Islamic” formulations’. Such manoeuvres, she argues,
demonstrate significant flexibility in how universal rights are actually protected.
It is worth remembering that this view accords with Anver Emon’s observation that
Islamic law makes ample room for the practical demands of governance or ‘siyasa’.
This indicates that however the Shari‘a may currently be perceived, there is scope

20 See for instance, Moshood A Baderin, International Human Rights and Islamic Law (New York:
Oxford University Press, 2003), 167.
21 Baderin, International Human Rights and Islamic Law, 167.
22 Cavanaugh notes several fundamental rights may not be derogated, including the right to life,
freedom from torture, freedom from slavery etc.

for it to work well alongside the universal and secular demands of international
human rights.
What is clear is that unenforceable rights are empty rights. This is true for both
proponents of international law and Islamic law. For instance, the modern adop-
tion of regional treaties on Islamic human rights must now force a change in the
way that Muslim states protect human rights: ‘Muslim States [ . . . ] have no valid
excuse under Islamic law for non-enforcement of human rights domestically or in
co-operation with other states to realise regional or universal enforcement of human
rights’.23 And as I stated earlier, it is this word—universal—that captures the
perspective that is built into the very framework of international human rights law.
‘Universalism’ describes the theory that rights are the same everywhere. Such a
theory is typically advanced by Western states, which reject relativistic approaches
to human rights as ‘an unacceptable theory advocated to rationalise human rights
violations’.24 This theoretical position has caused controversy in certain non-
Western cultures, where concepts of ‘justice’ and ‘human rights’ may be under-
stood and applied differently than in Western, Anglo-American societies. Such an
approach often takes on neo-colonial connotations, as commentators argue that the
current regime of human rights is used to strengthen Western cultural dominance.
However, this is a misconception of Universalism.
To the Universalist, moral rights are right or wrong contingent entirely on their
substance, not on where they came from and where they are being applied. For
example, a Universalist would say that female genital mutilation is wrong every-
where, because it is wrong in and of itself.25 There is, however, nothing to prevent a
universal right being applied differently within the context of different cultures, as
long as there is good reason. For example, it is entirely consistent with Universalism
to hold that only those with religious objections are permitted to contravene certain
standards, such as a Sikh worker wearing a turban on a construction site. As
Waldron points out, the claim that trial by jury is morally required only makes
sense where a country has a working system of criminal law.26 The key point here is
that although the right will be contingent upon culture as a matter of application, it
is the particular nature of that right that determines how this should be done. The
right in itself is, therefore, universal.
The ‘cultural relativism’ argument, on the other hand, holds that all moral truths
are not just contingent upon cultural background but generated by that background
as well. The result of this is the claim that universal human rights are meaningless
and, therefore, the imposition of them upon states that disagree is illegitimate. The
mistake in this assertion is that it assumes the universality of a moral proposition
(that it is illegitimate to enforce Universalist human rights) as a result of denying

24 Mashood A Baderin, Modern Muslim States Between Islamic Law and International Human Rights
Law (Nottingham University, 2001), 18–20.
25 This example is all the more apt for having been recently advocated by the head of UNICEF and
UNFPA: <http://www.jurist.org/paperchase/2011/02/un-rights-experts-call-for-end-to-female-geni-
tal-mutilation.php> (accessed 30 June 2011).
26 Waldron, ‘How to Argue for a Universal Claim’, 307.
the existence of universal moral truths. Cultural relativism, therefore, ties itself in
theoretical knots that, as lawyers, we would do well to avoid, especially when
universality is a basic and inbuilt assumption of international law. Cavanaugh
goes a bit further and submits that cultural relativism is not really ‘a legal concept
and was not developed for legal application; rather its roots are in anthropology and
philosophy and it must, therefore, be understood within these disciplinary frame-
works’. While this may very well be true, cultural relativism is, nonetheless, being
used by states in a legal context, albeit mistakenly.
For instance, Saudi Arabia has argued for current human rights legal concepts to
be developed ‘with reference to humanitarian values enshrined in the various
religions, civilizations and cultures of the world’.27 While Saudi Arabia accepts
the universal application of human rights law in principle, it rejects the Western
perspective of such rights. If this proposal is accepted, a thesis with deep theoretical
problems would be implemented into international law. Furthermore, it would be
in direct conflict with the Universalism already present in human rights law,
causing doctrinal disharmony. This should be avoided at all costs.
Whatever one may think about this deeper theoretical issue, to me there is a
more important question that should be asked when considering whether a right is
‘universal’: that of whether it is ‘absolute’. Although I agree in a broad sense with
the Universalism described above, I find it more useful to conceive of ‘universal
rights’ as those absolute rights that cannot be compromised or altered under any
circumstances. Indeed, there is a good deal of rhetorical force lost when we speak of
‘universal rights’ being conditioned by circumstances. We should not forget that,
theoretical debate aside, the language of universal rights holds a good deal of
emotive currency. Allowing theoretical (and especially relativistic) arguments to
compromise this can easily lead to the abuse of rights that should be protected
absolutely, no matter where they are applied. As Kathleen Cavanaugh rightfully
points out, ‘Asian or Islamic culture-bound values and norms provide a useful tool
for governments seeking to deflect attention from a poor domestic human rights
record’. When arguing in favour of ‘universal rights’ we should, therefore, be careful
to distinguish between rights that are universal as a matter of theory (that is to say
whether our general legal theory is Universalist or not) and rights that are universal
by virtue of their absolute nature. I would suggest referring to the latter as ‘Practical
Universalism’. To my mind, this is the real value which international human rights
law brings to the debate. Getting caught up in relativistic theory, even in the service
of cultural respect or authenticity, can lead to travesty, and has done so in many
well-documented cases.
For example, pursuant to Singapore’s Internal Security Act (‘ISA’), which is
typically invoked to curtail political opposition, the government has the right to
arrest and detain individuals without trial.28 This legislation contravenes every
27 See Summary Record of 30th Meeting (56th Session) of the UN Commission on Human
Rights, UN Doc.E/CN.4/2000/SR.30 of 26 April 2000, para 2.

28 Freedom of Expression and the Media in Singapore (Art 19, December 2005), <http://www.
article19.org/pdfs/publications/singapore-baseline-study.pdf>.
major international human rights convention in existence. In addition, civil def-

amation laws in Singapore have long been used as an instrument to prevent
criticism, stifle political opposition, and maintain a climate of political intimida-
tion.29 It remains a tool to unjustifiably limit freedom of expression and undermine
peoples’ capacity to oppose the government.
Yet, Singapore’s leaders claim that legal restrictions are necessary to maintain
cultural harmony and ‘are not just desirable objectives to achieve but are the
fundamental bases for social stability, cohesion, and security’.30 This is a clear
example of a relativist claim masquerading as a universal one. The claim is that
social stability is important, not just in Singapore, but in and of itself. This is the
most frequent way in which the philosophical doctrine of cultural relativism is
hijacked by those wishing to use it as an excuse for draconian measures at odds with
international human rights law. In many ways this is more insidious than the
suggestion that cultural relativism be faithfully applied in international law, as it
uses the philosophy to excuse measures that are in clear violation of established
standards.
In Saudi Arabia, a recently documented case of marriage between an 11-year-old
and a 10-year-old led to the marriage official commenting: ‘Isn’t it better to marry
his daughter to a man with whom she can stay and who can protect her and support
her, and when she reaches the proper age, have sex with her? Who says all men are
ferocious wolves?’31 It is clear that religious values lie at the heart of Saudi tolerance
of this practice.32 However, we should be careful in such a situation not to become
bogged down in arguments over the legitimacy or even the prevalence of a
relativistic approach. Instead we should be asking whether children should have
an absolute right to protection from underage marriage that results in a duty to
enact preventative legislation.
Singapore provides another good example of this phenomenon.33 Proponents of
the ‘Asian values’ perspective argue that cultural values—which in the Asian
context might include cooperation, harmony, and order—supersede individual
rights, protected under selected instruments of international law.34 The Singapore
Government’s White Paper on Shared Values encapsulates Asian values when it
29 Criminal Defamation (Art 19, 2009) <http://www.article19.org/advocacy/defamationmap/over-
view.html>; US Dep’t of State, 2005 Country Report on Human Rights Practices: Singapore (2006),
available at <http://www.state.gov/g/drl/rls/hrrpt/2005/61626.htm>; Singapore: Government Misus-
ing the Law to Muzzle Critics (Amnesty Int’l USA, 14 December 2006), <http://www.amnestyusa.org/
document.php?lang=e&id=engasa360052006>.
30 S Jayakumar, ‘Applying the Rule of Law’ (2009) 43 Int’l Law 1, 84.
31 See Arab News report at <http://www.archive.arabnews.com/?page=1&section=0&article=112494>
(accessed 30 June 2011).

32 See CNN report at <http://www.articles.cnn.com/2009-01-17/world/saudi.child.marriage_1_-
saudi-arabia-deeply-conservative-kingdom-top-saudi-cleric?_s=PM:WORLD> (accessed 30 June

2011).
33 See a general discussion on this point in Mark Ellis, ‘Towards a Common Ground Definition of
the Rule of Law Incorporating Substantive Principles of Justice’ (2001) 72 University of Pittsburgh
L Rev 191.
34 Michael C Davis, ‘Constitutionalism and Political Culture: The Debate over Human Rights and
Asian Values’ (1998) 11 Harv Hum Rts J 109.

states ‘[n]ation over community and society above self ’.35 It is difficult to under-
stand why ‘Asian values’ would be substantively argued for if their proponents did
not believe that they were preferable as a matter of fact, rather than ‘just for us’.
Once more, however, it is of paramount importance to place certain rights, such as
access to courts and fair trial guarantees, at a level above, where they cannot be
balanced against cultural values, or indeed anything else.
Muslim states have also condemned Western human rights practices as based on
alien foreign values, asserting that ‘universalist’ rights are, in fact, ‘culturally relative
to Western states’.36
The compromise might very well be found in the very diversity that defines
Islam. As argued by Baderin, by adopting a ‘margin of appreciation’ approach to
international human rights law, it would encourage a healthy interaction between
Islamic law and international law, by allowing Muslim states to apply a Universalist
approach that remains culturally relevant.37 This can be accomplished because to
be truly universal, international law must rely on multicultural and cross-cultural
sources in order to ensure that the correct line is taken through inclusivity. The
underlying theory of Universalism is the belief in moral rights being valid as a
matter of universal right reason. It would be foolish to assume that Islamic law, with
its long history and detailed jurisprudence, is not an essential part of reaching this
right answer and incorporating it in international law. A dialogue of values, rather
than a plea for relativity, is perhaps the best way to move forward in an increasingly
globalized world.
Indeed, I believe that the practical value of international law generally, and
human rights law specifically, is encapsulated by its universality. It is precisely
because it gives us a framework through which to analyse and criticize the coercive
actions of all states, that it maintains its usefulness. International law has been
developing a presumption of universality for a very long time. The recent emer-
gence of jus cogens norms is one piece of evidence for this, as is the gradual
expansion of international humanitarian, human rights, and criminal law. Almost
every state in the world is party to the Geneva Conventions and, as recent action by
the UN Security Council in relation to Libya and the Sudan has illustrated, the
international community is more than willing to enforce criminal responsibility
before the International Criminal Court (ICC) even when the state in question is
not a party to the Rome Statute.38 The steady incorporation of standards from
these different systems also presents evidence of a harmonization that sits very well
with a Universalist conception of international law as a whole.39
35 Li-ann Thio, ‘An “i” for an “I”? Singapore’s Communitarian Model of Constitutional Adjudi-
cation’ (1997) 27 Hong Kong LJ 152, 154.

36 Baderin, Modern Muslim States, 18–20.
37 Baderin, Modern Muslim States, 335.
38 See the ICC website at <http://www.icc-cpi.int/Menus/ICC/Situations+and+Cases/Situations/
Situation+ICC+0205/>; <http://www.icc-cpi.int/NR/exeres/3EEE2E2A-2618-4D66-8ECB-
C95BECCC300C.htm> (accessed 29 June 2011).
39 Syliva Borelli, ‘Casting Light on a Legal Black Hole: International Law and Detentions Abroad in
the “War on Terror” ’ (2005) 87(857) Int’l Rev of the Red Cross (March); V Gowlland-Debbas, ‘Issues
Arising from the Interplay Between Different Areas of International Law’ (2010) 63(1) Current Legal
It can also be helpful if we distinguish between human rights principles from

which derogation is never appropriate, and principles that might allow compromise
according to local values and customs. While it may be appropriate to defer to
national jurisdictions in cases concerning certain rights, it will never be appropriate
to do so with non-derogable rights such as the right to freedom from torture or the
right to life. The European Court of Human Rights has always held this to be the
case and recently reaffirmed it in the controversial Sufi and Emli v United Kingdom,
where it held that the duty not to deport people to nations where they could be
victims of torture was to be upheld even if the state in question considered those
persons to be dangerous criminals.40
I have argued in the past that substantive rights could thus be broken down into
categories of derogable and non-derogable rights.41 Non-derogable rights are those
rights that are internationally accepted as jus cogens norms or have become absolute
for some other reason.42 The very fact that there is consensus on these norms
solidifies their status in international law. Thus, a jus cogens norm that prohibits the
breach of a certain fundamental human right is strong evidence of that right’s
fundamental importance. Of course, determining which rights attain non-derog-
able status is enormously complex, but there are reliable indicators for determining
the gravity of a right. For instance, in the specific context of multilateral human
rights treaties, derogation is a formal and often legislative process. States can refuse
to enforce a certain right, to the extent that this limitation is strictly necessary in
response to a pressing emergency that threatens the life of a nation.43 However,
even in national emergencies, these treaties delineate certain freedoms which may
not be curtailed; as a result, these specific, listed rights are often labelled ‘non-
derogable’.44 Thus, where a non-derogable right is systematically breached, cur-
tailed, or derogated from, the country has violated the universality of this right.
For instance, the recent arrest of political protesters by the Bahraini government
violates a number of fundamental human rights guaranteed by the ICCPR, which
Bahrain ratified in 2006.45 These include prohibitions against torture, arbitrary
Problems 597; ‘Legal “Black Hole”?: Extraterritorial State Action and International Treaty Law on Civil
and Political Rights’ (2005) 26(3) Michigan J Int’l L 739.
40 (2011) ECHR Applications nos 8319/07 and 11449/07. See also G Letsas, ‘Two Concepts of
the Margin of Appreciation’ (2006) 26(4) Oxford J Legal Studies 705.

41 See Ellis, ‘Towards a Common Ground Definition’.
42 It should also be noted that non-derogable rights can arise as a result of the existence of a treaty.
Following the US’ derogation from Art 6 of the International Covenant on Civil and Political Rights,
to allow for the execution of juveniles, it was argued forcefully that such a derogation was contrary to
the object and purpose of the treaty. Such a derogation could not be permitted under the Vienna
Convention on the Law of Treaties, evidencing that rights can become absolute through means other
than the moral importance of their content or their jus cogens character.
43 See Organization of American States, American Convention on Human Rights, art 27, 22
November 1969, OASTS No 36, 1144 UNTS 123; International Covenant on Civil and Political
Rights, art 5, 16 December 1966, 999 UNTS 171 [hereinafter ICCPR]; The European Convention
for the Protection of Human Rights and Fundamental Freedoms, art 15, 4 November 1950, ETS No 5.
44 See n 43.
45 Bahrain’s Accession to the ICCPR, C.N.764.2006.TREATIES-15 (20 September 2006), <http://
www.treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&lang=en>
accessed 25 June 2012.
deprivation of life, and death sentences for non-serious crimes, even in times of
emergency.46 The Arab Charter on Human Rights provides similar protections.47
And while the ICCPR provides that due process rights and freedom of expres-
sion, assembly and association are derogable during times of emergency,48 Bahrain
may only suspend derogable rights ‘to the extent strictly required by the exigencies
of the situation’.49
There is no doubt that to denote all fundamental human rights as non-derogable
would produce much disagreement. As Lord Bingham puts it, there is ‘an element of
vagueness about the content’ of fundamental rights, ‘since the outer edges of funda-
mental human rights are not clear-cut’.50 However, he goes on to note that ‘there will
ordinarily be a measure of agreement on where the lines are to be drawn’ and that
‘[t]he rule of law must, surely, require legal protection of such human rights’.51
Indeed, it is doubtful that the international community can, in the short run,
reach full consensus on this issue. However, I think the international community
can get very close. I believe it is both possible and crucial to identify principles and
guarantees from which no state should be permitted to derogate.
Conclusion
Anver Emon argues compellingly that the so-called disparity between Islamic law
and international law rests on a set of misunderstandings and red herrings that divert
attention from the real issues and prevent constructive dialogue. Such misunder-
standings are widespread in the media and propagated for political ends by national
leaders of both Muslim and non-Muslim states. And yet, detailed comparative
analysis of international human rights law and Islamic jurisprudence shows clearly
that the fluid nature of Islamic law, with its historical interpretations using various
sources (including non-textual), and the resulting diversity of opinion and applica-
tion, often results in consistency with international human rights law. Moreover,
historical evidence refutes the widely held assumption that international human
rights law is the product of a Christian tradition.52 A universally relevant human
rights law can indeed find common ground in international and Islamic law.53
As Emon asserts, Islamic law is based on pluralism, where modern reforms
have given rise to a form of pluralism that is different from that practised by early
Islamic scholars. Today, Muslim states rely on a pluralism of legal traditions made
up of Islamic, European, and international law sources. Therefore, as Emon argues,
46 ICCPR, Art 4.
47 Arab Charter on Human Rights, Art 4.
48 See ICCPR, Arts 9, 14, 19, 21, 22.
49 ICCPR, Art 4. See also, Arab Charter on Human Rights, Art 4.
50 Lord Bingham, ‘The Rule of Law’ (2007) 66 CLJ 67, 76–7.
51 Bingham, ‘The Rule of Law’, 77.
52 Karima Bennoune, ‘Islam and International Humanitarian Law: From a Clash to a Conversation
Between Civilizations’ in Mashood A Baderin, International Law and Islamic Law (Hampshire:
Ashgate, 2008).
53 Karmali, ‘Publication Review’, 204–5.
international law should not be threatened by Shari‘a law, as Shari‘a is not used in
isolation but shaped by and combined with other sources.
The ongoing debate over ‘universalist’ Western values can be very unhelpful and
is largely ignorant of the valuable contributions made to international law by
Muslim states. The emphasis should be on the ‘universalism’ of international values
found in human rights norms that transcend any country, national boarder,
religion, culture, or legal system. Detailed analyses have shown not only that
Muslim states were fully involved in the creation of key instruments of inter-
national human rights law, but that such instruments are largely consistent with
Islamic law. Further research illustrates that Muslim states have remained engaged,
and actively participate in activities at the international level, such as the Human
Rights Committee. They key is to avoid structuring the ‘debate’ in a way that
automatically reduces the value of international human rights law in Muslim states
and perpetuates the false claim that Islamic doctrine is largely non-compliant with
international human rights law. It is not.
5
Clearing Ground: Commentary to
‘Shari‘a and the Modern State’
Muhammad Khalid Masud
A. Introduction
In the wake of debates about the role of Shari‘a in secular contexts, particularly
in Europe and America since 2008,1 some scholars (eg Feldman2) have been
searching for common ground between Shari‘a and secular laws. During the
seminar in Salzburg in 20103 that produced the present work, the participants
viewed ‘rule of law’ as one of the common ground between Shari‘a and inter-
national law. The Seminar concluded that in order to identify the common ground
it is imperative first to clear away a large number of conceptual ambiguities and
critically analyze the received perceptions of both Shari‘a and international law
without limiting them to any value-based comparison.
One of the gravest causes of ambiguity is the grand narrative of ‘modernity’ that
juxtaposes it with ‘tradition’ in a dichotomous relationship. Most scholars of
Islamic law place Shari‘a in the category of tradition and consider it incompatible
with modernity and hence irrelevant in modernized societies. This approach to
Shari‘a not only prevents a truly critical analysis of the concept and role of Shari‘a
but also reinforces the authority of traditional forces in Muslim countries who
1 Archbishop of Canterbury’s statement on 7 February 2008 about Shari‘a in the UK, <http://
www.archbishopofcanterbury.org/articles.php/1137/archbishops-lecture-civil-and-religious-law-in-
england-a-religious-perspective> (accessed 3 June 2012) generated a controversy on the relevance of
Shari‘a in secular legal systems. See for instance, Judi Bottoni, ‘Archbishop denies asking for Islamic
law’ <http://www.msnbc.msn.com/id/23083487>, and the following debates: Lord Philips, <http://
news.bbc.co.uk/2/hi/uk_news/7488790.stm>; Frank Cranmer, ‘The Archbishop and Sharia’ (2008)
160 Law & Justice 4; Frank Cranmer, ‘A Court of Law, Not Morals?’ (2008) 160 Law & Justice 13–24;
and articles cited in <http://en.wikipedia.org/wiki/Rowan_Williams> (accessed 3 June 2012). These
are only a few examples of the news and comments pertaining to unending debates in the print and
electronic media on Shari‘a councils in UK, Canada, and America.
2 Noah Feldman, The Fall and Rise of the Islamic State (Princeton: Princeton University Press, 2008)
speaks about Shari’a as a concept of ‘rule of law’ and argues that Muslim political decline began when
Shari‘a lost this role.
3 ‘Islamic and International Law: Searching for Common Ground’, Salzburg Global Seminar,
session 475, Salzburg, 14–19 November 2010.
Clearing Ground: Commentary to ‘Shari‘a and the Modern State’ 105
regard concepts like democracy,4 sovereignty of the people, secularism,5 and

human rights to be in conflict with Shari‘a.6
In the present volume, Kathleen Cavanaugh and Anver M Emon in their
respective essays on Shari‘a and international law (Chapters 1 and 2) demystify
the concept of the ‘rule of law’ and point to the dynamic nature of law, which keeps
unfolding itself in the form of a continuous tension between ‘claims’ and ‘practices’.
Emon suggests revisiting the present approaches to the studies of Shari‘a and
international law, not simply by juxtaposing them for comparison in order to
privilege one against the other, but rather to study each as a legal tradition
systematically. Emon and Cavanaugh suggest taking the idea of ‘rule of law’ as a
starting point for a legal tradition that informs a political set up. Rule of law, in this
case, would include such basic ideas as ‘governance’, ‘ordering’, and ‘justice’, which
in turn inform such legal concepts as legality, legitimacy, and authority.
In this commentary, I would like to suggest some areas of ambiguity relating to
Islamic and international law that call for clarity. In the following pages, I present a
brief analysis of the five crucial terms Shari‘a, Fiqh, Siyasa, Hukm, and Siyar relating
to Muslim jurists’ conception of ‘law’ and ‘international law’.
B. Islamic law
The term ‘Islamic law’ is a modern term that is used as an English translation for
Shari‘a and Fiqh. The translation does not convey faithfully the conception behind
these two terms. Further, these are not the only terms employed to express the
conception of law in the Islamic legal tradition; several other terms have been used.
This section discusses five crucial terms by historicizing and analyzing their usage.
1. Shari‘a
Shari‘a as a religio-legal construct is as problematic today as it was in the premodern
period. This construct is based on the premises of the divine origin of laws, which
thereby excludes the role of human reason. The concept of Shari‘a as revealed
law, therefore, raised several issues in the formative period, which continue to be
debated today. First, who determines which verses of the Qur’an constitute legal
matter? The jurists differed on the nature and number of verses that contain
legal matters (ayat al-ahkam).7 This has been one of the important issues of Islamic
legal theory. Second, there is the issue of abrogated verses. The jurists debated
4 Eugene Cotran and Adel Omar Sherif, Democracy, the Rule of Law and Islam (Kluwer Law
International, 1999), and Muhammad Khalid Masud, ‘Defining Democracy in Islamic Polity’
(2005) 2 ICIP Journal 1–11.
5 Muhammad Khalid Masud, ‘The Construction and Deconstruction of Secularism as an Ideology
in Contemporary Muslim Thought’ (2005) 33(3) Asian J Social Sciences 363–83.

6 For an analysis of different Muslim discourses on the subject, see Muhammad Khalid Masud,
‘Muslim Perspectives on Global Ethics’ in The Globalization of Ethics (New York: Cambridge Univer-
sity Press, 2007), 93–116.
7 Al-Ghazali, al-Mustasfa min ‘ilm al-Usul (Baghdad: Muthanna, 1970, 2:350) mentions that the
verses containing injunctions (ahkam) are approximately 500.

among themselves on the number and the legal effect of the abrogated verses; they
also debated whether the abrogated verses are also excluded from recitation or
whether only their legal effect was abrogated. Third, Muslim scholars in the
formative period were also divided on the authority and definition of the legal
practices (Sunna) of the Prophet and of his companions. It was through gradual
consensus of the community of the jurists that some of these issues were settled.
Consensus on the role of Sunna as clarification (bayan) of the Qur’an led to the
conception of Sunna as non-recited (additional) revelation (wahy ghayr matluw).8
With the establishment of the authority of law schools (madhhab) the opinion of
the jurists (Fiqh) also came to be regarded as synonymous with revelation because
they were derived from the Qur’an and Sunna.
The fact that it was the jurists whose consensus decided such essential matters about
Shari‘a led the Reformist movements in the 18th–20th centuries to oppose the
doctrine and practice of adherence to schools of Islamic law; they insisted on distin-
guishing Shari‘a from Fiqh. This development will be discussed in the next section.
2. Fiqh
Shari‘a and Fiqh are commonly used as synonymous terms. When distinguished, Fiqh
is usually treated as the substantive law of Islam. Common synonymous usage regards
Fiqh as divine and immutable because it is derived from the Shari‘a sources, the Qur’an
and Sunna. Technically, Fiqh is defined as the science of studying Shari‘a, making it an
integral part of Shari‘a. In order to clear ground, it is necessary to study critically the
evolution of the concept of Shari‘a in Islamic thought and separate it from Fiqh. Fiqh
refers to jurists’ opinions and doctrines preserved in voluminous legal literature.
Historically, Fiqh was not the law of the state even though it was a source of law
on a number of subjects. The caliphs or kings and Sultans issued laws, appointed
Qadis, and defined their jurisdictions in territorial and juridical terms. Very few of
these laws and Qadi judgments have been preserved and studied. Even the scanty
studies available of such laws show a divergence between these laws and Fiqh
doctrines. The jurists were reluctant to be part of the state system. According to
Islamic tradition, the Abbasid caliph Mansur (r 754–775) consulted Imam Malik (d
795) in order to introduce the latter’s work al-Muwatta as a code of law, but Malik
opposed the idea.9 Renowned jurists also hesitated to accept judicial positions under
the caliphs. Consequently, Fiqh developed as a private jurists’ law. The caliph and
the jurist both recognized the parallel existence of Fiqh and state law enactments in
several areas of public law, such as criminal, fiscal, and administrative laws. This type
of legal ordering led to a continued tension between the state and jurists.
Ibn al-Muqaffa’ (d 139/756), secretary to the Abbasid Caliph Mansur, believed
in the absolute authority of the caliph. Legitimacy of this authority is based on
religious conviction, which is common between the caliph and his army. It is the
8 Al-Ghazali (al-Mustasfa, 1:129) states that revelations are of two types: the one that is recited is the
Qur’an, and the other that is not recited is Sunna.

9 Ibn Sa‘d, Al-Tabaqat al-Kubra, al-qism al-mutammim (Madina: al-Majlis al-‘Ilmi, 1983), 440.
caliph who unifies the people through unity of belief between him and the people
and unified law. Ibn al-Muqaffa’ advised the caliph to regulate the diverse laws
prescribed by the various schools of law that divided the people. He recommended
that the caliph should create a code of law based on: (i) precedents and usage (siyar);
(ii) tradition and analogy; and (iii) his own decisions which would in turn be
emended by succeeding caliphs.10
The above tension and compromise explain why jurists did not develop Fiqh as a
comprehensive law. It is more exhaustive on rituals than on other matters. For
instance, it provides more details on laws about clean water for ablutions than on
administrative and governance related matters. On criminal laws, on the other
hand, Fiqh limits itself to elaborate on a limited number of crimes where the
punishments have been described in the Qur’an. The term ‘Hudud’, which is often
translated as ‘Islamic criminal laws’, is technically defined as fixed penalties that are
determined in the Qur’an and Sunna. The jurists did not treat them as criminal law
in the ordinary sense. Most jurists, as a result, were reluctant about their application
to non-Muslims. That is also the reason why Fiqh does not comprehensively deal
with all the crimes, leaving it to the discretion of the Qadis or the state. These
discretionary areas are called ta’zirat (simply, penalties).
The tension between the state and jurists is also evident in the fact that
judgments of the Qadis were not collected and preserved as part of Fiqh literature.
On the other hand, Fatawa, jurists’ opinions in response to queries, were regularly
collected and were often integrated into Fiqh literature.
Fiqh allowed difference of opinion among the jurists, and subsequently was
reflected in several doctrinal schools of law, all of which were alternatives to state
law.11 During the formative period of Fiqh, the jurists used Fiqh al-Shari‘a
(understanding of Shari‘a) and Ra’y (considered opinion) as technical terms to
stress the human, rational, and hence fallible nature of their approach to under-
stand Shari‘a. They also contrasted it with the term ‘Ilm (knowledge), referring
mostly to the definitive knowledge of Sunna and Hadith.12 Jurists developed Fiqh
in part by privileging human reason and understanding in constructing law.
Similarly, despite the theoretical emphasis on the Qur’an, Sunna, Ijma‘ (consensus)
and Qiyas (analogical reasoning) as the only sources, jurists in practice recognized
several other sources of normativity, including local customs, sound reason, sense of
justice, public interest, social cohesion, peace, and order. They were also on guard
against injustice, tyranny, and anarchy. Later, however, the emphasis on human
contributions to Fiqh decreased in order to enhance its authority and infallibility.
The question of the sources of normativity was a major question of Islamic
jurisprudence. The Maliki School insisted on the normativity of the practice
10 Muhammad Khalid Masud, ‘The Changing Concepts of Caliphate—Social Construction of
Shari‘a and Ethics’ in New Directions in Islamic Thought, Exploring Reform and Muslim Tradition
(London: I B Tauris, 2009), 187–205.
11 Muhammad Khalid Masud, ‘Ikhtilaf al-Fuqaha: Diversity in Fiqh as a Social Construction’ in
Wanted Equality and Justice in the Muslim Family (Selangore: Musawah, 2009), 65–93.
12 See Majid Khadduri, Al-Shafi’i’s Risala, Treatise on the Foundations of Islamic Jurisprudence
(Cambridge MA: Islamic Text Society, 1987), 81.

(‘amal ) of Medina; the Hanafi School recognized the normativity of customs.13
Abu Ishaq al-Shatibi, and later Shah Waliullah (d 1762) both discussed Maslaha
(human interest, common good) as a source of legitimacy. These and several other
jurists addressed the mysteries (asrar) or rational principles of legal obligation to
explain why humans obey laws. This suggests a continuous quest for a basis of legal
normativity.14 In this short discussion, it is not possible to go into further detail.
3. Siyasa
The term ‘Siyasa’, originally meaning discipline, very early came to stand for ‘govern-
ance’. Shafi‘i ruled that governance must accord with Shari‘a.15 The juxtaposition of
Imama and Siyasa in the title of Ibn Qutayba’s (d 889) book on the history and theory
of caliphate,16 and debates about good and bad governance (Siyasa ‘adila and Siyasa
zalima) among the jurists quite early in the history of Fiqh reveal the technical use of
the term and the significance of the subject in that period.17 As discussed earlier, the
jurists did not develop laws of governance in substantive details. Their treatises on
governance were in the style of advices and mirrors. Their general approach was
pragmatic. Abu’l Hasan al-Mawardi (d 1058)18 and Ibn Jama‘a (d 1333),19 for
instance, both legitimized the seizure of the caliphate by force (ghalba, istila’ ) when
in their respective periods the Buyids and the Mongols appointed and deposed caliphs
of their choice. Ibn ‘Aqil (d 1119), a Hanbali jurist, however, disagreed and defined
justice as the ‘essential element of good governance’.20 He clarified that a system of
governance based on justice was in accordance with Shari‘a. Ibn Taymiyya distin-
guished Siyasa Shar‘iyya from Siyasa ‘Adila, saying that Shari‘a, alone is the criterion
for good governance. Ibn Taymiyya’s views are discussed in Section B.4.
The jurists questioned the authority of the ruler in interpreting Shari‘a, but they
recognized governance or Siyasa as the domain of the ruler. Thus the term gradually
gained a specific technical meaning of ‘ruler’s discretion’, allowing the ruler this
discretion in various legal matters including penalties.21 During the colonial period
13 Ibn ‘Abidin, Nashr al-‘urf fi bina ba‘d al-Ahkam ‘ala al-‘urf (Damascus: Dar al-Ma‘arif, 1884).
14 Muhammad Khalid Masud, ‘Communicative Action and the Social Construction of Shari‘a in
Pakistan’ in Religion, Social Practice, and Contested Hegemonies, reconstructing the Public Sphere in
Muslim Majority Societies (New York: Palgrave Macmillan, 2005), 155–79.
15 Ibn Qayyim, al-Turuq al-Hukmiyya (Cairo: Matba‘a Muhammadiyya, 1953), 13.
16 Ibn Qutayba, al-Imama wa al-Siyasa (Cairo: Halabi Company, nd).
17 Ibn Qayyim, I ‘lam al-muwaqqi‘in ‘an rabb al-‘alamin (Cairo: Maktaba al-Azhariyya, 1968), 372.
18 Abu’l Hasan al-Mawardi, al-Ahkam al-Sultaniyya (Cairo: Halabi, 1973). See for comments on
this doctrine, Aziz Azmeh, The Times of History: Universal Topics in Islamic Historiography (Budapest:
Central European University Press, 2007), 245.
19 Badr al-Din Ibn Jama‘a, Tahrir al-Ahkam fi Tadbir Ahl al-Islam (Qatar: Mahakim al-Shar‘iyya,
1985), 55.
20 Ibn Qayyim, al-Turuq al-Hukmiyya, 13.
21 Shaykh Nizam and others, Fatawa ‘Alamgiri, A Collection of Opinions and Precepts of the Emperor
Aurungzeb Alamgir [Arabic Text] (Calcutta: Baptist Mission, 1833), vol 2, 258. Rudolph Peters (Crime
and Punishment in Islamic Law: Theory and Practice from Sixteenth to Twenty First Century (Cambridge:
Cambridge University Press, 2005), 68) explains that Hanafi law, which was applicable both in
Mughal India and the Ottoman Caliphate, authorized the rulers to administer Siyasa punishments,
in India, Warren Hastings invoked the ‘doctrine of Siyasa’ to assume authority to

legislate Islamic law.22
The above analysis suggests a compromise between the jurists and the state
based on the recognition of necessity and universal practices of governance in
their times.
4. Hukm
The term ‘Hukm’ has a wide range of meanings, including judgment, rule, order,
regulation, authority, administration of justice, government, and sovereignty. The
concept is as central to political thought as it is to Islamic jurisprudence because it
intersects the various ideas of law and order. The term has been prominently used
both in discourses on law, justice, legal reasoning, governance, and authority. In
present day discussions Islamist discourse employs this term for Divine sovereignty;
the Qur’anic verse is al-hukm illa lillah (Sovereignty belongs only to God, 12: 40),
famously used by Islamists to define an Islamic state.23
This doctrine of the sovereignty of God is problematic not only in political
theory but also for the concepts of good governance, constitutionalism, and
democracy, as it is in conflict with the idea of ‘sovereignty of the people’. Consti-
tutional reforms in Ottoman Turkey, especially with reference to the replacement
of the caliphate with a republican form of government triggered a debate among
religious scholars in Egypt about whether sovereignty belongs to God or to the
people. Shaykh Muhammad Bakhit, Shaykh Abd al-Wahhab, Rashid Rida, and
several others held that sovereignty belonged to the people. They argued that in
Islam the concept of Hukm is based on the principles of Shura (consultation),
accountability of the ruler, and the people’s vote of allegiance. The ruler receives his
authority from the people not from God.24
Those who maintained that sovereignty belongs to God relied on Ibn Tay-
miyya’s doctrine of al-Siyasa al-Shar‘iyya. Ibn Taymiyya’s doctrine has greatly
influenced modern theories of the Islamic state, focusing on the sovereignty
(hukm) of God and Shari‘a. Sayyid Maududi (d 1979) developed this doctrine
including the death sentence, to habitual criminals and for acts threatening public order. Adminis-
tration of Siyasa justice was not regulated by the Shari‘a rules of Hudud or Ta‘zir.
22 In 1772, Warren Hastings assumed the title of Nawab Governor General Hastings, after which
he claimed jurisdiction in both civil and criminal matters (M P Jain, Hindustan ki Qanuni Tarikh,
Urdu translation by Anwarul Yaqin (New Delhi, 1982)). With this title, Hastings invoked the Mughal
doctrine of siyasa (prerogative of the ruler) to intervene in the administration of justice (George Claus
Rankin, Background to Indian Law (Cambridge: Cambridge University Press, 1946), 166).
23 The verse was used in early Islam first by the Khawarij against Tahkim, or appointing arbiters to
settle the dispute between ‘Ali and Mu‘awiya. Mu‘awiya’s forces called for making the Qur’an the
arbiter to decide as to the rightful caliph. The Khawarij opposed this agreement citing this verse. ‘Ali
replied to the Khawarij saying that the verse was right but their motive in citing this verse was wrong
because the Khawarij were using it wrongly with reference to the issue of governance. Radi Sayyid Radi
(ed), Nahj al-Balagha, Sermons (Letters and statements of Amir al- Mu’minin ‘Ali) (Tehran: Intisharat
Mahdi, 1951), 125.
24 Abd al-Hamid Mutawalli, Mabadi Nizam al-Hukm fi’l Islam (Alexandria: al-Ma‘arif, 1974),
165.
further as Hakimiyyat Ilahiyya (sovereignty of God),25 rejecting ‘sovereignty of
the people’. This doctrine has serious implications for the concepts of democracy.
Maududi distinguished between Islamic and Western democracy. He said ‘Dem-
ocracy begins in Islam’,26 but Islamic democracy is the antithesis of Western
democracy. An Islamic state is a ‘Theo-democracy’27 because in Islamic democracy
only God is sovereign and in secular democracy sovereignty rests with the state and
is transferred to the people.28 To Maududi, sovereignty of God (hakimiyya)
and sovereignty of the people are mutually exclusive concepts.29 Similarly, Shari‘a
and secular law are mutually exclusive. Shari‘a is a complete and comprehensive
system embracing all the various departments of life—nothing is superfluous and
nothing lacking.30 Consequently, the function of the Islamic state, ‘is really that
of law-finding, not of law-making’.31
This and similar concepts of the Islamic state have added ambiguities to the
constitutions of several Muslim countries. This short discussion cannot go into a
detailed analysis on this point. It is sufficient to note that due to these ambiguities
most Muslim countries have not been able to develop democratic systems and have
been led to an impasse, ending in violent and extremist opposition to democracy.
5. Siyar
There exists a special genre of Islamic legal literature entitled ‘siyar’, variously
translated as ‘Islamic laws of war and peace’, ‘Muslim laws of nations’, and ‘Islamic
International law’. Chapters on Siyar are also part of the Fiqh texts. The siyar
tradition arguably began with Abu Hanifa (d 767), the founder of the Hanafi law
school. His treatise on the subject was commented on and critiqued by other jurists
and this led to the further growth of literature on the subject. Among the early
noteworthy writings on the subject is Siyar al-Awza‘i written by Abd al-Rahman al-
Awza‘i (d 744), also the founder of a law school. Awza‘i’s comment on Abu
Hanifa’s competence in Siyar underlines the significance of the knowledge of
laws and practices of other nations on the subject. According to al-Awza‘i, Abu
Hanifa’s doctrines were only theoretical, whereas Awza‘i in Syria had more practical
knowledge about the relations between the Muslim and Byzantine governments.
25 While Arab thinkers like Sayyid Qutb were influenced by Maududi’s doctrine, others like
Mutawalli (Mabadi Nizam al-Hukm, 65, 165), Muhammad Imarah (al-Islam wa’l-Sultat al-Diniyya
(Beirut: al-Mu’assasa al-Arabiyya, 1980), 45–95), and Abdelwahab Meddeb (The Malady of Islam
(New York: Basic Books, 2003), 102) have severely criticized this doctrine and faulted Maududi’s
understanding of the Qur’an and Arabic language.
26 Sayyid Abu’l A‘la Maududi, Islamic Law and its Introduction (Lahore: Islamic Publications,
1955), 57.
27 Abu’l A‘la Maududi, Islamic Law and its Introduction, 13–14.
28 Abu’l A‘la Maududi, Islamic Law and its Introduction, 77.
29 Abu‘l A‘la Maududi, ‘Political Theory of Islam’, in Khurshid Ahmad (ed), Islam: Its Meaning and
Message (London: Islamic Council of Europe, 1976), 154.

30 J L Espocito and J P Piscatori, ‘Democratzation and Islam’ (1991) The Middle East Journal 427–40.
31 John L Esposito, The Islamic Threat: Myth or Reality (New York: Oxford University Press, 1999),
125–6; John L Esposito and John O Voll, Islam and Democracy (New York: Oxford University Press,
1996), 23–6.
The major works on the subject, al-Siyar al-Kabir and al-Siyar al-Saghir 32 were
written by Abu Hanifa’s disciple Muhammad b Hasan al-Shaybani (d 805) for the
Caliph Harun al-Rashid.33
According to Majid Khadduri,34 Siyar or the ‘Muslim law of nations’ is not
different from ancient Roman law or the law of Christendom: other people were
not recognized as separate nations. It was based on a theory of the universal state
and designed to govern relations between Muslim and non-Muslim polities. Early
jurists made no distinction between municipal, domestic, or international law. The
contents of siyar doctrine are about jihad, managing the spoils of war, and kharaj
(land revenue). Later jurists (referring to Shaybani) expanded upon the subject of
foreign relations, which gained specific significance under the technical term of
siyar, although siyar and jihad were used interchangeably.35 Muslim law of nations,
according to Khadduri, conforms to the modern categories of agreement, custom,
reason, and authority. Treaties governed relations with non-Muslims.36
While several Muslim writers on international law like Subhi Mahmasani, and
Abu Zahra find Islamic law adequate for meeting the challenges and contingencies
of the modern world, others like Tal’at Ghunaimi, and Abu Sulayman point to
certain inadequacies of the siyar framework. According to Abu Sulayman, the entire
system of classical siyar is in need of reform; he proposes a new methodology to deal
with problems of international relations.
Comparative studies of Shari‘a and international law have generally focused on
the substantive laws of Shari‘a, selectively weighing their content against inter-
national law and human rights. This approach usually leads to a conclusion that
Shari‘a and international law are mutually exclusive and that Shari‘a is essentially
a religious law that is rigid and immutable. Such studies ignore the chronological
distance between the two comparators, and all too often judge medieval doctrines
from the perspective of modern concepts of law. These studies also tend to ignore
recent reinterpretations of Islamic law accommodating human rights and inter-
national law within the Islamic legal tradition. Such conciliatory efforts are dis-
missed summarily, sometimes deriding them as ‘apologetic’,37 ‘mimicry’,38 or
32 Muhammad b Hasan al- Shaybani, Kitab al-Siyar al-Saghir, edited and translated by Mahmood
Ahmad Ghazi (Islamabad: Islamic Research Institute, 1998). Majid Khadduri (War and Peace in the
Law of Islam, Baltimore: John Hopkins, 1955) notes that it was Abu Hanifa who wrote al-Siyar al-
saghir because Awza‘i’s Siyar mentions it as composition of Abu Hanifa. Ghazi disagrees with Khadduri
and argues that al-Siyar al-Saghir was written after Abu Hanifa’s death.
33 Mahmood Ahmad Ghazi, ‘Introduction’, in Muhammad b Hasan al- Shaybani, Kitab al-Siyar al-
Saghir (Islamabad: Islamic Research Institute, 1998). The legal issue that prompted this controversy
was whether Islamic Hudud (penal laws) were applicable to the foreigners residing in Muslim lands and
to the Muslims residing in foreign lands. The Hanafis argued that Islamic laws were not applicable in
both cases.
34 Khadduri, War and Peace, 45.
37 H A R Gibb, cited in Muhammad Khalid Masud, Armando Salvatore, and Martin van
Bruinessan, Islam and Modernity, An Introduction to Key Issues and Debates (Edinburgh: Edinburgh
University Press, 2009), 47.
38 Christian Moe, cited in Masud, ‘Muslim Perspectives on Global Ethics’, 100.
‘tortured textual interpretations’.39 This critique tends to be arrogant as it presumes
modernity to be exclusively Western and has negatively contributed to the view (if
not reality) of international law as hegemonic. It has fortified Islamist interpret-
ations that place Islamic law in opposition to international law. Consequently, it
has weakened the Islamic modernist accommodative efforts, and has in turn
reinforced the voices of the conservative traditional groups discrediting such trends.
C. Concluding remarks
International law today is not an exclusively academic pursuit; it is also a ‘rule of
law’ project. Similarly, Shari‘a is also a ‘rule of law’ concept, but Fiqh as a science of
Shari‘a has been more an academic product of Muslim jurists’ efforts than an
outcome of state laws or court judgments. The present practice of international law
has raised a number of issues and pointed to a number of gaps. To begin with,
questions as to who has the authority to legislate, enforce, and adjudicate this law
are still a matter of debate. In practice, the matters seem to be decided mostly on the
basis of ‘convention’, but often by coercive measures. The situation has changed
further after the tragic events of 9/11. Similar questions have been raised about
Shari‘a and Fiqh. The latter’s authority and legitimacy rest in the consensus of the
jurists, presently in the form of law schools (madhhab), and its origins in Shari‘a.
International law and Shari‘a both contest the sovereignty of the nation-state.
An increasing number of countries, including Muslim states, have come to rely
on international law to legitimize their campaigns against terrorism. Yet as Cava-
naugh has shown in Chapter 1, international law suffers from serious limitations,
inadequate legal definitions, questions regarding the legitimacy of the use of force
and the legality of controversial investigation procedures, and problematic distinc-
tions between state and non-state actors in international law. Together, these not
only hinder the process of rule of law but also render the legitimacy of present
practices debatable. Similar to the Muslim and Christian practices of extending
their local laws to other nations in the medieval period, the US has extended its
national laws to fill gaps in international situations.40 Cavanaugh refers to the
practice of invoking ‘exceptions’ to rules of international law to the advantage of the
powerful nations. Selective use of force and politicized censure of human rights
violations have raised moral questions about international law. Conflicts between
legal frameworks are slowing down effective cooperation between nations.
Likewise, in the Muslim world, inadequate attention to the rule of law, inter-
national support for dictatorial and repressive regimes, and the strategic use of Islam
against communism during the cold war (eg Afghanistan Mujahidin) introduced
39 Robert N Bellah, Beyond Belief, Essays on Religion in a Post-Traditional World (Berkeley:
University of California Press, 1991), 163.

40 Reuven Young, ‘Defining Terrorism: The Evolution of Terrorism as a Legal Concept in
International Law and its Influence on Definitions in Domestic Legislation’ (2006) 29 B C Int’l and
Comp L Rev 23.
the phenomenon of non-state actors in global politics. This situation enabled

Islamists to bring religious groups together to denounce liberal social and legal
reforms as Westernization and has led to the call for the restoration of the universal
Caliphate, the establishment of an Islamic state, and the Islamization of laws.
In this regard, the year 1979 was particularly significant for certain international
events that impacted the Muslim world. It was the year when militant Muslims in
Saudi Arabia occupied the Ka’ba, the Islamic revolution dethroned the Shah in
Iran, and Pakistan and several other countries began the Islamization of laws. It was
also the year when the UN General Assembly adopted the CEDAW (Convention
on the Elimination of all forms of Discrimination against Women). A large number
of countries ratified it, some with reservations. The majority of Muslim countries
ratified the Convention but several entered reservations on the basis of Shari‘a.
These developments have reinforced the idea of antipathy between Shari‘a and
international law and have contested the universality of human rights. Reservations
by some Muslim countries and criticism by several Western writers have suggested
that Shari‘a and international law are not mutually compatible.41 This debate,
however, reflects the political developments rather than the conflict between the
two concepts of law. To illustrate, let me refer briefly to the two major alternative
drafts of Islamic human rights in this period. In 1981 the Islamic Council, a non-
governmental Muslim organization based in London issued the Universal Islamic
Declaration of Human Rights (UIDHR) to mark the fifteenth century of the
Islamic calendar. The Council was largely constituted of Islamist groups who either
belonged to opposition political parties in the Middle East and had migrated to
Europe, or lived in countries like the Sudan, Pakistan, Iran, and Saudi Arabia where
the process of Islamization had already begun. The UIDHR reflects the tension
between these groups and the Muslim repressive regimes at that time.
The Cairo Declaration of Human Rights in Islam (CDHRI), the other draft of
Islamic Human Rights was issued at the Nineteenth Islamic Conference of Foreign
Ministers of the OIC, the Organization of the Islamic Conference, in Cairo on
5 August 1990, and has been adopted by 45 countries. While the two documents
largely agree with the UDHR, they differ significantly with each other in details.
The documents express reservations against six out of 30 UDHR Articles, which
suggests that the range of compatibility is wider than generally assumed. Regarding
reservations, the two documents also differ from each other. The UIDHR expresses
reservation against UDHR Articles pertaining to freedom, security, torture, mar-
riage, freedom of thought, and freedom of expression. The CDHRI expresses
reservations against Articles concerning freedom of movement, asylum, freedom
of expression, freedom of assembly, and public office. These reservations mirror
their respective political concerns against the UDHR. UIDHR reservations point
to the incompatibility between Shari‘a and human rights, and Shari‘a (read Fiqh)
and, for instance, laws about marriage, particularly with reference to apostasy, but
41 For a very succinct and scholarly analysis of this debate, see Abdullahi A. An-Na‘im, ‘Islam and
Human Rights: Beyond the Universality Debate’ in ASIL Proceedings of the 94th Annual Meeting, 5–8
April 2000, pp 95–101.
they stress the rights relating to political opposition to the state; the Cairo Declar-
ation shows more concern regarding restrictions on the state in dealing with the
opposition.42 (Note that the UIDHR and CHDRI both differ with the UDHR on
the following themes: freedom of thought and expression, protection of life, penal
laws, marriage, and holding public office. Both are silent on the right to nationality,
cultural life and international order; CDHRI is also silent on torture, fair trial, and
free development of personality. CDHRI defines rights in the framework of nation-
state and the UIDHR focuses on an intra Muslim states framework. UIDHR is
more emphatic on political freedom and CHDRI, being a state document is more
concerned with the security of the state.) It appears as if these two documents
address each other more than the UDHR; CDHRI was in a way a response to the
UIDHR which was drafted by the Islamist groups who were in opposition, some of
them in exile protesting against the repressive regimes at home.
Regarding CEDAW, more than antipathy, the concept of the nation-state and
its sovereignty informs Muslim countries’ ‘reservations’ to CEDAW. This point
can be illustrated with reference to Pakistan’s reservations.
Pakistan’s initial reservation was against Article 29 of the CEDAW convention,
which relates to settlement of disputes about the interpretation or application of the
convention. The Article suggests that if the dispute is not settled by negotiation one
of the parties may go to the International Court of Justice. Pakistan has a reserva-
tion on this article. The CEDAW committee insists that Pakistan withdraws this
reservation. Recently, the CEDAW committee has also asked for legislation against
the discriminatory laws that contradict CEDAW Articles 1, 2, 3, 4, 5, and 16.
Pakistan’s reservation claims that these Articles are subject to the provisions in the
Pakistan constitution and Shari‘a. In fact, the conflict claimed in the reservations
refers to Fiqh laws rather than to Shari‘a. The discriminatory laws are mostly based
on the principle of patriarchy, which is a social construct.
This brief analysis of the encounter between Shari‘a and international law
suggests some common ground between the two. However, it also reveals some
significant gaps and ambiguities that must be cleared in the quest for common
ground.
42 For detailed argument see Muhammad Khalid Masud, ‘Muslim Perspectives on Global Ethics’.
6
Commentary: Shari‘a as Rule of Law
Adel Omar Sherif
The endeavor to shift the conversation on Islamic law and human rights is an
important one, as in the global south, from where I come, the arguments of
universalism and cultural relativism have lost steam. While we proclaim and
embrace aspirational principles, what those principles mean in a given context
and how they are given shape, in place to place, will vary. This is no doubt
commonplace for the readers of this volume, and I will not belabor the point
here. But what is most worthy of attention is how the debates on Islamic law and
human rights all too often miss the mark by imagining a problem that does not
really exist. As the editors’ introduction to this volume and Anver Emon’s essay
(Chapter 2) collectively show, the place of Islamic law in the modern world is quite
delimited, and indeed mediated, by the state. Consequently, when we talk about
Islamic law and international human rights law, we cannot take for granted that the
Islamic law at issue falls within the governing devices of a state, whether in the form
of legislation, constitutions, or court decisions. From the perspective of a member
of the judiciary, Islamic law is not simply some abstract idea encased in books from
the medieval period. Indeed, the past doctrines are important, but so too are the
ways in which Islamic law has become part of the modern Muslim state. Conse-
quently, when we hear of French judges adjudicating ‘Islamic law’ over parties
originally from Morocco, we must first ask whether by ‘Islamic law’ is meant a
historical tradition, or rather Moroccan statutory law, which codifies some limited
aspects of Islamic law using modern rule of law mechanisms. This commentary,
therefore, aims to explicate in greater detail the place of the state as a mediating
point between the past of Islamic law, the present of modern law, and the future of
Muslim state legal systems as they grapple with an ever changing global legal
environment.
A. Where is Islamic law in the modern Muslim state?
In Muslim states across Africa, the Middle East, South Asia, and Southeast Asia,
legislation on areas of personal status (al-ahwal al-shakhsiyya) is where Islamic law
and the modern state meet. Certainly there are exceptional cases, such as Iran and
Saudi Arabia, of states that apply various criminal penalties. In other cases, as Anver
Emon notes in Chapter 2, the application of these criminal laws is more political
than legally effective, given that the federal systems in many of these states grant
criminal law powers to the federal state, as opposed to the local provinces where
Islamist parties may hold regional authority. Consequently, in the reality of day-to-
day legal affairs in Muslim states, the place of Islamic law is construed narrowly to
address issues of marriage, divorce, inheritance, and custody of children, although
in some cases, international treaty commitments pledge Muslim states to increase
their scope of global cooperation and engagement.
Secondly, Islamic law may be enshrined in a state’s constitution. Since the
latter half of the 20th century, we have increasingly witnessed Muslim states
introducing into their constitutions provisions that proclaim Islamic law as a source
of law. Often the language invokes the ‘established principles’ of Islamic law, raising
important questions about what that means. Furthermore, in some cases, the
provisions providing for Islamic law indicate that it is either ‘a’ or ‘the’ source
of law. Whether the phrase is accompanied by a definite or indefinite article (‘the’
or ‘a’) is more often than not reflective of political currents than substantive legal
effect, at least in the practice of judiciaries charged with the task of interpreting such
constitutional provisions.
The Egyptian Supreme Constitutional Court has on various occasions had to
resolve legal disputes in which one party to the conflict raises the charge that the
government has acted in contravention of Shari‘a principles, and thereby violated
the constitution. This charge is one among many that parties to law suits bring.
Indeed, it is de rigueur for lawyers to issue Shari‘a-based challenges to government
action—as any good lawyer knows, litigation strategy often requires pursuing any
and every avenue of legal recourse that may benefit the client. So as a court, we see
constitutional challenges brought before us that juxtapose Islamic law issues with so
many others. In this sense, then, it is worthwhile to recognize that Islamic law-
based constitutional claims are simply one among a panoply of possible consti-
tutional claims that are pleaded to the court on each and every case.
The jurisprudence of the Egyptian Supreme Constitutional Court on Islamic law
issues has been addressed extensively by scholars in the field,1 and I will only offer a
brief overview here. In its most basic form, the constitutional theory on Islamic law
proceeds as follows. In Islam, there are certain things that are essential, core values
that are known without any doubt. These values or core principles are what the
Court considers qat‘iyyat, or namely those things known with certitude. Beyond
those core values that we know with certitude are others that are posited as a matter
of law, but without a claim to being core values. These latter provisions reflect the
kind of day-to-day details of any legal system, whose legal doctrines are subject to
legitimate disagreement and dispute. These we call the zanniyat, or those whose
authority and value are based on something less than certainty. Consequently,
when the Egyptian constitution upholds the primacy of Islamic law in its Article 2,
1 See for instance, Clark Lombardi, State Law as Islamic Law in Modern Egypt: The Incorporation of
the Shari’a into Egyptian Constitutional Law (Leiden: Brill, 2006); Nathan Brown, The Rule of Law In
the Arab World: Courts in Egypt and the Gulf (Cambridge: Cambridge University Press, 2007).
Commentary: Shari‘a as Rule of Law 117
it is upholding the primacy of these clearly known core values that lie at the center
of Egyptian society. If those values are violated, a breach of the Constitution has
occurred. Anything less than a violation of these clear, core values does not
constitute a violation of Islamic law under the Egyptian Constitution. Rather,
anything else is viewed as a realm within which the legislature has space to govern
accordingly.
As an example, one case brought before the court in the 1990s raised the
question of whether the Egyptian legislature could issue an order stating that girls
were not permitted to enter the state schools wearing a particular form of head-
covering, namely the niqab. The niqab is a form of covering by which the girl’s face
is covered from the chin to the nose, leaving the area around the eyes bare. A father
brought suit against the government, charging that the ban on his daughters from
attending school if they wore the niqab violated Islamic law, and thereby was
unconstitutional. The Court held that the constitutional provision protecting
Islamic law applied to those core values that are essential and on which there is
no doubt. In this case, that core value was deemed to be modesty. However, what
was subject to debate was how to manifest modesty. The particular means by which
modesty is given effect under Islamic law is subject to debate by both premodern
jurists as well as modern voices on all sides of the debate regarding law, religion, and
gender. The Court held that while the core value of modesty could not be violated,
the particular manner in which modesty is upheld is subject to dispute. Conse-
quently, the legislature had the authority to legislate as it did, on the theory that it
regulated the forms of acceptable veiling within the realm of what falls within the
core value of modesty.2
This jurisprudence draws upon various features of Islamic legal theory. For
instance, the Qur’an, 3:7 writes about how there are some verses that are clear
and decisive (muhkamat), those being the mother of the book (umm al-kitab).
Other verses, though, are less clear, and subject to ambiguity (mutashabihat). Those
are, by implication, not part of the ‘mother of the book’, or what we might call the
verses that express clear and core values. One debate among premodern jurists was
whether one should nonetheless embark upon interpreting the ambiguous verses or
should refrain from considering them entirely. The jurist and philosopher Ibn
Rushd seemed to think that the ambiguous verses are there for investigation, but
only by those endowed with great knowledge.
Premodern Muslim jurists also distinguished between core values that are not
subject to debate (usul ) and those more peripheral issues that are subject to debate,
disagreement, and diverse positions (furu‘ ). They held that any matter deemed an usul
could not be subjected to interpretation or dispute. Those that were furu‘, however,
could be disputed, debated, and even revised later if new evidence came to light.
Of course, how one distinguishes between the usul and the furu‘ is a matter of some
interest for this commentary. Not unlike the qat‘iyyat/zanniyat distinction, where one
2 For more on this case, see Killian Balz, ‘The Secular Reconstruction of Islamic Law: Egyptian
Supreme Constitutional Court and the “Battle Over the Veil” in State-Run Schools’ in B Dupret et al
(eds), Legal Pluralism in the Arab World (The Hague: Kluwer Law International, 1999), 229–43.
draws the line is a matter of at times philosophical speculation, but also practical
necessity given the real need to resolve a particular dispute before the court.
Even more than early Islamic parallels, the approach of the Egyptian Consti-
tutional Court is not entirely distinct from that of other courts that are similarly
tasked to address complex issues of core values. Legal systems around the world
share similar approaches to constitutional matters. In the United States of America,
these core values and principles might be those enshrined in its Bill of Rights. In
Canada, the Charter of Rights and Freedoms stipulates a series of fundamental and
democratic rights, which are subject to possible limitation under section 1, which
states: ‘The Canadian Charter of Rights and Freedoms guarantees the rights and
freedoms set out in it subject only to such reasonable limits prescribed by law as can
be demonstrably justified in a free and democratic society’. Similar limiting provi-
sions accompany the European Convention on Human Rights, which provides for
fundamental freedoms but limits their scope pursuant to limits that are necessary in
a democratic society in order to preserve public order and safety. In all these cases,
we can claim that certain ideas, concepts, and values are core to a society. But what
those core values mean and how they play out in a given situation is a different
matter for courts to decide, given the facts of a particular case and the institutional
role the court plays in its polity. Core values do not apply in an all-or-nothing
fashion. They are subject to interpretation in light of the claims of the parties before
the court, the institutional powers of different branches of government, and the
law’s commitment to ensuring that the cultural values that form the backdrop to a
legal system remain respected without at the same time violating the rights of those
who might otherwise differ or dissent. The process of adjudicating core values in a
constitutional setting, whether those values are Islamic or otherwise, is no easy
matter, and requires careful consideration of a multitude of issues.
B. Islamic law, human rights, and rule of law
Having been part of this project for many years, it strikes me as immensely sensible
to subject both traditions—Islamic law and human rights law—to scrutiny in light
of the various demands and pressures that arise in the process of governing.
Whether Islamic law arises in the form of a constitutional provision, legislated
statutes, or judicial decisions, the fact remains that it is part and parcel of a larger
system of governance. In this sense, rule of law offers an important development in
the study of Islamic law. Certainly we see how the doctrines of Islamic law pepper
the pages of newspapers and policy reports for human rights organs. We see how a
narrow focus on Islamic legal doctrines contributed to the ideas and values in the
1,500 page manifesto of the Oslo, Norway terrorist Anders Breivik. What such
reports, news accounts, and terrorist manifestos miss is that Islamic law is not
merely comprised of doctrines in the abstract—particular legal rulings that are
given an unflinching all-or-nothing application. Rather those doctrines were part of
a system that no longer exists, but which in some narrow fields gives content to a
modern state rule of law system that operates differently from what transpired in
Commentary: Shari‘a as Rule of Law 119
the past. Rule of law, therefore, provides an important framework for thinking
through the dynamics of law generally, and Islamic law specifically, and how the
distance between the past and the present demands fresh analysis of the intersection
between governance and Islamic law in the modern Muslim state.
This is no less true for institutions of law that must adjudicate human rights
claims. As more and more human rights norms become legislated through conven-
tions or domestic statutes, attention to such institutional adjudications will illu-
minate the complexity of governing. Indeed, as we see throughout this volume,
defining the explicit content of a human right is not always an easy matter. In the
world of minority rights protections, ambiguity remains about what it means to be
a minority, and whether and how a group can claim a right at all, when rights are
often understood as tied to the claims of individuals as against the state. The right
to religious freedom, as Urfan Khaliq shows in Chapter 10, was never an agreed
upon right when first drafted into the UDHR, and remains an ongoing issue of
debate and dispute. This does not necessarily mean that the idea of religious
freedom, at its most abstract, is false or in some way without any validity. It just
means that, in the process of adjudicating a particular claim in a specific context,
how the right will be applied is not determinate. Introducing the concept of ‘rule of
law’ offers us a chance to appreciate where and how Islamic law and human rights
law contribute to the often difficult task of governing.
C. The challenges ahead
The challenges that I wish to address fall into two categories. The first pertains to
those facing the Muslim world and their implications for the ongoing debate about
Islamic law and human rights. The second pertains to the project which has given
rise to this book, attempting to find ‘common ground’ between international
human rights law and Islamic law, and what might be the next steps for further
research and development.
Concerning the first, there is no doubt that the world is watching the Arab world
right now. Whatever one calls the events since January 2011—a spring, a revolt, or
a revolution—the fact remains that things are changing in the region, and it is too
early to determine what will ultimately arise. But what we know from the past is
that certain Muslim states are caught in the cross-hairs of human rights advocates
who are concerned about how such states balance between ensuring public order
and protecting basic, individual rights. No system is without its faults; no system is
perfect. Certainly modern Muslim regimes, no less than their Western counter-
parts, continue to work toward a greater sense of fidelity to the demands of the
people over which they rule. The trajectory toward increased accountability and
transparency is becoming ever more powerful as the internet and other forms of
global media offer both government officers and activists new tools for dissemin-
ating and demanding information about the government’s state of affairs. A second
trajectory, toward increased global cooperation, is also one that is ignored at a state’s
peril. For instance, that members of different national judiciaries can exchange
information and ideas about rule of law, the judicial process, and the features of
judicial review has become nearly commonplace. The same can be said of legal
scholars, legislators, and other government officers who participate in information
sharing about the challenges of governing. Exchanging information and perspec-
tives at global fora is an increasingly important feature of governing effectively, and
one which the Muslim world has been, and must continue, encouraging amongst
its governing leaders and citizenry. A global engagement makes possible a shared
sense of commitment to certain ideals of governance that will, of course, take shape
in distinct and nuanced forms when applied to a particular region or state.
Consequently, while we may be able to sit together and agree on core values of
an abstract nature, the demands and imperatives of governing distinct and different
contexts require a degree of collective latitude in making shared international values
manifest in any particular part of the world.
As for where the project should go—that is a different question entirely. First,
the fact that the idea of ‘common ground’ is itself questioned and interrogated is an
immense improvement over and above the state of affairs that prevails in most
sectors when discussion turns to Islam and human rights. To recognize that both
traditions—Islamic law and human rights—are part of ongoing governing pro-
cesses is an important recognition that shifts the dialogue and conversation to new
ground upon which more productive work can begin. So in this one development,
the project deserves to be heralded as a paradigmatic breakthrough. Secondly, the
institutional partners in this project have modeled for us how any discussion about
Islamic law and international human rights can and must involve multiple sectors
of society, spanning the academic, the legal, civil society, and government, each
bringing their equally important and often distinct perspectives to bear on ques-
tions of great import. While there is no single way forward, these two features
showcase an important paradigm of ongoing and future debate and engagement.
PART II
FREEDOM OF SPEECH
The protection of speech has been a flash-point in the debate regarding human
rights and Islamic law over the last decade. The 2006 Danish Cartoon controversy,
which featured global protests, economic boycotts, and even death threats against
the artists, sparked serious debate in the public and scholarly realms about whether
and to what extent Islamic law protects freedom of speech. Commentators across
North America and Europe were outraged at what seemed a violation of a
fundamental freedom and human right, and envisioned a battle ground between
those of ‘us’ who cherish freedom, and ‘others’ who do not. For instance, Daniel
Pipes writing in the Jerusalem Post asked: ‘Will the West stand up for its customs
and mores including freedom of speech or will Muslims impose their way of life on
the West? Ultimately there is no compromise; Westerners will either retain their
civilization including the right to insult and blaspheme or not.’1 To posit such a
stark contrast between ‘us’ and ‘them’ ignores the way in which ‘speech’ is not only
a category of protection, but also an act that remains subject to considerable
regulation across various societies for different reasons. Those reasons vary
depending on the region and their respective histories. For instance, it is not
unusual to find that European states criminalize Holocaust denial. Nor is it unusual
to find penalties for what various jurisdictions call ‘hate speech’. While speech is a
highly protected category of human activity in democratic societies, it remains
nonetheless a site of legal regulation. Why this regulation exists and how societies
seek legally to limit certain aspects of speech is the subject of Part II of this book.
Legitimate legal regulation on freedom of speech begs a number of questions that
the essays and commentaries in Part II seek to address. They situate the protection
and regulation of speech in terms of concerns about order, security, and well-being,
and review the considerations that matter most when considering the scope of the
freedom to speak and dissent and the basis by which that freedom is limited.
Whether in the premodern Islamic context or the constitutional tradition of
modern democratic states, speech continues to remain a site of intense legal debate
about the legitimate reasons for limiting the freedom to speak. Additionally,
the juxtaposition of the essays by Nehal Bhuta and Intisar Rabb should prompt
1 Daniel Pipes, ‘We are all Danes Now’, Jerusalem Post, 7 February 2006, p 14.
122 Freedom of Speech
the discerning reader to ask why certain practices count as speech acts, why others
are categorized as religious practice, and what justifies the distinction. As a transi-
tion from the more general introduction provided in Part I to the specific flash-
points of debate on Islamic law and human rights considered in the remainder of
this book, Part II provides a bridge helping us to gain analytic purchase on the
concept of ‘clearing ground’.
7
Rethinking the Universality of Human
Rights: A Comparative Historical
Proposal for the Idea of ‘Common
Ground’ with Other Moral Traditions
Nehal Bhuta
‘The true principle is taught not by jurisprudence, but by history.’1
A. On common ground
What might it mean to inquire into the common ground between Islamic legal
thought and practice, and the law and practice of international human rights? One
approach to common ground is axiological: we start from premises about the
underlying rationale or purposes of these rules and principles, and identify common
values and purposes by deduction or induction. From these underlying values, we
argue for converging or overlapping interpretations of both bodies of law where we
can find them; and where we cannot, we might argue that one body of rules should
be reformed or re-interpreted in a manner which privileges those values more likely
to be deemed ‘in common’ with the other. That is, where the prospects for
commonality are strained, one or both bodies of law and practice are called upon
to marginalize, diminish, or even exclude altogether potentially incommensurable
rules and practices.
The search for an overlapping consensus—and the pushing to the margins of
those rules, practices, or values that are difficult to assimilate—is a well-understood
strategy of political liberalism. But several difficulties immediately present them-
selves. First, there is the difficulty of determining what the underlying values or
principles inherent in legal rules and practices are. A claim as to what are the
fundamental values and norms of a legal system is highly contestable; indeed, the
settlement of such contestation invariably presupposes either an authoritative claim
1 Georg Jellinek, The Declaration of the Rights of Man and of Citizen: A Contribution to Modern
Constitutional History (Westport: Hyperion, 1901), 97.
to interpretation on the part of some actor or institution, or a relatively stable
community of interpretation which can resolve contending interpretative positions.
But of course, in real world political and social contexts—where norms, insti-
tutions, and agents are the products of specific and often contingent histories and
power formations, and in which norms and values are always contested as part of
unfolding conflicts over social, political, and economic power—these conditions
seem unlikely to be met. Indeed, the very claim to fix the essential meaning,
purpose, or meta-values of legal rules and practices is likely to be a polemical and
highly political assertion of authority.
Secondly, the question of which norms, values, and practices are dispensable
or intolerable in the search for common ground is likely to quickly devolve into
the question of how to hierarchize the norms and values most deserving or worthy
of inclusion in a common frame. Again, it seems to me that this is a matter not
simply of hermeneutics and interpretive charity, but of which institutions and
actors assert the authority to determine the set of meta-values or the quasi-
transcendent vantage point from which the space of the common is inscribed.
The struggle over whom or what defines the vantage point of neutrality—from
which other rationalities and normative orders can be evaluated, hierarchized, and
deemed tolerable or intolerable—is irreducibly a question of politics, power, and
history. As William Connolly points out, a powerful and consistent feature
of contemporary secular liberal political thought (a feature which betrays its origins
as political theology) is the imperative to occupy the authoritative place of political
discourse.2
Hence, on one understanding the search for common ground resolves itself
all too easily into an unarticulated liberal strategy of hypostasis or reification of
a historically specific political order. The conceit of this reification is that it
represents a vantage point of epistemic neutrality above history, politics, and
culture, from which other histories and political formations can be marked as
either tolerable (assimilable, non-recalcitrant, redeemable, universalizable) or in-
tolerable (barbaric, inhumane, backward-looking, pure particularity). As Uday
Mehta argues in Liberalism and Empire,3 these kinds of intellectual strategies and
frameworks were constitutive of the imperial liberal project in India. In the present,
the ‘buried order of politics’ which underlies the demand for ‘common ground’
might well reenact these dynamics. Wendy Brown argues that contemporary
liberalism’s self-representation as separable from political power, by its assertion
of the universality of certain political forms (rule of law, human rights, good
governance), is also what makes it peculiarly suited to the legitimation of imperial
state action.4
2 William Connolly, Why I am Not a Secularist (Minneapolis: University of Minnesota Press,
1999), 30–2, 38–9.

3 Uday Mehta, Liberalism and Empire: A Study in Nineteenth Century Liberal Thought (Chicago:
University of Chicago Press, 1999).

4 See generally Wendy Brown, Regulating Aversion: Tolerance in the Age of Identity and Empire
(Princeton, NJ: Princeton University Press, 2006).

Rethinking the Universality of Human Rights 125
B. The contemporary historicity of human rights
The puzzle for me, then, is how to approach the question of common ground
without simply reenacting this imperative, one which has in my view disturbing
political effects in the way that it constructs the problematique. Can we think of
human rights and Islamic legal norms and practices in a manner which does not
replicate these dynamics? In this essay, I suggest that a fruitful approach to the
question of common ground is to start not from comparative axiological lists of
values and norms, but to engage in comparative histories of the present configur-
ations of norms and values. Rather than take one set of principles as the universal
norms (purportedly transcending culture and political power) to which other values
must be assimilated or acculturated, we relativize both sets of values by trying to
grasp their meaning and social significance within specific historical formations of
politics, place, and power. As Jellinek observed in 1901, ‘no theory, no matter how
abstract it may seem, which wins influence upon its time can do so entirely outside
the field of historical reality’.5 The common ground which may be rendered
possible by such an approach reveals itself only after competing claims to transcen-
dental authority are dethroned and shown to be merely human stories of claims
provoked by very particular disagreements and conflicts over political power and its
forms. Such a common ground is obviously not an ‘unforced consensus’, and may
not even become the basis for one. But it might amount to a ‘clearing in the forest’
in which critical and reflexive self-understandings might find a place; where
comparative understandings can encounter one another, rather than comparative
righteousness.
What would a comparative history of modern rights and contemporary human
rights tell us? Too many histories of human rights6 meet Butterfield’s definition of
the Whig conception of history,7 wherein the contemporary significance of human
rights is understood as the culmination and apotheosis of 17th and 18th century
rights-claims (natural rights and rights of man), 19th century condemnations of
abject suffering (abolitionism, humanitarianism), and 20th century struggles for
national independence. All roads, it seems, lead to New York, Geneva, and
Helsinki. Teleologies are seductive, of course. They provide coherence and clarity
to the messiness of history; they provide appealing foundations for our self-
understandings in the present; they are comfortable and comforting organizing
frames of reference. Instead of a foul rag and bone shop, history in this lens is a far
more usable past, one that helps underwrite and rationalize the necessity and
5 Jellinek, The Declaration of the Rights of Man and Of Citizen, 97.

6 See eg Lynn Hunt, Inventing Human Rights: A History (New York: Norton, 2007); Micheline
R Ishay, The History of Human Rights: From Ancient Times to the Globalization (Berkeley and Los
Angeles, CA: University of California Press, 2004); Paul Gordon Lauren, The Evolution of International
Human Rights (2nd edn, Philadelphia: University of Pennsylvania Press, 2003); Elizabeth Borgwaldt,
The New Deal for the World: America’s Vision for Human Rights (Cambridge: Harvard University Press,
2005).
7 Herbert Butterfield, The Whig Interpretation of History (New York: Norton, 1965), 195.
desirability of our convictions in the present. Yet it is precisely these histories that
efface and obstruct the possibility of a common ground in the sense discussed.
Teleologies rationalize and naturalize the present as a could-not-be-otherwise. ‘The
real is rational’, as Hegel once put it. But what of those whose present looks very
different to our own? Have they somehow missed a signpost or crossroads, taken a
wrong turn? Or can we locate their present as our past, reflecting an incomplete or
unfinished unfolding of rational forms? Teleologies allow us some basis to think
that we might judge (with greater or lesser confidence), which side of history we are
on. As such, they mesh easily with one of the features claimed for contemporary
liberal thought above: a proclivity to occupy the authoritative place of political
discourse.
In the last few years pioneering and illuminating scholarly work has begun to
challenge teleological histories of human rights.8 By taking intellectual history and
the history of ideas seriously, a different account of how human rights ‘came to the
world’ has emerged: instead of a cumulative and ever-more inclusive concept of the
human, or an immanent critique of exclusion fostered by the idealizing suppos-
itions of natural right, we can observe multiple, discontinuous, and fragmentary
histories of right. The catalogue of rights found today in the Universal Declaration,
the Covenant on Civil and Political Rights, or the Covenant of Economic and
Social Rights represent a word-smithed bricolage9 of rights-claims derived from
heterogeneous traditions and specific political projects: early modern toleration,
early modern charters of liberties, the age of democratic revolution, the completion
of the bourgeois rechtstaat, the new laborist movements of the late 19th century,
and decolonization struggles. As Samuel Moyn summarizes, ‘the history of the
values now protected as today’s individual rights . . . documents a vast and compli-
cated set of warring tendencies, dead projects and accidental contributions’.10 To
look now for core values seemingly common to all of these dead projects is to
engage in yet another reinvention, and should be understood as a new project rather
than a renewal of an older one. The idea that the contemporary discourse of rights
could be a free standing and universal framework for much of politics (and political
disagreement) ‘is a very recent idea indeed’.11 And if this discordant, discontinuous
history of rights claims suggests any common themes, it is that ‘proposing a
particular set of rights is always a strategic decision . . . [There are] no real grounds
for speaking of rights in a way that is independent of the contingent, shifting
8 Samuel Moyn, The Last Utopia (Cambridge: Belknap Press at Harvard University Press, 2010);
Jan Eckel, ‘Human Rights and Decolonization: New Perspectives and Open Questions’ (2010) 1(1)
Humanity 111; Nicolas Guilhot, The Democracy Makers. Human Rights and the Politics of Global Order
(New York: Columbia University Press, 2005); Mark Mazower, No Enchanted Palace: The End of
Empire and the Ideological Origins of the United Nations (Princeton and Oxford: Princeton University
Press, 2009).
9 See Urfan Khaliq’s careful discussion of the drafting of the religious freedom provisions of the
UDHR and ICCPR in Chapter 10 of this volume. On ‘word smithing’ and human rights documents,
see Sally Merry, Human Rights and Gender Violence (Chicago: University of Chicago Press, 2006).
10 Moyn, The Last Utopia, 20. See also Raymond Geuss, History and Illusion in Politics (Cambridge:

11 Geuss, History and Illusion in Politics, 132.
conjunction of political expediency, institutional convenience and our moral views

and feelings.’12
Grasping the historicity of contemporary human rights thus also entails some
rather specific inquiries into the contexts and institutions in which human rights
claims and practices are articulated and shaped.13 What kinds of politics are being
carried today in the capacious tub of human rights? Just as there cannot be a single
normative logic uncovered in the uses of rights in history, nor should we expect any
singular political project to be obvious or necessary in human rights today. Indeed,
the very pervasiveness and proliferation of human rights today reflects in part its
status as a post-utopian utopianism,14 apparently transcending the politics of left
and right while somehow holding out the possibility that practically all political
concerns and dissatisfactions might be reformulated and addressed in human rights
terms. But the suprapolitical status of human rights claims—the tendency to
invoke them as though they were at once beyond, and a limit to, politics—is itself
a feature of human rights’ distinctive political usage (and perhaps even a reason for
their success).15 The diverse and at times inconsistent political projects (humani-
tarian relief, development, anti-trafficking, political liberalization, to name but a
few) collected under the contemporary uses of human rights need to be parsed and
disentangled, and the distinctive historical trajectory of how such politics came to
deploy the language of human rights must be grasped.
This scholarship is only now beginning in earnest, and is complicated by the fact
that these developments are both novel (perhaps less than three decades old) and
changing rapidly before our eyes. Eckel proposes16 a ‘polycentric, ambiguous and
discontinuous’ history of human rights since 1940: ‘The development of human
rights politics between the 1940s . . . and the end of the century was a fitful and
multi-faceted process, full of complexities to which linear narratives . . . cannot
possibly do justice . . . [T]he political contexts in which human rights politics
occurred were manifold. The early Cold War, decolonization, détente, and the
confrontation between the global North and South all established distinct precon-
ditions for the success and failure of human rights claims—and for their very
meaning.’17 For Eckel and other scholars of a ‘new history’ of human rights,18
the emergence of human rights as a lingua franca of international relations dates to
the 1970s, and reflects the confluence of quite different political processes and
12 Geuss, History and Illusion in Politics, 149. See also Moyn, The Last Utopia, 32, ‘the main
consequence of the availability of rights in domestic politics was to enable internal competition of
various constituencies . . . ’.
13 Exemplary in this regard are Merry, Human Rights and Gender Violence; and Harri Englund,
Prisoners of Freedom: Human Rights and the African Poor (Berkeley: University of California Press,
2006).
14 Moyn, The Last Utopia.
15 Martti Koskenniemi, ‘Mainstreaming as a Strategy for Institutional Power’ (2010) 1(1) Human-
ity 47.
16 Jan Eckel, ‘Human Rights in Global Politics, 1940–2000: Seven Arguments for a Polycentric,
Ambiguous and Discontinuous History’ unpublished.

17 Eckel, ‘Human Rights and Decolonization’, 2.
18 Moyn, The Last Utopia; Guilhot, The Democracy Makers.
historical experiences. The rise of human rights as a language of social movement
parallels the decline of Western protest movements of the 1960s, and a disillusion-
ment by political activists with revolutionary aims of ‘changing the system’ and
with the polarization of politics.19 It also coincides, propitiously, with the decline of
direct confrontation by Eastern European dissidents with Soviet regimes, and a
turn to demands for concrete reforms framed in the language of rights. In Latin
America—experiencing a new wave of authoritarian rule from the late 1960s—the
language of human rights provided a ‘common political counter-language’ for a
diverse group of left-leaning, conservative, and religious groups to criticize military
abuses and demand transition to democracy.20 Latin American states, particularly
Chile, became the subject of unusually consistent scrutiny by hitherto quietist
United Nations’ human rights bodies, such as the Human Rights Commission.21
In the United States, the Carter Presidency’s embrace of human rights was
momentous, consecrating human rights principles as relevant to US foreign policy
formulation. Quite separate from the question of whether Carter’s foreign policy
implemented human rights principles, the elevation of human rights to a foreign
policy objective of the United States—and the creation of a bureau within the
Department of State charged with monitoring human rights practices worldwide—
represented an important moment in contemporary history of human rights
politics. As Nicolas Guilhot has shown, a distinctly legal and pluralist approach
was taken by Carter government appointees to defending and promoting the
universal applicability of human rights norms—an approach which relied upon
the methods and techniques of an international legalism, and which emphasized
the formal-legal (rather than substantive) universality of human rights claims:
[H]uman rights [were] seen as a matter of international law: human rights are immediately
international human rights . . . As Patricia Derian [first Assistant Secretary of State for
Human Rights] said, ‘our definition of human rights is dictated by international law.’
[T]o the extent that they are universal and premised on international law, human rights
recognize the juridical equality of states. In other words, human rights do not discriminate
between political regime: they are ideologically neutral.22
The claims of legal universality and ideological neutrality for human rights pro-
vided a ready defense to the charge that evaluating the political conduct of other
states under these standards was mere power politics. The assertion of human rights
as a legalist anti-politics also suited the emerging Eastern European dissident
movement’s critique of Soviet state policies: as Havel urged in his famous 1975
open letter, the Soviet regime ‘pretends to respect human rights’, and dissidents
19 Moyn, The Last Utopia; see Stephen Hopgood, Keepers of the Flame (Ithaca: Cornell University,
2006); Moyn, The Last Utopia, 73–104.

20 See Yves Dezalay and Bryant G Garth, The Internationalization of Palace Wars: Lawyers Econo-
mists and the Contest to Transform Latin American States (Chicago: Chicago University Press, 2002).
21 See discussion in Christian Tomuschat, Human Rights between Idealism and Realism (2nd edn,
Oxford University Press, 2008) for an account of how the new procedures developed in the Human
Rights Commission for scrutiny of Chile’s human rights record in the 1970s.
22 Nicolas Guilhot, ‘Limiting Sovereignty or Producing Governmentality? Two Human Rights
Regimes in U.S. Political Discourse’ (2008) 15(4) Constellations 502 at 505–6.

could reply through ‘persistent and never-ending appeal to the laws’.23 Under the
framework of the Helsinki Accords, both sides of the Cold War divide accepted the
formal applicability of human rights standards to their domestic politics, reinfor-
cing a vague but powerful sense that human rights were beyond or above mundane
politics while also addressing the concrete circumstances of individual injustices.
The late 1970s is thus rightly regarded as a critical turning point in the
emergence of human rights in international politics. The extent to which the idea
of human rights—underdetermined, overreaching, and vague as it was—became
part of debates over international politics can be seen in the contestation of the term
by neo-conservative figures in the 1980s. As Foucault observed, the consolidation
of a mode of discourse may be evident in the extent to which it becomes the basis
for tactical adversarial positions.24
Neo-conservative figures (Elliot Abrams and Charles Fairbanks) now led
Reagan’s human rights bureau, while at the UN, the United States was represented
by Kirkpatrick, Gershman, and Plattner. At stake in trying to establish the meaning
of human rights was whether human rights language and ideas could be understood
not as legalistic constraint on US foreign policy, but as a way of further justifying
the assertion of US national interests in world politics. In contrast to the inter-
national legalism of the first human rights officials of the United States, Reagan
government officials and intellectuals rejected international law based human rights
standards as insufficiently certain and excessively formalistic. But this was not
tantamount to a rejection of human rights per se. Rather, the value of human
rights principles was grasped by understanding them as the political morality of a
liberal democratic constitutional order: ‘The struggle for human rights, far from
being, as Carter and his aides proclaimed, indifferent to political systems, is
fundamentally a struggle about political systems,’25 Fairbanks would write in
1980. ‘We have a right to say: what increases the power of the United States and
the respect in which they are held is good for human rights’. Kirkpatrick similarly
argued ‘there is no conflict between a concern for human rights and the American
national interest as traditionally conceived’.26 The true realization of human rights
meant democracy promotion, political liberalization, and of course, firm deterrence
of Soviet and communist expansion during the Second Cold War (1982–1989).27
23 Vaclav Havel et al, The Power of the Powerless (Armonk: Palach Press, 1985) cited in Moyn, The
Last Utopia, 162–3.

24 ‘If different subjects are to be able to speak, to occupy different tactical positions, and if they are
to be able to find themselves in mutually adversarial positions, there has to be a tight field . . . The
tactical reversibility of the discourse is, in other words, directly proportional to the homogeneity of the
field in which it is formed’ Mauro Bertani and Alessandro Fontana (eds), Society Must be Defended,
trans David Macey (New York: Picador, 2003), 208.
25 Joshua Muravchik, The Uncertain Crusade: Jimmy Carter and the Dilemmas of Human Rights
Policy (Hamilton, 1986) cited in Guilhot, ‘Limiting Sovereignty or Producing Governmentality?’, 509.
26 Charles Fairbanks, Designing a New Human Rights Policy for the Reagan Administration (The
President-Elect’s Transition Office, unpublished document (Washington, DC, 1980), and Jeanne
Kirkpatrick, ‘Human Rights and American Foreign Policy’ (1981) 72(3) Commentary 42, cited in
Guilhot, ‘Limiting Sovereignty or Producing Governmentality?’, 509.
27 See Odd Arne Westad, The Global Cold War: Third World Interventions and the Making of Our
Times (Cambridge: Cambridge University Press, 2005), ch 9.

Human rights could not be politically or ideologically neutral, but represented the
achievements of liberal democracy. To promote human rights, it was not enough to
focus narrowly on concrete violations under the international legal definitions. One
should promote those forms of political organization (or re-organization) and
political legitimacy conducive to the realization of human rights.28 Despite their
rise in the 1960s among activists and dissidents as an antidote to polarizing
demands for systemic change and as a way of highlighting specific cases of suffering,
by the 1980s one meaning associated with human rights in official discourse linked
it clearly with the achievement of a specific kind of political regime.
Thus, by the end of the Cold War, two distinct conceptions of politics were
circulating under the idea of human rights: one rooted in the formal international
legal status of human rights treaties and governed by the logic and conventions of
legal interpretation, cautiously agnostic concerning modes of political legitimacy
and regime type; and the other emphasizing a deformalized understanding of
human rights as substantive values of global political justice, a set of standards to
evaluate not only specific violations but the legitimacy of states and regimes as a
whole. By the early 1990s, these two faces of human rights discourse coexisted, at
times uneasily. Some attempts were made to argue that human rights law now
incorporated a right to democracy,29 and that international law itself should
be properly understood (as a condition of its efficacy) as addressed to liberal
democratic regimes.30 However, as legal claims, these arguments remained contro-
versial and did not achieve widespread acceptance among the ‘invisible college’ of
international lawyers.31 Nonetheless, in the international policy language of high-
level United Nations’ reports, it is striking to observe the interspersing of claims
very similar to the 1980s neo-conservative argument that human rights required
democratic regimes for their true realization:
While differences in the economic, social, cultural and historical circumstances of the world’s
societies mean that differences will continue between democracy as viewed by one society and
democracy as viewed by another, democracy is increasingly being recognized . . . as essential to
the protection of human rights.32
This subsumption of human rights into a broader assertion concerning the
necessity and desirability of democracy was also echoed in the practice of the
28 See eg US Department of State, Human Rights Report, Bulletin Reprint (Washington, DC: US
Department of State Bureau of Public Affairs, 1981), 5.

29 Most notably Thomas Franck, ‘The Emerging Right to Democratic Governance’ (1992) 86 Am
J Int’ L 46; and Antonio Cassese, Self-Determination (Cambridge: Cambridge University Press, 1995),
but also Gregory Fox, ‘Right to Political Participation in International Law’ (1992) 17 Yale J Int’l
L 539.
30 Famously, Ann Marie Slaughter, ‘International Law in a World of Liberal States’ (1995) 6 Eur
J Int’l L 503–39. See Jose Alvarez’s critique in ‘Do Liberal States Behave Better’ (2001) 12(2) Eur J Int’l
L 183–246.
31 Chris Reus-Smit, ‘The Strange Death of Liberal International Theory’ (2001) 12(3) Eur J Int’l L
573–93; see also the debate in Gregory H Fox and Brad R Roth (eds), Democratic Governance and
International Law (Cambridge: Cambridge University Press, 2000).
32 Report by the United Nations Secretary General, An Agenda for Democratization, UN GAOR,
51st Sess, UN Doc A/51/761 (1996), 6.

Security Council. With the dramatic rise of peacekeeping missions authorized by

the Council, and the expansion from peacekeeping to state-building and direct
territorial administration (Cambodia, East Timor, Kosovo), the Security Council
began referring regularly to democracy and human rights as means of fostering
reconciliation, ensuring peace, and assisting reconstruction after civil war.33 In this
iteration, human rights and democracy became palliative techniques of politics;
means to the end of international peace and stability. A slightly earlier (1980s)
iteration of human rights in international politics—one which had underscored
state sovereignty through the demand for a collective right to development by third
world governments—receded from view, and instead human rights principles now
informed post-intervention strategies aimed at producing stable, new, political
regimes. While international law did not embrace a ‘right to democracy’ or accept
democratic regime change as a valid grounds for intervention, it became accepted
that a limited set of grave human rights violations (genocide, crimes against
humanity, ethnic cleansing, and war crimes) could be a cause for intensified
international scrutiny of governmental conduct,34 demands for political reform,
and possible military action as a last resort.35 Human rights violations have become
increasingly used as a proxy for the legitimacy and effectiveness of a government
regime, and thus also as part of the evaluation of the state’s propensity for conflict,
instability, and failure. It is not strictly true to say that sovereignty has become
conditional upon human rights,36 but human rights has been increasingly associated
with the functionality and effective sovereignty of a government’s claim to rule. As
such, we seem to be at somewhat of a halfway house between the cautious legalism
of the 1970s and the neoconservatives’ promotion of democratic liberalism through
human rights.
Just as in the past, there is no singular politics of human rights today. There are a
collection of warring tendencies and potentialities. In my brief sketch above, I have
omitted one other important tendency: humanitarianism and the concern for the
abject suffering of others. As Moyn rightly argues, this is a quite distinct inter-
national movement, traceable to the anti-slavery and ‘moral hygiene’ movements of
19th century America and Europe. It presupposes an unmediated relationship of
affect (sympathy, compassion, pity) between the cultivated sentimental witness and
the suffering stranger, who are brought into this relationship by various media—
narration, journalism, advocacy, and spectacles of atrocious suffering (camps, mass
graves, mass displacement etc). The humans (victims and those who provide help)
of the humanitarian enterprise are joined to one another not by any concrete
33 See discussion in Nehal Bhuta, ‘Democratization, State-Building and Politics as Technology’ in
Hilary Charlesworth et al, Great Expectations: The Role of International Law in Restructuring Societies
After Conflict (Cambridge: Cambridge University Press, 2008).
34 Of course, great inconsistencies in the application of this scrutiny persist: Sri Lanka’s final brutal
assault on the LTTE, in which perhaps as many as 30,000 civilians died, was never placed on the
Security Council agenda or subjected to the language of ‘Responsibility to Protect’.
35 See UN Secretary General’s Report, Responsibility to Protect, GA Res 63/308, 2009, UN Doc A/
63/L. 80/Rev 1.
36 Although some take this position: see Anne Peters, ‘Humanity as the Alpha and Omega of
Sovereignty’ (2009) 20(3) Eur J Int’l L 513–44.

political or social relationship (the kind usually presupposed by effective rights
claims),37 but by the affect of ‘fellow-feeling’.38 The human of humanitarianism is
defined by an abject suffering, not a legal and political autonomy to be protected
from the state. The association of human rights with the humanitarian object of
reducing suffering and preventing atrocity is another novel characteristic of the last
20 years of human rights history. The ethos of universalist responsibility for
genocide and genocide prevention (captured by the exhortation and slogan
‘Never Again!’), and the connected rise of Holocaust consciousness, are now
inseparable dimensions of human rights politics: ‘today, human rights and humani-
tarianism are fused enterprises, with the former incorporating the latter and the
latter justified in terms of the former’.39
The purpose of these reflections on the recent history of human rights is twofold.
First, it is to underscore the claim that there can be no single account of human
rights and the kinds of politics they require, just as there is no single historical
genealogy of the concept and its deployment in various social and political conflicts.
As the pre-histories are multiple, so too are the present formations. The second
implication is that any reflection on what human rights means and requires must be
historically and institutionally situated. The question would thus be, what does the
claim of human right in this place, this time and this institutional environment,
mean, and what political purposes and functions does it further? Carl Schmitt once
observed that all political concepts have a polemical meaning: they are focused on a
specific conflict and bound to a concrete situation.40 There is no reason to think
that this would not apply to the uses of human rights language.41
C. Freedom of religion in the European Court of Human Rights:

A politics of politique and rights as regulation
The extent to which this historicizing lens assists us in laying bare the political
stakes of a given rights claim in a given context—and thus perhaps permits us to
better grasp the prospects for compromise and dialogue than an assertion of
authoritative common principles—can be explored by a sketch of the shifting
political underpinnings of the idea of freedom of religion. John Dunn points out
that in its early modern inception, freedom of conscience (and the cognate principle
of toleration) was not rooted in subjective natural right or an ideal of a sphere of
37 This is Arendt’s conception of the right to have rights. Hannah Arendt, The Origins of
Totalitarianism (New York: Harcourt, 1951).

38 See Lynn Festa, ‘Humanity Without Feathers’ (2010) 1(1) Humanity 3–27.
39 Moyn, The Last Utopia, 221.
40 Carl Schmitt, The Concept of the Political (Chicago: University of Chicago, 1996), 30. For a
somewhat related argument on the role of the innovative ideologist, see Quentin Skinner, ‘Some
Problems in the Analysis of Political Thought and Action’ (Aug 1974) 2(3) Political Theory 277–303,
294: ‘The task of the innovating ideologist is a hard but obvious one. His concern . . . is to legitimate a
new range of social actions which, in terms of existing ways of applying the moral vocabulary prevailing
in his society, are currently regarded as in some way untoward or illegitimate’.
41 See also the observation by Geuss, History and Illusion in Politics, 12.
unencroachable autonomy of the individual. It was rather advocated by its expo-

nents as ‘a discretionary concession on the part of the custodians of the state’s
absolute power; and both its scope and its limits were to be decided consistently on
the basis of [the custodians’] own best judgment of the requirements of the effective
discharge of their governmental responsibilities’.42 Even Locke’s account of toler-
ation bases its limit on state interference in individuals’ religious worship on a
principle of immunity from legal regulation, to which persons are entitled because
of the priority of their religious needs and duties (each person’s duty to save their
soul by worshiping God in the manner that he believes God requires) over secular
obligations. But even within this limited understanding, the public magistrate
retains the power to regulate and prescribe individuals’ interpretations of their
religious needs and duties that imperil the civil interests of fellow citizens. Private
and theoretical beliefs—the realm of conscience we now think of as forum inter-
num—are entitled to toleration, but the magistrate has the authority to decide
whether certain theoretical beliefs (such as atheism) could have dangerous practical
consequences for the public good if manifested: ‘it is a central responsibility of the
magistrate to watch vigilantly over potential future threats to the civil goods of his
subjects’.43 The claim to toleration was subject to the responsibility of the state to
ensure that threats to legitimate political order were contained—a preoccupation
rooted in a ‘highly self-conscious practical lesson drawn from the grim experience of
sixteenth- and seventeenth century wars of religion’.44 The intensity of this reli-
gious violence, and its scarifying effect on political thought, should not be over-
looked in our understanding of the context of the emergence of toleration and
conscience. As Hunter writes, ‘Given that faith communities were demarcated by
the border between the sacred and the profane—between true believers and the
heretical monsters—the civil conflicts that erupted across Europe assumed a
specifically religious intensity, as those one sought to exterminate were not just
political enemies but polluting threats to the sacramental community and its
capacity to communicate with God’.45
Freedom of conscience as toleration did not render the forum internum sacro-
sanct and immune from state intrusion; nor did it ascribe any particular value to the
plurality of religious views—on the contrary, it assumed that plural views about
how to achieve one’s salvation were potentially very dangerous, but the attempt to
forcefully suppress them carried with it the risk of conflict between religious
communities (and also carried with it a deep epistemological problem about how
to know which view was true). To the extent that circumscribing the state’s
regulation of worship served the interest of social peace, it was prudent. But it
42 John Dunn, ‘The Claim to Freedom of Conscience: Freedom of Speech, Freedom of Thought,
Freedom of Worship’ in The History of Political Theory and Other Essays (Cambridge: Cambridge
University Press, 1996), 100, 101.
43 Dunn, ‘The Claim to Freedom of Conscience’, 106, 109.
44 Dunn, ‘The Claim to Freedom of Conscience’, 101.
45 Ian Hunter, ‘Religious Offences and Liberal Politics: From Religious Settlements to Multicul-
tural Society’ (2005) [unpublished, archived in Centre for the History of European Discourses
Publications] at 5.
did not entail freedom to think or say whatever one pleased, in the manner which
we might today understand as captured by the idea of freedom of conscience. As
Geuss points out, it was not until the end of the 18th century that toleration came
to be construed as something other than ‘inherently negative, as a form of self-
restraint or a failure to attack with all one’s force something which it would in
principle be good to be without, but which it was perhaps too costly fully to
suppress’.46 Perhaps the earliest version of a right of liberty of conscience that
approximates contemporary notions of a sacrosanct forum internum was an esoteric
one: held by Congregationalist sects in sixteenth century England, and radically
asserting an unrestricted demand for liberty of conscience because it was ‘not
granted by any earthly power and therefore by no earthly power to be restrained’.47
The historical realization of this tenet of a branch of Protestantism awaited the
founding of settlements in the American colonies by communities of believers,
whose radical Christian individualism in part contributed to their exile from
European states. Their political community was a ‘religious community, exercising
inherent rights derived from God and recorded in the Covenants that founded the
new settlements’.48
The emergence of the right as a legally-established principle which could be
invoked to set limits for state action owed much to the colonial charters of
the American colonists and the subsequent revolutionary declarations. This iter-
ation of the concept would return to Europe in the 19th century debates over the
nature of the state, and in particular through the idea of the rechtstaat.49 As Kelly
notes, from the early nineteenth century there was ‘a movement away from
“enlightened absolutism” and toward a broadly “liberal” political theory of individ-
ual liberty . . . The traditional focus on promoting the happiness of citizens [ . . . ]
as the principal purpose of the state [ . . . ] did not disappear but was instead
modified . . . Rather than actively pursuing policies designed to show the ability of
the ruler or the prince to support the common good, the state’s purpose was
redefined and delimited according to the idea that there exists an inviolable sphere
of individual liberty into which it should not penetrate.’50
The state’s practical authority to regulate social, political, and economic life was
not radically curtailed as a result—the centrality of polizeiwissenschaft remained. But
a new emphasis on administrative procedure paved the way for arguments about
the purpose of the state and its relationship with individual right. Schmitt’s styliza-
tion of the rechtstaat ideal is helpful in grasping the distinctiveness of this thinking
(although, as with so much of his argument, the stylization aims partly to exacer-
bate a perceived contradiction between concepts in order to demonstrate that the
ideal is now defunct):
46 Geuss, History and Illusion in Politics, 80.

47 Jellinek, The Declaration of the Rights of Man and of Citizen, 60.
48 Jellinek, The Declaration of the Rights of Man and of Citizen, 74.
49 Duncan Kelly, ‘Revisiting the Rights of Man: Georg Jellinek on Rights and the State’ (2004)
22(3) Law and History Review 493.

50 Kelly, ‘Revisiting the Rights of Man’, 507. Emphasis added.
For a concept that is useful in scholarly terms, one must affirm that the basic rights in the
bourgeois Rechtstaat are only such rights that can be valid as rights prior to and superior to the
state . . . [T]he state recognizes that these rights are given prior to it and protects them on this
basis. The state also accepts that it may intrude on these rights only to a degree that is
in principle definable and then only through a regulated procedure. According to their
inner nature, therefore, these basic rights are not legal entitlements but rather spheres of
freedom . . . Under this idea, freedom of religion, personal freedom, property, right of free
expression of opinion exist prior to the state and receive their content not from any statute . . .
The state facilitates their protection and herein finds the justification for its existence.
. . . From this absolute and in principle unrestricted quality of individual freedom, it does
not follow that intrusions and limitations are completely excluded. But they appear as an
exception that is calculable, definable, and controllable according to presupposition and
content.51
The requirement that state intrusions on basic rights be calculable, definable, and
controllable is of course the echo of early doctrines of proportionality, a conse-
quence of the tension between polizei and rechtstaat concepts of the state. The
proportionality doctrine in German law emerged as an administrative law tech-
nique for scrutinizing claims of police power by the state.52 The language of natural
right was invoked to place the onus on the state to justify rights-infringing policies
as necessary for the protection of public order or the realization of public welfare, in
a context where other modes of political accountability were ineffective. Determin-
ing ‘necessity’ required an assessment of whether the state measures exceeded the
extent necessary for the specific goal related to public order, safety, or welfare. In
the ideal-typical—and perhaps caricatured—way in which Schmitt describes it, the
rechtstaatliche concept of right here is not one set of social values to be balanced
with others (security, welfare, etc) but a bedrock for the legitimacy and legality of
state action, and a horizon against which the priority, value, and expediency of
infringing state policies must be calibrated. The resulting approach to the evalu-
ation of state measures is, as a result, stricter in its notions of necessity and in the
weight it would give to the value of the infringed right.53
Modern human rights instruments, as noted above, are word-smithed docu-
ments, which develop a catalogue of rights drawn from diverse historical and
constitutional projects, leaving unresolved potential tensions within these projects.
It is my contention that in the recent freedom of religion jurisprudence of
the European Court of Human Rights concerning prohibitions on the Islamic
51 Carl Schmitt, Constitutional Theory trans by Jeffrey Seitzer (Durham and London: Duke
University Press, 2007), 202, 213. Original emphasis.

52 Iddo Porat and Moshe Cohen-Eliya, ‘American Balancing and German Proportionality: The
Historical Origins’ (2010) 8 Int J Constitutional L 263; Alec Stone Sweet and Jud Mathews, ‘Propor-
tionality Balancing and Global Constitutionalism’ (2008) 47 Columbia J Transnat’l L 74. Both of these
articles rely upon the very rich paper by Kenneth Ledford, ‘Formalizing the Rule of Law in Prussia: The
Supreme Administrative Law Court, 1876–1914’ (2004) 37 Central European History 203.
53 Stone Sweet and Mathews, ‘Proportionality Balancing’, note that in modern proportionality
analyses, necessity is disaggregated into two distinct steps: an evaluation of whether the state’s measure
is no more rights restrictive than necessary to achieve policy objective (‘least restrictive means’) and, if
the measure passes this threshold, whether the benefit of the measure outweighs the costs incurred by
the infringement of the right.
headscarf, we see a re-emergence of the two competing foundations for the idea
of freedom of religion that I have sketched above: one which values toleration and
freedom of conscience to the extent that it is conducive to civil peace and public
order (the politique conception), and the other which emphasizes the value of the
forum internum as a realm of individual autonomy that ought to be protected from
state intrusion and celebrated as a source of pluralism (let’s call this the rechtstaat
conception). Although the Court’s reasoning always involves reference to method-
ologies of proportionality and balancing, a striking feature of the cases I discuss is
that there is no discussion of whether the veil ban in each case is the least rights-
restrictive measure available to achieve the state’s objective, or whether the measure
has been factually demonstrated as strictly necessary to protect the rights of others.
Rather, the ‘balancing’ that takes place is a balancing of abstract stipulated inconsist-
encies (secularism and democracy vs the religious symbolism of the veil; women’s
equality and tolerance vs Islamic religious obligation) rather than evidentially
demonstrated in concreto conflicts of rights with other rights, or of rights with
important public interests. This highly abstract analysis is in part facilitated by the
court’s invocation of the margin of appreciation doctrine, by which it defers to
national authorities’ articulation of the domestic needs and conditions which justify
the rights-limiting laws. But the analysis, and the language through which the
competing values are framed and constructed, also betrays much about the extent
to which Islamic practices and beliefs are understood as an intrinsic or categorical
threat to public order and civil peace—regardless of whether the state limiting the
individual’s rights has demonstrated this to be the case. The reasoning accepting
limits on Islamic symbols in the public sphere is thus a reasoning that relies heavily
on a politique idea of toleration, in which the state’s authority to contain threats to
civil peace is read generously and without resort to notions such as strict necessity or
least restrictive measures. What is novel, of course, is that it is a human rights court
which is developing this articulation of state authority, through an interpretation of
a human rights instrument. Human rights, it seems, can be as much about the
empowerment and authorization of the state and its reasons, as its limitation.
The cases of Sahin v Turkey54 and Dahlab v Switzerland 55 are by now well known,
and have attracted considerable criticism of their reasoning.56 I will not rehearse all
of these criticisms here and only briefly recount the facts. Both cases were brought
by women who wished to wear the hijab, either in their place of work (Dahlab, a
Swiss primary school teacher) or at university (Sahin). Mrs Dahlab, a convert to
Islam, had commenced wearing the hijab to work in 1991 based on her belief in ‘a
precept laid down in the Koran whereby women were enjoined to draw veils over
themselves in the presence of men and male adolescents’.57 No complaints were
received from parents, but in 1996 the Directorate General for Primary Education
54 Leyla Sahin v Turkey [GC], no 44774/98, [2005] ECHR.

55 Dahlab v Switzerland, no 42393/98, [2001] V ECHR 449.
56 See Carolyn Evans, ‘The “Islamic Scarf ” in the European Court of Human Rights’ (2006) 7(1)
Melbourne J Int’l L 52; Peter Danchin, ‘Islam in the Secular Nomos of the European Court of Human
Rights’ (2011) 32 Michigan J Int’l L 2010; Khaliq, Chapter 10.
57 Dahlab, sec A para 2.
in the Canton of Geneva prohibited the applicant from wearing a headscarf in the
performance of her professional duties, on the grounds that it constituted an
‘obvious means of [religious] identification imposed by a teacher on her pupils,
especially in a public, secular education system’, violating section 6 of the Public
Education Act. Section 6 provides: ‘The public education system shall ensure that
the political and religious beliefs of pupils and parents are respected’. The Swiss
Federal Constitution states in Article 27(3): ‘It shall be possible for members of all
faiths to attend state schools without being affected in any way in their freedom of
conscience or belief ’. Dahlab appealed through several levels of government, until
her claim reached the Swiss Federal Court. The court dismissed her claim, for
reasons which will be discussed below.
Leyla Sahin also considered it her religious duty to wear the hijab. She was a
medical student at Bursa University and enrolled in her fifth year at the medical
faculty of Istanbul University. She wore the hijab during all her years of study at
Bursa, and until 1998 in Istanbul. In February 1998, Istanbul University issued an
administrative regulation prohibiting the admission to classes of students wearing
the hijab, with the result that Leyla Sahin was refused admission to classes and
examinations. She was subjected to disciplinary proceedings and was suspended for
a semester in 1999, in part due to her joining a protest against the rules on dress. In
the meantime, the regulations were appealed to the Istanbul Administrative Court,
which dismissed the complaint because the regulatory power of the university had
been exercised in accordance with the relevant legislation and judgments of the
Constitutional Courts and the Supreme Administrative Court. In 1999, Leyla
Sahin abandoned her medical studies in Turkey, and enrolled at Vienna University
in Austria.
Both women complained to the European Court of Human Rights of a violation
of their right to freedom of religion, particularly their right to manifest their
religion, under Article 9 of the European Convention. Article 9 provides:
1. Everyone has the right to freedom of thought, conscience and religion; this
right includes freedom to change his religion or belief and freedom, either
alone or in community with others and in public or private, to manifest his
religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one’s religion or beliefs shall be subject only to such
limitations as are prescribed by law and are necessary in a democratic society
in the interests of public safety, for the protection of public order, health or
morals, or for the protection of the rights and freedoms of others.
The structure of ‘rule-and-limitation’ in Article 9 (and several other rights in the
ECHR) is of course the textual foundation for the application of proportionality
and balancing by the court: state-sanctioned limits on the rights must be ‘necessary’
in the sense that they are rationally related to the protection of the legitimate
interest said to be at risk by the exercise of the right; that the measure is the least
restrictive of the right or freedom concerned (proportionality stricto sensu); and that
the diminishment of the right is not disproportionate to the value of the other
interests protected (balancing). The outcome of any given application of the
proportionality and balancing method is deeply context-dependent, a function of
stylized facts and interpretive judgments about not only how to accord weight to
competing values and interests, but also about whether and in what way the values
and interests are competing and in need of balancing. Not even the selection of the
interests and how to characterize them is self-evident, but these interpretive glosses
have decisive effects for how a proportionality analysis unfolds.58 As Kumm
concludes, ‘there is nothing particularly law-like about the proportionality test.
The test provides little more than a structure for reasoned policy-assessment . . .
Proportionality has become the lawyers’ framework to engage in policy analysis in a
way that is neither directly guided or constrained by legal authority’.59 Stone Sweet
and Mathews similarly note that ‘in balancing situations, it is context that varies,
and it is the judge’s reading of context—the circumstances, fact patterns, and policy
considerations at play in the case—that determines outcomes’.60
In Dahlab, the European Court dismissed the applicant’s claim at the admissi-
bility stage, declaring it to be manifestly ill-founded. In reaching this view, the court
relied on the margin of appreciation doctrine to conclude that the Swiss Federal
Court’s reasons for upholding the prohibition on wearing the hijab were relevant
and sufficient, and proportionate to the stated aims. It is therefore important to
consider the Federal Court’s decision. The Court understood freedom of religion as
requiring the state to ‘observe denominational and religious neutrality’, which
meant that ‘in all official dealings it must refrain from any denominational or
religious considerations that might jeopardize the freedom of citizens in a pluralistic
society . . . In that respect, the principle of secularism seeks both to preserve indi-
vidual freedom of religion and maintain religious harmony in a spirit of tolerance’ (my
emphasis). Because teachers employed by state schools are representatives of the
state, ‘it is important that they should discharge their duties . . . while remaining
denominationally neutral’. The individual’s right to freedom of religion and
manifestation of that religious belief is thus to be balanced against the state’s
interest in the principle of denominational neutrality. The question remains,
however, as to what is meant by denominational neutrality, and how a given
interpretation of the concept is to be justified. It is here that the court’s reasoning
develops a distinctively politique flavor:
The impugned decision [to ban the hijab] is fully in accordance with the principle of
denominational neutrality in schools, a principle that seeks both to protect the religious
beliefs of pupil and parents and to ensure religious harmony . . . [S]chools would be in danger
of becoming places of religious conflict if teachers were allowed to manifest their religious
beliefs through their conduct and, in particular, their clothing. [my emphasis]
58 This seems to me to be well illustrated by David Dyzenhaus, ‘Proportionality and Deference in a
Culture of Justification’ (unpublished paper archived at the University of Toronto), 28–30.

59 Mattias Kumm, ‘Internationale Handelsgesellschaft, Nold and the New Human Rights Para-
digm’ in M Maduro and L Azoulai (eds), The Past and Future of EU Law: The Classics of EU Law
Revisited on the 50th Anniversary of Rome (Oxford: Hart, 2009).
60 Stone Sweet and Mathews, ‘Proportionality Balancing’, 89.
. . . [Here] the appellant’s interest in obeying a precept laid down by her faith should be set
against the interest of pupils and their parents in not being influenced or offended in their
own beliefs, and the concern to maintain religious harmony in schools.
The requirement of denominational neutrality is thus understood to require limits
on religious attire worn by teachers because the risk that schools will become places
of religious conflict, due to offence taken by or influence exercised over pupils and
parents. There was no evidence led that Mrs Dahlab had in fact sought to promote
her religious beliefs—or even discuss them—or that any child or parent had
complained. But the wearing of the headscarf was held in and of itself to violate
denominational neutrality in a way that threatened religious conflict, because:
her pupils are young children who are particularly impressionable . . . [and] . . . the appellant can
scarcely avoid the questions which her pupils have not missed the opportunity to ask [about why
she wears the hijab] . . . It is therefore difficult for her to reply without stating her beliefs. . . .
Furthermore, religious harmony ultimately remains fragile in spite of everything, and the
appellant’s attitude is likely to provoke reactions, or even conflict, which are to be avoided.
This passage considers a symbol which invites curious inquiry into religious beliefs
as provocative and risking conflict; as such, in the balancing exercise between
individual right and state interest the latter is understood as the prevention of
religious strife—a weighty concern indeed, but scarcely demonstrated to be coex-
tensive with the mere presence of religious symbols on the teacher’s person. As
such, the implied notion of ‘necessity’ at work here is expansive, even preventive.
Less restrictive measures need not be entertained, because the contradiction be-
tween the symbol and religious peace is so sharply drawn.
In its approval of this reasoning as adequately justifying the limitation on the
applicant’s religious freedom (which, it should be noted, meant that she had to
choose between her profession and her faith because infant education was largely
the realm of the state), the European Court underscored the apparently categorical
equation of an Islamic religious symbol as ex hypothesi a potent threat to religious
harmony and toleration:
The court accepts that it is very difficult to assess the impact that a powerful external symbol
such as the wearing of a headscarf may have on the freedom of conscience and religion of
very young children . . . In [the case of children aged four to eight] it cannot be denied
outright that the wearing of the headscarf might have some kind of proselytizing effect,
seeing that it appears imposed on women by a precept which is laid down in the Koran and
which, as the Federal Court noted, is hard to square with the principle of gender equality. It
therefore appears difficult to reconcile the wearing of an Islamic headscarf with the message
of tolerance, respect for others and, above all, equality and non-discrimination that all
teachers in a democratic society must convey to their pupils.
Accordingly, weighing the right of a teacher to manifest her religion against the need to
protect pupils by preserving religious harmony, the court considers that . . . the Geneva author-
ities did not exceed their margin of appreciation and that the measure they took was
therefore not unreasonable.
Many justified criticisms have been made of the court’s claim that the hijab is
‘imposed’ on women and necessarily inconsistent with values of tolerance, equality,
and non-discrimination.61 Of greater significance for my argument are the asser-
tions concerning its proselytizing effect. The subjunctive and conditional language
connecting the wearing of the hijab with threat of undue influence or even coercion
of the pupils’ religious beliefs is significant: it cannot be denied outright that the veil
might have a proselytizing effect. This language is the marker of an absence of
evidence, and effectively reverses the burden of demonstrating the necessity of the
rights restrictive measures. In my view its is properly understood as a ‘preventive’
conception of necessity, which equates Islamic symbols with the threat of religious
conflict and which expands the authority of the state to repress even speculative
risks of religious strife.
In Sahin, the university regulation that prohibited the headscarf relied on a line
of Turkish jurisprudence which characterized the headscarf as a symbol of political
Islam, and thus a threat to republican values and civil order in Turkey. Turkey’s
constitution declared the state to be democratic and secular (laik) ‘based on the rule
of law that is respectful of human rights in a spirit of social peace . . . ’.62 Article 24
protects freedom of conscience but expressly prohibits any attempts to cause ‘the
social, economic, political or legal order of the State to be based on religious
precepts’. The Turkish court decisions authorizing the headscarf ban evince a
very expansive notion of what must be regulated in order to preserve the secular
nature of the state. The headscarf is characterized as ‘in the process of becoming the
symbol of a vision that is contrary to the freedoms of women and the fundamental
principles of the Republic’.63 A secular regime requires that ‘religion is shielded
from a political role. It is not a tool of the authorities and remains in its respectable
place, to be determined by the conscience of each and everyone.’ To wear a
religious symbol which might be understood as an expression of political Islam is
to threaten secularism and equality, justifying a complete prohibition of the
headscarf in public institutions such as universities. While it is commonly observed
that the Turkish state is laic, I would note here that this reasoning is also deeply
politique in as much as it emphasizes the preemption of potential or emerging
threats to civil order, as defined and understood by the state. What is necessary to
preserve public order is expansive, as is the authority of the state to pursue its
understanding of the common good. Putting certain manifestations of religious
belief back in their ‘respectable place’ is essentially the function of the magistrate in
a politique conception of toleration.
In its earlier decision upholding the banning of the major Islamist party in
Turkey as necessary to preserve liberal democracy, the European Court had already
indicated its acceptance of this posited incompatibility between political Islam and
democracy in Turkey.64 In Sahin, the Court reiterated its acceptance of the Turkish
61 See for example papers by Evans, Danchin, and Khaliq (see n 56).
62 Rep of Turkey Const, art II. Found in Sahin, para 29.
63 Supreme Administrative Court, 13 December 1984, quoted in Sahin, para 37.
64 Refah Partisi (the Welfare Party) and Others v Turkey, no 41340/98, [2003] II ECHR. See,
helpfully, Patrick Macklem, ‘Guarding the Perimeter: Militant Democracy and Religious Freedom in
Europe’ (17 August 2010) (unpublished) , available at <http://ssrn.com/abstract=1660649> accessed
18 May 2012.
state’s rationale for taking a ‘stance against [extremist political movements] based
on its historical experience’65 and deferred to the state’s judgment that any person
wearing the headscarf in public institutions should be understood as making a
statement promoting political Islam and endangering civil order. Once the head-
scarf is assimilated with political Islam, and political Islam assimilated with a threat
to democracy, the limitation on Sahin’s right to manifest her religious beliefs
becomes ‘necessary’ to maintain democracy. With this degree of deference to the
state’s characterization of the circumstances—and no real evidentiary obligation to
demonstrate the imminence or gravity of the threat to democracy posed by this
symbol—proportionality reasoning has little work to do except to reaffirm the
balance between the threat to an essential public interest and the rights-limiting
measure taken by the state. In effect, the European Court has adopted the Turkish
state’s understanding of what toleration requires, and along the way has also
underlined a construction of Islam as inherently threatening to secularism, democ-
racy, equality, and toleration.66
It should be noted that other religious symbols displayed in public institutions
are not equally associated with the threat of religious conflict. In the Grand
Chamber’s recent decision in Lautsi, it concluded that regional Italian regulations
requiring the prominent display of the crucifix in public school classrooms fell
within the margin of appreciation accorded to member states to ‘perpetuate a
tradition’ which derived from their ‘cultural and historical development’.67 The
obligation of denominational neutrality was interpreted in this case as forbidding
the state from pursuing ‘an aim of indoctrination that might be considered as not
respecting parents’ religious and philosophical convictions’.68 The cross is accepted
as ‘above all a religious symbol’, but in contrast to the court’s willingness to find a
proselytizing effect in the absence of evidence in Dahlab, in Lautsi it is noted that
‘there is no evidence . . . that the display of a religious symbol on classroom walls
may have an influence on pupils and so it cannot be asserted that it does or does not
have an effect on young persons whose convictions are still in the process of being
formed’.69 The crucifix is essentially a ‘passive symbol’ which ‘cannot be deemed to
have an influence on pupils comparable to that of didactic speech or participation
in religious activities’.70 One of the fears concerning Mrs Dahlab’s headscarf was
that it might invite curious questions from pupils leading to a discussion of her
religious beliefs, and thereby, a risk of offence or coercion of children and their
parents. The crucifix is considered to pose no such threat, and the possibility that it
could stimulate a dialogue about religious beliefs is welcomed as conducive to
tolerance: ‘The display of a religious symbol does not compel or coerce an individ-
ual to do or refrain from doing anything. It does not require engagement in any
65 Refah, cited in Sahin, para 115.

66 The court reiterates its view that the Islamic headscarf cannot be reconciled easily with tolerance,
equality, and non-discrimination in Dahlab, para 111.
67 Lautsi and Others v Italy [GC], no 30814/06 (18 March 2011) ECHR at paras 68–9.
68 Lautsi, para 62.
69 Lautsi, para 66.
70 Lautsi, para 72.
activity though it may, conceivably, invite or stimulate discussion and an open
exchange of views . . . A truly pluralist education involves exposure to a variety of
different ideas including those which are different from one’s own.’71
The open contradiction between the Grand Chamber decision in Lautsi and the
admissibility decision in Dahlab is not adequately understood as simply hypocrisy
or ethnocentrism. Rather, it also reflects a strand of public discourse in Europe
which closely associates the Christian tradition with the achievement of an idealized
political culture of toleration, democracy, and civil peace. Secularism, as it were, is
not merely neutrality but a political theology of toleration closely associated with
Christian values.72 For example, Baden-Wurttemburg’s anti-headscarf legislation
differentiates between Islamic religious symbols worn by teachers (which are
banned) and Christian and Jewish religious symbols (which are permitted) by
declaring that ‘the representation of Christian and occidental values and traditions
corresponds to the educational mandate of the [regional] constitution and does not
contradict the behavior required according to sentence 1’, where sentence 1 reads
‘Teachers are not allowed . . . to give external statements of a political, religious [or]
ideological nature’ which could endanger or disturb neutrality towards pupils and
parents.73 Unlike Christian and occidental traditions, the headscarf is construed as
representing ‘cultural segregation, and thus it is a political symbol [which puts at
risk] social peace’.74 Similar anti-headscarf legislation was passed in seven other
German länder.75
D. Conclusion
The contemporary freedom of religion jurisprudence of the European court is not

adequately understood as principles governing the delimitation of a forum inter-
num, or of determining conclusively the proper meaning of secularism. Rather, the
invocation of secularism as a state interest to be balanced against certain kinds of
exercise of freedom of religion is striated with anxiety about the regulation of alien
cultures, and about the anticipation and prevention of religious strife. But ‘religious
harmony’ appears to be a cipher for other concerns—religious subjectivities which
are believed unassimilable and possibly intolerable. The idea of toleration offered as
71 Concurring Opinion of Judge Power in Lautsi, paras 45–6.

72 This is the express reasoning of the Italian courts in the national-level litigation in Lautsi. See also
examples discussed in Susanna Mancini, ‘The Power of Symbols and Symbols as Power: Secularism
and Religion as Guarantors of Cultural Convergence’ (2009) 30 Cardozo L Rev 2629.
73 Quoted in Seyla Benhabib, ‘The Return of Political Theology: The Scarf Affair in Comparative
Constitutional Perspective in France, Germany and Turkey’ (2010) 36 Philosophy and Social Criticism
451, at 461. The threats of segregation, oppression of women and religious conflict were also relied
upon by the French Stasi Commission to recommend the banning of headscarves in schools. See
Mancini, ‘The Power of Symbols’, 2646–8.
74 Then-Minister of Education of Baden-Wurttemburg, Annete Schavan, quoted in Benhabib,
‘The Return of Political Theology’.

75 Christian Joppke, Veil: Mirror of Identity (London: Polity Press, 2009), 71. See also Human
Rights Watch, Discrimination in the Name of Neutrality: Headscarf Bans for Teachers and Civil Servants
in Germany (New York: Human Rights Watch, 2009).
justification for secularism is a repressive tolerance concerned to keep certain

symbols ‘in their proper place’ because of their putative threat to civil order and
fundamental political values. The re-enactment of the liberal state’s claim to be free
of cultural or religious demands is simultaneously a demonstration of the failure of
some subjects to liberate themselves from culture and religion. The adjudication
of rights functions not so much as the construction of an untouchable sphere of
individual autonomy, but more as a juridical language for demarcating and re-
sponsibilizing ungovernable subjects—those whose propensities, predilections, and
potentialities make them threatening.
The politics carried through the interpretation and delimitation of this
particular right underscores the pitfalls of seeking ‘common ground’ through static
comparisons of ascribed fundamental values. I have sought to demonstrate that
even within such an apparently foundational liberal right as freedom of conscience,
diverging histories and theories of state and subject coexist—reflecting historically
distinct moments in the formation of this political language, and submerging or
re-emerging in new ways to refract the contentious political conflicts of the day.
Far from being bearers of some essential value, rights discourse in this context
functions to fashion, regulate, and position subjects, citizens, and states.
8
Negotiating Speech in Islamic Law and Politics:
Flipped Traditions of Expression
Intisar A Rabb
A. Introduction
The 2011 uprisings in the Middle East brought questions of free speech in Muslim
majority contexts front-and-center on the world stage. Ostensibly, those agitating
for change in Tunisia, Egypt, Syria, and elsewhere came forward to urge for greater
economic opportunity and civic freedoms. Theirs were efforts to usher long-time
authoritarian rulers backstage or completely outside of the political theater. It may
be surprising for new audience members, although it will be old news to long-time
observers, to realize that the restrictions on political freedoms behind the protests
had nothing to do with Islamic law. Rather, the restrictions were enactments of a
common script for maintaining tight control over the citizenry or subjects, drawn
from the playbook of authoritarian rule. Yet, to the extent that the people in these
countries identify with or appeal to the heritage of the Islamic legal tradition—and
they tend to do so to significant degree—the query is whether and to what degree
that tradition has a script governing speech that might influence the reconstruction
and reform of modern Muslim-majority states in the future.
There is another connection to Islamic law that questions of free speech evoke.
Laws against blasphemy, rules regulating religious minorities, and controversies
over cartoons have touched significantly on Muslim contexts over the past decade.
Very clear is the extent to which such controversies can have real legal and social
effects. Pakistani courts sentenced Aasiya Noreen Bibi to death for so-called
blasphemy after making purportedly derogatory statements about the Prophet
Muhammad; Lina Joy was unable formally to convert from Islam to Christianity
in Malaysia; and the Danish cartoon controversy elicited violence and a maelstrom
of controversy over the appropriate limits to free speech.1 It is also clear that
1 On the cartoon controversy from a perspective on the proper limits of speech in modern Western
liberal democracies, see Robert Post, ‘Religion and Freedom of Speech’ (2007) 14(1) Constellations
72–90 (arguing in favor of free speech as the sine qua non of democracy). For an excellent review of this
and other theories, and attempts to consider ‘external’ Western values alongside ‘internal’ Islamic
values, see Peter Danchin, ‘Defaming Muhammad: Dignity, Harm, and Incitement to Religious
Hatred’ (2010) 2 Duke Forum for Law and Social Change 5–38.
Negotiating Speech in Islamic Law and Politics 145
social and political atmospheres in at least some modern Muslim-majority

countries display marked intolerance for free speech as understood in Western
legal traditions. In the first two instances, the laws of Pakistan and Malaysia
authorized criminal prosecution for speech acts that political and legal stake-
holders had determined suggested irreverence for Islam and its Prophet. In
the third instance, outraged Muslims reacted violently against the same. Less
clear is the connection between those controversies and the classical Islamic legal
tradition.
Understanding perspectives on speech in classical Islamic law is important in
part because of the cultural valence and strong affinity that appeals to Islamic law
evoke in the modern day among the individuals who make up significant portions
of the population of countries now in so much flux. It is also important because
of the instrumentality that appeals to Islamic law have for both state and civil
society institutions as political stakeholders in Egypt, Libya, Tunisia, and elsewhere
begin to draft new constitutions, form new governments, and propose new legal
orders that are likely to include reference to Islamic law.2 After the colonial
period in the mid-20th century Arab and South Asian world, leaders in Muslim-
majority countries appealed to a shared Islamic heritage and to Islamic law as
a way to assert identity and independence. The sentiment that made this strategy
effective accompanied the advent of Islamic constitutionalism—with some
26 countries folding Islamic law directly and formally into their legal systems
in the 1970s in newly independent former British and European colonial regimes
and again in the 2000s in countries like Iraq and Afghanistan. In these countries,
it was the constitution itself that provided the founding-framework for gover-
nance: requiring courts and politicians to take notice of the Islamic legal tradi-
tion on important issues of legislation and of statutory and constitutional
interpretation.3
In the spirit of ‘clearing ground’, I seek to interrogate the Islamic legal tradition
seeking answers to the questions that arise from these new dynamics: What is the
‘old script’, so to speak, of speech in classical Islamic law? How wide is the scope of
the doctrine, and what are its limits? More importantly, from where do these
doctrines emerge and what can the process of unearthing the origins of the Islamic
law of speech tell us about the values that such doctrines reflect or impose, then and
now? If classical Islamic law is to guide questions of modern legal interpretation
and underwrite significant aspects of political legitimacy, even if in the shadow
of otherwise secular deliberation and legislation, what are the tensions between the
tradition and the accommodation of notions of speech and democracy in the
modern day?
2 For more on the relevance of key questions that emerge in contexts of new Islamic constitutional-
ism, see my ‘ “We the Jurists”: Islamic Constitutionalism in Iraq’ (2008) 10 University of Pennsylvania
J Const’l L 527.
3 See n 2.
B. Islamic legal doctrines of expression
1. Protections: political speech

The Islamic legal corpus features a robust tradition of protecting political speech,
astonishing in the depth of nuance that it allows for dissent. Interestingly, this
tradition of strong protection for speech was packaged in the laws of rebellion
(baghy), which was distinguished from the criminal laws that governed acts and
expressions deemed threatening to public welfare or state security. To the latter
point, before discussing the concepts surrounding what freedom of speech in the
public sphere was, I first discuss what it was not with respect to the two areas of
Islamic criminal law that placed significant restrictions on speech.
Laws against what we would now call highway robbery and treason translated
into restrictions on speech in medieval Islamic contexts. The initial concern was
with protecting the public sphere against those who would war against individuals
or the state itself. Thus, the first type of criminalized act did not relate to speech,
but public safety. Stemming from the Qur’an, Islamic law unequivocally con-
demned brigandry or highway robbery—whereby perpetrators laid in wait for
traveling merchants and other passers-by with the intent to steal from them or to
extort money from them as a condition for safe passage. This sometimes resulted in
retaliation and thus bloodshed on the open roads. That they compromised the
safety and security of the public sphere made highway robbers criminals of the
worst type then, on par with what we would call terrorists today.4 The Qur’an set
forth severe sanctions for highway robbery, harsher than punishments for murder
or any other crime: it authorized the state to punish criminals who waged a terror
campaign with the death penalty, crucifixion, cross-amputation of a hand and a
foot, or exile.5
The second type of act that Muslim jurists regarded as criminal related to public
safety as well: rejection of or opposition to Islam, that is, so-called apostasy (ridda).6
The Qur’an does not specify penal sanctions for apostates.7 Indeed, the original sense
of ‘apostasy’ and the laws surrounding it seem to have been limited in application to
times of active warfare—when citizenship was religion-based, and where those who
4 See Sherman Jackson, ‘Domestic Terrorism in the Islamic Legal Tradition’ (2001) 91(3 & 4) The
Muslim World 293–310.

5 Qur’an, 5:33 (‘The punishment of those who wage war against God and His messenger, striving
in the way of corruption in the land is: execution, crucifixion, the cutting off of hands and feet from
opposite sides, or exile from the land; that is their disgrace in this world, and they will have a heavy
punishment in the Hereafter’).
6 See Abdullah Saeed’s essay on apostasy (Chapter 11 of this volume).
7 On this basis, and on the argument that the prophetic tradition rests on insufficient evidence,
several modern Muslim scholars have challenged the validity of Muslim apostasy laws and opposed the
death penalty for conversion from Islam to another religion. See, for example, Majid Khadduri (trans),
The Islamic Law of Nations: Shaybani’s Siyar (Baltimore: John Hopkins University Press, 1996), 238;
Mohamed S El Awa, Punishment in Islamic Law (Indianapolis: American Trust Publications, 1993),
49–56, 61–2; see also Khaled Abou El Fadl, Rebellion and Violence in Islamic Law (Cambridge:
Cambridge University Press, 2001), 32.
left Islam were announcing a religious non-alignment that suggested hostilities or

accompanied military escalation against Muslims.8 Over time, jurists developed a
law of apostasy for non-wartime scenarios. They drew on hadith literature—reports
of the statements and actions attributed to the Prophet Muhammad—from times
of war to authorize the head of state generally to use his discretion to impose the
death penalty on one-time Muslims who manifested their disbelief,9 and who failed
to repent when caught and invited to do so.10
Building on these laws designed to protect individual and public safety, many
Muslim jurists authorized the use of penal sanctions and even military action for
certain speech acts. That is, they specified criminal sanctions against those who made
statements that were regarded as rising to the level of apostasy. In fact, the idea that
apostates were eligible for death came from the notion that they posed a political or
military threat to the state, much the way highway robbers might—two classes of
criminals that decidedly lacked commitment to rule of law and public safety,
particularly under Muslim rule. As noted, the premodern period was an era in
which citizenship was defined by religion. In the worlds of Islam and Christendom
alike, to declare allegiance to another religion, while continuing to reside in the land
where one’s original religion was dominant, was to renounce allegiance to one’s co-
religionists in a way tantamount to treason. In effect, it was to announce that
one’s allegiance was no longer to the Christian or Muslim polity, but potentially
8 Muhammad Rashid Rida, Fatawa (Beirut: Dar al-Kitab al-Jadid, 1970), 2:576, 4:1537–42. Rida
traces the historical context as follows: Apostates used to be Arab polytheists, who would revert to
warring against Muslims and otherwise attacking them. This was the basis for the initial Qur’anic
ruling permitting fighting against or killing ‘apostates.’ In addition, Rida notes that members of some
of the Jewish tribes used conversion to and then rejection of Islam as a tactic to scare people away from
it (citing Q 3:72), for which harsh punishments were announced to prevent serial conversion and
rejection. Rida further maintains that both instances were known as contingent or conventional
military policies (siyasa ‘urfiyya ‘askariyya) responsive to the times and conditions, rather than norma-
tively established rulings of Islamic law in the abstract, particularly as the Qur’an (Q. 4:90) also says
that Muslims have no legitimate basis to fight against any disbeliever who stops fighting against them
and because the Prophet forbade Muslims from forcing conversion, including their own children
(citing, inter alia, Q. 2:256). Rida, Fatawa, 576–7.
9 While jurists criminalized expressions of open and public unbelief, they tolerated unbelief kept
private. For a detailed treatment of ‘masked disbelief ’ (zandaqa), which was not legally subject to
punishment, see Sherman A Jackson, On the Boundaries of Theological Tolerance in Islam: Abu Hamid
al-Ghazsli’s Faysal al-Tafriqa Bayna al-Islam wa al-Zandaqa (Karachi: Oxford University Press, 2002).
For instances of punishment nonetheless in the political sphere amongst heads of state, see Christian
Lange, Justice, Punishment and the Medieval Muslim Imagination (Cambridge: Cambridge University
Press, 2008).
10 See, eg, Muwaffaq al-Din Ibn Qudama, al-Mughni ‘ala Mukhtasar Abi al-Qasim al-Khiraqi, ed
‘Abd Allah b. ‘Abd al-Muhsin al-Turki and ‘Abd al-Fattah Muhammad al-Hulw (Cairo: Hajar, 1986),
12:264–6 (noting—contrary to the earlier Hanbali scholar Khiraqi on whom Ibn Qudama was
commenting—that the death penalty was only for males while females were to be imprisoned). Also
in the Sunni context, see Ibn Rushd II, Bidayat al-mujtahid, ed ‘Ali Muhammad Mu‘awwad and ‘Adil
Ahmad ‘Abd al-Mawjud (Beirut: Dar al-Kutub al-‘Ilmiyya, 2000), 2:273 (noting the ‘consensus’
opinion on apostasy based on the statement attributed to Muhammad that ‘whoever changes his
religion is to be killed’). In the Shi‘i context, see Ibn al-Mutahhar al-Hilli, Tadhkirat al-Fuqaha’, ed
Mu’assasat Al al-Bayt li-Ihya’ al-Turath (Mu’assasat Al al-Bayt li-Ihya’ al-Turath, 1414/[1993–94]),
9:41 (listing non-Muslims as legitimate subjects of combat); 9:369 (on a Muslim woman who
apostates); Shahid I, al-Rawda al-bahiyya fi sharh al-Lum‘a al-Dimashqiyya, 3:323–40.
(or in fact) to that of its enemies, and it was to declare intent to subvert the
Christian or Islamic state and its rule of law, respectively.11
In short, Muslim jurists of premodern periods saw apostates as asserting claims
that they were no longer bound by the system of law, free to choose behaviors that
went much beyond the bounds of propriety and safety to which members of the
general community, as Muslim ‘citizens’, were bound. Apostates fell into none of the
recognized categories of citizenship: They were neither Muslims, bound by a social-
religious contract to obey the head of state, to join military operations to defend the
state when called to do so, and to adhere to other known rules of Islamic law. Nor
were they non-Muslim ‘dhimmis’, living in Muslim lands under a contract of security
with the state, whereby the state agreed to protect them in exchange for payment of
tribute in lieu of military service and an understanding of respectful social relations.
In that scheme, where the world was divided between ‘Islamic territory’ and ‘war
territory’, the only category aside from those of Muslim or authorized resident non-
Muslim, was latent enemy. The latter was defined as anyone not living in Muslim
lands, under its rules, or in a land at peace with Muslim rulers by treaty; the latent
enemy was thereby in a default state of war with the Muslims. By process of
elimination, it was in this category that Muslims placed the apostate.
***
Opposite the criminal laws regulating speech-as-apostasy in a political and military
sense was a strong Islamic legal tradition that accommodated dissent, which—
ironically—found justification in religious terms for good governance. Support for
this type of religio-political dissent was embodied in the laws of rebellion.12
Intriguingly, Muslim jurists maintained that the motivating force behind rebellion
could be legitimate political dissent and thus should not be criminalized. Instead,
they declared it illegal for rulers to kill, torture, or imprison even armed rebels with
a (‘legitimate’) cause.13 When was the cause legitimate?
a. Historical context: accommodation of dissent between law and politics

The Islamic laws of rebellion were based more on norms that arose from historical
developments than on explicit textual directives. Very early in the Muslim com-
11 Importantly, this was expressed in the English Christian contest through Taylor’s Case, the
famous case about which Lord Justice Hale commented:

And Hale said, that such kind of wicked blasphemous words were not only an offence to God
and Religion, but a crime against the Laws, State, and Government, and therefore punishable
in this Court. For to say, Religion is a Cheat, is to dissolve all those obligations whereby
civil societies are preserved, and that Christianity is a parcel of the Laws of England; and
therefore to reproach the Christian religion is to speak in subversion of the law.
G D Nokes, A History of the Crime of Blasphemy (London: Sweet & Maxwell, 1928), 42 (quoting 1
Vent 293). Moreover, court records also reveal that ‘[i]n medieval times [blasphemous] words had been
declared to amount to an assault; and this was explained in 1478 by a justice of the Common Pleas on
the strictly logical ground that a threat to do violence to another, made in his presence, would support
an action of trespass, as such a threat was a breach of peace. . . . ’). Nokes, Crime of Blasphemy, 28.
12 For detailed treatment, see Abou El Fadl, Rebellion.
13 Abou El Fadl, Rebellion, 32.
munity’s history, internal conflict threatened the integrity, cohesion, and very
existence of the new group of co-religionists. Several factions sought to break
away from the larger group, and others challenged the leadership as it passed
from one caliph to another after Prophet Muhammad’s death. In this context,
the legendary leader, ‘Ali—fourth caliph and first Shi‘i Imam—made a number of
strategic decisions that set the precedent for dealing with rebels.
That his policies established normative legal precedent was perhaps the natural
result from someone of his moral stature within the Muslim community. The early
community viewed him—arguably second only to the Prophet—as possessed of the
highest moral character, and deemed him to have had perhaps the closest relation-
ship with the Prophet from the very start of Islam. The developed Shi‘i tradition
recognized him as infallible as an Imam; his practices were as authoritative as that of
the Prophet and therefore formed a part of the Sunna (normative practice), the
second source of law. Later Sunni tradition, too, venerated ‘Ali as one of the ‘rightly
guided caliphs’ whose actions—though not prophetic—formed part of the Sunna
and whose decisions perfectly reflected community consensus (which both groups
regarded as the third source of law). Thus early and later communities, Sunni and
Shi‘i alike, shared perspectives similar in kind if not degree about ‘Ali’s exemplary
status, and both would continue to hold ‘Ali in extremely high regard.
Over time, it was the scholarly community that developed the doctrines trans-
forming ‘Ali’s actions into exemplary and normatively required laws of rebellion.
Inasmuch as they regarded his actions as normative, these scholars had to make
theological sense of ‘Ali’s interventions in the politics and history of the early
community context, which was rife with instances of rebellion.14 In that context,
his interactions with rebels were not just one of many historical possibilities; they
were the right outcomes and therefore precedential. In fact, this conclusion was
useful for members of subsequent generations of jurists, typically in opposition to
the political rulers, who wanted to claim a prerogative or even right of rebellion on
the basis of political dissent. All this right required, was a plausible case that the
dissent was a matter of legitimate difference—a concept that jurists extrapolated
from prior precedent.15
Three historical instances formed the basis for the doctrines of rebellion and
political dissent.16 First was the Battle of the Camel in Basra, led by the Prophet’s
young widow, ‘A’isha bt. Abi Bakr. She and other prominent Companions of the
Prophet marched against ‘Ali,17 just after he assumed the title of caliph. They
demanded that ‘Ali serve justice to the perpetrators of the assassination of his
14 Abou El Fadl, Rebellion, 32–3.

15 Abou El Fadl, Rebellion (noting that jurists used ‘Ali’s early precedents to comment on the
legitimacy of the unsuccessful rebellions of, amongst others, al-Husayn b. ‘Ali (d 680), ‘Abd Allah b.
al-Zubayr (d 692), Muhammad b. ‘Abd Allah al-Nafs al-Zakiyya (d 672), as well as successful
‘rebellions’, that is, the accession to power of and response to one-time ‘rebel’ groups such as the
Umayyads, ‘Abbasids, and Fatimids).
16 See al-‘Allama al-Hilli, Tadhkira, 9:391.
17 They include Talha, Zubayr, ‘Abd Allah b. al-Zubayr, and others. See Hugh Kennedy, The
Prophet and the Age of the Caliphates (Essex: Pearson Education, 1986).
predecessor, the third caliph ‘Uthman, as a matter of first priority. In their opinion,
‘Ali failed to properly prioritize vengeance, for which they felt justified in marching
against him. Ultimately, the opposition group was no match for ‘Ali’s forces. But in
defeating them, ‘Ali offered broad clemency—ordering that no one should be
harmed. Jurists afterward came to regard those who opposed him to be rebels—
members of an opposition group that had merely violated their oaths of allegiance
to ‘Ali as the leader—rather than enemies of the state. Their cause was legitimate
because they had a genuine difference of opinion—whether avenging ‘Uthman’s
assassination should have taken priority as a matter of religiously bounded good
governance. By announcing that no harm should befall his opponents once
subdued, ‘Ali established a precedent of ‘no harm’ that jurists maintained should
extend to other rebels.18
Second was the battle against the Syrian governor Mu‘awiya, in connection with
his own stated attempt to avenge the death of ‘Uthman, both as fallen leader and a
blood relative. As had ‘A’isha, Mu‘awiya gathered troops against ‘Ali and marched
against him at Siffin (near the Syrian-Iraqi border) in a bid to demand justice for
his fallen kinsman. Once it became clear that negotiations would be fruitless,
‘Ali marched on Mu‘awiya’s troops to put down the rebellion. After a fierce battle,
with ‘Ali’s side taking the upper hand, Mu‘awiya’s troops demanded arbitration,
and ‘Ali was forced to oblige. The conflict ostensibly ended in this way—albeit
inconclusively—in the Battle of Siffin (656 ce). However, trouble was afoot
amongst ‘Ali’s ranks. A part of his army disagreed with his decision to submit to
arbitration, for which they turned on their leader and became a new source of strife
and conflict. The groups went their separate ways, with the opposition coming to
be known as the ‘Kharijis’ or ‘Khawarij’: those who ‘go out or against’ the
appointed leader or those who ‘secede’. After the Battle and the split troops, ‘Ali
ruled as caliph over most Muslim lands, Mu‘awiya continued to assert leadership
over Syria as a rebel governor, and the Khawarij stewed on the sidelines.19 In that
instance too, ‘Ali did not harm the rebels—neither Mu’awiya nor the Khawarij.
Although they were the aggressors or dissenters in each instance, the opposition had
expressed a plausibly correct difference of opinion on questions of vengeance and
arbitration, which explained if not authorized their hostilities but did not merit
restriction or retaliation after their defeat on the battlefield.
Third, and most significantly, was ‘Ali’s battle against the Khawarij—the group
that had turned against him as a result of the arbitration—at Nahrawan (near
Baghdad). Muslim jurists by and large regarded the Khawarij as extremists who
sought to impose their idiosyncratic interpretations of determining political leader-
ship (imamate) and of theological orthodoxy on the entire community. Khawarij
saw violations of their definitions as tantamount to turning away from Islam itself
(kufr) and a cause to wage war. Indeed, they applied this doctrine to condemn
‘Ali and his camp for accepting the arbitration, and waged fierce battle against
them. In what ensued, ‘Ali was assassinated by a Khariji by the name of Ibn Muljam
18 See al-‘Allama al-Hilli, Tadhkira, 9:391.

19 See al-‘Allama al-Hilli, Tadhkira, 9:391
in 661 ce. Mu‘awiya then assumed the seat of the caliphate, turning it into an
institution of dynastic rule thereafter.20
For their part, Sunni jurists came to regard Khawarij as errant Muslims who
fought against the legitimate, just ruler. By contrast, Shi‘i jurists regarded them all
as non-Muslims (kuffar).21 Regardless of the designation of Muslim or non-
Muslim, in determining how they and Mu’awiya should thereafter be treated,
jurists commenting on the matter generally acknowledged that ‘Ali’s treatment of
his opponents before that point had been uniform: he did not fight until fought; he
attempted to negotiate before resorting to arms; and he offered clemency broadly
after each victory, commanding that the wounded, captives, and fugitives were not
to be harmed.22
Memorializing those strategic decisions as normatively Islamic legal rules,
Muslim jurists later reflecting on this early history pegged ‘Ali’s practices to
Qur’anic texts and prophetic practices that would more firmly secure the textual
bases for the right to dissent and rebel with a just cause.
In modern legal parlance, we might see in the juristic treatment of ‘Ali’s actions a
proposal for protecting political speech. To be sure, the analogue is not exact:
violent rebellion is quite different from speech that does not aim to incite or itself
lead to violence. Rebellion of course has a tendency to take on violent tones, which
is why jurists specified the use of force (quwwa) as a defining element of rebellion to
inform what, if any, measures the political leadership in a majority-Muslim
community could take in quashing it. On that score, rebellion is very different
from political speech, to the extent that the former tends to be violent and the latter
does not necessarily take on violent forms, and only rarely manifests in the form of
rebellion or revolution. Nonetheless, I suggest that focusing on the ‘just cause’
element of rebellion may be a useful framework through which to view Islamic legal
conceptions of speech. In this context, the focus is not on the violence element of
the speech or on any accompanying violent action, but on what sort of dissent
justifies rebellion as an expression of political difference, and why. In that vein, the
juristic view of the justification for dissent analogizes reasonably well to the modern
conceptions of free speech and political dissent.
The central-most verse, ‘cited in nearly every [Islamic legal] discourse on
rebellion’ reads as follows:23
If two parties among the believers fight each other, then make peace between them. But if
one of them transgresses (bughat) against the other, then fight, all of you, against the one
that transgresses until [the party] complies with the command of God. But if [one party]
complies, then make peace between the two parties with justice and be fair, for God loves
those who are fair and just. The believers are but a single brotherhood. So reconcile your two
[contending] brothers, and fear God, so that you will receive His mercy.24
20 Al-‘Allama al-Hilli, Tadhkira, 9:391.

22 Al-‘Allama al-Hilli, Tadhkira, 2:410–11.
23 Abou El Fadl, Rebellion, 37. See also Ibn Qudama, Mughni, 12:237–42.
24 Qur’an, 49:9–10 (translation of Abou El Fadl, Rebellion, 37).
It is not obvious that this verse refers to rebels against a state ruler, as Muslim jurists
employed it when discussing rebellion in discussions of the laws of rebellion.
Instead, the verse seems to advise making peace between and reconciling any two
quarrelling Muslims or factions within a particular community. Indeed, early
Muslim Qur’an commentators explained that the verse was originally revealed
with respect to disputes more mundane than rebellion or insurrection. On one
version of the origins-stories from the exegetical literature, the verse referred to a
family feud resulting from a husband in one of the Ansar families of Medina
forbidding his wife from visiting her family.25 On another version, the Prophet
passed by a man who did not take kindly to his proximity to his riding animal and
said—rather disrespectfully—‘watch your donkey (ilayka himarak)’. Observing
this, a supporter of the Prophet became extremely angry at the man’s insolence.
That led to to a fight between the two men, which turned into a fight between the
two tribes to which the men belonged. Reportedly, this verse was revealed on one or
both of these occasions, prompting the Prophet to make peace between the
disputing parties.26
Early commentators read this verse to be not about rebellion, per se, but about
smoothing community relations in petty disputes. At the same time, the wording of
the verse with its mention of ‘transgression’ (bughat)—a form of the same term used
for rebellion (baghy)—lent itself easily to contexts of actual rebellion, as the later
jurists defined it.27 On their reading, the emphasis was on effecting peace, particu-
larly on the part of the ruler—as had the Prophet in the contexts reportedly
surrounding the revelation of the verse and as had ‘Ali in the context of the
uprisings against him.28
Jurists made the historical connection between this verse and rebellion
through considering the problem of the civil strife following the assassination of
‘Uthman together with ‘Ali’s response to it.29 Indeed, that entire episode led to a
new peril in the young Muslim community—the fear of civil strife in controversies
surrounding leadership—juxtaposed with a fear of unjust leadership. As a result,
the literature reveals a tension between fear (cautioning quietism and avoidance of
civil war) and aspiration—manifested in just causes for political activism (support-
ing tendencies for rising up against unjust rulers). It is for these reasons that early
Islamic theological and legal writings include precedents for both pacifism and
activism. The theology needed to buttress the credibility of and accommodate
expressions of dissent from Companions who had diametrically opposed views on
the use of force against Muslims. Meanwhile, the law needed to distinguish
legitimate rebellion—which the law aimed to accommodate as dissent for a just
25 Al-‘Allama al-Hilli, Tadhkira, 9:391; Abu al-Hasan al-Mawardi, al-Hawi al-kabir, ed Mahmud
Mustafa et al (Beirut: Dar al-Fikr, 1994), 16:355. See also Abou El Fadl, Rebellion, 37.
26 Mawardi, Hawi, 16:355; Abou El Fadl, Rebellion, 37.
27 Mawardi, Hawi, 16:355 (defining baghy as the ‘use of force to gain what is not one’s due:
al-ta‘addi bi’l-quwwa ila talab ma laysa bi-mustahiqq’, and noting that the verse can refer to both
aggression by fighting (baghy) and by violating the peace or treaty-like pacts (sulh)).
28 Mawardi, Hawi, 16:355; Abou El Fadl, Rebellion, 37.
29 Abou El Fadl, Rebellion, 40.
cause—from unjustified civil strife—which the law aimed to prevent and, where
necessary, quash.30
b. Legitimacy requirements for rebellion (and political dissent)

Against the baseline rule in Islamic legal and political thought requiring obedience
to the Imam,31 the obvious question to contemplate upon challenges to leadership
was the following: what would determine whether a rebellion was legitimate and
thus protected rather than a criminal act of treason to be punished? For jurists, the
main element required for legitimacy was that the voices of religio-political oppos-
ition or dissent possess some reasonable, even if mistaken, interpretation of the law
or facts that made them honestly believe in the need to rebel.32 The idea was that
someone who adopted that type of interpretation was truth-seeking rather than
deliberately oppositional or unjustifiably transgressant. As such, jurists expressed
the idea that there should be robust protection (naw‘ hurma, literally, ‘a type of
sacredness’) for rebels to express and act on their dissenting views, even if that
expression came in the form of violence and even if it was erroneous.33 This idea of
protection for dissenting viewpoints brings home the analogue to the modern
conception of protected political speech.
The first notable incident to which this ‘honestly held belief ’ standard applied
was to the episode involving the group that first opposed ‘Ali in the Battle of the
Camel. His challengers there believed that he knew about the [planned] assassin-
ation of ‘Uthman and did nothing about it. In their minds, his knowledge and
inaction justified them avenging their fallen leader’s death.34 For later jurists
writing on the rules of rebellion, ‘Ali’s ability to see their perspective and their
honestly held (albeit erroneous) belief, explained why he took no punishing actions
against the opposition once he had defeated them militarily.
This ‘honestly held belief ’ standard also applied to the second incident involving
Mu‘awiya and his followers. History has adjudged that—objectively—Mu‘awiya
was erroneous (mubtal ) in his belief, but that—subjectively—he truly held it,
which could explain why ‘Ali did not punish him.35 Accordingly, in elaborating
the standards for rebellion and dissent, jurists held that, when assessing the nature
of the matter of dissent backing a rebellion, a leader need not measure the rebels’
oppositional points of belief on an objective basis. Instead, that their belief be
honestly held and reasonably certain on a subjective basis was enough. For jurists
30 See Abou El Fadl, Rebellion, 45.

32 Al-‘Allama al-Hilli, Tadhkira, 9:406. The other two factors by which an Imam could establish
that a group was composed of rebels rather than highway robbers against whom he could exercise the
legitimate use of military force against them, are: (1) that there be a sizeable number of rebels,
sufficiently large that they could not be contained or divided except by use of military force; and
(2) that the opposition group rebel against the Imam’s domain of authority (qabdat al-Imam) in a bid
to be independent from his rule. See also Al-‘Allama al-Hilli, Tadhkira, 9:408.
34 Al-‘Allama al-Hilli, Tadhkira, 9:407–8 (quoting the Shafi‘i explanations).
35 Al-‘Allama al-Hilli, Tadhkira , 9:407–8.
commenting on the matter, it was the subjective belief in the cause for dissent that
sufficed to absolve Mu‘awiya and the other rebels from punishment.36
As for the third incident involving the Khawarij, recall that Shi‘i scholars
regarded them all as apostates. For them, the Khawarij were an infamous sect of
renegades who took as a tenet of their belief the prerogative to declare ‘Ali and other
members of the Prophet’s family to be non-Muslim—a practice that Shi‘i jurists
equated with a type of serious blasphemy, akin to any Muslim who maintained that
it was perfectly permissible to drink wine, commit sex crimes, and defame commu-
nity members despite the clear prohibitions against doing so.37 Accordingly, under
Shi‘i law, the Khawarij should have been death-eligible, like any other apostate
whose actions rose to the level of disbelief and abandoning the tenets of Islam and
therefore the rule of law. Yet, later Shi‘i jurists were never able to quite square their
intuitions about the Khawarij with ‘Ali’s general policies on rebels. To be sure,
history did not allow anyone to see how ‘Ali would have dealt with this particular
group of rebels when all was said and done, for he met with an untimely death at
their hands. But, operating on the assumption that the Khawarij were in fact
apostates, Shi‘i jurists concluded that—unlike the lenient and permissive treatment
that ‘Ali had directed toward the first two groups of rebels—when it came to the
Khawarij, had ‘Ali sent a governor to rule over the Khawarij and had they harmed
that governor, they would have been subject to capital punishment.38 By contrast,
recall that Sunni scholars held that the Khawarij were not apostates, just rebels with
a mistaken cause. ‘Ali did not fight them, but Sunni jurists too held that he would
have been entitled to mete out some discretionary punishment after their defeat.39
Shi‘i and Sunni jurists disagreed about the religious status of the Khawarij. But it is
important to note a point of agreement on how that group should have been treated
based on their religio-political status and reasons for rebelling. As apostates, the
Khawarij would have been death-eligible, having marked themselves as opponents
to the state and to the rule of law without legitimate case. As rebels however, the
Khawarij were not eligible for death, nor did they deserve the criminal punishment
due to highway robbers for terrorizing the community on the open roads gratuit-
ously or for personal gain. If their cause was one of political dissent, they could avail
themselves of some measure of protection even in, or rather because of, their
opposition.40
In addition to an assessment of a reasonable, erroneously held belief conferring
the right to oppose an ‘unjust ruler’, jurists maintained that the political leader
(imam) was to avoid armed conflict before engaging in all out military escalation.
Specifically, he was to send a delegation asking armed groups of rebels about the

37 Al-‘Allama al-Hilli, Tadhkira, 9:409. See also Ibn Qudama, Mughni, 12:247.
38 See al-‘Allama al-Hilli, Tadhkira, 9:409; Ibn Qudama, Mughni, 12:247.
40 Al-‘Allama al-Hilli, Tadhkira, 9:409. If, however, members of the rebel forces committed
recognized serious crimes while rebelling, they would become criminally liable when captured,
according to most jurists. See al-‘Allama al-Hilli, Tadhkira, 9:431.
cause behind their rebellion. That delegation was also to attempt to resolve the
dispute through negotiations aimed at clarifying the ruler’s position and pointing
out the rebel’s erroneous interpretation where necessary.41 Jurists took this require-
ment to be imposed by the Qur’anic verse above—read as advising any warring
factions within the Muslim community to accept mediation or attempts otherwise
to resolve conflict by non-violent means.42 If it were possible to come to resolution
through words alone, jurists reasoned, then doing so and thereby meeting the goal
of de-escalating and achieving peace non-violently was preferable. Using force
against rebels was always to be the last resort.43
It bears repeating that the scope of protections for the freedom to dissent (and in
that sense, to engage in political speech—which can be fairly said to lay at the center
of the Islamic law of rebellion as well as of free speech doctrine in the modern West)
was wide in premodern Muslim spheres. The Islamic legal and political ideal sought
to allow for the most expansive deliberation on religious and political values, to
elucidate constraints on rulers from suppressing dissent, but to use force in response
to the use of force where necessary to preserve public safety. Tellingly, the legal
literature records multiple incidents that closely illustrate this ideal. To take one
example: when the Umayyad caliph ‘Umar b. ‘Abd al-‘Aziz (r 717–720), was
informed that the Khawarij were cursing him, he responded that the best way to
deal with rebels with a cause was with reciprocity: ‘If they curse me, then curse
them or pardon them; if they bear their swords, then bear your swords; and if they
strike, then strike’.44
2. Limitations: sexual and religious mores

Whereas the political realm took a wide-angled and nuanced view of political
expression, the social-moral realm adjusted with a narrower lens. When it came
to expression that they deemed trangressive of propriety’s demands, Muslim jurists
enunciated significant limitations. Specifically, they articulated rules of Islamic law
that strongly prohibit false accusations of sexual impropriety, typically against
‘chaste, believing women’.45 In addition, these jurists also took a strict stance
against speech acts that would create a per se political-military threat, that is, speech
acts that they deemed tantamount to apostasy and that were therefore criminalized
rather than accommodated in the way of political speech. Both types of speech fell
under the rubric of defamatory speech acts (qadhf ), which initially referred to
sexual slander but could include defamatory words that levied other types of
reputational harm or violated religious mores in speech that came to be known as
blasphemous.

42 See Qur’an, 49:9 (wa-aslihu baynahuma).
43 Al-‘Allama al-Hilli, Tadhkira, 9:411; Ibn Qudama, Mughni, 12:243.
44 Ibn Qudama, Mughni, 12:247.
45 See Qur’an, 24:4, and sources listed at n 49.
a. Defamation as personal and public offense

The specific type of defamatory act that Islamic law prohibits, in its original sense,
includes statements of explicit, false allegations of sexual impropriety.46 The
prohibition came to apply to denial of lineage as well (which implies the sexual
impropriety of one’s parents).47 And the ban also came to encompass irreverent
statements against the Prophet and his family, as detailed below.48 As crimes, early
jurists regarded these types of defamation as so severe that they numbered on the
short list of fixed crimes and harsh sanctions called hudud laws. The early and
medieval law manuals typically designated defamatory speech acts second in the list
of such crimes, just after sex crimes themselves (fornication or adultery). Moreover,
these manuals specified that this type of defamation carried a mandatory punish-
ment of 80 lashes, based directly on Qur’anic texts and prophetic traditions.49
To initiate a defamation case, a plaintiff (typically a woman in the case of sexual
slander) had to bring claim against the defamer, typically by petitioning the state to
prosecute. Once the plaintiff did so, if she could prove the allegation and if she
requested that a judge impose the criminal punishment, the general Islamic
criminal law rules then required courts to enforce the punishment unless the
circumstances provided some mitigation or nullification of the verdict. It was a
matter of controversy amongst the various schools of Islamic law as to whether the
plaintiff could retract her claim, and more generally, whether prosecution or
punishment for defamation could in fact be mitigated, nullified, or pardoned if
the plaintiff did attempt to forfeit the claim.
Jurists debated the two sides through juxtaposing competing doctrines: (1) of
God’s claims against human agents bound by His law (huquq Allah)—by which
they meant claims of the public sphere—and (2) individual claims against other
individuals (huquq al-‘ibad)—by which they meant private disputes between two
parties. If defamation was a personal offense and thus a purely private claim, it
would make sense for the court’s determination as to whether to punish to hinge on
a plaintiff ’s decision to either bring a claim or forfeit her right to do so. As a personal,
private offense, defamation law would also presume that a plaintiff ’s decision to
forgo the claim would take away the state’s punishment prerogative, no longer
46 See, eg, Zayn al-Din Ibn Nujaym, al-Bahr al-Ra’iq sharh Kanz al-Daqa’iq ([Cairo]: np, 1893),
3:153–4.
47 See, eg, Ibn Rushd II, Bidayat al-mujtahid, 2:645; Abu al-Barakat al-Dardir, Aqrab al-masalik ila
madhhab al-Imam Malik (Cairo: np, 1955), 187; Abu al-Barakat al-Dardir, Sharh al-saghir, ed Mustafa
Kamal Wasfi (Cairo: np, 1972), 4:187, 461.
48 On definitions of qadhf that include all three types of defamatory speech acts—blasphemy, false
accusations, and lineage denial—see, eg, Ibn Qudama, Mughni, 12:272, 287,290, 310–11. Cf Ahmad
b. Yahya al-Wansharisi, al-Mi‘yar al-mu‘rib, ed Muhammad Hajji (Rabat: Wizarat al-Awqaf wa’l-
Shu’un al-Islamiyya), 2:549–50.
49 See Qur’an, 24:4 For a prophetic tradition placing defamation on a list of seven major offenses,
see Burhan al-Din al-Marghinani, al-Hidaya sharh Bidayat al-mubtadi, ed Muhammad ‘Adnan
Darwish (Cairo: np, 1966), 2:400; Ibn Rushd II, Bidayat al-mujtahid, 2:645; Ibn Abi al-Qasim,
al-Wadih fi sharh Mukhtasar al-Khiraqi, ed ‘Abd al-Malik b. ‘Abd Allah b. Duhaysh (Beirut: Dar Khidr
lil-Tiba‘a wa’l-Nashr wa’l-Tawzi‘, 2000), 4:421–2; Yahya b. Sharif al-Nawawi, al-Majmu‘ sharh
al-Muhadhdhab, ed Muhammad Husayn al-‘Aqabi (Cairo: np, 1966), 18:286.
authorized by petitions for redress of a private injury. But what if defamation was
an offense against the public sphere itself, the prosecution of which counted as one
of God’s claims against humans, which was the legal doctrine that jurists held to
apply to all other hudud crimes? Then the extent of the state duty to enforce
punishment, the victim’s ability to forfeit, and any executive prerogative to forgo
punishment would turn on factors other than individual claims. If defamation was
a public law offense, then individual claims would subordinate to those of the
public interest and the court’s determination of whether to punish on the merits of
the case rather than the offense of the victim. A public law view of defamation
would foreclose the possibility of plaintiff forfeiture or nullification.50
Jurists in most schools of Islamic law maintained that individual claims were
paramount in defamation cases, such that a plaintiff could in fact choose either to
pursue or forfeit a claim. But Hanafi jurists such as the famous 12th century Central
Asian jurist Kasani (d 587/1191) took a different view. He maintained that all hudud
punishments were exclusively God’s claims, obligated for the public interest,
namely, to prevent corruption in society.51 For him, every crime was an offense to
the broader community, the public sphere. And the purpose of punishing crimes
was to pay deference to God as Lawgiver by ‘advancing the requirements of public
benefit and averting public harm’.52 Therefore, punishment was mandatory upon
conviction, the decision resting in the hands of the state rather than the victim.
Indeed, according to some jurists, the only way to vindicate individual claims for
seemingly personal offenses was to place them in the category of public law.
Accordingly, enforcement of fixed criminal sanctions was to be a public event.
These jurists maintained that the public spectacle of flogging was designed to
specifically deter the offender from committing the predicate crime again and to
generally deter anyone else contemplating committing such crimes. To the extent
the criminal law meets this aim then, they maintained, the law includes attention to
individual claims, though they insisted that the reverse did not hold true—that is,
vindication of individual claims did not mean vindication of public law claims.53 In
other words, if the law against defamation was conceived as designed only to defend
personal integrity (thus, for example, letting plaintiffs forfeit claims and therefore
punishment at will), its benefit would not accrue to the public by meeting the goal
of protecting the public at large. Put differently, an individual can only defend her
reputation if the state backs her attempt with the coercive power of the law,
consistent with its mandate to protect the public sphere as a whole. On this
logic, many jurists argued that allowing a lack of consequences altogether for
50 On God’s rights and private claims, see Anver M Emon, ‘Huquq Allah and Huquq al-‘Ibad:
A Legal Heuristic for a Natural Rights Regime’ (2006) 13(3) Islamic Law and Society 325–91; Miriam
Hoexter, ‘Huquq Allah and Huquq al-‘Ibad as Reflected in the Waqf Institution’ (1995) 19 Jerusalem
Studies in Arabic and Islam 133, 134; Baber Johansen, ‘Sacred and Religious Element in Hanafite
Law—Function and Limits of the Absolute Character of Government Authority’, in J-C Vatin and
E Gellner (eds), Islam et politique au Maghreb (Paris: CNRS, 1981), 281.
51 Abu Bakr al-Kasani, Bada’i‘ al-sana’i‘ fi tartib al-shara’i‘, Ahmad Mukhtar ‘Uthman ([Cairo]:
Zakariyya ‘Ali Yusuf, 1968), 9:4202.

52 Abu Bakr al-Kasani, Bada’i‘ al-sana’i‘ fi tartib al-shara’i‘, 9:4202–3.
53 See Marghinani, Hidaya, 2:402.
defamatory acts sometimes, by ‘abandoning hudud laws’ or refusing to enforce
them, would result in a failure to deter defamation at all.54
b. From defamation to blasphemy as political threat

This baseline in the law of defamation provided fodder for one group of jurists, the
Hanafis, to expand the doctrine of defamation from statements of sexual impropri-
ety and lineage-denial to a new crime of blasphemy. Many jurists condemned
offensive statements against God and the Prophet, as well as statements in contra-
vention of theological tenets developed with respect to either. But such statements
were not easily punishable, as condemnatory as they were; punishment came only
where such statements rose to the level of apostasy in the sense of denying the
fundamental tenets of theology and propriety.55 From this point, Hanafis made a
dramatic move: they maintained that whoever defamed the Prophet or even revered
figures and doctrines was not simply acting offensively, but was committing a crime
of blasphemy, punishable in the same manner as those who had explicitly, con-
structively renounced allegiance to the community and its laws.56
The rationale underlying this rule was an argument linking several steps. To curse
God was to blaspheme Him, which was implicitly to signal a departure from the
community of Muslims and the laws governing them. The presumption was that a
person could not possibly be a Muslim, fitting squarely within its system of laws and
confessing to the oneness and supremacy of God, if he or she at the same time cursed
God. The same applied to cursing the Prophet, the family of the Prophet, and the
revered companions of the Prophet. If blasphemy could be so defined with respect to
God, then, this reasoning would extend to protect any figure that Muslim ‘ortho-
doxy’ held to have been sent or otherwise revered by God.57
In a parallel stream to their arguments about defamation laws as rules designed to
avert public harm, these jurists contended that blasphemy laws were designed to
address questions of public harm as well. In their view, these laws could protect the
integrity of the community of Muslims and prevent societal corruption by those
who—by making blasphemous statements—the community saw to be announcing
broad-spectrum divergence from basic societal norms.58 For this reason, these
54 Indeed, some contemporary scholars criticize Muslim states for failing to enforce hudud laws,
arguing that prison alone does not deter would-be criminals or lessen the high rates of recidivism. See,
eg, Mustafa Ahmad al-Zarqa’, al-Madkhal al-fiqhiyya ila ’l-huquq al-madaniyya (Damascus, 1952),
402, 412–13 (quoting Subhi Mahmasani, al-Nazariyya al-‘amma lil-mujibat wa’l-‘uqud fi’l-shari‘a
al-islamiyya, 1:120–3, and ‘Abd al-Wahhab Khallaf ’s article in Majallat al-qanun wa’l-iqtisad al-Mis-
riyya 10, 4); Aly Aly Mansour, ‘Hudud Crimes’ in C Bassiouni (ed), The Islamic Criminal Justice System
(London: Oceana Publications, 1982), 195, 200–1.
55 See Ibn Qudama, Mughni, 12:310–11 (here: applying this doctrine to statements against the
God, the Prophet, or the Prophet’s mother).

57 See Ibn Qudama, Mughni.
58 Jurists regularly assert that hudud are punishments that God used to deter humans from
committing crimes and to encourage them to follow the law. See, eg, Mawardi (d 450/1058), al-
Ahkam al-sultaniyya, ed Muhammad Fahmi al-Sarjani ([Cairo]: al-Maktaba al-Tawfiqiyya, [1978]),
312; Shihab al-Din al-Qarafi, Tahdhib al-furuq wa’l-qawa‘id al-Sunniyya fi’l-asrar al-fiqhiyya (Cairo,
jurists held that neither defamation nor blasphemy actions could be dropped by an
individual plaintiff who attempted to forfeit the claim. And for this reason, they
regarded both as properly in the domain of a public law, governed necessarily by
God’s claims specified in hudud laws.
***
The line between free expression and restricted speech in the form of blasphemy
laws became more and more distorted as theological groups in opposition to the
state proliferated and were taken to pose a violent political threat to the state.
By the 11th century, the state’s harsh dealings with the political-theological
opposition gave fodder to the later juristic tendency of transferring apostasy laws
even to non-Muslims, rebels with a legitimate cause, and Muslims who had made
blasphemous statements—none of whom were originally governed by Islam’s early
apostasy laws. As for non-Muslims, it was clear that—by definition—apostasy laws
did not govern them. Non-Muslims typically lived in Muslim territory subject
to certain treaty-like agreements with the explicit understanding that they were free
to practice their own religions while respecting that of the Muslim community. As
for rebels, recall that members of the opposition groups who were categorized
neither as fully Muslim nor fully non-Muslim fell outside of the recognized
contours of medieval ‘citizenship’. Jurists designated those residing in this in-
between space as either rebels—who might have a legitimate cause with the
interests of Islam and the state in mind—or enemies of the state. The laws of
rebellion were designed to protect the former, while the blasphemy laws aimed to
prevent the latter.
What about Muslims who had made blasphemous statements? For Hanafi
jurists, cursing God or the Prophet could have no legitimate state-centric purpose
or God-serving reason and, as such, could be held—like apostasy or rebellion
without a legitimate cause—to signal opposition to the public order as Muslims
knew it. But the threat was potential rather than actual in these instances, which
made it unique and exceptional amongst the Islamic legal positions to deem mere
blasphemy a crime. While most schools continued to regard so-called blasphemy as
one form of defamation, Hanafis turned it into a strict-liability crime.
What did it take for defamation to be regarded as blasphemy and therefore
the crime of apostasy under Hanafi law? The offender had to have either acted
or spoken in a way that blasphemed God or the Prophet, as defined by the
developed theological orthodoxy constructed by jurist-theologians and other
scholars in the first few centuries of Islamic thought. Further, the offender had to
be adjudged mature and sane, to have acted voluntarily (even if not intentionally),
and to have been invited to repent three times before any conclusive judgment
1926–28), 3:845; Shams al-Din Ibn Muflih, Kitab al-furu‘ fi fiqh al-Imam Ahmad b. Hanbal (Beirut,
2002), 3:354; Abu Ishaq Ibn Farhun, Tabsirat al-hukkam fi usul al-aqdiya wa-manahij al-ahkam
(Beirut, 1995), 2:115–16.
could be made.59 What specifically might blasphemous speech acts have entailed in
this context?
i. Words as blasphemy
As noted, the basic definition of blasphemy in Hanafi law involves denying the
oneness of God or the prophethood of Muhammad.60 It was to explicitly negate
the statement by which any individual expressed the core Islamic creed and thereby
joined the faith: ‘There is no god but one God, and Muhammad is the messenger of
God’.61 Non-explicit statements could also imply such a negation, and to the extent
that a statement could implicitly negate the creed, Hanafi jurists considered
it blasphemous, whether or not intended as such by the speaker.62 For example,
someone could acknowledge Muhammad as a Prophet, but not as the last Prophet;
he could reject certain verses of the Qur’an—which implies a rejection of
God as divine and the Prophet as having delivered His message; he could claim
prophethood for himself; or he could curse God or the Prophet, whether in
seriousness or in jest.63
The baseline rule for making a blasphemy determination was that any statement
where the subject matter would tend to question God’s absolute divinity and
sovereignty was to be read as blasphemous according not to intent, but to scholarly
definitions. In other words, blasphemy was a strict-liability offense covering state-
ments that Hanafi jurists and theologians had determined were defamatory against
the Prophet, his family, or companions, even if several steps removed from the
alleged object of insult, that is, even where statements had violated some element of
the complex set of Islamic tenets that had emerged after the 11th century. This
principle saw stark illustration in a manual for Hanafi judges, considering the
blasphemous implications of some conventional sayings in 12th century Central
Asia, as repeated in legal discussion as late as 17th century India. Al-Fatawa
al-Hindiyya (Indian Legal Opinions) displays an exceptionally low tolerance for
theological dissent, ignorance, or even jest.64 That is, commenting on popular turns
of phrase, jurists easily declared people to be unbelievers.
59 Ibn Qudama, Mughni, 12:264–8, 271.

60 Jurists drew on Qur’an, 9:65–6 for the legal basis against this sort of blasphemy, and their
position considering it apostasy: ‘If you were to ask them, they would say that we were just idling and
playing; say: would you jest with God, His signs, and His prophet? There is no excuse; you have
manifested disbelief after having believed.’
61 Ibn Qudama, Mughni, 12:297; al-‘Allama al-Hilli, Tadhkira, 9:433.
62 This followed the general doctrine of implicit defamation, about which most jurists opined that
defamation by implication or figurative speech could stand in the place of explicit statements, typically
based on conventional understandings of vernacular or idiomatic language. See Ibn Rushd II, Bidayat
al-mujtahid, 2:646.
63 See Ibn Qudama, Mughni, 12:298. A historical example of claims of prophethood came during
the Prophet’s time and just after his death, when Musaylima and Tulayha al-Asadi, separately, claimed
prophethood. Jurists stated unequivocally that they and their followers committed blasphemy and
became apostates. Tulayha was to return to Islam and be killed in battle at Nahawand, for which the
books about the companions of the Prophet count him as a ‘martyr’.
64 Al-Fatawa al-Hindiyya (al-Fatawa al-‘Alamgiriyya), ed ‘Abd al-Latif Hasan ‘Abd al-Rahman (Dar
al-Kutub al-‘Ilmiyya, 2000) (composed between 1075/1664 and 1083/1672, copying from inter alia,
Qadi Khan (d 592/1196), Fatawa Qadi Khan, and Ibn Mazah (d 616/1219), Muhit).
For example, if—when told not to lie—a man responded that ‘this is truer than
[the creed], “there is no god but one God and Muhammad is the messenger of
God”’ jurists would declare him to have committed an act of blasphemy and be no
longer Muslim.65 Or a person might remark, ‘I am bored of Islam’.66 Or she might
say, ‘I am Satan’.67 With all of these statements, these Hanafi jurists concluded that
the speakers had committed blasphemy and thereby become disbelievers regardless
of their actual beliefs and even though they may have meant to actually affirm the
truth of the creed, having been simply speaking offhandedly and idly, or even joking.
By contrast, non-Hanafi jurists from the other three schools of Sunni Islamic law
and the main Shi‘i school usually declined to hold even intentional jabs at the
Prophet or his family to be criminally blasphemous, unless they constituted explicit
denials of faith of the type outlined in the apostasy laws that meant departure from
the laws and war against the community. One case touches on sensitive topics
intersecting both political and theological realms. In early Islamic history, Sunni
jurists had declined to hold even a vigilante like Ibn Muljam—‘Ali’s assassin—or
anyone who acted out of some honest but erroneous interpretation of law or
theology, to be an apostate.68 In the same vein, they held that praising such
assassins could not be criminalized. They deemed that type of praise to be a merely
legally neutral, though socially undesirable, speech act rather than blasphemy.
From the standpoint of the laws of rebellion, such speech would be protected
even if, and in fact, to the extent that it was political dissent or expression that did
not work to threaten public safety or the public morals represented in the set of
fixed criminal sanctions. Such was the ruling applied to the poet, ‘Imran b. Hittan,
who wrote in praise of Ibn Muljam.69
In sum, Hanafis turned blasphemy into an independent and strict-liability
offense of apostasy—the speech act automatically invoking the harshest criminal
punishment. The other schools severely restricted its scope in ways that imposed a
sharp intent requirement for explicit blasphemy and otherwise forbade criminaliza-
tion of most speech, even when it involved severe reproach to Islam’s revered figures
and tenets. Moreover, to criminalize speech, these schools also added an implicitly
treasonous intent requirement to blasphemous speech—that is, for blasphemy to
be criminalized, it had to represent a deliberate announcement of non-allegiance
with the Muslim polity and its laws.
***
Jumping to the modern applications of the medieval concept: If statements against
‘Ali of the type considered in the classical literature, were transplanted to another
time and place—as in the modern period outside of India or Central Asia—and
65 See Al-Fatawa al-Hindiyya (al-Fatawa al-‘Alamgiriyya), 2:301.

66 Al-Fatawa al-Hindiyya (al-Fatawa al-‘Alamgiriyya), 2:300.
67 Al-Fatawa al-Hindiyya (al-Fatawa al-‘Alamgiriyya), 2:298.
68 More than simply lack of criminal intent, such ‘offenders’ had to believe that their statements
would draw them closer to God. Ibn Qudama, Mughni, 12:276.

told without the back-story about ‘Ali and his assassin, the offensive nature of such
comments would be completely lost. It is in that vein that we should read the
confusion over the cartoon controversy, where the intent and context were lost, and
where the jurisdiction was not a medieval Muslim one. In such circumstances,
Muslim jurists classically would have been hard-pressed to secure a blasphemy
conviction for such statements or acts like those accompanying the publication, or
promotion of pictures ridiculing Muhammad. In other words, the elements re-
quired to declare speech to be blasphemy (in the sense of being tantamount to
apostasy as treason, as was the restricted meaning for mainstream Muslim jurists)
meant dealing with an internally coherent system of laws that folded in cultural,
temporal, and jurisdictional standards of propriety and treasonous intent. The
implication is that, for most jurists, the blasphemy laws formulated in classical
Islamic legal writings could apply only to a Muslim society of earlier times and
particular places of shared moral norms according to a narrow set of justifications.
ii. Acts as blasphemy

In rare cases, mainstream jurists held that mere acts could also qualify as blasphemy,
though they often required those acts to be backed by words—again, criminalized
where the acts and words amounted to announcements of intent to disregard the
leadership and laws of the Muslim community.70 For instance, many jurists held
that performing magic—whether spoken, written, or by actions—typically consti-
tuted a blasphemous act.71 Magic was known conventionally as any set of events
orchestrated by one person to affect the heart, mind, or well-being of another
person. Despite debate about whether magic was real or illusory, most Muslims
agreed that there was some basis for the idea that people practiced it and that it
could have or appear to have real-world effects worth guarding against. The practice
of magic was unauthorized; and foundational texts condemned it as exhibiting a
lack of faith, denial of God’s power, and rejection of the spiritual order of the world
where believers should appeal to God rather than to magic for help in changing
their circumstances.72 Jurists therefore deemed the practice of magic an act of
blasphemy tantamount to apostasy.
Jurists also sometimes read mundane acts or omissions to signal blasphemous
intent. If an adult, sane Muslim man failed to perform the daily prayers, typically
no one in a Muslim society would notice or assume that his failure was out of
disbelief. Yet, if that same man verbally denied the obligation to pray (accompanying
the omission with a public declaration), then most jurists would authorize appre-
hending and prosecuting him for challenging this basic Islamic ritual require-
70 One notable exception to this general rule is the opinion of Shafi‘i, who did not take the position
that the magic alone—without more—could warrant the death penalty. Ibn Qudama, Mughni,
12:304.
72 Ibn Qudama, Mughni, 12:304 (citing Qur’an 112:1–5, which ends with a supplication for
seeking refuge from magic, and Qur’an, 2:102, recounting two angels who taught magic to an ancient
community).
ment.73 Their logic was that the obligation to pray, together with the other ‘five
pillars’ of Islam (declaring belief in God and the prophethood of Muhammad,
giving in charity, fasting, and performing the hajj pilgrimage) is abundantly evident
in Islam’s foundational texts and in Muslim societies conventionally. The Qur’an
and hadith are replete with references to prayer and other known obligations and
prohibitions; and it is typically a matter of popular knowledge that Muslims adhere
to these basic pillars.74 To violate them and announce the violation, for many
jurists, meant a denial of these basic societal and textual norms.
To be sure, jurists noted several exceptions to criminal liability in these contexts.
If someone who denied the obligation to pray was a new Muslim convert or lived
outside of Muslim lands, he would not be expected to know about even the most
basic of pillars. In such cases, jurists held, that person was to be informed about the
law rather than being labeled and punished as an apostate. The general principle
in this context follows that of contexts of rebellion: if there were doubt (shubha)
about the nature of a potentially blasphemous statement or act, or if there were
a legitimate cause or plausible non-blasphemous interpretation (ta’wil )—even
if erroneous—no criminal sanctions would attach. As the jurists constructed it,
classical Islamic law would presume that the person had no ill will against the state
and societal norms unless he otherwise manifested actions or words amounting to
treason.75
C. Procedural requirements
Proving blasphemy followed the ordinarily high evidentiary standards of the rest of
Islamic criminal law. There had to be incontrovertible testimony from two witnesses
or a confession amounting to rejection of Islam or its core elements, and by
extension, of the agreement to be bound by local norms in a Muslim community.76
If that evidence came before a court but the accused denied it, the court was to invite
him or her to repent and disavow the position for which proof was entered. This
repentance and disavowal would lift the possibility of serious criminal liability.77
Moreover, any blasphemous action had to be fully voluntary to incur liability.
For that matter, any conversion to Islam in the first place had to be fully voluntary
as well. Jurists held that any non-Muslim who made blasphemous statements after
having been forced to become Muslim could not be regarded as an apostate.
Likewise, any Muslim forced to utter blasphemous words or perform acts tanta-
mount to rejecting Islam could not be regarded as an apostate either.78 Like
blasphemous words and acts generally, the type of blasphemy that jurists saw as

74 Ibn Qudama, Mughni, 12:276. 75 Ibn Qudama, Mughni, 12:276.
76 Ibn Qudama, Mughni, 12:287. 77 Ibn Qudama, Mughni, 12:287–8, 289.
78 Ibn Qudama, Mughni, 12:293–4 (citing Qur’an, 16:106: ‘ . . . except for the one whose will is
[overcome and he is] forced [to commit an act of blasphemy] despite being satisfied with his faith;
while whoever reveals disbelief in their hearts has a punishment due from God’, and several hadith
rejecting any legal consequences flowing from coercion).
tantamount to apostasy always carried an intent requirement that looked to
conventional norms of society, subject matter of the statement, and the surround-
ing circumstances to assess whether the act was voluntary and intentional.79
1. Islamic legal ambitions for expression and religion

Taken together, the Islamic legal tradition has expressed a rather complex under-
standing of speech expression in the political realm, which in the end required
rulers to have a thick skin when it came to criticisms aimed in their direction. Jurists
imagined the legal tradition to have a thinner skin in the realm of religious and
societal norms of propriety. They typically conceived blasphemy laws to go to the
heart of religion and law’s integrity. For them, if religious speech acts akin to
confessing the Muslim creed reflected societal commitments to uphold the law—
much as an oath of citizenship might in the contemporary world—then renouncing
such an oath would conceptually signal a threat or possibility of treason, combat
against the state, and opposition to the social order itself. In other words, members
of the Muslim community under Muslim rule were expected to play by its rules,
including its call to honor reputation, lineage, and religious status. For the jurists,
signaling absolution from those expectations could very well pose a threat of
violence against the state and its public order or rule of law.
In trying to accommodate political dissent through rebellion laws but to regulate
public morality and the rule of law through blasphemy laws, jurists found them-
selves between these thick and thin tensions. They wrestled with the competing
concerns of government restraint (through explaining rules against constraints on
political dissent) and religio-legal stability (through explaining the rules against
‘freedoms’ to engage in blasphemy and apostasy). The criminalization of defamatory
speech spoke of the internal values of Muslim communities in medieval times
where geopolitics allowed jurists elaborating the law to conceive of the world in
black-and-white terms: split between Muslim or non-Muslim; with speech acts
divided along lines of plausible and excusable, or unjustifiably false and criminal.
***
What happens when the geopolitics change, as they radically did in the shift from
the premodern period to the modern era of nation-states and globalization? The
new world order can be characterized as anything but one of stark borders and
black-and-white boundaries. Indeed, the shift in economic power and the type of
global interconnectedness and geopolitics that left Muslims politically subordinate
were key factors that made the recent worldwide Danish cartoon controversy
possible. These factors also facilitated the international profile and outrage at
cases like those of Aasiya Bibi and Lina Joy. And the global interconnections

were central to the wave of uprisings that swept the Middle East in the events of the
2011 Arab Spring.
Unsurprisingly, the medieval Islamic legal tradition says little about practical
application of its rules to modern eras with religio-political structures quite different
from the ones in which it was elaborated. Then, it was clear that blasphemy and
apostasy laws governed Muslims in Muslim lands. It was also clear then that
rebellion laws governed political dissent in those lands. Yet, given the structural
changes in the governing structures and laws of the modern Muslim world, the
meaning and scope of the medieval laws has become unclear today.
There is now the sense—held by some Muslims and non-Muslims alike—that
medieval Muslims intended their laws to apply globally and through violent
and coercive means. Where might insights on this fear be located in tradition?
One source might be to look at a prominent premodern jurist’s reflections on
the Prophet’s global ambitions. Examining his thought might shed light on the
proposed reach of Islamic laws on speech and otherwise in connection with the
governing Qur’anic commands.
D. Qur’anic commands
Three Qur’anic verses—as commented on by the famous ‘rationalist’ scholar Fakhr

al-Din al-Razi (d 606/1209)—bear on the relevant questions here. In the first
instance, Qur’an 4:59 directs Muslims to ‘obey those in command over them’.80
Razi explains that this instruction referred to reflexive rights and obligations
between ruler and ruled. Rulers were tasked with ruling with justice; and
people, in return, were advised to obey the rulers. As ‘Ali b. Abi Talib put it, ‘it
is the duty of the Imam to judge according to what God revealed and assume the
trust; so long as he does so, then it is the duty of the people to listen to and obey
him’.81 The requirement of obedience requires that the leader be divinely desig-
nated and infallible (as the Prophet was regarded, and as were the Imams as well
in the Shi’i tradition) or otherwise approved by the community through consen-
sus.82 For Razi, the definition of consensus lies jointly in the hands of the
scholars—who enjoy an ‘epistemic authority’ over the law by virtue of their
interpretive capacity—together with groups of electors who selected and pledged
allegiance to political leaders.83 In significant measure, this verse lays out the case
for obedience to Islamic law itself, including the protections and limitations
on speech laid out above.
80 Qur’an, 4:59 (ati‘u ’llaha wa-ati‘u ’l-rasula wa-uli ’l-amri minkum).

81 Fakhr al-Din al-Razi. al-Tafsir al-kabir (3rd edn, Dar Ihya’ al-Turath al-‘Arabi, 199-?) [Reprint;
Originally published in Misr: al-Matba‘a al-Bahiyya al-Misriyya, 1934–1962], 10:142.
82 Fakhr al-Din al-Razi. al-Tafsir al-kabir, 10:144. For instance, Sunnis early on held that they
could validly make determinations about the leader by consensus, which they held to provide a fail-safe
source of guidance given the doctrine that the entire community would never agree upon an error.
83 Fakhr al-Din al-Razi. al-Tafsir al-kabir, 10:145, 150.
In a second set of verses, the Qur’an announces famously that ‘there is no
compulsion in religion’,84 and informs the Prophet that he ‘exercises no power of
control over [people]’.85 This, Razi interprets to mean that God never commanded
or authorized, as a broad matter, faith on the basis of force and limitation.86 Rather,
God based determinations about religion and faith on capacity and choice.87
Accepting Islam requires comprehensive information about it, that is, information
so complete of a system so perfect that it would cut off any ‘excuse’ for rejecting it.
The result of proceeding with that idea would be a situation where the reality on the
ground would drive the doctrine to fit only the narrowest of circumstances for
determinations of blasphemy. If someone rejected Islam, the logical presumption
would be that they had imperfect information about the religion or else some other
doubt restraining them from what would otherwise be logical or easy acceptance.
Moreover, forcing someone to accept Islam would itself be incoherent, as it would
vitiate the very meaning of approaching God voluntarily through test and trial.88
Thus, the ‘no compulsion’ and ‘no power’ verses point to the idea that, outside of
what we might call a heritage Muslim community, accepting Islam was a move
purely within the prerogative of the recipient of the message. At most then, a person
could announce a commitment to Islamic principles, but one was not to expect
others to do so if those others simply were convinced that they should or must.
The verse telling the Prophet that he has no effective power over people was
further to underscore the point that people acted independently, regardless of his
wishes. The verse was reportedly revealed after the Prophet became saddened by the
continuing disbelief of those to whom he had sought to deliver and clarify the
message.89 In response, this verse emphasizes that the Prophet’s function and
ambition should have been limited to delivering the message, not controlling
what happens after the fact.90 In reiterating that only God controls outcomes,
the verse was assuring the Prophet that He would take account of believers and
disbelievers alike and deal with them in the afterlife, not as a matter in the hands of
human prerogative (haqq al-nas), but as a matter of His divine prerogative (haqq
Allah).91
E. Conclusions
All of this discussion about speech in classical Islamic law raises fundamental
questions about the reach of medieval constructs on modern-day considerations.
84 Qur’an, 2:256 (la ikraha fi’l-din).

85 Qur’an, 88:23 (lasta ‘alayhim bi-musaytir).
86 Fakhr al-Din al-Razi. al-Tafsir al-kabir, 7:14–15.
89 Fakhr al-Din al-Razi. al-Tafsir al-kabir [89], 31:160 (quoting the following verse, ‘surely their
return is to Us and their recompense with Us: inna ilayna iyabahum, thumma inna ‘alayna hisabahum’).
On the one hand, the doctrines of protected political expression and restrictive
social-religious expression from earlier Islamic periods reflect firm values of pro-
moting good governance and upholding religious mores in Muslim communities.92
But that is not to say that the associated medieval rules were absolute, particularly
when the contexts framing and justifying them were contingent. To the extent that
the medieval law placed a premium on social conventions and intent, it made the
tradition on speech in that regard relative to prevailing notions of propriety.
Moreover, as Razi suggested in his reading of the Qur’an, a broader reading of
the tradition that traversed black-and-white rules of condemnation or exoneration
for speech acts and for citizenship could be helpful. To be illuminating, a reading of
the classical context must consider situations beyond those of the particular
geopolitical and cultural contexts in which the medieval Islamic law doctrines on
rebellion and speech acts were formulated.
The ironic feature of questions of speech is that the twin Islamic legal traditions
bracketing them—of protected political expression and restrictive social-religious
expression—seem to have flipped and then universalized. On the one hand, the
accommodations of political speech enunciated in the Islamic rebellion laws seem
unrecognizable and surprising now precisely because of their significant absence in
the Muslim world’s post-colonial authoritarian regimes. Indeed, this fact was no
doubt a major contributing factor to the events leading up to the Arab Spring and
its aftermath. At the same time, some legislatures of Muslim-majority states
universalized the doctrines on blasphemy to include the world of non-Muslims
domestically and globally in states neither bound nor politically threatened by a
rejection of the Muslim creed. This state of affairs resulted in violence surrounding
cartoon depictions of Muhammad. It also led to death declarations against women
like Aasiya Bibi and Lina Joy, despite them fitting into known categories of
citizenship in their respective countries, which they had not repudiated or other-
wise signaled any direct or immediately threatening stance to the state. To be sure,
Islamic legal rules are typically fluid, characteristically constructed by each commu-
nity with reference to tradition. In the context of aspiring democracies in the
Muslim world, to articulate an internally coherent tradition of free speech will be
to understand the classical Islamic legal tradition alongside modern commitments
to democratic governance. Without it, this context illustrates how tradition, elided
and superimposed onto quite different structures of law and governance, can result
in flipped Islamic legal traditions of speech.
92 For a trenchant analysis of blasphemy laws as representations of identity, see Talal Asad, ‘Free
Speech, Blasphemy, and Secular Criticism’, in T Asad et al (eds), Is Critique Secular? (Berkeley:
University of California Press: The Townsend Center for the Humanities at Berkeley, 2009). Asad
challenges the dichotomy that associates ‘secular criticism . . . with freedom, truth, and reason’ and
‘religious laws with intolerance, obscurantism, arbitrary dictum, and coercion’. He remarks that ‘the
limits to possible forms of actions are articulated by social values’ (p 56); and that the presence of
blasphemy laws in Islamic societies sounds like a rejection of free speech altogether because of a
‘Western conceit of the self-owning individual presumed free from all forms of coercion, including
those potentially entailed in religion, commerce, love, belief, and comportment’ (p 15).
9
Freedom of Speech: The Great Divide
and the Common Ground between the
United States and the Rest of the World
John B Bellinger III and Murad Hussain
By its terms, the First Amendment to the US Constitution is absolute: govern-

ment in the United States ‘shall make no law’ abridging ‘the freedom of speech’.
Although the US Supreme Court has read many exceptions into the First
Amendment’s text, the American view of expressive freedom remains far broader
than that embraced elsewhere in the world. In Europe, freedom of expression is
often tempered by statutory restrictions on its exercise in the name of the public
good, even in countries with long histories of vibrant public discourse and
protections for political dissent. And in many Muslim-majority countries, crim-
inal laws that prohibit blasphemy and apostasy have been enforced against
Muslims and non-Muslims alike, whether engaged in personal taunts or political
critiques.
The tension between Western views on open discourse and Islamic views on
taboo subjects has been echoed in the United Nations. Over the last decade, the
Organization of the Islamic Conference (‘OIC’) annually sponsored successful
resolutions in the UN General Assembly, Commission on Human Rights, and
Human Rights Council (‘UNHRC’) condemning ‘defamation of religion’ and
stereotyping of Islam. By focusing on insulating beliefs from criticism instead of
protecting the rights of individual believers, the resolutions drew heavy opposition
from the United States and the European Union, out of concern for giving
international legitimacy to state-sanctioned persecution of religious minorities,
suppression of public discourse, and pursuit of personal and political vendettas in
the name of defending the faith. In March 2011, the UNHRC took a new
approach and passed an OIC-sponsored consensus resolution that condemned
religious intolerance specifically against individuals, without reference to ‘defam-
ation of religion’. For the first time, this measure focused on core principles that
could help bridge the gap among the divergent American, European, and Islamic
perspectives on freedom of speech.
The Great Divide and the Common Ground 169
A. Freedom of speech under the US Constitution
Ratified in 1791, the First Amendment states: ‘Congress shall make no law
respecting an establishment of religion, or prohibiting the free exercise thereof; or
abridging the freedom of speech, or of the press; or the right of the people peaceably
to assemble, and to petition the Government for a redress of grievances’. After the
American Civil War and the ratification of the Fourteenth Amendment, the US
Supreme Court began to apply the First Amendment to restrain the actions of state
and local governments as well.
Historically, freedom of speech and freedom of the press were viewed primarily
as the right to be free only from ‘prior restraints’ on speaking or publishing, but not
from subsequent punishment for the substance of such expression.1 But with its
1931 decision in Stromberg v California, the Supreme Court first read the First
Amendment to invalidate a law that singled out expressive content. Stromberg
reversed the criminal conviction of a teacher at a Communist summer camp,
who had been convicted under a California law that prohibited the flying of red
flags ‘as a sign, symbol or emblem of opposition to organized government. . . . ’2
The anti-flag law undercut ‘a fundamental principle of our constitutional system’,
namely ‘the opportunity for free political discussion to the end that government
may be responsive to the will of the people and that changes may be obtained by
lawful means. . . . ’3 By punishing ‘the fair use of this opportunity’, the law was
‘repugnant’ to the Constitution.4
Stromberg offered a theory of the First Amendment that promotes democratic
deliberation, by keeping public discourse free and clear so government remains
accountable to the governed. Otherwise unchecked, government might seek to
‘suppress unpopular ideas or information or manipulate the public debate through
coercion rather than persuasion’.5 Another theory of the First Amendment holds
freedom of expression to be an essential part of ‘the truth-seeking function of the
marketplace of ideas’, where ‘free trade in ideas’ can help truth of all kinds—not
just political truth—emerge and bolster ‘the vitality of society as a whole’.6 A third
theory values ‘[t]he freedom to speak one’s mind’ as ‘an aspect of individual
liberty . . . and thus a good unto itself. . . . ’7 Despite some tension between these
three theories, they have each informed the Supreme Court’s rulings on the First
Amendment.8
1 See, eg, Patterson v Colorado, 205 US 454, 462 (1907).

2 Stromberg v California, 283 US 359, 361 (1931) (quoting statute).
3 Stromberg v California at 369.
4 Stromberg v California at 369.
5 Turner Broadcasting System, Inc v Federal Communications Commission, 512 US 622, 641 (1994).
6 Hustler Magazine, Inc v Falwell, 485 US 46, 51–2 (1988) (internal quotation marks omitted).
7 Hustler Magazine, Inc v Falwell at 51.
8 See also Robert Post, ‘Reconciling Theory and Doctrine in First Amendment Jurisprudence’
(2000), 88 Cal L Rev 2353.

Today, ‘speech’ is understood to encompass the spoken word, printed material,
music, art, and symbolic conduct. It is presumptively unconstitutional for the
government to restrict speech ‘because of its message, its ideas, its subject matter,
or its content’.9 Direct regulation of the substance of speech must typically survive
strict judicial scrutiny.10 To do so, the government must show that the burden on
speech is the least restrictive means of advancing a compelling governmental
interest. The Supreme Court has rarely seen a content-based law or regulation
that can pass this test.11
However, a few types of speech receive no First Amendment protection at all,
such as obscenity, fraud, ‘fighting words’, incitement, and defamation. These forms
of expression have been historically outlawed, and ‘“the freedom of speech” referred
to by the First Amendment does not include a freedom to disregard these trad-
itional limitations’.12 Because these forms of speech play ‘no essential part of any
exposition of ideas’,13 they do not meaningfully advance democratic self-govern-
ance or the pursuit of the truth.
The Supreme Court has narrowly interpreted these unprotected categories to
keep the exceptions from swallowing the rule. For example, ‘fighting words’ are
limited to personal insults or symbolic conduct ‘which by their very utterance
inflict injury or tend to incite an immediate breach of the peace’ by provoking
the target of the insult to retaliate.14 They merit no protection because ‘[r]esort
to epithets or personal abuse is not in any proper sense communication of infor-
mation or opinion safeguarded by the Constitution. . . . ’15 However, it remains
9 United States v Stevens, 130 S Ct 1577, 1584 (2010) (internal quotation marks omitted).
10 By contrast, courts often show greater deference to regulation of government employees’ speech,
see Pickering v Board of Education of Township High School District 205, Will County, 391 US 563
(1968); regulation of advertising and other ‘speech proposing a commercial transaction, which occurs
in an area traditionally subject to government regulation’, Central Hudson Gas & Electric Corp v Public
Service Commission, 447 US 557, 562 (1980) (internal quotation marks omitted); content-neutral
restrictions on the time, place, or manner of speech in a public forum, see Ward v Rock Against Racism,
491 US 781, 791 (1989); and other measures that indirectly burden speech while advancing a
legitimate governmental aim ‘unrelated to the suppression of free expression’, O’Brien v United States,
391 US 367, 377 (1968).
11 However, in Holder v Humanitarian Law Project, 130 S Ct 2705 (2010), the Supreme Court
held that a federal law criminalizing ‘material support’ to terrorist groups did not violate the First
Amendment, even though it prohibited training such groups ‘on how to use humanitarian and
international law to peacefully resolve disputes’ and ‘how to petition various representative bodies
such as the United Nations for relief ’. Holder v Humanitarian Law Project at 2729 (internal quotation
marks omitted). This and other cases suggest that counterterrorism concerns weigh particularly heavily
in judicial applications of the First Amendment’s balancing tests. See, eg, Murad Hussain, ‘Defending
the Faithful: Speaking the Language of Group Harm in Free Exercise Challenges to Counterterrorism
Profiling’ 117 Yale LJ 920, 953–5 (2008) (analyzing cases and arguing that plaintiffs attacking
counterterrorism policies as overbroad or discriminatory often ‘fac[e] two complementary background
presumptions that tend to favor the government and soften strict scrutiny’, ie, deference to the
executive branch on national security and the imperfection of cognitive heuristics, which can cause
the vivid consequences of a possible terrorist attack to loom larger in the mind than the indignities
actually borne by a handful of plaintiffs).
12 RAV v St Paul, 505 US 377, 383 (1992).
13 Chaplinsky v New Hampshire, 315 US 568, 572 (1942).
14 Chaplinsky v New Hampshire at 572, 574.
15 Chaplinsky v New Hampshire at 572 (internal quotation marks omitted).
unconstitutional to selectively prohibit only those ‘fighting words’ that espouse

certain ideas, such as racial hatred, but not others, such as homophobia.16
As for ‘incitement’, the Supreme Court held in Brandenburg v Ohio that
government may only prohibit advocacy of unlawful action that is both ‘likely’
and ‘imminent’.17 That decision overturned a Ku Klux Klan leader’s conviction
under a state law that prohibited advocating (and assembling others for advocating)
unlawful action to attain political goals. The defendant had participated in a cross-
burning rally where he spoke hatefully of blacks and Jews and threatened ‘reven-
geance’ against the federal government.18 The Court held the law to be unconsti-
tutional because it punished ‘mere advocacy’, explaining that ‘the mere abstract
teaching of the moral propriety or even moral necessity for a resort to force and
violence is not the same as preparing a group for violent action and steeling it to
such action’.19
The First Amendment also shapes what is required to prove a claim of defam-
ation. Only statements of fact can be defamatory, because ‘[u]nder the First
Amendment there is no such thing as a false idea’.20 False factual statements have
no constitutional value because ‘[n]either the intentional lie nor the careless error
materially advances society’s interest in uninhibited, robust, and wide-open debate
on public issues’.21 Moreover, the burden of proof is higher when the victim is a
public figure. Although falsehoods have no inherent value, ‘they are nevertheless
inevitable in free debate’, so this increased burden of proof creates ‘breathing space’
for inadvertent misstatements made during criticisms of ‘those who hold public
office’ or ‘those public figures who are intimately involved in the resolution of
important public questions or, by reason of their fame, shape events in areas of
concern to society at large’.22
As a result, the First Amendment routinely commands protection for speech that
would be readily punished elsewhere in the world. Criticism of the government is
fundamentally protected. Nor can the government punish speech simply because it
is offensive to private sensibilities. During the Vietnam War, the Supreme Court
upheld a California man’s right to wear a jacket emblazoned with ‘Fuck the Draft’
in a courthouse, regardless of what bystanders might have thought of his politics or
language.23 A decade later, the Court refused to hear the appeal from a lower court’s
decision to let American Nazis march through Skokie, Illinois, a town with a
large population of Holocaust survivors.24 A decade after that, the Court twice
invalidated prohibitions on desecrating the American flag, explaining that the best
antidote to offensive speech is, simply, more speech: ‘The way to preserve the flag’s
16 See RAV v St Paul at 391.

17 Brandenburg v Ohio, 395 US 444, 447 (1969).
18 Brandenburg v Ohio at 446–7 (internal quotation marks omitted).
19 Brandenburg v Ohio at 448–9 (internal quotation marks and ellipsis omitted).
20 Gertz v Robert Welch, Inc, 418 US 323, 339 (1974).
21 Gertz v Robert Welch, Inc at 340 (internal quotation marks omitted).
22 Hustler Magazine, Inc v Falwell at 51–2 (internal quotation marks omitted).
23 Cohen v California, 403 US 15 (1971).
24 See Collin v Smith, 439 US 916 (1978), denying review of 578 F.2d 1197 (7th Cir 1978).
special role is not to punish those who feel differently about these matters. It is to
persuade them that they are wrong.’25
The same is true of speech that offends religious sensibilities. Before the First
Amendment was applied to state and local governments, state courts routinely
concluded that convictions under local blasphemy laws did not violate state consti-
tutional protections for freedom of expression or religion. For example, in 1811,
the Supreme Court of New York affirmed the blasphemy conviction of a man who
shouted ‘Jesus Christ was a bastard, and his mother must be a whore’.26 That court
explained that ‘[t]he people of this State, in common with the people of this
country, profess the general doctrines of Christianity’, and that the man’s statement
was an ‘abuse’ of the right to ‘free, equal, and undisturbed enjoyment of religious
opinion’ and ‘free and decent discussions on any religious subject’.27 But by 1941,
the US Supreme Court made clear in Cantwell v Connecticut that the First
Amendment protects the right to speak freely—and intemperately—about religion.
That decision reversed the local conviction of a Jehovah’s Witness for supposedly
inciting a breach of the peace by publicly proselytizing against organized religion in
general and the Catholic Church in particular.28 Not only was the defendant
entitled to speak his mind and convince others of his position, but he was also
exercising his First Amendment right to practice his own religion.29 Thus, in 2011,
the Court similarly upheld the right of a fringe church to use public areas near a
soldier’s funeral to hold a protest with signs proclaiming ‘Thank God for Dead
Soldiers’, ‘You’re Going to Hell’, ‘Pope in Hell’, ‘Priests Rape Boys’, and ‘God
Hates Fags’.30 The Court has even held that a pornographer had a First Amend-
ment right to mock a prominent Christian fundamentalist minister by publishing a
fictional interview that portrayed him fondly recalling ‘a drunken incestuous
rendezvous with his mother in an outhouse’.31
The First Amendment permits debate, dissent, blasphemy, and hate for the
simple reason that no human government can ever be a perfect arbiter of truth.
When the Supreme Court held that public school students cannot be forced to
salute the flag, it explained that ‘[i]f there is any fixed star in our constitutional
constellation, it is that no official, high or petty, can prescribe what shall be
orthodox in politics, nationalism, religion, or other matters of opinion or force
citizens to confess by word or act their faith therein’.32 Even the most hateful ideas
must be left to thrive or fade in public discourse without government intervention,
25 Texas v Johnson, 491 US 397, 420 (1989); see also United States v Eichman, 496 US 310 (1990).
26 People v Ruggles, 8 Johns 290, 293–4 (NY Sup Ct 1811) (internal quotation marks omitted). See
also Commonwealth v Kneeland, 37 Mass 206, 213 (Mass 1838) (affirming conviction for blasphemy,
which the court described as ‘consisting in speaking evil of the Deity with an impious purpose to
derogate from the divine majesty, and to alienate the minds of others from the love and reverence of
God’).
27 People v Ruggles at 294–5.
28 Cantwell v Connecticut 310 US 296, 308–10 (1941).
29 SeeCantwell v Connecticut at 310.
30 Snyder v Phelps, 131 S Ct 2107, 1213 (2011).
31 Hustler Magazine, Inc v Falwell at 48.
32 West Virginia State Board of Education v Barnette, 319 US 624, 642 (1943).
because ‘[h]owever pernicious an opinion may seem, we depend for its correction
not on the conscience of judges and juries but on the competition of other ideas’.33
Accordingly, during the recent controversy over the decision by a Florida pastor to
burn the Qur’an in protest of Islam, there was little doubt that he had a consti-
tutional right to do so. Instead, public officials—including President Obama—
sought to persuade him not to exercise his rights in such an incendiary fashion
because it was contrary to American values and harmful to America’s interests
abroad.
B. Freedom of speech under European law
Much of European law regarding freedom of expression post-dates World War II

and reflects the continent’s firsthand experience with the role that unrestrained
speech can play in fostering atrocity. Article 10 of the European Convention on
Human Rights (‘ECHR’) guarantees the freedom to hold opinions and impart
ideas without government interference, subject to restrictions necessary to prevent
‘disorder’ and to protect ‘health’, ‘morals’, and the ‘rights of others’.34 In theory,
these provisos are analogous to limits on free speech permissible under the First
Amendment. But in practice, individual countries give force to these counterbal-
ancing interests in ways at odds with the American conception of free speech.
Most notably, Germany, France, and many other countries make it illegal to
publicly display Nazi symbols and to deny or justify genocide, including but not
limited to the Holocaust. There is also an apparent European consensus that freedom
of expression does not extend to maligning others or advocating racial, ethnic, or
religious hatred. For example, Germany has criminalized the acts of insulting, advo-
cating arbitrary treatment of, and inciting hatred against segments of the population
‘in a manner capable of disturbing the public peace’.35 The French penal code also
forbids defaming, insulting, or inciting discrimination against a person or group on
various bases, including race, religion, sex, and sexual orientation.36
Similar prohibitions are found in Articles 137c and 137d of the Dutch penal
code, which were recently used to prosecute politician Geert Wilders for group
defamation and inciting hatred against Muslims.37 Among other things, Wilders
had called Islam a fascist religion akin to Nazism and equated the Qur’an to Mein
Kampf.38 He was ultimately acquitted, largely because his statements addressed
Islam generally and did not directly defame or incite hatred against individual
33 Gertz v Robert Welch, Inc at 339–40.

34 See European Convention for the Protection of Human Rights and Fundamental Freedoms,
4 November 1950, art 10, 213 UNTS 221, Europ TS No 5.
35 Strafgesetzbuch [Penal Code] } 130(1), translation available at <http://www.gesetze-im-internet.
de/englisch_stgb/englisch_stgb.html#StGBengl_000P130>.
36 Code Pénal arts. R624–3, 624–4, & 625–7, available at <http://www.legifrance.gouv.fr>.
37 See Verdict paras 4.2–4.3, In the Trial of G Wilders, Public Pros No 13/425046-09 (Amsterdam
Dist. Ct. 23 June 2001), translation at <http://www.rechtspraak.nl/SiteCollectionDocuments/Trans-

lation%20verdict%20Wilders%20230611.pdf> (last visited 11 June 2012).
38 In the Trial of G Wilders para 3.3.1.
Dutch Muslims.39 However, the court noted that Wilders ‘balance[d] on the
border’ of what is legally permissible in public debate with statements such as
‘A conflict is going on and we have to defend ourselves’.40
Even English law, despite sharing historical roots with American law, takes a
more measured approach to freedom of speech. Section 5(1) of the Public Order
Act of 1986 criminalizes the use or display of ‘threatening, abusive or insulting’
speech ‘within the hearing or sight of a person likely to be caused harassment, alarm
or distress thereby’.41 The High Court recently affirmed five men’s convictions
under that provision for protesting at a troop homecoming parade by shouting
‘British soldiers murderers’, ‘Baby killers’, ‘Rapists all of you’, ‘British soldiers go to
hell’, and ‘Shame on you’.42 Interpreting ECHR Article 10, the High Court
explained that ‘the focus on minority rights should not result in overlooking the
rights of the majority’.43 The court then concluded that the defendants went
‘beyond legitimate expressions of protest’ because ‘[t]o attend a parade of this
nature’ and to shout such comments about ‘this country’s soldiers . . . gave rise . . . to
a very clear threat to public order’.44 The Public Order Act also criminalizes the use,
dissemination, or possession (with intent to disseminate) of ‘threatening’ speech in
order to intentionally ‘stir up . . . hatred’ against a group of people defined by race,
religious belief, or sexual orientation.45 In 2010, the Court of Appeal affirmed two
men’s convictions under these laws for using their Internet website—which was
hosted on a computer server in the United States—to distribute racially inflamma-
tory material about Jews and others.46
C. Freedom of speech under international law

The United States and much of Europe are signatories to the International
Covenant on Civil and Political Rights (‘ICCPR’) and the International Conven-
tion on the Elimination of All Forms of Racial Discrimination (‘CERD’).47 ICCPR
Article 18(1) guarantees the ‘the right to freedom of thought, conscience and
39 Eg In the Trial of G Wilders para 4.3.2 (‘Since the suspect addresses the religion and not the
people (Muslims) with these utterances, it cannot be proven beyond any reasonable doubt that he
incites to hatred against and/or discrimination of Muslims with these utterances, as was charged against
him.’ (emphasis in original)).
40 In the Trial of G Wilders para 4.3.2 (quoting Wilders).
41 Available at <http://www.legislation.gov.uk/ukpga/1986/64/contents>.
42 Abdul v Director of Public Prosecutions [2011] EWHC (Admin) 247 para 16, available at <http://
www.bailii.org/ew/cases/EWHC/Admin/2011/247.html>.
43 Abdul v Director of Public Prosecutions para 49(v).
44 Abdul v Director of Public Prosecutions para 52(i).
45 See Public Order Act 1986, c 64, }} 18(1), 19(1), 23(1), 29B(1), 29C(1), 29G(1) (as amended
by Racial and Religious Hatred Act 2006, c 1, Sch 1, and Criminal Justice Immigration Act 2008, c 4,
Sch 16).
46 See R v Sheppard & Whittle [2010] EWCA Crim 65, available at <http://www.bailii.org/ew/
cases/EWCA/Crim/2010/65.html>.
47 International Covenant on Civil and Political Rights, 19 December 1966, 999 UNTS 171
(entered into force 23 March 1976); International Convention on the Elimination of All Forms of
Racial Discrimination, 7 March 1996, 660 UNTS 195 (entered into force 4 January 1969).
religion’, and to manifest one’s ‘religion or belief in worship, observance, practice

and teaching’, whether alone or collectively, and in public or private. Article 19(2)
of the Covenant, which is substantially similar to ECHR Article 10(1), provides
that ‘[e]veryone shall have the right to freedom of expression; this right shall include
freedom to seek, receive and impart information and ideas of all kinds, regardless of
frontiers, either orally, in writing or in print, in the form of art, or through any
other media of his choice’.
But ICCPR Article 19(3), like ECHR Article 10(2), also asserts that the exercise
of that freedom ‘carries with it special duties and responsibilities’ which permit
‘restrictions’ to promote respect for ‘the rights or reputations of others’ and to
protect ‘national security’, ‘public order’, ‘public health’, or ‘morals’. Moreover,
ICCPR Article 20 requires that ‘[a]ny advocacy of national, racial, or religious
hatred that constitutes incitement to discrimination, hostility, or violence shall be
prohibited by law’. CERD Article 4 similarly requires that the parties criminalize
‘all dissemination of [racist] ideas’, incitement to racial discrimination and violence,
the provision of financial or other ‘assistance to racist activities’, and the existence of
and participation in organizations and ‘propaganda activities’ that ‘promote and
incite racial discrimination’. Not surprisingly, when it ratified the ICCPR and the
CERD, the United States took treaty reservations to ICCPR Article 20 and CERD
Article 4, refusing to apply them in ways that might restrict the First Amendment
freedoms of speech and association.48
D. Freedom of speech in the Muslim world
Many Muslim-majority countries are parties to the ICCPR and CERD, yet a
number of these countries have also enacted harsh criminal penalties for speech
perceived as blasphemy and apostasy, ostensibly in compliance with Islamic law.49
Despite the Qur’an’s command that there be ‘no compulsion in religion’, the
Muslim world has seen a rise in high-profile blasphemy and apostasy charges
against both Muslims and non-Muslims, often for speech that would be funda-
mentally protected in the United States.
Pakistan, for example, forbids outraging ‘the religious feelings of any class of the
citizens of Pakistan’, desecrating the Qur’an, and defiling the name of the Prophet
Muhammad—although only insults to the Prophet carry the death penalty.50 In
November 2010, a Christian woman, Aasia Bibi, became the first woman in
48 See US Reservations, Declarations, and Understandings, International Covenant on Civil and
Political Rights, 138 Cong Rec S4781-01 (daily edn, 2 April 1992); US Reservations, Declarations,
and Understandings, International Convention on the Elimination of All Forms of Racial Discrimin-
ation, 140 Cong Rec S7634-02 (daily edn, 24 June 1994).
49 But see Intisar A Rabb, Chapter 8, Section E (arguing that although blasphemy and apostasy
prohibitions were historically intended to punish treason against the religious community, the
doctrines on blasphemy have become ‘universalized . . . to include the world of non-Muslims domestic-
ally and globally in states neither bound nor politically threatened by a rejection of the Muslim creed’).
50 Pakistan Penal Code (Act XLV of 1860, as amended) }} 295-A, 295-B, 295-C, available at
<http://www.pakistani.org/pakistan/legislation/1860/actXLVof1860.html>.
Pakistan to be sentenced to death for blasphemy. She allegedly insulted Muham-
mad after her fellow farm hands refused to drink water that she brought them; they
called it ‘unclean’ because she was Christian.51 Salman Taseer, the governor of
Pakistan’s largest province, called for her pardon and criticized the blasphemy laws.
After weeks of pressure and threats from outraged Islamists, Taseer was assassinated
in January 2011 by his own bodyguard, who called the murder ‘punishment for a
blasphemer’.52 Two months later, Pakistan’s only Christian cabinet minister,
Shahbaz Bhatti, was also assassinated for advocating reform of the blasphemy
laws.53 At the time of this writing, Aasia Bibi’s appeal remains pending.
The Internet’s facilitation of open global discourse has also clashed with conservative
Islamic views of permissible expression. In Afghanistan, journalist Sayed Pervez Kam-
baksh was sentenced to death for blasphemy and defaming Islam because he distributed
an Internet article on women’s rights that criticized parts of the Qur’an; after a secret
presidential pardon, he fled the country.54 In late 2010, Palestinian authorities arrested
Waleed Hasayin on suspicion of being a blogger who had proclaimed himself to be an
atheist, used the pseudonym ‘God Almighty’, and parodied the Qur’an.55 Around the
same time, Egyptian blogger Kareem Amer was released from prison after serving
several years for inciting hatred of Islam by using his online platform to criticize the
Prophet Muhammad’s conduct and to criticize his own alma mater, al-Azhar Univer-
sity, for religious extremism and suppressing free thought.56
E. Freedom of speech versus ‘defamation of religion’
The United Nations is no stranger to the tension between Western and Islamic views
on expressive freedom. From 1999 through 2010, the Organization of the Islamic
Conference sponsored a resolution condemning ‘defamation of religion’ in the UN
Commission on Human Rights, the UN Human Rights Council, and the UN General
Assembly. These resolutions were always adopted, albeit by increasingly narrower vote
margins. The proffered goal of these measures was to combat anti-Muslim stereotyping
and discrimination, such as the 2009 Swiss constitutional ban on minaret construc-
tion. In December 2010, a sharply divided General Assembly passed a resolution
stressing ‘the need to effectively combat vilification of religions’, particularly Islam, as
51 Rob Crilly and Aoun Sahi, ‘Christian woman sentenced to death in Pakistan “for blasphemy” ’,
Daily Telegraph, 9 November 2010, available at <http://www.telegraph.co.uk/news/religion/8120142/

Christian-woman-sentenced-to-death-in-Pakistan-for-blasphemy.html>.
52 See Omar Waraich, ‘The Martyrdom of Pakistan’s Advocate of Tolerance’, Time Magazine,
5 January 2011, at <http://www.time.com/time/world/article/0,8599,2040792,00.html>.

53 ‘Pakistan Minorities Minister Shahbaz Bhatti shot dead’, BBC News, 2 March 2011, at <http://
www.bbc.co.uk/news/world-south-asia-12617562>.
54 See Kim Sengupta, ‘Free at last: Student in hiding after Karzai’s intervention’, The Independent,
7 September 2009, at <http://www.independent.co.uk/news/world/asia/free-at-last-student-in-hiding-

after-karzais-intervention-1782909.html>.
55 See Isabel Kershner, ‘Palestinian Blogger Angers West Bank Muslims’, NY Times, 16 November
2010, at A6.
56 See Maggie Michael, ‘Released Egypt Blogger to Keep Writing After Jail’, Associated Press,
24 November 2010.
‘a serious affront to human dignity leading to the illicit restriction of the freedom of
religion of their adherents and incitement to religious hatred and violence’, and calling
upon nations ‘to prohibit the advocacy of national, racial or religious hatred that
constitutes incitement to discrimination, hostility or violence. . . . ’57
The ‘defamation of religion’ debate also overtook the parallel ‘freedom of expres-
sion’ consensus resolution that Canada had introduced annually for over a decade in
the Commission on Human Rights. In 2006, the Commission was replaced by the
UNHRC. In 2008, Canada once again introduced this resolution in the UNHRC,
but the OIC bloc and other nations successfully backed an amendment that required
the UN Special Rapporteur on Freedom of Expression ‘[t]o report on instances in
which the abuse of the right of freedom of expression constitutes an act of racial or
religious discrimination. . . . ’58 Despite its previous sponsorship, the Canadian
delegation abstained from the vote and criticized the amendment for ‘turn[ing]
the special rapporteur’s mandate on its head’, because ‘[t]he job of a special
rapporteur is not to police the action of individuals. It is to monitor and support
the compliance of states with their international human rights obligations.’59
Despite their own disagreements on the scope of free speech, the United States
and EU countries have consistently voted against the ‘defamation of religion’
resolutions. The United States has argued that such a prohibition has ‘negative
implications for both freedom of religion and freedom of expression’, because it
seeks government sanctions on offensive speech and ‘equates defamation to a
human rights violation or incitement’.60 The European Union echoed this pos-
ition, explaining that ‘reconciling the notion of defamation with discrimination is a
problematic endeavour’, particularly because it conflicts with the human rights goal
of promoting free expression.61
The concept of ‘defamation of religion’ is problematic for several reasons. First,
as a theoretical matter, ‘religion’ is a system of beliefs and practices that cannot itself
exercise any rights. As the United States observed when criticizing the December
2010 resolution, ‘human rights are held by individuals—not by governments,
institutions, or religions—and language . . . that addresses human rights should
reflect this’.62 Second, as a legal matter, defamation in the Western tradition
requires a false or misleading statement of fact. Statements about what a religion
does or does not represent are opinions that depend on the speaker’s context,
57 Combating defamation of religions, GA Res 65/224, at 2, 4 para 7, & 5 para 14, UN Doc A/RES/
65/224 (21 December 2010).

58 Mandate of the Special Rapporteur on the promotion and protection of the right to freedom of opinion
and expression, Human Rights Council Res 7/36, at 4 para 4(d), UN Doc. A/HRC/RES/7/36 (28
March 2008).
59 Eliane Engeler, ‘US, Europeans say Islamic countries want to limit free speech at UN’, Associated
Press, 1 April 2008 (quoting Terry Cormier of Canada).

60 Explanation of Vote of the Defamation of Religions Resolution by John Sammis, Deputy US
Representative to the Economic and Social Council, in the Third Committee, General Assembly (23
November 2010), at <http://usun.state.gov/briefing/statements/2010/151904.htm>.
61 ‘UN rights body narrowly passes Islamophobia resolution’, Agence France Presse, 25 March 2010
(quoting Jean-Baptiste Mattei of France, speaking on EU’s behalf).

62 Explanation of Vote, see n 60.
perspective, and faith. Finally, as a practical matter, even people who share the same
religion may hold vastly divergent opinions on questions of faith. Prohibitions on
‘defamation of religion’—just like laws against blasphemy and apostasy—cannot be
administered without making governments into the arbiters of religious doctrine,
opening the door to arbitrary enforcement against believers and non-believers alike.
For these reasons, human rights organizations have criticized the ‘defamation of
religion’ resolutions for providing ‘explicit support for the adoption and implemen-
tation of national blasphemy laws that have been used time and again to stifle
freedom of expression and other human rights’,63 and for pushing an ‘agenda that
has nothing to do with strengthening human rights and everything to do with
protecting autocracies and political point scoring’.64
President Obama stated in his 4 June 2009 speech in Cairo that the United States
has a responsibility to counter negative stereotypes of Islam. But the United States’
preferred method of fighting discrimination is not to ban speech but to condemn
intolerant and hateful ideologies, engage with religious communities, defend indi-
viduals’ rights to freely exercise their religious and expressive rights, promote
political debate, and develop effective legal regimens to prevent and punish bias-
motivated discrimination and violence against individuals. In keeping with this
philosophy, the head of the US Department of Justice’s Civil Rights Division
recently testified before the US Congress about efforts to address post-September
11 backlash against American Muslims (and those perceived to be Muslim) through
hate crime prosecutions, employment discrimination suits, enforcement of religious
freedom laws, educational initiatives, and civic engagement.65
F. Common ground?
Two recent UNHRC resolutions suggest that common ground on freedom of
speech may be emerging between the United States and the rest of the world. The
first resolution came just four months after President Obama’s Cairo speech. In
October 2009, the United States and Egypt co-sponsored a compromise UNHRC
resolution on ‘freedom of opinion and expression’ that contained no reference to
‘defamation of religion’.66 Adopted by consensus, this measure affirmed the rights
63 Press Release, Human Rights First, Human Rights First Condemns Passage of U.N. Resolution
“Combating Defamation of Religions”, 21 December 2010, at <http://www.humanrightsfirst.org/2010/

12/21/human-rights-first-condemns-passage-of-u-n-resolution-%E2%80%9Ccombating-defam-
ation-of-religions%E2%80%9D/>.
64 Press Release, Article 19 and Cairo Institute for Human Rights Studies, UN Human Rights
Council Undermines Freedom of Expression, 31 March 2008, at <http://www.article19.org/data/files/

pdfs/press/hrc-resolution-passed.pdf>.
65 See Protecting the Civil Rights of Muslim Americans: Hearing Before the Subcomm. on the
Constitution, Civil Rights, and Human Rights of the S. Comm. on the Judiciary, 112th Cong.
(29 March 2011) (statement of Thomas E. Perez, Assistant Attorney General, Civil Rights Division,
U.S. Dep’t of Justice), at <http://judiciary.senate.gov/pdf/11-3-29%20Perez%20Testimony.pdf>.
66 See Freedom of opinion and expression, Human Rights Council Res 12/16, UN Doc A/HRC/
RES/12/16 (2 October 2009).

of individual speech and of the press, highlighted the importance of those rights in
fostering democratic society and combating intolerance, emphasized the inter-
national legal obligation to respect those rights, and called for a Special Rapporteur
to report on violations of these freedoms. But despite some promising language, the
resolution papered over significant differences between Western nations and the
OIC bloc, with two particular provisions drawing heavy criticism.
First, the 2009 resolution recognized ‘the moral and social responsibilities of the
media and the importance that the media’s elaboration of voluntary codes of
professional ethical conduct can play in combating racism, racial discrimination,
xenophobia and related intolerance. . . . ’67 The European Union criticized the
vagueness of this provision, because ‘[s]tates should not seek to interfere with
the work of journalists’ and must ‘enable editorial independence of the media’.68
The EU’s disapproval was telling, given that European countries often permit
greater limits on speech than does the United States.
Second, the resolution condemned the worldwide rise of ‘negative racial and
religious stereotyping’ and urged states ‘to take effective measures’ to combat
‘advocacy of national, racial or religious hatred that constitutes incitement to
discrimination, hostility or violence. . . . ’69 Civil libertarians criticized the breadth
of this language. One American legal scholar argued that the resolution would
provide cover for governments—in Europe as well as the Muslim world—that ‘are
declaring unlimited free speech as the enemy of freedom of religion’.70
In March 2011, there was a seismic shift at the UNHRC. Pakistan sponsored an
entirely new resolution that condemned religious intolerance and stereotyping of
‘persons’ without discussing ‘defamation of religion’, while adding significant new
language echoing both the United States’ constitutional values and its preferred
strategies for protecting individual rights.71 The resolution continues to urge
‘effective measures’ to combat advocacy of discrimination, but it now specifies
that governments should do so by ensuring that ‘public functionaries’ do not engage
in religious discrimination ‘in the conduct of their public duties’, thus focusing on
restricting government action instead of private opinion; by criminalizing ‘incite-
ment to imminent violence based on religion or belief ’, not unlike the US Supreme
Court’s Brandenburg standard; by minimizing the use of religious profiling by law
enforcement; by adopting policies to protect religious sites from vandalism; and by
fostering religious freedom and pluralism through civic outreach and education.72
67 Human Rights Council Res 12/16 at 5 para 8.

68 Press Release, UN Human Rights Council, ‘Human Rights Council Adopts Six Resolutions and
One Decision on Discrimination against Women and Freedom of Expression, Among Others’,
2 October 2009 (summarizing statement by Jean-Baptiste Mattei of France, speaking on EU’s behalf),
at <http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=161&LangID=E>.
69 Human Rights Council Res 12/16 at 3 para 4.
70 Jonathan Turley, ‘Just Say No To Blasphemy Laws’, USA Today, 19 October 2009, at 11A.
71 See Combating intolerance, negative stereotyping and stigmatization of, and discrimination, incite-
ment to violence and violence against, persons based on religion or belief, Human Rights Council Res 16/
18, UN Doc A/HRC/RES/16/18 (24 March 2011).
72 Human Rights Council Res 16/18 at 2–3 paras 5–9. This same session of the UNHRC also
produced a resolution on ‘freedom of religion and belief ’. See Human Rights Council Res 16/13, UN
The 2011 resolution was adopted by consensus, following discussions between
American and Pakistani diplomats, and shortly after Salman Taseer’s daughter,
Shehrbano Taseer, addressed UNHRC delegates about the abuse of the blasphemy
laws in Pakistan.73 She argued that despite any good intent behind the ‘defamation
of religion’ concept, its vagueness and open-ended nature ‘often winds up perse-
cuting those whom it seeks to defend’.74 The resolution’s passage was widely
praised, including by human rights groups that had previously condemned earlier
‘defamation of religion’ resolutions. Human Rights First, for example, called the
new text ‘a huge achievement because, for the first time in many years, it focuses on
the protection of individuals rather than religions’.75 In December 2011, much of
this resolution’s text was incorporated into a new resolution that was adopted
unanimously by the UN General Assembly.76
It is too soon to tell whether the UNHRC’s March 2011 resolution will mark the
beginning of an international legal consensus on freedom of speech. At the very
least, its passage suggests that continued discourse among nations can help bridge
the previous divides.
Doc A/HRC/RES/16/13 (24 March 2011). This measure adapted language from prior UNHRC
resolutions on freedom of religion and ‘defamation of religion’, but it also emphasized the need to
protect individual freedom of religion and conscience, the rights of women in particular, and the right
to change one’s religious beliefs. See Human Rights Council Res 16/13 at 3–4 paras 9–10.
73 See Shehrbano Taseer, ‘Keeping the Faith: Recent tragedies in Islamabad have shaken Geneva’,
Newsweek Pakistan, 4 April 2011, at <http://www.newsweekpakistan.com/the-take/280>.

74 Interview by Human Rights First with Shehrbano Taseer, ‘When “Blasphemy” Turns to Murder
in Pakistan’, 28 March 2011, video available at <http://www.humanrightsfirst.org/2011/03/28/when-

blasphemy-turns-to-murder-in-pakistan-video>.
75 Press Release, Human Rights First, ‘Groundbreaking Consensus Reached to Abandon Global
Blasphemy Code at the United Nations’, 24 March 2011, at <http://www.humanrightsfirst.org/2011/

03/24/groundbreaking-consensus-reached-to-abandon-global-blasphemy-code-at-the-united-
nations>.
76 See Combating intolerance, negative stereotyping, stigmatization, discrimination, incitement to
violence and violence against persons, based on religion or belief, GA Res 66/167, UN Doc A/RES/66/
167 (19 December 2010).
PART III
FREEDOM OF RELIGION
Religious freedom has become an increasingly volatile issue of debate across both
law and government policy sectors. At its most abstract, ‘freedom of religion’ seems
uncontroversial. Among both human rights activists and Islamic law scholars, there
are many who will proclaim that both traditions offer a profound commitment to
religious freedom. Human rights and constitutional documents around the world
posit this right as a fundamental freedom, while Islamic law scholars will refer to
Qur’an 2:256, which states ‘There is no compulsion in religion’ (la ikrah fi al-din).
Yet to determine how religious freedom is or should be given shape and content
in different polities raises further questions about the scope to which individuals
can and should be free to adhere to their particular religious traditions. For
instance, in countries such as Pakistan and Indonesia, adherents of the Ahmadi
faith have been subjected to considerable government-sponsored policies of dis-
crimination. The Baha’i community in Iran is another religious group that suffers
persecution at the hands of the government. In Switzerland, a popular referendum
led to a constitutional amendment that banned the construction of minarets, a
feature of Islamic mosque architecture. In March 2010, the Minister of Justice in
Quebec, Canada tabled Bill 94, which would ban Muslim women from wearing
the niqab. And since January 2011, over two dozen state legislatures in the United
States have submitted legislation that would ban Islamic law from state courtrooms.
These are just a few examples that illustrate why and how Part III problematizes
the phrase ‘religious freedom’. Indeed, as the authors and commentators suggest,
the phrase is deeply ambiguous. It is ambiguous because while the protection of
religious belief is a pillar of contemporary rights discourse, it nonetheless begs
important, difficult, and sometimes painful questions about the conditions under
which one’s religious freedom can and should be limited.
Part III, however, goes further and raises more fundamental questions about the
way in which the very notion of ‘religion’ is construed, distinguished, and even
compartmentalized by the law. Specifically, religious identity, in secular liberal
terms, is not only separable from the various features of one’s identity, but also (and
importantly for Part III) privatized and all-too-often erased from prevailing con-
ceptions of one’s public and political identity. Failure to attend to how contempor-
ary human rights jurisprudence construes religion in this fashion prevents any
182 Freedom of Religion
meaningful discussion about the different ways in which other traditions of value,
such as Islamic law, construe ‘religion’, and whether and to what extent it compart-
mentalizes ‘religion’ as distinct from one’s political identity. The juxtaposition of
how international human rights and Islamic law understand and relate to these
different features of one’s identity offer an important example of the kind of
analytic work that ‘clearing ground’ can offer when approached in the manner
exemplified within this book.
10
Freedom of Religion and Belief in
International Law: A Comparative Analysis
Urfan Khaliq*
A. Introduction
In the context of the book of which this essay is a part, the attempt to ‘clear’ or
search for ‘common’ ground between Islamic law and international human rights
law requires an assessment of the extent to which freedom of religion and belief is
protected within international law. That is the aim of this essay. It is not possible to
assess the ‘strengths’ or ‘weaknesses’ of either legal edifice in the abstract and thus
the objective of this essay is to give an overview, for that is all that is possible, of how
religious freedom and belief are protected within universal and regional human
rights treaties. It is, of course, not possible within the scope of this overview to
engage in a comprehensive discussion of many of the issues that arise, so only a few
which are particularly illustrative for the overall purposes of the book have been
selected for detailed analysis. It should be emphasised at the outset, however, that
the examples selected in this discussion highlight the areas of contention and
difficulty as opposed to those areas where there is consensus or more marginal
disagreement, at the theoretical level at least.
* Reader in Public International and EU Laws, Cardiff Law School, Cardiff University, United
Kingdom. I would like to thank the participants at the Salzburg Global Seminar, November 2010 and
my Cardiff Law School colleague Dr Russell Sandberg, for their comments and suggestions. I would
also like to record my appreciation to the staff at the Dag Hammarskjöld Library, New York for the
assistance they provided in tracing various archive documents and to the Research Committee of
Cardiff Law School for a research grant to make the visit to New York possible. I am especially grateful
to Professor William Storrar and the Centre of Theological Inquiry, Princeton for hosting an author’s
workshop in May 2010 and to the other authors and participants for a stimulating and enjoyable
environment in which to discuss our ideas. Finally, I would like to express my sincere thanks to
Professor Malcolm Evans who provided detailed feedback on this essay and challenged me on various
matters which made me reconsider my position on a number of them.
For detailed and also more general discussion of the themes raised in this paper as well as others see
the outstanding collection compiled by T Lindholm, W Durham Jr, and B Tahzib-Lie (eds),
Facilitating Freedom of Religion or Belief: A Deskbook (Leiden: Brill, 2004). Also see some of the
discussions in J Rehman and S Breau (eds), Religion, Human Rights and International Law: A Critical
Examination of Islamic State Practices (Leiden: Martinus Nijhoff, 2007).
The protection of certain religious freedoms and beliefs has since time imme-
morial been a source of concern and tension within states as well as in relations
between them. It is the contention of this essay that, despite the longstanding
recognition of the need for such rights to be protected, there is relatively little
consensus at the universal level as to the core of the rights in question and the
permissible limitations on exercising those rights. In putting forward these argu-
ments, this essay will be structured as follows. It will initially provide an overview of
the relevant provisions which exist in universal and some regional treaties as well as
in various formally non-binding documents which refer to the rights in question. It
will then examine in detail the approach of some of the relevant bodies in
interpreting aspects of those provisions, in particular the European Court of
Human Rights and the Human Rights Committee. Finally, some conclusions
will be drawn.
B. Protecting freedom of religion and belief in international law
Throughout history, examples can be found of states and empires tolerating the
beliefs of others within their territory so as to avoid a constant state of conflict and
insurgency.1 For example, under the Edict of Milan (313 ce) the Emperor
Constantine granted religious freedom to Christians.2 Imperialistic expansion
which conquered territory occupied by those with other beliefs demanded a
pragmatic and politically expedient approach to ensure the sustainability of the
entity in question. One can see this at various times in, for example, Ancient Persia,
the Roman, the Moghul, the Ottoman, and the British Empires. It is also the case
that from antiquity, treaties between empires which sought to protect religious
freedoms can be found. In 532 ce the Emperor Justinian entered into a treaty with
the Persians which sought to allow Christians to practice their faith and to exclude
them from the official faith Zoroastrianism, although in this instance the obliga-
tions were not reciprocal.3 The Religious Peace of Augsburg of 1555 in the
aftermath of the Reformation sought to protect religious freedoms in Europe and
ease tensions between Protestant and Catholic princes.4 A number of treaties
between various European powers and the Ottoman Empire also sought to protect
1 See M Evans, Religious Liberty and International Law in Europe (Cambridge: Cambridge Univer-
sity Press, 1997), 6 et seq and the discussion in W Cole Durham Jr and B Schraffs, Law and Religion:
National, International and Comparative Perspectives (New York: Aspen Publishers, 2010), 1–30.
2 Lactantius, De Mortibus Persecutorum [Circa 315], 48.2–12, edited and translated by J Creed
(Oxford: Clarendon Press, 1984), 71.

3 A Nussbaum, A Concise History of the Law of Nations (New York: Macmillan, 1954), 48.
4 See further see A Krishnaswami, Study of Discrimination in the Matter of Religious Rights and
Practices, E/CN.4/Sub.2/200/Rev.1 (New York: United Nations Publication, 1960), 11 et seq (also
reprinted at (1978–79) 11 New York University Journal of International Law and Politics 227),
M Evans, Religious Liberty and International Law, 45 et seq; P Danchin, ‘The Emergence and Structure
of Religious Freedom in International Law Reconsidered’ (2007–2008) 23 Journal of Law and Religion
455; and more generally J Witte, Jr, The Reformation of Rights: Law, Religion, and Human Rights in
Early Modern Calvinism (Cambridge: Cambridge University Press, 2007).
Freedom of Religion and Belief in International Law 185
religious freedoms and later served as a pretext for military intervention by

European powers as the might of the Ottoman Empire declined.5 Religious
freedom thus has a strong claim to being one of the, if not the, oldest issues
which we would now consider to be a human right in international law.6 These
early treaties, however, were primarily about tolerating others, which is very
different from respecting them, and the contribution of modern international law
has, in part, been the attempt to move from tolerance towards respect in this regard.
In the post UN Charter era there are a myriad of provisions which seek to protect
religious freedoms and beliefs. It is not possible to examine here the work of
specialised international bodies such as the International Labour Organization or
regional bodies such as the Organisation for Cooperation and Security in Europe or
the European Union, notwithstanding the value of that work.7 This discussion also
cannot address the plethora of provisions in domestic constitutional systems, which
vary enormously in their approach and utility.8 The aim of this essay is to examine
only those provisions that are within the corpus of international human rights law
as that term is normally understood and that are central to the right to freedom of
religion or belief. The discussion will proceed with an examination of those
provisions with universal application and then of those that exist in the regional
context.
1. Universal provisions protecting religion and belief

Human rights treaty provisions relating to religious freedoms usually come in two
guises, those that protect the right to believe itself and those that seek to prohibit
discrimination, either generally or in the context of certain articulated rights, on the
basis of an individual’s religion or belief. Indeed, as will be seen, the engagement
between human rights provisions and religion has been a restricted one concerned
with, on the one hand, religion as a part of thought, conscience and expression and,
on the other, non-discrimination on the basis of religion. With regard to the
former, at the universal level negotiations over provisions which seek to protect
5 Krishnaswami, Study of Discrimination, 11 et seq and M Evans, Religious Liberty and International
Law, 45. It is of course paradoxical that religious freedom is seen as a way of avoiding conflict
when religious difference has often also been the source of conflict.
6 Martin Scheinin has argued more generally that the general idea of human rights lies in the long
history of protecting religious minorities. M Scheinin, ‘Article 18’ in A Eide et al (eds), The Universal
Declaration of Human Rights: A Commentary (Oslo: Scandinavian University Press, 1992), 263.
7 For detailed although now somewhat dated discussion of the ILO’s Conventions in this regard see
B Tahzib, Freedom of Religion or Belief: Ensuring Effective International Legal Protection (The Hague:
Martinus Nijhoff, 1996), 110 et seq; on the OCSE see various discussions in T Buergenthal assisted by
J Hall (ed), Human Rights, International Law and the Helsinki Accord (Montclair, NJ: Allanheld,
Osmun, 1977) and P Cumper and S Wheatley (eds), Majoring in Minorities: Minority Rights in the
‘New’ Europe (The Hague: Martinus Nijhoff, 1999) and from a very thin literature on the European
Union see C Gearty, ‘The Internal and “External” Other in the Union Legal Order: Racism, Religious
Intolerance and Xenophobia in Europe’ in P Alston, M Bustelo, and J Heenan (eds), The EU and
Human Rights (Oxford: Oxford University Press, 1999), 327.
8 Provisions protecting religious freedoms in domestic legal systems, as is the case with treaty
provisions, also have a long tradition. See further Krishnaswami, Study of Discrimination, 4 et seq.
religion and belief have always been hindered by a greater divergence of views and
perspectives as to what such a right should entail than has been the case with many
other rights. Scheinin has noted that ‘freedom of thought, conscience and religion
is an “easy case” in the human rights catalogue’, and while it is undeniably true that
there is agreement that such a right should be protected, attempts to negotiate such
rights have highlighted that the devil is always in the details, and there is certainly
far less common ground as to what the right entails than is initially assumed.9
Unlike other specific grounds of discrimination, for example gender and race,
there is no right-specific treaty as far as religion and belief are concerned; the initial
1962 United Nations General Assembly proposal was for preparation of draft
declarations followed by conventions on both religious intolerance10 and racial
discrimination.11 A declaration on race was adopted in 196312 and the Race
Convention was adopted in 1966.13 The Declaration on the Elimination of All
Forms of Intolerance and of Discrimination Based on Religion or Belief was finally
adopted in 1981.14 To date, no convention concerning religion has been adopted,
and it has been widely argued that even now the time is not ripe for such a
convention.15 It is improbable that in the short to medium term any such treaty
will be adopted.
Provisions which seek to protect religion and belief at the universal level can
either be found in general treaties or in formally non-binding documents.16 As far
9 Scheinin, ‘Article 18’ in Eide, The Universal Declaration of Human Rights, 263.
10 General Assembly Res 1781(XVII), 7 December 1962.
11 General Assembly Res 1780 (XVII), 7 December 1962.
12 General Assembly Res 1904 (XVIII), 20 November 1963.
13 International Convention on the Elimination of All Forms of Racial Discrimination, 1966, 660
UNTS 195.
14 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on
Religion or Belief, 1981, General Assembly Resolution 55 (XXXVI), 25 November 1981, 36 UN

GAOR Supp (No 51) at 171, UN Doc A/36/684 (1981).
15 In 1967 a draft Convention on the Elimination of All Forms of Religious Intolerance was
transmitted to the General Assembly by the Human Rights Commission and ECOSOC, the text was
not adopted. The draft Convention can be found in: Resolutions Adopted by the Economic and Social
Council During its 42nd session, 8 May–6 June 1967. E/4393, 1967, pp 13–17 (ESCOR, 42nd sess,
Supp no 1). For discussion of the background to this document which was not adopted see Tahzib,
Freedom of Religion or Belief, 145 et seq. See C Evans, ‘Time for a Treaty? The Legal Sufficiency of the
Declaration on the Elimination of All Forms of Intolerance and Discrimination’ (2007) 33 Brigham
Young University Law Review 617. Evans’ argument (at 632 et seq) is that it is better to improve current
mechanisms to protect those rights that already exist than expend energy on drafting a Convention that
will be acceptable. This is a widely argued position and one that has been advocated since the 1981
Declaration was adopted. Most pointedly this argument has also been made by the (previous) Special
Rapporteur on Religion or Belief, for example in Special Rapporteur of the Commission on Human
Rights, Implementation of the Declaration on the Elimination of All Forms of Intolerance Based on Religion
or Belief, UN Doc A/50/440, 18 September 1995, para 85, where it is described as being ‘a necessary
but premature step’. For a contrary argument see the discussion in this essay and also the 2011
Lambeth Palace Lecture as given by Professor Malcolm Evans, transcript on file with author.
16 The discussion will not specifically deal with those provisions in other right specific or general
treaties which seek to prohibit discrimination on the grounds of religion within the context of that
specific right or issue. The provisions in the UN human rights treaties to this effect are: International
Covenant on Economic, Social and Cultural Rights, 1966, 993 UNTS 3, Art 2 (non-discrimination
clause in context of protected rights) and Art 13 (religious education); International Convention on the
Elimination of All Forms of Racial Discrimination, 1966, 660 UNTS 195, Art 5 (non-discrimination
as the latter are concerned, both the Universal Declaration of Human Rights,
194817 (UDHR) and the 1981 Declaration on the Elimination of Discrimination
Based on Religion or Belief seek to protect religion and belief. Of course, the
UDHR has been followed up with the two legally binding 1966 Covenants,18 and
the 1981 Declaration, as noted above, has not been. The 1948 Universal Declar-
ation and the 1981 Religion and Belief Declaration are, however, both closely
connected to the 1966 Covenant on Civil and Political Rights, with the 1948
Declaration heavily influencing the relevant provisions of the Covenant and the
1981 Declaration further consolidating aspects of the Covenant.
The UDHR deals with religion and belief specifically, in the context of non-
discrimination more generally, and also in the context of certain specific rights.
This multi-faceted approach is common to the human rights treaties to be dis-
cussed. Article 2 of the UDHR is the general non-discrimination clause and
protects ‘all the rights and freedoms set forth in this Declaration, without distinc-
tion of any kind, such as race, colour, sex, language, religion, political or other
opinion . . . or other status’.19 Article 16, in the context of the right of men and
women to marry and found a family, also specifically prohibits discrimination on
the basis of religion even though the reference to religion or the other grounds
mentioned legally adds little, if anything, to the prohibition in Article 2 of the
UDHR.20 Although Article 19 of the UDHR, which protects the right to freedom
of opinion and expression, is also of relevance, the key provision is Article 18 of the
UDHR which states:
Everyone has the right to freedom of thought, conscience and religion; this right includes
freedom to change his religion or belief, and freedom, either alone or in community with
on the basis of race in the protection of civil rights, including religion); Convention on the Rights of
the Child, 1989, 1577 UNTS 3, Art 2 (non-discrimination clause in the context of protected rights),
Art 14 (right of the child to freedom of thought, conscience and religion—not, however, to change
religion); and International Convention on the Protection of the Rights of All Migrant Workers and
Their Families, 1990, UNGA Res 45/158, Art 1 (non-discrimination clause in the context of the
application of the Convention), Art 7 (non-discrimination clause in the context of rights protected by
human rights treaties), and Art 12 (right of migrant workers to freedom of thought, conscience and
religion—defined in terms very similar to Art 18 ICCPR). The Convention on the Elimination of All
Forms of Discrimination Against Women, 1979, 1249 UNTS 13; Convention Against Torture and
Other Cruel, Inhuman or Degrading Treatment of Punishment, 1984, 1464 UNTS 85; and Conven-
tion on the Rights of Persons With Disabilities, 2006, Doc A/61/611 do not contain any provisions
which makes express reference to the right to religion.
17 General Assembly Res 217A (III), 10 December 1948.
18 International Covenant on Civil and Political Rights, 1966, 999 UNTS 171 and International
Covenant on Economic, Social and Cultural Rights, 1966.

19 It is worth noting that the list of grounds is more extensive than that in Art 1(3) of the UN
Charter although both include religion and the inclusion of this ground in Art 2 of the UDHR was not
controversial. For discussion on the drafting of Art 1 of the Charter see B Simma (ed), The Charter of
the United Nations (Oxford: Oxford University Press, 1994), 49 et seq and on Art 2 of the UDHR, see
S Skogly, ‘Article 2’ in Eide, The Universal Declaration of Human Rights, 57 et seq.
20 Articles 7 and 8 without expressly referring to religion are relevant here. Article 7 states that ‘[a]ll
are equal before the law and are entitled without any discrimination to equal protection of the law . . . ’
Article 8 states that ‘[e]veryone has the right to an effective remedy . . . ’
others and in public or private, to manifest his religion or belief in teaching, practice,
worship and observance.21
Article 18 cannot be examined in isolation from Articles 29 and 30 of the
Declaration which are the limitation clauses. Article 29(2) in particular notes:
In the exercise of his rights and freedoms, everyone shall be subject only to such limitations
as are determined by law solely for the purpose of securing due recognition and respect for
the rights and freedoms of others and of meeting the just requirements of morality, public
order and the general welfare in a democratic society.
The drafting of Article 18 of the UDHR has been the basis of much debate and
disagreement. The travaux préparatoires of Article 18 have been interpreted in
different ways. Malcolm Evans, for example, in his magisterial study makes clear
that the adoption of the text proved to be possible due to the willingness to
compromise rather than a common understanding of what was embraced by
such a right.22 Certain tactics were used to avoid disagreement—for example, the
freedoms themselves were not defined—thus ensuring no philosophical and ideo-
logical conflict. Indeed a key point of disagreement concerned the right to change
religion or belief.23 It is clear from the travaux préparatoires that a number of
somewhat contradictory statements were made by the Saudi Arabian representative,
Jamil Baroody, and these are the primary source of the confusion.24 Depending
upon which of his statements has been given greater weight has influenced the
conclusions that commentators have reached regarding the right to change religion.
Martin Scheinin, in his analysis, makes clear that the objection to the reference to
changing religion was based on Saudi opposition to abuse of the right by mission-
aries and not as an objection to the right to change religion itself, and statements
were made to that effect.25 While there is certainly some truth in this, a broader
reading of the debate can only lead to the same conclusion as that adopted by
Malcolm Evans; there was essentially an irreconcilable difference between, on the
one hand, the representatives of not only Saudi Arabia but also of some (but
certainly not all) of the other Muslim states present who did not wish to refer
explicitly to such a right, and, on the other, the representatives of other states who
considered such a right to be essential.26 Kevin Boyle has put these different
21 For detailed early discussion as to what Art 18 entails, see further P Halpern, Preliminary Report
of the Proposed Study on Discrimination in the Matter of Religious Rights and Practices, E/CN.4/Sub.2/
162 (1954).
22 M Evans, Religious Liberty and International Law, 183 et seq.
23 This was one area of disagreement among many, such as the relationship between thought,
conscience, religion and belief and what these terms actually meant. Including the notion of belief was
in itself another tactic to avoid controversy as it thus ensured, as the Soviet bloc demanded, that
atheistic, agnostic, and other views and beliefs which were not religious in nature were also protected.
24 It is interesting to note that Mr Baroody was a Lebanese Christian and not an adherent of Saudi
Wahabism.
25 Scheinin, ‘Article 18’ in Eide, The Universal Declaration of Human Rights, 265.
26 M Evans, Religious Liberty and International Law, 188. This is especially clear from the
statements also made by the representatives of Egypt, Afghanistan, and Pakistan. The relevant debates
are at General Assembly Official Records, III, part I, p 390 et seq. This is not to say of course that all
Muslim states adopted the same view, Pakistan and Saudi Arabia at different stages disagreed with one
approaches down, in part, to a conflict of religious ideologies in a context of

European colonial presence in the Muslim world. He notes that Protestant
churches were strongly influential in the push for the right to evangelise others in
all countries, whereas most Muslim majority states were focused on combatting
intolerance in particular toward Islam.27
A Saudi proposal to amend Article 18 and remove express reference to the right
to change religion or belief was defeated by 22 votes to 12 with 8 abstentions.28
Although the proposal was defeated, to claim that Saudi Arabia and the other states
which supported it fully accepted that the right to change religion does not hold up
to scrutiny. Notwithstanding the limitations of trying to understand the nuance
and nature of a debate by reading an account of it more than 60 years after the
event, a holistic reading of the records of those meetings can only lead to the
conclusion that while there was final agreement as to the text, there was little
agreement as to what it actually meant.
Some of the debates over the wording of Article 18 UDHR were played out
again during the drafting of what became Article 18 of the International Covenant
on Civil and Political Rights, 1966. Article 18 of the Covenant as adopted states:
1. Everyone shall have the right to freedom of thought, conscience and religion.
This right shall include freedom to have or to adopt a religion or belief of his
choice, and freedom, either individually or in community with others and in
public or private, to manifest his religion or belief in worship, observance,
practice and teaching.
another over what Islam entailed and whether, for example, it is a missionary faith or not. What is often
overlooked here is the fact that Pakistani Muslims are overwhelmingly the descendants of those
converted from Hinduism to Islam in part by Muslim missionaries; it is not converting to Islam
that is problematic, it is converting from Islam to another faith or belief. It is also worth noting that
when the Declaration was adopted by the General Assembly, Saudi Arabia abstained while the other
countries with Muslim majority populations, such as Afghanistan, Egypt, Syria, Iraq, Iran, Turkey, and
Pakistan, voted in favour of the Declaration. A number of commentators, for example, Taylor, Tahzib,
Humphrey, and Morsink have argued that Saudi Arabia abstained in voting for the UDHR due to its
objection to the wording of Art 18. While this may be correct, the problem is that Saudi Arabia did not
vote against or abstain in the vote on the adoption of Art 18 so there is no logical reason why it would
then abstain from the entire Declaration due to its objection to Art 18. See P Taylor, Freedom of
Religion: UN and European Human Rights Law and Practice (Cambridge: Cambridge University Press,
2005), 31, fn 29; Tahzib, Freedom of Religion or Belief, 77; J Humphrey, Human Rights and the United
Nations: A Great Adventure (New York: Transnational Publishing, 1984), 68; and J Morsink, The
Universal Declaration of Human Rights: Origins, Drafting and Intent (Philadelphia: University of
Pennsylvania Press, 1999), 24. Although most of the other authors mentioned above consider that
the Saudi abstention was due to opposition to Art 18 only (Morsink is the exception) the Summary
Record shows that Mr Baroody stated that those parts of the draft relating both to marriage (Art 16 on
equal marriage rights) and religious freedoms were based on ‘western concepts’ at variance with cultures
in other parts of the World. See Third committee, 91st Meeting, 2 October 1948, SR 49.
27 K Boyle, ‘Freedom of Religion in International Law’ in Rehman and Breau, Religion, Human
Rights and International Law, 23, 38.

28 See UN Doc A/C.3/247/Rev.1 (1948). A number of non-Muslim states supported the Saudi
position, for example, Cuba, Venezuela, and Bolivia. Further Denmark abstained in the vote on Art 18
because it meant that the representatives of ‘300 million Mohammedans would not be able to support
the draft declaration’.
2. No one shall be subject to coercion which would impair his freedom to have
or to adopt a religion or belief of his choice.
3. Freedom to manifest one’s religion or beliefs may be subject only to such
limitations as are prescribed by law and are necessary to protect public safety,
order, health, or morals or the fundamental rights and freedoms of others.
4. The States Parties to the present Covenant undertake to have respect for
the liberty of parents and, when applicable, legal guardians to ensure the
religious and moral education of their children in conformity with their own
convictions.
As is also the case with the Universal Declaration, the Covenant refers to religion or
belief either expressly or in implied terms in a number of other provisions. Article 2
imposes an obligation upon states to prohibit discrimination on various grounds,
including religion and other opinions (but not expressly belief), in the context of
the rights recognised by the Covenant. Article 24 seeks to guarantee a right to
necessary measures of protection from the family, society, and state, and that these
are to be secured without any discrimination on the basis of inter alia religion.29
The key provision other than Article 18, however, is Article 26 which is the general
non-discrimination clause. Article 26 states:
All persons are equal before the law and are entitled without any discrimination to the equal
protection of the law. In this respect, the law shall prohibit any discrimination and guarantee
to all persons equal and effective protection against discrimination on any ground such as
race, colour, sex, language, religion, political or other opinion . . . or other status.
Unlike Article 14 of the European Convention, as will be discussed below, Article
26 of the Covenant is a free-standing non-discrimination clause.30 The travaux
préparatoires concerning Article 26 illustrate that its formulation was drawn out and
contentious.31 Unlike Article 2 of the Covenant it does not apply only to Covenant
rights but to all rights recognised by the domestic law of a state party. It is thus of
critical importance in ensuring that domestic law does not discriminate on the basis
of inter alia faith and has been the subject of further controversy and contention in
its interpretation by the Human Rights Committee.32
29 For detailed discussion see M Nowak, U.N. Covenant on Civil and Political Rights: CCPR
Commentary (Kehl: N.P. Engel, 2nd rev edn, 2005), 544 et seq and M Bossuyt, Guide to the ‘Travaux
Préparatoires’ of the International Covenant on Civil and Political Rights (Dordrecht: Martinus Nijhoff,
1987), 455 et seq.
30 Protocol 12 to the European Convention, which is now in force, does provide such a right for
individuals under the jurisdiction of those states party to it. See further n 77.
31 Nowak, U.N. Covenant on Civil and Political Rights, 601 and Bossuyt, Guide to the ‘Travaux
Préparatoires’, 479 et seq. Article 20(2) also provides that, ‘[a]ny advocacy of national, racial or religious
hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law’.
32 As established by Art 28 of the Covenant with the task of supervising compliance with it. For
discussion of the Art 26 jurisprudence see, inter alia, Nowak, U.N. Covenant on Civil and Political
Rights, 597 et seq and S Joseph, J Schultz, and M Castan, The International Covenant on Civil and
Political Rights: Cases, Materials and Commentary (Oxford: Oxford University Press, 2nd edn, 2004),
679 et seq.
The negotiations over Article 18 of the Covenant were particularly drawn out
and difficult. Freedom of religion alongside freedom of thought and opinion has
been argued to form the very nucleus of the Covenant, as it is based upon the
philosophical assumption that the individual as a rational being is master of his
or her own destiny.33 From this perspective it is essential that such a right is
effectively protected and inconceivable that it would not be included. As was
noted above, however, many of the debates that had been played out during the
drafting of Article 18 of the Universal Declaration were repeated here. Nowak
and Partsch, two hugely respected and authoritative commentators, have both
separately stated that it is ‘simply astonishing’ that states drawn from all parts of
the World were able to ‘agree on a joint, legally binding position regarding freedom
of religion’.34 A legally binding provision was only possible though because, as
was also the case with Article 18 of the Universal Declaration, the wording of
Article 18 of the Covenant has always meant different things to different states.
As Partsch notes, ‘diplomatic wording’ was chosen so as to mean many things to
different groups.35
One of the key areas of disagreement was again the right to change belief or
religion.36 Article 18(1) of the Covenant as adopted is far less clear in this regard
than the UDHR in that the required compromise more clearly had to reflect the
very different perspectives of states. Thus the wording refers to ‘freedom to have or
to adopt a religion or belief of his choice’.37 Some states with large Muslim
majorities, such as Egypt and Saudi Arabia, strongly opposed express reference to
the right to change religion, as this would in their view encourage proselytising,
missionary, and atheistic activity.38 For the representatives of some other states,
however, the right to change religion was an inherent part of the right.39 Thus a
compromise between these opposites was needed to gain adoption, which it did by
unanimity. Although Taylor and Partsch, among others, have contended that
Article 18 was clearly intended to allow a change of religion, this argument cannot
33 See, for example, Nowak, U.N. Covenant on Civil and Political Rights, 408. Religious liberty is, of
course, equally about social order and avoiding conflict within and between societies. The philosoph-
ical basis not only for Art 18 of the Covenant but the entire human rights edifice is extremely
uncertain, see further the discussion below.
34 Nowak, U.N. Covenant on Civil and Political Rights, 408 and K Partsch, ‘Freedom of Conscience
and Expression, and Political Freedoms’ in L Henkin (ed), The International Bill of Rights: The
Covenant on Civil and Political Rights (New York: Columbia University Press, 1981), 209, 210.
35 Partsch, ‘Freedom of Conscience and Expression, and Political Freedoms’, 210.
36 Other key areas not dealt with in this discussion include the scope of the limitations on the right
and what was meant by the terms ‘religion’ and ‘belief ’.

37 The relevant part of Art 18(1) in the other language versions is also opaque, for example, the
equally authoritative French version notes, ‘ce droit implique la liberté d’avoir ou d’adopter une
religion ou une conviction de son choix. . . . ’
38 Bossuyt, Guide to the ‘Travaux Préparatoires’, 357. For detailed discussion of many of these
debates see Taylor, Freedom of Religion, 27 et seq. Pakistan was again notable among states with a large
Muslim majority in supporting an express right to change one’s religion but, as noted above, the
contentious issue is leaving Islam not converting to it.
39 For example, Great Britain, France, Canada, Netherlands, and Pakistan. See Bossuyt, Guide to
the ‘Travaux Préparatoires’, 358; Nowak, U.N. Covenant on Civil and Political Rights, 410, fn 16; and
Tahzib, Freedom of Religion or Belief, 85.
be sustained.40 Notwithstanding subsequent interpretation, as will be discussed
below, there was no consensus on this issue at the time of drafting Article 18(1).
Although Article 18(2), which prohibits coercion in belief, can also be read to imply
that Article 18 as a whole permits a change of religion, and the drafting history
clearly suggests this was the original purpose of the paragraph,41 later negotiations
shifted the emphasis to prohibiting the state from exercising any coercion upon an
individual to belong or not to belong to a certain religion or belief.42 For some
Islamic states, the fact that coercion in religion is forbidden in Islam was no doubt
sufficient to obtain their support as the paragraph was perceived, by them at least,
in isolation from the right to change religion.43
This lack of consensus on the right to change religion has subsequently been
further reinforced by some of the reservations which have been entered to Article 18
by Islamic states; although there is little consistency in state practice in this regard.
Some states such as Saudi Arabia, which was very active in the drafting of Article
18, are not party to the Covenant. Of those Islamic states that are parties to the
Covenant, the reservations entered by some of them, and equally the absence of
reservations entered by others, are worthy of note. Iran, Iraq, Indonesia, Jordan,
Libya, Morocco, Tunisia, Sudan, and Syria, among others, have either not entered
substantive reservations to the Covenant or, if they have, they are unrelated to
religious belief and practices.44 Algeria, Bangladesh, Bahrain, Egypt, Kuwait,
Maldives, and Mauritania have entered reservations to the Covenant due to a
perceived conflict between Islamic practices and the provisions of the Covenant.
Of these reservations, Kuwait’s reservation for example makes no reference
to Article 18. Egypt has entered a declaration which simply leaves the scope
of obligations undertaken by it extremely uncertain but will potentially cover
Article 18. The reservation states that ‘[t]aking into consideration the provisions
of the Islamic Sharia and the fact that they do not conflict with the text annexed to
the instrument, we accept, support and ratify it . . . ’. Maldives upon accession
entered a specific reservation to Article 18 stating that its application will be
‘without prejudice to the Constitution of the Republic of the Maldives’. Sixteen
European Union states, as well as Australia and Canada, have objected to the
reservation.45 Similarly, Mauritania upon acceding to the Covenant, in this case in
40 Taylor, Freedom of Religion, 31 and Partsch, ‘Freedom of Conscience and Expression, and
Political Freedoms’, 211.

41 Bossuyt, Guide to the ‘Travaux Préparatoires’, 360 et seq.
42 See Nowak, U.N. Covenant on Civil and Political Rights, 416.
43 The original proposal for Art 18(2) expressly provided for the right to change religion, yet, this
was negotiated out and the final version (adopted unanimously) clearly reinforces the idea that it was
perceived as being separate from Art 18(1) and did not relate to the right to change religion. See a
reflection of this also in Art 10 of the Cairo Declaration on Human Rights in Islam, 1990, UN Doc A/
45/421-S/219797, 200.
44 Afghanistan’s reservation, for example, refers to Art 48 and the fact that the Covenant is not open
to all States. The Iraqi, Libyan, Syrian, and Yemeni reservations, for example, refer to the non-
recognition of Israel. Iran ratified the Covenant prior to the 1979 revolution which explains the lack
of reservations.
45 The 16 EU states are Austria, Czech Republic, Estonia, Finland, France, Germany, Hungary,
Ireland, Italy, Latvia, Netherlands, Portugal, Slovakia, Spain, Sweden, and United Kingdom.
2004, accepted Article 18 but specified what is implicit in the case of the Maldives,
that is its acceptance of Article 18 is ‘without prejudice to the Islamic Shariah’.
Mauritania’s declarations have been formally objected to by 10 European Union
states.46 Bahrain in September 2006 ratified the Covenant and inter alia made
reservation to Article 18 in that it would interpret it in accordance with the
‘prescriptions of the Islamic Shariah’.47 The most recent Muslim state to become
party to the Covenant and to have entered a relevant reservation is Pakistan which
deposited its instrument of ratification in June 2010. No other state party has
objected to the reservations entered.48 Pakistan’s reservations in part state that
‘Articles 3, 6, 7, 18 and 19 shall be so applied to the extent that they are not
repugnant to the Provisions of the Constitution of Pakistan and the Sharia laws’.49
In this case, as in each other where there is an express or implied reference to Article
18, the rationale is to, in part, avoid accepting an obligation which allows the right
to change religion. Although it is indicative only and not conclusive in this regard,
the approach of the Cairo Declaration on Human Rights in Islam50 and the Arab
Charter on Human Rights strongly support this view.51 Neither of these docu-
ments refers to the right to change religion. The provisions of both the Cairo
Declaration and the original version of the Arab Charter which deal with ‘religious
freedom’ are at variance with those in the documents discussed elsewhere in this
essay. Article 30 of the Revised Arab Charter in protecting the right to religious
freedoms also makes no reference to the right to change religion although the
provision and text as a whole are more in accordance with the ICCPR than the
previous version of the Charter.52 This reinforces the argument stated at the outset
46 Finland, France, Germany, Greece, Latvia, Netherlands, Poland, Portugal, Sweden, and United
Kingdom. It is noteworthy that some of the post-2005 Member States are more active in this regard
than some of the ‘older’ states such as Italy or Luxembourg. Poland and Latvia, for example, entered
their objection to Mauritania’s reservations after becoming EU Member States and do not have a
history of doing so prior to membership.
47 Bahrain’s reservations have not been accepted due to the procedural irregularities which accom-
panied their submission. A number of states objected to the substance of the reservations or both the
substance and the procedural irregularity.
48 The window to do so exists for 12 months. For the general rule see Art 20(5) of the Vienna
Convention on the Law of Treaties, 1969, 1155 UNTS 331.

49 Part of the reservation is of course contrary to the arguments submitted by Pakistani representa-
tives in the negotiations concerning Art 18.

50 Cairo Declaration on Human Rights in Islam, 5 August 1990, UN GAOR, World Conference
on Human Rights, UN Doc A/CONF.157/PC/62/Add.18 (1993).

51 Arab Charter on Human Rights, 15 September 1994, reprinted (1997) 18 Human Rights Law
Journal, 151. The Revised Arab Charter on Human Rights, 22 May (2004, reprinted (2005) 12
International Human Rights Reports 893 came into force on 15 March 2008. For discussion of the
revised Charter and the negotiation process see M Rishmawi, ‘The Revised Arab Charter on Human
Rights: A Step Forward?’ (2005) 5 Human Rights Law Review 361.
52 The key parts of Art 30 of the Revised Charter note:
(1) Everyone has the right to freedom of thought, conscience and religion and no restrictions may be
imposed on the exercise of such freedoms except as provided for by law.
(2) The freedom to manifest one’s religion or beliefs or to perform religious observances, either alone
or in community with others, shall be subject only to such limitations as are prescribed by law
and are necessary in a tolerant society that respects human rights and freedoms for the protection
of public safety, public order, public health or morals or the fundamental rights and freedoms of
others.
that there is much that is common in the approach to religious freedoms, and that
this should not be overlooked, but there is no single standard.53
Article 18 of the Covenant is noteworthy in a number of other regards. First,
Article 18 is one of the few provisions from which no derogation is allowed in times
of public emergency under Article 4 of the Covenant. This applies to all paragraphs,
even though Article 18(4) cannot with any real justification be considered one of
the key rights protected by the Covenant.54 Paragraph 3 of Article 18 is the
limitation clause which was again the subject of much debate and discussion during
the drafting process. Unlike Article 29 of the UDHR, which applies equally to all
the rights protected by it, in the Covenant the various rights are subject to
limitation on differing grounds. Article 18 of the Covenant distinguishes between
thought, conscience and religion in that it is only the freedom to manifest one’s
religion or beliefs that may be subject to those limitations which are prescribed by
law and are necessary to protect public safety, order, health, morals, or the
fundamental rights and freedoms of others; an exhaustive and closed list. The
limitations enunciated in Article 18 are more restrictive than those in other
provisions of the Covenant to which it is closely connected. For example, Article
19, the right to hold opinions, and Article 21, the right to assembly, can be limited
on grounds of ‘national security’, which does not apply in the case of Article 18.
Furthermore, limitations can be imposed upon the right to manifest religion only
where the fundamental rights and freedoms of others, not any rights and freedoms,
are at stake. Partsch has put the difference in the limitations to Article 18, compared
to the other provisions in the Covenant, down to the ‘special character and high
value of the freedom to manifest one’s religion’.55 If freedom of religion is indeed,
alongside freedom of thought and opinion, the very nucleus of the Covenant, then
clearly the greater protection afforded to religious freedom makes it the very centre
of the philosophical assumptions upon which the Covenant is based. The forum
internum, the internal and private realm of individual choice, is fully insulated and
protected from state interference, and any interference can only relate to manifest-
ations of one’s religion or beliefs on certain limited grounds.56 Aspects of the
manner in which Article 18 of the Covenant has been interpreted in practice will
be discussed in detail later in this essay.
The third and final text under discussion here is the 1981 Declaration on
Religion or Belief.57 Strictly speaking, the Declaration is not a source of legal
53 For analysis to this effect also see M Evans, ‘Human Rights, Religious Liberty and the
Universality Debate’ in R O’Dair and A Lewis (eds), Law and Religion (Oxford: Oxford University
Press, 2001), 205.
54 Article 15 of the European Convention, for example, allows derogation from Art 9 of the
Convention.
55 Partsch, ‘Freedom of Conscience and Expression, and Political Freedoms’, 212.
56 For an attempt to define the scope of the forum internum see Taylor, Freedom of Religion, 115 et seq.
57 For detailed discussion on the Declaration and its background see Tahzib, Freedom of Religion or
Belief, 122 et seq; R Clark, ‘The United Nations and Religious Freedom’ (1978–79) 11 New York
University J Int’l Law and Politics, 197; and D Sullivan, ‘Advancing the Freedom of Religion or Belief
Through the UN Declaration on the Elimination of Religious Intolerance and Discrimination’ (1988)
82 Am J Int’l L 487.
obligation, although it has been argued to contribute to the formation of customary

international law with regard to those matters it addresses.58 What is particularly
telling about the Declaration is that in the 16 years between 1962 and 1978, the
Commission on Human Rights, due to differences between states, managed to
adopt only the title to and preamble of a draft declaration.59 The fact that the
Declaration was finally adopted in 1981 was hailed by Sullivan as ‘a milestone in
the progressive development of human rights norms’.60 It is important to reem-
phasise that the Declaration does not as such seek to protect the right to religious
freedom; it is primarily concerned with prohibiting discrimination on the grounds
of religion and belief. Whereas the Covenant inter alia prohibits discrimination and
seeks to protect religious freedom, the Declaration’s genesis, as noted above, lay in
complementing what became the Race Convention, and thus the rationale was
prohibiting discriminatory treatment, not promoting religious freedom. The Dec-
laration contains only eight articles, of which six are operative. Article 1 is similar
but not identical to Article 18 of the Covenant—there is no fourth paragraph as
there is in Article 18, but the right to religious education is expanded upon in
Article 5 of the Declaration. Most importantly, Article 1(1) of the Declaration
differs from Article 18(1) by noting that:
Everyone shall have the right to freedom of thought, conscience and religion. This right shall
include freedom to have a religion or whatever belief of his choice, and freedom, either
individually or in community with others and in public or private, to manifest his religion or
belief in worship, observance, practice and teaching.61
Article 18(1) of the Covenant refers in the second sentence to the right to adopt a
religion, and there is no reference to whatever belief of his choice; that word is
absent. This form of wording is also present in the third preambular paragraph to
the Declaration and was adopted both in the preamble and in Article 1 as a
compromise.62 Negotiation in the Third Committee required two key changes to
secure agreement on the preamble and on Article 1. Islamic states demanded that
the original draft of the preamble, which was much closer to Article 18 of the
Universal Declaration, be changed so that references to the ‘right to choose,
manifest and change one’s religion or belied’ were omitted.63 The term ‘whatever’
58 See further on this issue C Evans, ‘Time for a Treaty?’ at 627 et seq and B Dickson, ‘The UN and
Freedom of Religion’ (1995) 44 Int’l and Comp L Quart 327, 344 et seq.
59 General Assembly Resolution 106 (XXXIII), 16 December 1978, 6th preambular paragraph,
cited by Tahzib, Freedom of Religion or Belief, 159 fn 303.

60 Sullivan, ‘Advancing the Freedom of Religion or Belief ’, 488.
61 Emphasis added.
62 The relevant part of the paragraph reads, ‘Considering that the disregard and infringement
of human rights and fundamental freedoms, in particular of the right to freedom of thought,
conscience, religion or whatever belief, have brought, directly or indirectly, wars and great suffering
to mankind . . . ’. For detailed discussion of the negotiations over the preamble and Art 1 see N Lerner,
‘Toward a Draft Declaration Against Religious Intolerance and Discrimination’ (1981) 11 Israel
Yearbook of Human Rights 82; N Lerner, ‘The Final Text of the UN Declaration Against Intolerance
and Discrimination Based on Religion and Belief ’ (1982) 12 Israel Yearbook of Human Rights 185; and
M Evans, Religious Liberty and International Law, 227 et seq.
63 UN Doc A/36/684, para 6 (1981).
was inserted at the request of the Central and Eastern European bloc so as to
reemphasise that the 1981 Declaration protects all forms of belief, such as atheism,
and not just theistic ones.64 Although Taylor, among others, has argued that
everyone agreed that Article 1 of the Declaration permitted a person to change
religion, this is again very difficult to sustain.65 As he himself notes, Article 1 of the
Declaration had to be amended and express reference to the right to change religion
removed so as to ensure the support of Muslim states in the General Assembly,
which was crucial to the Declaration’s adoption.66
The wording adopted in Article 1 of the Declaration reinforces the argument
that there has not been and still is no consensus among states that the right to
religious freedom includes the right to change religion or belief. The manner in
which the issue was purportedly resolved in the drafting of the Declaration was by
the insertion of Article 8. This states that nothing in the Declaration ‘shall be
construed as restricting or derogating from any right defined in the Universal
Declaration of Human Rights and the International Covenants on Human
Rights’.67 Equally, if not more, important is what was left out of the Declaration
which affects the application of Article 8. This provision allows those who insist on
the right to change religion to argue that, as it was already protected by Articles 18
of the Universal Declaration and International Covenant on Civil and Political
Rights, the 1981 Declaration for them does not detract from that. For those states
which have consistently argued that Article 18 of the Covenant, the one provision
in question which is legally binding, does not protect the right to change religion,
the wording in Article 1 of the Declaration is a reiteration of their position. States at
the time of drafting took and continue to take Articles 1 and 8 of the Declaration to
mean various things.
The other provisions of the Declaration were less contentious than Article 1.
Articles 2, 3 and 4 all strongly emphasise non-discrimination on the grounds of
religion; Article 5 concerns the right to religious education; Article 6 lists a number
of freedoms such as the right to worship or assemble, to establish and maintain
places for these purposes, and to write, and issue and disseminate relevant publica-
tions in these areas; and Article 7 imposes an obligation upon states to give effect to
the Declaration in domestic law. The primary importance of the Declaration lies
not in its normative value, which adds little to the existing treaty rights, but in the
fact that is has become one of the documents of reference for the Special Rappor-
teur on Freedom of Religion or Belief.68 Although it is not possible within the
64 Tahzib, Freedom of Religion or Belief, 167, fn 338 notes that inclusion of the term ‘whatever’ had
to overcome strong opposition from Muslim and Catholic states in the Commission.
65 Taylor, Freedom of Religion, 36.
66 Ibid.
67 For further discussion on what is left out of the Declaration see N Ghanea, ‘The 1981 UN
Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion
or Belief: Some Observations’ in N Ghanea (ed), The Challenge of Religious Discrimination at the Dawn
of the New Millennium (Leiden: Martinus Nijhoff, 2004), 9 at 24 et seq.
68 The Commission on Human Rights and Sub Commission in 1983 adopted CHR Resolution
1983/40 and Sub Commission Resolution 1983/31 respectively which asked for the appointment of a
Special Rapporteur who would investigate ‘various manifestations of intolerance and discrimination on
scope of this essay to examine the work of the Special Rapporteur, it is worth noting
that the current Special Rapporteur, Asma Jahangir, has continued the trend set by
her predecessors in interpreting her mandate broadly and providing another valu-
able avenue for addressing complaints concerning religious intolerance and curtail-
ment of the right to believe outside of the formal UN treaty structure.69
2. Regional provisions protecting religion and belief

a. The European Convention and religious freedom
The discussion of universal documents has highlighted a clear lack of agreement
over key facets of religious freedom; aspects of which, it has been argued, are
ignored or misunderstood in much of the literature. The position in regional
treaties is, in some respects, the complete opposite. Notwithstanding the very
different role that religion and established faith institutions play in the legal systems
of states in Europe, Africa, or in the Americas, negotiation of the treaty provisions
protecting religious freedoms in regional human rights treaties has, in many
respects, been straightforward, although some controversies have been avoided by
recognising that any attempt to define certain terms such as religion, belief, or
protected manifestations would be futile. In the context of the Council of Europe,
what became paragraph 1 of Article 9 of the European Convention on Human
Rights70 was subject to very little, if any, discussion or disagreement during the
drafting process.71 One of the key objectives in the drafting of the entire Conven-
the grounds of religion or belief . . . using the Declaration as a standard’. On the basis of these
resolutions Elizabeth Odio Benito compiled a report, the final version of which is Study on the Current
Dimensions of the Problems of Intolerance and Discrimination on Grounds of Religion or Belief, Report by
Mrs. Elizabeth Odio Benito, Special Rapporteur, E/CN.4/Sub.2/1987/26. The Commission on Human
Rights subsequently in Resolution 1986/20 appointed a Special Rapporteur on Religious Intolerance a
position first held between 1986 and 1993 by Angelo d’Almeida Ribeiro and then between 1993 and
2004 by Abdelfattah Amor. Asma Jahangir at the time of writing is the current Special Rapporteur
and has been in position since 2004. On the Rapporteur see further among others Dickson, ‘The UN
and Freedom of Religion’, 245 et seq. It is worth noting that the title of the Rapporteur’s mandate has
changed from one concerned with religious intolerance to one concerned with freedom of religion or
belief. This is not simply a case of semantics, it recognises a core of the right that must be protected and
not just the fact that all should be treated equally, which allows the curtailment of belief and
manifestation so long as it applies to all.
69 The current mandate is Human Rights Council Resolution 6/37. For examples of how the mandate
is interpreted by the Special Rapportuer see inter alia Special Rapporteur of the Commission on Human
Rights, Implementation of the Declaration on the Elimination of All Forms of Intolerance Based on Religion or
Belief, UN Doc A/50/440, 18 September 1995 and Report of the Special Rapporteur on Freedom of
Religion or Belief, Asma Jahangir, A/HRC/13/40, 21 December 2009, especially paras 5–17. For analysis
of the work of the Rapporteur and how the work can be strengthened see C Evans, ‘Strengthening the
Role of the Special Rapporteur on Freedom of Religion or Belief ’ (2006) 1 Religion and Human Rights, 75
and further more historically on the scope of the mandate D Weissbrodt, ‘The Three “Theme” Special
Rapporteurs of the UN Commission on Human Rights’ (1986) 80 Am J Int’ L 685.
70 Convention for Protection of Human Rights and Fundamental Freedoms, 1950, European
Treaty Series No 5.
71 See Council of Europe, Collected Edition of the ‘Travaux Preparatoires’ of the European Convention on
Human Rights: Vol II (The Hague: Martinus Nijhoff, 1975), 46 et seq where the only discussion concerns
the relationship between education and religion and not the right to religious freedom as such.
tion, not just Article 9 which protects freedom of thought, conscience, and religion,
was to put forward a relatively short selection of key civil and political rights and to
secure approval for them while the political impetus was still strong.72 Article 9(1),
as adopted, is strikingly similar to the very earliest proposed drafts and states that:
Everyone has the right to freedom of thought, conscience and religion; this right includes
freedom to change his religion or belief and freedom, either alone or in community with
others and in public or private, to manifest his religion or belief, in worship, teaching,
practice and observance.
It was always the intention of the drafters of the European Convention that Article
9(1) should closely resemble Article 18 of the Universal Declaration, which was
adopted less than two years earlier. This was realised, as the two are almost identical,
with the only difference being the ordering of the words worship, teaching,
practice, and observance at the end of the two provisions.73 Much more difficult
in this context was the drafting of Article 9(2), the limitation clause, and the right to
education, which was finally adopted as Article 2 of the First Protocol to the
Convention74 as opposed to as a part of Article 9 or a separate provision in the
main Convention itself.75 Article 9(2), as adopted, states that ‘[f]reedom to mani-
fest one’s religion or beliefs shall be subject only to such limitations as are prescribed
by law and are necessary in a democratic society in the interests of public safety, for
the protection of public order, health or morals, or for the protection of the rights
and freedoms of others’. This differs from both Article 29(1) of the UDHR and also
Article 18(3) of the Covenant. The Covenant is also more extensive in the protec-
tion it affords religious freedom, in that Article 15 of the European Convention
allows Article 9 to be derogated from in ‘time of war or other public emergency
threatening the life of the nation’, and this extends to both the right to have a
religion or belief (in theory at least) as well as manifestations of it.76
72 The literature on the background to the Convention is extensive. Most notably see: A Robertson,
‘The European Convention for the Protection of Human Rights’ (1950) BYbIL 145; B Simpson, Human
Rights and the End of Empire: Britain and the Genesis of the European Convention (Oxford: Oxford
University Press, 2001); G Marston, ‘The United Kingdom’s Part in the Preparation of the European
Convention on Human Rights, 1950’ (1993) 42 ICLQ 796; and Council of Europe, Collected Edition of
the ‘Travaux Preparatoires’ of the European Convention on Human Rights: Vols I–IV (The Hague: Martinus
Nijhoff, 1975 onwards). For analysis of the background to Art 9 specifically see further, M Evans, Religious
Liberty and International Law, 262 et seq and C Evans, Freedom of Religion Under the European Convention
on Human Rights (Oxford: Oxford University Press, 2001), 38 et seq.
73 This intention is made very clear in the preambular paragraph which states that, ‘[b]eing
resolved, as the governments of European countries which are like-minded and have a common
heritage of political traditions, ideals, freedom and the rule of law, to take the first steps for the
collective enforcement of certain of the rights stated in the Universal Declaration’.
74 Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms,
1952, ETS No 9.
75 For detailed discussion of the issues that arose see M Evans, Religious Liberty and International
Law, 262 et seq and C Evans, Freedom of Religion Under the European Convention on Human Rights, 39
et seq. Inclusion in the First Protocol is significant in that while membership of the Council of Europe
requires ratification of the Convention, the obligation does not extend to the substantive, as opposed to
procedural, Protocols.
76 As no state can control the mind of an individual, the ability to derogate from Art 9(1) is in reality
limited to manifestations of belief.

As is the case with the other treaties and declarations discussed above, the Conven-
tion also contains a non-discrimination clause, Article 14, which prohibits discrimin-
ation in the enjoyment of the rights and freedoms set forward in the Convention on
various grounds including religion, political, or other opinion. Unlike Article 26 of the
Covenant on Civil and Political Rights this is not a free-standing right but in essence
reads a non-discrimination clause into each of the substantive rights set out. The
Council of Europe in 2000 adopted Protocol 12 to the Convention, which seeks to
provide a free-standing right not to be discriminated against on the same grounds as
those articulated in Article 14, and although it has not been widely ratified the
Protocol has now come into force.77 Beyond these provisions there is nothing else
in the convention system which directly seeks to protect religious freedom or prohibit
discrimination on the grounds of religion or belief.
b. The Inter-American system and religious freedom

The Inter-American system is unique in that it has two documents of normative
value, the American Declaration of the Rights and Duties of Man, 194878 and the
American Convention on Human Rights, 1969.79 The Declaration in Article III
states that ‘[e]very person has the right freely to profess a religious faith, and to
manifest and practice it both in public and in private’. When it came to drafting a
legally binding provision, as was the case with the Council of Europe, the Organiza-
tion of American States was able, due to its greater social and cultural homogeneity,
to relatively quickly agree on the basics of the religious freedom provision. The
American Convention also maintains the same approach as all the other declar-
ations and treaties discussed so far, in that it is only concerned with religion in the
narrow sense of it being a part of free thought, conscience, and expression and also a
ground for non-discrimination. The latter can be seen in Article 1 of the Conven-
tion, which imposes an obligation upon all states parties to extend all rights in the
Convention to all without discrimination, with one of the protected grounds being
religion. With regard to religious freedom itself, as protected in Article 12 of the
American Convention, the absence of definitions is again notable. As a treaty
finalised after the Covenant on Civil and Political Rights, and with a number of
states having actively participated in the drafting of both texts, the similarity
between the content and structure of the two provisions is unsurprising although
there are also a few noteworthy differences. Article 12, which protects freedom of
conscience and religion (but makes no reference to thought),80 states:
77 Protocol Number 12 to the Convention for the Protection of Human Rights and Fundamental
Freedoms, 2000, ETS No 177. For discussion of Protocol 12 and many of the objections to it see
U Khaliq, ‘Protocol 12 to the European Convention on Human Rights: A Step Forward or a Step Too
Far?’ (2001) Public Law 457.
78 OAS Resolution XXX, 1948.
79 American Convention on Human Rights, OAS Treaty Series No 36, 1144 UNTS 123.
80 The relationship between thought and belief (which are both included in Art 18 of the
Covenant) was extensively debated in the drafting of the Covenant. In the American Convention,
thought is expressly protected in Art 13, as opposed to ‘opinion’ which is protected in Art 19 of the
Covenant.
1. Everyone has the right to freedom of conscience and of religion. This right
includes freedom to maintain or to change one’s religion or beliefs, and
freedom to profess or disseminate one’s religion or beliefs, either individually
or together with others, in public or in private.
2. No one shall be subject to restrictions that might impair his freedom to
maintain or to change his religion or beliefs.
3. Freedom to manifest one’s religion and beliefs may be subject only to the
limitations prescribed by law that are necessary to protect public safety, order,
health, or morals, or the rights or freedoms of others.
4. Parents or guardians, as the case may be, have the right to provide for the
religious and moral education of their children or wards that is in accord with
their own convictions.
Importantly, unlike the Covenant, there is in the American Convention express
recognition of the right to change religion. During the drafting of the Covenant,
Brazil and Canada had actively sought to maintain the express reference to the right
to change religion in Article 18, although it was Brazil alongside the Philippines
which proposed the compromise amendment which was finally adopted.81 The
lack of opposition to an express reference to changing religion during the drafting of
the American Convention clearly allowed this. The other differences between the
Covenant and Convention are very subtle; for example, paragraph two of the
Convention uses the term ‘restriction’ as opposed to ‘coercion’ in the Covenant.
Although it may be argued to be a distinction without a difference, the threshold as
to what state action is impermissible will be lower in the case of the Convention.
This can be contrasted with the limitation clause in Article 12(3) of the Conven-
tion, where restrictions are permitted on manifestations so as to protect the right or
freedoms of others, whereas the Covenant only allows restrictions where the
fundamental rights or freedoms of others are at stake. In this sense, the wording
of the American Convention is identical to Article 9(2) of the European Con-
vention. Unlike the European Court, which in recent years has dealt with an
exponential rise in petitions concerning religious freedoms, the American Court
has to date only considered one case where Article 12 was found to have been
violated.82 The Court did not engage in any analysis of the right and what it
entails, as Guatemala, the respondent state, accepted its international responsi-
bility for the massacre of indigenous persons in the context of which the Article
12 claim was raised.83
81 Commission on Human Rights, Third Committee, 5th Session (1950), 9th Session (1954) and
15th Session (1960) A/4625.

82 In Case 11.803, Juan Pable Olmedo Bustos, Ciro Colombara Lopez, Claudio Marquez Vidal, Alex
Munoz Wilson, Matias Insuza Tagle, and Hernan Aguirre Fuentes v Chile, (Case of the ‘Last Temptation
of Christ’) Judgment of 5 February 2001, Report No 31/98, I/A Court H.R. (Ser L)/V/II.95 Doc. 7
rev. at 97 (1998). The Inter-American Court did consider there to be a violation of Art 13, freedom of
thought and expression, but not of Art 12 which was also considered.
83 Case of Plan de Sánchez Massacre v Guatemala, Judgment of 29 April 2004, I/A Court H.R.,
(Ser C) No 105 (2004). The Inter-American Commission on Human Rights has considered Article III
c. The African Union and religious freedom

The final treaty under discussion in this part of the essay is the 1981 African
Charter on Human and People’s Rights.84 Notwithstanding the reforms which
have led to the creation of the African Court of Justice and Human Rights85 and
the transformation from the Organisation of African Unity86 to the African
Union,87 the key normative document for the continent continues to be the
1981 Charter. In Article 2 the Charter has a non-discrimination clause vis-à-vis
Charter rights where religion is one of a number of protected grounds. It also has a
specific provision on religious freedom, Article 8. Of the legally binding provisions
discussed so far, Article 8 is the pithiest. It states that ‘[f]reedom of conscience, the
profession and free practice of religion shall be guaranteed. No one may, subject to
law and order, be submitted to measures restricting the exercise of these freedoms’.
Article 8 is actually a fair and pragmatic compromise considering the religious,
ethnic, cultural, and social heterogeneity of the continent, the political concerns of
African leaders, the need for a document that reflected ‘African realities’ and
‘African perceptions’ of rights.88 Textually, at least, the provision draws a distinc-
tion between freedom of conscience and the profession and practice of a religion,
meaning that manifestations of one’s conscience, where they are not religious, are
not protected, whereas manifestations of religion are.89 Although it has been argued
that Article 8 also protects a right to change religion, because it is implied in the
wording, this argument seems to stretch the text too far.90 Considering the position
on a number of occasions but has not provided detailed guidance as to what the right entails. See for
example, IACHR, Report on the Situation of Human Rights in Argentina (1979) OAS Document, OEA/
Ser.L/V/II.49, 11 April 1980, p 251. For discussion of some of the Commission’s observations in this
regard see T Buergenthal and D Shelton, Protecting Human Rights in the Americas: Cases and Materials
(Kehl: N. P. Engel, 4th rev edn, 1995), 398 et seq. The general paucity of the Art 12 jurisprudence can
be seen from the fact that the most detailed commentary on the Inter-American Court’s approach to
substantive rights does not contain any real discussion on Art 12. See L Burgorgue-Larsen and A Úbeda
de Torres, The Inter-American Court of Human Rights: Case Law and Commentary (Oxford: Oxford
84 African [Banjul] Charter on Human and Peoples’ Rights, 1981; OAU Doc CAB/LEG/67/3 rev
5; (1982) 21 International Legal Materials 58.

85 Protocol on the Statute of the African Court of Justice and Human Rights, 1 July 2008, available
at <http://www.unhcr.org/refworld/docid/4937f0ac2.html> accessed 31 December 2010, which re-

places the Protocol to the African Charter on Human and Peoples’ Rights on the Establishment of an
African Court on Human and Peoples’ Rights, 1988.
86 Charter of the Organisation of African Unity, 23 May 1963, (1963) 2 International Legal
Materials 766.
87 Constitutive Act of the African Union, OAU Doc CAB/LEG/23.15, entered into force 26 May
2001. For detailed discussion see F Viljoen, International Human Rights Law in Africa (Oxford
University Press, 2007), 163 et seq.
88 On the drafting history behind the Charter see, E Ankumah, The African Commission on Human
and Peoples’ Rights: Practice and Procedure (The Hague: Martinus Nijhoff, 1996), 4 et seq; F Ouguer-
gouz, The African Charter on Human and Peoples’ Rights: A Comprehensive Agenda for Human Dignity
and Sustainable Democracy in Africa (The Hague: Martinus Nijhoff, 2003), 19 et seq; and F Viljoen,
‘The African Charter on Human Rights and Peoples’ Rights/The Travaux Préparatoires in the Light of
Subsequent Practice’ (2004) 25 Human Rights Law Journal 313.
89 See further, Ouguergouz, The African Charter on Human and Peoples’ Rights, 156.
90 See among others, Ankumah, The African Commission on Human and Peoples’ Rights, 133.
of some African states in the drafting of other documents, it is unlikely that they
would have acceded to such a view. To insure against such a view being adopted,
Egypt has made clear in its reservation to the Charter that it only accepts inter alia
Article 8 to the extent that it does not conflict with ‘Islamic law’.91 No other state
has entered such a reservation, although this should been seen in the context of the
fact that the African Charter has been subject to the fewest substantive reservations
of any of the major human rights treaties.92
The second sentence of Article 8, ‘[n]o one may, subject to law and order, be
submitted to measures restricting the exercise of these freedoms’, is the least
stringent limitation clause discussed so far. Many of the other limitations, which
are inherent within the various articles of the Charter protecting substantive
rights, are equally opaque. Article 9, which protects the right to express and
disseminate opinions, for example, states that ‘[e]very individual shall have the
right to express and disseminate his opinions within the law’.93 Such a lack of clarity
affords states parties substantial latitude in how they interpret the rights in question
and any limitations upon them. The fact that Article 8 is far more open
in this regard than either Article 9(2) of the European Convention or Article
18(3) of the Covenant, for example, underlines that there is little global consensus
as to which limitations are permissible vis-à-vis the manifestation of religious rights.
Although some clarity as to the scope of Article 8 could have been provided
by the African Commission, in a series of petitions concerning Zaire and the
treatment of Jehovah Witnesses, the Commission did not analyse the scope of
Article 8 in any detail.94 To date there have been no cases heard by the African
Court on Article 8.
C. The practice of the Human Rights Committee

and the European Court of Human Rights
The analysis in this section of the chapter moves away from the drafting history of
the provisions under discussion and examines aspects of their application and
interpretation. Due both to the constraints of space and lack of jurisprudence in
some treaty systems, the 1966 Covenant on Civil and Political Rights and the
European Convention will be used as paradigms of the universal and regional
systems respectively. It is not intended in this section specifically to discuss those
cases involving religious freedoms or rights which invoke other key substantive
provisions of the ICCPR or the ECHR, for example, those which also relate to
91 No official document reference, reproduced in R Murray and M Evans, Documents of the African
Commission on Human and Peoples’ Rights (Oxford: Hart Publishing, 2001), 18.
92 Only Egypt, South Africa, and Zambia have entered reservations of any sort.
93 Emphasis added.
94 See 9th Annual Report, Communications 25/89, 47/90, 56/91, 100/93 Free Legal Assistance
Group, Lawyers’ Committee for Human Rights, Union Interafricaine des Droits de l’Homme, Les Témoins
de Jehovah/Zaire.
freedom of expression95 or freedom of association.96 The discussion will, also due

to the constraints of space, focus on a few key cases and primarily concentrate on
those concerning limitations on manifestation which involve religious dress.97 The
petitions discussed below should not, however, be seen as being fully illustrative of
the approach of the Human Rights Committee or the European Court of Human
Rights towards religious manifestation. The petitions concerning dress, however,
illustrate tendencies in the reasoning of these bodies, in particular the European
Court, which highlight an approach which seeks to provide the state with greater
latitude in its approach towards manifestations of faith and places less emphasis on
the rights of the individual.
1. The Human Rights Committee and religious freedoms

The preamble to the 1981 Declaration on Religious Intolerance notes in the
third paragraph that ‘ . . . the disregard and infringement of human rights and
fundamental freedoms, in particular of the right to freedom of thought, conscience,
religion or whatever belief, have brought, directly or indirectly, wars and great
suffering to mankind’. This commonly expressed statement, which is part of the
rationale for the rights in question, would lead one to expect that an international
treaty body with broad-ranging competence, such as the Human Rights Commit-
tee (HRC), would have been inundated with petitions claiming violations of the
relevant treaty provisions. The reality, however, is that there is a relative paucity
of jurisprudence concerning Article 18 of the Covenant. To date, approximately 30
petitions have raised issues central to the provision, and even of these a substantial
number have been declared inadmissible.98 The clearest articulation of the Com-
mittee’s approach to Article 18 has been in General Comment 22.99 In its General
Comments, the HRC consolidates its views and practice from the relevant juris-
prudence and state reporting procedure and seeks to issue a clear statement as to
95 For example, Otto-Preminger-Institut v Austria, Ser A, No 295; (1994) 19 EHRR 34 or Wingrove
v United Kingdom, 1996-V; 24 EHRR 1, which raised issues under both Art 10 and Art 9.
96 For example, Application No 72881/01, Moscow Branch of the Salvation Army v Russia, judgment
5 October 2006 and Application No 18147/02 Church of Scientology Moscow v Russia, judgment 5
April 2007 which raised issues under both Art 11 and Art 9. As will be discussed below, framing
religious claims under Art 10 or Art 11 in practice results in greater scrutiny by the Court.
97 The discussion does not deal with all dress related cases; notably it does not discuss Application
No 27058/05, Dogru v France and Application No 31645/04, Kervanci v France 72881/01, judgments
of 4 December 2008. Both of these cases, which involved headscarves being worn by school girls, were
chamber decisions and followed the logic of the Grand Chamber in Leyla Şahin (Application No
44774/98, Leyla Şahin v Turkey (2007) 44 EHRR 5) which is discussed in detail below. The discussion
also does not address Application No 41135/98, Ahmet Arslan and Others v Turkey, judgment of 23
February 2010 where prohibitions on the wearing of religiously inspired dress were in this instance
held to be in violation of Art 9 of the Convention.
98 As of 31 May 2011 the Covenant has 167 states parties, whereas the Protocol has been ratified by
113 states parties.

99 Article 18, UN Doc CCPR/C/21/Rev.1/Add.4 (1993), reprinted in Compilation of General
Comments and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc HRI/
GEN/1/Rev.6 at 155 (2003).
what it considers the right in question to entail.100 With regard to Article 18, in
1993 the Committee issued General Comment 22 and inter alia noted:
...
2. Article 18 protects theistic, non-theistic and atheistic beliefs, as well as the right not to
profess any religion or belief. The terms ‘belief ’ and ‘religion’ are to be broadly construed.
Article 18 is not limited in its application to traditional religions or to religions and beliefs
with institutional characteristics or practices analogous to those of traditional religions. The
Committee therefore views with concern any tendency to discriminate against any religion or
belief for any reasons, including the fact that they are newly established, or represent religious
minorities that may be the subject of hostility by a predominant religious community.
...
4. The freedom to manifest religion or belief may be exercised ‘either individually or in
community with others and in public or private’. The freedom to manifest religion or belief
in worship, observance, practice and teaching encompasses a broad range of acts. The
concept of worship extends to ritual and ceremonial acts given direct expression to belief,
as well as various practices integral to such acts, including the building of places of worship,
the use of ritual formulae and objects, the display of symbols, and the observance of holidays
and days of rest. The observance and practice of religion or belief may include not only
ceremonial acts but also such customs as the observance of dietary regulations, the wearing
of distinctive clothing or headcoverings, participation in rituals associated with certain stages
of life, and the use of a particular language customarily spoken by a group. In addition, the
practice and teaching of religion or belief includes acts integral to the conduct by religious
groups of their basic affairs, such as, inter alia, the freedom to choose their religious leaders,
priests and teachers, the freedom to establish seminaries or religious schools and the freedom
to prepare and distribute religious texts or publications.
5. The Committee observes that the freedom to ‘have or to adopt’ a religion or belief
necessarily entails the freedom to choose a religion or belief, including, inter alia, the right to
replace one’s current religion or belief with another or to adopt atheistic views, as well as the
right to retain one’s religion or belief. Article 18.2 bars coercions that would impair the right
to have or adopt a religion or belief, including the use of threat of physical force or penal
sanctions to compel believers or non-believers to adhere to their religious beliefs and
congregations, to recant their religion or belief or to convert. Policies or practices having
the same intention or effect, such as for example those restricting access to education,
medical care, employment or the rights guaranteed by article 25 and other provisions of the
Covenant are similarly inconsistent with article 18.2. . . .
...
8. Article 18.3 permits restrictions on the freedom to manifest religion or belief only if
limitations are prescribed by law and are necessary to protect public safety, order, health or
morals, or the fundamental rights and freedoms or others. The freedom from coercion to
have or to adopt a religion or belief and the liberty of the parents and guardians to ensure
religious and moral education cannot be restricted. In interpreting the scope of permissible
limitation clauses, States parties should proceed from the need to protect the rights
guaranteed under the Covenant, including the right to equality and non-discrimination
100 For detailed discussion and analysis of how General Comments are compiled and also their
legitimacy, as the Covenant and Protocol do not provide for them expressly, see H Keller and L Grover,
‘The Legitimacy of General Comments Adopted by the UN Human Rights Committee’ in H Keller
and G Ulfstein (eds), UN Human Rights Treaty Bodies: Law and Legitimacy (Cambridge: Cambridge
on all grounds specified in articles 2, 3 and 26. Limitations imposed must be established by
law and must not be applied in a manner that would vitiate the rights guaranteed in article
18. The Committee observes that paragraph 3 of article 18 is to be strictly interpreted:
restrictions are not allowed on grounds not specified there, even if they would be allowed as
restrictions to other rights protected in the Covenant, such as national security. Limitations
may be applied only for those purposes for which they were prescribed and must be directly
related and proportionate to the specific need on which they are predicated. Restrictions
may not be imposed for discriminatory purposes or applied in a discriminatory manner. The
Committee observes that the concept of morals derives from many social, philosophical and
religious traditions; consequently, limitations on the freedom to manifest a religion or belief
for the purpose of protecting morals must be based on principles not deriving exclusively
from a single tradition. . . .
9. The fact that a religion is recognized as a state religion or that it is established as official or
traditional or that its followers comprise the majority of the population, shall not result in any
impairment of the enjoyment of any of the rights under the Covenant, including articles 18
and 27, nor in any discrimination against adherents of other religions or non-believers. . . .
10. If a set of beliefs is treated as official ideology in constitutions, statutes, proclamations
of the ruling parties, etc., or in actual practice, this shall not result in any impairment of
the freedoms under article 18 or any other rights recognized under the Covenant nor in
any discrimination against persons who do not accept the official ideology or who oppose
it.
The General Comment covers a significant number of issues, but it cannot
escape notice that the key underlying theme of the Committee’s approach is
non-discrimination on the basis of religion which is not the core of Article 18,
which is about freedom of religion or belief. The Committee compounds the right
to religious freedom with non-discrimination very clearly in paragraph 2, for
example; religious freedom for ‘new’ religions should not lead to discrimination.
Non-discrimination on the basis of belief is essential and the importance of it
cannot be under emphasised. It is also the case that Articles 2 and 26 of the
Covenant have not been subject to the sort of reservations which have afflicted
Article 18. Freedom of religion, however, is about much more than non-discrimin-
ation. On more than one occasion the Committee in General Comment 22 also
refers to the relationship between Articles 18 and 26, as well as other Covenant
provisions, in particular Articles 2 and 27, which seek to prohibit discrimination in
the protection of all Covenant rights and discrimination against minorities respect-
ively.101 What becomes clear from the General Comment is that the Committee
101 See also General Comment No 18, Non-Discrimination, Compilation of General Comments
and General Recommendations Adopted by Human Rights Treaty Bodies, UN Doc HRI/GEN/1/
Rev.6 at 146 (2003) and General Comment No. 28, Equality of Rights Between Men and Women
(Article 3): CCPR/C/21/Rev.1/Add.10 which provides at para 21 that ‘States parties must take
measures to ensure that freedom of thought, conscience and religion, and the freedom to adopt the
religion or belief of one’s choice—including the freedom to change religion or belief and to express
one’s religion or belief—will be guaranteed and protected in law and in practice for both men and
women, on the same terms and without discrimination. These freedoms, protected by Article 18, must
not be subject to restrictions other than those authorized by the Covenant and must not be constrained
by inter alia rules requiring permission from third parties, or by interference from fathers, husbands,
brothers or others. Article 18 may not be relied upon to justify discrimination against women by
actually construes the right to religious freedom through the prism of non-discrim-
ination and thus says relatively little about the core of the right itself.
One area, however, where the Committee has made its view clear as to the
‘essentials’ of the right is with regard to the right to change religion.102 As has been
discussed in some detail above, the drafting history and disagreement between
states led to a compromise in wording which specifically avoided express reference
to the right to change religion. The Committee in interpreting the Covenant is
obliged under international law to do so in ‘good faith in accordance with the
ordinary meaning to be given to the terms of the treaty in their context and in the
light of its object and purpose’. But recourse can be made to ‘supplementary means
of interpretation, including the preparatory work of the treaty and the circum-
stances of its conclusion, in order to confirm the meaning’ arrived at.103 The
Committee, in arriving at its conclusion that there is a right to change religion,
has adopted an approach which the text can bear, and which was the intention of
some (but not others) involved in the drafting process, despite the considerable
ambiguity and contradiction in what was argued. Equally, however, human rights
treaties must be interpreted in the light of society evolving. In Judge v Canada,
for example, the Human Rights Committee stated that the ‘Covenant should be
interpreted as a living instrument and the rights protected under it should
be applied in context and in the light of present-day conditions’.104 However,
this formula can only legitimately be used where human rights treaty bodies
consider that societies have become more ‘progressive’ or where they feel the
minimum standard of protection afforded by states must be raised in the light of
changing circumstances. In the case of the right to change religion, the ‘living
instrument’ approach cannot be considered in isolation of developments within
societies and also in relations between them. The drafting of the 1981 Declaration
highlighted that there was a continuing, if not increasing, lack of agreement on this
matter. The Committee’s approach to this aspect of the right is thus unlikely to be
based on the ‘living instrument’ approach, but more probably draws upon part of
the philosophical basis upon which the Covenant is grounded. If the individual as a
rational being is master of his or her own destiny then clearly there should be a right
to change religion or belief. The Committee’s stance is a reflection of this approach,
whether some states were or are willing to accept it or not, for the Committee it is
inherent in the right and in the Covenant as a whole. However, the Committee, as
reference to freedom of thought, conscience and religion; States parties should therefore provide
information on the status of women as regards their freedom of thought, conscience and religion,
and indicate what steps they have taken or intend to take both to eliminate and prevent infringements
of these freedoms in respect of women and to protect their right not to be discriminated against.’
102 See para 5 of General Comment 22.
103 See Arts 31 and 32 of the Vienna Convention on the Law of Treaties, 1969, 1155 UNTS 331,
which are almost universally accepted as a reflection of customary international law.

104 Communication No 829/1998, Judge v Canada, 5 August 2002. CCPR/C/78/D/829/1998,
para 10.3. This phrase was of course first used by the European Court of Human Rights in Tyrer v
United Kingdom (1978) 2 EHRR 1, para 31. See further on this issue B Schlütter, ‘Interpretation of
Human Rights Instruments Through Their Treaty Bodies’ in Keller and Ulfstein, UN Human Rights
Treaty Bodies, 261.
discussed above, has primarily utilised a non-discrimination approach to Article 18

and this is quite different from a ‘right to freedom’ prism. The latter is more greatly
geared toward ensuring respect as opposed to tolerance; although that is not to say
that a non-discrimination approach cannot also include respect.
Non-discrimination against those who change religion is essential, but the more
pertinent issue with regard to the right to change religion, and indeed the right to
freedom of religion or belief as a whole, becomes about the Committee’s approach
to Article 18(3); it is the manifestation that the state may wish to restrict. The
Committee in paragraph 8 of General Comment 22 makes its approach to Article
18(3) clear. The non-discrimination prism is ever present as the Committee notes
that ‘[r]estrictions may not be imposed for discriminatory purposes or applied in a
discriminatory manner’. With regard to Article 18(3), manifestations of belief can
be restricted, but the essential question, as always, is how the balances are to be
struck between individual rights and community interests? A further relevant
question is, where and how is the boundary to be drawn between what is considered
a part of belief, and when does it become a manifestation? Certain beliefs may
inherently require or encourage manifestation, such as proselytising the faith or the
wearing of certain attire. Of course, a distinction can be drawn between manifest-
ations which are discretionary and those which are obligatory, and the situation is
further complicated by legitimate differences of opinion between adherents of a
religion or belief. Although it never expressly uses the term in individual petitions,
in the state reporting procedure or in the General Comment, the Committee allows
a ‘margin of appreciation’ to states as far as aspects of Article 18 are concerned, and,
as the General Comment suggests more than once, this is also true for Article 18(3).
The manner in which the Committee has tried to balance (or not, as the case
may be) and assess some of the above interrelating considerations can be seen in a
number of petitions. For the purposes of this discussion, two petitions are particu-
larly illustrative. The first is the well-known petition decided in 1989 brought
against Canada by Karnel Singh Bhinder.105 This petition involved a claim brought
by a turban-wearing Sikh against Canada on the ground that he, as a federal worker,
was obliged under national legislation to wear a ‘hard hat’ to protect him from
injury. He would not comply with this obligation and, as a consequence, his
employment was terminated. The Committee analysed the issue from the perspec-
tive of both Articles 18 and 26 and noted:
Whether one approaches the issue from the perspective of article 18 or article 26, in the view
of the Committee the same conclusion must be reached. If the requirement that a hard hat
be worn is regarded as raising issues under article 18, then it is a limitation that is justified by
reference to the grounds laid down in article 18, paragraph 3. If the requirement that a hard
hat be worn is seen as a discrimination de facto against persons of the Sikh religion under
article 26, then, applying criteria now well established in the jurisprudence of the Commit-
tee, the legislation requiring that workers in federal employment be protected from injury
105 Communication No 208/1986, Karnel Singh Bhinder v Canada, UN Doc CCPR/C/37/D/208/
1986 (1989).
and electric shock by the wearing of hard hats is to be regarded as reasonable and directed
towards objective purposes that are compatible with the Covenant.106
The Committee’s reasoning is deeply unsatisfactory. The Committee did not
provide any evidence as to how the different provisions related to one another or
as to how it sought to balance the objectives of the legislation with the rights of the
individual. Clearly, however, the Committee construed manifestations of religion or
belief broadly, thus granting state parties discretion to restrict them under paragraph
3 of Article 18. This means that only the right to ‘believe’ as such is fully protected,
although it must surely be the case that the more central a manifestation is to the
belief itself, the weightier the reasoning must be to limit it. The wearing of a turban
for male Sikhs is obligatory and is an inherent part of Sikh belief, and the Committee
recognised this. Yet, it was still seen as a manifestation which would not be
protected, presumably for reasons of ‘public’ safety or health. If, however, a rational
individual is master of his or her own destiny, then surely it follows that he or she
should be entitled to opt out of a scheme imposed for the public’s benefit where the
individual’s core beliefs do not allow them to comply with certain stipulations. This
does not mean that opting out is without cost.107 The liability of the employer could
be limited, for example, if the safety equipment, in this case a hard hat, would have
saved the life of an individual in an accident.108 This would have been a far more
satisfactory approach and much more in keeping with the Covenant as an instru-
ment designed to protect fundamental rights. If Bhinder is considered in light of
General Comment 22, especially paragraph 4, which was adopted only four years
later, and in light of the fact that this was one of the relatively few petitions under
Article 18, which the Committee had at that stage considered, then the Committee’s
conclusion is at variance with what one would expect.109
In the second petition, Raihon Hudoyberganova v Uzbekistan, which was decided
after General Comment 22 had been adopted, and which also involved the wearing
of distinctive clothing or head coverings, in this case a hijab, the Committee did
106 Karnel Singh Bhinder v Canada, para 6.2.

107 In many instances, the individual manifesting their faith is considered by a court or tribunal to
have a remedy readily available to them by either changing that aspect of their behaviour or, for
example, taking up another vocation. For example, if a school’s uniform policy does not allow the
wearing of religious dress, such as a jilbaab, the petitioner can always move to a school that does allow it
as in R (Begum) v Governors of Denbigh High School [2006] UKHL 15. Or if a Registrar is a devout
Christian and does not wish to carry out same sex civil partnership ceremonies he or she can always find
another vocation as in Lillian Ladele v The London Borough of Islington [2009] EWCA Civ 1357. The
‘bearing the cost of your convictions approach’ is not my suggestion here, it is simply that an
accommodation should be made but it must be recognised that the accommodation may have some
(negative) consequences also for the individual.
108 This approach is supported by the position as far as personal injury is concerned in the law of
England and Wales. In O’Connell v Jackson [1971] 3 All ER 129, the Court of Appeal reduced the
award of damages due to a failure to wear a crash helmet, following a road accident. There are no cases
exactly on point but it is argued that the principle from O’Connell would apply even if the refusal to
wear safety equipment was motivated by religious reasons.
109 The Canadian Supreme Court had rejected the appeal of the applicant in Bhinder v Canadian
National Railway Company [1985] 2 SCR 561 but it has now adopted a very different approach see, for
example, its decision in Multani v Commission Scolaire Marguerite-Bourgeoys [2006] 1 SCR 256.
find Uzbekistan in violation of Article 18 of the Covenant.110 Here the applicant

was excluded from university due to her refusal to remove her hijab. The Commit-
tee in its reasoning noted that:
. . . the freedom to manifest one’s religion encompasses the right to wear clothes or attire in
public which is in conformity with the individual’s faith or religion. Furthermore, it
considers that to prevent a person from wearing religious clothing in public or private
may constitute a violation of article 18, paragraph 2 . . . As reflected in the Committee’s
General Comment No. 22 (para.5), policies or practices that have the same intention or
effect as direct coercion, such as those restricting access to education, are inconsistent with
article 18, paragraph 2. It recalls, however, that the freedom to manifest one’s religion or
beliefs is not absolute and may be subject to limitations, which are prescribed by law and are
necessary to protect public safety, order, health, or morals, or the fundamental rights
and freedoms of others (article 18, paragraph 3, of the Covenant). In the present case, the
author’s exclusion . . . was based on the provisions of the Institute’s new regulations.
The Committee notes that the State party has not invoked any specific ground for which
the restriction imposed on the author would in its view be necessary in the meaning of article
18, paragraph 3. Instead, the State party has sought to justify the expulsion of the author
from University because of her refusal to comply with the ban. . . . In the particular
circumstances of the present case, and without either prejudging the right of a State party
to limit expressions of religion and belief in the context of article 18 of the Covenant and
duly taking into account the specifics of the context, or prejudging the right of academic
institutions to adopt specific regulations relating to their own functioning, the Committee is
led to conclude, in the absence of any justification provided by the State party, that there has
been a violation of article 18, paragraph 2.
The Committee’s reasoning is again unsatisfactory. Uzbekistan should actually
have been in violation of the Covenant because it did not provide justification
for the limitation on the individual’s rights. The law in Uzbekistan made clear that
Uzbek nationals could not wear religious dress in public places.111 It is difficult to
see how banning the voluntary wearing of a hijab in public in all circumstances
could be both proportionate and necessary to protect public safety, order, health, or
morals, or the fundamental rights and freedoms of others under Article 18(3). It
can be argued that the Committee did not have to engage in such analysis because
the absence of any reasoning for the restriction did not necessitate it. But the
Committee found that Uzbekistan violated the Covenant under Article 18(2) and
that its position amounted to coercion. The Committee’s reasoning suggests that it
adopted this approach because Uzbekistan did not seek to justify the necessity of its
measures but rather sought to justify the expulsion of the victim from University
because of her refusal to comply with the ban on the hijaab. Yet, surely the analysis
and outcome should have centred on paragraph 3 of Article 18 and not rested solely
on paragraph 2 of Article 18. The Committee’s reasoning again highlights the fact
that it interprets manifestations of religion or belief broadly and also that the
110 Communication No 931/2000, Raihon Hudoyberganova v Uzbekistan, UN Doc CCPR/C/82/
D/931/2000 (2004).
111 Raihon Hudoyberganova v Uzbekistan, para 2.6.
‘context’ in which restrictions are imposed upon manifestations will be important.
This suggests a ‘margin of appreciation’ for the state, but that margin should be very
limited in light of the fact, as discussed above, that Article 18 is a non-derogable and
fundamental right within the Covenant scheme. A narrow approach towards the
state’s discretion is not what is implied in the Committee’s reasoning in this
petition. Yet, it is what the Covenant system as a whole requires.
As noted above, it is not suggested that these two petitions are fully illustrative of the
approach of the HRC to Article 18 in its entirety (in particular, under the state
reporting procedure, which this discussion has not sought to address), but they do
highlight that the Committee has not developed a conceptually coherent approach to
the rights in question, and further, that the manner in which the rights have been
interpreted is not fully commensurate with the protection afforded the rights in
question within the Covenant scheme. It is not surprising and probably not desirable
either, that the Committee has not sought to define some of the key terms in the
provision. But it is apparent that the Committee has taken a stance on some issues, for
example the right to change religion, which can be justified by the philosophy
underlying the Covenant, but that approach has not permeated all aspects of its
approach to the rights in question. This is especially true vis-à-vis limitations on
some forms of manifestation. This trend is much more apparent in the approach of the
European Court of Human Rights, to which the discussion now turns.
2. The European Court and religious freedoms

It is almost exactly 50 years since the European Court of Human Rights gave its
very first judgment in Lawless v Ireland.112 The Court gave many of its seminal
judgments in the 1960s and 1970s, yet it was not until 1993 that the Court first
considered Article 9 in Kokkinakis v Greece.113 There are numerous reasons for this
and various consequences as a result. Firstly, the (now defunct) European Com-
mission of Human Rights early on adopted a restrictive approach towards the right,
and this resulted in cases not being heard by the Court. Second, the Commission
analysed petitions by considering if they fell within certain categories, as opposed to
adopting a more holistic approach toward the provision, and this approach has
continued to have some (although now increasingly limited) influence on the
Court’s jurisprudence.114 Finally, whereas the European Court in its formative
112 Lawless v Ireland, Ser A, No 3, (1961); 1 EHRR 15.

113 Kokkinakis v Greece, Ser A No 260-A (1993); 17 EHRR 397. The only other major provision
which the Court did not consider until the 1990s was Art 2, which was first examined in detail in 1995
in McCann v United Kingdom, Ser A No 324 (1995); 21 EHRR 97. For a detailed history of the
Court’s formative years see E Bates, The Evolution of the European Convention on Human Rights: From
its Inception to the Creation of a Permanent Court of Human Rights (Oxford: Oxford University Press,
2010).
114 For discussion of the Commission’s jurisprudence see inter alia, F Jacobs, The European
Convention on Human Rights (Oxford: Clarendon Press, 1975), 143 et seq; J Fawcett, The Application
of the European Convention on Human Rights (2nd edn, Oxford: Clarendon Press, 1987), 235 et seq;
D Harris, M O’Boyle, and C Warbrick, Law of the European Convention on Human Rights (London:
Butterworths, 1995), 356 et seq; and P Van Dijk and G J H van Hoof, Theory and Practice of the
years established what many considered to be a well-earned reputation for the

fairness, balance, and intellectual rigour of its judgments,115 it is now increasingly
difficult to consider that the Court has been able to maintain its standards; the
reasoning in many cases is now notably poorer than one would expect.116 Although
it is not possible within the scope of this paper to explore the reasons why this is so,
it does have repercussions for the interpretation of Article 9 as the Court’s
jurisprudence has been decided within the last 20 years. Since Kokkinakis was
decided in 1993 there has been an exponential rise in the number of cases before
the Court which raise issues under Article 9. It is of course not possible to discuss
all, or even much, of the jurisprudence, but again, an attempt will be made to
discuss a small number of cases which, it is argued, provide a flavour of the Court’s
approach, which is relevant to the overall objectives of this essay and which relate to
manifestation.
The starting point for this analysis of the Court’s Article 9 jurisprudence is
unsurprisingly Kokkinakis, as the Court sought to set out some general principles in
that petition. Mr Kokkinakis, born into a Greek Orthodox family, had become a
Jehovah’s Witness and was arrested more than 60 times and interned and im-
prisoned on several occasions for proselytism. He sought to challenge his convic-
tions for proselytism on the basis of various Convention rights, including Article 9.
With regard to Article 9, in general terms, the Court noted:
31. . . . freedom of thought, conscience and religion is one of the foundations of a ‘demo-
cratic society’ within the meaning of the Convention. It is, in its religious dimension, one of
the most vital elements that go to make up the identity of believers and their conception of
life, but it is also a precious asset for atheists, agnostics, sceptics, and the unconcerned. The
pluralism indissociable from a democratic society, which has been dearly won over the
centuries, depends on it.
While religious freedom is primarily a matter of individual conscience, it also implies,
inter alia, freedom to ‘manifest [one’s] religion’. Bearing witness in words and deeds is
bound up with the existence of religious convictions.
According to Article 9 (art. 9), freedom to manifest one’s religion is not only exercisable
in community with others, ‘in public’ and within the circle of those whose faith one shares,
but can also be asserted ‘alone’ and ‘in private’; furthermore, it includes in principle the right
to try to convince one’s neighbour, for example through ‘teaching’, failing which, moreover,
‘freedom to change [one’s] religion or belief ’, enshrined in Article 9 (art. 9), would be likely
to remain a dead letter.
...
33. The fundamental nature of the rights guaranteed in Article 9 para. 1 . . . is also reflected
in the wording of the paragraph providing for limitations on them. Unlike the second
European Convention on Human Rights (3rd edn, The Hague: Kluwer Law International, 1998), 541 et
seq. The later editions of these texts provide at best scant analysis of the Commission’s approach.
115 See, for example, the preface in the first edition of Harris, O’Boyle, and Warbrick, Law of the
European Convention on Human Rights, p vii.

116 In the preface to the second edition of Harris, O’Boyle, and Warbrick, never the most critical of
commentators, they note the Convention system is ‘now seriously at risk of lowering its reputation’.
See D Harris, M O’Boyle, E Bates, and C Buckley, Harris, O’Boyle and Warbrick: Law of the European
Convention on Human Rights (2nd edn, Oxford: Oxford University Press, 2009), v.
paragraphs of Articles 8, 10 and 11 . . . that of Article 9 . . . refers only to ‘freedom to manifest
one’s religion or belief ’. In so doing, it recognises that in democratic societies, in which
several religions coexist within one and the same population, it may be necessary to place
restrictions on this freedom in order to reconcile the interests of the various groups and
ensure that everyone’s beliefs are respected.117
Ultimately the Court found that Greece had violated Article 9, as the laws that had
led to the arrest and convictions of Mr Kokkinakis were not proportionate to the
legitimate aim pursued.118 Part of the subtext of the Kokkinakis case, which was
almost completely overlooked by the majority in the Court, was that this was a case
about a person who had changed his religion (as the Convention specifically
allows), and was, in part, as a consequence being penalised by the Greek authorities
for proselytising according to his new belief. The Court in this case, however,
upheld the Greek law banning proselytising and considered that it pursued a
legitimate aim. Judge Martens in his partly dissenting opinion tackled the key
issue head on when he stated:
The Court’s judgment touches only incidentally on the question which, in my opinion, is the
crucial one in this case: does Article 9 allow member States to make it a criminal offence to
attempt to induce somebody to change his religion? From what it said . . . it is clear that the
Court answers this question in the affirmative. My answer is in the negative. . . . .
In principle . . . it is not within the province of the State to interfere in this ‘conflict’
between proselytiser and proselytised. Firstly, because—since respect for human dignity and
human freedom implies that the State is bound to accept that in principle everybody is
capable of determining his fate in the way that he deems best—there is no justification for
the State to use its power ‘to protect’ the proselytised . . . Secondly, because even the ‘public
order’ argument cannot justify use of coercive State power in a field where tolerance
demands that ‘free argument and debate’ should be decisive. And thirdly, because under
the Convention all religions and beliefs should, as far as the State is concerned, be equal.119
The entire point of the law which had been used to prosecute Mr Kokkinakis was to
preserve the status and privilege of the Greek Orthodox Church,120 but for the
Court there is a distinction between proselytising which is ‘improper’ and that
which is acceptable.121 What the Court was in essence trying to do was to balance
the right of Mr Kokkinakis to manifest his faith by seeking to bring others within
the fold with the right of the state to protect others from such activities. Judge
Martens makes clear in the extract above that, in his view, the state has no business
intervening, as ‘there is no justification for the State to use its power “to protect” the
proselytised’. Article 9(2), however, allows limitations ‘for the protection of the
rights and freedoms of others’ to be placed on manifestations of faith. Article 9(2)
117 Kokkinakis v Greece, para 31.

119 Kokkinakis v Greece, partly dissenting opinion of Judge Martens, para 13 et seq.
120 Section 4 of Law No 1363/1938.
121 Kokkinakis v Greece, para 48. For detailed and insightful analysis of how proselytism is
interpreted and viewed as a concept see the discussion by S Ferrari, ‘Proselytism and Human Rights’
in J Witte and F Alexander (eds), Christianity and Human Rights: An Introduction (Cambridge:
Cambridge University Press, 2011), 253.
considers ‘worship, teaching, practice and observance’ to be acceptable manifest-

ations. The Court thereby considered some forms of manifestation to be ‘improper’
but did not seek to explain which other manifestations, if any, were ‘acceptable’,
what the boundaries of acceptable manifestations were, and how it was going to
strike the balance between the rights of individuals and the rights of the state.122
Article 6 of the 1981 Declaration on Religion or Belief states clearly that manifest-
ing a religion or belief inter alia includes a right ‘to write, issue and disseminate
relevant publications’. The European Court, however, did not refer to the Declar-
ation, which contains a widely accepted list of permissible manifestations.123 Nor
does the Court refer to or try and articulate who the vulnerable are and when they
should be entitled to protection. The Greek government had argued that there was
a difference between ‘straightforward religious teaching’ and ‘“proselytism that is
not respectable”, the kind that consists in using deceitful, unworthy and immoral
means, such as exploiting the destitution, low intellect and inexperience of one’s
fellow beings’, which it argued was what the relevant law outlawed.124 The Court
did not analyse any of these issues and simply considered that the Greek courts did
not specify what was improper about Mr Kokkinakis’ behaviour, and that was the
basis for the breach of Article 9.125
The ‘margin of appreciation’ afforded to Greece by the European Court allowed
Greece to determine what was and what was not appropriate, but the Court did not
examine the privilege and protection afforded to the Orthodox Church by the 1938
law and its application. The Court furthermore, as per its usual approach, did not
consider under Article 14 the clearly discriminatory manner in which the legislation
was applied nor its effect.126 The margin of appreciation, as applied in Kokkinakis,
afforded the Greek authorities substantial latitude and did so to the point where the
Court did not engage in any real scrutiny of the domestic law and its application.
For the European Court, context is all important, and this leads to the margin of
appreciation being broadened and, in turn, the state being afforded greater freedom
in determining what it considers appropriate. In this particular case, the freedom
afforded to Greece was extended to the point where the right to proselytise and
convert others to a minority faith was significantly curtailed. There may have been
some abuse of others’ rights in the one particular incident which the Greek
authorities sought to rely upon (which the Court also gave disproportionate
attention to), where Mr Kokkinakis had entered the home of a woman who was
argued to be (but at no point proved to be) of lower than usual intelligence. The
over-emphasis on this one incident ignores the fact that Mr Kokkinakis had been
122 The Court and Commission have not provided much clarification of these terms in other cases
either. For an analysis which is dated but still helpful see C Evans, Freedom of Religion Under the
European Convention on Human Rights, 105 et seq.
123 As far as known, the Court has only once referred to the 1981 Declaration and even then it only
did so in passing. See Application No 35071/97, Gündüz v Turkey (2004).

126 This is of course not unique to this case and is part of the Court’s established approach to Art 14
although there have been some inroads into this in recent years.
arrested on over 60 occasions over the years for spreading his faith, and there was no
evidence or suggestion that there was any abuse of the rights of other individuals
when he did so.
Under Article 9(2), limitations on manifestations of belief are permissible ‘for the
protection of the rights and freedoms of others’, a particularly vague and open-
ended justification. As noted above, in the Covenant system this ground is also
present, but it is specifically limited to fundamental rights and freedoms and not any
rights or freedoms. While in some circumstances limitations are perfectly justifi-
able, the approach of the Court in some cases after Kokkinakis also displays a
tendency to give too much latitude to the state and not enough freedom to the
individuals involved to make rational choices, which is part of the raison d’être of
the right to religious freedom in the first place. This will be illustrated though the
detailed discussion of two cases, Dahlab v Switzerland127 and Leyla Şahin v
Turkey,128 although a significant number of other cases could also be argued to
be part of this trend.129
In Dahlab v Switzerland, which was declared inadmissible by the Court, the issue
was the right of a convert from Catholicism to Islam to wear an ‘Islamic headscarf ’
during her employment as a primary-school teacher in a public school in Geneva.
The applicant converted to Islam while already employed as a school teacher. After
about five years of wearing the headscarf,130 to which there had been no objection
by the children, their parents, her colleagues, the school’s head teacher or his
immediate superior, or the district inspector, the Director General of Primary
Education sent a letter to the applicant requesting her to stop wearing the headscarf
while carrying out her professional duties, as such conduct was incompatible with
section 6 of the Public Education Act.131 This decision was subject to various
appeals but ultimately upheld by the Swiss Federal Court, and, further to that, an
application was made to the European Court invoking Article 9 of the Convention.
The European Court accepted that the measure in question was prescribed by
law and that it had a legitimate aim. With regard to the latter the Court noted that,
‘the measure pursued aims that were legitimate for the purposes of Article 9 } 2,
namely the protection of the rights and freedoms of others, public safety and public
127 Application No 42393/98, Dahlab v Switzerland, ECHR 2001V

128 Application No 44774/98, Leyla Şahin v Turkey, (2007) 44 EHRR 5.
129 For example, Kalaç v Turkey, Reports of Judgments and Decisions (1997-IV) 27 EHRR 552;
Application No 16278/90, Karaduman v Turkey, DR 74, p 93; and Refah Partisi (the Welfare Party)
and Others v Turkey, ECHR 2003-II, 37 EHRR 1. Coincidentally both Dahlab and Şahin are also
analysed, although from a different if equally critical perspective, by C Evans, ‘The “Islamic Scarf ” in
the European Court of Human Rights’ (2006) 7 Melbourne J Int’l L npg.
130 The Court in its judgment refers to three years but the dates provided amount to a five year
period although the Court may have excluded the periods when the applicant was on maternity leave.
131 Section 6 of the Cantonal Public Education Act of 6 November 1940 provides: ‘The public
education system shall ensure that the political and religious beliefs of pupils and parents are respected’.
The Court also noted that it follows from Arts 164 et seq. of the Cantonal Constitution that there is a
clear separation between church and state in the Canton, the state being secular. In the education
system, the separation is given practical effect by section 120(2) of the Public Education Act, which
provides: ‘Civil servants must be lay persons; derogations from this provision shall be permitted only in
respect of university teaching staff ’. See Dahlab, no paragraph numbers given.
order’.132 The final question was whether the measure was ‘necessary in a demo-
cratic society’. Here the Court again reiterated that states have a margin of
appreciation subject to ‘European supervision, embracing both the law and the
decisions applying it’ that is, whether the measures taken at the national level were
justified in principle and are proportionate to the legitimate aim pursued.133 To
determine this, the Court weighed the requirements of the protection of the rights
and liberties of others against the conduct of the applicant. The European Court
approved of the Swiss Federal Court’s approach, in which it had taken into account
the nature of the profession of state school teachers, who were seen both as
participants in the exercise of educational authority and representatives of the
state, and in doing so weighed the protection of the legitimate aim of ensuring
the neutrality of the state education system against the freedom to manifest religion.
The European Court noted that it is:
. . . very difficult to assess the impact that a powerful external symbol such as the wearing of a
headscarf may have on the freedom of conscience and religion of very young children. The
applicant’s pupils were aged between four and eight, an age at which children wonder about
many things and are also more easily influenced than older pupils. In those circumstances, it
cannot be denied outright that the wearing of a headscarf might have some kind of
proselytising effect, seeing that it appears to be imposed on women by a precept which is
laid down in the Koran and which, as the Federal Court noted, is hard to square with the
principle of gender equality. It therefore appears difficult to reconcile the wearing of an
Islamic headscarf with the message of tolerance, respect for others and, above all, equality
and non-discrimination that all teachers in a democratic society must convey to their pupils.
Accordingly, weighing the right of a teacher to manifest her religion against the need to
protect pupils by preserving religious harmony, the Court considers that, in the circum-
stances of the case and having regard, above all, to the tender age of the children for whom
the applicant was responsible as a representative of the State, the Geneva authorities did not
exceed their margin of appreciation and that the measure they took was therefore not
unreasonable.134
The Court’s reasoning is in many senses unsatisfactory. While the Court accepted
that the applicant had difficult choices to make, in considering the legitimate aims
pursued by the measures, the Court referred on a number of occasions to public
safety and public order. While these are enumerated grounds in Article 9(2), there
was not even the slightest indication that the applicant’s wearing of an Islamic
headscarf posed any threat to public order or indeed the safety of anyone, including
the applicant. The Court’s reference to these grounds is at best strange and difficult
to explain. It is also very difficult to reconcile the first paragraph of the Court’s
judgment, extracted above, with the principles underlying the Convention. Here
the Court develops the notion of ‘passive proselytising’, but, more importantly, the
manner in which the Court construes the issue is that, ‘it is very difficult to assess
the impact that a powerful external symbol such as the wearing of a headscarf may
132 Dahlab, no paragraph numbers given. Emphasis added.

133 Dahlab, no paragraph numbers given.
134 Dahlab, no paragraph numbers given.
have . . . it cannot be denied outright that the wearing of a headscarf might have
some kind of proselytising effect’. Considering the fundamental nature of the right
involved for the applicant, the question more in keeping with the Convention
scheme would have been to ask if the wearing of the foulard actually had a
proselytising effect on the children and consequently negated the principle of
laïcité. While it was correct for the Court to highlight the vulnerability of the
children, a point it reiterated, there was also no evidence or any suggestion that the
applicant sought to abuse her influence over the children or to convert them. In
Kokkinakis the Court had, as discussed above, developed the notion of ‘improper
proselytising’, yet even if the applicant was proselytising, it was not in any sense
improper. For the Court, the headscarf was a ‘powerful external symbol’, and it can
only be concluded that just wearing it was ‘improper’ in itself.
The Court had also stated in Kokkinakis and restated in Dahlab that the rights in
question are ‘one of the foundations of a “democratic society”’ and that ‘[t]he
pluralism indissociable from a democratic society, which has been dearly won over
the centuries, depends on it’. But in Dahlab the Court stated that it considered the
Islamic imposition of a headscarf on women to be ‘difficult to reconcile’ with
the ‘message of tolerance, respect for others and, above all, equality and non-
discrimination’. Yet, it failed to give any weight to the fact that the applicant of
her own volition converted to Islam and wore the headscarf as a matter of her own
choice. The Court itself is thus open to the accusation of suppressing the same
pluralism that it considers essential. As, in Kokkinakis, there was no evidence of any
threat to public order or security, the principle of laïcité did not require that
any evidence of religious pluralism be erased from public schools. So long as a
teacher reflects the neutrality of the state in what is taught, does not attempt to
impose his or her religious views on the students, and respects the pluralism
and beliefs of the students themselves, the principles of laïcité, pluralism, and
tolerance are all upheld.135 The Court’s emphasis on the role and discretion of
the state at the expense of fundamental individual rights can equally be seen in Leyla
Şahin v Turkey.
In this case the issue was again, as is well-known, the wearing of the Islamic
headscarf, although on this occasion it was in the context of a student wishing to
wear it at a Turkish university, and it was before the Grand Chamber of the Court.
The applicant came from what was described by the Court as a ‘traditional family of
practising Muslims’ and considered it an obligation for her to wear the Islamic
headscarf.136 Although she had worn the headscarf for a number of years while
studying at another university, within six months of moving to the Faculty of
Medicine at Istanbul University a circular was issued by the Vice Chancellor of that
institution which insisted that students who wore the headscarf or wore a beard
must ‘not be admitted to lectures, courses or tutorials’. Any student who refused to
135 Cf J Martinez-Torrón and R Navvarro-Valls, ‘The Protection of Religious Freedom in the
System of the Council of Europe’ in Lindholm, Durham, and Tahzib-Lie, Facilitating Freedom of
Religion or Belief, 209, 231, fn 82.
136 Leyla Şahin v Turkey, para 14.
comply would be subject to disciplinary measures.137 The ultimate basis for the
circular was the secular (laik) nature of the Turkish Republic.138 Şahin appealed
against the circular, and ultimately the Supreme Administrative Court dismissed
the challenge.139 Disciplinary measures were also taken against Şahin, among
others, although an amnesty was granted to her in respect of the penalties that
had been imposed.140 Şahin submitted an application to the European Court
against the ban on wearing the headscarf, and it was ultimately heard by the
Grand Chamber, which inter alia analysed Article 9 of the Convention.141
For the Court, the key questions, as in all such cases were: was there an
interference with the applicant’s rights; was the interference prescribed by law;
did it pursue a legitimate aim; and was this necessary in a democratic society within
the meaning of Article 9(2)? There was no issue as such concerning the first two
questions, which the Court dealt with in some detail; there had been an interfer-
ence with the applicant’s rights and it was prescribed by law within the terms of the
Court’s jurisprudence.142 On the question of whether the aim of the measure was
legitimate or not, the Court, in one pithy paragraph, accepted that it was legitimate
for the ‘rights and freedoms of others and or protecting public order’.143 The point
was not at issue between the parties in this case, and the Court unquestionably
accepted the legitimacy of the aim. The Grand Chamber’s non-questioning
approach to ‘legitimacy’ reinforces an attitude which is a leitmotif of the Article 9
jurisprudence as a whole—the Court will accept interferences as being for a
‘legitimate reason’ without any real scrutiny of the issue. In this case it did not
actually need to do so, but more fundamentally, the justification for the ‘protection
of the rights and freedoms of others’ has been construed by the Court in petitions
involving Article 9 in such an open-ended way that it is difficult to think of any real
limits to it. Measures are thus legitimate because they have been adopted to protect
the rights of others. Close scrutiny therefore by the Court of whether such measures
are ‘necessary in a democratic society’ and proportionate become essential if it is to
effectively perform its function of European supervision.
Whether the headscarf ban was or was not ‘necessary in a democratic society’ was
the crucial legal issue in Şahin. The Court has made clear in the context of Article 10,
that ‘necessity’ does not equate, on the one hand, to ‘useful’, ‘reasonable’, or ‘desir-
able’, but, on the other hand, is not synonymous with ‘indispensable’ either.144

138 The Court analysed this in detail, see Leyla Şahin v Turkey, paras 30–47.
140 Leyla Şahin v Turkey, paras 21–28.
141 The Grand Chamber of the Court also considered in detail a claim under Art 2 of Protocol,
which it ultimately dismissed. The Chamber did not consider the Protocol and the concurring
opinions (from the Grand Chamber) of Judges Rozakis and Vajić made clear that they felt that the
Grand Chamber also should not have done so. The Grand Chamber also considered Arts 8, 10, and 14
and after scant discussion considered there was no breach of the Convention involving these provisions.
144 For one example from many see Handyside v United Kingdom, Ser A No 24 (1976) 1 EHRR
737, para 48.

Whether a measure is considered necessary or not must be seen in context and this is
again where the national authority’s margin of appreciation plays a role. In determin-
ing the breadth of the margin of appreciation, the Court’s framing of the question is
fundamental. The discretion afforded a state depends entirely upon which prism the
Court adopts. In Şahin, the Court considered in detail the legal position vis-à-vis the
headscarf in a number of other Council of Europe states.145 It is clear from the Court’s
analysis that there is no consensus on banning the headscarf, indeed far from it. Yet,
the Court construed the lack of consensus as affording Turkey and all other Council of
Europe States a broad discretion, as the approach adopted depended upon the
‘domestic context concerned’.146 It was equally open for the Court, however, to
consider that the absence of a ban on headscarves (and also on beards, which the
Court did not consider at all) in the overwhelming majority of states meant that
particularly pressing reasons had to be forwarded for such a ban to be necessary.
Although it is not possible to examine every aspect of the Grand Chamber’s
reasoning in determining whether the ban was necessary or not in a democratic
society, a number of issues are striking and worthy of comment.147 First, the Court
in light of its jurisprudence considered that, ‘the role of national authorities is not to
remove tension between groups by eliminating pluralism, but to ensure that the
competing groups tolerate each other’.148 As Malcolm Evans has noted, this almost
amounts to a positive obligation upon states parties. Yet, how they are supposed to
ensure competing groups tolerate each other is unclear and in any case almost
impossible to achieve.149 As was noted above, one of the functions of international
human rights law is to move away from the historic notion of tolerance toward that
of respect, yet here the Court demanded no more than tolerance from the state, and
this is not what the obligation in Article 1 of the Convention entails. The Court
considered that national authorities must protect pluralism as it is essential to the
existence of democracy, yet it has been convincingly stated that the Court’s
approach to Article 9 more generally is as likely to hinder as it is to assist the
realisation of the goals of tolerance and religious pluralism.150
Second, even though it does not logically follow from the above, the Court
elevated the principle of secularism above certain other beliefs because the
Court considered it necessary to protect the democratic system in Turkey. The
Court’s analysis here shifted from focusing on the individual’s claim to religious
freedom to providing political justifications for why secularism is important to the
current political order in Turkey. By focusing on the situation in Turkey in general
terms, and not on the applicant’s contentions, the Court was, to all extents and

147 The Grand Chamber and the various Sections of the European Court have in a number of
subsequent cases upheld the reasoning and approach in Şahin. See, for example, Application No 302/
02, Case of Jehovah’s Witnesses of Moscow and Others v Russia, judgment of 22 November 2010.
149 M Evans, ‘Freedom of Religion and the European Convention on Human Rights: Approaches,
Trends and Tensions’ in P Cane, C Evans, and Z Robinson, Law and Religion in Theoretical and
Historical Context (Cambridge: Cambridge University Press, 2008), 291, 308.
150 M Evans, ‘Freedom of Religion’, 291.
purposes, in dereliction of its obligations. The applicant did not seek to challenge
the secular nature of the Turkish republic and had not acted in any way that
suggested she wished to do so. For the Court, if Turkey was not secular, its
democracy would be endangered, and that would be incompatible with the
Convention. The Court rather conveniently, however, overlooked the fact that
the principle of secularism in the Turkish Constitution, and indeed the consti-
tutional balance as a whole, was entrenched by the military further to a number of
periods of military rule and its interference in politics; the military are not usually
regarded as bastions of democracy.151 Because the Court considers secularism
compatible with the principles of the Convention, it noted in Şahin that ‘attitudes
which fail to respect that principle will not necessarily be accepted as being covered
by the freedom to manifest one’s religion and will not enjoy the protection of
Article 9 of the Convention’.152 There is a fundamental contradiction here be-
tween, on the one hand, protecting pluralism, but, on the other, considering
religiously inspired views which may challenge that principle (even if supported
by the majority in a state) to be outside of the protection of Article 9 of the
Convention.
Third, in Şahin, as in Dahlab, the Court considered that the wearing of a
headscarf was, in effect, ‘improper proselytising’. As the Court noted, ‘when
examining the question of the Islamic headscarf in the Turkish context, there
must be borne in mind the impact which wearing such a symbol, which is
presented or perceived as a compulsory religious duty, may have on those who
choose not to wear it.153 In Dahlab, the Court had drawn a distinction between
teachers and pupils, and similarly in Kalaç, between subordinates and superiors
within the context of the military. Where a superior exercises disciplinary or other
influence their manifestation of faith may unduly influence a subordinate. The
Court in Şahin, however, completely ignored the fact that the other students and
women both in the university and in society in general are adults, usually informed
on the issues involved and, notwithstanding some peer or social pressure, perfectly
capable of deciding for themselves whether to wear a headscarf or not. The situation
might have been different if a professor at the university insisted on wearing a
headscarf, but in this case it was a student. The issue is that the headscarf itself is
perceived in the Court’s assessment as a manifestation that is separable from belief,
but without disrespecting the integrity of the belief. The Court seems to assess
religion and belief from a particular perspective, one that accords with mainstream
Christian doctrine. In other faiths, though, certain manifestations are considered by
adherents (though not all) an inherent, inseparable part of their belief, be it the
turban for male Sikhs, proselytising for Jehovah’s Witnesses, or wearing the veil for
Muslim women. Limiting those manifestations de facto interferes in the right to
hold those beliefs per se which thus means that the forum internum is not fully
insulated in the sense that Article 9 requires. As a result, particularly weighty
151 See further W Hale, Turkish Politics and the Military (London: Routledge, 1994).
153 Leyla Şahin v Turkey, para 115, quoting with approval from the Chamber judgment.
reasons should be needed before limitations on such manifestations are considered
permissible.154
Fourth, the Grand Chamber unquestionably accepted the Turkish court’s view
that this ‘religious symbol [the headscarf] has taken on political significance in
Turkey in recent years’.155 In the light of this acceptance, it is striking how
summarily the European Court dismissed consideration of the wearing of the
headscarf as ‘political expression’ under Article 10 of the Convention. This was
the Court’s approach, even though it has never, as far as is known, rejected an
application before it which claims an interference with free expression on the basis
that the expression may be unpopular, not shared by others, or undermines the
established political order. Furthermore, the Court effectively considered those who
wear the headscarf in Turkey to be synonymous with individuals subscribing to
Islamist opinions. The reasons, however, for women wearing or refusing to wear a
hijab in each and every society are hugely complex and have been the subject of
much discussion by feminist scholars, sociologists, historians, and anthropologists
amongst others.156 Yet, the Court simply ignored this and considered it an
infringement of the principle of equality when for many (although certainly not
all) women it is an expression of their independence. The Court’s assumption is at
best ignorant.
Finally, although the Court in Şahin did not expressly quote from Refah Partisi
(another decision of the Grand Chamber), it on numerous occasions referred to it.
In Refah the Court clearly pinned its colours to the mast by expressly stating, even
though in the context of the case it did not need to do so, that it considered Shari‘a
to be incompatible with the principles of democracy, pluralism, equality, tolerance,
human rights, and political freedoms as set forth in the Convention system.157 The
Court in Şahin adopted an ‘existentialist’ approach to the relationship between
secularism, equal rights for men and women and religious manifestation. For the
Court, secularism required certain religious manifestations to be prohibited, as
opposed to seeking how to accommodate what are not necessarily competing
objectives. The Court itself, as noted above, stated that national authorities should
not reduce tension between groups by eliminating pluralism, but then considered
the Turkish approach, which did precisely that, to be compliant with the Conven-
tion. In determining whether the measures adopted by Turkey were proportionate
or not, the Court considered that they were.158 In light of the Court’s approach to
154 On the European Court discriminating against non-mainstream or non-Christian faiths see
further T Gunn, ‘Adjudicating Rights of Conscience Under the European Convention on Human
Rights’ in D van de Vyver and J Witte (eds), Religious Human Rights in Global Perspective: Legal
Perspectives (The Hague: Martinus Nijhoff, 1996), 305, 328.
156 For an interesting discussion on this matter see B Bhandar, ‘The Ties That Bind: Multicultural-
ism and Secularism Reconsidered’ (2009) 36 Journal of Law and Society 301.
157 Refah Partisi, para 123. The Refah case has generated a huge literature, most of it scathing. For
an insightful analysis of it see K Boyle, ‘Human Rights, Religion and Democracy: The Refah Party
Case’ (2004) 1 Essex Human Rights Rev 1.
the issues, as discussed above, this conclusion was predictable. Consequently, the
Court found that Turkey had not violated any of the applicant’s Convention rights.
Şahin is not by any stretch of the imagination the last word on the issue of
religious manifestation before the European Court. In light of the recently adopted
laws banning the burqa in public in France and Belgium, further challenges to such
laws are inevitable. Furthermore, the Grand Chamber of the European Court has
subsequent to Şahin in Lautsi v Italy, which concerned the presence of crucifixes in
Italian schools, again examined the role and function of the state with regard to
religion.159 Although the decision in Lautsi is not central to this paper, it is worth
commenting briefly on a few aspects of the case. In Lautsi the Court used the prism
of neutrality as opposed to emphasising the principle of secularism (although the
Italian state professes to be secular), which had been the prism of analysis in Şahin
and Dahlab.160 In giving the state a broad margin of appreciation in Lautsi, the
Court felt that the presence of crucifixes did not violate the principle of neutrality
in the context of Italian culture, religion and history.161 Crucially, the Court
noted that a crucifix on a wall is ‘an essentially passive symbol’. This can be
contrasted with Dahlab were a hijab was considered to be a ‘powerful external
symbol’ and thus, in that case, crossed the rubicon into what was not acceptable in
Swiss society.162 The distinction made by the Court in Lautsi between the two
symbols simply does not stand up to scrutiny. The Court accepted that both were
religious symbols; so if one indoctrinates then so must the other. The actual
distinction is that in Dahlab the symbol was of a minority faith and was seen as
representing values at odds with those which predominate in Swiss society, whereas
in Lautsi, the crucifix is a religious symbol of the majority and seen by the Court
as an inherent part of Italian culture.
While neither Dahlab, Şahin, or Lautsi are fully illustrative of the European
Court’s approach to religious freedom, they do highlight many pertinent issues for
the purposes of this essay. These issues are brought together and analysed in the
conclusions below.
D. Conclusions
The objectives of this essay have been to try and give an overview of the protection
afforded to freedom of religion and belief under international law and to discern
some trends as to how the rights are being interpreted and applied. It has been
argued that despite the longstanding recognition of the need for religious rights to
be protected in international law, there is not in the Rawlsian sense, a consensus at
159 Application No 30814/06, Lautsi v Italy, judgment of 3 November 2009 (Second Section) and
judgment of 18 March 2011 (Grand Chamber). The Chamber had found there was a violation of Art 2
of Protocol No 1 taken with Art 9 of the Convention. The Grand Chamber by 15 votes to 2, held there
was no violation of Art 2 and that no separate issue arose under Art 9 of the Convention.
160 Lautsi v Italy, para 60.
161 Lautsi v Italy, paras 65–73.
162 Lautsi v Italy, paras 73–74.
the international (both universal and regional) level as to the core of the rights
in question and the permissible limitations on exercising them.163 At the universal
level, religious freedom has primarily been seen through the prism of non-
discrimination. It has been highlighted that in the drafting of various key provisions
which seek to protect the rights in question, there has been dispute over what is
being protected, which beliefs are included and what limitations have been con-
sidered acceptable. The detailed discussions on the drafting of Articles 18 of the
UDHR and ICCPR, as well as the 1981 Declaration, all show that there has always
been tension between certain blocs over some aspects of the right, for example,
whether there is a right to change religion, whether non-theistic beliefs should be
protected and when such rights can be limited. At the regional level the issues are
different. In the Council of Europe, the Organization of American States and also
the African Union, the key aspects of the freedoms entailed, as opposed to the
limitations, were adopted with relatively little disagreement. At the regional level, in
particular the Council of Europe, the key issue has become, when is it permissible
for states to limit the rights in question? With regard to these permissible limita-
tions, it becomes impossible to ignore the fact that the historic, as opposed to
human rights, rationale for allowing religious freedoms—to ease tension within and
between societies—has increasingly come to the fore. The key struggle in practice
has been to determine how the balance is to be struck between the role and
functions of the state and the rights of the individual.
It is the manner in which that balance has been struck and the way in which
religion is perceived that is most revealing. The approach adopted by the Human
Rights Committee in inter alia General Comment 22 seeks to give full effect to the
idea that the individual is a rational being entitled to organise and determine his or
her own choices and this is a reflection of the way in which the right has been
accorded priority over some others within the Covenant system. In the Council of
Europe, it is clear from the analysis above that manifestation of religious belief is
not as highly valued in the canon of human rights as one might expect. The French
philosopher Jacques Maritain, who was a member of the UNESCO Committee on
the Theoretical Bases of Human Rights set up during the drafting of the UDHR,
recalled a colleague’s remark that the Committee could ‘agree about the rights [in
the Declaration] but on the condition that no one asks us why’.164 This statement,
although made in the context of the Universal Declaration, reflects some of the
confusion as to why and to what extent religious and other beliefs should now be
protected. It is submitted that a philosophical and practical uncertainty increasingly
permeates the approach of the European Court and it cannot quite work out how
163 J Rawls, Justice as Fairness: A Restatement (Cambridge, MA: Harvard University Press, 2003),
32 et seq.
164 See J Maritain, ‘Introduction’ in UNESCO, Human Rights: Comments and Interpretations, p 1
available at <http://unesdoc.unesco.org/images/0015/001550/155042eb.pdf> accessed 16 August

2010. It is for this reason, among others, that some commentators have argued that it is now better
to approach human rights as a political doctrine constructed to play certain roles in global political life
as opposed to an application of an independent philosophical idea to the international realm. See
C Beitz, The Idea of Human Rights (Oxford University Press, 2009), 48.
to strike the balance between the individual’s religious rights and the role of the
state in regulating such matters. Malcolm Evans with regard to the right to religion
more specifically, writing over 10 years ago, stated ‘[q]uite what . . . the philosoph-
ical basis upon which contemporary human rights thinking is based is, to say the
least vague. Nevertheless the prevailing view is that human rights are essentially
“secular” in nature and whilst freedom of religion is certainly accepted as a human
right its demands are no more pressing than other rights within the secularised
canon.’165 Notwithstanding the perceptivity of this analysis at the time it was made,
it is no longer quite accurate as the debate and the context have shifted. Lautsi,
notwithstanding the quality of some of the reasoning, may actually be hinting at a
change of orientation and that the Court will in future examine the actual
detriment suffered by the applicant and balance this against the discretion afforded
to the state. It is too early to tell if this is correct but even if it is, it would not have
made a difference to the applicants in either Dahlab or Şahin.
The jurisprudence of the European Court makes clear that it considers, inter alia,
secularism, democracy, neutrality, and pluralism to be values which are paramount,
and that, in effect, take priority over manifestations of religion where there is a
challenge posed, real or perceived, to those values. While the rights of association or
expression may also be curtailed for the purposes of preserving pluralism or
democracy,166 it is inescapable that the margin of appreciation is broader in cases
involving religious manifestation than it would be in cases involving, for example,
limits on expression or association.167 A narrower margin of appreciation also
applies where religious organisations claim interference of their association rights
by the state and the Court utilises Article 9 as well as Article 11 as opposed to where
Article 9 is the primary focus of the Court’s analysis for either individuals or
religious organisations.168 There are two possible explanations for this.
First, where secularism, neutrality, and pluralism are paramount principles,
freedom of expression is perceived as being of greater value to all in society. Ideas
challenge society to change and compel it to evolve and progress. This can be
contrasted with religious manifestations, which are seen as being of benefit primar-
ily to the individual.169 As a consequence, the demands of religious manifestation
can be seen as being less pressing than those of some other rights, as the benefit to
be derived is not was widely shared. A second possible explanation for the lower
value associated with religious manifestation by human rights treaty bodies is that
religions and beliefs can pose a challenge to human rights in the same way as, for
165 M Evans, ‘Religion, Law and Human Rights: Locating the Debate’ in P Edge and G Harvey
(eds), Law and Religion in Contemporary Society: Communities, Individualism and the State (Aldershot:
Ashgate, 2000), 177, 182. References from the original removed.
166 Compare, however, Application No 133/1996/752/951 United Communist Party of Turkey v
Turkey, judgment 30 January 1998 and Refah Partisi where in the former there was a violation of Art
11 but not in the latter.
167 For an excellent discussion see T Lewis, ‘What Not to Wear: Religious Rights, the European
Court, and the Margin of Appreciation’ (2007) 56 Int’l and Comp L Quart 395.
168 See, for example, Application No 72881/01, Moscow Branch of the Salvation Army v Russia,
judgment 5 October 2006.

169 Cf Lewis, ‘What Not to Wear’, 397.
example, authoritarianism. This is not meant as a slur towards faith, but refers to
the fact that in the same way that human rights treaty bodies can perceive certain
religious precepts as being incompatible with certain rights, for example inequality
of men and women, religious authorities can perceive some human rights as being
incompatible with religious values and beliefs. In certain respects they compete and
sometimes conflict with one another; in the extreme, both are intolerant. By
providing less protection to religious manifestation, human rights become the
more dominant basis for values although it has been argued by some commentators
that this approach is not without danger as the morality of the current human rights
edifice will not survive the deconstruction of religion.170 Whichever of the above
two explanations is correct, and even if both are, the challenge for human rights
treaty bodies, in particular the European Court of Human Rights, as far as religious
rights are concerned is not to seek to undermine them or value them less highly
than other rights. The challenge is to seek to better accommodate and respect
religious rights, because only then will the treaty bodies be true to the values they
profess to respect.
The debate and context has shifted. The rise of Islamophobia at the national and
international level also cannot be ignored. There is currently little, if any, political
momentum at the global level seeking to address the issue of religious freedom and
the prohibition of discrimination on the basis of religion and belief in a legally
binding text. Yet, it is an issue that needs to be addressed both for the sake of those
who profess faith and for the validity of the human rights ‘movement’. Thirty years
on, the 1981 Declaration discussed above has not been followed up by a legally
binding treaty which specifically seeks to prohibit religious discrimination and to
protect a core of religious freedom and belief. The current and previous UN Special
Rapporteurs on Freedom of Religion or Belief have expressed the view that such a
document is essential but that it is currently premature to negotiate a treaty on this
subject. This, it is submitted, is misguided. Notwithstanding the inherent difficul-
ties in doing so, a new treaty would provide a solution of some sorts to the problems
currently being faced by many individuals whose basic right to believe and manifest
their faith is being systematically violated and it would clear ground between states.
There are two possible avenues. The first is a protocol to the 1966 Race
Convention, seeking to amend it so that Article 4 of that treaty, which inter alia
prohibits the propagation of racial incitement and hatred (in a manner which
cannot be reconciled with the ICCPR), is extended to incitement of hatred on
the grounds of religion and belief. In the short term, such an initiative could, once it
is operative, provide victims with a distinct avenue for redress. Tackling religious
hatred would address a specific dimension of the global problem but would not
address most components of it. The other avenue is to negotiate a universal treaty
which seeks both to define a core of religious freedom and manifestations thereof, as
well as to reinforce the prohibition of discrimination on the grounds of religion
which is already established.
170 See M Perry, Toward a Theory of Human Rights: Religion, Law, Courts (Cambridge: Cambridge

All states accept, formally at least, that there is a prohibition on discrimination

on the basis of religion and belief. This has been reiterated on numerous occasions,
in the Covenants as well as in each of the other major UN human rights treaties.
The mandate which led to the 1981 Declaration approaches the issue of religious
freedoms through the non-discrimination prism, as that complements the Race
Convention. However, non-discrimination on its own does not provide a solution,
for in this context a state which simply treated all faiths and beliefs equally poorly
would be in compliance with its obligations. For this reason, a core of the right to
religious freedoms and belief also needs to be defined. Previous attempts to define
‘religion’ and ‘belief, for example, during the drafting of Article 18, ICCPR faced
serious problems in that the geopolitical context of the time made religious rights
yet another forum for ideological confrontation. The geopolitical context now is
distinctly different. On the one hand, religious based ideology and intolerance of
different faiths and beliefs is again a major cause of tension between states and
within them. On the other hand, no major group of states is hostile to religion per se
as was the case with the Soviet bloc, but many states are suspicious of certain beliefs
within their societies. The key issue is limits on manifestation, be it proselytising by
Jehovah’s Witnesses in Russia, women donning the burqa in France, or the
building of churches in Saudi Arabia. The key contribution of any such treaty is
to define the core of religious freedoms and belief, protected manifestations, and
the circumstances in which these manifestations can be limited.
The argument that it is currently the ‘wrong time’ for such a document does not
hold up to scrutiny. There is never an ideal time to negotiate any treaty. The
assumption which currently dominates is that a more favourable geopolitical
environment will at some time or other exist. Yet, it is equally possible that the
situation could deteriorate further. A further, often mooted, concern is that the
negotiation of a right-specific treaty will lead to the rolling back of gains previously
made in, for example, Article 18, ICCPR. Denying the very real differences
between states over, for example, the right to change religion is to be detached
from reality. States party to the ICCPR would continue to owe those obligations.
A right-specific treaty would devote resources and expertise to the particular
identified problem. Limitations on religious manifestation and discrimination on
the grounds of religion and belief are problematic in many parts of the world
regardless of political system and culture. Confronting the identified issues at the
global level, by negotiating a right-specific treaty, is likely to lead to a greater
consensus as to the core of the rights in question. This core may not go as far as
some would consider ideal but it would better reflect reality in many states and put
the issue squarely on the global agenda and hopefully prevent further deterioration
in relations between states and within them on that basis.
11
Pre-modern Islamic Legal Restrictions on
Freedom of Religion, with Particular Reference
to Apostasy and its Punishment
Abdullah Saeed *
The right to freedom of religion is perhaps among the oldest human rights to be
recognized internationally. International protection was given to religious groups in
the Peace of Westphalia document in 1648. In the 18th century, the right to
religious liberty was included in the Commonwealth of Virginia’s Bill of Rights
(1776 CE);1 and the First Amendment to the US Constitution emphasized the free
exercise of religion, guaranteeing a citizen’s right to express religious beliefs and to
act in accordance with them. The principle of freedom of religion today forms part
of numerous international human rights conventions, declarations, and resolutions.
The Universal Declaration of Human Rights (UDHR) upholds this right in Article
18, and this formulation has been used, almost verbatim, as the basis of articles in
other binding international and regional instruments.
The right to freedom of religion has two important elements: freedom to
maintain or to change a religion or belief, and freedom to manifest or display
one’s religion or belief. These elements can be found in various international
formulations of the right. For example, an individual’s freedom to adopt, change,
or renounce his or her religion or belief is enshrined in the 1976 International
Covenant on Civil and Political Rights (ICCPR) in Article 18(1):
Everyone shall have the right to freedom of thought, conscience and religion. This right shall
include freedom to have or to adopt a religion or belief of his choice . . .
Freedom of religion means that individuals are to be free from coercion when it
comes to their religion or belief: ‘No one shall be subject to coercion which would
impair his freedom to have or to adopt a religion or belief of his choice’ (ICCPR
* Several arguments used in this essay rely on the author’s book: Abdullah Saeed and Hassan Saeed,
Freedom of Religion, Apostasy and Islam (Aldershot: Ashgate, 2004). For further details see the relevant
sections of that book. I would like to acknowledge the significant contribution of Patricia Prentice, my
research assistant, to the research, through checking of facts and revision of this essay.
1 Adrian Karatnycky, ‘Religious Freedom and Democracy as Fundamental Human Rights’ (Paper
presented at the International Coalition for Religious Freedom Conference, Berlin, 29–31 May 1998).
Pre-modern Islamic Legal Restrictions 227
Article 18(2)). Individuals also have the right to manifest their religion publically
(ICCPR Article 18(3)) and to worship or practice ritual or ceremonial acts (Human
Rights Committee General Comment 22).2 The right to freedom of expression
(ICCPR Article 19) and the principle of non-discrimination (ICCPR Articles 2, 26,
and 27) are also widely regarded as part of the international framework of protec-
tion for freedom of religion.3
Despite these endorsements of freedom of religion today, the application of this
freedom has been problematic in all three Abrahamic traditions: Judaism, Chris-
tianity, and Islam. In their formative period, these three traditions saw apostasy as
an apocalyptic manifestation of social and religious disorder. Once the Jewish
people, the church, and the umma (community) had achieved legal and political
power, apostasy was declared a public offence punishable by law. Although Judaism
and Christianity have moved away from their earlier understandings of punishment
for apostasy, Muslims are still engaged in a vigorous debate on the relevance of
apostasy laws in the modern world. This essay aims to provide an overview of the
apostasy law as it developed in classical Islamic law, to trace the development of the
idea of apostasy and its punishment, and to examine how Muslims in the modern
period are questioning the use of the death penalty for apostasy and arguing for
religious freedom.
A. The notion of apostasy (ridda)
In classical Islamic law (fiqh), apostasy (ridda) is understood to describe a

reversion from the religion of Islam to unbelief.4 Classical Islamic law describes
many ways apostasy may occur, and among these are:5 denial of the existence of
God or the attributes of God, rejection of a particular messenger of God, and
refusal to accept any one of the fundamentals of religion (for instance, denying
that there are five obligatory prayers (salat) in a day, declaring prohibited
(haram) something that is clearly permissible (halal) or vice versa, or worship-
ping an idol).6
Apostasy is materialized by ‘expressions of unbelief ’, specified by words imply-
ing unbelief, deeds implying unbelief, or (in some cases) the mere intention to
2 Human Rights Committee, General Comment No. 22: The Right to Freedom of Thought, Con-
science and Religion (Article 18) [CCPR/C/21/Rev.1/Add.4], 1993 <http://www.unhchr.ch/tbs/doc.nsf/

(Symbol)/9a30112c27d1167cc12563ed004d8f15?Opendocument> accessed 29 March 2010.
3 Office of the High Commissioner for Human Rights, Extracts from the Annual Reports 2006 and
2007 of the Special Rapporteur on Freedom of Religion or Belief, Asma Jahangir. <http://www.ohchr.org/
EN/Issues/FreedomReligion/Pages/Standards.aspx> accessed 7 June 2012. For further details see
Urfan Khaliq, Chapter 10 of this volume.
4 Abd al-Rahman al-Jaziri, Min Kitab al-Fiqh ‘ala al-Madhahib al-Arba‘a (Beirut: Dar al-Fikr, nd),
5:422–3; Wahbah al-Zuhayli, Al-Fiqh al-Islami wa Adillatuhu (Dimashq: Dar al-Fikr, 1997), 6:184;
Abu Bakr al-Jaza’iri, Minhaj al-Muslim (Cairo: Maktabat al-Kulliyat al-Azhariyya, 1979), 535.
5 Zuhayli, Al-Fiqh al-Islami wa Adillatuhu, 6:183; Jaza’iri, Minhaj al-Muslim, 535; Jaziri, Min Kitab
al-Fiqh ‘ala al-Madhahib al-Arba‘a, 5:422–7.

6 Abu Muhammad Ali b. Ahmad b. Sa‘id ibn Hazm, al-Muhalla, ed Ahmad Muhammad Shakir
(Maktabat Dar al-Turath, nd), 11:408–16.

disbelieve.7 The words leading to apostasy can be either explicit (such as a solemn
renunciation of Islam) or implicit (such as utterances incompatible with theological
consensus, known as ijma‘, or with the universally recognized articles of faith).8
General rules providing criteria for the practical admissibility of these expressions
have not been constructed, but examples of sayings and acts considered to imply
unbelief, and therefore to constitute ridda, are abundant.9 A Muslim who states his
or her intention to apostatize at a later point in time is considered to be an apostate
at the very moment of this announcement. Sayings that are not considered to reflect
the speaker’s inner conviction, such as words spoken in jest, may equally entail
apostasy (ridda).10 The test commonly used to determine apostasy is to identify
whether the accused has repudiated what is known to be a generally accepted part of
Islam, presumably as determined by a judge or court. However, before a court can
decide whether the accused is an apostate or not, at least two witnesses are required
by law. These witnesses cannot simply declare that the accused is an apostate, but
must testify that the words of the accused demonstrate apostasy.11 If a person
confesses that he or she has committed apostasy, then that confession is also
sufficient to convict the person.
Although it may seem that there are very clear ways that a Muslim may become
an apostate, there is, in fact, fluidity in Muslim juristic and theological thought as to
what constitutes apostasy. Much depends on the school of thought to which a
Muslim belongs. Some scholars would not easily label another Muslim an apostate,
unless the accused has declared this explicitly or acted in a way that the majority of
Muslims would consider to have taken the person out of the fold of Islam (such as
cursing God or the Prophet). Other schools of thought may readily label another
Muslim an apostate for the smallest perceived transgression. For example, if one
mockingly says ‘I don’t know what true faith is’,12 or expresses a view that could
be considered ‘hating’ an aspect of Islam,13 these can be considered tantamount to
apostasy. A large number of so-called ‘apostasy lists’ (which detail how a Muslim
may become an apostate) exist, and these have been developed by different Muslim
sects, groups, and trends of thought. Naturally, there is no agreement on the
legitimacy of these lists, but they can easily be used to label one’s opponents
apostates.
7 Rudolph Peters and Gert J J De Vries, ‘Apostasy in Islam’, Die Welt des Islams, New Series 17, no
1/4 (1976–1977): 3.
8 Peters and De Vries, ‘Apostasy in Islam’, 3.
10 Peters and De Vries, ‘Apostasy in Islam’, 4; The Message of the Qur’an, trans Muhammad Asad
(Gibraltar: Dar al-Andalus, 1980), 9:65–6.

11 Turgut Subasi, ‘The Apostasy Question in the Context of Anglo-Ottoman Relations, 1843–44’,
(2002) 38(2) Middle Eastern Studies 1, 2–3.

12 Ahmad b. Naqib al-Misri, Reliance of the Traveller: A Classical Manual of Islamic Sacred Law,
trans Nuh Ha Mim Keller (Evanston: Sunnah Books, 1994), 596–8.

13 Ali al-Tamimi, ‘The Muslim’s Belief: Some Causes that Lead to Apostasy from the Religion of
Islam’, The Friday Report, August–September 1994. <http://www.jannah.org/articles/outof.html>

accessed 7 June 2012.
B. Determining who can commit apostasy
In determining the perpetrator of apostasy (murtadd), specific qualifications have

been laid down to define who can commit apostasy. A legally effective act of ridda
can only be performed out of free will (ikhtiyar), at an adult age (bulugh), being of a
sound mind (‘aqil ), and, as emphasized by the Maliki school, when the apostasy has
been committed after an unambiguous and explicit adoption of Islam.14 All jurists
believe that both men and women can become apostates. There is also unanimous
agreement among jurists that a minor who does not comprehend the meaning of
apostasy cannot validly commit it.15 There are two views, however, in those
instances where a minor who is able to comprehend the concept commits any of
the designated offences leading to apostasy. For Shafi‘is, the minor’s apostasy is not
valid unless maturity or puberty (bulugh) is evident. For Malikis, Hanbalis, and
some Hanafis, the apostasy of a minor can be valid;16 however, according to the
Hanafi jurist al-Shaybani (d 805 ce), a minor should not be executed or beaten for
apostasy, but should instead be instructed to accept Islam.17
C. Key consequences of apostasy
Although death as the punishment for apostasy has fallen into disuse in much of the
Muslim world, in the sphere of civil law certain rules concerning apostates are still
applied in a number of countries.18
1. Property ownership
The apostate remains legally entitled to maintain possession of property. The
apostate’s rights to dispose of property, however, are suspended, pending his or
her repentance. Upon returning to Islam these rights are fully re-established. On
the other hand, if a person dies an apostate, that person’s estate passes to the Public
Treasury, according to most jurists.19 According to the Hanafis, a female apostate
remains legally capable and retains the right to dispose of her property. This is in
accordance with their view that she is not to be put to death.20 Within the Hanafi
school, al-Shaybani and Abu Yusuf (d 798 ce) hold that this rule applies to the male
apostate as well. They compare him to a criminal awaiting execution, who does not

15 al-Kasani, Bada’i‘ al-Sana’ i‘ fi Tartib al-Shara’i‘ (Dar al-Kutub al-‘Ilmiyya, nd), 7:134; Abu
Muhammad Abd Allah b. Ahmad Muhammad b. Qudama, al-Mughni (Maktabat al-Riyad al-Haditha,
nd), 8:134.
16 Kasani, Bada ’i‘ al-Sana’ i‘ fi Tartib al-Shara’ i‘, 7:134; Ibn Qudama, al-Mughni, 8:135–6.
17 Jaziri, Min Kitab al-Fiqh ‘ala al-Madhahib al-Arba‘a, 5:435–6; Zuhayli, Al-Fiqh al-Islami wa
Adillatuhu, 6:185.
19 Subasi, ‘The Apostasy Question’, 3.
lose his legal capacity.21 Malikis, some Shafi‘is, and Hanbalis believe that an
apostate’s ownership of property should be suspended until that person’s situation
becomes clear.22
2. Marriage
Upon the apostasy of one or both partners, a marriage contract immediately expires
without any need for judicial intervention.23 This dissolution is considered nullifi-
cation (faskh), rather than repudiation (talaq).24 For example, in 1996, the Egyp-
tian Court of Cassation ruled that the writings on Islam of the Egyptian Muslim
scholar Nasr Hamid Abu Zayd constituted an act of apostasy. Once declared an
apostate by the court, Abu Zayd’s marriage was considered void.25
According to Malikis and Hanafis, if one spouse becomes an apostate the couple
should be separated. If the apostate repents, a new marriage is to be contracted.
However, in some cases, Shafi‘i and Shi‘a schools consider the existing marriage
contract to be suspended during the wife’s waiting period (‘idda), so that if the
apostate repents during this period the marriage remains valid.26 Only the Maliki
and the Hanafi schools have provisions for the case of a woman apostatizing in
order to free herself from the bonds of matrimony. The Malikis hold that in this
instance the marriage is not dissolved.27 Such provisions make sense in Hanafi legal
theory, according to which the female apostate is not to be killed. Any children
born prior to the apostasy of their parents are considered Muslim and cannot be
allowed to follow their parents in their apostasy.28
3. Inheritance
If an apostate dies as such, the majority of jurists (that is, Malikis, Shafi‘is, and
Hanbalis) declare the property of the deceased to be ‘spoils of war’, which may go to
the Public Treasury.29 An apostate lacks the capacity to inherit, even from those
within another religion. This demonstrates that an apostate’s exclusion from the
right to inherit extends beyond the rule that differences of religion form a bar to
inheritance.30
With regard to the property of a male apostate, Hanafi legal theory distinguishes
between property acquired before the act of apostasy and property acquired after it.
21 Peters and De Vries, ‘Apostasy in Islam’, 7–8.

22 Saeed and Saeed, Freedom of Religion, 53.
25 Maurits S Berger, ‘Apostasy and Public Policy in Contemporary Egypt: An Evaluation of Recent
Cases from Egypt’s Highest Courts’ (2003) 25 Human Rights Quarterly 720.
26 See for further details, Peters and De Vries, ‘Apostasy in Islam’, 8. See also Kasani, Bada’i‘ al-
Sana’ i‘ fi Tartib al-Shara’ i‘, 7:139.

28 Kasani, Bada ’i‘ al-Sana’ i‘, 7: 139; Ibn Qudama, al-Mughni, 8:137.
The first part of his estate may pass to his Muslim heirs, for the Hanafis regard the
moment of the act that necessitated his execution (not the actual moment of his
death) as crucial for the application of the rules of inheritance: in other words, at the
moment of the act of apostasy he was technically still a Muslim. The other part falls
to the Public Treasury of the Muslim state.31 The estate of a female apostate passes,
according to Hanafi law, entirely to her Muslim heirs. Some Hanafi scholars hold
that for both male and female apostates their property goes, after their death, to
Muslim heirs, according to the normal rules of succession.32
D. Death penalty for apostasy
In classical Islamic law there is general agreement among the jurists that the
punishment for apostasy is death (qatl), and that the implementation of this penalty
is obligatory for Muslims.33 Consensus is often claimed for this punishment. This
is often justified on the basis of hadith, rarely on Qur’anic texts. In crucial matters
like this, however, it is important to determine what the Qur’an has to say about
the death penalty. The Qur’anic texts on the punishment of apostasy will be
examined in the following section.
1. The Qur’an appears to be silent on the death penalty

The Qur’an deals with what appears to be apostasy in several verses: for example,
Qur’an 16:108. None of these verses expressly stipulate the penalty for apostasy in
this life, but they all condemn the apostate in very harsh and unequivocal terms.34
Moreover, verses such as Qur’an 2:217 and 3:86–91 clearly envisage a natural
death for the apostate.35 Despite this, a number of Muslim thinkers today have
attempted to justify the death penalty for apostasy using Qur’anic texts. Muham-
mad Hamidullah,36 for instance, refers to ‘indirect verses of the Qur’an’ that
support the death penalty for apostasy, for example, Qur’an 5:54:
O you who have attained to faith! If you ever abandon your faith [lit. whosoever from
among you abandons his faith] God will in time bring forth [in your stead] people whom He
loves and who love Him—humble towards the believers, proud towards all who deny the
truth.
Despite clearly mentioning those who ‘abandon’ their faith (that is, apostates), the
verse does not specify any temporal punishment.37
31 Peters and De Vries, ‘Apostasy in Islam’, 8. Cf. Ibn Abidin, Radd al-Muhtar 3, 414–15.
33 Muhammad b. Ahmad al-Sarakhsi, Kitab al-Mabsut (Beirut: Dar al-Ma‘rifa, nd), 10:98.
36 S A Rahman, Punishment of Apostasy in Islam (New Delhi: Kitab Bhavan, 1996), 10.
Maududi, a key Muslim thinker of the 20th century, relies on the following verse
to support the death penalty:38
Yet, if they repent, and take to prayer, and render the purifying dues, they become your
brethren in faith: and clearly do We spell out these messages unto people of [innate]
knowledge. But if they break their solemn pledges after having concluded a covenant, and
revile your religion, then fight against these archetypes of faithlessness who, behold, have no
[regard for their own] pledges, so that they might desist [from aggression].39
However, these verses were apparently revealed in the context of providing encour-
agement for Muslims to fight the unbelievers (kuffar) who reneged on their
promises of non-aggression, thereby violating the terms of the treaties concluded
with the Prophet, and who were vilifying and slandering Islam. There is no
indication that this verse has anything to do with apostasy or the death penalty.
Muhammad al-Shawkani (d 1834), a well-known interpreter of the Qur’an from
Yemen, states: ‘This verse [Qur’an 9:12] is general [in its application] to all leading
figures of unbelief (ru’asa’ al-kuffar)’.40
Another verse used by proponents of the death penalty is as follows:
Those who wage war against God and His Messenger and strive to spread corruption in the
land should be punished by death, crucifixion, the amputation of an alternate hand and
foot, or banishment from the land.41
This verse refers specifically to those who are engaged in fighting against the
Muslim community and ‘spreading corruption on earth’. No reference is made
here to apostasy or apostates who are not engaged in these acts of war and terror.
Shawkani argues that the verse thus applies to anyone who commits the crimes spelt
out in it, whether Muslim or unbeliever.42 He explains that these crimes are related
to aggression perpetrated against people, by injuring or killing them, or by misap-
propriating their property.43 Thus, the crime referred to is a crime against life and
property, not a person’s belief.44
Another Qur’anic verse cited in the modern period is the following:
With the exception of those who are forced to say they do not believe, although their hearts
remain firm in faith, those who reject God after believing in Him and open their hearts to
disbelief will have the wrath of God upon them and a grievous punishment awaiting them.45
This verse specifically mentions the apostate (‘those who reject God after believing
in Him’), but again, like other similar verses, it does not mention the death penalty.
Rather, the punishment it refers to is the ‘wrath of God’ that awaits the apostate.
38 Rahman, Punishment of Apostasy in Islam, 10.

39 Qur’an 9:11–12.
40 Muhammad b. ‘Ali al-Shawkani, Fath al-Qadir: al-Jami‘ bayna Fannay al-Riwaya wa al-Diraya
min ‘Ilm al-Tafsir (Beirut: Dar al-Ma‘rifa, between 1980 and 1993), 2:438.
41 Qur’an 5:33.
42 Shawkani, Fath al-Qadir, 2:44.
45 Qur’an 16:106.
Following this, the Qur’an in 16:109 says: ‘Truly it is they, they who in the life to
come shall be the losers’, which indicates that this suffering is expected to be in the
Hereafter, not in this world.46
Shawkani also refers to a verse describing those whose belief is tested and found
wanting:
And there is, too, among people many a one who worships God on the borderline [of faith]:
thus, if good befalls him, he is satisfied with Him; but if a trial assails him, he turns away
utterly, losing [thereby both] this world and the life to come.47
This verse is also used in support of the death penalty, but Shawkani makes it clear
that although the verse refers to an apostate, it makes no reference to temporal
punishment. For Shawkani, the phrase ‘losing this world’ does not indicate a
worldly punishment.48
S A Rahman, in his monograph The Punishment of Apostasy in Islam, draws
attention to the fact that the Qur’an is silent on the question of death as the
punishment for apostasy, despite the subject of apostasy occurring no less than 20
times in the Qur’an.49 Selim el-Awa, who discusses the issue of apostasy at length,
agrees; he cites the fact that the Qur’an is completely silent on the death penalty for
apostasy, and that the evidence in the hadith (sunna) is open to interpretation.50
Mahmud Shaltut analyses the relevant evidence in the Qur’an and draws the
conclusion that apostasy carries no temporal penalty, as the Qur’an speaks only of
punishment in the hereafter:
As for the death penalty for apostasy, the jurists have relied on the hadith reported by Ibn
Abbas in which the Prophet said, ‘Kill the one who changes his religion’ (man baddala
dinahu fa-qtuluhu). This hadith has evoked various responses from scholars many of whom
are in agreement that prescribed penalties (hudud) cannot be established by solitary hadith
(ahad), and that unbelief by itself does not call for the death penalty. The key factor which
determines the application of this punishment is aggression and hostility against the
believers and the [need to] prevent possible sedition (fitna) against religion and state. This
conclusion is sustained by the meaning manifest in many of the passages in the Qur’an that
proscribe compulsion in religion.51
Another Qur’anic passage seems to offer a strong argument against the death
penalty for apostasy:
Those who believe, then disbelieve, then believe again, then disbelieve and then increase in
their disbelief—God will never forgive them nor guide them to the path. (4:137)

47 Qur’an 22:11.
49 Mohammad Hashim Kamali, Freedom of Expression in Islam (Kuala Lumpur: Berita Publishing,
1994).
50 Kamali, Freedom of Expression in Islam, 92 citing Selim el-Awa, Punishment in Islamic Law:
A Comparative Study (Indianapolis: American Trust Publications, 1982), 55.

51 Kamali, Freedom of Expression in Islam, 91, citing Mahmud Shaltut, al-Islam Aqida wa Shari‘a
(Kuwait: Matabi‘ Dar al-Qalam, nd), 292–3.

The implication is unmistakable. The text would hardly entertain the prospect of
repeated belief and disbelief if death were to be the prescribed punishment for the
initial act. It is also interesting to note that the initial reference to disbelief is
followed by further confirmation of disbelief and then ‘increase in disbelief ’.
Arguably, if the first instance of apostasy did not qualify for capital punishment,
the repeated apostasy might have provoked it, had such a punishment ever been
intended in the Qur’an.
E. Hadith as the basis of capital punishment for apostasy

Instead of relying on Qur’anic verses, the punishment of apostasy in Islamic law is
largely based on certain reported sayings of the Prophet,52 that is, hadith.53
The first (and perhaps the most important) hadith that is cited in support of the
death penalty for the apostate is, ‘Whoever changes his religion, kill him’. This
hadith is a solitary hadith (ahad); although it is cited by prominent figures like
Bukhari, and therefore considered ‘authentic’ by Sunni Muslims.54 However, some
scholars find certain weaknesses in its transmission (isnad).
There are various interpretations of this hadith. For Selim el-Awa, the hadith
(‘Whoever renounces his religion shall be killed’) is a general (‘amm) command
which is in need of specification (takhsis). In its general form, it would apply equally
to cases that manifestly fall outside its intention, as it would render the same
punishment not only to Muslims but to Christians who convert to Judaism, and
vice versa.55 Only a minority of Muslim jurists believe that this hadith refers to the
change of absolutely any religion.56
Shawkani has also criticized the ruling of some Shafi‘i scholars who have followed
the literal and general meaning of this hadith and erroneously held that the death
penalty therein applies equally to a non-Muslim who converts from one religion to
another. On this subject he states that, ‘[my] response to this is that the literal
meaning of the hadith has been abandoned in regard to a disbeliever who embraces
Islam’.57 Moreover, the Hanafis have countered the general interpretation of this
hadith in yet another respect: namely, that a woman apostate is not punished by
death—only by imprisonment (since the masculine pronominal suffix alone occurs
in the wording). According to the rules of interpretation, as expounded in usul al-
fiqh, once a decisive (qat‘i) ruling of a text has been specified in some respect, the
part which remains unspecified becomes speculative (zanni), and, as such, is open
to further interpretation and specification. It has been suggested that the hadith in

53 Muhammad b. ‘Ali b. Muhammad al-Shawkani, Nayl al-Awtar (vol 7) (Beirut: Dar al-Kutub al-
‘Ilmiyya, nd), 191; Shihab al-Din Ahmad al-Qastallani, Irshad al-Sari li Sharh Sahih al-Bukhari
(Beirut: Dar al-Fikr, 1990), 14:396.
55 Kamali, Freedom of Expression in Islam, 92.
56 Shawkani, Nayl al-Awtar, 7:193.
57 Kamali, Freedom of Expression in Islam, 92 citing Shawkani, Nayl al-Awtar, VII, 219.
question may be further qualified, and that the death penalty therein may be
reserved only for apostasy which is accompanied by certain serious crimes against
the community or state.58
Given the general nature of this hadith, pre-modern jurists have allowed a
number of exceptions. In line with these exceptions, the following people cannot
be executed: the religious hypocrite (munafiq) who outwardly professes Islam; one
who commits apostasy while in a state of insanity or drunkenness; a minor or a
woman (according to Hanafi jurists) who becomes an apostate; and anyone who
professes Islam under duress and then becomes an apostate. As an extension of
these exemptions, a number of Muslim scholars of the modern period also argue
that apostates who simply change their religion without engaging in ‘war-like
activities’ against the Muslim community cannot be executed. According to
them, the apostate to be executed is one who commits a form of treason, not one
who simply changes faith.59
In making this hadith more specific, recourse is often made to other hadiths.
According to one such hadith, the person to be executed is one ‘who reverts from
Islam to unbelief ’.60 According to another, it is he ‘who repudiates his religion and
separates himself from the [Muslim] community’ (al-tarik al-islam al-mufariq li al-
jama‘a).61 In a related hadith this meaning is emphasized:
The Prophet, peace be upon him, said: ‘The blood of a Muslim who confesses that there is
no god but Allah and that I am the messenger of Allah, cannot be shed except in three cases:
a life for life; a married person who commits illegal sexual intercourse; and the one who turns
renegade from Islam (apostate) and leaves the community of Muslims [author’s emphasis].’62
A number of versions of this hadith exist, and Shawkani provides several that
explain what is meant by the phrase, ‘the one who turns renegade from Islam
(apostate) and leaves the community of Muslims’. One version says: ‘And a man
who leaves Islam and engages in fighting against Allah and His Prophet shall be
executed, crucified or exiled’.63 This version makes a clear connection between
apostasy and fighting against the Muslim community. A number of scholars also
discuss the case of apostates alongside those who take up arms against Muslims
(muharibun). The hadith scholar, Muslim b. Hajjaj (d 875 ce), for example,
addressed both apostates and those at war with the Muslim community in his
collection of hadith (Sahih Muslim). The title of the relevant chapter in the Sahih is
‘Ruling relating to muharibun and apostates’,64 which makes a clear connection
58 Kamali, Freedom of Expression in Islam, 93 citing Al-Shawkani, Nayl al-Awtar, VII: 219; El-Awa,
Punishment, 55.
60 Abu Bakr Ahmad b. al-Husayn b. ‘Ali al-Bayhaqi, Kitab al-Sunan al-Kubra (reprinted Beirut:
Dar al-Ma‘rifa, 1986) 8:194.

61 Bayhaqi, Kitab al-Sunan al-Kubra, 8:195.
62 Bukhari, Sahih al-Bukhari: The Translation of the Meanings of Sahih al-Bukhari, Arabic-English,
trans Muhammad Muhsin Khan (rev edn Ankara: Hilal Yayinlarii, 1976), 1012.
63 Shawkani, Nayl al-Awtar, 7:5–6.
64 Nawawi, Sharh Sahih Muslim li al-Imam al-Nawawi (Beirut: Dar al-Qalam, between 1987 and
1993), 11:165.
between apostasy and fighting against Muslims.65 Such evidence indicates a strong
connection between the punishment mentioned in the hadith and the reference to
alienation from the Muslim community because of rebellion and aggression against
it. This suggests that the punishment of death is meant for those who repudiate
Islam, join the enemy, and then aim to inflict harm upon the Muslim community
and Islam: thus the issue of apostasy could be said to be a political issue more than a
private, religious one.66
This interpretation of the hadith is also supported by the Hanafi school’s
position on women apostates. According to the Hanafis, the justification for
executing an apostate is that the person committing apostasy is likely to join the
enemy and fight against Muslims. The Hanafis argued that women generally do not
engage in such fighting, and therefore should not be executed.67 Following from
this Hanafi logic, the application of the hadith would be restricted to a person who
changes religion and then acts in a seditious way by siding with an enemy and
threatening the Muslim community.68 These legal positions suggest that it is the
socio-political consequences of apostasy that justify so severe a punishment.
The second hadith that is often quoted in support of the death penalty for
apostasy is as follows:
The blood of a Muslim who professes that there is no god but Allah and that I am His
Messenger, is sacrosanct except in three cases: a married adulterer; a person who has killed
another human being; and a person who has abandoned his religion, while splitting himself
off from the community (al-mufariq li’l-jama‘a).69
This hadith makes it clear that the apostate must also boycott the community (al-
mufariq li’l-jama’a) and challenge its legitimate leadership in order to be subjected
to the death penalty.70 Another version renders this hadith as: ‘The blood of a
fellow Muslim should never be shed except in three cases: that of the adulterer, the
murderer, and whoever forsakes the religion of Islam’. The commentary given on
this tradition is as follows: ‘The adulterer should be stoned; the murderer, when
convicted of his crime, should be killed with the sword; but he who departs from
Islam, becoming disobedient to God and His Apostle, let him be cut off or
destroyed from the earth’.71 Ibn Taymiyya observes that the crime referred to in
the above hadith is that of high treason and not apostasy as such.72
This observation is again supported by the fact that the Prophet never
put anyone to death for apostasy alone. Indeed, there were cases when certain

67 Sarakhsi, al-Mabsut, 10:109.
68 Bayhaqi, Kitab al-Sunan al-Kubra, 8:168–9.
69 Kamali, Freedom of Expression in Islam, 93 citing Muslim, Mukhtasar Sahih Muslim, ed Muham-
mad Nasir al-Din al-Albani (2nd edn, Beirut: Dar al-Maktab al-Islami, 1984) 271 [hadith no 1023].
70 Kamali, Freedom of Expression in Islam, 93 citing El-Awa, Punishment, 52.
71 Subasi, “The Apostasy Question’, 2, citing R Peters and G J J De Vries, ‘Apostasy in Islam’
(1975–77) 16–17 Die Welt Des Islams 1–25.

72 Kamali, Freedom of Expression in Islam, 93 citing Taqi al-Din ibn Taymiyya, Al-Sarim al-Maslul
‘ala Shatim al-Rasul, ed Muhammad Muhayy al-Din Abd al-Hamid (Beirut: Dar al-Kitab, 1978), 52.
individuals apostatized after professing Islam, yet the Prophet did not penalize
them, let alone condemn them to death. Affirmative evidence on this point is found
in the following incident, which appears in the hadith compilations of al-Bukhari
and Muslim:
A Bedouin came to the Holy Prophet and pledged his allegiance to him, professing Islam.
The next day he came back, ill with fever and said, ‘Return my pledge to me,’ but the
Prophet refused—thrice. Then the Prophet said: Medina is like a bellows which rejects its
dross and recognizes its pure.73
This was a clear case of apostasy where the Prophet made no reference to any
punishment at all, and the Bedouin, despite his persistent renunciation of Islam,
was left to go unharmed.74
Other events reportedly attributed to the Prophet are also used to support the
death penalty for apostasy. The following hadith is an example of this:75
Anas b. Malik reported that some people belonging [to the tribe] of Urayna came to the
Prophet at Medina, but they found its climate uncongenial. So the Prophet said to them: ‘If
you so like, you may go to the camels belonging to the public purse and drink their milk and
urine.’ They did so and were all right. They then fell upon the shepherds and killed them
and turned apostates from Islam and drove off the camels of the Prophet. This news reached
the Prophet and he sent [people] on their track, and they were [brought] and handed over to
him. He [the Prophet] required their hands and their feet be cut off, and put out their eyes,
and [they] were left on the stony ground to die.76
The use of this hadith in support of the punishment for apostasy is problematic.
First, in the second version of the hadith, narrated by Muslim himself in his Sahih,
there is no mention of apostasy. Instead, it states only that the people of Urayna
killed the shepherds and drove away the camels.77 Second, the punishment im-
posed on them is that of those ‘who wage war against God and His apostle’, as in
Qu’ran 5:33. In fact Nawawi (d. 1277) the jurist, in his explanation of the hadith
in question, specifically refers to this verse, and says that this ruling of the Prophet is
in agreement with verse 5:33. Obviously, Nawawi did not consider the punishment
as simply for apostasy. The punishment was for killing of the shepherds and their
‘war against God and His apostle’.78
The Prophet did not appear to have treated apostasy as a proscribed offense
(hadd ), but, on the contrary, pardoned many of the individuals who had embraced
Islam, renounced it, and then embraced it again. Included among these was ‘Abd
Allah b. Sa‘d b. Abi al-Sarh, the foster brother of ‘Uthman b. ‘Affan, and one-time
scribe of the Prophet, whom the Prophet forgave when Uthman interceded on his
behalf. Other cases include that of al-Harith b. Suwayd and a group of people from
73 Kamali, Freedom of Expression in Islam, 93–4 citing Muhammad b. Isma‘il al-Bukhari, Jawahir
Sahih al-Bukhari, ed ‘Izz al-Din Sirwan (Beirut: Dar al-Ihya’, 1987) 150 [Hadith no 229].
74 Kamali, Freedom of Expression in Islam, 94; cf El-Awa, Punishment, 54.
76 Nawawi, Sharh Sahih Muslim li al-Imam al-Nawawi, 11:165.
77 Nawawi, Sharh Sahih Muslim li al-Imam al-Nawawi, 11:166.
Mecca who embraced Islam, renounced it afterwards, and then re-embraced it.
Their lives too were spared. Ibn Taymiyya, who has recorded this information,
added, ‘These episodes and similar other ones are well-known to the scholars of
hadith’.79 Ibn Taymiyya further added that the Companions reached consensus on
this: for when the Prophet passed away most of the Arabs (except for the residents
of Mecca, Medina, and Ta’if ) apostatized, including many followers of the self-
proclaimed ‘prophets’ Musaylima, al-Ansi, and Tulayha al-Asadi, who renounced
Islam and were subsequently fought by Abu Bakr and other Companions until they
returned to the faith again. They were left unharmed, and not a single one of them
was killed because of their renunciation of Islam. This, Ibn Taymiyya adds, is
common knowledge.80
Some who argue against the death penalty for apostasy believe that the idea of
capital punishment is founded on two traditions that are contrary to the explicit
Qur’anic rulings (4:89 and 90).81 In this regard there is controversy on the question
of whether a hadith can abrogate a Qur’anic rule. Whether these hadith can
abrogate Qur’anic rulings is even more doubtful as they belong to the category of
hadith known as ‘solitary’ or ahad that were probably not widely known amongst
the Companions of the Prophet. Even if one accepts the authenticity of these hadith
they cannot contradict the Qur’an; therefore they must be interpreted as referring
only to the inimical and fighting apostates.82 However, if one rejects these hadith as
spurious, the fact that certain apostates were killed in the early period of Islam can
be explained as a relic of pre-Islamic customs, when anyone who was not formally
protected by a tribe could potentially be killed, or as a result of the application of
martial law necessitated by rebellion and disturbances.83
In summary, Selim el-Awa argues that the death penalty in the hadith (sunna) is
not designed for apostasy per se, but for high treason; that is, when apostasy is
accompanied by hostility and rebellion against the community and its legitimate
leadership.84
F. The question of prescribed versus discretionary punishment
Although many jurists argue that the death penalty for apostasy is a prescribed
punishment (hadd ), there are those who disagree. The Maliki jurist, al-Baji (d.1100
79 Kamali, Freedom of Expression in Islam, citing Ibn Taymiyya, al-Sarim al-Maslul ‘ala Shatim al-
Rasul, 318.
80 Mohammad Hashim Kamali, Freedom of Expression in Islam (Cambridge: Islamic Text Society,
1997). Excerpt accessed online. <http://www.globalwebpost.com/farooqm/study_res/islam/ . . . /ka-

mali_freedom.doc> 20 July 2011, 10 citing Ibn Taymiyya, al-Sarim, 318. For similar information
and additional names of apostates whom the Prophet pardoned after the conquest of Mecca, see Ibn
Hisham, Al-Sira al-Nabawiyya ed Mustafa al-Saqqa, Ibrahim al-Abiyari and Abdul Hafiz Shalabi
(vol 2) (Cairo: Mustafa al-Babi al-Halabi, 1955) IV, 23.
84 Kamali, Freedom of Expression in Islam, 5.
ce), observed that apostasy is a sin which carries no prescribed penalty (hadd), and
that such a sin may only be punished under the discretionary punishment of
ta‘zir.85 The renowned Hanbali jurist, Ibn Taymiyya, also categorically agrees on
this latter punishment for apostasy.86 The Hanafi jurist, Shams al-Din al-Sarakhsi,
although less explicit, also indicates that apostasy does not qualify for temporal
punishment. He begins by stating that apostasy is not an offence for which there is
a prescribed punishment (hadd ), because the punishment for it is suspended when
the apostate repents:
The prescribed penalties (hudud ) are generally not suspended because of repentance,
especially when they are reported and become known to the head of state (imam). The
punishment of highway robbery, for instance, is not suspended because of repentance; it is
suspended only by the return of property to the owner prior to arrest . . . Renunciation of the
faith and conversion to disbelief is admittedly the greatest of offenses, yet it is a matter
between man and his Creator, and its punishment is postponed to the day of judgment (fa’l-
jaza’ ‘alayha mu’akhkhar ila dar al-jaza’ ). Punishments that are enforced in this life are those
which protect the people's interests, such as just retaliation, which is designed to protect
life.87
G. Death penalty as ‘normal’ for offences against the community

or state in pre-modern Muslim contexts
Apostasy and the use of the death penalty already existed in Arabia well before the
coming of Islam. Early Jewish law, for example, prescribed death as a punishment
for committing the offence of apostasy. In the medieval period apostasy and heresy
also attracted the death penalty in Christianity. Through its contacts with Judaism
and Christianity, early Islam found itself amid adherents of religions that had
adopted the concept of apostasy and punished it with death, at least in theory in
some cases. These circumstances appear to have paved the way for Muslim jurists to
construct Islamic laws on apostasy.88
In early Islam, several forms of punishment were imposed for political or
religious reasons, some of which were sanctioned by the religion, while others
were not. Capital punishment by the state for political offences began to occur soon
after the time of the ‘rightly guided caliphs’ (Rashidun); that is, during the
Umayyad period.89 It was perhaps during the caliphate of Mu‘awiya (d 680 ce)
that politically motivated punishment came to first be widely used. He faced
substantial opposition to his rule, particularly from Iraq, where a large number of
Arab Muslims migrated from Arabia and settled in Kufa and Basra. Many of these
85 Kamali, Freedom of Expression in Islam, 91 citing Ibn Taymiyya, al-Sarim, 318; ‘Abd al-Wahhab al-
Sha‘rani, Kitab al-Mizan (Cairo: Matba‘a al-Husayniyya, 1329 AH) II, 134; El-Awa, Punishment, 55.
86 Kamali, Freedom of Expression in Islam, 91 citing Taqi al-Din ibn Taymiyya, al-Siyasa al
Shari‘iyya fi Islah al-Ra‘i wa al-Ra‘iyya (2nd edn, Cairo: Dar al-Kitab al-‘Arabi, 1951), 124.
87 Kamali, Freedom of Expression in Islam, 7 citing Al-Sarakhsi, al-Mabsut, 10: 110.
88 Saeed and Saeed, Freedom of Religion, 35–6.
settlers came from nomadic backgrounds and had strong tribal affiliations. The
spirit of resistance toward what they considered to be the dubious central authority
in Damascus led many in Iraq to continually challenge the caliph and his governors.
In order to prevent insurrection in Iraq the caliph gave the governor of Iraq, Ziyad
b. Abihi (d 673 ce), full authority to suppress dissent. This involved brutal force,
executions, crucifixions, and general control of all those suspected of political
agitation. These same policies were followed later by al-Hajjaj b. Yusuf (d 714
ce), another governor of Iraq, during the reign of ‘Abd al-Malik b. Marwan. The
number of people killed or executed for political reasons by such governors ran into
the hundreds, if not more.90
A further example of the execution of Muslims for political ends was seen on a
massive scale during the ‘Abbasid revolution (743–750 ce). It is reported that the
number of people executed by Abu Muslim al-Khurasani, one of the leading figures
of the revolution in the Eastern part of the caliphate, approached many thousands
of men, women and children. There were also mass killings of Umayyads in Syria
by Abu al-‘Abbas al-Saffah (d 754 ce). These killings were certainly not religiously
sanctioned. Such killing aimed to create terror and to force the population to
submit to political authority.91
During this period (the 1st and 2nd centuries of Islam), Muslim jurists were
developing the scholarly discipline of Islamic law. Given that capital punishment
was imposed with such ease (particularly in relation to offences against the state) in
the post-Rashidun environment (from 661 ce onwards), this political climate must
have influenced the scholarly field, despite efforts by the jurists to limit the impact
of this environment on the intellectual domain.92
Those raised and schooled in such an environment would have found it ex-
tremely difficult to divorce themselves from the cultural and socio-political realities
of the day. Capital punishment was widely used and for a variety of reasons. Jurists
of the first to the third centuries of Islam considered punishment and death for
apostasy within the ethos of their time. Therefore, how they read early Islamic
history, as well as Qur’anic and prophetic texts, to support capital punishment can
be understood as natural, logical, and relevant for their day.93
Emphasizing this point, Sarakhsi (d 1096 ce), the great Hanafi jurist, believed
that the death penalty for apostasy weakened the enemy (that is, the unbelievers).94
In the early Islamic period, non-Muslims who did not have peace treaties with the
Muslims and were in a state of war were considered to be enemies of Islam and the
Muslim community. The world was divided into the realm of Islam (dar al-Islam)
and the realm of unbelief (dar al-kufr). By becoming a non-Muslim, the apostate
thereby joined the enemy, thus contributing to the enemy’s strength. Sarakhsi has
also argued that apostasy was an act of the utmost gravity. He pointed out that the

93 Saeed and Saeed, Freedom of Religion, 67–8.
94 Saeed and Saeed, Freedom of Religion, 68, citing Sarakhsi, al-Mabsut, 10:100.
reason for the death penalty was not to persuade someone to change their religion,
whether from Islam or from any other, rather, that ‘[t]he offender deserves execu-
tion because of his insistence on unbelief (kufr)’.95 Thus he concludes, ‘By insisting
on unbelief (kufr), he [the apostate] becomes [like] one who is waging war against
Muslims. Therefore, he should be executed [as a precaution against] this [potential]
waging of war’.96
H. Evolution of the context wherein

apostasy was equated with treason
The notion of apostasy and how it should be punished developed in early Islam.
Although there was a very high degree of freedom of religion during the Prophet
Muhammad’s lifetime, and also in the immediate post-prophetic period, this
freedom began to be curtailed for both Muslims and non-Muslims in subsequent
generations. When classical Islamic law took its form over the course of the first
three centuries of Islam, these restrictions came to be embedded in its operation.
Some of the restrictions on non-Muslims in certain Muslim lands included
those relating to building or renovating places of worship, or determining what
non-Muslims may (or may not) do in public. In the case of Muslims, the key
restriction was the prohibition of apostasy and its punishment by death.
During the Prophet Muhammad’s time in Mecca (610–622 ce), the Qur’an
insisted on absolute freedom of religion. It emphasized that the Prophet had no
power to force anyone to convert: his role was simply to convey the message, and
the choice to convert or not to convert was left to the individual. In fact, even after
conversion to Islam one had the option to remain a Muslim or to go back to a
previous religion. Freedom of belief was understood to be a matter between God
and a human being, and the key focus was on an individual’s belief, aimed simply at
salvation. In the Medinan period of the Prophet’s life (622–632 ce) this basic
meaning of freedom of belief continued; however, an important new idea was
added to the notion: religious belief as a marker of inclusion within a political
community. In this way Muslims became a religious and a political community. As
a result, a ‘community’ dimension was added to understandings of religious belief,
and the implications of religious freedom. Belief in God and the Prophet was more
than just a relationship between the individual and God; it also signified member-
ship in the nascent religious and political community of Muslims of Medina, such
that conversion and apostasy came to be seen as having public and political
dimensions. Despite this, there was no strong emphasis on the superiority of
Islam in this period. As such, Muslims functioned side by side with the Jews and
others.
During the immediate post-prophetic period of the Rashidun caliphs (632–661
ce), the idea of the ‘superiority of Islam’ came to be emphasized in an unambiguous
way. Muslim political and military power in that period had expanded significantly
outside Arabia, bringing under its banner the former Sassanid empire and a large
part of the Christian Byzantine empire. This expansion gradually led to a very clear
distinction between Muslim communities and non-Muslim communities.
This idea of the ‘superiority of Islam’ was further strengthened during the
Umayyad (661–750 ce) and early ‘Abbasid periods (750–900 ce). A powerful
political and religious community with a strong sense of superiority over other
religious and political communities emerged. It became important to maintain the
integrity of the Muslim community by strictly controlling community members
and not tolerating any threat to the honor of the community or the ‘family’ of the
Muslims. Any such breach of honor was seen as an act of treason. Extensive use of
capital punishment during the Umayyad and early ‘Abbasid periods made such
harsh punitive measures perfectly acceptable for breaches against the religious
community and state. As a result, religious freedom was curtailed to some extent
for both non-Muslims and Muslims, and the ‘law of apostasy’ and its punishment
were developed. Once developed, this approach remained standard in classical
Islamic law right up to the modern period.
In the modern period debate for retaining the classical law of apostasy has been
renewed, and many scholars have expressed a desire to maintain this law, despite
the fact that Muslims live in nation-states where citizenship, in general, is not based
on a conjunction between the religious and political identity of the citizen.
However, others recommend moving beyond the classical apostasy law and its
punishment to a position that appears to have existed during the Prophet Muham-
mad’s time: freedom of religion for both Muslims and non-Muslims.
I. The Qur’anic conception of religious freedom
In the Qur’an there is a strong sense of the importance of freedom of religion,

which stands in contrast to the conception of religious freedom that has been
perpetuated in classical Islamic law. The Qur’an emphasizes that adherents to other
religions should be respected and interacted with peacefully; that no one should be
forced to embrace Islam; and that each person has the freedom to choose their belief
system in this life. The Qur’an not only recognized the diversity of religious
traditions, institutions, and values among the people to whom the Prophet was
sent, but also acknowledged that these belief systems were important to the people
who practised them.97
The Qur’an rejects forced conversion, as is emphasized in the well-known verse,
‘There shall be no coercion in matters of faith’.98 Although some early Muslim
scholars interpreted this verse as only applying to Christians and Jews (known as the
97 Qur’an 6:108. 98 Qur’an 2:256.

‘People of the Book’) if they paid the jizya tax,99 a great number of Qur’anic verses
emphasize that no one should be forced to believe in God. It is true, however, that
the Qur’an permitted fighting to defend one’s religion, faith, and territory against
actual or potential threats, but this should not be confused with sanctioning the use
of force to convert a person to believe in God or the religion of Islam. As other
Muslim scholars have emphasized, coercion goes against the nature of Islam, which
addresses an individual’s own conviction.100
Indeed, a strong theme of personal responsibility runs through the Qur’an. Each
person is given the capacity to discern right from wrong, and it is a personal
decision as to which belief system, if any, a person chooses to follow. According
to the Qur’an, God’s plan for humankind is not that everyone should follow the
same path.101 The Prophet’s task was only to explain to people the difference
between right and wrong, after which people had the choice of whether or not to
follow God’s path. Instead, the Qur’an holds that every person will be asked about
their actions on the Day of Judgment, and individuals will ultimately bear responsi-
bility for that choice in the afterlife.
This principle applies equally to Muslims who choose to leave Islam. A number
of verses in the Qur’an refer to the serious consequences of rejecting Islam and
committing apostasy. For example, the Qur’an says:
Behold, as for those who come to believe, and then deny the truth, and again come to
believe, and again deny the truth, and thereafter grow stubborn in their denial of the truth—
God will not forgive them, nor will He guide them in any way. Announce to such hypocrites
that grievous suffering awaits them.102
This verse and others, along with other scholarship, indicates that it is God’s
prerogative to assign punishment to those Muslims who commit apostasy, not
the prerogative of the Muslim community or the state. Thus, the Qur’an upholds
that Muslims have the same freedom of conscience and personal responsibility that
non-Muslims have to choose God’s path or another system of belief.
J. Defending religious freedom: Muslim views
In the modern period, restrictions on religious freedom have come under new
scrutiny. Muslim thinkers, jurists and scholars have begun to re-examine these
restrictions and argue for a notion of freedom of religion that, from their point of
view, is more in line with the teachings of the Qur’an and Prophet Muhammad.
Even though the issue of apostasy is still of great concern in Muslim-majority
states, there are some changes taking place towards greater religious freedom. The
majority of Muslim states are choosing not to implement the death penalty for
99 Ibn Kathir, Tafsir al-Qur’an al ‘Azim (Dar al-Ma‘rifa, 1987), 1:318.

100 For example, Sayyid Qutb, Fi Zilal al-Qur’an (vol 1) (Dar al-Shuruq, 1996), 291.
101 Qur’an 16:9.
102 Qur’an 4: 137–8.
apostasy, resisting the classical legal position that the offence should be temporally
punished by death. It is true that the death penalty is staunchly defended by some
Muslims, but it is also opposed with equal strength by an increasingly vocal group
of Muslims, which includes some prominent Muslim thinkers. Thus it seems that
with the exception of certain ultra-conservatives, a large number of Muslims are
moving away from the notion of an enforced religion to that of a personal covenant
between an individual and God. As noted above, this perspective appears to be
actually closer to the Qur’anic idea of non-coercion in matters of faith and religion.
An increasing amount of scholarship is questioning the basis of the classical
apostasy law and its punishment. Indeed, a number of Muslim thinkers today, such
as Muhammad Kamali and Hasan al-Turabi, have attempted to reinterpret the
texts associated with apostasy, demonstrating that there is no Qur’anic basis for the
death penalty. In their view, any death penalty associated with apostasy in early
Islam must have been for high treason, rather than simply for a change of faith.
These authors argue that freedom of religion, including the freedom to change and
renounce religions, is a fundamental principle of Islam for all: Muslims and non-
Muslims alike. This questioning of the punishment for apostasy by Muslims is
relatively recent, beginning in the late 19th and early 20th centuries. Muslim
modernists such as Ahmad Khan, Muhammad ‘Abduh, Rashid Rida, and Muham-
mad Iqbal, were among the earliest to provide the basic framework within which it
has become possible to question the classical conception of apostasy. An important
contributor to the debate has also been S A Rahman, the retired Chief Justice of
Pakistan, who highlighted the weakness of the foundations upon which the law of
apostasy was based. In the 20th century, even a number of leading political
Islamists such as Hasan al-Turabi of Sudan have added their voices to the call for
rethinking the law on apostasy.
Apart from the changes related to the rethinking of apostasy and Muslims’ right
to freedom of religion, there have also been other broad developments toward
religious freedom in the Muslim world. In Malaysia, for example, at the time
dominated by the conservative Pan-Malayan Islamic party PAS, the state govern-
ment of Kelantan allowed the building of the biggest Sleeping Buddha in Malaysia.
In 2008, the King of Saudi Arabia inaugurated a three-day conference in Mecca
aimed at promoting interfaith dialogue with non-Muslims.103 During the past few
years he has also met publicly with a number of other religious leaders, including
Pope Benedict XVI, in an effort to promote cooperation between people of other
faiths and Muslims.104
103 Royal Embassy of Saudi Arabia Washington DC, Initiative for Interfaith Dialogue (2011), 6.
<http://www.saudiembassy.net/files/PDF/Reports/Interfaith_Magazine_Jan_2011.pdf> accessed 7
June 2012.
104 Washington Times, ‘Saudi King Calls For Interfaith Dialogue’, 25 March 2008. <http://www.
washingtontimes.com/news/2008/mar/25/saudi-king-calls-for-interfaith-dialogue> accessed 7 June

2012.
K. Overview of how Muslim states have responded to the ICCPR
The degree of interest held by Muslim nations in the right to freedom of

religion can be seen in their engagement with the United Nations’ (UN)
human rights system. Of the 57 member states of the Organisation of the
Islamic Conference (OIC),105 nine are not signatories to the ICCPR,106 which
is the main UN human rights treaty prescribing the right to freedom of
religion. A further three states have not ratified the treaty.107 Several Muslim
states have also explicitly objected to Article 18, the main article in the treaty
guaranteeing religious freedom. For example, upon accession to the ICCPR in
2006 the government of the Maldives entered a reservation to Article 18,
providing that ‘[t]he application of the principles set out in article 18 of the
Covenant shall be without prejudice to the Constitution of the Republic of
Maldives’.108 The government of Mauritania has likewise entered a reservation
against Article 18 of the ICCPR.109
The difficulties that Muslim states have with freedom of religion and apostasy are
more pronounced in their interactions with the Human Rights Committee (HRC),
which is the ICCPR’s monitoring committee. A report by Algeria to the HRC in
2006 emphasized that freedom of thought, conscience, and religion is fully pro-
tected by Article 37 of the Constitution.110 However, Algeria failed to mention in
the report that conversion from Islam to another religion is a criminal offence.111
When asked about the discrepancy between ‘fully protecting’ freedom of religion
and this provision of the criminal code, the representatives of Algeria gave this
response:
Having noted that the immediate problems of certain citizens were being exploited and that
different methods of seduction were being used, in the name of freedom of belief, to attract
such people and cause them to question their commitment to Islam, the Algerian State took
steps to invite everyone seeking to proselytize religion to comply with the law.112
105 Organisation of the Islamic Conference, Member States <http://www.oic-oci.org/member_-
states.asp> accessed 7 June 2012.

106 United Nations Treaty Collection Database, Status of Ratifications of the International Covenant
on Civil and Political Rights <http://www.treaties.un.org/Pages/ViewDetails.aspx?src=TREA-

TY&mtdsg_no=IV-5&chapter=4&lang=en> accessed 7 June 2012.
107 United Nations Treaty Collection Database, Status of Ratifications.
108 Human Rights Council. Report of the Special Rapporteur on Freedom of Religion or Belief, Asma
Jahangir, Addendum, ‘Mission to the Maldives’ [Doc A/HRC/4/21/Add.3]. 7 February 2007, 21.
109 <http://www.treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chap-
ter=4&lang=en> accessed 21 May 2012.

110 United Nations Human Rights Committee, Third Periodic Report, People’s Democratic Republic
of Algeria [CCPR/C/DZA/3], 22 September 2006, 310.

111 United Nations Human Rights Committee. List of Issues to be Taken up in Connection with the
Consideration of the Third Periodic Report of Algeria [CCPR/C/DZA/Q/3], 20 August 2007, 20.
112 United Nations Human Rights Committee. Replies of the Government of the Algerian Republic to
the List of Issues (CCPR/C/DZA/Q/3) to be Taken Up in Connection with the Consideration of the Third
Periodic Report of Algeria (CCPR/C/DZA/3) [CCPR/C/DZA/Q/3/Add.1: Reply 20], 4 October 2007.
In a similar vein, Sudan, in 2007, refused to respond to the HRC’s questions as to
whether any steps would be taken to decriminalize apostasy.113 Despite ratifying
the ICCPR and agreeing, at least in principle, to guarantee freedom of religion in
the terms prescribed by the treaty, a number of Muslim states still have apostasy
laws in force in their domestic legislation.
L. Conclusion
The law of apostasy and its corresponding punishment have clearly been an
important part of classical Islamic law for much of Islamic history. In fact, many
traditionalist Muslims understand them to be an essential part of Islam that cannot
be sidelined, and argue that they should therefore remain unaltered. However, the
discussion of apostasy in this essay suggests that the importance of the law comes
into question when its development in the context of early Islam is considered.
Examination of the evidence shows that the law and its punishment conflicts with a
large number of Qur’anic texts that are clearly in support of freedom of belief, as
well as the actual practice of Prophet Muhammad, who did not put anyone to death
because of apostasy alone. The socio-political context of early Islam, particularly in
the post-prophetic period, was one where fears about the possible infiltration of
‘enemies’ of Islam into the body politic of the umma were widespread. The
resulting emphasis on retaining the purity and superiority of Islam perhaps led
jurists to a particular approach to the law of apostasy and interpretation of key
hadith texts. The high degree of fluidity that existed in understanding what actually
constituted ‘apostasy’ also paved the way for the abuse of this law, with some
political and religious leaders using it to suppress any dissent or opposition to their
particular interests in the name of Islam.
At a time when the world is increasingly asserting the right of all people to adopt
a religious belief of their own choice, I argue that Muslims should also be moving in
this direction by deemphasizing the death penalty for apostasy. Although apostasy
can justifiably remain a major sin within Islamic theology, Muslims can do more to
emphasize that all human beings are legally free to adopt or to change their religion.
This is not about encouraging Muslims to apostatize. Rather it is about reempha-
sizing the Qur’anic concept of freedom of belief and religion today which is also in
line with contemporary international human rights discourse on freedom of belief
and religion.
113 See United Nations Human Rights Committee, List of Issues to be Taken Up in Connection with
the Consideration of the Third Periodic Report of the Government of Sudan (CCPR/C/SDN/3) [UN Doc
CCPR/C/SDN/Q/3] 9 May 2007, 21 and the reply to question 21: Replies to the List of Issues (CCPR/C/
SDN/Q/3) to be Taken Up in Connection with the Consideration of the Third Periodic Report of the
Government of Sudan (CCPR/C/SDN/3) [CCPR/C/SDN/Q/3/Add.1], 26 June 2007, 23.
12
Freedom of Religion and Expression:
A ‘Rule of Law’ Perspective
Malik Imtiaz Sarwar*
A. Context
The subject of freedom of religion under the Islamic Shari‘a is one that has several
dimensions. It would be useful to identify the key facets at the outset. For a start,
there is the vexed matter of Muslims renouncing their faith, either for another or for
none at all. There is, additionally, the matter of Muslims being able to practice their
faith as Muslims in a way they, as opposed to the state or any other agency or body,
consider appropriate. This relates in part to the issue of state identification, or even
regulation, of religion. The third dimension concerns the free practice of religion in
a pluralist society in which other freedoms, in particular the freedom of expression,
are equally guaranteed.
When considered analytically these aspects ultimately resolve not so much to the
question of whether an individual has this or that right under the Shari‘a,
as opposed to the international human rights law (IHRL) framework. They resolve
instead to the fundamental question of whether the state will allow individuals to
articulate the freedoms that are inherent to their lives, either as Muslims or
otherwise. I would argue that it is reasonable to conclude that there are no
significant differences between the way the freedoms concerned are to be applied
under the Shari‘a and under the IHRL framework.1 I would also argue that
closer study would lead one to the inescapable conclusion that at its most basic
level, the controversy surrounding the freedom of religion under the Shari‘a is one
that has its roots not in religious doctrine but in the harnessing of Islam for political
purposes.
* Malik Imtiaz Sarwar LL.B (International Islamic University, Malaysia); LL.M (University of
Hong Kong); M.St, International Human Rights Law (Oxon); Advocate and Solicitor of the High
Court of Malaya; President, National Human Rights Society, Malaysia.
1 For a general statement of principle by the African Asian Legal Consultative Organisation on
human rights in Islam and the extent to which the same is compatible with IHRL, see: AALCO,
Summary Report of the Meeting of International Experts on Human Rights in Islam, 15–19 May
2006, Kuala Lumpur, Malaysia at <http://www.aalco.int/HR-ISLAM-2007.pdf>. See in particular
Plenary III where the conclusions concerning freedom of religion are set out.
In my view the endorsement of many, if not all, so-called Muslim countries of the
United Nations framework and its system of human rights is proof of the compati-
bility of the two systems. The willingness to do so on their part speaks volumes, a
willingness that, I might add, appears not to be driven entirely by the politics of
international relations. Experts appointed to that end by concerned states2 have
considered the compatibility of the Shari‘a and IHRL system and have, in essence,
come to the conclusion that they are in a position to co-exist harmoniously. Both
these systems self-evidently focus on preserving the dignity of the individual and his
or her conscience, a process informed by the universality of the human condition. As
Amin Maalouf succinctly puts it, the ‘basic postulate of universality is that there exist
inherent rights to human dignity that no one may deny to his fellow creatures,
whether on the ground of religion, colour, nationality or sex, or any other consider-
ation’. It is in this vein that he argues that ‘there cannot be on the one hand an
overall, general charter of human rights and on the other special and particular
charters for Muslims, Jews, Christians, Africans, Asians and the rest’.3
If specifics are required, consider the following. Both systems recognize the right
of individuals to profess and practice their religion of choice. Article 18 of the
Universal Declaration of Human Rights (UDHR) captures the essence of the
IHRL position on this freedom. Despite the seeming controversy surrounding
the subject of apostasy under the Shari‘a, numerous reputable scholars of Islamic
law4 have put across compelling arguments in support of the proposition that in as
much as the act of apostasy may amount to a sin, restrictions on the right to
renounce faith on the part of Muslims are not countenanced by the indisputable
sources of Islamic law, namely the Qur’an and verified traditions of the Prophet
Muhammad.
In the same vein, the freedom of expression is protected under Shari‘a as it is
under IHRL (UDHR, Article 19). It is generally accepted that under the Shari‘a
acts are allowed unless a restriction is raised to bind that permission or prohibit an
act. It is argued by al-Marzouqi that this freedom is a necessary feature of man (and
women) having been created by God to be vicegerents on earth with the capacity to
act with reason.5 As Kamali opines, the weight of the Shari‘a evidence supports the
dignity of the individual and his freedom of conscience. Kamali posits that at
the root ‘lies the basic moral issue of freedom versus responsibility, which could
hardly be resolved on an ethically sound foundation unless the individual is granted
the freedom to speak and act in harmony with his conviction and what he or she
believes to be of benefit to society’.6 This is consistent with fatwas, or a legal
2 See n 1.
3 Amin Maalouf (trans Barbara Bray), On Identity (London: The Harvill Press, 2000), 88.
4 See, for instance: Abdullah and Hassan Saeed, Freedom of Religion, Apostasy and Islam (Aldershot:
Ashgate, 2004); Abdullahi Ahmed An-Na’im, Islam and the Secular State: Negotiating the Future of
Shari’a (Cambridge, MA and London, England: Harvard University Press, 2008).
5 Ibrahim Adbulla al-Marzouqi, Human Rights in Islamic Law (Abu Dhabi, 2000), at 113–18.
6 Mohammad Hashim Kamali, Freedom of Expression in Islam (The Islamic Texts Society, 1997), at
259.
A ‘Rule of Law’ Perspective 249
opinion of an expert, not being binding, a key feature of the freedom of Muslims to
practice their faith.
This freedom extends, in Kamali’s view, to persons of other faiths living in
community with Muslims under Islamic law.7 They are equally entitled to their
freedom of religion. This is not so much a matter of theology as it is practical
diplomacy. Edward Said insightfully put it this way, ‘Peace cannot exist without
equality; this is an intellectual value desperately in need of reiteration, demonstra-
tion and reinforcement’.8
The foregoing is intended only to offer a snapshot view of the subject.9 My brief
analysis is intended to set the context for the immediate focus of this comment; the
politicization of Islam and this politicization, rather than Islam itself, being the
source of such difficulties as there are. As will become evident, the politicization of
Islam and the impact of this process is one that goes to the heart of the ‘rule of law’.
The adjunct proposition that the perversion of the rule of law in Islamic countries
often leads to the politicization of Islam is as true.
B. Rule of law perspective

Consider the Malaysian example. In my view it is emblematic. The nation achieved
independence in 1957 and for that purpose was bestowed with a cutting-edge
written constitution that amongst other things guaranteed constitutional suprem-
acy10 and the fundamental liberties of its citizens.11 This included freedom of
religion,12 stated as being applicable to every person without qualification, and
freedom of expression.13 Significantly, the constitution also allowed the creation
of an Islamic personal law framework and, for that purpose, the establishment of
a Shari‘a court system. This was reasonable in the minds of the founders of
the Constitution in view of the historical place of Islam in the affairs of the
Malay states and the status of Islam as a defining feature of the Malay culture.14
The latitude that allowed for the establishment of an Islamic personal law frame-
work was however not to be understood as in any way undermining the secular
nature of the public law system, Islamic law being limited in its application
as only the personal law of Muslims.15 In this way, an environment for the
7 Kamali, Freedom of Expression in Islam.

8 Edward W Said, Humanism and Democratic Criticism (Columbia: Columbia University Press,
2004), at 162.
9 The ground has been better covered by far more eminent authors and I would commend them to
you. See, in addition to Saeed and An-Na’im, Tarek Fatah, Chasing a Mirage: The Tragic Illusion of an
Islamic State (Ontario: John Wiley & Sons, 2008); Abdelwahab El-Affendi, Who Needs an Islamic
State? (Peterborough, United Kingdom: Malaysia Think Tank London via Upfront Publishing, 2008).
10 Federal Constitution of Malaysia, Art 4(1).
11 Federal Constitution of Malaysia, Part II.
14 Federal Constitution of Malaysia, Art 74 read with Item 1, List II, 9th Schedule.
15 A point made by the Malaysian Supreme Court in its decision in Che Omar Che Soh v Public
Prosecutor & Another Appeal [1988] I LNS 150. The decision has not been departed from to date.
harmonious co-existence of the secular, or civil, legal system and the Shari‘a system
was put in place and the two systems existed side by side without much difficulty.
It must be noted that this ‘golden’ age of Malaysian law spanned a period in
which Islam had not been unduly politicized or, even if it had been, had not been
permitted great traction within the political sphere. The incumbent political
coalition, the National Front, laid great stock in the secular nature of public
space and relied on it to justify stamping out claims to more divisive religious
positioning on the part of the Islamic opposition. This was also a time when the
Malaysian judiciary was viewed as being amongst the best in the Commonwealth
and there was, for all purposes and intents, a functioning system of checks and
balance in government.
Things changed though towards the mid-80s, the shape of things to come being
defined by the need of the National Front, and more particularly Dr Mahathir
Mohamed, the then premier, to retain power. In 1987 Dr Mahathir was con-
fronted with an internal challenge even as he was being pushed into a corner by
allegations of impropriety and abuses of power on the part of his government. He
reacted and in a series of moves that have since been recognized as being pivotal in
the undermining of democracy in Malaysia, he attacked civil society (he caused 107
activists to be detained without trial for periods of up to two years under the
Internal Security Act in 1987 and shut down two newspapers) and the judiciary (he
caused the removal of the then Lord President and two Supreme Court justices in
1988 and put fear into the judiciary; he also began to see to the appointment of
compliant judges to the superior courts). He also intermeddled with the Consti-
tution and the legal framework, prompting amendments to the Constitution that
suborned the judiciary to Parliament and the enacting of legislative provisions
that choked the freedom of expression and assembly. In all of this and more,
Dr Mahathir systematically undermined the rule of law. He also set the stage for the
advance of political Islam.
Realizing that the highly unpopular measures noted above were not necessarily
going to be viewed positively and would cost the National Front politically,
Dr Mahathir began to play the race and religious card with earnest. He called upon
the Malays to rally against the non-Muslims, to protect themselves and their religion
against the advances of these non-Malay components of Malaysian society. He
denounced these components as being intent on the marginalization of the Malays,
whom he declared to have a superior entitlement to the benefits of life in Malaysia.
Crucially, he engaged with the Islamic opposition by challenging their claims to
Islamic credentials in the arena of public opinion rather than on the plains of
constitutionalism. This led to what some have described as an ‘Islamic race’ in
which the Malay-dominated National Front and the Islamic opposition attempted
to out-Islamize each other.
Having undermined the institutions of the nation and stifled any forms of
meaningful dissent, Dr Mahathir began to in effect rule by decree. His public
statements were treated as if they were statements of policy, with terrible effect.
A more racialist bureaucracy began to entrench itself, one which felt more entitled
to assert its own moral positions in priority to the law. It is not surprising that so
many of the problems associated with Islam in Malaysia only began to arise in this
period.
In 1999, the apex court declared that any Muslim wishing to renounce his or her
faith would have to procure a declaration of apostasy from a Shari‘a court.16 The
decision was patently erroneous and drastically affected the landscape. Up to that
point, Muslims (who were such for having been born into the religion or for having
converted into it) had been permitted to give effect to their renouncing of the
faith merely by swearing a declaration to that effect and advertising the same. They
were now expected to petition Shari‘a courts, which were limited in their jurisdic-
tion to matters of personal law involving ‘persons professing the religion of Islam’17
and constrained to apply the Shari‘a law, for endorsements of their decision to
renounce.
That the decision was delivered some five years after the appeal was instituted
and at a time when Dr Mahathir had begun to refer to Malaysia as an Islamic state
cannot be ignored. As is borne out by the arguments made below, the clear
implication is that once the rule of law was compromised, narrow and extremist
viewpoints were allowed a foothold and subsequently entrenched.
The decision of the Supreme Court on apostasy deeply affected society. Muslims
are by law only permitted to marry Muslims. Non-Muslims wishing to marry
Muslims are required to convert into the faith, a step that for various reasons is not
undertaken easily by many. Muslim men are permitted to marry up to four wives
and are perceived as having an advantage under Islamic family law, in part due to
perceived gender bias within the administrative machinery including the Shari‘a
courts. There is a concern that the converting spouse may be left in the lurch in the
event the husband decides to marry someone else. Furthermore, non-Muslims are
not permitted by law to inherit from Muslims under forced inheritance laws. For
many non-Muslims who wish to convert this poses great difficulty as they would be
leaving their non-Muslim family members unsecured, their entitlement to be-
queath being constrained by Shari‘a inheritance laws.
Subsequent decisions of the courts have fueled further unease in entrenching
further the position on apostasy18 and endorsing the right of spouses who had
contracted marriages as non-Muslims to, upon their conversion into Islam, petition
the Shari‘a courts in competition to proceedings set up in the civil courts by non-
Muslim spouses. Such proceedings in the Shari‘a courts have commonly included
claims to custody on the basis of unilateral conversion of children of the marriage
16 Soon Singh Bikar Singh v Pertubuhan Kebajikan Islam Malaysia (Perkim) Kedah & Anor [1999] 2
CLJ 5.
17 See n 14. Item 1, List II, 9th Schedule limits the jurisdiction of the Shari‘a courts to ‘persons
professing the religion of Islam’. The list sets out the fields of legislative competence, ie the subjects in
respect of which state legislative assemblies can enact laws. It significantly does not mention ‘apostasy’.
18 See, for instance, Lina Joy v Majlis Agama Islam Wilayah Persekutuan & Yg Lain [2007] 3 CLJ
557. It must be noted that the correctness of the Soon Singh decision was called into question in one of
the judgments of the Federal Court in Subashini Rajasingam v Saravanan Thangathoray & Other
Appeals [2008] 2 CLJ 1. The impact of the judgment is yet to be understood.
into Islam, a state of affairs that the courts have also regrettably endorsed.19 When
petitioned, the civil courts have refused to intervene.
These decisions of the superior courts have cleaved society and disrupted the
balance between the Shari‘a and civil systems. They have created distrust and
disharmony and have given wide latitude to those who would exploit Islam for
their own purposes. Rather than addressing the cleavages, politicians on both sides
of the divide continue to use Islam for political advantage and to that end suppress
efforts to address the growing divisiveness.20
This carries with it critical implications. The emphasis on Islam in public life has
given rise to a need to define the individuals who are Muslim. In 2003, in arguments
before the Malaysian apex court, the Attorney General took the position that it was
necessary to define Muslims and for them to be publicly identified as such (through
the use of identification cards) to facilitate enforcement of the Islamic personal law.
This was conveyed to the apex court as part of an argument made to justify the
requirement of ‘exit-orders’ from the Shari‘a courts.21 The Attorney General argued
further that Muslims would cheat the system if they were allowed to unilaterally
decide on their apostasy. This form over substance approach to the free practice of
faith was picked up by the apex court and incorporated into its decision.
The approach characterizes the way in which Islam has become a tool. Muslims
in Malaysia are required to give up their personal religious autonomy in deference
to the convenience of the authorities who feel that there is a need for regulation.
That this begs the question of whether enforcement actions are constitutional in
the face of the guarantee of the freedom of religion does not appear to trouble the
Malaysian courts or the authorities.22 It remains unaddressed.
As a consequence of, and in furthering, this self-serving approach, the Malaysian
courts have gone on to validate the vesting of legislative power in state fatwa
committees and religious councils, allowing them to issue binding fatwas without
these having been scrutinized and endorsed by legislature. This is in spite of the fact
that fatwas determine substantively whether specific conduct is permissible on the
part of Muslims. Fatwas also lay down the elements of the crime of contravening
fatwas. The apex court does not appear to have been disturbed by this self-evident
exercise of essential legislative functions by the fatwa committees. It has dismissed
complaints on the basis that the exercise of powers in this regard is a matter of
permissible delegation of legislative power.23
19 See, for instance, Subashini Rajasingam v Saravanan Thangathoray & Other Appeals [2008] 2 CLJ 1.
20 Consider the hostility generated against efforts in 2005 by civil society groups to promote
awareness of the need to establish a non-adjudicative, consultative statutory interfaith commission to
address disruptions of religious harmony. Consider also the hostility generated against efforts by the
civil society coalition Article 11 to create awareness of the manner in which the courts were
undermining the protections guaranteed by the Federal Constitution.
21 I appeared as counsel for the Appellants. The decision is reported as Kamariah Ali & Yang Lain v
Kerajaan Negeri Kelantan dan Satu Lagi [2004] 3 CLJ 409.

22 The Federal Court avoided dealing with the issue in Kamariah Ali & Yang Lain v Kerajaan Negeri
Kelantan dan Satu Lagi [2004] 3 CLJ 409.

23 Sulaiman Takrib v Kerajaan Negeri Terengganu; Kerajaan Malaysia (Intervener) & Other Cases
[2009] 2 CLJ 54.

In the same vein, the apex court has further validated the claim of the state that the
phrase ‘the precepts of Islam’, the breach of which can be made the subject of criminal
laws, are to be understood as referring to matters of fiqh, or derived law, rather than the
indisputable sources of Islamic law, the Qur’an and the verified traditions of the
Prophet Muhammad.24 This has not only allowed for uncertainty and the imposition
of highly subjective moral norms on Muslims under the guise of law by ulama
appointed by the state, it has resulted in the unreasonable restriction of Islam itself.
It has further blurred the line between public law and Muslim personal law.
In tandem with the developments noted above, state Islamic agencies have
attempted to increase their sphere of influence. This is clearly illustrated by those
cases, referred to anecdotally as the ‘body snatching cases’, where Islamic authorities
have successfully petitioned Shari‘a courts for ex-parte declarations that deceased
individuals have died as Muslims. In such cases, it is the norm that the families of
the deceased are not given any say, the matter being treated as being exclusive to the
Islamic administration. Further, more usually than not they are coerced through
intimidation to defer to the preferences of the Islamic authorities. Arguments that
the Shari‘a authorities, being body corporates, do not have standing in the Shari‘a
courts or even that the disputes ought be resolved in the civil courts so as to allow
the non-Muslim disputing parties25 to be heard have fallen on deaf ears.26
It is no surprise that there has been a growing tendency towards reductionism and
the demonization of non-conformist positions. The state has gradually been given
more control over matters of Islam than was ever contemplated as being permissible
under the Constitution. Carried on the back of uncorrected populist impressions of
the Malaysian social arrangement that are biased in favor of the Malay-Muslim
majority, unchecked by an objective adherence to the rule of law, this trend has
steadily eaten away at the foundations of the nation. Political Islam has become one
of the, if not the, biggest threats to the continued sustainability of the nation.
This has affected all Malaysians; non-Muslims for the bias it creates within
Malaysian society, in which the racial-religious identity has been greatly empha-
sized in political constructs, and Muslims for the way in which Islam has been
reduced to a state-defined, monolithic ideology that brooks no diversity. This has
robbed Muslims and non-Muslims of identity for it engendering a vicious cycle of
reductivist thinking27 and forcing them into making an ‘all or nothing choice’.28
24 Sulaiman Takrib v Kerajaan Negeri Terengganu; Kerajaan Malaysia (Intervener) & Other Cases
[2009] 2 CLJ 54.

25 As they once were. See, for instance, Dalip Kaur Gurbux Singh v Pegawai Polis Daerah (OCPD),
Bukit Mertajam & Anor [1991] 3 CLJ 2768.

26 See, for instance, the decision of the High Court in Kaliammal Sinnasamy v Majlis Agama Islam
Wilayah Persekutuan & Ors [2006] 1 CLJ 753; affirmed by the Court of Appeal in [2011] 2 CLJ 165.
27 For instance, in 2007 the Home Ministry prohibited the Catholic church from using the word
‘Allah’ in its publication, The Herald, on pain of the permit for the same being revoked. The matter was
taken to the High Court with the challenge being determined in favor of the Church (reported as
Titular Roman Catholic Archbishop of Kuala Lumpur v Menteri Dalam Negeri & Anor [2010] 2 CLJ
208. The decision caused controversy and resulted in a general directive of dubious validity that non-
Muslims were not allowed to use the word ‘Allah’ at all. The matter is under appeal to the Court of
Appeal.
28 Amartya Sen, Identity and Violence, The Illusion of Destiny (London: Allen Lane, 2006).
C. Compatibility
The experience described above is not unique to Malaysia. Other progressive

Islamic countries have over time suffered the same fate in one form or the other.
Social injustices and their consequences have led to Muslim communities being
vulnerable to the seduction of reductionist perspectives, including those offered by
the exploiters of Islam. This is not difficult to demonstrate. Consider those nations
in which political Islam has taken root virulently and ask what it is that is common
to all of them. Endemic corruption, abuses of power, institutional breakdown, and
the lack of sound education systems are just some of the common features of these
countries. Contrast the experience of Muslims in these countries with those in
nations where social justice is the norm rather than the exception. It is self-evident
that Muslims in the latter, even if they are to be found in societies that cannot
conventionally be described as being Islamic, appear to be less susceptible to
radicalism.
The Shari‘a system is at its essence a system of social justice and fairness. So is the
IHRL system. Both systems rest on universal values being protected and promoted
with particular reference to the dignity of the individual. Where the dignity of
individuals is compromised, as where they are subjected to arbitrariness or unjust
decisions—social injustices in other words—at the hand of the state, either system
would ultimately collapse. This is what the rule of law is intended to protect us
from. It is pivotal to the creation and promotion of social justice. In attempting to
bridge the two systems, we must recognize that they are already bound together by
this common thread.
13
Freedom of Conscience and Religion:
A Brief Reflection
Sumner B Twiss
Both Urfan Khaliq and Abdullah Saeed begin their respective essays (Chapters 10
and 11) by remarking that religious liberty is among the oldest human rights
recognized internationally. Indeed, some scholars go so far as to claim that freedom
of religion is the ‘mother’ of, or ‘midwife’ for, many other human rights.1 So, it is
somewhat disconcerting to learn that, within current international and regional
human rights systems, there appears to be a regressive tendency to permit state
restriction of the exercise of this right, as well as lack of clarity about, and devalu-
ation of, its meaning and importance. It is as if the contemporary human rights
community has lost sight of the core values represented by freedom of religion,
preferring instead to reframe the issues at stake through the lens of non-discrimin-
ation and to cede to states, through the wobbly doctrine of the margin of appreci-
ation, entirely too much power to restrict or otherwise infringe the exercise of
religious liberty in the interests of maintaining so-called public order and the like.
Urfan Khaliq is to be complimented for his clear exegesis and critical evaluation
of pertinent international and regional conventions (including non-binding declar-
ations) and associated oversight committees and court cases. I am particularly
struck by his repeated references to religious liberty as being based on, or at least
expressing, ‘the philosophical assumption that the individual as a rational being is
master of his or her destiny’, as well as his evident concern to protect ‘the forum
internum, the internal and private realm of individual choice’. Abdullah Saeed, for
his part, is also singularly informative in his deconstruction and critique of the
status and roles of apostasy and punishment in classical Islamic law. And, again,
I am especially struck by his later discussion of the Qur’anic conception of religious
freedom and its relationship to the themes of personal responsibility and moral
discernment.
Both of these points—being master of one’s own destiny and one’s personal
moral responsibility, respectively—lead me to reflect on the formula used by all the
relevant international documents: ‘freedom of thought, conscience, and religion’,
1 See, for example, John Witte, Jr, The Reformation of Rights: Law, Religion, and Human Rights in
Early Modern Calvinism (Cambridge: Cambridge University Press, 2007).
and especially the meaning and linkage of the latter two. I offer these reflections in
the spirit of trying to extend our authors’ discussions and their own evident
commitment to protecting religious liberty against unjustified restriction, coercion,
or other intrusion. I want, in short, to remind us all of the core values protected by
freedom of thought, conscience, and religion. With respect to the brief remarks that
follow, I should caution that I am neither an international legal scholar nor a
scholar of Islam, although I know a bit about both. Rather, I am a student of
comparative ethics whose work has taken a turn into human rights theory and
practice.
It is a little known fact that in debating the UDHR’s Article 1—regarding all
humans being born free and equal in dignity and rights and being endowed with
reason and conscience—various delegations of the Third Committee felt the need
to invoke Article 18, even before the committee actually discussed the latter article
on freedom of religion.2 This invocation of Article 18 stemmed from an attempt by
some delegations to include in Article 1 the language that ‘all human beings are
created in the image and likeness of God’ (as an ultimate justificatory appeal or
ground for human rights). Other delegates immediately objected and charged the
promoters of this ‘theological’ amendment with undertaking a course of action
bordering on religious coercion—‘an attempt to try to force one’s own faith on
others, reverting to concepts current at the time of the crusades’. The amendment’s
promoters, by contrast, took the position that ‘there is no need to fear the results of
such a reference to God, since freedom of religion is guaranteed in a subsequent
article [18] and all groups can still profess whatever faith or philosophy they
choose’. This line of argument proved unconvincing to the critics, and, even before
a vote could be taken, the proposed amendment was withdrawn. What I find
interesting about this exchange in the context of both Articles 1 and 18 is the way
that it draws attention to the nexus among the concepts of human dignity,
conscience, and freedom of religion.
This nexus is further developed in the Third Committee’s subsequent discussion
and debate about Article 18, which the vast majority of the delegations regarded as
one of the most important because it ‘ensured the inviolability of that profound
part of thought and conscience [i.e., religion]’ and ‘the integrity of individual beliefs
making it possible for each to determine his or her destiny’. Indeed, in their
discussion the delegations made some strong claims about mankind’s moral and
spiritual capacities, for example: ‘Even if the list of social, economic, political,
2 ‘Third Committee’ is shorthand for the Third Social and Humanitarian Committee of the
General Assembly, which met and debated the UDHR draft from September to December 1948.
The record of its deliberations was published in the Official Records of the Third Session of the General
Assembly, Part I, Social, Humanitarian and Cultural Questions, THIRD COMMITTEE, Summary
Records of Meetings 21 September–8 December, 1948 (Lake Success, NY: United Nations, 1948).
These records represent a historical summary of the proceedings, not necessarily a precise word-for-
word transcription of quotations from speakers. [Hereinafter, Third Committee.] The quotations in this
paragraph are from Third Committee, at 98 and 109. I have discussed some of the material in this and
the next paragraph in Sumner B Twiss, ‘Theology, Tolerance, and Two Declarations of Human
Rights: An Interrogative Comparison’ in F Adeney and A Sharma (eds), Christianity and Human
Rights: Influences and Issues (Albany: State University of New York Press, 2007), 55–75.
Freedom of Conscience and Religion: A Brief Reflection 257
and juridical rights of man were complete . . . . it would count for nothing if
men were denied freedom of thought and belief. Those were essential freedoms
which made life richer and constituted the supreme goal of all aspirations . . . the
freedom of thought and conscience ensured the integrity of inward beliefs and the
possibility for each individual to determine his destiny . . . [T]he freedom to change
his belief . . . might be at the root of a new spiritual impulse’. Moreover, ‘it was
pluralistic tolerance in every sphere of thought, conscience, and religion, which
should inspire men if they wanted to base their relations on benevolence and
justice’.3 The link between conscience and religion—and the protection thereof—
was apparently tightly drawn by the Third Committee delegates. How are we to
understand and conceptualize this link, and what, normatively speaking, is involved?
In order to answer these questions responsibly, it is crucially important to realize
that the language of ‘conscience’ looms rather large in the UDHR, not to mention the
Third Committee’s discussions about it. ‘Conscience’ is referenced in the Preamble
(‘barbarous acts which have outraged the conscience of mankind’), Article 1 (‘all
human beings . . . are endowed with reason and conscience’), and Article 18 (‘right to
freedom of thought, conscience, and religion’). With respect to the Preamble, con-
science is the touchstone whereby ‘disregard and contempt for human rights’ and their
sequelae are known to be wrong. In Article 1, conscience—along with reason—
provides the epistemic access for recognizing that people are free and equal in dignity
and rights and should act toward one another in the spirit of brotherhood.4 And, in
Article 18, conscience and religion are coordinated in such a way as to constitute a
sphere of thought and action—personal and social—that is to be protected, subject
only to certain limitations indicated in Article 29 (eg, respecting the basic rights of
others and maintenance of public order). So far as I can determine, the UDHR’s use of
‘conscience’ was intended by the framers to be a cross-cultural ‘bridge concept’ of sorts
between different world civilizations. Why do I say this?
Well, to take one example, the Chinese delegate PC Chang was the one who
recommended to the drafting committee that Article 1 include reference not only
to reason but also to ‘two-men-mindedness’ (his own English translation of the
Confucian term ren, which is also sometimes translated as ‘benevolence’), because,
in his view, human rights are discerned by reason as guided by a basic human
capacity for sympathy or compassion.5 Fundamentally, Chang’s vision here cap-
tures the Mencian notion of the heart-mind, which is a complex moral capacity
with affective, epistemic, and cognitive dimensions all combined into one. At the
3 Quotations in this paragraph are from Third Committee, 398–9.

4 For this particular interpretation of Article 1, I am indebted to Johannes Morsink, The Universal
Declaration of Human Rights: Origins, Drafting and Intent (Philadelphia: University of Pennsylvania
Press, 2000), 280–301; see also his more recent volume, Inherent Human Rights: Philosophical Roots of
the Universal Declaration (Philadelphia: University of Pennsylvania Press, 2009).
5 I have discussed Chang’s drafting contributions more extensively in Sumner B Twiss, ‘Confucian
Ethics, Concept-Clusters, and Human Rights’ in M Chandler and R Littlejohn (eds), Polishing the
Chinese Mirror, ACPA Series of Chinese and Comparative Philosophy (New York: Global Scholarly
Publications, 2008), 50–67, and ‘P.C. Chang, Freedom of Conscience and Religion, and the Universal
Declaration of Human Rights’ in A Sharma (ed), The World’s Religions After September 11, Vol 3: The
Interfaith Dimensions (Westport, CT: Praeger/Greenwood, 2009), 175–83.
suggestion of two other members of the drafting committee, the term ‘conscience’
was substituted for ‘two-men-mindedness’ (a cumbersome phrase in any case), with
the understanding that it represented an affective moral ‘knowing-with’ shared by
all normal (non-pathological) human beings, thus bridging Western and Eastern
thought: ‘conscience’ is the Western term, while ‘heart-mind’ is the Eastern one,
and both were conceived as referring to the same basic moral capacity. Various
delegations of the Third Committee also expressed this understanding of con-
science as a fundamental human moral capacity that is often (but not always or
necessarily) bound up with religious beliefs. Moreover, when discussing the articles
of the declaration, the delegates rather consistently spoke of human rights as being
necessary to avoid atrocities such as those committed by the Third Reich—actions
that ‘shock’ or ‘outrage’ the conscience. In effect, the delegations both used and
appealed to conscience in their own deliberations.
More, however, is at stake than a moral capacity, when considering the protec-
tions provided by Article 18. We have already encountered other concepts used by
the Third Committee delegates that appear to designate fundamental aspects of the
freedom of conscience and religion—eg, inviolability, profundity, integrity, des-
tiny, dignity, and spirituality—to which one could add still other, though more
implicit, features—eg, identity and vulnerability. In order to bring all of these
features together into one coherent account, I now want to make an unusual move
beyond the UDHR context and turn to that great 17th century defender of
religious liberty, Roger Williams. I do this for a simple reason: Williams’s account
of freedom of conscience and religion is the most sophisticated and vivid ever
written, based in part on his own experience of being a target of religious intoler-
ance. Moreover, his writings on the matter arguably influenced not only John
Locke but also, through Isaac Backus, early American thinking about what is at
stake in religious liberty. In very subterranean ways—for example, through reli-
gious NGOs and their backgrounds—Williams’s views may have subtly informed
the UDHR’s Article 18, but this suggestion is quite speculative on my part, and
I want to make it clear that I have no evidence for any direct influence. Entirely
aside from such speculation, however, I believe that Williams’s account is remark-
ably consistent with the UDHR’s treatment of freedom of conscience and religion,
and it certainly highlights the basic values that I am interested in emphasizing.
Roger Williams argues that conscience is a natural internal faculty with access to
moral knowledge essential to the formation of personal moral identity, which, in
turn, may also involve significant religious convictions of potentially diverse sorts,
ranging across, for example, the Abrahamic faiths, paganism, bioregional spiritual-
ity (eg, Native American), and even atheism.6 Conscience in this sense is, according
to Williams, ‘the man’, the essential core of every moral personality that defines
6 I have discussed Williams’s views in a yet to be published essay, ‘Roger Williams and Freedom of
Conscience and Religion as a Natural Right’, first delivered at Harvard University and slated for
inclusion in a book on religion and public policy. The most readily available source of Williams’s
writings is James Calvin Davis (ed), On Religious Liberty: Selections from the Works of Roger Williams
(Cambridge: Harvard University Press, 2008). The most complete collection of Williams’s writings—
in their original, somewhat archaic English—is the facsimile version republished as The Complete
who he is for both himself and others. It involves relationships of trust and intimacy
as well as ties to the broader social community. It also involves, as Martha
Nussbaum has eloquently argued, a search or quest for life’s meaning in response
to deep existential questions about life and death, suffering and evil, personal and
human destiny, and proper comportment in the world (morality).7 This identity
not only involves definitive moral and religious convictions, epistemically speaking,
but also the manifestation of those convictions in the public world of social
relations; for Williams, belief and action are inextricable.
Such identity is, in principle, open to change by means of evidence, argument,
and personal experience, and resistant to (and justly resentful of) coercion by
others. At best, the latter may result in changes of behavior—whether by restraint
from behavior that manifests a person’s core convictions or by constraint to new
modes of behavior that are cognitively dissonant with the person’s core convictions.
Williams suggests that compelled behavior against a person’s core convictions can
in fact damage the conscience in the sense that compulsion can cause the person to
betray his or her core convictions (self-betrayal) and to betray conviction-related
and equally defining intimate and social relationships (betrayal of others or a
community). Over time, betrayal of self and of others not only will erode a person’s
moral and religious identity but also can destroy it. Here one could think of such
betrayals as leading to a severe identity crisis wherein the person loses all of his or
her moorings—moral and religious—in effect, as Williams puts it, ‘dulling’ or
sidetracking ‘the honest conscience’. Such a prospect explains why Williams regards
the conscience as ‘the tenderest part’ of a person: it is vulnerable to significant
damage from compulsion.
Vulnerability to such damage applies equally to the moral-religious identity of
individual persons and entire communities, according to Williams. Involving as it
does such self-betrayal—whether personal or communal—compulsion is so ser-
ious, from his perspective, as to amount to heinous crimes begging comparison
with rape and piracy, with rape being understood as an intrinsic violation of a
person’s bodily integrity, and piracy being understood as an intrinsic violation of
a ship’s company (crew and passengers) and its fundamental security and integrity
while at sea. Williams actually uses the terms ‘soul-rape’ and ‘piracy’: soul-rape or
defilement is a radical assault on the very core of a person, and piracy is an attack on
the shared moral and religious identity of an entire collectivity. Williams conceives
of such assaults as ranging across a spectrum of severity, for example, from taxation
and civil penalty to imprisonment and torture (or worse).
Regardless of their degree of severity, all such means of compulsion are, from
Williams’s point of view, assaults on personal and communal identity and are to be
condemned unless the targeted person or community is engaged in behavior
violating the fundamental rights of others or seriously threatening the welfare of
Writings of Roger Williams in Seven Volumes (reprinted by The Baptist Standard Bearer, 2005, and
Wipf and Stock Publishers, 2007).
7 See Martha C Nussbaum, Liberty of Conscience: In Defense of America’s Tradition of Religious
Equality (New York: Basic Books, 2008), 19–20 and 168–70.

civil society; for Williams, the threshold standard for such threat is quite high, since
he speaks of it as a kind of attempted ‘tyranny’ of others. With these sole excep-
tions, no civil magistrate has the legitimate authority to compel religious individuals
or groups to believe and act according to lights other than their own, that is, to
compel such belief and its exercise from or to any religion other than the individ-
ual’s and group’s own conscience. As Williams writes:
I aske whether the Office of Kings and Queens, &c. be not (in the Ship of all Commonweals
in the World) merely and essentially Civil, just as the Office of a Captain or Master of a Ship
at Sea, who ought of all his Passengers to be honoured and respected, paid and rewarded for
his service: But as to the Consciences of the Passengers, whether Jews, Turks, Persians,
Papans, Papists, Protestants, &c. whom he transports Port to Port upon a civil account of
payment and recompense; I ask whether he go beyond the Sphere of his Activity, if he act by
any authoritative restraining them from their own Worship, or constraining them to his?8
In effect, then, Williams appears to be arguing that freedom of conscience and
religion is an immunity right for persons and communities, which imposes on
others—especially the state and civil society—the duty of non-interference, subject,
of course, to the limitations mentioned above. The point is that, for Williams,
freedom of conscience and religion has the function of projecting for persons and
communities a sphere of sovereignty in the world because of their fundamental
interests in having, maintaining, modifying, and expressing through action an
integral moral and religious identity in their quest for life’s meaning. While
Williams’s position was in fact a theologically based natural rights argument for
freedom of conscience and religion,9 it seems possible to re-envision it in a non-
theological manner in terms of human dignity and identity-formation around
conscientious beliefs, or, in the words of the declaration on eliminating religious
discrimination and intolerance, ‘one of the fundamental elements in the person’s
conception of life’. I interpret this latter language to refer to a person’s—and by
extension a community’s—moral-religious identity. Williams’s arguments and
images appear to precisely encapsulate what violation of conscience and religion
entails—soul-rape and piracy—thus providing an explication of the basic values at
stake in religious liberty, values that I believe ought to be foregrounded in all future
discussion and decision-making about such matters. The significance of these
values, like other human rights, is best appreciated by realizing what is at stake in
their violation.
I believe that Urfan Khaliq and Abdullah Saeed would agree with much of what
I have said. According to the latter, ‘The Qur’an not only recognized the diversity
of religious traditions . . . but also acknowledged that these belief systems were
8 Roger Williams, ‘The Examiner defended, in A Fair and Sober Answer to The Two and Twenty
Questions which lately examined the Author of Zeal Examined ’ reprinted in The Complete Writings of
Roger Williams, Volume Seven, ed P Miller (Eugene, OR: Wipf and Stck Publishers, 2006), 209
(original spelling, capitalization, and italics).
9 Williams in fact develops four lines of argument, which I call ‘divine right and will’, ‘natural
justice’, ‘inviolability of conscience’, and ‘consensual government’, but I have been dealing here only
with the third, since I believe that it is most profound as well as of contemporary relevance.
important to the people who practiced them’ and that ‘coercion goes against the
nature of Islam’, because ‘[e]ach person is given the capacity to discern right from
wrong, and it is a personal decision as to which belief system, if any, a person
chooses to follow’.10 Hence, civil punishment for apostasy from Islam is summarily
ruled out. Urfan Khaliq appears to go a bit further when he castigates those state
agents who would try to restrict the obligatory or even voluntary acts inherent to
religious or other conscientious belief without showing in any convincing way that
such acts actually threaten the fundamental rights of others or the public order and
general welfare of society. It is frankly laughable that the wearing of turbans or
headscarves, for example, pose such threats, and he is absolutely correct in saying
that attempts to limit these manifestations of belief ‘means that the forum internum
is not fully insulated in the sense that Article 9 [of the European Convention]
requires’. I myself, in line with Roger Williams, am inclined to use stronger
language and would say that such restrictions are actual assaults on people’s
moral and religious identity.
Were the Irish Catholic cross of St Brigid that I wear around my neck denied to
me by the state I would regard this act as an assault on my personal identity,
integrity, and dignity, as well as an assault on my intimate relationships as part of
that identity—my wife gave me the cross at a crucial time in my life—and my
identity ties with the community symbolized by the cross itself. Openly wearing
this cross is part of who I am and how I choose to manifest my self-understanding
and very being in the world, without posing any threat to the basic rights of
others or the broader society. I suspect that all others of good conscience would
feel similarly violated if the state so intruded on their moral-religious identities.
Williams’s image of soul-rape as violation of conscience, belief, and action, through
coercive restriction—without consent or weighty overriding reasons—seems to me
exactly right.
10 Here I am reminded of the discussion of fitra (innate moral-religious disposition) and qalb (heart
and seat of consciousness) by the Islamic scholar, Abdulaziz Sachedina, in his chapter on freedom and
conscience in the Qur’an, in D Little, J Kelsay, and A Sachedina, Human Rights and the Conflicts of
Culture: Western and Islamic Perspectives on Religious Liberty (Columbia, SC: University of South
Carolina Press, 1988), 53–90.
PART IV
GENDER EQUALITY
For human rights activists, the issue of gender equality is one of the most troubling
aspects of Islamic law and a common point of debate and contention in the human
rights literature. Throughout the Muslim world, various states implement family
law statutes (al-ahwal al-shakhsiyya) that instantiate certain inequalities between
men and women which are drawn from historical Islamic legal doctrines (fiqh).
Rules on divorce, child custody, and financial responsibilities and entitlements
reflect a historical paradigm of patriarchy that conflicts with a human rights
tradition that has endeavored to reverse the effects of patriarchy on the freedom
of women and girls around the world to live fulfilling lives.
This international legal context fuels debates both inside and outside of the
Muslim world about the place for Islam and Islamic law. The debate occurs in the
Muslim world between reformists who seek to change the legislative status quo in
favor of a more egalitarian legal regime, as well as among Muslim minority commu-
nities, such as in Europe and North America, where Muslims may seek to manifest
their religious commitments by abiding by various dictates of Islamic law. In the
latter case, the human rights debate about Islamic law has led political pundits all too
often to elide questions about gender and Islamic law with ongoing debates about
immigration and multicultural policies of the state. The polemical debates that arose
in response to the proposal for Islamic family arbitration in Ontario, Canada and the
speech by Archbishop Rowan Williams about similar accommodations for British
Muslims are merely two illustrative examples.1 The fervor around whether scope
exists for ‘reasonable accommodation’ has been fueled, at least in part, by concerns
about whether accommodating traditional religious practices only reifies the subser-
vient role of women within religious minority communities. Indeed, this fervor has
led some to ask whether multiculturalism is bad for women.2
In the Muslim world, the ongoing struggle for women’s equality is pursued on
multiple fronts. In some cases, the front line of gender reform pits ‘Islamists’ against
1 See for instance, Natasha Bakht, ‘Were Muslim Barbarians Really Knocking on the Gates of
Ontario?: The Religious Arbitration Controversy—Another Perspective’ (2005) Ottawa Law Review,
40th Anniversary 67–82; Rex Ahdar and Nicholas Aroney (eds), Shari’a in the West (Oxford: Oxford
2 Josua Cohen, Matthew Howard, and Martha G Nussbaum (eds), Is Multiculturalism Bad for
Women? (Princeton: Princeton University Press, 1999).

264 Gender Equality
human rights activists. In other cases, though, both come together in a reform
agenda that works from within the Islamic tradition toward an agenda of gender
equality that respects the fact that women do not need to choose between their
identities as women and as devout Muslims. In other words, to be a woman
deserving of equal regard as others need not mean leaving one’s faith commitments
behind.
The articles in Part IV not only outline different campaigns for gender equality,
but also illustrate the different vantage points from which such campaigns can and
do start. Gender justice activists operating from the perspective of a secular human
rights perspective now share an international stage with religiously committed
activists seeking gender equality and justice, but from within a faith tradition.
The demarcations between secular and religious, modern and traditional, Western
and Eastern begin to melt away once the particular campaigns for gender justice are
viewed in the legal and political context in which they operate. Indeed, the chapters
in Part IV collectively show that the pursuit of women’s equality—and indeed the
very idea of equality—cannot be understood without greater attention to the
context in which equality is advocated. In particular, whether in the Muslim
world, India, or the United States, the pursuit of gender equality is in each case
situated in a larger contest about the identity of the citizen and the nation.
14
Un-Veiling Equality: Disciplining
the ‘Other’ Woman Through
Human Rights Discourse
Ratna Kapur
A. Introduction
The right to gender equality has been a site of political and socio-religious struggle
and controversy in the global human rights arena as well as in a number of domestic
jurisdictions. The struggle to secure the right to gender equality has had many
enemies, and increasingly these opponents to gender equality are waging their
battle not in opposition to equality, but in and through it. Gender equality remains
a site of intense political contestation in which right wing religious and fundamen-
talist forces endeavor to claim the terrain as their own. At the same time, the pursuit
of gender equality even by so-called progressive groups such as feminists or human
rights advocates has not necessarily proved liberating and has often been limited by
a woman-centered approach that reproduces gender and cultural essentialism.
Feminists and human rights advocates have engaged with human rights law with
a faith in its ability to promote gender equality and provide an important impetus
to nation-states and domestic jurisdictions to address gender injustice and inequal-
ity.1 Drawing on the extensive scholarship that already exists exposing how the
international legal regime and human rights remain androcentric and exclusive,
I further interrogate the faith that continues to inform human rights scholarship
and advocacy in relation to gender equality.2 I argue that such faith obscures the
1 See Ladan Askari, ‘Girls’ Rights under International Law: An Argument for Establishing Gender
Equality as a Jus Cogens’ (1998) 8 S Cal Rev L & Women’s Stud 3 at 7–8, 41–2. See generally Charlotte
Bunch, Samantha Frost, and Niamh Reilly, ‘Making the Global Local: International Networking for
Women’s Human Rights’ in Kelly D Askin and Dorean Koeing (eds), Women’s International Human
Rights: A Reference Guide (New York: Transnational Publications, 1999) (discussing the development
of the women’s human rights movement through the mechanism of international conferences).
2 See Hilary Charlesworth, ‘Feminist Methods in International Law’ (1999) 93 Am J Int’l L 379,
381; Hilary Charlesworth, ‘The Mid-Life Crisis of the Universal Declaration of Human Rights’ (1998)
55 Wash & Lee L Rev 781. Some feminist scholars have argued how human rights has reproduced
gender stereotypes and gender essentialism: Dianne Otto, ‘The Exile of Inclusion: Reflections on
Gender Issues in International Law Over the Last Decade’ (2009) 10(1) Melbourne J Int’l L 7.
266 Gender Equality
gender and cultural assumptions on which the right to gender equality is based. My
argument puts into question the idea that gender equality is always and invariably a
progressive and emancipatory project for all women that can be realized through
the achievement of full civilizational maturity and removal of what are deemed as
barbaric or backward cultural practices. Rather, I expose how the right to equality is
a discursive terrain where competing understandings about gender and culture are
produced.3 Instead of casting the resistance to gender equality in terms of cultural
or religious opposition, I move beyond a mere concern over the legitimacy of a
cultural practice, such as the veil, to a focus on the need to engage with the deeper
discursive and normative concerns that shape and structure the right to gender
equality. I argue that majoritarianism as well as essentialist assumptions about
gender and culture operate in and through the right to gender equality, illustrating
my argument through a discussion on the rights of Muslim women in postcolonial
India in the context of the emergence and forceful advocacy of the Hindu Right as
well as the politics surrounding the ban on the veil in France.
In the first section of this essay, I examine the different approaches to equality and
gender that have evolved in law and the meaning of equality that has informed the
Convention on the Elimination of All Forms of Discrimination Against Women
(hereinafter CEDAW). In the second section, I look at the limits of the different
models of equality, focusing on the gender and cultural essentialism that informs these
different models. In the third section I discuss how the complex and contradictory
relations between gender, equality, and human rights play out in the context of
Muslim women’s rights in India and the Hindu Right’s discourse on gender equality.
The discussion exposes the discursive and normative challenges posed to gender
equality, where the right to equality can be used to demonize the Muslim community
in relation to its treatment of women, while at the same time serving as a mechanism to
discipline and regulate all women. In the final section, I ask if it is possible to articulate
Muslim women’s rights to equality in human rights law without either reinforcing
gender and cultural stereotypes or falling back into well worn and unhelpful binaries of
us and them, here and there, universality and cultural relativism.
B. What is equality?
Equality has been a highly contested concept in liberal legal regimes, and there is no
consensus on its meaning in international human rights law.4 While most international
3 Penelope Andrews, ‘Violence Against Aboriginal Women in Australia: Possibilities for Redress
Within the International Human Rights Framework’ (1997) 60 Alb L Rev 917, 934. Also see L Amiede
Obiora, ‘Feminism, Globalization, and Culture: After Beijing’ (1997) 4 Ind J Global Legal Stud 355
(discussing the tension between universality and cultural relativism and the difficulties this produces in
addressing the human rights of women.)
4 Wouter Vandenhole, Non-Discrimination and Equality in the View of the UN Treaty Bodies
(London: Hart Publishing, 2005). On the meaning of equality and the question of non-discrimination
adopted by the Human Rights Committee, see General Comment No 18 of the Human Rights
Committee in UN Doc HRI/GEN/1/Rev.5, Compilation of General Comments and General Recom-
mendations adopted by Human Rights Treaty Bodies, pp 134–7.
Un-Veiling Equality: Disciplining the ‘Other’ Woman 267
human rights conventions and covenants contain articles that protect the right to
equality, they tell us very little about the specific content of equality. There has not been
any general agreement within political and legal theory as to the meaning of equality.
While particular understandings of equality have been dominant at different times,
equality has always eluded any simple or uniform definition.
While the different approaches to equality have been exhaustively discussed in
the literature, I will briefly set out the two dominant positions evident in legal
jurisprudence through which international human rights guarantees can be under-
stood: a formal approach and a substantive approach.5 I will discuss these compet-
ing approaches and then examine the question of the relevance of gender difference
within these models of equality.
In the formal approach, equality is seen to require equal treatment—that is to say
that all those who are the same must be treated the same.6 It is based on treating likes
alike. The dominant expression of this approach to equality in law is in terms of the
similarly situated test—that is the requirement that ‘those [who are] similarly
situated be treated similarly’.7 Within this approach, equality is equated with
sameness.8 Only individuals who are the same are entitled to be treated equally.
Any differential treatment as between individuals or groups who are the same is seen
to constitute discrimination.9 The similarly situated test requires that the Court or
other relevant body begin by defining the relevant groups or classes for comparison.
This initial definitional step can preclude any further equality analysis. If the
individuals or groups in question are seen as different, then no further analysis is
required; difference justifies the differential treatment.10 Accordingly, when groups
are not similarly situated, then they do not qualify for equality even if the differences
among them are the product of historic or systemic discrimination.11
5 There are many other contests including equality of opportunity versus equality of outcome, or
equality of process versus equality of results. See Kimberle W Crenshaw, ‘Race, Reform, and Retrench-
ment: Transformation and Legitimation in Antidiscrimination Law’ (1988) 101 Harv L Rev 1331.
6 Formal equality is at the centre of liberal feminist goals in relation to women’s equal participation
in politics, employment, the economy, and education: Nicola Lacey, ‘Legislation Against Sex Discrim-
ination: Questions from a Feminist Perspective’ 91987) 14 J L & Soc’y 411, 413.
7 Joseph Tussman and Jacobus tenBroaek, ‘The Equal Protection of the Laws’ (1948) 37 Calif
L Rev 341; Y R Haragopai Reddy, ‘Equality Doctrine and the Indian Constitution’ (1982) Andhra Law
Times 57 (who has similarly written that ‘all persons are to be treated alike, except where circumstances
require different treatment’, at 58).
8 Beth Gaze, ‘Some Aspects of Equality Rights: Theory and Practice’ in B Gilligan and C J
G Sampford, Rethinking Human Rights 189, 190 (Leichhardt: Federation Press, 1997).
9 As Parmanand Singh states, ‘ . . . legal equality requires the absence of any discrimination in the
words of the law’: ‘Equal Opportunity and Compensatory Discrimination: Constitutional Policy and
Judicial Control’ (1976) 18(2) J Indian L Inst 300 at 301. Similarly, Dwiredi defines equality as
signifying ‘that among equals law should be equal and equally administered’: K C Dwiredi, Right to
Equality and the Supreme Court (Delhi: Deep, 1990).
10 Gwen Broadsky and Shelagh Day, Canadian Charter Equality Rights for Women: One Step
Forward or Two Steps Back? (Ottawa: Canadian Advisory Council on the Status of Women, 1990)
at 153 and 155. See generally Christine Littleton, ‘Equality and Feminist Legal Theory’ (1987) 48
Univ of Pittsburgh L Rev 1043.
11 Martha Minow, ‘Learning to Live with the Dilemma of Difference: Bilingual and Special
Education’ (1985) 48 L & Contemp Prob 157. In exploring the problematic connection between
equality and sameness, Minow has observed that ‘[t]he problem with this concept of equality is that it
268 Gender Equality
In contrast, the focus of a substantive equality approach is not simply with the
equal treatment of the law, but rather with the actual impact of the law.12 The
objective of substantive equality is the elimination of the substantive inequality of
disadvantaged groups in society. It permits a deviation from strict equality.13 As
Parmanand Singh notes, substantive equality ‘takes into account inequalities of
social, economic and educational background of the people and seeks the elimin-
ation of existing inequality by positive measures’.14 The focus of the analysis is not
with sameness or difference, but rather with disadvantage. Substantive equality is
directed at eliminating individual, institutional, and systemic discrimination
against disadvantaged groups which effectively undermines their full and equal
social, economic, political, and cultural participation in society.15 It is intended to
ensure that those who are powerless, excluded, and disadvantaged are able to enjoy
dignity, respect, access to resources, physical security, membership in the commu-
nity, and power.16 The central inquiry of this approach is whether the rule or
practice in question contributes to the subordination of the disadvantaged group.
The shift in focus from sameness and difference to disadvantage significantly
broadens equality analysis. For example, within a formal equality model, the
difference between persons with physical disabilities and persons without disabil-
ities could preclude an equality challenge. Because persons with disabilities are
different, they do not have to be treated equally.17 Within a substantive equality
makes the recognition of difference a threat to the premise behind equality. If to be equal you must be
the same, then to be different is to be unequal’: ‘Learning to Live with the Dilemma of Difference’ at
207. See also Martha Minow, Making All the Difference (Cambridge: Harvard University Press, 1991).
12 As Maureen Maloney has stated ‘Such inequality results from provisions which though seemingly
neutral in their application (and therefore conforming to notions of formal equality) in reality result in
discrimination. Certain provisions have the effect of discriminating between men and women because
in practice they only affect women’: Maureen Maloney, ‘An Analysis of Direct Taxes in India:
A Feminist Perspective’ (1988) 30(4) J Indian L Inst 397. Kapur and Cossman state that substantive
equality has been defined as being ‘directed at eliminating individual, institutional and systemic
discrimination against disadvantage groups which effectively undermines their full and equal social,
economic, political, and cultural participation in society’: Ratna Kapur and Brenda Cossman, Subver-
sive Sites: Feminist Engagements with Law in India (New Delhi: Sage, 1996), 176.
13 Warwick McKean, Equality and Discrimination under International Law (Oxford: Oxford

14 Singh, ‘Equal Opportunity and Compensatory Discrimination’ at 301. He describes this
approach as one of equality in fact, or compensatory discrimination.

15 See Katherine Lahey, ‘Feminist Theories of (In)Equality’ in S Martin and K Mahoney (eds),
Equality and Judicial Neutrality (Toronto: Carswell, 1987). Lahey argues that courts must adopt an
approach which considers the effect of the rule or practice being challenged, to determine whether it
contributes to the actual inequality of women, and whether changing the rule will actually produce an
improvement in the specific material conditions of the women affected: ‘Feminist Theories of (In)
Equality’ at 71. See also Savitri Goonesekere, The Concept of Substantive Equality and Gender Justice in
South Asia, available online at <http://www.unwomensouthasia.org/assets/The-Concept-of-Substan-
tive-Equality-final-31-12-072.pdf>.
16 Beverly Baines, ‘Equality, Comparison, Discrimination, Status’ in F Faraday, M Denike, and
K Stephenson (eds), Making Equality Rights Real: Securing Substantive Equality Under the Charter
(Toronto: Irwin Law, 2006), 73–98.
17 This model of equality enables distinctions to be drawn on fairly arbitrary grounds. In early
constitutional law in the United States, the Supreme Court refused to strike down public transport
legislation that provided for segregation between blacks and whites on the ground that segregation did
not imply inferiority of either group, but provided separate but similar facilities for each group: Plessey v
model, however, the focus is not on whether persons with disabilities are different,
but rather, on whether their treatment in law contributes to their historic and
systemic disadvantage. Differences do not preclude an entitlement to equality, but
rather, they are embraced within the concept of equality. Within this model of
equality, differential treatment may be required ‘not to perpetuate the existing
inequalities, but to achieve and maintain a real state of effective equality’.18 Thus,
the failure of a rule or practice to take into account the particular needs of disabled
persons, and thus perpetuate the historic disadvantage of this group, would consti-
tute discrimination and violate their equality rights. Substantive equality demands
that rules take into account these differences to avoid outcomes that are unfair. At
the same time it is not an easy matter to determine what differences ought to be
taken into account.19
C. What is gender equality?
The debate over the meaning of equality is further complicated in the context of
women and gender equality.20 There is no singular position on gender equality and
a wide spectrum of perspectives and theoretical positions exist amongst feminist
legal theory scholars. The prevailing conception of equality as sameness has led to a
focus on the relevance of gender difference. If women and men are different, then
how can they be treated equally? But if they are treated differently, then what
becomes of the principle of non-discrimination on the basis of sex?21 Does human
Ferguson, 163 US 527 (1896). The model of ‘likes should be treated as alike’, emphasized the sameness
in treatment without regard to the impact of the provisions.
18 R K Gupta, ‘Justice: Unequal but Inseparate’ (1969) 11 J Indian L Inst 57 at 76; Arvind Sharma,
Reservations and Affirmative Action: Models of Social Integration in India and the United States (New
Delhi: Sage, 2005), 98–9.
19 The debate over competing visions of equality was the subject of political controversy in the early
1980s with the Mandal Commission, and reservations for scheduled and backward castes. The Mandal
Commission was set up by the government in 1979 to ‘identify the socially and educationally
backward sections of society and question whether seat reservations and quotas was an appropriate
mechanism to redressing caste based discrimination’. The Commission supported the practice of
affirmative action based on quotas for lower castes, which gave exclusive access to a certain portion
of government jobs as well as slots in public universities. Mandal recommended increasing existing
quotas from 22% to 49.5%. A debate raged between two opposing positions. On one side, it was
argued that reservations violated equality—that equality required that everyone be treated equally:
P Radhakrishanan, ‘In Defence of Mandal Commission’ (1982) Economic and Political Weekly 1094, 3
July. See also Kunal Sen, Ira Gang, and Myeong-Su Yun, Was the Mandal Commission Rights? Living
Standard Differences Between Backward Classes and Other Social Groups in India (Bonn: Institute for the
Study of Labour, 2008) available online at <http://ftp.iza.org/dp3453.pdf> accessed 14 April 2010.
On the other side, it was argued that reservations were fundamental to equality—that equality required
that disadvantaged groups be treated differently: Shri Ram Maheswari, The Mandal Commission and
Mandalisation: A Critique (New Delhi: Ashok Kumar Mittal, 1991). These debates highlighted the
difference between the two models of equality, as well the extent to which the concept of equality is a
site of contested meanings within Indian law and politics, as well as elsewhere.
20 Goonesekere, ‘The Concept of Gender Justice in South Asia’.
21 Catharine MacKinnon has done an incisive critique of formal equality in the context of gender
and argues in favor of a model that recognizes how relations between men and women are based on
power manifest in sexual relations and the sexual violence that women experience in their everyday
270 Gender Equality
rights law require women and men to be treated the same? Those are but a few of
the questions that have arisen in relation to the relevance of gender difference.
At least three very different approaches to the question of gender difference have
been identified: protectionist, sameness, and compensatory. In the first approach,
women are understood as different from men—more specifically, as weaker, subordin-
ate, and in need of protection. In this approach, any legislation or practices that treat
women and men differently can be justified on the basis that women and men are
different, and that women need to be protected. Virtually any differential treatment of
women is deemed to protect, and thus benefit, women. This approach tends to
essentialize difference—that is to say—to take the existence of gender difference as
natural and inevitable. There is no interrogation of the basis of the difference or
consideration of the impact of the differential treatment on women. In the name of
protecting women, this approach often serves to reinforce their subordinate status.
The second approach is an equal treatment or sameness approach. In this
approach, women are understood as the same as men—that is to say—for the
purposes of law—they are the same and must be treated the same.22 In this
approach, any legislation or practice that treats women differently than men is
seen to violate the equality guarantees. This sameness approach has been used to
strike down provisions that treat women and men differently. It has, however, also
been used to preclude any analysis of the potentially disparate impact of gender
neutral legislation. According to the sameness approach, it is sufficient that women
and men be treated equally in a formal way. Any recognition of gender difference in
the past has been perceived as a tool for justifying discrimination against women.
Some feminists have endorsed a gender-neutral approach to equality, according
to which, gender difference ought to be irrelevant, and women ought to be treated
exactly the same as men.23 According to this view, any recognition of gender
difference in the past has simply been a justification for discriminating against
women. Advocates of this approach argue that so-called ‘special treatment’ has
historically been a double-edged sword. That is, under the guise of protection, it has
been used to discriminate against women. Any recognition of differences between
women and men, and any attempt to accommodate those differences, is seen to
provide a justification for continued unequal and discriminatory treatment.24 They
lives: Catharine MacKinnon, Feminism Unmodified: The Discourses on Life and Law (Cambridge:
Harvard University Press, 1987).
22 Wendy Williams, ‘The Equality Crisis: Some Reflections on Culture, Courts, and Feminism’ in
K T Bartlett and R Kennedy (eds), Feminist Legal Theory: Readings in Law and Gender (Boulder,
Colorado: Westview Press, 1991), 15 (originally published at (1982) 7 Women’s Rights L Rptr 175);
Jahwari argues ‘The true meaning of the principle of equality between men and women is that certain
natural differences between men and women [are] to be treated as normally irrelevant in law; . . .
consequently [these differences are] not to be treated as constituting in [themselves] sufficient
[justifications] for unequal treatment’: S Jahwari, ‘Women and Constitutional Safeguards in India’
(1979) 40(11) Andhra Law Times J 1, at 1.
23 See for example, Williams, ‘The Equality Crisis’ and Wendy Williams, ‘Equality’s Riddle and
Pregnancy and the Special Treatment/Equal Treatment debate: Towards a Redefinition of Sexual
Equality’ (1981) 95 Harv L Rev 487.
24 See n 23.
point to the use of gender difference in the past in prohibiting women to vote, be
elected to government, be admitted to the legal profession, and other such partici-
pation in the economic, political, and cultural dimensions of society.
In the third approach, women are understood as a historically disadvantaged
group, and as such, in need of compensatory or corrective treatment. Within this
approach, gender difference is often seen as relevant and as requiring recognition in
law.25 It is argued that a failure to take difference into account will only serve to
reinforce and perpetuate the difference and the underlying inequalities. In this
approach, rules or practices that treat women differently from men can be upheld if
such rules or practices are designed to improve the position of women. If, however,
the legislation or practice is based on a stereotype or assumption that women are
lesser, weaker, or in need of protection, it would not be upheld.
The proponents of a compensatory approach attempt to illustrate how the
ostensibly gender neutral rules of the formal equality approach are not gender
neutral at all—but rather, based on male standards and values. As Nadine Taub has
argued, ‘rules formulated in a male-oriented society reflect male needs, male
concerns and male experience’.26 In such a model, women will only qualify for
equality to the extent that they can conform to these male values and standards.
Thus, the compensatory approach argues that gender differences must be taken
into account in order to produce substantive equality for women.27
While CEDAW has primarily adopted a substantive model of equality,28 there
are elements of a formal model evident in the text.29 General Recommendation 25
adopted by the CEDAW Committee makes clear that CEDAW aims to eliminate
25 Patricia Cain, ‘Feminism and the Limits of Equality’ (1991) 24 Georgia L Rev 803; Herma Hill
Kay, Equality and Difference: The Case of Pregnancy (1985) 1 Berkeley Women’s L J 1; Sylvia A Law,
Rethinking Sex and the Constitution (1984)132 U Pa L Rev 955; Martha A Fineman, ‘Evolving Images
of Gender and Equality: A Feminist Journey’ (2009) 43 New England L Rev 437.
26 Nadine Taub, Book Review (1980) 80 Colum L Rev 1686 at 1694; Wendy Williams and Nadine
Taub, ‘Will Equality require more than Assimilation, Accommodation, or Separation from the
Existing Social Structure?’ in P Smith (ed), Feminist Jurisprudence (New York: Oxford University
Press, 1993), 48–56; Brodsky and Day, Canadian Charter Equality Rights for Women, 149.
27 In recent years there has been a considerable rethinking of equality in light of the fact that little
seems to have changed in women’s lives despite the advocacy for gender equality. See for example,
Rosemary Hunter, Rethinking Equality Projects in Law: Feminist Challenges (Onati International Series
in Law and Society) (London: Hart, 2008).
28 See Rebecca J Cook and Susannah Howard, ‘Accommodating Women’s Differences Under the
Women’s Anti-Discrimination Convention’ (2007) 56 Emory LJ 1039, 1043–8 (explaining how

CEDAW envisions transformative and substantive equality); see also Sandra Fredman, ‘Beyond the
Dichotomy of Formal and Substantive Equality: Towards a New Definition of Equal Rights’ in Ineke
Boerefijn et al (eds), Temporary Special Measures: Accelerating De Facto Equality of Women Under Article
4(1) UN Convention on the Elimination of All Forms of Discrimination Against Women (Oxford: Hart
Publishing, 2003) (arguing that formal equality is insufficient because it fails to address societal
structures that perpetually disadvantage women because of their difference to men and noting that
CEDAW, by its very title, does not seek to abolish all gender distinctions, but rather to eliminate
discrimination) at 115–16.
29 For example CEDAW calls on governments to enact ‘temporary special measures aimed at
accelerating de facto equality between men and women’ and stated that such laws would not be
considered discriminatory (Art 4, para 1). The clause can be read as treating special measures as an
exception to equality rather than as integral to equality. It also stresses the ‘termporariness’ of these
measures, which again implies that the preferable standard is ‘sameness in treatment’.
272 Gender Equality
de jure and de facto discrimination,30 that is, to ‘achieve equality of result’ and
redistribute resources and power between men and women.31 CEDAW acknow-
ledges the role of gender difference in producing disadvantage, without reinforcing
those differences to preclude women from access to and enjoyment of equality.
Despite the fact that CEDAW has adopted a more robust approach to gender
equality, it is limited by essentialist assumptions about both gender and culture that
have come to inform women’s human rights advocacy on gender equality.32 In the
following discussion I will excavate some of the deeper discursive and normative
practices that put into question the role of gender equality as a tool of emancipation
for all women, and implicate it in producing the very oppositions between human
rights and Islam by foregrounding a sameness approach to equality and a protec-
tionist approach towards Muslim women.
D. Limits to gender equality: discursive

and normative dimensions
The achievements of the women’s human rights movement culminated in the 1993
Vienna World Conference on Human Rights, which marked a turning point for
both the international women’s rights movement and the human rights movement.
The conference recognized the full and equal participation of women in political,
civil, economic, social, and cultural life at the national, regional, and international
level.33 Article 39 of the Vienna Declaration specifically urged states to withdraw
reservations to CEDAW, and it recognized that the artificial line drawn between
the public and private sphere had eclipsed certain gender-specific issues, which had
been left out of the human rights arena.34
Claims to gender equality and the idea of ‘women’s’ human rights were premised
on a critique of human rights law as adopting the ‘male’ sex as the standard against
which all others were to be judged and conceived as a set of ‘male’ rights, that is,
30 General Assembly, Report of the Committee on the Elimination of Discrimination Against Women,
P 4, UN Doc A/59/38/Annex (2004).

31 Report of the Committee on the Elimination of Discrimination Against Women at 9.
32 Ivana Radacic, ‘Gender Equality: Jurisprudence of the European Court of Human Rights’
(2008) 19(4) European J Int’l L 841; Madhavi Sunder, ‘Piercing the Veil’ (2008) 112 Yale LJ 1399
(2003).
33 Article 18 of the declaration provides ‘The human rights of women and of the girl-child are an
inalienable, integral and indivisible part of universal human rights. The full and equal participation of
women in political, civil, economic, social and cultural life, at the national, regional and international
levels, and the eradication of all forms of discrimination on grounds of sex are priority objectives of the
international community’.
34 Karen Engle, ‘After the Collapse of the Public/Private Distinction: Strategizing Women’s Rights’
in D G Dallmeyer (ed), Reconceiving Reality: Women and International Law (Washington DC:
American Society of International Law, 1993) at 143; Celina Romany, ‘Women as Aliens:
A Feminist Critique of the Public/Private Distinction in International Human Rights Law’ (1993) 6
Harv Human Rights J 87; Catharine MacKinnon, ‘On Torture: A Feminist Perspective on Human
Rights’ in K Mahoney and P Mahoney (eds), Human Rights in the Twenty-First Century: A Global
Challenge (Amsterdam: Martinus Nijhoff, 1992); Hilary Charlesworth, Christine Chinkin, and Shelley
Wright, ‘Feminist Approaches to International Law’ (1991) 85(4) American J Int’l L 613.
rights that are ‘defined by the criterion of what men fear will happen to them’.35
There had been little regard to how, in the process, human rights law marginalized
or silenced women’s concerns, such as sexual violence.36 The subject matter of
human rights law was thus seen to reflect male priorities, where women were an
exception to the rule and a deviation from the male standard.37
The women’s human rights movement thus tended to adopt a women-centered
approach and focused its attention on the elimination of gender inequality through
a focus on male violence against women.38 Immediately after the Vienna confer-
ence, the UN General Assembly passed a Declaration on Violence Against Women
(The Declaration) to strengthen the impact of CEDAW.39 The Declaration
recognized that violence against women ‘is a manifestation of historically unequal
power relations between men and women, which have led to domination over and
discrimination against women’.40 The Declaration covered, amongst other acts,
‘traditional’ practices that are harmful to women.41 The Declaration also set the
basis for the appointment of a UN Special Rapporteur on Violence Against Women
to cover aspects of violence against women, including its causes and conse-
quences.42
The campaign to promote gender equality through a focus on violence against
women has had some extremely important and beneficial consequences for women.
The campaign has been overwhelmingly successful in translating very specific
violations experienced by individual women into human rights discourse. Yet,
the focus on violence has also had some problematic results, most importantly
in constructing a universal category of woman, shorn of her historical and cultural
context, oppressed, and subordinated, regardless of the differences amongst
them. It has foregrounded the ‘woman’ subject, while accommodating differences
35 See, eg, Bunch, Frost, and Reilly, ‘Making the Global Local’, 486; Charlesworth, Chinkin, and
Wright, ‘Feminist Approaches to International Law’, 628–30; Rebecca J Cook, ‘Women’s Inter-
national Human Rights Law: The Way Forward’ (1993) 15 Hum Rts Q 230; Hilary Charlesworth,
‘Human Rights as Men’s Rights’ in J Peters and A Wolper (eds), Women’s Rights, Human Rights:
International Feminist Perspectives (London: Routledge, 1995) at 103; Gayle Binion, ‘Human Rights:
A Feminist Perspective’ (1995) 17 Hum Rts Q 509, 514.
36 Charlesworth, Chinkin, and Wright, ‘Feminist Approaches to International Law’, 614–15.
37 Hilary Charlesworth and Christine Chinkin, The Boundaries of International Law: A Feminist
Analysis (Manchester: Manchester University Press, 2000), 18; See Littleton, ‘Equality and Feminist
Legal Theory, 1050–2; Ngaire Naffine, ‘Sexing the Subject (of Law)’ in M Thornton (ed), Public and
Private: Feminist Legal Debates, (Oxford: Oxford University Press, 1995), 18 at 24–5; Kathleen
Mahoney, ‘Theoretical Perspectives on Women’s Human Rights and Strategies for Their Implemen-
tation’ (1996) 12 Brook J Int’l L 799 (1996); Ursula A O’Hare, ‘Realizing Human Rights for Women’
(1999) 21 Hum Rts Q 364 at 365–6; Catharine A MacKinnon, ‘Rape, Genocide, and Women’s
Human Rights’ (1994) 17 Harv Women’s LJ 5.
38 Ratna Kapur, Erotic Justice: Gender, Law and the New Politics of Postcolonialism (London:
Routledge-Cavendish, 2005), 95–136.

39 Declaration on the Elimination of Violence Against Women, GA Res 104, UN GAOR, 48th
Sess, 85th plen mtg, Supp No 49, at 217–19, UN Doc A/48/49 (1993).
40 The Declaration on the Elimination of Violence Against Women, preamble.
41 It also covered violence against women specifically including violence in the family, marital rape,
female genital mutilation, and other similar violence in the community, including harassment at work
and violence perpetrated or condoned by the state, wherever it occurs.
42 UN ESCOR, 42d plen mtg, UN Doc E/DEC/1994/254 (1994).
274 Gender Equality
between women only to the extent that such differences reinforced the universal
shared category of woman.43
This woman-centered approach has reinforced both gender as well as cultural
essentialism. It makes overgeneralized claims about women, universalizing
women’s experience of gender inequality and simply replacing an androcentric
perspective on human rights with a woman-centered approach which is also
exclusive. As Chandra Mohanty points out, essentialism assumes that ‘women
have a coherent group identity within different cultures . . . prior to their entry
into social relations’.44 Such generalizations are hegemonic in that they represent
the problems of privileged women, who are often (though not exclusively) white,
Christian, Western, middle-class, and heterosexual.45 These generalizations based
on some abstract notion of strategic sisterhood efface the problems, perspectives,
and political concerns of women marginalized because of their class, race, religion,
ethnicity, and/or sexual orientation.46 A woman-centered approach also depicts
women in other cultural contexts as perpetually marginalized and underprivileged,
and it has serious implications for the strategies subsequently adopted to remedy
the harms that women experience. As discussed in the next section, gender and
cultural essentialism end up promoting either a protectionist approach or a sameness
approach to gender and reinforcing cultural divides.
1. Gender essentialism
Amongst the major exponents of what is described as a ‘women-centered approach’
or ‘woman’s point of view’ is feminist legal scholar Catharine MacKinnon, whose
work has focused on the commonality of women’s experiences. She states, ‘what
[women] have in common is not that our conditions have particularity in ways that
matter. But we are all measured by a male standard for women, a standard that is
not ours.’47 In her analysis, sexuality and sexual relations remain central to women’s
oppression. ‘If sexuality is central to women’s definition and forced sex is central to
sexuality, rape is indigenous, not exceptional, to women’s social condition.’48
43 Carol Smart, ‘The Woman of Legal Discourse’ in C Smart (ed), Law, Crime and Sexuality: Essays
in Feminism (New Delhi, London, Thousand Oaks: Sage, 1995), 186–202.

44 Chandra Talpade Mohanty, ‘Under Western Eyes: Feminist Scholarship and Colonial dis-
courses’ in C T Mohanty, A Russo, and L Torres (eds), Third World Women and the Politics of
Feminism (Indianapolis: Indiana University Press, 1991) at 70.
45 Norma Alarcon, ‘The Theoretical Subject(s) of This Bridge Called My Back and Anglo-
American Feminism’ in G Anzaldua (ed), Making Face, Making Soul: Creative and Critical Perspectives
by Feminists of Colour (San Francisco: Aunt Lute Press, 1995), 356 at 357.
46 Aihwa Ong, ‘Strategic Sisterhood Or Sisters In Solidarity? Questions of Communitarianism and
Citizenship in Asia’ (1996) 4 Indiana J Global Legal Stud 107. See also Vasuki Nessiah, ‘Toward a
Feminist Internationality: A Critique of U.S. Feminist Legal Scholarship’ in Ratna Kapur (ed),
Feminist Domains in Legal Terrains (New Delhi: Kali for Women, 1996), 11–35 (arguing that feminist
universalism masks global structural contradictions in gender oppression); Inderpal Grewal, ‘Women’s
Human Rights as Human Rights: Feminist Practices, Global Feminism and Human Rights Transna-
tionality’ (1999) 3 Citizenship Stud 337.
47 MacKinnon, Feminism Unmodified, 76.
MacKinnon argues that sexuality is the lynchpin of gender inequality.49 As sexual

exploitation and sexual violence are experiences women share in common these
commonalities are more important than any differences between women. In her
view, all women experience oppression at the hands of patriarchal power, and she
argues that power is invariably male.50 In law it is expressed through ‘male laws’ and
‘male’ systems of justice.51
In the context of women’s human rights, a woman-centered approach based on
MacKinnon’s insights makes the claim that sexuality—erotic or genital relations—
constitute the basis of inequality between men and women. This argument permits
no distinction between ‘normal’ heterosexual sex and rape either in times of war or
peace.52 Secondly, even though human rights have been a tool of male dominance,
there is a possibility for individual women’s claims to expose this inequality and
write women’s voices into human rights discourse. One concrete proposal she
makes in this regard is to address issues of sexual violence as questions of equality.
MacKinnon’s theory of equality is based on the relationship between male power
and female subordination that is determined by sexuality. She advocates this more
attenuated understanding of equality to address and redress the violence that
women have experienced at the hands of men globally. Despite their diversity,
there are women everywhere who are subjugated to men, primarily in and through
some form of sexual violence, such as rape, wife battering, prostitution, or pornog-
raphy.53 She lists a range of diverse countries in which such atrocities continue to
take place without consequences, in times of peace and war, and argues that
equality guarantees should be used in both of these situations to address the
problem of violence against women.
Finally, examples of women’s rights claims can be understood as a form of
resistance, and the claim of one woman can represent the experience of all
women. As Halley has pointed out, the women’s point of view allows MacKinnon
‘to interrupt the ontological seamlessness joining male superordination with the

50 MacKinnon, Feminism Unmodified, 157–70.
51 Catharine MacKinnon, ‘Feminism, Marxism, Method and the State: Toward Feminist Jurispru-
dence’ (1983) 8 Signs 635; Catharine MacKinnon, ‘Feminism, Marxism, Method and the State: An
Agenda for Theory’ (1982) 7 Signs 515.
52 In her work on rape in war in Bosnia, she argues that sexual violence is a weapon of war.:
Catharine MacKinnon, ‘Rape, Genocide, and Women’s Human Rights’ in A Stiglmeyer (ed), Mass
Rape: The War Against Women in Bosnia-Herzegovina (Lincoln: University of Nebraska,
1993), 183–96; Catharine MacKinnon, ‘Crimes of War, Crimes of Peace’ in S Shute and S Hurley
(eds), On Human Rights: The Oxford Amnesty Lectures (New York: Basic Books/Harper Collins, 1993),
83–109. She has made similar arguments as lead counsel in a case filed under the US Alien Tort Claims
Act 1993, and Torture Victim Protection Act 1991, in which individuals and women’s groups of
Bosnian Muslim and Croat survivors of Serbian sexual atrocities sought international justice for
genocide (Doe v Karadzic, 866 F.Supp. 734, SDNY,1994, rev’d, Kadic v Karadzic, 70 F.3d 232, 2d
Cir 1995). She argues that pornography is a tool of genocide and tries to make a direct causal link
between pornography in Bosnia and the rapes of Muslim women: Catharine MacKinnon, ’Turning
Rape into Pornography: Postmodern Genocide’ (1993) 4(1) Ms. Magazine 24–30. And she argues that
torture on the basis of sex in the form of rape, domestic battering, and pornography should be seen as a
violation of the women’s right to equality in human rights law: MacKinnon, ‘On Torture’, 21.
53 MacKinnon, Feminism Unmodified.
276 Gender Equality
law, enabling her to make not only her injury but the injury of all women visible,
audible, and interruptable’.54 Thus, one woman can act on behalf of all women,
even if she has not personally suffered any injury, provided her claim is informed by
a women’s point of view.
The emphasis on the commonality of women’s experience in a woman-centered
approach to gender equality places the analysis on a slippery slope where it can
easily slide into the essentialist and prioritizing category of gender; it can blunt
rather than sharpen our analysis of oppression. MacKinnon’s approach does not,
for example, consider the ways in which legal systems have been shaped by social,
economic, or historical forces, such as colonialism, enslavement of non-white
populations (including both men and women), or the role of the Christian Church.
Class, cultural, religious, and racial differences between women are collapsed under
the category of gender through women’s common experience of sexual violence and
objectification by men. Differences between women are simply understood as
cultural, without exploring or elaborating on how the cultural context was shaped
and influenced in and through historical, economic, and political processes such as
the colonial encounter—an encounter between the West and the Rest. To miss this
part of the argument is to present a narrative that does not implicate the ways in
which race, religion, and imperial ambition have constituted women’s experience of
exploitation and subordination.
The limits of a woman-centered approach are not new to feminist legal thinking,
and there has been considerable critique of the hegemonic generalizations about
women or gender essentialism that result from such a position.55 Anti-essentialists
argue that the claims of essentialists represent primarily the problems of privileged
women and result in the production of theoretical agendas and perspectives that
efface the problems of more marginalized women.56 To focus only on the category
of gender is to obscure the ways in which women—particularly women in minority
and disadvantaged communities—experience multiple forms of subordination.
They come to the law not just as women, but as Black women, and/or Latina/o
women, and/or Lesbian women, and/or Muslim women, negotiating with the
54 Janet Halley, Split Decisions: How and Why to Take a Break from Feminism (Cambridge: Harvard

55 Elizabeth Spelman, The Inessential Woman: Problems of Exclusion in Feminist Thought (Boston,
MA: Beacon Press, 1998); Drucilla Cornell, Beyond Accommodation: Ethical Feminism, Deconstruction
and the Law (New York: Routledge, 1999); Uma Narayan, ‘Essence of Culture and a Sense of History:
Feminist Critique of Cultural Essentialism’ in U Narayan and S Harding, De-centering the Centre:
Philosophy for a Multicultural, Postcolonial and Feminist World (Bloomington, Indiana: Indiana Uni-
versity Press, 2000), 80–100, at 82.
56 Ziba Mir-Hosseini, Islam and Gender, the Religious Debate in Contemporary Islam (Princeton,
New Jersey: Princeton University Press, 1999); bell hooks, Feminist Theory: From Margin to Centre
(2nd edn, Boston: South End Press, 2000); Patricia Collins, Black Feminist Thought: Knowledge,
Consciousness, and the Politics of Empowerment (2nd edn, New York: Routledge, 2000); Gloria
Anzaldua, Borderlands/La Frontera: The New Mestiza (2nd edn, London: Consortium Book Sales
and Distributors, 1999); Angela Harris, ‘Race and Essentialism in Feminist Legal Theory’ (1990) 42
Stanford L Rev 581; Kimberle Crenshaw, ‘Demarginalizing the Intersections of Race and Sex: A Black
Feminist Critique of Antidiscrimination Doctrine, Feminist Theory, and Antiracist Politics’ (1989)
Univ of Chicago Legal Forum 139.
dominant and stable discourses on race, ethnicity, culture, sexuality, religion, and/
or family.57 To focus on gender as the exclusive or primary site of oppression
reflects only the experience of those women who do not experience other forms of
subordination, such as religious, ethnic, or caste subordination. These various
forms of subordination are not separate and discrete, but rather, intricately con-
nected.
Despite the appeal of a grand theory of equality that focuses on violence against
women and has a woman-centered approach at its core, the resulting gender
essentialism effaces the differences between women. The exclusive focus on vio-
lence against women does not reveal the complexity of women’s lives, but only the
different ways in which they may experience violence. Thus, culture is invoked
primarily to explain the different ways in which women experience violence, and in
the process often reinforces essentialist understandings of culture and represents
particular cultures as brutal and barbaric. Difference is acknowledged through the
different experiences of violence that women are exposed to in diverse economic,
social, and cultural settings. While violence against women operates as something
of an equalizer, it also sets up a subject who is thoroughly disempowered and
helpless. As Tracy Higgins states, ‘In short, when feminists aspire to account for
women’s oppression through claims of cross-cultural commonality, they construct
the feminist subject through exclusions, narrowing her down to her essence’.58
Gender essentialism may be used for a strategic purpose, but the way in which it
is being deployed in the international women’s human rights arena has had a
reactionary effect. The danger of essentialism lies in the way it is deployed in
dominant discourses. By not remaining sufficiently attentive to cultural and histor-
ical specificities, gender essentialism has prompted state actors, non-state actors,
and donors to embrace universalizing strategies in responding to human rights
violations against women, including gender inequality.
2. Cultural essentialism
Human rights advocacy on gender equality has obscured differences between
women located in very different power relationships. Religion, for example, is of
acute significance in many parts of the post-colonial/‘third’ world, especially for
women located within minority communities.59 In post-colonial India, for
example, the relationship between gender and religion remains very complex due
to the increasing legitimacy of the Hindu Right and its political agenda emphasiz-
ing the assimilation of religious minorities. Muslim women are caught in the
tension between their demands for gender equality within their religious commu-
nity and their dependence upon and support for the community as a site of cultural
57 Judith Butler, Bodies that Matter (New York: Routledge, 1993), 223–42.
58 Tracey Higgins, ‘Anti-Essentialism, Relativism and Human Rights’ (1996) 19 Harv Women’s LJ
89 at 102.
59 Religion also constitutes the identities of women and men in the First World. This fact is
frequently obscured by claims to secularism, which is itself based on religious majoritarianism: see Janet
Jakobsen and Ann Pellegrini (eds), Secularisms (Durham and London: Duke University Press, 2008).
278 Gender Equality
and political resistance to Hindu majoritarianism.60 Yet feminists and human rights
advocates, amongst others, have taken up issues of culture and religion in ways that
have not only reinforced gender essentialism, but that have also failed to capture the
complex ways in which women’s experiences are mediated by their religious
identity. Frequently, their advocacy strategies have resulted in essentializing certain
features of culture and reinforcing racial and cultural stereotypes.
Culture and cultural diversity have entered into the women’s human rights
discourse primarily as a negative and subordinating aspect of women’s lives and
invariably displaced onto a first world/third world divide.61 In the process colonial
assumptions about cultural differences between the West and ‘the Rest’ and the
women who inhabit these spaces are replicated. Some cultural practices have come
to occupy our imaginations in ways that are totalizing of a culture and its treatment
of women, and that are nearly always overly simplistic or a misrepresentation of the
practice. For example, the practice of veiling amongst Muslim women has invari-
ably been assumed to be an oppressive and subordinating practice that typifies
Islam and its degrading treatment of women. The multiple meanings of the veil,
through different cultural and historical contexts, become subsumed in rhetoric
that focuses almost exclusively on veiling as an oppressive and subordinating
practice.62 It is read in a uniform linear manner as an oppressive practice, because
it erases women’s physical and sexual identity and is symbolic of the subjugation of
women in Islam.63
A classic instance of this bias is apparent in the decisions of the European Court
of Human Rights. In the case of Sahin v Turkey, the Court upheld the ban on the
veil on the grounds that it was consistent with the principle of secularism. In
upholding the ban on the wearing of headscarves in Istanbul University in
Turkey,64 the Court held the impugned circular to be consistent with the principles
60 Brenda Cossman, and Ratna Kapur, Secularism’s Last Sigh? Hindutva and the (Mis)Rule of Law
(New Delhi, Oxford: Oxford University Press, 2001, reprint); Ratna Kapur, ‘The Right to Freedom of
Religion and Secularism in the Indian Constitution’ in Mark Tushnet and Vicki Jackson (eds),
Defining the Field of Comparative Constitutional Law (Westport: Praeger Publishers, 2002),
199–213; Ratna Kapur, ‘The Two Faces of Secularism and Women’s Rights in India’ in
C Howland and T Buerganthal (eds), Religious Fundamentalisms and The Human Rights of Women
(New York: Palgrave MacMillan, 1999).
61 Uma Narayan, ‘Death by Culture’ in Dislocating Cultures/Identities, Traditions, and Third World
Feminism (New York: Toutledge, 1998), 81–118.

62 Saba Mahmood, The Politics of Piety: The Islamic Revival and the Feminist Subject (Princeton,
New Jersey: Princeton University Press, 2007).

63 There is no universal opinion as to its function amongst those who wear the veil. For some, it
does represent honor, and an effective mechanism to avoid tempting men. More significantly, the veil
has also been a very empowering symbol for Muslim women in some countries. In Iran, it was the sign
of rebellion and rejection of the Shah and Western imperialism. Amongst immigrant communities in
the West, it is the symbol of an exclusive cultural space and a rejection of assimilation. In other
contexts, the veil is considered a private space: one in which no one can intrude. The veil also disrupts
the public space, where women are often marginalized. The sheer symbolism of the veil brings the
woman very visibly into the public sphere—she simply cannot walk by unnoticed. See Fatima
Merinissi, Dreams of Trespass: Tales of a Harem Girlhood (Boulder, Colorado: Perseus Books, 1994),
112–22.
64 Leyla Sahin v Turkey (European Court of Human Rights, 11 November 2005). Leyla Sahin, a
university lecturer in Turkey, challenged the validity of a circular in 1998 by the Vice-Chancellor of
of secularism and equality in Turkey, in particular the rights to gender equality.65 It

also stated that such interventions were designed to protect the individual not only
against arbitrary interference by the state, but also from external pressure from
extremist movements. Implicit in this position is a reinforcement of the widely held
assumption that women are invariably coerced into wearing headscarves. Such
decisions have enabled the French President, Nicolas Sarkozy to boldly declare
that ‘[t]he full veil is not welcome in France because it is contrary to our values and
contrary to the ideals we have of a woman’s dignity’.66 This position is consistent
with that of French feminists who had also supported an earlier ban of the veil in
state schools, viewing it as a ‘visible symbol of the submission of women’.67 Such
statements reinforce the stigma that attaches to the wearing of the veil and reinforce
the view that Islamic practices are subordinating and barbaric in relation to women.
Culture continues to be invoked in ways that demonize the culture of the ‘Other’
and represent women, especially Muslim or ‘third world’ women as exploited,
violated, and abused primarily in and through barbaric cultural practices which
stand in contrast to the more civilized treatment of women in non-Islamic western
societies. In the following section, I examine how gender essentialism and cultural
essentialism can converge to limit or undermine the right to equality of women in
religious minority communities. I focus my discussion on the way in which Muslim
women’s rights have been addressed in the context of post-colonial India during the
period of the ascendance of the Hindu Right.
Istanbul University directing that students with beards and students wearing the Islamic headscarf
would be refused admission to lectures, courses, and tutorials. In March 1998 the applicant was refused
access to write an exam on one of the subjects she was studying because she was wearing the Islamic
headscarf. Subsequently the university authorities refused on the same grounds to enrol her on a course
or admit her to various lectures and write other exams. The faculty also issued her with a warning for
contravening the university’s rules on dress and suspended her from the university for a semester for
taking part in an unauthorized assembly that had gathered to protest against the faculty’s warning. All
the disciplinary penalties imposed on the applicant were subsequently revoked under an amnesty law.
See Carolyn Evans, ‘The Islamic Scarf in the European Court of Human Rights’ (2006) 7 Melbourne
J of Int’l L 52.
65 Quite specifically, the Court held that there had been no violation of Art 9 (freedom of thought,
conscience, and religion), Art 2 of Protocol No 1 (right to education), Art 8 (right to respect for private
and family life), Art 10 (freedom of expression), and Art 14 (prohibition of discrimination) of the
European Convention on Human Rights. The circular was held to be consistent with the Turkish
Constitutional Court’s ruling that authorizing students to ‘cover the neck and hair with a veil or
headscarf for reasons of religious conviction’ in the universities was contrary to the Constitution.
66 Steven Erlanger, ‘Face-Veil Issue in France shifts to Parliament for Debate’ (2010) NY Times,
26 January. Available online at <http://www.nytimes.com/2010/01/27/world/europe/27france.html>

accessed 13 April 2010.
67 See Le magazine Elle lance un appel contre le voile, Elle, 5 December 2003 (describing the veil as a
‘symbole visible de la soumission de la femme’). Online, available at <http://coranix.org/archicoray/

2003/12dec/116.htm> accessed 27 April 2010. On 15 March 2004 the French Parliament enacted
Law no 2004-228, inserting a new Article L 141-5-1 in the Education Code which provides: ‘In State
primary and secondary schools, the wearing of signs or dress by which pupils overtly manifest a
religious affiliation is prohibited. The school rules shall state that the institution of disciplinary
proceedings shall be preceded by dialogue with the pupil.’
280 Gender Equality
E. The Hindu Right and gender equality for

Muslim women in post-colonial India
The preceding discussion illustrates some of the ways in which gender and cultural
essentialism are deeply embedded in women’s claims to equality and have at times
operated to preclude equality challenges. In this section, I examine how these
factors converge to give strength to the discourse of the Hindu Right in India
and enable the Right to advance its political agenda in relation to the Muslim
religious minority, partly in and through the discourse of gender equality.68
The ‘Hindu Right’ refers to the contemporary political movement in India,
informed by the ideology of Hindutva, which seeks to establish a Hindu Rashtra
(Hindu state). I use it to refer to the central organizations and movements of the
current phase of Hindu communalism in India—the triumvirate of the Bharatiya
Janata Party (BJP) (The Indian People’s Party), the Rashtra Sevika Sangh (RSS)
(Association of Nationalist Volunteers), and the Vishwa Hindu Parishad (VHP)
(World Hindu Council), collectively known as the Sangh Parivar (family of
Associations), as well as the militantly anti-Muslim Shiv Sena (Foot-soldiers of
Lord Siva). Communalism is a discourse that attempts to constitute subjects in and
through community attachment, particularly through religious community. It
constitutes the way in which these subjects see and give meaning to the world
around them.69 Through communal discourses, subjects come to understand the
world around them as one based on the conflict between religious groups; Indian
society is understood as fractured by the conflict between these groups. This
community identity becomes the basis for social, economic, and political demands,
and for political mobilization around these demands.
The Hindu Right has its basis in the revivalist and nationalist movements of the
19th century, and began to take on its distinctive form in the 1920s, with
the publication in 1923 of Sarvarkar’s Who is a Hindu? and with the founding of
the RSS. Sarvarkar developed his idea of Hindutva, a communal discourse, which
seeks to constitute Hindu subjects to understand the fractured society in a particu-
lar way.70 In the contemporary moment, the Hindu Right argues that the policy of
appeasing minorities—that is—of special treatment for Muslims and other reli-
gious minorities—has perpetuated the oppression of Hindus. The contemporary
social, economic, and political malaise that is allegedly gripping Hindu society is
seen as the result of this policy of appeasement. The answer to this crisis, according
68 The Hindu Right dates back to the 19th century revivalist and nationalist movements in India,
which sought to revitalize Hindu culture as a means of resisting colonialism. As it developed through
the 20th century, particularly in the writings of Vir D Savarkar in the 1920s, Hindutva, the ideology of
the Hindu Right, has taken on a distinctively right-wing, anti- minority stance. See Tapan Basu et al,
Khaki Shorts and Saffron Flags: A Critique of the Hindu Rights (New Delhi: Oxford University Press,
1993), 2.
69 Bipan Chandra, Communalism in Modern India (Delhi: Vani Educational Books, Vikas Publish-
ing House, 1984).

70 Basu, Khaki Shorts and Saffron Flags.
to Hindu communalism, is the establishment of a Hindu Rashtra—India must be a

Hindu state. Only then can Hindu culture and pride be restored.
Together, the RSS-BJP-VHP combine have sought to forge an ideologically
dominant discourse, through the manufacturing of consent and the production of
common sense. The discourse of ‘Muslim domination’, ‘appeasement of minor-
ities’, and ‘Hindu pride’ has become part of the common sense of an increasingly
large segment of Hindu society and commonplace. And as the discourse has
become more commonplace, so too has the support for the Hindu Right.71
The Hindu Right’s discursive struggle for ideological hegemony stretches across
a broad range of discursive fields—history, politics, religion, and economics, as well
as law. I consider the way in which law and legal discourse is being deployed by the
Hindu Right to advance its political agenda. The legal and political concepts of
secularism and equality have come to play an increasingly central role in this
discursive struggle for the hearts and minds of Hindu subjects. The Hindu Right
has made considerable inroads in its efforts to infuse these concepts with new
meaning, consistent with the discourse of Hindutva. Secularism and equality, in the
hands of the Hindu Right, are being used to advance the attack on minority
rights—the central ideological plank of Hindutva.
There has, however, been surprisingly little attention paid to this question of the
meaning of equality within the dominant vision of secularism. This neglect has
become a dangerous silence that the Hindu Right has been only too willing to
exploit in its quest to claim the terrain of secularism as its own. The discursive
strategies of the Hindu Right have been based on bringing a very particular
understanding of equality to the popular understanding of secularism, with power-
ful results that play out in the context of the rights of Muslim women as well as in
the treatment of the Muslim community as a whole. This tension is most clearly
illustrated in the debate over the Uniform Civil Code.
1. The Uniform Civil Code

The concept of equality has become a foundational discourse in Hindutva’s attack
on minority rights and in its agenda for women. The Hindu Right’s approach to
equality provides the basis of its understanding of secularism through which it is
seeking to redefine the relationship between religion and politics in Indian society.
The concept of equality is, at the same time, a central discursive element in the
communalist efforts to rearticulate the role and identity for women in India. The
precise meaning of the concept within the Hindu Right depends on the context in
which it is being deployed. In much of its contemporary political rhetoric, the
Hindu Right deploys a formal understanding of equality. In the context of the
71 While the BJP enjoyed political power at the helm of government from 1999–2004 when it led a
coalition government, its subsequent political defeat at the polls is not equated with ideological and
doctrinal defeat. The RSS, the ideological backbone of the Hindu Right, has continued to popularize
Hindtuva amongst the masses at the community level through the VHP as well as through other
mechanisms of governance such a law and education.
282 Gender Equality
attack on minority communities and the discourse of secularism, ‘equality’ refers to
the requirement of formally equal treatment. In the context of women, however,
the understanding of equality that emerges from the Hindu Right is very different.
It no longer requires formally equal treatment, but rather, embraces an affirmation
of difference and diversity.
The Hindu Right’s discursive strategy in relation to equality becomes most
evident in the struggle over the implementation of a Uniform Civil Code
(UCC). One of the issues long advocated by the Hindu Right has been the demand
for a Uniform Civil Code (UCC), the object of which is to unify all personal laws
that currently govern issues of marriage, divorce, guardianship, property, and other
familial matters. In the 1980s, the Shah Bano case became the focus of a campaign
for the reform of personal laws and the enactment of a Uniform Civil Code in
accordance with the directive principles of the Constitution.72 The demand for a
Uniform Civil Code is articulated within the discourse of formal equality. The
Hindu Right deploys this discourse to claim the sameness of all women, and that all
women must be equal. When the Hindu Right argues that all women must be
treated equally, its means that Muslim women should be treated the same as Hindu
women. Thus, any recognition of difference as between the women in different
religious communities is seen to violate the constitutional guarantees of equality,
which in their view, requires the formal equal treatment of all those who are the
same. Muslim women, as women, should be the same as Hindu women—and
therefore they should be treated the same in law.
The paradoxical ways in which the discourse of equality is invoked by the BJP,
the political wing of the Hindu Right, is vividly illustrated in its response to the
Shah Bano case, and particularly to the enactment of the Muslim Women’s
(Protection of Rights on Divorce) Act. Shah Bano, a 73-year-old Muslim
woman, who was divorced by her husband of 40 years brought a petition for
maintenance from her husband under section 125 of the Criminal Procedure Code.
According to Muslim personal law, she would only have been entitled to mainten-
ance for the period of iddat—that is three months after the divorce. In April 1985,
the Supreme Court held that she was entitled to maintenance under section 125
and voiced the opinion that such maintenance would not be contrary to
the Qur’an.73 It further called for the enactment of a Uniform Civil Code.
More orthodox and conservative elements of the Muslim community responded
with outrage against the decision, and cries of ‘religion in danger’. Many within
the Muslim community suspected that the judgment was intended to undermine
Islamic law in accordance with the agenda of the Hindu Right. The Government,
initially supportive of the Supreme Court decision, reversed its position,
and responded by passing the Muslim Women’s (Protection of Rights on
Divorce) Act, 1986, which provided that section 125 of the Criminal Procedure
Code would not apply to divorced Muslim women. The women’s movement,
along with progressive Muslim organizations, campaigned against the Bill.
72 Article 44 of the Indian Constitution.

73 Mohammad Ahmed Khan v Shah Bano Khan A 1985 SC 945.
The Hindu Right also campaigned vigorously against the Bill, which in its view was
simply another example of the Government ‘pandering to minorities’.74
The Shah Bano controversy reignited the debate over the Uniform Civil Code.
The women’s movement, which had been demanding a Uniform Civil Code since
the time of Independence, intensified its campaign. Feminist activists pushed,
again, for the adoption of an explicitly non-sexist, secular code. Support did not,
however, come from the women’s movement alone. Hindu communalists—the
RSS, the VHP, the BJP—also rallied around the Uniform Civil Code. Needless to
say, the Hindu Right’s support for the Uniform Civil Code was based on a very
different agenda—that is of attacking the rights of minorities and the Muslim
community in particular.
The controversy over the Shah Bano case, the Muslim Women’s Act and the
Uniform Civil Code was cast in a dichotomous and highly polarized discourse: for or
against the Supreme Court judgment; for or against the Act; for or against the Code.
It was this dichotomized discourse of the debate that inadvertently allied the
women’s movement with the Hindu Right, and its vicious attack on minority rights.
Despite the efforts of some feminist activists and organizations to distinguish their
position, within the broader popular discourse the positions were seen as one and the
same. Feminist efforts to challenge the oppression of women within the private
sphere of the family and argue in favor of equal rights of all women were appropri-
ated, and transformed to support the communalist discourse of the Hindu Right.
The BJP campaigned against the Act on the ground that it violated the right to
equality of Muslim women. The Muslim community, supporting this Act, was
thereby constituted in terms of its opposition to women’s equality. Yet, both the
Act, and its alternative—section 125 of the Criminal Procedure Code—are based
on treating women and men differently. Women are different from men and need
to be protected from men. The discourse of equality was at the same time being
used to reinforce the idea that all women are or should be the same, as well as the
idea that women are not and should not be the same as men. Two models of
equality converged to allow the Hindu Right to delegitimize the recognition of
religious and cultural difference without challenging the assertion of natural gender
difference. Both gender and cultural essentialism were reproduced and reinforced in
and through the discourse of equality.
The Shah Bano case has continued to have contemporary relevance on the way
in which equality more generally, and gender equality more specifically, are
understood. Gender equality was advocated in and through the discourse of
secularism, where the BJP argued that the Act violated both secularism and
equality. It violated secularism because the Muslim community was treated differ-
ently. It violated equality because Muslim women were treated differently than
74 According to the Act, which effectively codifies Muslim personal law of maintenance, a divorced
woman’s husband is obliged to return her mehr (dower) and pay her maintenance during the period of
iddat. If the divorced woman cannot support herself at the end of that period, her children, parents, or
relatives who would be entitled to inherit her property, are responsible for her support. If they cannot
support her, the responsibility then falls to the State Wakf Boards.
284 Gender Equality
Hindu women. Both discourses were used to reinforce the image of the Muslim
community as ‘other’. And in so doing, the discourse of equality was being used
to undermine substantive equality—that is real equality between women and men,
and substantive secularism—equal respect and accommodation for minority com-
munities.
The campaign to have all religious communities treated according to the same
basic legal provisions is not seen as a threat to Hindu norms and practices since the
Hindu Rights’ version of the Uniform Civil Code would be one that would be
based most closely on existing Hindu norms and practices. The Hindu Right’s
position on the Uniform Civil Code again highlights the majoritarianism implicit
in a formal model of equality. The unstated norm of the Hindu majority remains
the reference point against which others are judged and into which these others are
expected to assimilate.
The discussion reveals how gender equality can be used to pursue reactionary
agendas and to demonize religious minorities. In the process feminists and human
rights advocates in their claim to be defenders of women’s rights to equality can
inadvertently find themselves in bed with those whose long-term agenda for
women, including women in religious minority communities, is somewhat differ-
ent. While CEDAW remains the international yardstick for measuring the extent
to which gender equality has been achieved, it does not provide a means for
evaluating the model of equality and approach to gender against which such
achievements can be measured.75
The discourse of equality can be deployed with the purpose of attacking the
Muslim community and constructing the Muslim ‘other’ as the great violator of
democratic rights. At the same time, such a strategy can deflect attention away from
the similar absence of full equality for women in the majority community or in
non-Islamic non-Muslim contexts. Equality is not only reinforcing gender and
cultural essentialism, it is also deployed as a way of attacking the Muslim commu-
nity as a whole and intensifying the demonization of Muslims globally. Equality
proves to be an elastic concept. It has resulted in reinforcing at times a protectionist
approach to gender as well as perpetuating the false divide between human rights
and culture. In India for example, the Hindu Right has been able to locate the
violation of gender equality almost exclusively within the context of the Muslim
‘other’. It is the Muslim community that violates women’s rights to equality. By
focusing attention on the violation of rights within the ‘other’ community, the
Hindu Right is able to deploy the concept of equality in a manner that deflects
attention away from the extent to which its own position on other expression issues
could be seen to be a violation of this right.
75 See generally Karima Bennoune, ‘Secularism and Human Rights: A Contextual Analysis of
Headscarves, Religious Expression, and Women’s Equality Under International Law’ (2007) 45 Colum
J Transnat’l L 367 (describing CEDAW as the ‘international yardstick’ for measuring a country’s
success in eliminating discrimination against women), 374–5, 402–3.
F. Gender equality—part of the problem?
The judgment in Shah Bano, as well as the agitation by the Hindu Right, cast
Muslims and Islam as regressive and backward, requiring a cultural erasure in order
to meet the standards of both civilization as well as the equality requirements of
secularism that demands sameness in treatment. The discourse of equality and
civilization were used to demonize Islam, reflected in the opening remarks in the
Shah Bano judgment on how ‘the fatal point in Islam is the degradation of
women’.76
The controversy surrounding Shah Bano resonates with the ongoing debates in
Europe and more recently in parts of Canada over the need and desirability of
imposing a ban on ‘Islamic’ forms of clothing that involve some form of veiling or
purdah, ranging from the hijab to the niqab and burqa.77 As discussed, France has
been particularly active on the issue, passing a law in 2004 banning the use of
conspicuous religious symbols by students in state schools (including the wearing of
hijabs, turbans, and excessively large crucifixes), as well as enacting a recent law
forbidding people from covering their faces in public. Sarkozy has defended the ban
on burqas as a measure to protect women from oppressive practices.78 Though
couched in general terms, the focus of both laws is on the hijab and the burqa
respectively as the debates surrounding the laws demonstrate. Similar to the Hindu
Rights position in the Shah Bano controversy, the justification for both bans was
found partly in the need to promote and preserve France’s strict secular identity,
and partly through the promotion of women’s equality as well as to externalize the
difference onto an oppressive ‘other’ or alien.79
The casting of Islam as regressive and oppressive to women demonizes and
essentializes Islam while also representing Muslim women as victims of their culture
or religion, without agency. The maintenance practices and the veil are not only
used to homogenize the entire religion, but also to implicitly project Muslim men
or proponents of such practices as illiberal and fundamentalist.80 The very terms of
equality are used to deny women’s agency and to align equality with the rule of the
majority. By setting up Islam in opposition to liberal rights, gender equality based
on an assimilative urge is implicated in fuelling suspicion within Muslim minority
76 Mohammad Ahmed Khan v Shah Bano Khan at 945.

77 For a quick overview of the various measures in European countries to ban forms of clothing
identified with Islam, see The Islamic Veil Across Europe, BBC News, 15 June 2010, available at <http://
news.bbc.co.uk/2/hi/europe/5414098.stm> (accessed 25 May 2012). Recently, the Canadian province
of Quebec enacted a law to ban the burqa in offices that supply government services and the Canadian
government imposed a ban on the wearing of the burqa during the citizenship oath taking ceremony.
See Ben Quinn, Burqa Wearing Banned in Canada for those taking Citizenship Oath (2012) Guardian,
12 December, available at <http://www.guardian.co.uk/world/2011/dec/12/burqa-wearing-banned-
canada> (accessed 2 June 2012).
78 See The Islamic Veil Across Europe, BBC News.
79 See example, Dogru v France, Application no 27058/05, European Court of Human Rights,
4 December 2008 (detailing the reasons for the enactment of the 2004 French law).
80 Zoya Hasan, ‘Minority Identity, Muslim Women Bill Campaign and the Political Process’
(1989) 24(1) Economic and Political Weekly 44.

286 Gender Equality
and immigrant communities, aggravating their marginalization and also encour-
aging the embrace of targeted practices as a form of resistance to assimilation.81
Feminist interventions have encouraged a deeper rift by compelling women to choose
between their right to gender equality and their right to freedom of expression and
religion. The choice is both disingenuous and viewed as a coercive act on the part of
the liberal democratic state to erase Muslim identity.82 Such interventions encourage a
turn away from equality rights discourse, which is no longer associated with freedom
and empowerment, but with surveillance, coercion, and discipline of the ‘other’.83
Though couched in neutral terms the ban on manifest religious symbols and veils has a
disproportionate impact on Muslim women.84 A majority of those affected by the
banning of the hijab are Muslim girls, who may opt to attend religious schools, rather
than remain in the state school system.85
The Shah Bano controversy illustrates how equality rights discourse can produce
dichotomous and binary categories of ‘Muslim’ and ‘women’, representing the
former as oppressive and the latter as oppressed. Similar representations are present
in the context of the veil. For example, the Stasi Commission Report, on which the
2004 law banning the hijab in French state schools was based, stated that ‘young
girls are pressured into wearing religious symbols. The familial and social environ-
ment sometimes forces on them a choice that is not theirs.’86 The concern produces
a protectionist intervention that reproduces both gender and cultural stereotypes.
While well-intentioned interventions in both India and France foreground con-
cerns over women’s subordination, the interventions have put into crisis the
81 Hasan, ‘Minority Identity’.

82 Joseph Carens and Melissa Williams, ‘Muslim Minorities in Liberal Democracies: The Politics of
Misrecognition’ in Rajeev Bhargava (ed), Secularism and its Critics (New Delhi: Oxford University
Press, 1998), 137.
83 Wendy Brown, ‘The Paradoxes of Rights’ in W Brown and J Halley (eds), Left Legalism/Left
Critique (Durham & London: Duke University Press, 2002).

84 Susanna Mancini, ‘The Power of Symbols and the Symbols of Power: Secularism and Religion
and Guarantors of Cultural Convergence’ (2009) 30(6) Cardozo L Rev 2629 (arguing that in the
jurisprudence of the ECHR, Christian norms are taken to reflect the neutral standard, and Islam, the
irreconcilable other). The 2004 French law regulating the wearing of religious symbols and clothing
prohibited only overtly manifest markers of religious affiliations. The Ministry of Education circular
clarified that ‘all forms of the Islamic veil, but only crucifixes of manifestly exaggerated dimensions,
would fall within the purview of the ban’: Circulaire No 2004-084 of 18 May 2004, Journal Officiel de
la Republique Francaise [J.O.] [Official Gazette of France], 22 May 2004, cited from Mancini, ‘The
Power of Symbols’ at 2646. The clarification exemplified the non-neutral basis of the ban that comes to
be cast as secular and neutral. Not only do the exceptions reflect the practices of the dominant religious
community, but the very idea that ostentatious symbols are to be banned is reflective of a religious and
cultural tradition where such symbols are not a common or pervasive aspect of religious/cultural
practice. The idea of equality across cultures and religions often means ‘the same as’ the dominant
culture/religion, and raises concerns amongst religious/cultural minorities of subordination and coer-
cion: Mancini, ‘The Power of Symbols’ at 2638.
85 France: Headscarf Ban Violates Religious Freedom, available at <http://www.hrw.org/en/news/
2004/02/26/france-headscarf-ban-violates-religious-freedom>. It has at the same time been reported

that some Muslim women have experienced the ban as liberating: Dominic McGoldrick, Human
Rights and Religion: The Islamic Headscarf Debate in Europe (Oxford: Hart Publishing, 2006), 270–5.
86 Commission De Reflexion Sur L’application Du Principe De Laïcite Dans La Republique,
Rapport Au President De La Republique (2003), available at <http://lesrapports.ladocumentation-

francaise.fr/BRP/034000725/0000.pdf>, cited from Mancini, ‘The Power of Symbols’ at 2648.
redemptive capacity of human rights. In both controversies, while conservative

forces, feminist groups, and the law may have all been empowered in different ways
as a result of the controversy, what is most evident is that Muslim women as a
whole have ended up less empowered. Lost in the cacophony of the struggles was
the core idea central to subaltern feminist thinking that understands both categories
of gender and religion as mutually constitutive of identity and experience. By
viewing Muslim men as oppressive and Muslim women exclusively as victims,
liberation from the Muslim identity and its markers are in turn implicated as a
progressive goal. Human rights advocates and feminists are placed alongside
conservative and religious advocates as engaged in an effort, akin to what Gayatri
Spivak has famously remarked, ‘by white men to save brown women from brown
men’.87 The assumption that Muslim women will welcome the ban on the burqa
misses the deeper relationship of the practice to the constitution of gender identity
within a minority community that is feeling under siege in the contemporary
moment.88 It fails to comprehend how the practice may be constitutive of her
Muslim identity as well as her gender identity. Agitations by Muslim women to
retain their right to wear the hijab/burqa, and the declaration by many to defy the
ban or to remove themselves from public spaces, rather than relinquish their right
to wear the hijab/burqa need to be understood within the broader normative and
discursive struggle that is being waged in and through equality discourse by the
liberal democratic state. It further belies the ostensible ‘end goal’ of liberation of
Muslim women who reside in minority communities in liberal democracies,
producing more complex and contradictory outcomes.89
The contest around gender equality in relation to Islam is also a contest over the
meaning of secularism. The Shah Bano case as well as the support for the recent
bans were both justified as essential to sustaining the ‘secular’ foundations of the
state. In Shah Bano the Supreme Court’s push for the implementation of a Uniform
Civil Code was stated as advancing ‘the cause of national integration by removing
disparate loyalties to laws which have conflicting ideologies’.90 In the discourse of
the Hindu Right, the difference in treatment was viewed as compromising on the
idea of secularism based on equal treatment of all religions, and Muslims, by
demanding special treatment were not only undermining this ideal, but their
loyalties to the democratic nation-state were in the process rendered deeply suspect.
In the veil disputes, removal of the markers of religious identity from the public
arena was intended to ensure the complete separation of religion and the state, and
87 Gayatri Chakravorty Spivak, ‘Can the Subaltern Speak?’ in C Nelson and L Grossberg (eds),
Marxism and the Interpretation of Culture (Urbana: University of Illinois Press, 1988), 271–313, 281.
88 Bret Stephens, ‘To Ban the Burqa—Or Not’, The Wall Street Journal, available at <http://online.
wsj.com/article/SB10001424052748703904304575497881913005068.html?mod=WSJ_Opinion_-
LEFTSecond> accessed 25 May 2012; Shada Islam, ‘Headscarf Ban Misses the Point’, Yale Global
Online, available at <http://yaleglobal.yale.edu/content/headscarf-ban-misses-point> accessed 25 May
2012.
89 Hasan, ‘Minority Identity’.
90 Mohammad Ahmed Khan v Shah Bano Khan, para 33.
288 Gender Equality
safeguard the principle of neutrality on which secularism in western liberal democ-
racies is ostensibly based.
This reasoning also constituted the basis of the European Court of Human
Rights dismissal of the challenge to the headscarf ban imposed by the Turkish
government, holding that gender equality was ‘one of the key principles underlying
[the] Convention’,91 and would fall outside the context of a sex discrimination
claim. The Court accepted the government’s argument that the restriction on
wearing the headscarf was integral to gender equality and maintaining secularism
as well as to protect society from extremism.92 Nor does there appear to be much
scope to argue that the ban constitutes sex discrimination. In Dohlab v Switzerland,
the same court rejected an argument against the ban on the wearing of a headscarf
while teaching. The claimant stated that the prohibition on wearing the headscarf
and other ‘visible religious symbols’ constituted discrimination on the basis of sex.
She argued that a man belonging to the Muslim faith could teach at the school
without facing any prohibition, while she had to refrain from practicing her
religion, though she held the same beliefs. The Court held that a man who wore
clothing that identified him as a member of a different faith would be caught by the
ban, and hence, there was no disparate impact on the prohibition on Muslim
women. In both cases, the Court’s reasoning pits a progressive secular ideal against a
premodern and oppressive religious order. The binary obscures the majoritarianism
that is advanced in and through the discourse of secularism. There is an over-
whelming emphasis on a formal approach to equality, based on the sameness of
treatment of Muslim women, who practice veiling with all ‘other women’. This
logic produces two assumptions: that all Muslim women are oppressed by the
practice of veiling, and that religion is an obstacle to the realization of gender
equality. The protectionist approach that informs these interventions does not
disrupt the normative assumptions about gender and culture on which gender
equality is based. The cases are an example of how equality remains its own
stumbling block to the realization of equality.
The analysis offered in this essay offers a ‘space clearing’ in the area of gender
equality to enable a deeper understanding of exactly what work gender equality
does once its normative and discursive dimensions have been interrogated, as well
as who benefits and who does not. Such space clearing compels human rights
scholars to think through the relationship between well-intentioned human rights
advocacy and the conservative and regulatory urges that it produces in the area of
gender equality. It also compels a deeper questioning of human rights as a redemp-
tive project.93 The space clearing for such interrogation partly occurs once human
91 Sahin v Turkey, Application No 44774/98 European Court of Human Rights 29 June 2004 at
para 107, and accepted by the Grand Chamber in Leyla Sahin v Turkey [GC], (2005), Reports 2005,
paras 115–116. The applicant’s arguments that she chose to wear the headscarf and did not aim to
pressure other women into wearing the headscarf were not addressed by either Court.
92 Sahin v Turkey, para 109.
93 David Kennedy, ‘The International Human Rights Movement: Part of the Problem?’ in
The Dark Side of Virtue: Reassessing International Humanitarianism (Harvard University Press,
2004), 3–31, 23.
freedom is no longer exclusively aligned with the pursuit of more rights and more
law. For example, as discussed, when a Muslim woman wears the veil, some
feminists address her exclusively as a victim of false consciousness subordinated
to masculine norms. And judicial and human rights discourse has reinforced the
widely held view that the veil is nothing more than a body bag and a submissive
practice, despite its multiple meanings and significance to the wearer.94 While there
is also a more complex understanding of the veil as a symbol of resistance to the
assimilative moves of the liberal democratic state, the practice, as Saba Mahmood
argues, cannot be captured within the terms of the equality discourse or a politics of
resistance, and remains outside of the liberal imaginary. Both of these readings miss
how the wearer’s choice can be linked integrally to her inner emancipation, and her
way of being in the world. A practice that falls outside the liberal imaginary renders
it non-liberal, but not necessarily illiberal. The choice of the veiled woman needs to
be understood in terms of the relationship between the external acts and perform-
ance of the subject, that is, the wearing of the veil and the cultivation of her inward
disposition and emancipation.95 The veil is a performance that is linked to her
desire to be free and this notion of freedom is linked to a journey inward rather than
a movement outwards.
G. Conclusion
There is a critical need to engage with the discursive and normative dimensions of
equality, which illustrate how gender equality and human rights can be used as
techniques of governance as well as power that is informed by majoritarianism.
Such an understanding displaces the well-worn and unhelpful binary that sets up
the practices of Muslim women, or women in religious minority communities in
opposition to human rights, in particular, the right to equality. It also forces a
deeper questioning of the role of equality in securing liberation for women or
alleviating gender inequality and injustice. The discussion reveals how the right to
equality constitutes part of the system of governance and order and is used at times
to discipline the ‘other’, including the ‘other’ woman. I argue in favor of a more
critical engagement with gender equality and human rights, where culture is no
longer constantly placed in the dock and singled out as culpable. The right to
gender equality itself needs to be more rigorously interrogated, and the way in
which it is implicated in producing some of the binaries and exclusions that it
ostensibly seeks to remove more fully exposed. The antidote to gender equality does
not lie in greater inclusion (coupled with a constant attack on the ‘other’), but in a
deeper understanding of the ways in which gender equality can be used by all sides
to pursue competing agendas. To shift the terms of engagement will also alter the
conversation within the international human rights arena on the rights of Muslim
94 See for example D Lyon and D Spini, ‘Unveiling the Headscarf Debate’ (2004) 12 Feminist Legal
Studies 333; McGoldrick, Human Rights and Religion.

95 Mahmood, The Politics of Piety.
290 Gender Equality
women. It can illuminate how culture is not necessarily a negative and uncivilized
attribute of the third world or of Islam, as well as how human rights and gender
equality are saturated in culture. Such an approach can produce a more enabling
and constructive conversation on women’s human rights, especially on the rights of
Muslim women, than the current static and paralyzing debates on universality,
civilizational superiority, and cultural relativism have allowed.
15
Women in Search of Common Ground:
Between Islamic and International
Human Rights Law
Ziba Mir-Hosseini *
In mid-February 2009, several hundred scholars, activists, legal practitioners, and

policy-makers from 47 countries gathered in Kuala Lumpur for five days to launch
Musawah (‘equality’ in Arabic), a global movement for equality and justice in the
Muslim family. The gathering was hosted by Sisters in Islam, the Malaysia-based
women’s group, which since its formation in 1988 has argued for Muslim women’s
rights and equality within an Islamic framework. The meeting was planned over the
course of two years, at workshops in Istanbul, Cairo, and London, and through
constant electronic communication. The planning committee, with membership
drawn from 11 countries, consulted with a wide range of other Muslim activists and
academics, and produced the Musawah Framework for Action, a programme for
bringing together Islamic and international human rights approaches to argue for
an egalitarian interpretation of the Shari‘a and the reform of family law in Muslim
contexts.1
As a member of the planning committee, I want to tell something of the story
behind the formation of Musawah and the shaping of the Framework for Action,
which, I shall argue, herald a new phase in the encounter between Islamic and
international human rights law. One salient feature of this phase is that it brings
women, rather than the abstract notion of ‘gender equality’, to centre stage.
The encounter between Islamic and human rights law was largely academic until
1979, when two events marked a transformation. The first was the adoption by the
UN General Assembly of CEDAW (the Convention on the Elimination of all forms
of Discrimination Against Women), which gave gender equality a clear international
legal mandate. The second was the popular revolution that brought clerics to power in
Iran, which marked the acme of political Islam, and the reversal of the process of
secularization of laws and legal systems that had begun in Muslim contexts earlier in
* Acknowledgments: I am grateful to Richard Tapper and Lila Abu-Lughod for their helpful
comments on an earlier draft of this essay.
1 For the launch and the framework, see <http://www.musawah.org>.
292 Gender Equality
the century. The resultant clash between two opposing yet equally powerful frames of
reference gave birth, as the century came to a close, to a new gender discourse that is
Islamic in its language and sources of legitimacy, yet feminist in its demands.2 This
new discourse, of which Musawah is a part, offers a new engagement, a meaningful
dialogue, between Islamic and international human rights law, and holds the promise
and potential to resolve the conflict between them.
This conflict is most evident in the reservations to CEDAW entered by a
number of Muslim states on the grounds of inconsistency with ‘Shari‘a’; and it
must be viewed in two related contexts. One is that of 20th century shifts, both
global and local, in the politics of religion, law, and gender. The other is the current
confrontation between, on the one hand, the ideals of human rights, equality, and
personal freedom found and advocated in international human rights laws and
documents; and, on the other, systems of values and laws rooted in premodern
cultural and religious practices, which sanction discrimination on the basis of faith,
status, and gender, as embodied in traditional interpretations of the Shari‘a. This
conflict of values is not confined to Muslim contexts, rather it is ubiquitous, and
shades into ongoing animated debates between universalism and cultural relativism.
But it acquired a sharper political edge in the Muslim world in the second half of
the 20th century with the emergence of the question of Palestine and the rise of
Islamist movements, which sought a fusing of religion and politics.3 The intensifi-
cation of the ‘war on terror’ in the early 21st century has added a new layer of
complexity to the situation. Rightly or wrongly, many Muslims perceive the war to
be directed against them and their religion. This has not only increased their sense
of insecurity and the appeal of traditional values, it has also, in their eyes, eroded the
moral high ground of human rights law.
Islamists uphold current Muslim family laws as the essence of justice and the
foundation of the proper ordering of society, while many human rights activists
condemn them as unjust and discriminatory. Family laws in many Muslim con-
texts, whether codified or uncodified, are based on the rulings devised in classical
Muslim jurisprudence (fiqh) for the regulation and termination of marriage. These
rulings are also the raison d’être of Islamic reservations to CEDAW.
In this essay, I will begin by summarizing the classical rulings. Then I will
sketch—in broad strokes—the contours of the debate and the surrounding politics.
Finally, I will trace the development of Musawah, which draws on a century of
reformist thinking in Islam to offer both a new language and new terms of
engagement that can bring a much needed paradigm shift in the politics of Islamic
and human rights law.
2 There is now an extensive literature on this ‘Islamic feminism’; for overviews, see Margot Badran,
Feminism in Iran: Secular and Religious Convergences (Oxford: Oneworld, 2009), Ziba Mir-Hosseini,
‘Muslim Women’s Quest for Equality: Between Islamic Law and Feminism’ (2006) 32(1) Critical
Inquiry 629–45.
3 For my definition of Islamists as ‘Muslims committed to public action to implement what they
regard as an Islamic agenda’, see Ziba Mir-Hosseini and Richard Tapper, Islam and Democracy in Iran:
Eshkevari and the Quest for Reform (New York: I. B. Tauris, 2009), at 81–2.
Women in Search of Common Ground 293
A. Marriage in classical Islamic jurisprudence (fiqh)
This discussion of family law in Muslim legal tradition is prefaced with two caveats.
First, I am concerned here mainly with the ways in which classical jurists under-
stood and defined marriage; whether these rulings corresponded at the time to
actual practices of marriage and gender relations is, of course, another question, and
one that recent scholarship in Islam has started to answer. What this scholarship
warns us is not to take the classical fiqh texts at face value; in premodern times
judicial and court practices were quite different, and women had better access to
legal justice than has been the case in more recent times; they frequented courts to
negotiate the terms of their marriage and divorces.4
Secondly, as in other traditions, gender equality in the current sense has not been
part of the legal tradition of Islam nor has it been relevant to notions of justice
among Muslims. Yet until the 19th century, Muslim legal tradition granted women
better rights than any Western legal tradition; they were able to retain their legal
and economic autonomy in marriage, while for instance in England it was not until
1882, with the passage of the Married Women’s Property Act, that women
acquired such a right.5 It was only in the course of the 20th century that the
situation was reversed in favour of women in many Western countries.
Classical jurists defined marriage not as a sacrament but as a contract that renders
sexual relations between a man and woman licit. The contract is called aqd al-nikah
(literally, ‘contract of coitus’) and is patterned after the contract of sale, which
served as the model for most contracts in Islamic jurisprudence. It has three
essential elements: the offer (ijab) by the woman or her guardian (wali), the
acceptance (qabul) by the man, and the payment of dower (mahr), a sum of
money or any valuable that the husband pays or undertakes to pay to the bride
before or after consummation.6
4 See, for instance, Yossef Rapoport, Marriage, Money and Divorce in Medieval Islamic Society
(Cambridge University Press, 2005), Amira El Azhary Sonbol (ed) Women, Family and Divorce Laws
in Islamic History (Syracuse, NY: Syracuse University Press, 1996), Amira El Azhary Sonbol ‘Women
in Shariah Courts: A Historical and Methodological Discussion’ (2003–4) 27 Fordham Int’l LJ
225–53, Jusdith Tucker, In the House of Law: Gender and Islamic Law in Ottoman Syria and Palestine
(Berkeley: University of California Press, 2000).
5 For this comparison, see Danaya Wright, ‘Legal Rights and Women’s Autonomy: Can Family
Law Reform in Muslim Countries Avoid the Contradictions of Victorian Domesticity?’ (2007) 5(1)
Hawwa: Journal of Women of the Middle East and the Islamic World 33–54.
6 The discussion here is intended merely to outline the salient features of the marriage contract and
to give references to sources available in English; for introductions to and translations of classical texts
on marriage, see Madelain Farah, Marriage and Sexuality in Islam: A Translation of Al-Ghazali’s Book on
the Etiquette of Marriage from the Ihya (Salt Lake City: University of Utah Press, 1984), Susan
Spectorsky, (1993), Chapters on Marriage and Divorce: Responses of Ibn Hanbal and Ibn Rahwayh
(Austin: Texas University Press, 1993); for differences among various schools, see Muhammad Jawad
Maghniyyah, Marriage According to Five Schools of Islamic Law, vol V (Department of Translation and
Publication, Islamic Culture and Relations Organization, 1997), and for critical analysis of the
marriage contract, see Kecia Ali, ‘Progressive Muslims and Islamic Jurisprudence: The Necessity for
Critical Engagement with Marriage and Divorce Law’ in Omid Safi (ed), Progressive Muslims: On
Justice, Gender, and Pluralism (Oxford: Oneworld, 2003), 163–89, Kecia Ali, Sexual Ethics and Islam:
294 Gender Equality
The marriage contract has fixed terms and produces uniform legal effect. It defines a
default set of fixed rights and obligations for each party, some supported by legal force,
others with moral sanction. Those with legal force revolve around the twin themes of
sexual access and compensation, embodied in the two concepts tamkin (obedience;
also ta‘a) and nafaqa (maintenance). Tamkin, defined as sexual submission, is a man’s
right and thus a woman’s duty; whereas nafaqa, defined as shelter, food, and clothing,
is a woman’s right and thus a man’s duty. In some schools, a woman becomes entitled
to nafaqa only after consummation of the marriage, in others this comes with the
contract itself; but in all schools she loses her claim if she is in a state of nushuz
(disobedience), which the classical jurists defined only in sexual terms. Among the
default rights of the husband is his power to control his wife’s movements and her
‘excess piety’. She needs his permission to leave the house, to take up employment, or
to engage in fasting or forms of worship other than what is obligatory (for example the
fast of Ramadan). Such acts may infringe on the husband’s right of ‘unhampered
sexual access’. There is no matrimonial regime; the husband is the sole owner of the
matrimonial resources, and the wife remains the possessor of her dower and whatever
she brings to or earns during the marriage.
A man can enter up to four marriages at a time,7 and can terminate each contract
at will. Legally speaking, talaq, repudiation of the wife, is a unilateral act (iqa‘),
which acquires legal effect by the declaration of the husband. A woman cannot be
released without her husband’s consent, although she can secure her release through
offering him inducements, by means of khul‘, which is often referred to as ‘divorce
by mutual consent’. As defined by classical jurists, khul‘ is a separation claimed by
the wife as a result of her extreme ‘reluctance’ (karahiya) towards her husband. The
essential element is the payment of compensation (‘iwad) to the husband in return
for her release. This can be the return of the dower, or any other form of compen-
sation. Unlike talaq, khul‘ is not a unilateral but a bilateral act, as it cannot take legal
effect without the consent of the husband. If she fails to secure his consent, then her
only recourse is the intervention of the court and the judge’s power either to compel
the husband to pronounce talaq or to pronounce it on his behalf if the wife
establishes one of the recognized grounds—which again vary from school to school.
In discussing the legal structure of the marriage contract, classical jurists often
used the analogy of sale and alluded to parallels between the status of wives and that
of female slaves, to whose sexual services husbands/owners were entitled, and who
were deprived of freedom of movement. Aware of possible misunderstandings,
classical jurists were careful to stress that marriage resembles sale only in form, not
Feminist Reflections on Quran, Hadith and Jurisprudence (Oxford: Oneworld, 2006) and Ziba Mir-
Hosseini, ‘The Construction of Gender in Islamic Legal Thought and Strategies for Reform’ (2003) 1
(1) Hawwa: Journal of Women of the Middle East and the Islamic World 1–28; Ziba Mir-Hosseini,
‘Towards Gender Equality: Muslim Family Laws and the Shari‘a’ in Z Anwar (ed), Wanted: Equality
and Justice in the Muslim Family (Musawah: An Initiative of Sisters of Islam, 2009), available online at
<http://www.musawah.org/background_papers.asp>.
7 In Shi‘a law a man may contract as many temporary marriages (mut‘a) as he desires or can afford.
For this form of marriage, see Shahla Haeri, Law of Desire: Temporary Marriage in Iran (New York:
I. B. Tauris, 1989).
in spirit, and drew a clear line between free and slave women in terms of rights and
status. They distinguished between the right of access to the woman’s sexual and
reproductive faculties (which her husband acquires) and the right over her person
(which he does not). Certainly, there were significant differences and disagreements
about this among the schools, and debates within each, with legal and practical
implications.8 It should, however, be stressed that the notion and legal logic of
‘ownership’ and sale underlie the juristic conception of marriage and define the
parameters of laws and practices, where a woman’s sexuality, if not her person,
becomes a commodity and an object of exchange, even if only once. It is this legal
construct that justifies the unequal construction of rights in marriage; it is based on
a certain reading of Islam’s sacred texts, and exerts its power through the rules that
define polygamy and divorce.9
B. Contemporary Muslim legal discourses and

the challenge of gender equality
Classical fiqh provisions of marriage continue to form the basis of family law in
Muslim countries today, though they have been the subject of intense contestation
and debate among Muslims. The debate began in the late 19th century, and it
remains entangled with the politics of Muslim encounters with modernity and with
Western colonial powers, during which women and Islamic law have become
symbols and carriers of cultural tradition, a battleground between the forces of
traditionalism and modernity.10
With the emergence of Muslim nation-states in the first part of the 20th century, in
most cases, as part of the modernization of the legal system, fiqh was put aside in all
areas of law except family and marriage, where classical rulings were selectively
reformed, codified, and grafted onto unified legal systems inspired by Western models.
In codifying family law, governments introduced reforms through procedural rules,
which left the substance of the classical rulings more or less unchanged, with some
notable exceptions: Tunisia banned polygamy in 1956; Turkey abandoned fiqh in all
spheres of law and replaced it with Western-inspired codes; Saudi Arabia preserved
classical fiqh as fundamental law and attempts to apply it in all spheres of law.
These developments transformed the relationship between fiqh, the state, and
social practice. Codes and statute books took the place of classical fiqh manuals;
8 For these disagreements, see Kecia Ali, Marriage and Slavery in Early Islam (Cambridge, Mass.:
Harvard University Press, 2010), and Maghniyyah, Marriage According to Five Schools of Islamic Law;
for their impact on rulings related to mahr and the ways in which classical jurists discussed them, see
Ibn Rushd, The Distinguished Jurist’s Primer, vol II (Bidayat al-Mujtahid wa Nihayat al-Muqtasid,
1996), translated by Imran Ahsan Khan Nyazee (Reading: Garnet Publishing, 1996), 31–3.
9 See Mir-Hosseini ‘Towards Gender Equality’.
10 Whether these rulings corresponded to actual marriage practices and gender relations is, of
course, another area of inquiry; indeed recent scholarship tells us of discrepancies between juristic
discourse and judicial and marriage practices; see for instance, Rapoport, Marriage, Money and Divorce
in Medieval Islamic Society; Sonbol, Women, Family and Divorce Laws in Islamic History; Tucker, In the
House of Law.
296 Gender Equality
family law was no longer solely a matter for private scholars—the fuqaha—operat-
ing within a particular fiqh school, rather it became the concern of the legislative
assembly of a particular nation-state. Deprived of their role in defining law and
administering justice, the practitioners of fiqh retreated into scholasticism; no
longer accountable to society, they grew defensive of past tradition and became
unable to meet the epistemological challenges of modernity, in which the notion of
gender equality has become central.
The codification of fiqh provisions led not only to the creation of a hybrid family
law that was neither classical fiqh nor Western, but also to a new genre of texts,
issued by religious publishing houses, under the general rubric of ‘Women’s rights
in Islam’. Their authors—largely men, at least until very recently—are not neces-
sarily jurists, nor do they resort to legal reasoning. They keep silent on the logic of
women’s sexuality as property, and of marriage as a form of sale, which underlies
the whole edifice of classical family law. This logic is so repugnant to modern
sensibilities and values, and so alien from contemporary Muslims’ experience of
marriage, that no author will admit it openly. Writing for the general public and
keen to distance themselves from overtly patriarchal language and concepts, these
authors’ prime objectives are to explain the ‘high status of women in Islam’ and to
clarify ‘misunderstandings’ about Islamic family laws.11 Thus, they place their focus
on the ethical and moral rules that marriage entails for each spouse, drawing
attention to those Qur’anic verses and hadith that affirm the essential equality of
the sexes. They ignore the fact that these ethical rules, in effect, carry no legal
sanction, and they put forward no argument for translating them into imperatives.
In these texts, terms such as ‘equity’ or ‘complimentarity of rights and duties’
become a new language for the inequalities embedded in the classical fiqh construc-
tion of marriage and gender relations.
A good example of such texts is Jamal Badawi’s booklet, Gender Equity in Islam:
Basic Principles, which has a wide circulation.12 Marriage, Badawi states, ‘is about
peace, love and compassion, not just the satisfaction of men’s needs’, but then he
goes on to reproduce all the fiqh rulings on marriage and divorce almost verbatim.
In line with other texts in this genre, Badawi simply outlines what he calls
‘normative teachings of Islam’, glosses over male dominance, and imputes the
injustices that women suffer in marriage and society to what he calls ‘diverse
cultural practices among Muslims’. He seems to be unaware that many of the
fiqh rulings that he reproduces negate the ‘basic principles’ of ‘gender equity’ that
he claims as Islamic in his booklet.
11 For a discussion of such writings in the Arab world, see Yvonne Yazbeck Haddad, ‘Islam and
Gender: Dilemmas in the Changing Arab World’ in Y Y Haddad and J Esposito (eds), Islam, Gender
and Social Change (Oxford: Oxford University Press, 1988), 1–29, Lamia Rustum Shehadeh, The Idea
of Women under Fundamentalist Islam (Gainesville: University of Florida Press, 2003), Barbara Stow-
asser, ‘Women’s Issues in Modern Islamic Thought’ in Judith E Tucker (ed), Arab Women: Old
Boundaries, New Frontiers (Indiana University Press, 1993); for Iran, see Ziba Mir-Hosseini, Islam and
Gender: The Religious Debate in Contemporary Iran (Princeton: Princeton University Press, 1999), and
for a general critique see Ali, ‘Progressive Muslims and Islamic Jurisprudence’.
12 Jamal Badawi, Gender Equity in Islam: Basic Principles (American Trust Publication, 1995); a
short version of the booklet is posted on several Islamist websites.

The legal meanings of ‘equity’ and ‘complementarity’, which conceal the classical
juristic logic of women’s sexuality as property and marriage as a sale, become clear
once these texts resort to reasoning. Two such texts that offer a rationalization, a
new defence of the classical fiqh rulings, and contain a new theory of gender rights,
are Morteza Mutahhari’s System of Women’s Rights in Islam and Abul A’la Maud-
udi’s Purdah and the Status of Women in Islam.13 Both authors were Islamic
ideologues, and their writings, rooted in anti-colonial and anti-Western discourses,
have become seminal texts for Islamist groups and movements. Writing in Urdu in
the 1930s, in the context of pre-partition India, Maududi’s adamant rejection and
condemnation of modernity and liberal values appealed to radical Islamists. For
him, the problem with Muslims is that they have abandoned their own way of life
and adopted secular (ie Western and to some extent Hindu) values that have
corrupted them and are destroying their civilization. The solution he offers is an
‘Islamic state’ with the power and inclination to enforce the Islamic way of life,
where women’s seclusion and control by men are foundational. Mutahhari, writing
in Persian in 1960s Iran as part of the religious opposition to the secularizing
policies of the Pahlavi regime, is less adamant in his opposition to modernity and
less overtly patriarchal: he is more popular with moderate Islamist groups.
These authors differ in style, language, and sophistication, but they follow the
same line of argument, based on the same premises of the ‘naturalness’ of laws in
Islam and the ‘innate difference’ between men and women. These two premises
become the pillars of a new defence of gender inequality, which goes as follows:
men and women are created equal and are equal in the eyes of God, but the roles
assigned to them in creation are different, and fiqh rules reflect this difference.
Differences in rights and duties do not mean inequality or injustice; if correctly
understood, they are the very essence of justice. This is so because these rulings not
only reflect the Shari‘a, which they argue is the divine blueprint for society, but they
are also in line with ‘human nature’ (fitra) and take into consideration the biological
and psychological differences between the sexes.
In the second part of the 20th century, with the rise of political Islam, the theory
of ‘gender equity and complementarity’, as developed in these texts, became closely
identified with Islamist political movements, with devastating consequences for
women. Islamist forces—whether in power or in opposition—started to invoke
Shari‘a as a legitimizing device. Tapping into popular demands for social justice,
they presented ‘Islamization’ as the first step to root out corruption, to combat
crimes and immorality, and to bring about a moral and just society. These issues
spoke to the masses, and played on the popular belief among Muslims that Shari‘a
is the essence of justice, hence no law that is ‘Islamic’ can be unjust.
13 Murtaza Mutahhari, The Rights of Women in Islam (4th edn, Tehran: World Organization for
Islamic Services, 1991); Maulana Abul A’Ala Maududi, Purdah and the Status of Women in Islam (16th
edn, Lahore: Islamic Publication, 1998); both books are available in English and Arabic and have gone
through many editions; for an analysis of their discourse see Shehadeh, The Idea of Women under
Fundamentalist Islam.
298 Gender Equality
The 1980s saw the introduction of regressive gender policies in many parts of the
Muslim world; for instance, the dismantling of the family law reforms introduced
earlier in the century in Iran and Egypt, compulsory gender segregation and dress
codes for women in Iran and Sudan, and the enforcement of Hudud Ordinances
in Pakistan that led to the persecution of many women. But the 1980s also saw
the expansion of human rights legislation, the rise of an international women’s
movement, and the emergence of women’s NGOs in many Muslim countries.
The human rights framework, instruments like CEDAW, international funds, and
transnational links gave women’s rights activists what they needed most: a point of
reference, a language and organizational tools for their struggle to resist the regres-
sive policies of political Islam.
All these developments widened the gap between forces of traditionalism and
modernism, and intensified the conflict between Muslim legal tradition and human
rights ideals. While feeding (on) older stereotypes, old polemics between Islam and
the West were reignited. For many Islamists, international human rights law is an
extension of colonialist politics, a Western plot to undermine the Muslim way of
life, and must be rejected in the name of Islam. Many women’s rights activists, on
the other hand, have attacked regressive Islamist policies by using older Orientalist
and essentialist narratives that treat Islam as a monolith inherently incompatible
with modernity and gender equality.
Like all ideologies, however, both political Islam and human rights carry the
seeds of their own mutation, with some unintended and paradoxical consequences
that dented the legitimacy of both. The political slogan ‘Return to Shari‘a’, which
in practice amounted to translating into policy classical fiqh rulings on gender
relations and the family, provoked criticism and spurred women to increased
activism. The Islamists’ defence of these patriarchal rulings as ‘God’s Law’, as the
authentic ‘Islamic’ way of life, brought the classical fiqh books out of the closet, and
unintentionally exposed them to critical scrutiny and public debate. This opened a
space, an arena, for an internal critique of patriarchal readings of the Shari‘a that
was unprecedented in Muslim history, and a growing number of women came to
question whether there was any inherent or logical link between Islamic ideals and
patriarchy. At the same time, in the aftermath of the 11 September 2001 attacks,
the politics of the ‘war on terror’, the illegal invasions of Afghanistan and Iraq—
both partially justified as promoting ‘democracy’ and ‘women’s rights’—the subse-
quent revelations of abuses in Guantanamo and Bagram, and the double standards
employed in promoting UN sanctions, have discredited international human rights
ideals in the eyes of many. The gap between these ideals and the practices of their
proponents has increasingly invited accusations of hypocrisy.
C. Musawah: A global movement for equality

and justice in the Muslim family
It is against the backdrop of these developments that Musawah started to take
shape. The original inspiration for the formation of Musawah as a global movement
was the Moroccan women’s campaign for an egalitarian family law, which achieved
success in 2004. Adopting the Moroccan women’s slogan—‘Change is Necessary

and Change is Possible’—we set out the vision, principles, and conceptual founda-
tion of the movement in Framework for Action.14 Our objective was to link
scholarship and activism, and to bring together fresh perspectives on Islamic
teachings, universal human rights principles, fundamental rights, and constitu-
tional guarantees, and the lived realities of women and men today, in order to argue
that equality in the Muslim family is now both necessary and possible and that
denial of this equality in the name of Islam and tradition should be firmly rejected.
It is not my intention here to elaborate on the Musawah Framework for Action,
but rather to give an idea of the kind of hermeneutical, cultural, and political
challenges that we faced in bringing together Islamic and human rights frameworks
and developing an overlapping consensus among widely varied women’s groups.
The most important challenge we faced was how to negotiate and bridge the gap
between the conceptions of justice that underlie notions of gender in the classical
fiqh texts that underpin Muslim family laws, on the one hand, and human rights
documents such as CEDAW on the other.
A number of us, as scholars and activists, had come to the conclusion that, given
the close link between religious and political identity in Muslim contexts, there
could be no justice and no sustainable change as long as patriarchy was not
separated from the Shari‘a. We knew that if we wished to abolish patriarchal laws
and customs among Muslims, it was not enough, and it is sometimes counter-
productive, to dismiss them as anachronistic or attack them on human rights
grounds only. To achieve sustainable and deep-rooted change, dialogue and con-
sensus are needed; we knew that we must show the injustices that arise from
patriarchal customs and laws based on the classical fiqh notion of marriage; and,
in this case, we must offer defensible and comprehensible alternatives within a
framework that recognizes equality and justice in Islam. It was only then that we
could free ourselves from an apparent choice between the devil of those who want
to impose patriarchal interpretations of Islam’s sacred texts, and the deep blue sea of
those who pursue a neo-colonialist hegemonic global project in the name of human
rights and feminism. To achieve this we had to do two things. First, we had to build
coalition and consensus among diverse groups of women’s rights activists, notably
between, on the one hand, those secularists for whom religion, and especially Islam,
has been the enemy, holding back any struggle for equality, and the increasing
number of women, on the other hand, who are finding sources and justification for
their struggle in their faith. Secondly, we had to broaden the debates and horizons
of thinking about Muslim family laws, and to approach Islam’s sacred texts as
sources of empowerment rather than as obstacles to change.
Drawing on the new wave of reformist thought and feminist scholarship in
Islam, we grounded our claim to equality and arguments for the reform of family
laws simultaneously in Islamic and human rights frameworks. Following and
building on the work of earlier reformers, this new scholarship no longer seeks
14 Now available in five languages on the Musawah website (<http://www.musawah.org>).

300 Gender Equality
(as earlier reformers did) an Islamic genealogy for modern concepts like gender
equality, human rights, and democracy; rather it places the emphasis on how
religion is understood and how religious knowledge is produced, how gender is
constructed in Muslim legal tradition, and how interpretations of the Shari‘a must
be evaluated in their historical contexts.
We decided to commission a number of concept papers by reformist thinkers
such as Amina Wadud, Khaled Abou El Fadl, and Muhammad Khalid Masud. We
intended to use them as a way of opening new horizons for thinking, to understand
the genesis of Muslim family law, how it was constructed within the classical fiqh
tradition, and how the wealth of resources within that tradition and in the Qur’anic
verses on justice, compassion, and equality can support human rights and a process
of reform toward more egalitarian family relations. These papers became the basis
of a wider discussion with a larger group of scholars and activists to shape the
Framework for Action.15
It was in the course of these discussions that we realized that the source of many
misunderstandings and obstacles to consensus and progress lay in the very notion of
the Shari‘a, which both contemporary Islamists and women’s rights advocates have
constructed as immutable and not open to negotiation or to contestation from
within. To counter this, and to pierce the veil of sanctity surrounding the classical
law, we invoked two crucial distinctions within Muslim legal tradition, which have
become obscured and elided in recent times. These are, first, the distinction
between Shari‘a (the way, as revealed in Islam’s sacred texts) and fiqh (legal science
and juristic rulings); and secondly, the distinction within fiqh between two major
categories of rulings, those regulating the realms of ‘ibadat (ritual/worship) and
mu‘amalat (social/contractual). Muslim family laws, we argued, are neither divine
nor immutable; they are derived from divine sources, but in the end they are
human understandings, legal constructs. They are the product of fiqh, as developed
by classical jurists in vastly different historical, social, and economic contexts. They
belong to the realm of mu‘amalat, an area of fiqh rulings that is open to ijtihad, re-
interpretation in line with the demands of time and place. These rulings, we
argued, must change, because they are no longer in line with the justice that is
the spirit of the Shari‘a. This is so because in our time and in our context there can
be no justice without equality. In many ways, we argued, CEDAW, which wants to
eliminate gender discrimination, is more in line with the Shari‘a than is current
family law in many Muslim contexts.
But the divide between ‘Islam’ and ‘feminism’ was not easy to overcome. It led to
heated exchanges among the members of the planning committee and to continual
redrafting of the Framework, and was echoed in the Musawah gathering in February
2009. Unlike women’s rights activists from Indonesia and Malaysia, who had no
qualms working with religion, many activists from other regions, in particular those
15 Available on the Musawah website and as a book edited by Zainah Anwar (Z Anwar (ed),
Wanted: Equality and Justice in the Muslim Family (Kuala Lumpur, Malaysia: Musawah: An Initiative
of Sisters of Islam, 2009)).
from North Africa, showed a visceral mistrust of religion and saw any engagement
with it as futile. They argued that feminist demands, and by extension human
rights and equality, were only achievable through a secular approach; religion for
them was not a source of inspiration and liberation, rather it was an obstacle that
would eventually be overcome but must be ignored for the time being. Many
participants, however, found this engagement with religion empowering and
liberating, and welcomed it enthusiastically. One young woman exclaimed, ‘I feel
like someone opened a window into my mind and let in the fresh air. It feels so
good!’ As columnist Mona Eltahawy observed, ‘How lucky that young woman is,
I thought. Just over 20 years ago, I felt as though I had to smash the window into
my mind open myself, fists bleeding and bruised, to catch some of that fresh air.’16
Undoubtedly, there will continue to be irreconcilable differences between the
more ideologically committed—secular feminists on the one hand and Islamists on
the other—but it was encouraging to find so many participants happy to occupy the
growing area of common ground which the Musawah movement seeks to open up.
D. Finding common ground
I conclude by drawing out three themes that run through my argument to stress the
potential of new developments like the Musawah movement for bringing con-
structive dialogue and cooperation between Islamic and human rights law.
First, jurisprudential theories and legal systems are more connected than is often
acknowledged to the cultural, political, and social contexts within which they
operate. They are also reactive, in the sense that they react to ideological, political,
social, and economic forces, and to people’s experiences and expectations. Muslim
legal theory is no exception, as evidenced by 20th century developments. Patri-
archal interpretations of the Shari‘a and the challenge by Musawah should be
understood in this complex double image, as both moulding and expressing social
norms and practices. The first half of the century saw the retreat of religion from
politics and the secularization of law and legal systems in the Muslim world. This
process was reversed in the late 1970s, with the rise of political Islam and the
Islamists’ slogan of ‘Return to Shari‘a’. The return of religion to politics and law
renewed the debate over equality and human rights, which became part of a larger
intellectual and political struggle among the Muslims, with their widely divergent
understandings of their religion and ways of reading its sacred texts.
My second theme is that the idea of gender equality, which became inherent to
conceptions of justice in the course of the 20th century, presented traditional
interpretations of the Shari‘a with a challenge that they have been trying to meet.
The resultant ‘epistemological crisis’ in Muslim legal tradition has opened a space
for negotiation with other legal theories and for transformation from within, and
16 Mona Eltahawy, ‘Musawah—How Do You Say Equality?’ The Jerusalem Report 25, 30 March
2009, available at <http://www.jpost.com/LandedPages/PrintArticle.aspx?id=135949>.

302 Gender Equality
can disarm the cultural relativist arguments that motivate much resistance to
international human rights instruments such as CEDAW. The philosopher Alisdair
MacIntyre argues against cultural relativism as follows.17 Every rational inquiry is
embedded in a tradition. A tradition of inquiry has reached an epistemological crisis
when, by its own standards of rational justification, disagreements can no longer be
resolved rationally. This gives rise to an internal critique that is bound to result in
transformations; when the questions and demands for change and adoption come
from inside the tradition, to resolve the crisis, the tradition has to respond, for
example by adopting a new idea or value and making it inherent to the tradition.
I suggest that this is precisely what happened to Muslim legal tradition, leading in
the 21st century to the emergence of voices such as those of Musawah that are
challenging, from within, the ‘Islamic reservations’ to CEDAW. These voices argue
for gender equality using the conceptual tools and legal theories of the tradition,
such as the distinction between Shari‘a and fiqh and the notion of ijtihad, thereby
defusing opposition from defenders of traditional fiqh, who invoke cultural relativ-
ist arguments for gender inequality disguised in Islamic terminology.
My third theme is that we are at the threshold of a new phase of relations
between Islamic and human rights legal systems, which was ultimately catalysed by
reactions to both the Islamist slogan of ‘return to Shari‘a’, and the US escalation of
the ‘war of terror’. Both ‘Islamic law’ and ‘human rights’ have been ‘desanctified’,
and both have been discredited for their manifest failures in practice to secure
justice, notably for women. The launch of Musawah is not alone in marking a new
phase in Muslim women’s struggle against Islamist attempts to restore gender
inequality. The emergence of the Green Movement in Iran in 2009 is another
such marker. As many commentators have pointed out, this movement may have
started as a protest against a fraudulent election, but it soon became, and has
remained, a civil rights movement, in which Iranian women have been the most
prominent actors.18
If my analysis is right, the year 2009 may prove to have been as important as
1979 in shifting the debate between Islamic and human rights law onto new
ground. The momentous events in the Arab world in early 2011 have brought
major political change in Egypt and Tunisia and inspired and ignited demands for
democracy and human rights in the rest of the Arab world, including Syria, Yemen,
and Libya. Leaders of the Iranian regime (and some of their ideological opponents
from Washington to Tel Aviv) have claimed the 1979 ‘Islamic’ revolution in Iran as
the model for these events, but the actors have explicitly acknowledged the inspir-
ation of the Iranian oppositional Green Movement of 2009—which is thriving and
expanding despite the brutal crackdown. Islamists in power, as well as their foes in
Western governments, not to mention mainstream Western media, continue to
interpret events in Muslim countries through the prism of dichotomies such as
17 Alisdair MacIntyre, ‘The Rationality of Traditions’, in C W Gowans (ed), Moral Disagreements
(London: Routledge, 2000), 212.

18 See for instance, Nader Hashemi and Danny Postel (eds), The People Reloaded: The Green
Movement and the Struggle for Iran’s Future (New York: Melville House, 2010).
‘secular’ versus ‘Islamic’ or ‘feminist’ versus ‘religious’. But Musawah and the Green
Movement in Iran have shown, and the 2011 events in the Arab world have
confirmed, that such dichotomies are both false and arbitrary, and that the real
struggle—to which the fate of Islamic and human rights law became hostage in the
course of the 20th century—is the struggle between despotism and democracy on
the one hand and patriarchy and gender equality on the other.
16
Commentary: Women and Islamic Law
Justice Sandra Day O’Connor
In Chapters 14 and 15, Ziba Mir-Hosseini and Ratna Kapur highlight an import-
ant facet of human rights approaches to women’s rights that reaches beyond the
context of Islamic law’s interaction with human rights. Both show the value and
importance of intra-societal discourse and disagreement about the content of
human rights and about a society’s relationship with international human rights
law. I would like to focus my comments on the commonality of disagreement,
drawing from the experience of the United States with regard to the Convention on
the Elimination of All Forms of Discrimination Against Women (CEDAW).
CEDAW entered into force on 3 September 1981—a mere 18 months after
it was opened for signature.1 According to the United Nations, the depository for
the Convention, CEDAW currently has 186 states parties, including Afghanistan,
Algeria, Bahrain, Egypt, Indonesia, Iraq, Jordan, Lebanon, Libya, Morocco,
Nigeria, Oman, Pakistan, Qatar, Saudia Arabia, Syria, Tunisia, Turkey, the United
Arab Emirates, and Yemen.2 The United States is the only country to have signed
but not ratified CEDAW.3 The US non-ratification leaves it in the company of the
few non-party countries, including Iran and Sudan.
Some of the predominantly Muslim countries that have ratified CEDAW have
done so with reservations based on Shari‘a. Saudi Arabia, for example, entered a
reservation that states, ‘In case of contradiction between any term of the Convention
and the norms of Islamic law, the Kingdom is not under obligation to observe the
contradictory terms of the Convention’.4 Oman similarly entered a general reserva-
tion about conformity with Shari‘a, and also entered specific reservations to Article
9(2), Article 15(4), and Article 16, particularly paragraph (1)(a), (c), and (f).5
Article 9(2) states, ‘States Parties shall grant women equal rights with men with
1 See UN Treaty Collection, Convention on the Elimination of All Forms of Discrimination
against Women <http://www.treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-

8&chapter=4&lang=en>.
2 See UN Treaty Collection (as of 4 October 2010).
3 See UN Treaty Collection.
4 Reservation of Saudi Arabia, para 1, <http://www.treaties.un.org/Pages/ViewDetails.aspx?
src=TREATY&mtdsg_no=IV-8&chapter=4&lang=en>.
5 Reservation of Oman, paras 1–4, <http://www.treaties.un.org/Pages/ViewDetails.aspx?
src=TREATY&mtdsg_no=IV-8&chapter=4&lang=en>.
Commentary: Women and Islamic Law 305
respect to the nationality of their children’.6 This provision provoked reservations by

other majority-Muslim states, though some have since rescinded their reservations.7
Article 15(4) requires states parties to give men and women ‘the same rights with
regard to the law relating to the movement of persons and the freedom to choose
their residence and domicile’.8 Article 16 requires states to ‘take all appropriate
measures to eliminate discrimination against women in all matters relating to
marriage and family relations’.9 Oman is not alone in entering reservations to
these particular articles. Bahrain, for example, also entered reservations to all three
articles, and added an additional reservation to Article 2 ‘to ensure its implementa-
tion within the bounds of the provisions of the Islamic Shariah’.10 Article 2 is one of
the most general provisions in the Convention, stating that ‘States Parties condemn
discrimination against women in all its forms, agree to pursue by all appropriate
means and without delay a policy of eliminating discrimination against women’ and
therefore ‘undertake’ to do a variety of things, including adopting legislation to
prohibit discrimination against women, refraining from discriminating against
women, and modifying existing laws that discriminate against women.11
Unsurprisingly, the breadth of the reservations and the importance of the provi-
sions to which they relate to CEDAW’s object and purpose have provoked protest
and formal objection from other states parties. For example, Austria’s objection to
Bahrain’s reservation states that the reservation ‘raises doubts as to the degree of
commitment assumed by Bahrain in becoming a party to the Convention since it
refers to the contents of Islamic Sharia’.12 Similarly, Germany’s objection to Saudi
Arabia’s reservation to Article 9(2) explains that the reservation ‘aims to exclude one
obligation of non-discrimination which is so important in the context of CEDAW
as to render this reservation contrary to the essence of the Convention’.13
Broad reservations by Muslim and other countries prompted some experts on
the UN Committee on the Elimination of Discrimination against Women to
recommend as early as 1986 that the states parties consider the reservations that
had already been entered to CEDAW.14 Subsequent discussion of the issue in other
6 CEDAW, Art 9(2).

7 For example, both Egypt and Algeria have recently withdrawn their reservations to Art 9(2).
See <http://www.treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-8&chapter=4&-
lang=en>.
8 CEDAW, Art 15(4).
9 CEDAW, Art 16(1).
10 Reservation of Bahrain, <http://www.treaties.un.org/Pages/ViewDetails.aspx?src=TREA-
TY&mtdsg_no=IV-8&chapter=4&lang=en>.
11 CEDAW, Art 2.
12 Austria’s Objection to Bahrain’s Reservation to CEDAW, <http://www.treaties.un.org/Pages/
ViewDetails.aspx?src=TREATY&mtdsg_no=IV-8&chapter=4&lang=en>; see also Germany’s Objec-

tion to Saudi Arabia’s Reservations to CEDAW, <http://www.treaties.un.org/Pages/ViewDetails.aspx?
src=TREATY&mtdsg_no=IV-8&chapter=4&lang=en> (‘The Government of the Federal Republic of
Germany is of the view that the reservation, with regard to compatibility of CEDAW rules with Islamic
law, raises doubts as to the commitment of the Kingdom of Saudi Arabia to CEDAW. The Govern-
ment of the Federal Republic of Germany considers this reservation to be incompatible with the object
and purpose of the Convention’).
13 See n 12.
14 Report of the Committee on the Elimination of Discrimination against Women on its Fifth
Session, 41 UN GAOR Supp (No 45) at para 364, UN Doc A/41/45 (1986).
306 Gender Equality
UN bodies caused some delegations to claim that a draft resolution on the subject
was anti-Islamic since Egypt and Bangladesh, which had entered broad reservations
based on Shari‘a, were seen by some as the targets of the inquiry.15 Debate over
reservations based on Shari‘a has been framed in terms of ‘religious intolerance and
cultural imperialism’ by the West against Islamic countries.16
Whatever the merits of that dispute, it ignores the fact that the ‘West’ is itself
divided on the question of women’s rights and particularly the merits of CEDAW,
as evidenced by disagreements within the United States that have prevented US
ratification of the treaty and thereby created a division between the United States
and its ‘Western’ allies. President Jimmy Carter signed CEDAW and sent it to the
Senate in 1980. The Convention remained lodged with the Senate Foreign Rela-
tions Committee throughout the whole of the presidencies of Ronald Reagan and
George H W Bush because their Administrations did not support the treaty.17 The
Clinton Administration, in contrast, did support CEDAW and sent a treaty
package, including nine proposed reservations, understandings, and declarations,
to the Senate in 1994.18 Despite a favorable recommendation by the Senate
Foreign Relations Committee, the full Senate did not act on the treaty.19 In June
2002, the Senate Foreign Relations Committee again held hearings on CEDAW
and reported it favorably, but Congress adjourned before the Convention was
brought to a vote.20
The Convention has sparked vigorous opposition over the years from opponents
including the former ranking member of the Senate Foreign Relations Committee,
Senator Jesse Helms, who argued that CEDAW ‘is about denigrating motherhood
and undermining the family’.21 Some civil society groups were even more vocifer-
ous in their arguments that CEDAW would undermine US culture and values,
particularly family values.22 In contrast, CEDAW supporters like then-Senator and
15 Belinda Clark, ‘The Vienna Convention Reservations Regime and the Convention on Discrim-
ination Against Women’ (1991) 85 Am J Int’l L 281, 283–4.

16 Madhavi Sunder, ‘Piercing the Veil’ (2003) 112 Yale LJ 1399, 1426 2003.
17 See Luisa Blanchfield, Cong. Research Service, The U.N. Convention on the Elimination of All
Forms of Discrimination Against Women (CEDAW): Issues in the U.S. Ratification Debate (17 November
2009), at 4.
18 Blanchfield, Issues in the U.S. Ratification Debate.
21 Senator Jesse Helms, ‘The Radical Agenda of CEDAW’ (2000) 146 Cong Rec S 1276, 1277
(8 March).
22 See, eg, Patrick F Fagan, ‘How U.N. Conventions on Women’s and Children’s Rights Under-
mine Family, Religion, and Sovereignty’ (2001) The Heritage Foundation Backgrounder, 5 February,
available online at <http://www.heritage.org/Research/Reports/2001/02/How-UN-Conventions-On-
Womens> (‘[S]ocial policy agents working for and at the United Nations are promoting an agenda that
attacks the natural rights of the family and the independent sovereignty of nations to determine their
own domestic policies on parental rights and the free expression of religious values and beliefs. The
U.N.’s CRC and CEDAW implementing committees may insist that their recommendations are in the
best interests of children and women, but in reality they will greatly expand government programs and
domestic power and adversely affect the future for women and children’); Fagan, ‘How
U.N. Conventions on Women’s and Children’s Rights Undermine Family, Religion, and Sovereignty’
(arguing that the CEDAW Committee has ‘asked nations to change their domestic laws in ways
that ultimately will promote sexual activity among adolescents, increase abortion and legitimize
Commentary: Women and Islamic Law 307
Foreign Relations Committee Chairman Joseph Biden argued that ‘[r]atification of

the treaty would not impose a single new requirement in our laws—because our
Constitution and gender discrimination laws already comply with the treaty
requirements’.23 He framed the treaty as ‘a tool that women around the world
can use in their struggle for basic human rights’.24 In a May 2009 letter to Senate
Foreign Relations Committee Chairman John F Kerry, the Obama Administration
listed CEDAW as one of the treaties on which ‘the Administration supports Senate
action at this time’.25 This suggests that the Obama Administration may make
a push for CEDAW’s ratification sometime soon; CEDAW’s opponents will likely
be ready again.
The long-standing debates within the United States over CEDAW show that
some parts of US society view CEDAW as a cultural challenge to US values
in much the same way that some in Islamic states view CEDAW as a challenge
to their values. Some in both societies think that CEDAW—at least absent broad
reservations—would represent the imposition of U.N. and more generally ‘liberal’
Western values on preexisting, deeply held religious and cultural beliefs. But in the
United States, many disagree with that characterization, and view CEDAW as
entirely compatible with, if not reflective of, US traditions of equality and anti-
discrimination. Ziba Mir-Hosseini’s essay on Musawah—‘a global movement for
equality and justice in the Muslim family’26—shows that some in the Muslim
world are undertaking a similar venture to find a way in which Islamic law and
religious values can also be rendered compatible with international human rights.
Mir-Hosseini’s essay and the explanation of CEDAW’s history in the United States
reveal a commonality: the existence of disagreement within societies. This is no
small thing.
Ratna Kapur’s essay highlights the problematic tendency in discussions of
human rights in general, and women’s rights more specifically, to essentialize
groups. Kapur points out that, ‘To focus only on the category of gender is to
obscure the ways in which women . . . experience multiple forms of subordination.
They come to the law not just as women, but as Black women, and/or Latina/o
women, and/or Lesbian women, and/or Muslim women, negotiating with the
dominant and stable discourses on race, ethnicity, culture, sexuality, religion and/
or family.’27 The recognition that groups—stylized for example as ‘the West’, ‘the
Muslim world’, and ‘women’—involved in the debate over women’s rights and
human rights are themselves internally divided can lead, I hope, to a more reasoned
prostitution, and in general alter the foundations of society. The sexual norms they promote, moreover,
are primarily those sought by radical feminists. They are becoming the tenets of a new “moral” code
against which all religions, domestic policies, and cultures would be judged’).
23 Joseph R Biden, Jr and Barbara Boxer, ‘Senate Needs to Ratify Treaty for the Rights of Women’
(2002) SF Chron, 13 June, at A29.

24 Riden and Boxer, ‘Senate Needs to Ratify Treaty for the Rights of Women’.
25 Letter from Richard R Verma, Asst Sec’y for Legislative Affs, to John F Kerry, Chairman, US
Senate Foreign Relations Committee, 11 May 2009, available online at <http://www.globalsolutions.

org/files/general/White_House_Priorities_List.pdf>.
26 Ziba Mir-Hosseini, Chapter 15, para 1.
27 Ratna Kapur, Chapter 14, Section D.1.
308 Gender Equality
discourse on these issues and a better appreciation of possibilities for understanding
and compromise that would be precluded by viewing each group as monolithic.
It is encouraging that there is rational debate within both Muslim groups and
United States that may, in time, lead to a consensus on CEDAW and women’s
rights more generally.
17
Musawah, CEDAW, and Muslim
Family Laws in the 21st Century
Lynn Welchman
With the title of this book in mind, I want to explore some of the resonances and
dissonances that appear in the recent positions of the Committee on the Elimin-
ation of Discrimination Against Women (CEDAW), those adopted by Musawah
(as described in Chapter 15 by Ziba Mir-Hosseini) and some relatively recent
developments in the Muslim family law codifications of certain members of the
League of Arab States. To begin with, it seems obvious that Musawah—described
by Zainah Anwar of Sisters in Islam in Malaysia as ‘a movement whose time has
come’1—articulates four focuses of attention in the struggle for gender equality, of
which three are clearly shared with CEDAW. These are universal human rights,
national constitutional guarantees of equality (and other national legislation), and
‘the lived realities of women and men’.2
The fourth focus and source for Musawah is ‘Islamic teachings’. In its Framework
for Action, Musawah holds that ‘[t]he teachings of the Qur’an, the objectives of the
Shari‘ah, universal human rights standards, fundamental rights and constitutional
guarantees, and the realities of our lives in the twenty-first century, all demand that
relations between Muslim men and women in both the private and public spheres
be governed by principles and practices that uphold equality, fairness and justice’.3
Mir-Hosseini argues that the idea of gender equality ‘became inherent to concep-
tions of justice in the course of the 20th century’ and that the challenge this
presented opened a space for ‘transformation from within’ through ‘voices such
as those of Musawah’.4 In one of the most significant passages in the Framework for
Action, Musawah states:
Qur’anic teachings encompass the principles of justice (‘adl), equality (musawah), equity
(insaf ), human dignity (karamah), love and compassion (mawaddah wa rahmah). These
principles reflect universal norms and are consistent with contemporary human rights
1 As quoted by Sabrina Tavernise, ‘In Quest for Equal Rights, Muslim Women’s Meeting Turns to
Islam’s Tenets’, New York Times, 15 February 2009.

2 See Musawah website <http://musawah.org> and Mir-Hosseini, Chapter 15, Section C.
3 Musawah, Framework for Action, 2.
4 Mir-Hosseini, Chapter 15, Section D.
310 Gender Equality
standards. These key Qur’anic values can guide further development of family laws and
practices in line with the contemporary notion of justice, which includes equality between
the sexes and before the law.
The Framework also notes that ‘international human rights standards require
dignity, substantive equality and non-discrimination for all human beings’.5 The
reference to ‘substantive equality’ is the only such explicit clarification in the
Framework regarding where the movement stands on the concept of ‘gender
equality’, a concept discussed by Ratna Kapur in Chapter 14. ‘[T]he focus of a
substantive equality approach,’ Kapur tells us ‘is not simply with the equal treat-
ment of the law, but rather with the actual impact of the law.’6 In terms of gender
equality, Kapur observes that ‘CEDAW has primarily adopted a substantive model
of equality’.7 This is affirmed in the most recent General Recommendation
(No.28) issued by CEDAW on states parties’ ‘core obligations’ under Article 2
of the Convention.8 General Recommendation No 28 also affirms (in para 2) that
‘[t]he Convention is a dynamic instrument that accommodates the development of
international law’, going on to explain that:
Article 2 calls on States parties to condemn discrimination against women in ‘all its forms’,
while article 3 refers to appropriate measures that States parties are expected to take in ‘all
fields’ to ensure the full development and advancement of women. Through these provi-
sions, the Convention anticipates the emergence of new forms of discrimination that had
not been identified at the time of its drafting. (para 8)
In a sense, this insistence on dynamism and expansion from original principles is
similar to the positions taken by Musawah on ‘Islamic teachings’. General Recom-
mendation No 28 is of significance to the discussion in hand because of the debate on
the legitimacy of reservations entered to Article 2 (the ‘general undertakings’ article of
the Convention) by a number of Muslim majority states. In 1987, the Committee’s
decision to ask the UN ‘to promote or undertake studies on the status of women under
Islamic laws and customs and in particular on the status and equality of women in the
family [ . . . ] taking into consideration the principle of El Ijtihad in Islam’ led to a
vigorous reaction from Muslim majority (and other) UN member states, with the
Bangladeshi delegate to ECOSOC urging ‘the greatest caution in using the Conven-
tion as a pretext for doctrinaire attacks on Islam’.9 No doubt aware of the emergence of
5 Musawah, Framework for Action, 3.

6 Kapur, Chapter 14, Section B.
7 Kapur, Chapter 14, Section C.
8 General Recommendation No 28 on the core obligations of the states parties under Art 2 of the
Convention on the Elimination of All Forms of Discrimination Against Women, CEDAW/C/2010/

47/GC.2, 19 October 2010. Para 5: ‘[a]n identical or neutral treatment of women and men might
constitute discrimination against women if such treatment resulted in or had the effect of women being
denied the exercise of a right because there was no recognition of the pre-existing gender-based
disadvantage and inequality that women face’. My thanks to Fareda Banda.
9 Cited in B Clark, ‘The Vienna Convention Reservations Regime and the Convention of
Discrimination Against Women’ (1991) 85(2) American J Int’l L 281–321 (at 288); see also
J Connors, ‘Islamic States’ Reservations to the Women’s Convention’ in M Yamani (ed), Feminism
and Islam (New York: Ithaca Press, 1996); A Mayer, ‘Rhetorical Strategies and Official Policies on
Women’s Rights’ in M Afkhami (ed), Faith and Freedom (London: I.B. Tauris, 1995); A E Mayer,
Musawah, CEDAW, and Muslim Family Laws 311
voices from inside different Muslim states under examination (including the voices of
those associated now with Musawah), as well as by their discussions with the states
parties, CEDAW has recently been explicitly encouraging internal review of ‘Islamic
teachings’—through inter alia studies of comparative jurisprudence—to ensure con-
gruence with obligations under the Convention and withdrawal of reservations. In
2007, in its Concluding Comments on Jordan’s report, the Committee noted that it
was ‘concerned about the State party’s assertion that it cannot [ . . . ], for religious
reasons, amend provisions of its Personal Status Act to give women equal rights with
men in matters of marriage, divorce and custody of children’10 and as a consequence
invited Jordan ‘to revise its Personal Status Act, in the light of comparative jurispru-
dence where more progressive interpretations of Islamic law have been codified in
legislative reforms, to give women equal rights in marriage, divorce and custody of
children and to withdraw its reservations to article 16, paragraph 1 (c), (d) and (g)’.11
This year, in its Concluding Comments on the UAE’s Initial Periodic Report,
addressing the issue of equality before the law, and while voicing concerns, the
Committee noted ‘with satisfaction’:
the State party’s reference to the gradual, greater flexibility in sharia interpretation, such as
the presence of a woman judge and the debates on the interpretation of sharia beginning to
take place in relation to equality before the law and access to justice for women. It is also
encouraged by the State party’s ongoing comparative research on Arab and Islamic countries
and the withdrawal of reservations to articles 15 and 16 of the Convention.12
The Committee has not yet taken on the distinction insisted upon by Musawah and
others between ‘Shari‘a (the way, as revealed in Islam’s sacred texts) and fiqh (legal
science and juristic rulings)’, one of two distinctions which the movement views as
critical in order to ‘pierce the veil of sanctity surrounding the classical law’ and to
counter the notion of Shari‘a as ‘immutable and not open to negotiation or to
contestation from within’.13 Even without the specific reference to the objective of
withdrawal of particular reservations to the Convention, its reference to ongoing
‘Islamic Reservations to Human Rights Conventions: A Critical Assessment’ (1998) 15 Recht van de
Islam 25–45; and A E Mayer, ‘Internationalising the Conversation on Women’s Rights: Arab
Countries Face the CEDAW Committee’ in Y Haddad and B Stowasser (eds), Islamic Law and the
Challenges of Modernity (Lanham: Altamira Press, 2004). For a more recent consideration that relates to
the work of Musawh, see Amira El Azhary Sonbol, ‘A Response to Muslim Countries’ Reservations
Against Full Implementation of CEDAW’ (2010) 8 Hawwa (Journal of Women in the Middle East and
Islamic World) 348–67.
10 CEDAW/C/JOR/CO/4 10 August 2007, para 11.
11 CEDAW/C/JOR/CO/4 10 August 2007, para 12.
12 CEDAW/C/ARE/CO/1 5 February 2010, para 45.
13 Mir-Hosseini, Chapter 15. For a more detailed argument as to the significance of making the
distinction between fiqh as the human result and Shari‘a as the original message, in the specific context
of arguments for Muslim family law reform, see Ziba Mir-Hosseini, ‘Towards Gender Equality:
Muslim Family Laws and the Shari‘ah’, in Z Anwar (ed), Wanted: Equality and Justice in the Muslim
Family (Kuala Lumpur: Sisters in Islam and Musawah, 2009), 23–63, at 25–7. A slightly different
construction of the distinction is in Mashood Baderin, International Human Rights and Islamic Law
(Oxford: Oxford University Press, 2003) 33–4; and see Kecia Ali, ‘Progressive Muslims and Islamic
Jurisprudence: The Necessity for Critical Engagement with Marriage and Divorce Law’, in O Safi (ed),
Progressive Muslims on Justice, Gender and Pluralism (Oxford: OneWorld, 2003), 167.
312 Gender Equality
comparative research recognises a process of discussion, comparison, and exchange
that has been in progress since the first codifications of Muslim family law (I should
clarify that I am talking here specifically of member states of the Arab League, this
being my area of research). This process is certainly augmented in the present day, and
involves not only officials at state level and the ‘ulama’ but also women’s movements
and other civil society organisations who are engaged in parallel processes of exchange
and networking to strengthen advocacy arguments for greater protection of women’s
rights in the family. A relatively recent example is the khul‘ provision introduced by
Egypt in 2000, amending divorce law in a manner that the Egyptian National Council
for Women described to CEDAW as giving ‘women the equal right of divorce
through “Khul”, or repudiation, which is the indigenous Islamic formulation of
women’s right to divorce for incompatibility without need to prove damage’.14 The
provision had been (and continues to be) controversial, for some because under
dominant fiqh interpretations such a divorce had required the husband’s consent,
and for others because the wife was required as ‘compensation’ not only to waive all her
remaining financial rights but also to return any dower that she had received from her
husband.15 CEDAW (along with some women’s rights activists) appears unimpressed
with the equality arguments; in its most recent Comments to Egypt in 2010, the
Committee reiterated ‘its concern that women who seek divorce by unilateral termin-
ation of their marriage contract (khula) under Law No. 1 of 2000 can only obtain such
a divorce if they forgo alimony and return their dowry’ and called on Egypt to consider
revising the law ‘in order to eliminate the above-mentioned financial discrimination
against women’.16 Egypt’s lead—which received considerable press attention inter-
nationally as well as in the region—was followed closely by Jordan (on which more
below) and Qatar, and less directly by Algeria.
However, the most significant development in recent years in regard to our
subject has no doubt been the Moroccan family law of 2004, which unusually
contains internal references to commitments under international law.17 Mir-Hos-
seini credits ‘the Moroccan women’s campaign for an egalitarian family law, which
achieved success in 2004’ as ‘[t]he original inspiration for the formation of Musawah
as a global movement’ and notes that Musawah adopted ‘the Moroccan women’s
slogan—“Change is Necessary and Change is Possible”—to frame Musawah’s
objective of linking scholarship and action’.18 The Moroccan law has been the
subject of many academic articles as well as activist exchange, and I will not go into
14 CEDAW/PSWG/2001/I/CRP.2/Add.3 23 October 2000; p 4. Law no 1/2000 regulating
certain litigation procedures in personal status, Official Gazette no 4 of 22 January 2000 (art 20).
15 See Lynn Welchman, Women and Muslim Family Laws in Arab States. A Comparative Overview of
Textual Development and Advocacy (Amsterdam: Amsterdam University Press, 2007), 112–19.
16 CEDAW/C/Egy/CO/7 5 February 2010 Committee’s Concluding Observations on Egypt’s
combined sixth and seventh reports, paras 49 and 50.

17 Law No 70-03 on the Family Code, Ordinance no 1.04.22 of 3 February 2004, Official Gazette
no 5184 of 4 February 2004, 417. Note might perhaps be made here of the 2010 endorsement, by
some 70% of Oklahoma voters, of a ‘Save Our State Amendment’ that requires that ‘the courts shall
not consider international or Sharia law’: Althea Fung, ‘Muslim Group Sues Oklahoma Over Sharia
Amendment’, Wall Street Journal, 5 November 2010.
18 Mir-Hosseini, Chapter 15, Section C.
the details of its positions here.19 Less has been written on three first-time codifica-
tions of Muslim family law that have been promulgated in Arab states since the
Moroccan law (while Musawah was in its formative phase) and that in the main
appear to take very little from it. These are in the UAE (2005), Qatar (2006), and in
Bahrain (2009) for its Sunni communities (the Second Part of the law, for the Shi‘i
communities, was not promulgated).20
These developments leave Saudi Arabia the only Arab Gulf state not to have
issued a Muslim personal status law codification. The first codification in the Gulf
came in Kuwait in 1984, while others have followed the adoption, in 1996, of the
Muscat document by the state members of the Gulf Cooperation Council. The
Muscat document (the ‘Muscat Document of the GCC Common Law of Personal
Status’) was adopted ‘as a reference’ for an initial four years, which was extended for
another four years in 2000.21 It is one of two inter-governmental ‘model texts’
produced in the Arab region on Muslim personal status law; the earlier was drawn
up by the League of Arab States (the Draft Unified Arab Law of Personal Status) in
the late 1980s. Both documents are indicative of the governmental levels of
exchange and comparison. The Gulf states’ laws show many points of convergence,
and some difference: the Qatari law, as noted above, takes a version of the Egyptian
khul‘ provision to add to a wife’s divorce options, while the Explanatory Memoran-
dum to the UAE law explicitly notes that ‘this law has not taken up what certain
Arab personal status codes have done—such as Egypt and Jordan—in considering
khul‘ an individual act from the wife’.22 On the other hand, the three Gulf state
codes legislate provisions attributed to traditional fiqh that articulate the authority
of the father and husband in the family, and that have been removed in the codes of
Morocco, Algeria, and Tunisia: obvious examples are the need for a male guardian
to conclude a woman’s marriage in Qatar and the UAE,23 and the duty of the wife
to obey her husband as part of the ‘balance’ that gives the wife the right to
19 See for example L Rosen, ‘Revision and Reality in the Family Law of Morocco’ in R Mehdi,
H Petersen, E R Sand, and G R Woodman (eds), Law and Religion in Multicultural Societies
(Copenhagen: DJF Publishing, 2008), 131–44; Salime Zakia, ‘Revisiting the Debate on Family
Law in Morocco’ in K Cuno and M Desai (eds), Family, Gender and Law in a Globalizing Middle East
and South Asia (Syracuse: Syracuse University Press, 2009), 145–62; and Katie Zoglin, ‘Morocco’s
Family Code: Improving Equality for Women’ (2009) 31 Human Rights Quarterly 964–84.
20 UAE Federal Law no 28 of 2005 on Personal Status of 19 November 2005, Official Gazette no
439 (35th year) November 2005, including Explanatory Memorandum; Qatari Law of the Family,
Law no 22 of 2006, Official Gazette no 8 of 28 August 2006; Bahraini Law no 19 of 2009 on the
Promulgation of the Law of Family Rulings, First Part. See further Lynn Welchman, ‘Bahrain, Qatar,
UAE: First Time Family Law Codifications in Three Gulf States’, International Survey of Family Law
2010 edition (gen ed Bill Atkin) (Bristol: Family Law, 2010), 163–78. For an analysis of the
codification process in the UAE, see Frances Hasso, Consuming Desires. Family Crisis and the State in
the Middle East (Stanford: Stanford University Press, 2011), 134–42.
21 The GCC website describes this document as consultative. It was adopted at the 7th session of
the Supreme Council of the GCC in accordance with a recommendation from the GCC Justice
Ministers, in October 1996.
22 Explanatory Memorandum to Law no 28 of 2005, pp 226–8.
23 The Bahraini Sunni law makes the consent of the guardian a condition for the validity of the
contract, but does not require him to undertake the contract.

314 Gender Equality
maintenance from her husband.24 They also all maintain separate lists of gender-
specific rights and duties in the marriage that have been removed in Morocco,
Algeria, and Tunisia.
The most recent addition in a consideration of regional trends is the new
Personal Status Law approved by the Jordanian cabinet on 26 September 2010 as
a temporary law in the absence of parliament.25 The law maintains the provisions of
the previous (1976) law regarding male guardianship in a woman’s marriage,26 the
father’s guardianship over children from the marriage, and the wife’s duty to obey
her husband in permitted matters. An earlier draft had removed the article on khul‘
that had been added to the 1976 law in amendments introduced in 2001, again in
the absence of parliament. Back then, when parliament reconvened, the amend-
ments to the Personal Status law were rejected twice by the elected Lower House;
the Upper House approved, and the stalemate appears not to have been resolved.27
This time around, the new law as approved by the Cabinet removed the references
to khul‘, contenting itself with the pre-existing phrase that the wife ‘ransoms
herself 28 by waiving all her matrimonial rights and returns the dower she has
received’. This phrase in the 2001 amendment was followed by ‘and divorces
(khala‘at) her husband’, the verb form of khul‘. The remainder of the conditions
of the provision remain the same; the effect, arguably, is to invoke the Qur’anic
phrasing in support of the new provision (which appears to allow for the same result
as before) to the exclusion of a phrasing that added the active initiative of the wife in
‘divorcing her husband’—after she ‘ransoms’ herself, the court divorces her from
her husband. The Chief Islamic Justice in Jordan was quoted as noting that the
word khul‘ had been removed ‘in order to protect the children of women who
invoke the law from the social stigma attached to it’:
24 See Lynn Welchman, ‘A Husband’s Authority: Emerging Formulations in Muslim Family Laws’
(2011) 25(1) Int’l J Law, Policy and the Family 1–23. Recent research posits the centrality of the
‘maintenance-obedience’ equation as ‘a construct of the codes, rather than a critical feature of pre-
modern Islamic law’. Lama Abu-Odeh, ‘Modern family law, 1800-present. Arab states’, Encyclopaedia
of Women in Islamic Cultures Vol 2; Amira El Azhary Sonbol, ‘Ta‘a and modern legal reform: a
rereading’ (1998) 9(3) Islam and Christian-Muslim Relations; Kenneth Cuno, ‘Disobedient Wives and
Neglectful Husbands’ in Cuno and Desai (eds), Family, Gender and Law in a Globalizing Middle East
and South Asia 3–18.
25 See Rana Husseini, ‘New Personal Status Law strengthens Jordanian families—Hilayel’, The
Jordan Times, 28 September 2010. The text of the new law was published in the daily Al-Ra’i 30
September 2010; my thanks to Afaf Jabiri and Nadia Shamroukh for forwarding it to me. It was
officially published as Law of Personal Status, Law No 36 of 2010, Official Gazette no 5061 p 5809 of
17 October 2010.
26 The Jordanian law specifies the order of male family guardians and refers to his consent in a
number of articles, being explicit on the issue only when stipulating that ‘the consent of the guardian is
not a requirement in the marriage of a previously married woman who is over the age of 18’ (Art 19).
27 See Lynn Welchman, ‘Family, Gender and the Law in Jordan and Palestine’, in Cuno and Desai
(eds), Family, Gender and Law in a Globalizing Middle East and South Asia, 126–44.
28 This phrase (iftadat nafsaha), uses the same language as that in the Qur’anic verse (2:229) cited in
the draft explanatory memorandum to the Egyptian law of 2000 as a source for this provision. In
English translations it is variously translated as ‘if she gives something for her freedom’ or ‘if she
ransoms herself ’ (see translations by A Yusuf Ali and Marmeduke Pickthall).
We felt that if would be hard for the daughter of a mother who divorced herself from her
father via the khuloe law to be called the daughter of such a parent. It is socially damaging to
the daughter.29
Whatever the fate of this new formulation (and the rest of the new law) when
reviewed by parliament, if it is the case that the divorce option for wives opened by
the provision remains the same in effect, the articulated need for the change in
wording is significant; women who were involved in the debates around the text
observe that the ‘shame’ of a khul‘ divorce attaches to the divorced husband.
When the first draft of the new law was released by the Office of the Chief
Islamic Justice, objections to the removal of the khul‘ provision were voiced inter
alia by the Jordanian Coalition for the Amendment of the Law of Personal Status.
This civil society grouping had been working for three years and had ‘studied the
law of personal status in comparison with other personal status laws in the Arab
region, putting its efforts into arriving at jurisprudential (fiqhi) views that help in
producing a just law of the family’.30 In its intervention, the Coalition also cited the
Jordanian Constitution and international instruments (the ICCPR, the ICESCR
and the Convention on the Elimination of All Forms of Discrimination Against
Women). The Coalition has been working also with colleagues from Egypt,
Lebanon and Palestine on the reform of family law in the region, a major invest-
ment in comparative jurisprudence, statute, and practice. Some of the activists
involved in this effort have been involved to varying extents in Musawah, while
others have not; nor do all take the same approach on the way forward in legal
advocacy.
To return briefly to the new Jordanian law, the text includes a phrase not present
in the previous law but present (newly) in the Moroccan code and the UAE. This is
the phrase mawadda wa rahma, which Musawah translates as ‘love and compassion’
and which—as cited at the beginning of this essay—is identified as among the ‘key
Qur’anic values’ in the movement’s call for equality and justice in Muslim family
law.31 The UAE law invokes this phrase in the last sentence of its definition of
marriage, which it sets under the charge of the husband.32 In Morocco, where the
definition of marriage assigns charge of the family to the two spouses, the phrase
29 Husseini, ‘New Personal Status Law strengthens Jordanian families—Hilayel’.

30 ‘Mawqif al-tahaluf al-urduni li-ta‘dil qanun al-ahwal al-shakhsiyya min mashru‘ al-qanun al-jadid’,
undated memorandum forwarded by Nadia Shamroukh, director of the Jordanian Women’s Union,
email of 3 November 2010; I am grateful to Nadia Shamroukh.
31 See Musawah, Framework for Action. Lila Abu-Lughod has traced in Islamist discourse (specific-
ally the women’s page of the newspaper published by al-Azhar in 1990s Cairo) the phrases rahma and
muwadda: ‘marriage as properly based on the emotions of amity (mawadda) (described as a higher
emotional state than love) and mercy (rahma) . . . ’ Lila Abu-Lughod, ‘The Marriage of Feminism and
Islamism in Egypt: Selective Repudiation as a Dynamic of Postcolonial Cultural Politics’ in L Abu-
Lughod (ed), Remaking Women: Feminism and Modernity in the Middle East (Cairo: American
University of Cairo, 1998), 253.
32 Federal Law no 28 of 2005 on Personal Status of 19 November 2005, Official Gazette no 439
(35th year) November 2005. Article 66. ‘Marriage is a contract that renders lawful each spouse’s sexual
enjoyment of the other, its purpose chastity and the founding of a stable family under the charge/in the
care of (ri‘aya) the husband, on bases that secure for the two of them the bearing of the family’s burdens
in love and compassion.’
316 Gender Equality
comes in the provision on ‘the spouses’, an articulation of their relationship that has
replaced the previous gender-specific listing of rights and duties.33 In the 2004 law,
both spouses have the right of the ‘mutual respect, love and affection’ of the other
and that the other will attend to the interest of the family.34 The new Jordanian
law, which maintains its previous position of legislating gender-specific rights and
responsibilities of husband and wife, now includes this phrasing in a provision
adapted significantly from its predecessor. The 1976 law provided that ‘the hus-
band shall treat his wife well and deal with her fairly (bi’l-ma‘ruf ); the wife shall
obey her husband in permitted things’.35 The new law requires that ‘each spouse
shall treat the other well and deal with them fairly, shall be chaste to the other and
be mutual in their respect and love and compassion and in their preservation of the
interest of the family’.36 This shows some interesting resonance with the Moroccan
provision, although in the Jordanian law, the wife’s duty of obedience has not
disappeared from the law but is stipulated in the following article.
In its 2006 report to CEDAW, Jordan had directly tackled the issue of equality
in family law when presenting its position on its reservation to article 16(1)(c) on
‘the same rights and responsibilities during marriage and at its dissolution’:
Jordan maintains its reservation to this paragraph of article 16 of the Convention on the
grounds that it is incompatible with the Shari‘a. Under Jordanian law, marriage is not based
on equality of rights and duties for husband and wife, but on reciprocity, i.e. rights for the
wife with corresponding duties for the husband, and rights for the husband with corres-
ponding duties for the wife. It follows that the concept of equality between spouses cannot
be made to fit into the existing legal system.37
This is a rather stark statement of ‘Shari‘a’ on the part of the government, and with
the reference to ‘reciprocity’ of rights and duties it may evoke CEDAW’s General
Recommendation No 28 on ‘core obligations’ under Article 2 of the Convention.
The Committee calls upon states ‘to use exclusively the concepts of equality of
women and men or gender equality and not to use the concept of gender equity in
implementing their obligations under the Convention’.38 In a later response to
questions from Committee in 2007, Jordan noted that:
33 Although in a separate section, the husband retains his primary responsibility for maintenance of
his wife and children.

34 Law no 70-03 on the Family Code, Ordinance no 1.04.22 of 3 February 2004. Official Gazette
no 5184 of 5 February 2004, p 417. Art 51(2).

35 Jordanian Law of Personal Status (Law no 61 of 1976). Official Gazette no 2668 of 1 December
1976). Art 39.

36 Article 78. The circumstances of a wife’s ‘disobedience’ (nushuz) are dealt with in Art 62;
pregnant wives are exempt from the loss of maintenance in circumstances of nushuz.
37 CEDAW/C/JOR/3–4 10 March 2006, para 248. Jordan submitted its fifth periodic report on
16 September 2010 but the documentation (including questions and comments) was not at the time of
writing available on the OHCHR website.
38 CEDAW/C/2010/47/GC.2, 19 October 2010, para 22. The paragraph continues: ‘The latter
concept is used in some jurisdictions to refer to fair treatment of women and men, according to their
respective needs. This may include equal treatment or treatment that is different, but which is
considered equivalent in terms of rights, benefits, obligations and opportunities.’
The legal working group of JNCW [the Jordanian National Commission for Women] and
many relevant women’s organizations are continuing their efforts to review the personal
status laws and propose amendments aimed at achieving equality and fairness. Given the
link between the personal status laws and the religious authorities, JNCW relies on those
religious interpretations that are the fairest and most responsive to women’s rights and
needs. This process is ongoing, and JNCW has before it a set of proposals of which it is
trying to secure the adoption in accordance with procedures. Commission members
continue to hold meetings and negotiations with relevant parties in the Government and
Parliament and have also engaged public opinion through seminars and conferences
designed to ensure the acceptance of and necessary support for the proposals.39
The attention to procedure is interesting here, given the fate of the 2001 amend-
ments, as is the reference to the efforts of women’s organisations. Parties in the
government, Parliament, and the public at large are to be engaged in an effort at
winning support presumably not only for procedural changes but for substantive
changes based on arguments around Muslim jurisprudence (fiqh). The reference to
religious authorities is inclusive: the Jordanian report also refers to the ecclesiastical
authorities of the several Christian communities in the country. Among Muslim
communities in the Middle East where opinion polls have been carried out prior to
a national codification of Muslim personal status law, there have been strong
majorities in favour of ‘Shari‘a-based’ law in Muslim family matters. In Bahrain
in 2004, 97% of survey respondents ‘agreed strongly’ that codification should be
drawn from the rulings of Shari‘a; in Palestine in 2000 a survey deduced a
‘profound commitment to sharià as the basis for family law by both, but especially
by women’.40 What exactly is meant, understood or expected from Shari‘a is not
however uniform, and a gender difference shows up in surveys that probe more
deeply issues of the protection of women’s rights in Shari‘a-based family law.41
There are also significant points to be made in terms of process. In the Palestine
poll, the largest group of respondents held that ‘the society should vote’ with
smaller numbers holding that the decisions on content should be taken by the
judges of the Shari‘a courts, the Palestinian Legislative Council or the President.42
Hammami observes that this finding ‘attests to the degree to which personal status
law is viewed as simultaneously of religion and about it, but is also seen as needing
to function in relation to society, the state, and political institutions’.43 In Bahrain,
the 2004 survey showed a preference on the part of the majority of respondents for
the drafting committee of a family law codification to be comprised of Shar‘i jurists
39 CEDAW/C/JOR/Q/4/Add.1 17 May 2007, para 27.

40 Supreme Council for Women and Bahrain Centre for Studies and Research (SCW & BCSR)
‘Opinion Survey on the Codification of Family Law Rulings in the Kingdom of Bahrain’ (SCW &
BCSR, 2005), 49; Rema Hammami, ‘Attitudes Towards Legal Reform of Personal Status Law in
Palestine’ in L Welchman (ed), Women’s Rights and Islamic Family Law (London: Zed Books, 2004),
125–43, at 141.
41 Hammami, ‘Attitudes Towards Legal Reform of Personal Status Law in Palestine’; Essam Fawzi,
‘Muslim Personal Status Law in Egypt: The Current Situation and Possibilities of Reform through
Internal Initiatives’ in L Welchman (ed), Women’s Rights and Islamic Family Law, 17–94.
42 Hammami, ‘Attitudes Towards Legal Reform of Personal Status Law in Palestine’, 142.
43 Hammami, ‘Attitudes Towards Legal Reform of Personal Status Law in Palestine’, 142–3.
318 Gender Equality
and scholars of the two schools, along with lawyers and members of civil society
associations.44
The complexity of these interstices are underlined in Ratna Kapur’s examination
of the campaigns and positions taken in the ‘controversy over the Shah Bano case,
the Muslim Women’s Act and the Uniform Civil Code’ in a state where Muslims
form a minority.45 Kapur makes a compelling argument for ‘a more critical
engagement with gender equality and human rights, where culture is no longer
constantly placed in the dock and singled out as culpable’.46 In complex engage-
ments, alliances have to be negotiated. Mir-Hosseini refers to the process and
consensus-building leading up to the development of Musawah’s Framework for
Action and the launch meeting in Kuala Lumpur in 2009, with ‘heated exchanges’
around ‘the divide between “Islam” and “feminism”’.47 While the meeting was
ongoing, Mir-Hosseini was quoted in the New York Times as observing (in a reprise
of a comment she made to the meeting) that ‘[s]ecular feminism has fulfilled its
historical role, but it has nothing more to give us. [ . . . ] The challenge we face now
is theological’.48 This was a personal (not a ‘movement’) statement, and I am sure
that Mir-Hosseini would have wished for more space to contextualise the quote—
especially to clarify the ‘we’ and ‘us’, given precisely the complexities of different
country and community situations and dynamics. Although Musawah activists
stand to be well-placed to evaluate and work with such complexities, there are clear
risks in appearing to dismiss the way other women (including Muslim women)
choose to struggle.49
However, discussions on the Islam-feminism ‘divide’ referred to by Mir-Hos-
seini are not the same as the discussions on strategies for the better protection of
Muslim women’s human rights, including equality in the family.50 A note here:
Musawah as a ‘global movement for equality and justice in the Muslim family’ has
(as far as I have seen, and if it is the case, probably deliberately) yet to define what it
means or might mean by the ‘Muslim family’.51 With its platform of equality for all
44 SCW & BCSR, ‘Opinion Survey on the Codification of Family Law Rulings in the Kingdom of
Bahrain’, 56.
45 Kapur, Chapter 14, Section E.1.
46 Kapur, Chapter 14, Section G.
47 Mir-Hosseini, Chapter 15, Section C.
48 As quoted by Sabrina Tavernise, ‘In Quest for Equal Rights, Muslim Women’s Meeting Turns
to Islam’s Tenets’, New York Times, 15 February 2009.

49 And to be clear, I say this as a friend!
50 For a current set of contributions on ‘Islam and feminism’ see Contestations: Dialogues on
Women’s Empowerment, Issue 1, on line at <http://www.contestations.net/issues/issue-1/religion-

and-gender-justice/>. See more generally Lila Abu-Lughod: ‘When we treat “Muslim women’s rights”
as a social fact rather than a rallying cry, we can begin to use them to better understand the complex
dynamics of gendered power, global, national, and local’. L Abu-Lughod, ‘The Active Social Life of
“Muslim Women’s Rights”. A Plea for Ethnography, not Polemic, with Cases from Egypt and
Palestine’ (2010) 6(1) J Middle Eastern Women’s Studies 1–45, at 34.
51 Since this comment was written, Musawah has published a research paper on CEDAW and
Muslim Family Laws. In Search of Common Ground (Malaysia: Sisters in Islam, 2011). This paper does
define what it regards as the scope of its research and advocacy under the phrase ‘Muslim family laws’
(although not ‘Muslim family’). It does not deal with the issues noted in this paragraph. The most
obviously inclusive wording comes on Musawah’s website where the network’s Key Messages includes
citizens and the universality of human rights, it faces challenges also in looking at
issues involving non-Muslims under Muslim family laws—the dominant fiqh
position prohibiting Muslim women from marrying non-Muslim men, for
example, the issue of inheritance rights across religions/sects, and statutes in
Muslim majority states that give non-Muslim mothers unequal rights (compared
to Muslim mothers) in regard to the post-divorce custody of their children.52 Then
there are, of course, the issues of families constituted outside the statutory rules that
variously regulate recognition of the institution.53
For the moment, Musawah has aims and objectives that are quite as ambitious as
the times require, and an energy that takes it forward. At the UN, Musawah
activists are already engaged in country report processes and other discussions at
CEDAW. CEDAW has of course its own momentum; for example, the three Arab
Gulf states that issued first-time family law codifications this last decade have all
during the same period become parties to the Convention. Ann Elizabeth Mayer
has explored the impact—with regard to certain Arab states—of the process of
preparing reports, the role of non-state actors in providing parallel reports, and the
discussions on (or defence of) those reports in the Committee.54 Musawah is set to
contribute to an active networking between women’s and civil society groups
regionally and internationally; and it is itself already the subject of critique.
Among other variables, the space available for domestic activism and the states’
different regional and international positioning vary significantly—and of course
are not static. The efforts of a movement such as Musawah are presented as
intended to come in support of the local and regional activities of those already
engaged in seeking changes in Muslim family laws. Although many of these invoke
also the international women’s rights discourse, Musawah’s insistence is on the
compatibility of the latter with the Islamic ideal of justice: the common ground is,
according to this claim, both principle and objective.
a reference to ‘families in all their multiple forms’ which ‘should be safe and happy places, equally
empowering for all’ <http://musawah.org/about-musawah> (last accessed 7 June 2012).
52 For a recent intervention to CEDAW on the first two of these issues, see Association Tunisienne
des femmes democrates (ATFD), ‘Women’s Rights in Tunisia, Alternative Report’ submitted to
CEDAW October 2010, available online at: <http://www2.ohchr.org/english/bodies/cedaw/docs/
ngos/ATFD_Tunisia_CEDAW47_en.pdf>.
53 For example, in its 2006 comment on art 16(1)(d) (‘The same rights and responsibilities as
parents, irrespective of their marital status, in matters relating to their children), Jordan reported that
‘the legally accepted and socially recognized family type in Jordan is marriage between a man and a
woman, and consequently Jordan maintains its reservation to this paragraph because it is incompatible
with Jordanian law, which is derived from the Shari‘a’. CEDAW/C/JOR/3–4 10 March 2006, para
256.
54 Mayer, ‘Internationalizing the Conversation on Arab Women’s Rights’.
List of Contributors
John B Bellinger III is a Partner at Arnold & Porter LLP in Washington, DC and Adjunct
Senior Fellow in International and National Security Law at the Council on Foreign
Relations; formerly the Legal Adviser to the US Department of State, 2005–2009.
Nehal Bhuta, Professor of Public International Law at the European University Institute,
Florence, Italy.
Kathleen Cavanaugh , Lecturer of International Law at the Faculty of Law, Irish Centre for
Human Rights, National University of Ireland, Galway.
Hans Corell was Under-Secretary-General for Legal Affairs and the Legal Counsel of the
United Nations 1994–2004. From 1962 to 1972, he served in the Swedish judiciary. In
1972, he joined the Ministry of Justice where he became Director of the Division for
Administrative and Constitutional Law in 1979. In 1981, he was appointed Chief Legal
Officer of the Ministry. He was Ambassador and Under-Secretary for Legal and Consular
Affairs in the Ministry for Foreign Affairs from 1984 to 1994. Since his retirement from
public service in 2004 he has been involved in the work of the International Bar Associ-
ation, the International Center for Ethics, Justice and Public Life at Brandeis University and
the Hague Institute for the Internalisation of Law. He is Chairman of the Board of Trustees
of the Raoul Wallenberg Institute of Human Rights and Humanitarian Law at Lund
University, Sweden.
Mark S Ellis is executive director of the International Bar Association (IBA), the foremost
international organization of bar associations, law firms and individual lawyers in the world.
A frequent speaker and media commentator on international legal issues, he appears
regularly on CNN International, Al Jazeera, and BBC. He has published extensively in the
areas of international humanitarian law, and the rule of law, and his op-eds have appeared
in The New York Times, The International Herald Tribune, and The London Times. Twice
a Fulbright Scholar at the Economic Institute in Zagreb, Croatia, he earned his JD and
BS (Economics) degrees from Florida State University and his PhD in Law from King’s
College, London. He serves on the editorial boards for the Journal of National Security Law
and Policy and The Hague Journal on the Rule of Law.
Anver M Emon BA (UC Berkeley); JD (UCLA School of Law); MA (University of Texas at
Austin); LLM (Yale Law School); PhD (UCLA) and JSD (Yale Law School). Emon is
Associate Professor at the University of Toronto Faculty of Law, where he teaches in both
fields of Islamic law and the Common Law. His scholarly research focuses on premodern
and modern Islamic legal history, and on Shari‘a-related debates both inside and outside the
Muslim world. The author of numerous articles, his publications include Islamic Natural
Law Theories (Oxford: OUP, 2010) and Religious Pluralism and Islamic Law: Dhimmis and
Others in the Empire of Law (Oxford: OUP, 2012). He is the founding editor-in-chief of the
journal Middle East Law and Governance and a general editor of the Oxford Islamic Legal
Studies monograph series.
Benjamin Glahn, Former Deputy Chief Programme Officer and Program Director, Salz-
burg Global Seminar.
xiv List of Contributors
Richard J Goldstone was a judge in South Africa for 23 years, the last nine as a Justice of the
Constitutional Court. Since retiring from the bench he has taught as a visiting professor in a
number of United States Law Schools. From August 1994 to September 1996 he was the
chief prosecutor of the United Nations International Criminal Tribunals for the former
Yugoslavia and Rwanda. He is an honorary Bencher of the Inner Temple, London and an
honorary fellow of St John’s College, Cambridge. He is an honorary member of the
Association of the Bar of the City of New York and a foreign member of the American
Academy of Arts and Sciences. He is also an honorary life member of the International Bar
Association and Honorary President of its Human Rights Institute. He chairs the Executive
Committee of the Institute for Historical Justice and Reconciliation. He serves on the board
of the Salzburg Global Seminar.
Murad Hussain is an Associate at Arnold and Porter LLP in Washington, DC; formerly a
law clerk to the Honorable Ellen Segal Huvelle of the US District Court for the District of
Columbia.
Malik Imtiaz Sarwar LLB (International Islamic University, Malaysia); LLM with Distinc-
tion (University of Hong Kong); MSt, International Human Rights Law with Distinction
(Oxon); Advocate and Solicitor of the High Court of Malaya; President, National Human
Rights Society, Malaysia; recipient of the 2009 Index on Censorship Freedom of Expression
(Law and Campaigning) Award.
Ratna Kapur is a Distinguished Professor of Law at the Jindal Global Law School, Sonepat
(NCR, Delhi), India. She is also the titular head of the Centre for Feminist Legal Research,
New Delhi.
Urfan Khaliq, Reader in Public International and EU Laws, Cardiff Law School, Cardiff
University, United Kingdom.
Robin W Lovin, Cary Maguire University Professor of Ethics, Southern Methodist Univer-
sity; Don S. Browning Research Fellow, Center of Theological Inquiry.
Muhammad Khalid Masud, MA, PhD (1973) McGill University. Formerly Chairman,
Council of Islamic Ideology, Islamabad, and Academic Director ISIM, Leiden, Masud is the
Director General, Islamic Research Institute, Islamabad, and editor of the quarterly Islamic
Studies. He has published extensively on Islamic law, contemporary issues, and intellectual
trends in the Muslim societies.
Errol P Mendes, Professor of Law, University of Ottawa.
Ziba Mir-Hosseini, Research Associate, Islamic and Middle Eastern Law, School of Orien-
tal and African Studies, UK.
Edward Mortimer, Senior Program Advisor and former Senior Vice-President, Salzburg
Global Seminar; former Director of Communications, United Nations Secretary-General;
author of Faith and Power: The Politics of Islam (New York: Random House, 1982).
Justice Sandra Day O’Connor (Ret.), US Supreme Court.
Intisar A Rabb is an associate professor at the NYU School of Law and in the NYU Middle
Eastern and Islamic Studies Department. In Fall 2012, she served as a visiting associate
professor of law at Harvard Law School. Previously, she served as a member of the law
faculty at Boston College Law School, was named a Carnegie Scholar for research on
contemporary Islamic law, and served as a law clerk for Judge Thomas L Ambro of the
United States Court of Appeals for the Third Circuit. She has published on Islamic law in
List of Contributors xv
historical and modern contexts, and is currently working on a book called The Burden and
Benefit of Doubt: Legal Maxims in Islamic Law. She received a BA from Georgetown
University, a JD from Yale Law School, and an MA and PhD from Princeton University.
Javaid Rehman, Professor of Law, and Head of Brunel Law School, Brunel University,
London, United Kingdom.
Abdullah Saeed is currently the Sultan of Oman Professor of Arab and Islamic Studies and
Director of the National Centre of Excellence for Islamic Studies at the University of
Melbourne, Australia. His research focus is the negotiation of text and context, ijtihad
and interpretation. Among his publications are: Islamic Political Thought and Governance
(edited, 2011); The Qur’an: An Introduction (2008); Interpreting the Qur’an: Towards a
Contemporary Approach (2006), Islamic Banking and Interest (1999); Freedom of Religion,
Apostasy and Islam (co-authored, 2004); Islam in Australia (2003). He is a member of the
UNESCO Commission of Australia and a Fellow of the Australian Academy of Humanities.
He has a wide range of professional and research relationships around the world and is on
the editorial board of several international refereed journals. He is well-known for his inter-
faith activities in Australia and overseas and for his reformist outlook.
Adel Omar Sherif is a career judge who has been acting as a Deputy Chief Justice
of the Supreme Constitutional Court of Egypt since 2002. He is also a Distinguished
Visiting Professor of Law at SMU’s Dedman School of Law, Dallas, Texas. Additionally,
he is the Vice President of the International Judicial Academy in Washington,
DC. Throughout his career, he has been fully engaged in various activities within the
legal community in Egypt and also abroad, contributing intensely to the development of the
international judicial movement. He has worked closely with many international organiza-
tions in developing capacity building programs for judges and lawyers from different legal
traditions, especially in the area of environmental law and sustainable development, human
rights, and child protection. Occasionally, he has been dispatched to and/or become
affiliated with a number of academic institutions, both inside Egypt and outside. His
published works cover many aspects of human rights, constitutional issues, Islamic law,
and environmental law.
Sumner B Twiss, Distinguished Professor of Human Rights, Ethics, and Religion at Florida
State University and Professor Emeritus of Religious Studies at Brown University. He is the
co-author or co-editor of seven books and the author of over fifty major articles. His fields of
expertise include comparative religious ethics and intercultural human rights.
Lynn Welchman, Professor of Law in the Middle East and North Africa, School of Oriental
and African Studies, University of London. Publications include Women and Muslim Family
Law in Arab States. A comparative overview of textual development and advocacy (2007);
‘Honour’. Crimes, Paradigms and Violence Against Women (2005, co-edited with Sara
Hossain); Women’s Rights and Islamic Family Law: Perspectives on Reform (2004, ed.); and
Beyond the Code: Muslim Family Law and the Shar‘i Judiciary in the Palestinian West Bank
(2000). Founding Editor, Muslim World Journal of Human Rights; series editor, Oxford
Islamic Legal Studies; Board of Directors, INTERIGHTS (The International Centre for the
Legal Protection of Human Rights); Board Member, Euro-Mediterranean Foundation of
Support to Human Rights Defenders.
18
Religious Minorities and Islamic Law:
Accommodation and the
Limits of Tolerance
Anver M Emon
A. Introduction
At the discursive intersection of Islamic law and the rights of minorities lies a
difficult, and often politicized, inquiry into the Islamic legal treatment of religious
minorities—in particular non-Muslim minorities who permanently reside in the
Islamic polity, known as the dhimmis. Legally, the dhimmi pays a poll tax ( jizya) to
enter into a contract of protection under which he is permitted to reside peacefully
within Muslim lands and preserve his faith commitments. The contract of protec-
tion, or the ‘aqd al-dhimma, is a politico-legal device that embraces the content of
the dhimmi rules, outlining the terms under which the dhimmi lives in the Islamic
polity and the degree to which his difference will be accommodated or not. In the
premodern legal literature, dhimmis are subjected to various rules regulating the
scope of what modern lawyers would call their freedom and liberty, whether to
manifest their religious beliefs or to act in ways contrary to Islamic legal doctrines
but in conformity with their own normative traditions. The premodern regulations
are often called ‘the dhimmi rules’, which will be used hereinafter as a shorthand to
refer to the vast body of rules that govern the conduct of dhimmis in the Muslim
polity.
The dhimmi rules often lie at the centre of debates about whether the Islamic
faith is tolerant or intolerant of non-Muslims. Some suggest that these rules are
important indices of the inherent intolerance in the Islamic tradition, and therefore
of Muslims themselves.1 Others suggest that these rules had only limited real-world
application and should not be considered characteristic of the Islamic legal treat-
ment of religious minorities. Both sets of arguments are not without evidence. The
first view is bolstered by historical incidents of persecution, premodern rules that
1 For a concise overview of the myths and counter myths, see Mark Cohen, ‘Islam and the Jews:
Myth, Counter-Myth, History’ in S Deshen and W Zenner (eds), Jews among Muslims: Communities in
the Precolonial Middle East (New York: New York University Press, 1996), 50–63.
324 Minority Rights
discriminate on religious grounds, and reports of human rights monitoring groups
that detail incidents of persecution (both official and unofficial) against non-
Muslim citizens of Muslim-majority states today. The second view finds support
in historical records that illustrate the important role non-Muslims played in
Muslim-ruled lands, whether economically, politically, or otherwise.
Given the aim and purpose of this book, a treatment of the dhimmi rules seems
appropriate. Indeed, along with the other topics addressed herein, the treatment of
minorities generally, and religious minorities in particular, has been an important
index of the quality of freedom and dignity that a given legal system fosters.
Whether that system is medieval or modern, religious or secular, the treatment of
minorities remains highly sensitive. For some, the sensitivity of the issue is framed
in terms of the language of ‘tolerance’. This essay, however, will suggest that to use
‘tolerance’ to frame the debate on minorities all-too-often misses the larger socio-
political conditions that make debates about tolerance intelligible, meaningful, and
relevant in a given historical moment. Indeed, frequently among philosophers and
political scientists, tolerance is decried as a cover that hides the underlying dynamics
of governance amidst pluralism.2 In other words, to use ‘tolerance’ to frame the
analysis of the treatment of minorities is to look past how the meaningfulness of
being a minority is dependent upon the extent to which majoritarian values
animate the governing enterprise that rules in a context of diversity. This political
reality is not unique to the Islamic legal tradition; it is a shared feature of legal
systems across both space and time. Consequently, this brief study of the dhimmi
rules significantly qualifies the use of ‘tolerance’ as a meaningful term of art, and
instead recognizes that the dhimmi rules are symptomatic of the more general (and
shared) challenge of governing pluralistically.
B. Myths and counter myths: the dhimmi

rules and the limits of tolerance
The academic interest in the dhimmi rules has much to do with the fact that they
are facially discriminatory in ways that offend contemporary sensibilities. There is
no denying the fact that such rules discriminate because the dhimmi is not a
Muslim. Examples of such rules include: limitations on whether dhimmis can
build or renovate their places of worship; clothing requirements that distinguish
dhimmis from Muslims; a special tax liability known as the jizya; and their incap-
acity to serve in the military.
Those writing about the dhimmi rules sometimes indulge certain myths about
Islam, which are principally interpretations of history that do not contend with the
complex tensions and interests at play when governing a pluralist polity.3 The two
predominant myths hovering over the dhimmi rules are those of harmony and
2 See for instance, Wendy Brown, Regulating Aversion: Tolerance in the Age of Identity and Empire
(Princeton: Princeton University Press, 2008).

3 For a concise overview of the myths and counter myths, see Cohen, ‘Islam and the Jews’.
Religious Minorities and Islamic Law 325
persecution. Adherents of the myth of harmony argue that the different religious
groups coexisted in peace and harmony, with each non-Muslim group enjoying a
degree of autonomy over its internal affairs. This image is constructed by reference
to periods of Islamic history where the different religious groups seem to have co-
existed without substantial turmoil or persecution. For instance, considerable ink
has been spent on the history of Andalusian Spain. This period is often described as
one of harmonious interaction between Muslims, Jews, and Christians, and posited
in contrast to a soon-to-come Reconquista and Inquisition led by a Catholic Spain.
For instance, Maria Rosa Menocal writes:
In principle, all Islamic polities were (and are) required by Quranic injunction not to harm
the dhimmi, to tolerate the Christians and Jews living in their midst. But beyond that
fundamental prescribed posture, al-Andalus was . . . the site of memorable and distinctive
interfaith relations. Here the Jewish community rose from the ashes of an abysmal existence
under the Visigoths . . . Fruitful intermarriage among the various cultures and the quality of
cultural relations with the dhimmi were vital aspects of Andalusian identity . . . 4
Menocal does not ignore the fact that tensions existed in the Andalusian period. But
those tensions were not always between religious groups. Rather, as she notes, much
political friction existed among the Muslim ruling elites, thereby rendering minority
groups important political allies to different elite factions among the Muslim populace.
Notably, Menocal’s work contributes to an ongoing debate within Andalusian
studies, in particular about whether the climate of ‘tolerance’ in fact existed, or whether
to frame that period in terms of tolerance adopts a too-presentist perspective on any
reading of the past. As Anna Akasoy reminds us, ‘[p]opular attitudes still reveal
a simplistic general picture, but debates among historians are now much more
nuanced’.5 That nuanced historical reading reveals serious concerns about the sources
available, and the kinds of historical data that can be gleaned from them, keeping in
mind the historical Andalusian context, as opposed to any present context or set of
values. For Akasoy, an important lesson to be gained from the focus on Andalusian
Spain is how that history is instrumentalized for contemporary ideological purposes.
She concludes: ‘one lesson to be learned not so much from history . . . but from the way
it is presented is just how much negotiating the past is part of negotiating the present’.6
Additionally, those adopting the myth of harmony might privilege historical
practice over legal doctrine, or argue that the rules were more academic than reflective
of a lived reality. For instance, while some rules prohibited non-Muslims from holding
high governmental office, historical records show that non-Muslims held esteemed
positions within ruling regimes, often to the chagrin of Muslim elites.7 Others argue
4 María Rosa Menocal, How Muslim, Jews, and Christians Created a Culture of Tolerance in Medieval
Spain (Boston: Little, Brown and Company, 2002), 30.

5 Anna Akasoy, ‘Convivencia and its Discontents: Interfaith Life in al-Andalus’ (2010) 42 Inter-
national Journal of Middle East Studies 489–99, 491.

6 Akasoy, ‘Convivencia and its Discontents’, 498.
7 Mark R Cohen, ‘Medieval Jewry in the World of Islam’ in The Oxford Handbook of Jewish Studies,
ed Martin Goodman (Oxford: Oxford University Press, 2002), 193–218; Roger M Savory, ‘Relations
between the Safavid State and its Non-Muslim Minorities’ (2003) 14(4) Islam and Christian-Muslim
Relations 435–58.
326 Minority Rights
that despite its application to dhimmis only, the jizya tax was merely an administrative
matter used to organize society. Jizya was a non-Muslim tax whereas the charitable
zakat tax was the Muslim one. They argue that both groups paid taxes and, as such, the
jizya should not be considered a discriminatory tax that speaks to an underlying
Muslim intolerance of the religious Other.8
The myth of harmony stands in stark contrast to the myth of persecution. This
myth suggests that endemic to the Muslim mindset is a notion of the non-Muslim
as not only the Other, but also as subservient, submissive, and politically disem-
powered. Those adopting the myth of persecution justify their position by referring
to the dhimmi rules, as well as historical accounts of Muslim rulers oppressing non-
Muslims.9 Consequently, while the myth of harmony considers the law as a mere
technicality found in academic books, the myth of persecution relies on the law to
illustrate Islam’s inherently intolerant nature. Importantly, contemporary beliefs
and attitudes about tolerance and pluralism are often anachronistically projected
backward as standards by which to judge the past.10
Perhaps the most alarmist works adopting the myth of persecution are the studies
by Bat Ye’or, the pseudonym of an independent scholar of Egyptian-Jewish origins.
Notably, her work on the dhimmi has been criticized as less than scholarly.11 That does
8 Abdelwahab Boudhiba, ‘The Protection of Minorities’ in A Boudhiba and M Ma‘ruf al-Dawalibi
(eds) The Different Aspects of Islamic Culture: The Individual and Society in Islam (Paris: UNESCO,
1998), 331–46, 340–1. See also, Ghazi Salahuddin Atabani, ‘Islamic Shari’ah and the Status of Non-
Muslims’ in Religion, Law and Society: A Christian-Muslim Dialogue (Geneva: WCC Publications,
1995), 63–9, who writes that religious classifications in Islam are for making distinctions in the
hereafter, but not in worldly terms. He writes that the dhimmi concept was not one of disparagement,
but rather allowed historical minority communities to maintain the distinctiveness they needed to
survive. In other words, it was a means of preserving religious pluralism, not squashing it. Likewise, see
also, Fazlur Rahman, ‘Non-Muslim Minorities in an Islamic State’ (1986) 7 J Inst Muslim Minority
Affairs 13–24, 20, who writes that the jizya was a tax in lieu of military service. Furthermore, not all
non-Muslims paid the jizya. He refers to ‘Umar’s receipt of the zakat from a Christian tribe as an
example. This is likely a reference to the Banu Tahglib. Notably, Rahman does not mention that Banu
Taghlib was required to pay a higher rate of zakat tax than Muslims, which some have suggested
equaled the amount they would have paid under a jizya scheme.
9 Notably, rulers often referred to Shari‘a to justify their persecution; but often they did so as a
pretext in order to satisfy the political demands of special interest groups among the Muslims and to
preserve their legitimacy as Muslim rulers over a sometimes fractious polity. See, for example, John
O Hunwick, ‘The Rights of Dhimmis to Maintain a Place of Worship: A 15th Century Fatwa from
Tlemcen’, (1991) 12(1) al-Qantara 133–56; C E Bosworth, ‘The Concept of Dhimma in Early Islam’
in B Braude and B Lewis (eds) Christians and Jews in the Ottoman Empire: The Functioning of a Plural
Society, 2 vols (New York: Holmes & Meier Publishers, 1982), 41; Bernard Lewis, Semites and Anti-
Semites: An Inquiry into Conflict and Prejudice (New York: W.W. Norton & Co, 1986), 123; Jacques
Waardenburg, ‘Muslim Studies of Other Religions: The Medieval Period’ in G Jan van Gelder and
E de Moor (eds), The Middle East and Europe: Encounters and Exchanges (Amsterdam: Rodopi, 1992),
10–38, 13; Jacques Waardenburg, Muslim Perceptions of Other Religions: A Historical Survey (Oxford:
Oxford University Press, 1999), 23; Richard Gottheil, ‘An Answer to the Dhimmis’ (1921) 41
J American Oriental Soc 383–457, who translates an essay in which the dhimmi is abused.
10 Haggai Ben-Shammai, ‘Jew Hatred in the Islamic Tradition and the Koranic Exegesis’ in
S Almog (ed), Antisemitism Through the Ages (Oxford: Pergamon Press, 1988), 161–9.
11 Robert Irwin, ‘Book Reviews: Islam and Dhimmitude: Where Civilizations Collide’ (2002) 38(4)
Middle Eastern Studies 213–15; Paul Fenton, ‘Book Review: Islam and Dhimmitude’ (2003) 49(2)
Midstream 40–1; Johann Hari, ‘Amid all this panic, we must remember one simple fact—Muslims are
not all the same’, The Independent, 21 August 2006.
not alter the fact, though, that her arguments contribute to this field of inquiry, where
scholarly and polemical arguments do battle.12 Her analysis of dhimmi rules is
reviewed here to help illustrate the extreme mythic poles that help define the terrain
of dhimmi historiography.
Adherents of the myth of persecution often rely on legal doctrine to prove their
point, but generally in a piecemeal fashion, without due attention to the details
embedded in complex legal argument. For example, Ye’or writes of how non-
Muslim communities could not build new places of worship, and were limited in
the extent to which they could restore preexisting ones.13 Yet, she fails to reveal that
this restriction was contested. For some jurists, whether a religious community
could build a new place of worship depended on the demographics of the relevant
township. If the township included both dhimmis and Muslims, then Ye’or is
correct in asserting her position. But if the township was a pure dhimmi village then
she is incorrect, given the Hanafi doctrines that offer exceptions. Through her
selective use of evidence, she paints a monist picture of persecution without
engaging the nuances of the legal tradition. Nuance is centrally significant in
order to understand, without anachronism, the conditions that rendered the
dhimmi rules intelligible at one time.
C. Delimiting the space for difference: the dhimmi contract,

accommodation, and the public good
Attentiveness to the nuance of legal argument reveals that the dhimmi rules are
symptomatic of the more general challenge of governing amidst diversity. Jurists
utilized legal arguments to justify accommodating minority group interests in an
Islamic polity, and also used legal arguments to limit the scope of such accommo-
dation. The question at this juncture is focused less on whether the dhimmis could
or could not do one thing or another, and more on how jurists justified accommo-
dating one thing while denying permission for another. The analysis of these sets of
justifications, this essay suggests, will further illuminate why the two proffered
myths of harmony and persecution miss the point. This is not the place to offer a
systematic analysis of each and every dhimmi rule; such an endeavor would require
12 Scholarly and not-so-scholarly sources on both sides of the tolerance debate are many. See for
instance, Robert Spencer (ed), The Myth of Islamic Tolerance: How Islamic Law Treats Non-Muslims
(Prometheus Books, 2005); Robert Spencer, The Truth about Muhammad: Founder of the World’s Most
Intolerant Religion (Washington DC: Regnery Publishing, Inc, 2006); Robert Spencer, Islam Unveiled:
Disturbing Questions about the World’s Fastest-Growing Faith (San Francisco: Encounter Books, 2002),
143–64; Aaron Tyler, Islam, the West and Tolerance: Conceiving Coexistence (New York: Palgrave
MacMillan, 2008); Khaled Abou El Fadl, The Place of Tolerance in Islam (Boston: Beacon Press, 2002);
Yohanan Friedmann, Tolerance and Coercion in Islam (Cambridge: Cambridge University Press, 2003).
13 Bat Ye’or, The Dhimmi: Jews and Christians Under Islam (Associated University Press, 1985), 57;
Bat Ye’or, Islam and Dhimmitude: Where Civilizations Collide (Cranbury, NJ: Associated University
Presses, 2002), 83–5, where her references for the ‘unanimous opinion’ of Muslim jurists are to the
texts by two Shafiʿi jurists (al-Mawardi and al-Nawawi).
328 Minority Rights
book-length treatments.14 For the purpose of illustration, three legal issues will be
addressed in this essay, all of which relate to the dhimmi’s property interests, the
scope of protection afforded to his claims upon his property, and the liberty he
enjoyed to perform charitable acts with his property. The analysis below will show
that Muslim jurists recognized the fact of diversity in the Islamic polity, and
thereby made efforts to accommodate the religious minority’s interests. But, as in
the case of most legal systems, Muslim jurists also limited the scope of accommo-
dation so as not to undermine conceptions of the public good that had to be upheld
if the ruling regime were to maintain its political legitimacy. Defining the public
good was not always an easy matter for them. That does not change the fact,
however, that some image of the public good operated in their analysis.
1. Contract as politico-legal paradigm of

governance and accommodation
The conceptual site within which jurists debated the content of the dhimmi rules
is the so-called ‘aqd al-dhimma, or contract of protection. Notably, dhimmis were
not the only category of non-Muslims who could and did reside in the Muslim
polity. Some might come for temporary periods; others might be present subject to
a political agreement between regional leaders; and yet others might be able to come
and go due to a peace treaty between otherwise warring polities.15 In this essay, the
focus will be on the dhimmi and his contract of protection, given the permanence of
residence that the contract implies, and the challenges such permanence raises for
the task of governing pluralistically.
The contract of protection was the legal mechanism by which a non-Muslim
either actually or fictively contracted into protected and permanent residency status
in Islamic lands. The contract of protection effectuated the legal (and thereby
political, social, and economic) inclusion and accommodation of the non-Muslim
within the larger Muslim polity. Whether the contract was actual or fictional
depended on whether the non-Muslims agreed to pay the jizya when offered the
option of peaceful surrender (sulhiyya) by conquering Muslim forces, or whether
they refused and had terms of settlement imposed on them through conquest
(‘anwiyya).16 Furthermore, it might be applied to later generations despite the lack
of any actual consent. In this sense, the ‘contract of protection’ is a conceptual
device that creates politico-legal space for debate about governance amidst diversity.
This instrumental role of the contract of protection is captured by a tradition from
‘Ali b. Abi Talib (d 661), in which he said: ‘They [non-Muslims] pay the jizya so
that their lives are [protected] like our lives, and their property is [protected] like
14 For books in Arabic and English that provide an introduction and overview of the dhimmi rules,
see ‘Abd al-Karim Zaydan, Ahkam al-Dhimmiyin wa al-Musta’minin fi Dar al-Islam (Beirut: Mu’assasat
al-Risala, 1988); Friedmann, Tolerance and Coercion in Islam.
15 Abu al-Hasan al-Mawardi, al-Hawi al-Kabir, eds ‘Ali Muhammad Mu‘awwad and ‘Adil Ahmad
‘Abd al-Mawjud (Beirut: Dar al-Kutub al-‘Ilmiyya, 1994), 14:296–7.

16 Ibn Rushd al-Jadd, al-Muqaddimat al-Mumahhidat, ed Muhammad Hajji (Beirut: Dar al-Gharb
al-Islami, 1988), 1:368–9.

our property’.17 ‘Ali’s tradition has been interpreted to suggest that once the non-
Muslim pays the jizya, enters the contract of protection, and thereby becomes a
dhimmi, his life and property are as inviolable (ma‘sum) as a Muslim’s life and
property.18
But as will be shown below, ‘Ali’s claim is easier said than satisfied. For instance,
Qur’an 9:29 states: ‘Fight those who do not believe in God or the final day, do not
prohibit what God and His prophet have prohibited, do not believe in the religion
of truth, from among those who are given revelatory books, until they pay the jizya
from their hands in a state of submission’. Muslim jurists debated what it means to
be in a state of submission. Although it could mean abiding by a Shari‘a-based legal
tradition, some also held it reflects the subservient status of dhimmis in the Muslim
polity.19 The import of ‘Ali’s statement, if read alongside Q 9:29, illustrates how
source-texts can contribute to the contrary imperatives of inclusion and marginal-
ization that jurists had to resolve. The contrary imperatives are not considered here
to be a sign of incoherence or inconsistency in the law. Indeed, the very nature of
accommodation is a messy business. Equality in some cases may exist alongside
legalized and legitimate differentiation between peoples. Of interest in this essay,
therefore, is not the fact of legalized differentiation (as opposed to illegitimate
differentiation, or discrimination), but rather the conditions that render such
differentiation legitimate.
D. Accommodation and its limits:

contraband or consumer goods?
As noted earlier, the dhimmi paid the jizya tax and thereby enjoyed the rights and
protections granted to him by the contract of protection, or the ‘aqd al-dhimma.
But what were the terms of that contract? The contract, as a legal term of art served
a political function by offering jurists a discursive site where debates about the
inclusion, accommodation, and exclusion of dhimmis could occur. The contract of
protection, thereby, was the politico-legal device that framed the debates about the
17 Ibn Nujaym, al-Sharh al-Bahr al-Ra’iq (Beirut: Dar al-Kutub al-‘Ilmiyya, 1997), 5:127 (innama
badhalu al-jizya li-takuna dima’uhum ka dima’ana wa amwaluhum ka-amwalana). See also Zaydan,
Ahkam al-Dhimmiyyin, 76.
18 Ibn Nujaym, al-Sharh, 9:20.
19 Mahmoud M Ayoub, ‘The Islamic Context of Muslim-Christian Relations’ in M Gervers and
R J Bikhazi (eds) Conversion and Continuity: Indigenous Christian Communities in Islamic Lands, Eight
to Eighteenth Centuries (Toronto: Pontifical Institute of Mediaeval Studies, 1990), 461–77; Ziauddin
Ahmad, ‘The Concept of Jizya in Early Islam’ (1975) 14(4) Islamic Studies 293–305; C E Bosworth,
‘The Concept of Dhimma in Early Islam’ in B Braude and B Lewis (eds) Christian and Jews in the
Ottoman Empire: The Functioning of a Plural Society, 2 vols (New York: Holmes & Meier Publishers,
1982), 1:37–54; M Izzi Dien, The Theory and the Practice of Market Law in Medieval Islam: A Study of
Kitab Nisab al-Ihtisab (Cambridge: E.J.W. Gibb Memorial Trust, 1997), 51–2; Wadi Zaidan
Haddad, ‘Ahl al-Dhimma in an Islamic State: The Teaching of Abu al-Hasan al-Mawardi’s al-Ahkam
al-Sultaniyya’ (1996) 7(2) Islam and Christian-Muslim Relations 169–80; Ahmad Dallal, ‘Yemeni
Debates on the Status of Non-Muslims in Islamic Law’ (1996) Islam and Christian-Muslim Relations
181–92, 189.
330 Minority Rights
dhimmi rules. As a frame or site of debate, the contract also provided an important
legal device that dhimmis and Muslims could refer to in order to assess what the
Muslim polity owed to dhimmis and vice versa. A fundamental feature of the
contract is that it requires the governing regime to protect the property interests
of dhimmis, just as it protects the Muslims’ property interests. The scope of that
protection, though, is called into question when the dhimmis want to use their
property in a way that is viewed as incompatible with other aspects of Shari‘a
doctrines. The contract becomes a site of legal debate and negotiation about the
degree to which the dhimmis’ property rights and freedom to exercise them can be
accommodated without impinging on other values that contribute to the legitimacy
and functioning of a governing regime legitimated by reference to Shari‘a. To
demonstrate how the contract offers a negotiative site for deliberating on the scope
of inclusion of dhimmis, this section will address whether or not the dhimmi can
consume alcohol and pork in an Islamic polity, and explain the limits on the
Shari‘a’s scope for accommodating the dhimmis’ difference.
The dhimmi’s contract of protection upholds his interest in his private property.
But this begs an important legal question—what counts as legally protected
property? Not all property is equally protected under Islamic law. Only certain
types of property are legally recognized as conveying rights of exclusive use and
enjoyment. As the Hanafi al-Kasani said, the property that conveys such rights is
considered mutaqawwam, or inviolable under the law.20 How one defines inviol-
able property could have an adverse impact on the dhimmi’s expectation interests
under the law. Specifically, in the case of wine and pork, can dhimmis consume such
items in a Muslim polity in which such activity is prohibited, and in some cases is
subject to corporal punishment? If they can consume such items, on what basis can
they do so? And if they can own and consume wine and pork when living in a
Muslim polity, then can dhimmis also petition the governing authorities to punish
anyone who steals the wine and pork products from them on the grounds of the
Qur’anic penalty for theft—namely, amputation of the thief ’s hand? If the govern-
ment punishes someone for stealing the dhimmi’s wine or pork, it is effectively
using Shari‘a-based norms and institutions to uphold the dhimmi’s property
interests in wine and pork. How can Shari‘a doctrines on the one hand deny the
Muslim from owning or consuming such products, and yet punish someone with a
Qur’anic penalty for stealing such items? As illustrated below, consumer goods
such as wine or pork may not offer their owners the same expectation interests that
other types of property might. However the legal debate about protecting the
dhimmis’ property interest in wine and pork illustrates how Muslim jurists used
the law to include the dhimmis by protecting their property interests, while also
demarcating the limits of accommodation in the interest of protecting certain
public values as represented in juridical terms by reference to other, related,
Shari‘a-based doctrines.
20 Abu Bakr al-Kasani, Bada’i‘ al-Sana’i‘ fi Tartib al-Shara’i‘, eds ‘Ali Muhammad Mu‘awwad and
‘Adil Ahmad ‘Abd al-Mawjud (Beirut: Dar al-Kutub al-‘Ilmiyya, 1997), 9:292.
Consuming alcohol (shurb al-khamr) is a crime under Islamic law, with a penalty
of 40 or 80 lashes, depending on which school of law is referenced.21 Additionally,
the consumption of pork is prohibited to Muslims under their dietary laws.
However, neither of these prohibitions apply to dhimmis; premodern jurists
allowed dhimmis to consume both items. This begs the questions of why, on
what basis, and with what limits? For jurists such as al-Ghazali and al-Kasani,
dhimmis were entitled under the contract of protection to have their own traditions
respected. For al-Ghazali, when dhimmis enter the contract of protection, the
contract’s terms do not include their liability for consumption of alcohol or pork
because their own traditions permit consumption of both.22 Likewise, al-Kasani
argued in similar fashion that dhimmis can consume alcohol and pork because their
tradition allows them to do so.23 On the other hand, if the dhimmis’ traditions
prohibit something that Shari‘a-based rules also prohibit, then there is little room
for the dhimmi to argue on contract grounds that he is immune from liability. But
where the dhimmis’ tradition permits one thing, and the Shari‘a prohibits it, jurists
had to decide whether or not the dhimmis’ practice fell within the protection
afforded by the contract of protection.
The jurists’ decision was not always an easy one. Their decision occurred in the
discursive space of the contract of protection where they considered the imperatives
of inclusion, exclusion, accommodation, and the more general public good. As
much as jurists permitted dhimmis some liberty, as in the case of consuming wine
and pork, they were nonetheless aware that they might have to limit their accom-
modation in light of other issues of law and legal order. For instance, although
jurists agreed that dhimmis could consume alcohol, they nonetheless were con-
cerned that unrestricted alcohol consumption might endanger the social good—a
general good that they often did not define, but rather simply assumed as given and
important. Consequently, though they permitted dhimmis to consume alcohol,
they developed legal rules banning public drunkenness or public displays of
alcohol.24 In other words, premodern jurists permitted the dhimmis to consume
alcohol, despite the Qur’anic prohibition. But they limited the scope of the
dhimmis’ license in the interest of a virtue about the public good whose content
was informed by (but not reduced to) the legal ban on alcohol consumption. In this
case, then, while the dhimmi enjoyed an exception to a rule of general application,
21 The punishment for consuming alcohol is generally held to be 40 lashes, although some schools
such as the Malikis required 80. For a discussion of this debate, see Husayn Hamid Hassan, Nazariyyat
al-Maslaha fi al-Fiqh al-Islami (Cairo: Dar al-Nahda al-‘Arabiyya, 1971), 73.
22 Abu Hamid al-Ghazali, al-Wasit fi al-Madhhab, ed Abu ‘Amru al-Husayni (Dar al-Kutub al-
‘Ilmiyya, 2001), 4:152.

23 Al-Kasani, Bada’i‘ al-Sana’i‘, 9:292. See also, Sahnun b. Sa‘id al-Tanukhi, al-Mudawwana
al-Kubra (Beirut: Dar Sadir, nd), 6:270, who does not apply the punishment for consumption of
alcohol to the dhimmi.
24 Al-Mawardi, al-Hawi al-Kabir, 13:328; Abu Ishaq al-Shirazi, al-Muhadhdhab fi Fiqh al-Imam al-
Shafi‘i, ed Zakariya ‘Amirat (Beirut: Dar al-Kutub al-‘Ilmiyya, 1995), 3:317; al-Muzani, Mukhtasar
al-Muzani, in vol 5 of al-Shafi‘i, Kitab al-Umm (Beirut: Dar al-Fikr, 1990), 5:385; al-Kasani, Bada’i‘ al-
Sana’i‘, 9:214. For a general discussion on the exception to the punishment for alcohol consumption,
see Zaydan, Ahkam al-Dhimmiyyin, 179–80.
332 Minority Rights
that general rule was nonetheless used to give content to an abstract notion of the
public good that found expression in new legal rules banning public drunkenness
by dhimmis.
The second example of the complex of inclusion/exclusion/accommodation
when governing amidst pluralism concerns the premodern legal debate about
whether a dhimmi could petition the governing authorities to punish a thief who
steals the dhimmi’s pork or wine. Suppose a dhimmi steals wine or pigs from another
dhimmi. This is an interesting case for purposes of this discussion because for both
parties the items may be lawful to consume. Indeed, the Hanafi al-Kasani recognized
that under the dhimmis’ law, the property is deemed as rights-conferring. But under
Shari‘a-based doctrines, such property is not necessarily rights-conferring since it is
not mutaqawwam. If the wronged dhimmi seeks redress under Shari‘a against the
thieving dhimmi, should the Muslim judge punish the thieving dhimmi with the
Qur’anic punishment of hand amputation? If the judge does so, would that
effectively be using a Shari’a-based legal system to enforce a right to a type of
property that is not regarded as value-conferring under Shari‘a norms, despite
being value-conferring under the dhimmis’ tradition? In other words, wouldn’t the
judge implicitly prioritize the dhimmis’ tradition on value-conferring goods in a
Shari‘a-based legal system to effectuate a Qur’anically prescribed punishment? This
question poses not only a conflict of law issue, but also a question of priority,
sovereignty, and systemic coherence in the law. The question is not simply a matter
of which doctrine to rely upon. Instead, it involves funneling a dhimmi doctrine into
the contract of protection, and thereby granting it normative significance in a legal
system that is deeply wedded to the Shari‘a as a tradition and source of legitimacy.
Certainly the dhimmi enjoys legal protection under the contract of protection, but at
what cost to the Shari‘a-based legal system? Consequently, at first glance giving
redress to the dhimmi who has suffered the loss seems consistent with the commit-
ment to protect people from theft. But the systemic questions raise important issues
that were not missed by premodern Muslim jurists, and which therefore forced them
to consider the scope and limits of accommodation.
The Hanafi al-Kasani resolved the immediate question by prioritizing the view
that wine and pork are not mutaqawwam, or in other words are not value
conferring. Consequently, if a dhimmi steals wine from another dhimmi, he will
not suffer the Qur’anic punishment for theft, despite having stolen something that
does not belong to him.25 Under a Shari‘a analysis, if such property has no value,
then no theft has occurred. To view al-Kasani’s position from the systemic level,
though, one can appreciate that, for al-Kasani, to use the coercive power of Shari‘a
to redress the theft of a type of property that is condemned under Shari‘a might
appear to ‘over-accommodate’ the dhimmi at the expense of legal consistency and
the public good sought through Shari‘a regulations.
This is not to say, however, that a dhimmi whose pork or wine is stolen by
another is without recourse. Although the dhimmi may not be able to pursue a
25 Al-Kasani, Bada’i‘ al-Sana’i‘, 9:292.

criminal action against the thief on Qur’anic grounds, some (but not all) jurists
permitted the dhimmi to be compensated for the value of his lost property. The
Maliki Sahnun held that where pork or wine are stolen from a dhimmi, the thief
should not suffer the Qur’anic punishment, but can be required to pay damages in
the form of financial compensation for its value (aghrama thamnahu).26 Ibn Hazm
noted various opinions that held the thief liable to both the Qur’anic punishment
and financial compensation, given that the property in question has value for the
dhimmis under their tradition. However, he also noted that others held that the
thief only owed financial compensation, but was not subjected to the Qur’anic
punishment. And yet others held that the thief had no liability whatsoever.
Importantly, in the interest of legal consistency and coherence, Ibn Hazm was
critical of those who would deny the corporal sanction but allow financial contri-
bution; if the property has no value for one sanction, how can it have value for
another?27 Nonetheless, the fact that jurists might deny corporal sanction but
impose compensatory liability on the thief illustrates a crucial negotiative feature
of governing pluralistically.
The general bans on the consumption of alcohol and pork, coupled with
the exceptions derived from the contract of protection, provide important insights
into how jurists used legal argument both to accommodate dhimmis and to limit
the scope of that accommodation in the interest of the social good. The legal
debates of particular interest are less about the bans themselves, than about
corollary issues that are related to but distinct from the bans. The debates on
these corollary issues illustrate that Muslim jurists acknowledged, respected, and
accommodated the dhimmis’ traditions by exempting them from certain Shari‘a
liabilities. The scope of that accommodation, though, had to be limited where it
posed a threat to the social good of the Islamic polity, whether defined in terms of
Shari‘a norms or concerns over the priority and pride of place given to Shari‘a in an
Islamically defined governance system.
E. Property, piety, and securing the public

good: the case of charitable endowments
The third example to be addressed emphasizes the jurisprudential significance of

the ‘public good’, which operates in the backdrop of the dhimmi rules. Reference
to the ‘public good’, often by a general if not ambiguous invocation of the Islamic
character of the polity, was a device by which jurists could determine whether an
accommodation was appropriate or went too far. As discussed in the prior section, a
dhimmi who consumed alcohol was not subject to the general rule prohibiting
alcohol consumption, but rather was exempted from that ban in light of the
contract of protection, which provided a legal mechanism for accommodating the
26 Sahnun, al-Mudawwana al-Kubra, 6:278.

27 Ibn Hazm, al-Muhalla bi’l-Athar, ed ‘Abd al-Ghaffar Sulayman al-Bandari (Beirut: Dar al-Kutub
al-‘Ilmiyya, nd), 12:321–2.
334 Minority Rights
dhimmi’s difference. The accommodation in this case, though, was an exception,
and did not alter the general nature of the ban, nor its implications for a general
public policy concern about alcohol consumption and its effects, deleterious or
otherwise. Consequently, though jurists held that dhimmis could consume alcohol
in the Muslim polity, their freedom was not absolute: other considerations having
to do with public policy concerns limited its scope. Such limits included the legal
rule that prohibited any public drunkenness by the dhimmi. In other words, the
general ban on alcohol consumption was lifted for the dhimmi (accommodation).
But that general ban, coupled with the accommodation, raised questions for
premodern Muslim jurists about the public weal, and thus led them to devise a
second general rule, namely the ban on public drunkenness. The jurists accommo-
dated the dhimmi, but they also demarcated the scope of his liberty in the interest of
the public weal. This particular example illustrates how Islamic legal analysis can
and does operate at multiple levels in order to constitute and regulate a political
society that is marked by a diverse demography.
Alcohol consumption is but one example that illuminates how premodern jurists
invoked public policy concerns to address the challenge of governing pluralistically.
Another more powerful example is evident in the legal debates among jurists about
whether dhimmis could create charitable endowments, or awqaf (singular waqf ),
for the purpose of teaching the Bible or Torah. To create a charitable endowment is
a right that accrues to a property owner as a private individual. To use one’s
property to create a charitable endowment is meant, however, to influence the
public weal. Private rights of ownership and bequest raise concerns when property
is donated for public purposes that may contravene what many consider the public
good. In other words, although private property rights are protected, the scope of
that protection is limited in light of competing interests of a more general, public
nature. Consequently, the premodern debate about whether and to what extent a
dhimmi could endow a charity balanced respect for the dhimmi’s private property
interests, and the imperative to protect an Islamically defined public good. The
appropriate balance depended on the factors that contributed to the public good,
those that diminished it, and how best to strike an appropriate balance in pluralist
settings where not all members of the polity share the same set of core values.
Two ways to create a charitable endowment (waqf ) are (1) a bequest that takes
effect upon the testator’s death (ie, wasiyya), and (2) an inter vivos transfer of
property directly into a trust (waqf ). Shafi‘i and Hanbali jurists generally agreed
that dhimmis could create trusts and issue bequests to any specified individual
(shakhs mu‘ayyan), regardless of religious background, although some jurists limited
the beneficiaries to one’s kin group.28 This permissive attitude was based on the
legal respect for private ownership (tamlik) and the rights the property owner holds
28 Al-Ghazali, al-Wasit, 2:397–8. Al-Mawardi, al-Hawi al-Kabir, 8:328–30, wrote that there is a
dispute about whether a non-Muslim can make a bequest to anyone other than a free Muslim of legal
majority; al-Nawawi, Rawdat al-Talibin wa ‘Umdat al-Muftin (3rd edn, Beirut: al-Maktab al-Islami,
1991), 5:317, held that a waqf could be for the benefit of a dhimmi, but not for an enemy of the state
(harbi) or apostate; al-Shirazi, al-Muhadhdhab, 2:323–4, allowed waqfs for specified dhimmis but noted
the debate about waqfs for the benefit of apostates or enemies of the state.
because of his claim on the property.29 Shafi‘i and Hanbali jurists held that the
dhimmi’s private property interest was sufficiently important to warrant the right to
bequest property to other individuals.
However, if the dhimmi’s bequest was for something that might adversely affect
the public interest, then for Shafi‘i and Hanbali jurists, the bequest was a sin against
God and could not be valid under the Shari‘a.30 To hold otherwise would be to use
the doctrines and institutions of a Shari‘a-based governance system to legitimate
practices that contravene an Islamically defined public good. Consequently, if a
dhimmi created a charitable trust to support building a church, synagogue, or a
school for Torah or Bible studies, these jurists would invalidate the waqf, because it
constituted a sin (ma‘siya) that could not be upheld by the law.31
The Shafi‘i jurist al-Shirazi provided a precise, nearly syllogistic account and
justification for this position. First, he held that a waqf, in its essence, is a pious
endowment that brings one close to God (qurba). Second, he held that anyone who
creates a charitable endowment through a bequest or wasiyya creates an institution
that bestows bounties (hasanat) on others. Lastly, he concluded that any charitable
endowment that facilitates sin (i‘ana ‘ala ma‘siya) is not lawful.32 Al-Shirazi’s
argument begs the question of whether a charitable endowment that supports a
Bible or Torah reading school brings one close to God or bestows bounties on
others. For al-Shirazi, such institutions perpetuate disbelief in the land of Islam,
which is tantamount to sin. Indeed he argued that a charitable endowment in
support of these activities was void (batila), as its bounty was sinful.33 Al-Shirazi
went so far as to liken such bequests with a bequest that arms the Muslim polity’s
enemies, thereby equating both in terms of their potential to inflict harm on the
Muslim polity.34 In other words, for al-Shirazi, a charitable endowment that
supports the perpetuation of value systems that are contrary to Islam is not simply
sinful; it is a security threat that must be contained for the benefit and perpetuation
of the governing regime and the polity it governs. To allow such charitable
endowments as a matter of law would be to use the Shari‘a rule of law system,
29 Al-Ghazali, al-Wasit, 2:397–8. Abu ‘Abd Allah b. Muflih, al-Furu‘, ed Abu al-Zahra’ (Beirut:
Dar al-Kutub al-‘Ilmiyya, 1997), 4:513; Ibn Qudama, al-Mughni (Beirut: Dar Ihya’ al-Turath
al-‘Arabi, nd), 5:646.
30 Al-Ghazali, al-Wasit, 3:41–2; al-Nawawi, Rawda, 6:107, allowed a wasiyya to be for the benefit
of dhimmis, harbis, and apostates; Ibn Qudama, al-Mughni, 6:103, analogized a wasiyya to a gift, and
said that both could be given to dhimmis and harbis in the dar al-harb; Abu ‘Abd Allah b. Muflih,
al-Furu‘, 4:513l; al-Bahuti, Kashshaf al-Qina’ ‘an Matn al-Iqna‘ (Beirut: Dar al-Kutub al-‘Ilmiyya,
1997), 4:442. For a Shi‘a source for this position, see al-Muhaqqiq al-Hilli, Shara’i‘ al-Islam fi Masa’il
al-Halal wa al-Haram, ed Sadiq al-Shirazi (10th edn, Beirut: Markaz al-Rasa’il al-A‘zam, 1998), 1:482.
31 Al-Ghazali, al-Wasit, 2:397; Ibn Shihab al-Din al-Ramli, Nihayat al-Muhtaj ila Sharh al-Minhaj,
(3rd edn, Beirut: Dar Ihya’ al-Turath al-‘Arabi, 1992), 5:366. The Ja‘fari al-Muhaqqiq al-Hilli
interestingly held that a Muslim could not create a waqf to support a church, synagogue, or schools
for studying the Torah or Bible. However, he allowed a non-Muslim to do so, thus introducing yet
another complicated piece into the debate. Al-Muhaqqiq al-Hilli, Shara’i‘ al-Islam, 1:459.
32 Al-Shirazi, al-Muhadhdhab, 2:323–4.
33 Al-Shirazi, al-Muhadhdhab, 2:341–2.
34 For another argument, the Hanbali Ibn Qudama argued that a bequest could not be made to
support schools for teaching the Torah or the Bible because both had been abrogated by the Qur’an
and contain corruptions. Ibn Qudama, al-Mughni, 6:105. See also al-Bahuti, Kashshaf al-Qina‘, 4:442.
336 Minority Rights
both in terms of its doctrines and institutions, in a manner contrary to the public
good.
An alternative approach adopted by Hanafi jurists addressed this question using
a hypothetical about a dhimmi who bequests his home to a church, as opposed to
leaving it to a specifically named person. Abu Hanifa held this bequest lawful on the
ground that this act constitutes a pious, devotional act for the dhimmi (ie, qurba),
and must be respected just as Muslims respect the dhimmi’s faith in other regards.
In other words, while both al-Shirazi and Abu Hanifa viewed charitable endow-
ments as bringing one closer to God, Abu Hanifa differed in that he appreciated
that what it means to bring someone closer to God cannot be defined only in
Islamic terms; closeness to God takes different shapes depending on the tradition to
which one belongs. Abu Hanifa’s students, Muhammad al-Shaybani and Abu
Yusuf, however, disagreed with their teacher because they (like al-Shirazi) deemed
the subject matter of such endowments sinful (ma‘siyya haqiqa) despite the dhim-
mi’s belief that they are pious acts.35
This dispute within the Hanafi school begs a fundamental question for govern-
ance amidst diversity: does one measure the act’s impact on the public good in
terms of the dhimmi’s faith tradition, or in terms of the prevailing Islamic one?36 To
resolve this question, the Hanafi al-‘Ayni offered four possible outcomes:
• If a bequest involves a pious act in the dhimmi’s tradition but not in the
Islamic tradition, many Hanafis held that it should be allowed, although other
schools (as well as other Hanafis) would disagree.
• If the dhimmi makes a bequest that would be a pious act for Muslims, like
donating to support the Muslim pilgrimage to Mecca (ie, hajj) or for building
a mosque, the bequest is invalid, as it goes against the dhimmi’s faith.
However, if the bequest benefits specifically named individuals, it is valid,
since the beneficiaries’ private interests as property owners are to be respected
under the law.
• If the bequest concerns subject matter that is lawful under the dhimmi’s beliefs
and Islamic beliefs, it is valid.
• If the bequest involves a subject matter that is unlawful in both the dhimmi’s
faith and the Muslim faith, it is invalid. The underlying subject matter would
be a sin for both Muslims and dhimmis to allow.37
By offering these alternatives, al-‘Ayni illustrated the underlying issues at stake—
namely, the dhimmi’s private property interests that he holds as an individual, the
limits on the dhimmi in light of his tradition’s requirements, and lastly, the public
good defined by reference to Islamic norms and general rules. In the interest of
35 Badr al-Din al-‘Ayni, al-Binaya Sharh al-Hidaya, ed Ayman Salih Sha‘ban (Beirut: Dar al-Kutub
al-‘Ilmiyya, 2000), 13:495; Ibn Nujaym, al-Sharh, 9:302; al-Kasani, Bada’i‘ al-Sana’i‘, 10:500–1.
36 Indeed, this was the dilemma in the jurisprudence noted by al-‘Ayni. Al-‘Ayni, al-Binaya,
13:495.
37 Al-‘Ayni, al-Binaya, 13:496; Ibn Nujaym, al-Bahr al-Ra’iq, 9:302; al-Kasani, Bada’i‘ al-Sana’i‘,
10:500–1.
upholding the dhimmis’ private property interests, al-‘Ayni granted them the authority
to create pious endowments that do not violate any precept in the dhimmis’ traditions
or the Islamic one. If the charitable endowment is lawful under both the dhimmis’
tradition and the Islamic tradition, there is no legal problem since to allow such
bequests both upholds the Islamic values underpinning the polity and government,
and shows deference to the dhimmis’ tradition given the requirement to do so under
the contract of protection. Notably, the dhimmi cannot bequest a charitable endow-
ment for something that is lawful under Islam but unlawful under the dhimmis’
tradition. An almost paternalistic respect for the dhimmis’ tradition animates this
outcome, thereby illustrating the significance of the contract of protection in reaching
this particular legal outcome: the dhimmi’s private rights of property disposition are
limited by his own tradition, regardless of how he might feel about the matter. The
final issue has to do with whether the dhimmi can create a charitable endowment that
upholds a value in his own tradition, but not in the Islamic tradition. This is the case
on which jurists disagreed, as noted above.
To further complicate matters, the Malikis had their own approach. They
addressed the issue of charitable endowments by reference to the religious associ-
ation of the testator, the framework of Islamic inheritance law, and the prevailing
tax regime. Under Islamic inheritance law, two-thirds of a decedent’s property is
distributed pursuant to a rule of inheritance that designates percentage shares for
specifically identified heirs. The decedent can bequest the remaining one-third to
non-heirs.38 Malikis asked, though, whether a Christian dhimmi with no heirs
could bequest all of his property to the head of the church, the Patriarch. According
to many Maliki jurists, the Christian can give one-third of his estate to the
Patriarch, but the remaining two-thirds escheats to the Muslim polity, which is
considered his lawful heir in this case.39 Even if the testator leaves a testamentary
instrument that transfers his whole estate to the Patriarchate, the above arrange-
ment is to be carried out nonetheless.40
The application of this rule, however, depends on whether the dhimmi is
personally liable to the governing regime for the jizya, or whether the dhimmi
community is collectively liable for the tax payment. If the dhimmi is personally
liable for paying the jizya directly to the government, the above ruling on escheat to
the government applies. The rationale for this rule is as follows: with the death of the
dhimmi, the ruling regime will lose its annual tax revenue from him. Consequently,
the escheat of his estate is designed to account for the regime’s lost revenue.41
38 On the rules of inheritance in the Qur’an and Islamic law, see Q 4: 11–12; David Powers, Studies
in Qur’an and Hadith: The Formation of the Islamic Law of Inheritance (Berkeley: University of
California Press, 1986).
39 Ibn Rushd al-Jadd, al-Bayan wa al-Tahsil (Beirut: Dar al-Gharb al-Islami, 1988), 13:326–7.
40 Ibn Rushd al-Jadd, al-Bayan, 13:326–7. See also al-Hattab, Mawahib al-Jalil, ed Zakariyya
‘Amirat (Beirut: Dar al-Kutub al-‘Ilmiyya, 1995), 8:515, who relates this view, and critiques another
that upholds the validity of any wasiyya by a kafir; Shihab al-Din al-Qarafi, al-Dhakhira, ed Sa‘id A‘rab
(Beirut: Dar al-Gharb al-Islami, 1994), 7:12.
41 Ibn Rushd al-Jadd, al-Bayan, 13:326–7. See also al-Qarafi, al-Dhakhira, 7:35.
338 Minority Rights
In the second case, the dhimmi community’s leadership collects the jizya from
its members and delivers the payment to the ruling regime on behalf of the
community. If the community collectively pays a pre-established collective jizya,
and the total sum does not decrease with deaths of community members, many
Malikis allowed individual dhimmis (presumably without heirs) to bequest their
entire estate to whomever they wished.42 This particular ruling works to the
financial benefit of the ruling regime. The regime would still receive the same
jizya tax returns, suffering no diminution in tax revenue. Any financial loss is
distributed to the dhimmi community, since its tax liability does not diminish with
the death of its community members. To offset that financial loss, the Malikis
permitted dhimmis to bequest their entire estate to the community in cases where
they lack any heirs.
In conclusion, when a dhimmi sought to endow a religious institution, Muslim
jurists were concerned about giving such charitable institutions legal recognition.
To use Shari‘a categories to uphold non-Muslim religious institutions would seem
awkward at best, illegitimate at worst, if the Shari‘a is designed in part to ensure a
public good defined in terms of an Islamic ethos. The legal debate about the scope
of the dhimmi’s power to use these methods to bequest property for religious
purposes suggests that Muslim jurists grappled with the effects of diversity on the
social fabric of the Islamic polity. The disagreements and alternative outcomes can
be appreciated as juridical attempts to account for and respect the dhimmi’s
conception of piety and property interests, the public good, and, for some, the
security of the Islamic polity. Regardless of the analytic route any particular jurist
adopted, the legal debate further shows that the dhimmi rules are hardly clear cut
indices of tolerance or intolerance, harmony or persecution. Rather they are
symptoms of the larger, more difficult, and arguably globally shared challenge of
governing pluralistically.
F. Dhimmi rules in the post-colony
One might ask why the premodern rules are such a source of contention today.
Certainly, premodern Islamic legal history is not alone among medieval traditions
that discriminated against the religious Other.43 Nonetheless, the historical doc-
trine remains a point of ongoing contention about Muslims and Islam today,
whether in Muslim states that rely on Shari‘a in their legal system or for Muslims
42 Ibn Rushd al-Jadd, al-Bayan, 13:326–7. However, Ibn Rushd did note others who disagreed
with him, and held that the estate escheats to the state when there is no heir. Al-Qarafi, al-Dhakhira,
7:12, held the same view as Ibn Rushd al-Jadd but also noted the disagreement on this issue.
43 For instance, Canon 68 of the Fourth Lateran Council of 1215 decreed that Muslims and Jewish
just dress differently from Christians, so that Christian men not have relations with the Jewish or
Muslim women, or that Muslim and Jewish men misrecognize a Christian woman as one from their
respective peoples. Furthermore, during the last three days before Easter, Jews and Muslims must not
be out in public whatsoever. H J Shroeder, ‘The Fourth Lateran Council of 1215: Canon 68’ in
Disciplinary Decrees of the General Councils: Text, Translation, and Commentary (St. Louis: B. Herder,
1937), <http://www.fordham.edu/halsall/basis/lateran4.html> (accessed 25 May 2012).
as citizens of Western liberal constitutional states.44 The fact remains that, despite
the dhimmi rules having a premodern provenance, they remain relevant today in
debates by, about, and among Muslims the world over.
For example, elsewhere I have written about the operation of certain dhimmi
rules in the modern state of Saudi Arabia, in particular, the rules governing the
measure of wrongful death damages.45 According to the Indian Consulate in
Jeddah, Saudi Arabia, the families of Indian expatriates working in the Kingdom
can claim wrongful death compensation pursuant to a schedule of fixed amounts.
However, the amounts vary depending on the victim’s religious convictions and
gender. If the victim is a Muslim male, his family can claim SR100,000. But if the
victim is a Christian or Jewish male, the family can only claim half that amount,
namely SR50,000. Further, if the victim belongs to another faith group, such as
Hindu, Sikh, or Jain, his family can claim only approximately SR6,667. The family
of a female victim can claim half the amount allowed for her male co-religionist.46
Arguably, it seems that Saudi Arabia patterns its wrongful death compensatory
regime on early Hanbali rules of tort liability. For example, premodern Muslim
jurists held that the diyya or wrongful death compensation for a free Muslim male
was one hundred camels.47 But if the victim is a Jew or Christian male, his family
could only claim a percentage of that amount. The Shafi‘is held that the family was
entitled to one-third of what a free Muslim male’s family would receive.48 But the
Malikis and Hanbalis granted them one-half of what a Muslim’s family could
obtain.49 Furthermore, Sunni and Shi‘a jurists held that if the victim was a Magian
(majus), his family received even less, namely 1/15th of what a free Muslim male
was worth.50 Importantly, 1/15th of SR100,000 is approximately SR6667, the
amount a Hindu, Sikh, or Jain’s family can claim under current Saudi law.
44 See for instance Andrew F March, Islam and Liberal Citizenship: The Search for an Overlapping
Consensus (Oxford: Oxford University Press, 2009).

45 Anver M Emon, ‘The Limits of Constitutionalism in the Muslim World: History and Identity in
Islamic Law’ in S Choudhry (ed), Constitutional Design for Divided Societies (Oxford: Oxford Univer-
sity Press, 2008), 258–86.
46 <http://www.cgijeddah.com/cgijed/index.htm>. Last viewed on 11 June 2007; copy on file with
the author.
47 Al-Ghazali, al-Wasit, 4:64; al-Shirazi, al-Muhadhdhab, 3:210.
48 Muhammad b. Idris al-Shafi‘i, Kitab al-Umm (Beirut: Dar al-Fikr, 1990), 3:113; al-Mawardi,
al-Hawi al-Kabir, 12:308; al-Nawawi, Rawda, 9:258; al-Ramli, Nihayat al-Muhtaj, 7:320.
49 Malik b. Anas, al-Muwatta’ (Beirut: Dar al-Gharb al-Islami, 1997), 2:434–5, related that ‘Umar
II decided that the diyya for a killed Jew or Christian is half the diyya for free Muslim male. See also Ibn
Rushd al-Jadd, al-Muqaddimat al-Mumahhidat (Beirut: Dar al-Gharb al-Islami, 1988), 3:295; Ibn
Rushd al-Hafid, Bidayat al-Mujtahid wa Nihayat al-Muqtasid (Beirut: Dar al-Kutub al-‘Ilmiyya, 1997),
2:604–5; al-Qarafi, al-Dhakhira, 12:356; Ibn Qudama, al-Mughni, 7:793–4, who said that Ahmad b.
Hanbal held the amount was one third, but then changed his position to one half; Ibn Muflih, al-
Furu‘, 6:16, also indicated some would provide the Muslim diyya for dhimmis if the latter were killed
intentionally. However, Maliki and Hanbali jurists held that in personal injury cases (jirahat), the diyya
for the injury is whatever a free Muslim male would get. Malik b. Anas, al-Muwatta’, 2:434–5;
Sahnun, al-Mudawwana al-Kubra, 6:395; Ibn Qudama, al-Mughni, 7:795; al-Bahuti, Kashshaf
al-Qina‘, 6:23–4.
50 Al-Shafi‘i, Kitab al-Umm, 3:113; al-Ghazali, al-Wasit, 4:67; al-Mawardi, al-Hawi al-Kabir,
12:311; al-Nawawi, Rawda, 9:258, who said that the majus get thultha ‘ushr of the diyya for a free
Muslim male; al-Ramli, Nihayat al-Muhtaj, 7:320. Notably, Ibn Qudama related a minority opinion
340 Minority Rights
To take away from this premodern and modern comparison the view that Saudi
Arabia cannot get past the premodern mindset, though, would be a mistake. Saudi
Arabia is very much a product of a post-colonial context of modernity, in which the
modern state (as opposed to the premodern empire) predominates as a (if not the)
most significant centre of power and authority. Like its counterparts in the
international community, Saudi Arabia cannot escape the inevitable interactions
between and among states that happen in the day-to-day context of a globalized
communications and economic network. So while Saudi Arabia incorporates
elements of premodern fiqh into its legal system, it also aspires to modern principles
of governance that arise from the shared challenge of governing a state amidst
pluralism—a challenge that it has certainly been criticized for managing poorly.
What are we modern readers to make of the Saudi example though? What is the
significance of the dhimmi rules in a modern state such as Saudi Arabia? To answer
this question, one might benefit from examining how the dhimmi rules are used in
Saudi Arabia to cultivate a culture of identity and identity politics in a post-colonial
setting. For instance, Eleanor Doumato writes about references to the dhimmi rules
in Saudi Arabian school books. Doumato reviews Saudi Arabian school textbooks
to determine if they foster and incite anti-Western sentiments. She is critical of the
curriculum, although she has doubts about the extent to which the textbooks
contribute to a widespread hatred of the West. Nonetheless, she notes that
among the 9th–12th grade textbooks she reviewed, some lessons counseled stu-
dents to show caution concerning the non-Muslim. She writes:
Without any attempt at historicization, the concept of ahl al-dhimma [People of
the Covenant] is introduced as if it were an appropriate behavioral model for contem-
porary social intercourse between Muslims and non-Muslims . . . Non-Muslims who are ahl
al-kitab [People of the Book] are given a special status as ahl al-dhimma, people in a
covenant relationship with Muslim rulers, which secures their property, possessions and
religion . . . With no mediating discussion or attempt to place the restrictions in historical
context, the chapter ends with questions posed to the students such as ‘What is the
judgement about greeting the ahl al-dhimma on their holidays?’ . . . leaving the impression
that the historical relationship of inferior subject people to superior conquering people is
meant as a model with contemporary relevance.51
According to Doumato, the textbook’s discussion on the dhimmi is not meant to
incite an aggressive agenda. Rather, Doumato argues that the texts reflect a sense of
held by al-Nakha’i and others who equated the diyya for the majus and free Muslims because both are
free and inviolable human beings (adami hurr ma‘sum). Ibn Qudama, al-Mughni, 7:796. The Ja‘fari
al-Muhaqqiq al-Hilli, Shara’i‘ al-Islam, 2:489, related three views, namely that Jews, Christians, and
Magians are valued at 800 dirhams, or all enjoy the same diyya as Muslims, or that Christians and Jews
are entitled to 4,000 dirhams. According to the Ja‘fari al-Hurr al-‘Amili, Wasa’il al-Shi‘a ila Tahsil
Masa’il al-Shari‘a (Beirut: Dar Ihya’ al-Turath al-‘Arabi, nd), 19:141–2, the diyya of a free Muslim
male is roughly 10,000 dirhams, while the diyya of a dhimmi Jew or Christian is 4000 dirhams, and the
diyya of the majus is 800 dirhams, roughly 40% and 8% respectively of the diyya for a free Muslim
male.
51 Eleanor Abdella Doumato, ‘Manning the Barricades: Islam According to Saudi Arabia’s School
Texts’ (2003) 57(2) Middle East Journal 230–47, 237–8.

defensiveness and a people struggling against a perceived threat to their existence

and wellbeing. Drawing on the work of Martin Marty, Doumato suggests that the
Saudi textbooks are designed to inculcate a traditional set of values for a people who
feel ‘they have inherited an ancestral past, but then experience a sense of being
threatened. The threat may be something vague such as a fear of “identity diffu-
sion” or secularism, or it might be quite concrete, such as assault by outsiders.’52
Considering the dhimmi doctrines in Saudi school books alongside the dhimmi
rules that operate in the Saudi legal system, one might surmise that today’s recourse
to the dhimmi rules constitute premodern answers to very modern questions
concerning the post-colonial Muslims’ sense of dispossession, threat, and the loss
of authority and authenticity in a modern world.53 Invoking the dhimmi rules is to
name the other who is not us, thereby creating a foil against which to define one’s self
and community. As much as both Saudi examples draw upon the premodern
tradition, the significance of resorting to the dhimmi rules today has less to do
with the past, and more to do with finding a footing in a post-colonial present.
Although premodern in provenance, the dhimmi rules today reflect modern efforts
to inculcate and situate the post-colonial Muslim struggling to find his or her place
in a complex, modernizing world that dominates regions that once witnessed the
glory of an Islamic empire.
G. Conclusion: the shared challenge

of governing amidst pluralism
This essay has predominantly focused on premodern Islamic legal debates to show
that the dhimmi rules reflect the challenge of governing pluralistically. Implicit in
the analysis is the contention that such a challenge is common across time, space,
and tradition. There is no denying that the dhimmi rules differentiated between
people in ways that in the modern day we would find patently discriminatory; but
the fact that minorities could be treated in such fashion is hardly unique to the
Islamic tradition. For instance, in the 20th century, the US Supreme Court
constitutionally justified limiting the religious freedom of Jehovah’s Witnesses in
the name of national security and well-being. In Minersville School District v Gobitis
(1940), Lillian and William Gobitis were expelled from the public schools of
Minersville School District for refusing to salute the US flag as part of a daily
52 Doumato, ‘Manning the Barricades’, 233.

53 Scholars and Muslim reformists have deeply criticized the effect of the West and modernity on
the nature and organic integrity of Islam for Muslims today. These criticisms are perhaps so ingrained
in and accepted by those such as Keller and the authors of the Saudi textbooks as to animate a
framework of analysis that requires no justification. Much has been written on Islam and modernity.
For some useful references, see Bassam Tibi, The Crisis of Modern Islam: A Preindustrial Culture in the
Scientific-Technological Age, trans Judith von Sivers (Salt Lake City: University of Utah Press, 1988);
Fazlur Rahmn, Islam and Modernity: Transformation of an Intellectual Tradition (Chicago: University of
Chicago Press, 1982).
342 Minority Rights
school exercise as required of all students by the local school board.54 Justifying the
court’s decision, Justice Frankfurter wrote:
The flag is the symbol of our national unity, transcending all internal differences, however
large, within the framework of the Constitution. This Court has had occasion to say that
‘ . . . the flag is the symbol of the nation's power,– the emblem of freedom in its truest, best
sense. . . . it signifies government resting on the consent of the governed; liberty regulated by
law; the protection of the weak against the strong; security against the exercise of arbitrary
power; and absolute safety for free institutions against foreign aggression.55
For Frankfurter J, national unity is an essential condition for order and wellbeing:
‘[n]ational unity is the basis of national security’.56 Notably, the case was over-
turned three years later in West Virginia State Board of Education v Barnette.57
Nonetheless, Gobitis is a reminder that no political system is immune from the
challenges of governing amidst diversity.
In more recent years, the challenge of governing a pluralist polity has illuminated
the xenophobic underbelly of American and European national sensibilities con-
cerning the Muslim members of their polity. Countries in Europe and North
America are increasingly issuing (and passing) legislation that bans certain forms of
veiling for Muslim women. Muslim women who wear the veil are often (re)
presented as threats to security, the national polity, or as outsiders whose religious
beliefs make them incapable of truly being ‘one of us’.58 The creation of mosques
has also become a point of concern for countries such as Switzerland and the
United States. In Switzerland, a campaign that featured an ominous image of a
covered Muslim woman standing next to missile-like minarets emanating from the
Swiss flag galvanized the populace to the extent that it passed a referendum that
constitutionally bans the erection of any minarets in the country.59 Across the
Atlantic Ocean, the national controversy over a community center being built two
54 Minersville School District v Gobitis, 310 US 586 (1940).

55 Gobitis, 310 US 586 at 596.
56 Gobitis, 310 US 586 at 595. Frankfurter J was aware of the stakes at issue in this case. The claims
of a religious minority are weighed against the demands of the polity for national well-being and order.
The legislation at issue is neither specific nor particular; it is a general rule of law that is well within the
power of the legislature to put into effect. Frankfurter J seemed especially compelled to respect the
power of the legislation in matters such as education, as the court lacks the competence to advise on
education policy.
57 West Virginia State Board of Education v Barnette, 319 US 624 (1943).
58 Examples of such cases are from France, the United Kingdom, and the United States. For a case
where a covered Muslim woman was denied French citizenship because her religious beliefs were
deemed incompatible with French core values, see In re: Mme M (Case 286798). Le Conseil d’Etat
<http://www.conseil-etat.fr/ce/jurispd/index_ac_1d0820.shtml> (accessed 23 September 2008). For a
UK case in which a high school girl’s desire to wear a jilbab, in contradiction of school policy, was
transformed into a symbol of extremism and threat to others, see Shabina Begum v Headteacher and
Governors of Denbigh High School [2006] UKHL 15. For a US case in which a niqab-wearing Muslim
woman was held to legal standards that ignored her status as an American citizen, see Sultaana Lakiana
Myke Freeman v State of Florida, Department of Highway Safety and Motor Vehicles Mp/5D03-2296,
2005 Fla Dist Ct App LEXIS 13904 (Court of Appeal of Florida, Fifth District, 2 September 2005).
59 Christopher Caldwell, ‘No Minarets, Please,” 15(3) The Weekly Standard, 14 December 2009;
Bandung Nurrohman, ‘A lesson to draw from the Swiss ban on minarets’, The Jakarta Post, 15
December 2009, p 7.
blocks away from Ground Zero in New York City again reveals that the challenge
of governing amidst diversity is shared across polities and legal systems. For as long
as people aspire to govern with regard to majoritarian values defined in terms of the
assumptions held by the majority, minorities will often suffer with little recourse,
especially amidst claims of crises. It is hard to ignore that the Muslim (especially the
covered Muslim woman) is securitized in an increasingly security-conscious world.
With the threat of terrorism and the seeming futility of defeating the Hydra-like
al-Qaeda, visible Muslims, such as the covered Muslim woman or proponents of
mosques and Islamic centres, offer an easy target for pacifying anxieties about the
unseen, undetected, and unexpected terror threat. The language of justification
may invoke ‘security’, but more often than not, the promotion of ‘security’ is meant
to promote the presumed core values without which the particular contemporary
society will presumably not survive.
Perhaps such challenges are unavoidable in a heterogeneous society. Determin-
ing the scope of accommodation that will be granted to the ‘Other’ is not an easy
matter. The more government officials encounter the demands of minority com-
munities, the more they will need to be mindful not only of what the communities’
demands are, but also of the extent to which the prevailing legal order can or cannot
accommodate those demands. The more a jurist defers to the foundational values as
against claims of difference, the more minority groups may feel unduly oppressed.
But the more jurists accommodate the demands and values of the ‘Other’, the more
they may undermine the integrity and sovereignty of the prevailing legal order.
Ironically, contemporary concerns about Muslims in Europe and North America
have more in common with the dhimmi rules than many may realize. In both cases,
legal and political arguments are used to regulate the bodies of the ‘Other’ in a
manner that is linked to majoritarian values that are deemed to animate and
legitimate the governing regime. Whether in the Islamic or liberal constitutional
case, both share in the very human phenomenon of addressing anxieties about the
public good by targeting those who are different and, quite often, powerless to
resist.
19
The Dialectic of International Law
and the Contested Approaches
to Minority Rights
Errol P Mendes
A. Introduction
We all live on a tiny blue planet in a tiny part of the solar system in a tiny part of the
galaxy in a tiny part the Universe. Since the earliest venture of mankind into space,
we have all witnessed through television and satellite images what previous gener-
ations of our species did not; that viewed from a distance, our beautiful, but
endangered planet, shows no boundaries that separate nation from nation, people
from people, or race from race. The images only engender an awe-inspiring sense of
beauty and unity of both the planet and its inhabitants.
Yet the history of our species has shown that from the earliest of times of our
ancestors, and even before the emergence of the nation state, humanity has divided
itself into communities that have evolved and chosen to differentiate themselves
from each other in bonds of kinship. These bonds have produced a kaleidoscope of
relationships that differentiate themselves by race, culture, language, ethnicity, and
religion across the world. As much as the blue planet has produced the diversity of
the biosphere, it has also given birth to the diversity of the human species that rules
the planet, for better or for worse.
The question that faces the international community of that species is the
following: can this diversity of humanity be given the protection of what is now
called minority rights under international law? This essay will argue that the source
of such rights is that identity tied to cultural, ethnic, cultural, and religious
communities which is part of what it means to be human and possessed of
human dignity.
However the particular nature of international law must be considered, given the
diversity, not only of human identities, but also of sovereign states. It is suggested
that one of the most intriguing descriptions of the true nature of international law is
that posited by Hegel.
Hegel argued that ‘[i]nternational law springs from the relations between
autonomous states. It is for this reason that what is absolute in it retains the form
International Law and the Contested Approaches to Minority Rights 345
of an ought-to-be, since its actuality depends on different wills each of which

is sovereign’.1
Individuals can come to understand that living in society means that they will
need to pursue their self-interest in an manner that is interdependent with the
interests of others and society as a whole, leading to the possibility of the ethical life
embodied in the laws and institutions of the state.2
States, in contrast, according to Hegel, are autonomous entities that do not have
relations of private right or morality. However, they also cannot escape having
relations with other states, so that there must be some kind of relations of recogni-
tion with each other. This is the fundamental purpose of international law
according to Hegel. This purpose of mutual recognition requires that while treaties
must be observed, the sovereignty of the individual state puts international law into
the realm of the state of nature in the Hobbesian context. Hegel described this
fundamentally aspirational aspect of international law in the following manner:
‘Their rights are actualized only in their particular wills and not in a universal will
with constitutional powers over them. This universal proviso of international law
therefore does not go beyond an ought-to-be, and what really happens is that
international relations in accordance with treaty alternate with the severance of
these relations.’3
Hegel argued that even in times of war, the possibilities of peace and the
limitations of war reinforced the view of international law as the jus gentium
representing relations between states that were nevertheless dependent on a ‘mael-
strom of external contingency’. However, while the Volksgeist of individual nation
states rested on realised individuality, the fact that states enter into reciprocal
relations with each other results in a ‘dialectic of finitude’ out of which arises the
universal mind, ‘the mind of the world, free from all restriction, producing itself as
that which exercises its right—and its right is the highest right of all—over these
finite minds in the “history of the world which is the world’s court of judgment”’.4
It is suggested that because international law norms depends so much on the
‘maelstrom of external contingency’ that is immersed in the continuous dialectic of
finitude, much of that part of international law called international human rights
law, takes on an aspirational nature. Much of these norms only becomes concrete
through concrete actions of states either agreeing to and subsequently implement-
ing human rights treaties, or domestically implementing, by legislation or consti-
tutions, universally recognised human rights and so moving the international
community toward a telos of a world spirit based on reason and freedom, that
I claim is encapsulated in the concept of human dignity as espoused in the world’s
court of judgment.
1 G W F Hegel, Philosophy of Right (Grundlinien der Philosophie des Recht, trans S W Dyde, 1896,
reprinted by Cosimo Inc, 2008) at para 330.

2 Hegel, Philosophy of Right, 142, 144
3 Hegel, Philosophy of Right, 333.
4 Hegel, Philosophy of Right, 340.
346 Minority Rights
The asserted antithesis of this Hegelian view of international law, which has its
foundations in what some would regard as a legacy of Nietzsche, is the post-
structuralist, post-modern and critical legal theorists’ critique of law, including
the body of international law. One of the leading exponents, Martti Koskenniemi,
has challenged the positivist view of international law in the groundbreaking text
From Apology to Utopia.5
Building on the work of one of his intellectual mentors, Harvard law professor
David Kennedy, Koskenniemi suggests that international law has such a profound
contradiction at its core that it is bereft of a defensible epistemological basis.
Koskenniemi argues that international lawyers have to reconcile the need to
assess the content of international law by reference to actual state practice and state
interests (concreteness) and the need for an impartial and doctrinal application of
international norms regardless of the actual behaviour, will, and interests of states
(normativity). Thus international law fails to claim any of the degree of autonomy
which is critical in order to function as law. It is this movement between concrete-
ness (the ‘Apology’) and normativity (the ‘Utopia’) that proves the lack of objectiv-
ity of international law and its indeterminacy.6
Koskenniemi concludes that international law and lawyers must accept the lack
of normative rationality in their discipline and that there must therefore be an
‘inevitable movement to politics’ in international legal analyis and arguments.
International law and arguments therefore are a form of ‘moral-political choice’.7
In some respects, while some adherents of Koskenniemi would vigorously object,
I would suggest there is potential common ground between the thesis of Kosken-
niemi and the Hegelian view of international law, except for the view that there is
some dialectic movement towards a universal spirit in the world’s court of judg-
ment. Inherent in the ‘dialectic of finitude’ is the acceptance of the need to
politicise international law away from the doctrinal and positivist view of the
discipline and engage in the social and political dialectic of thesis and antithesis
among all relevant players in what Koskenniemi would call a ‘hegemonic contest-
ation’8 that contributes to the creation of political claims to international law
norms, including human rights norms that relate to minority rights.
However, it is suggested that Koskenniemi’s thesis of international law as an
instrument of international politics is particularly unsuitable for a discussion of
minority rights in international law for one critical reason. Koskenniemi fails to
address the critical role that non-state actors have in demanding that states create
new international law norms, including those relating to minority rights. Vital to a
proper understanding of a non-positivist view of international law is the need to
examine how these non-state actors apply pressure on states to respect the norms by
which they have consented to be bound as a result of Hegel’s dialectic of finitude.
5 Martti Koskenniemi, From Apology to Utopia: The Structure of International Legal Argument
(Cambridge: Cambridge University Press, 2005).

6 Koskenniemi, From Apology to Utopia, 58, 219.
7 Koskenniemi, From Apology to Utopia, 536.
8 Martti Koskenniemi, ‘International Law and Hegemony: A Reconfiguration’ (2004) 17(2)
Cambridge Rev Int’l Affairs 197.

To quote one critic of Koskenniemi:

Koskenniemi’s reflections, while they enable him to ease his guilty conscience at having been
born European, also fail to address another major phenomenon in the contemporary world:
the emergence of an ‘international civil society’ (which is far from being merely European),
which demands of states that they respect the obligations that they have accepted in terms of
the promotion of the rights of humans, peoples or Nature. International law is today
considered by many to be too important to be left in the hands of politicians and their
diplomats.9
This essay examines how the Hegelian thesis and antithesis results in multiple types
of synthesis of minority rights in the international law dialectic that includes the
role of minorities themselves as non-state actors.
B. The aspirational and ambiguous state of

minority rights under international law
The state of international law on minority rights could arguably reflect the dialectic
of finitude on the different aspirational goals of sovereign nations relating to what
each nation views as the rights and responsibilities of minorities within its national
boundaries. As will be discussed below, the catalyst for the search for regional or
universal synthesis on minority rights has been driven in part by the fact that some
of the most savage conflicts between and within nations in the last century,
continuing into the first decade of this century, have been caused by the failure
to protect the rights of minorities.
Globally, humanity progressed along the pluralism dialectic in very small steps
until the birth of the 20th century.
It was the division of the planet into the modern sovereign states that is both the
curse and the potential guardian of what are now termed minority rights. While
that history can be analysed and discussed from the time of the Treaty of Westpha-
lia and the rise of the nation-state, the most important time for the establishment of
minority rights under international law was the period that gave rise to the new
architecture of sovereign states after World War I, when the League of Nations was
given the task of supervising the implementation of treaties dealing with racial,
linguistic, and religious minorities in Central-Eastern Europe arising out of the
landmark 1919 peace agreement at Versailles. These treaties provided essentially
negative guarantees for minorities against discrimination, equal rights of individual
members of minorities, and included some provisions relating to the survival of
these minorities. The focus of the treaties was not on minorities as collective rights
bearers, but instead attempted to ensure the protection of individuals belonging to
minorities. In addition the League was also mandated to supervise national minor-
ities in the mandated territories. The result of the first great world war was to move
9 Pierre-Marie Dupuy, ‘Some Reflections on Contemporary International Law and the Appeal to
Universal Values: A Response to Martti Koskenniemi’ (2005) 16(1) European J Int’l L 131–7 at 137.
348 Minority Rights
the ‘dialectic of finitude’ towards treaties on minority rights that would themselves
lead to further conflict, and ultimately another great war and further conflicts
between majority and minorities within sovereign states.
As has been well documented, the 1923 Treaty of Lausanne has had a profound
impact on modern states which are either majority Muslim states or have minorities
who belong to various Muslim sectarian communities. The Treaty established the
boundaries of the new sovereign state of Turkey abrogating the 1920 Treaty of
Sèvres. This one treaty had a huge impact not only on Turkey, but it also resulted
in people being transferred between Turkey and Greece. This treaty revoked the
commitment by Turkey to recognise an independent Armenia and a future
sovereign state of Kurdistan.10
The breakup of the Ottoman Empire by the great powers and the mandates
given to them by the League of Nations seemed to place both friendly and
adversarial minorities into new groupings of states and future states that would
guarantee future conflicts between Muslim majority populations and minorities
claiming violations of their rights. In particular the turmoil in the Middle East and
the present positions of minorities in Iraq, Israel, Jordan, Palestine, Iran, Syria,
Lebanon, Saudi Arabia, Yemen and Turkey can have a very significant part of their
origins traced back to the 1923 Treaty of Lausanne.11 This Treaty redistributed
sovereignty over minorities from one state to another, inevitably giving rise to the
claims by such minorities to have rights and autonomy from the assimilating power
of the new sovereign state.
At the same time, the sovereign state might well argue that the claims of these
same minorities were potentially the cause of conflict and instability within the
state, causing divisions within society and threatening the uniform application of
rights and obligations of citizens. Thus the power and interest of the sovereign state
and those who claim to speak for it inevitably will come into conflict with the
power of belonging by minorities and the desire to maintain the uniqueness of a
group’s human identity within the confines of the state. This is the foundational
conflict that the dialectic within states and between states must seek to resolve
within what Koskenniemi calls the ‘hegemonic contestation’ of legal norms or,
failing that, to mediate by pointing out the ways in which sovereign states must deal
with the conflict within their own domestic laws and constitutions.
The first attempt by the international community under the League of Nations
after World War I to assert the existence of minority rights and promote a regime of
protection of such rights must be regarded as more of a failure than a success due to
its failure to create a universal system of minority rights.12 Part of the problem was
10 See Patrick Macklem, ‘Minority Rights in International Law’ available online at <http://papers.
ssrn.com/sol3/papers.cfm?abstract_id=1262967> accessed 24 May 2012. The article is also found at

(2008) 6(3–4) Int’l J Constit L 531.
11 Macklem, ‘Minority Rights in International Law’. See also P Marshall Brown, ‘From Sèvres to
Lausanne’ (1923) 18(1) Am J Int’l L 113.

12 See A Baka, ‘The European Convention on Human Rights and the Protection of Minorities
under International Law’ (1992–1993) 8 Conn J Int’l L 227.

the inability to define what constituted a minority, or what rights such a minority
would have.
This inability to define the basic nature and content of minority rights continued
even after the end of World War II with the establishment of the United Nations
(UN) Charter and the 1948 Universal Declaration of Human Rights (UDHR).13 It
is truly astonishing that neither document makes reference to minorities, even
though one of the causes of the War and the Holocaust was the treatment of
minorities in Europe. Perhaps the record of the League of Nations was the reason
for the cautious approach to minorities’ rights and the reluctance to attempt a
comprehensive definition of minorities. This cautious approach focused on inte-
grating minority rights into the legal instruments that concerned the protection of
human rights.14
Jurists have cogently argued that human rights treaties are not an effective way to
protect minority rights in international law for the following reasons. First, states
with minorities may either not be a party to such human rights instruments or may
insist on reservations that promote minority rights. Second human rights treaties
tend not to focus on the specific challenges that minorities face, such as the right to
minority language education. Third, the failure to include such rights can be traced
to the fact that human rights treaties tend to focus on non-discrimination or equal
treatment and not deal with the need for positive state action to prevent the
assimilating power of the dominant population and the state. In addition human
rights treaties tend to cover broad areas of rights while the implementation
mechanisms tend to be weak.15 Human rights treaties are often the results of
consensus deal-making between states which fear the consequences of affording too
powerful rights to citizens while the same citizens clamour for greater recognition of
their rights. Such treaties are often the synthesis of hard-fought dialectics between
governments and then between each government and their own civil society
groups. In the domestic dialectic, minority groups often lose out, unless they
have sufficient domestic political powers enable them to make or break the state.
The drafters of the UDHR had proposed adding minority rights in educational,
religious, and cultural institutions and protecting minority linguistic rights, but
these minority protections did not appear in the final version due to the opposition
from many states that had minorities or indigenous peoples such as China,
Hungary, Romania, and Yugoslavia. It is in such multinational or societies with
indigenous peoples where the struggle for recognition will result in a fierce dialectic
that will often turn violent where the state refuses substantially all minority rights
claims, as will be discussed in the next section.
13 Universal Declaration of Human Rights, GA Res 217 A (III), 3 UN GAOR, UN Do. A/810
(1948) 71 (adopted 10 December 1948).

14 See A P Vijapur, ‘International Protection of Minority Rights’ (2006) 43(4) International Studies
367.
15 For a detailed analysis of the weakness of human rights treaties in protecting minority rights, see
R Bilder, ‘Can Minorities Treaties Work?’ in Y Dinstein and M Tabory (eds), The Protection of
Minorities and Human Rights (Kluwer Academic Publishers, 1992).
350 Minority Rights
While the General Assembly recognised that the question of minority rights had
to be dealt with, it delegated the study of the ‘problem of minorities’ to the
Commission on Human Rights and the Sub-Commission on the Prevention of
Discrimination. This Commission spent 15 years attempting to establish a defin-
ition of minorities, and finally gave up without achieving its goal.16 It may surprise
many that Canada, founded by national minorities and aboriginal peoples, opposed
the UDHR in general.
While the problem of minorities was being studied, the increasing demands of
minorities around the world were going unheeded as the international community
was immersed in the growing problems of an escalating Cold War and the attempt
to end the colonial empires of the Great Powers.
During this period some comfort to minorities could be adduced from the fact
that the UDHR did proclaim protections vital to minorities such as freedom of
expression, freedom of assembly and association, and freedom of religion, while also
asserting the right to cultural and political participation and affirming the equality
rights of ‘everyone’. These are also key rights that minorities could exercise and
claim collectively as will be discussed in greater detail below. As will also be
discussed below, for too long, the division between individual rights bearers and
collective rights bearers has stymied the progress of minority rights.
The only post-war attempt to make reference to minority rights was the
European Convention on Human Rights and Fundamental Freedoms (ECHR)17
which in Article 14 prohibits discrimination based on ‘association with a national
minority’. Like other regional attempts, the ECHR was deemed also unsatisfactory
in the protection of minority rights. Some have asserted that Article 14 has no
independent existence of its own as it can be invoked only when another individual
right has been violated.18 Others dispute this limited view of the ECHR and argue
that the European Court of Human Rights has advanced minority rights despite
the paucity of the provisions in the Convention.19
16 See Vijapur, ‘International Protection of Minority Rights’, 371. See also Macklem, ‘Minority
Rights in International Law’, 6.

17 Eur TS No 5, 213 UNTS 221 (entered into force 3 September 1953).
18 See Ferdinando Albanese, ‘Ethnic and Linguistic Minorities in Europe’ (1991) 11 YB Eur L 325.
19 Christian Hillgruber and Natthias Jestaedt, The European Convention on Human Rights and the
Protection of National Minorities (Koln: Verlag Wissenschaft und Politik, 1994). See also Macklem,
‘Minority Rights in International Law’, 18. Macklem gives a detailed account of how numerous
decisions of the European Court of Human Rights have opened up the jurisprudential door by
suggesting that certain civil and political rights, such as freedom of religion, expression, association,
and religion, as well as the right to family life, protect interests associated with minority status. Other
European instruments dealing with minorities have focused on the troubled parts of Eastern Europe
and the Balkans. These include the work of the Organization on Security and Cooperation in Europe,
such as the 1992 Helsinki Document and the 1994 Budapest document, with the former establishing
the post of the High Commissioner on National Minorities with a mandate to resolve conflicts
involving national minorities: see A Bloed, ‘The OSCE and the Issue of National Minorities’ in
A Phillips and A Rosas (eds), Universal Minority Rights (Turku/Abo: Minority Rights Group, 1995),
113–22. The Council of Europe in 1992 also adopted the European Charter for Regional and
Minority Rights and in 1995 established the Framework Convention for the Protection of National
Minorities. For a discussion on the effectiveness of these European initiatives on minorities, see
It was not until 1966, when the International Covenant on Civil and Political
Rights20 (ICCPR) affirmed in a universally legally binding text, a specific reference to
the rights of minorities in Article 27. This singular reference to the rights of minorities
is still to the present day, the only reference to minority rights in a multilateral treaty
that is open to all the sovereign states in the world who agree to, and be bound by, its
provisions under international law. Article 27 of the ICCPR states:
In those States in which ethnic, religious or linguistic minorities exist, persons belonging to
such minorities shall not be denied the right, in community with the other members of their
group, to enjoy their own culture, to profess and practice their own religion, or to use their
own language.
What should be disconcerting is that even with the reference to the rights of
minorities in the ICCPR, there is no clear definition of these rights. Article 27 of
the ICCPR came into force in 1976, almost three decades after the international
community had its chance to do the same in the UDHR. This record still shows the
international community’s great reluctance to advance the rights of minorities.
There is evidence in the travaux préparatoires that in the drafting of Article 27 of
the ICCPR, there was opposition towards recognising the collective rights of
minorities and a willingness to affirm only the rights of ‘persons belonging to
minorities’.21 This ideological focus on only individual minority rights bearers, as
opposed to the rights of the group, is reflected in the drafting and eventual wording
of Article 27.
Further evidence of the focus on individual rights in the ICCPR of members of
minorities is garnered from the fact that the Human Rights Committee, the
supervisory body of the Covenant, is only empowered to hear individual com-
plaints rather than collective complaints under the First Optional Protocol to the
ICCPR. This has undermined the effectiveness of Article 1 of the Covenant which
guarantees the right of self-determination to all ‘peoples’, as the Human Rights
Committee has ruled that it cannot hear complaints that allege violations of the
right of self-determination. As one writer has rightly concluded, the Covenant is
therefore ‘blunted’ in its ability to be ‘an institutional site for the adjudication and
elaboration of the collective rights of minority populations in international law’.22
From the very beginning, the ideological divide between affirming only individ-
ual rights bearers as opposed to the group has always struck this writer as illogical.
As the last remaining aboriginal inhabitant of Newfoundland, Canada, or Tas-
mania, Australia would have testified, there can be no real exercise of any right to
cultural, language, or religious traditions if there are no other members of the group
E J Aarnio, ‘Minority Rights in the Council of Europe: Current Developments’ in A Phillips and
A. Rosas (eds), Universal Minority Rights (Turku/Abo: Minority Rights Group, 1995), 123–34.
20 Adopted 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976), GA Res 2200
(XXI), 21 UN GAOR Supp (No 16) at 52, UN Doc A/6316 (1966).

21 Jelena Pejic, ‘Minority Rights in International Law’ (1997) 19 Human Rights Quarterly, 666 at
669. See also Bai Guimei, ‘The International Covenant on Civil and Political Rights and the Chinese
Law on the Protection of the Rights of Minority Nationalities’ (2004) 3 Chinese J Int’l L 441.
22 Macklem, ‘Minority Rights in International Law’, 8.
352 Minority Rights
to ensure that the culture, language, and religion survive. The individual right
depends on the group right, while the group right depends on the individuals in the
group desiring to continue the separate identity of the group. This intra-group
dynamic is a key component of the tension between international minority rights
norms and minority groups around the world. The dialectic that this tension
produces will push minority groups to demand that their own sovereign states go
further than the principles in Article 27 of the ICCPR in domestic laws and
constitutions.
There are other aspects of Article 27 of the ICCPR that demonstrate the
unwillingness of sovereign states to affirm the rights of minorities. First, the
provision is only applicable to states that acknowledge that the enumerated minor-
ities exist within their borders. France has taken advantage of this weakness in the
ICCPR to affirm that no such minorities exist within its borders, in accord with its
Republican traditions that there are only French citizens and no minorities within
the state.23 The millions of Muslim French citizens would not agree.
Second, the way in which Article 27 is negatively worded, in particular that
‘minorities not be denied’ their rights—could be interpreted as not requiring any
positive measures by the state to ensure the minority rights mentioned. However,
from a sheer logical analysis, Article 27 would make little sense if it did not require
states to take positive measures to ensure the most critical aspects of minority rights
are not undermined. If only negative rights were to come within the ambit of
Article 27, there would really be no need for it, as the enumerated individual rights,
such as the freedom of religion, association, thought, and conscience would have
sufficed.24 It should be noted that the Human Rights Committee has interpreted
that positive measures of protection for minorities were required not only against
acts of the state party, but also against acts of other persons within that state.25
There has been much debate about the impact of this negatively worded affirm-
ation of the rights of minorities.
Third, while it is clear that the intention was to affirm only the individual rights
of ‘persons belonging to minorities’ the final wording of the provision does imply
the existence of a collectivity with which the individual can exercise the enumerated
rights. It suggests that the rights of the collectivity could then be a derivative form
of rights dependent on the individual rights bearer.26
It is suggested that regardless of the intention of the drafters of Article 27, the
wording of the provision allows for an interpretation that includes both the
individual minority rights bearer and the minority as a collective rights bearer.
The individual complaint procedure to the Human Rights Committee under the
Optional Protocol to the ICCPR may well be the best mechanism to advance the
collective rights interpretation of Article 27, even if the impact is only indirect and
23 Pejic, ‘Minority Rights in International Law’, 669.

24 Pejic, ‘Minority Rights in International Law’, 675–6.
25 Vijapur, ‘International Protection of Minority Rights’, 377 citing F Pocar, ‘The International
Covenant on Civil and Political Rights’ in Manual on Human Rights Reporting (Geneva: United
Nations, 1997), 171 at 255–9.
26 Vijapur, ‘International Protection of Minority Rights’, 670.
depends on the states that have ratified the ICCPR abiding by the decisions of
the Committee which are legally non-binding. The Sandra Lovelace ruling of the
Human Rights Committee27 against Canada is perhaps the best known example of
the indirect effect of Article 27 on collective rights, although it involved the First
Nations of Canada who do not regard themselves as minorities. Canada amended
the Indian Act for all First Nations under the Act, following a ruling by the
Committee that the gender discrimination permitted under the Act was an unjusti-
fiable denial of recognition of Lovelace’s membership in her Maliseet Indian tribe.
The protection of the minority group as a collective rights bearer under inter-
national law is reflected in several regional and multilateral agreements and Declar-
ations since the end of World War II. These include the 1948 Convention on the
Prevention and Punishment of the Crime of Genocide,28 the 1960 UNESCO
Convention against Discrimination in Education,29 the 1965 Convention on the
Elimination of All Forms of Racial Discrimination (CERD),30 the UNESCO
Declaration on Race and Racial Prejudice, the 1981 UN Declaration on the
Elimination of All Forms of Intolerance and Discrimination Based on Religion
and Belief,31 and the 1992 UN Declaration on the Rights of Persons Belonging to
National or Ethnic Religious and Linguistic Minorities which was, in part,
designed to provide clarification of Article 27 of the ICCPR.32
Given the above reluctance to provide a definition of minorities, it was not
unexpected that the 1992 UN Declaration on Minorities also came up empty
handed on this critical definition. Declarations, while not binding legal instru-
ments, can be useful in suggesting state practice that could ultimately result in
customary international law norms. The Declaration is mostly a restatement of
existing rights relating to minorities, especially those in the ICCPR. However its
significance lies in the fact that it is the first universal document related exclusively
to minority rights. While it does not impose legally binding provisions, it has been
argued that its importance lies in the fact that it was adopted by the General
Assembly by consensus with the active support of countries from around the
world.33 At minimum, such general declarations on the rights of minorities provide
what I would term a ‘dialectic platform’ for minorities to continue the struggle for
further enhancement of their rights within the context of domestic laws and
constitutions.
27 Lovelace v Canada, Human Rights Committee, Comm No CCPR/C/13/D/24/1977, 30 July
1981.
28 Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, 78
UNTS 277 (entered into force 12 January 1951).

29 Convention Against Discrimination in Education, 14 December 1960, 429 UNTS 93 (entered
into force 22 May 1962).

30 International Convention on the Elimination of All Forms of Discrimination, 21 December 1965,
660 UNTS 195 (entered into force 4 January 1969).

31 Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion
or Belief, GA Res 36/55, UN GAOR, UN Doc A/36/51 (1982) 171 (adopted 25 November 1981).
32 Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic
Minorities, GA Res 47/135, Annex (1992) (adopted 18 December 1992).

33 Vijapur, ‘International Protection of Minority Rights’, 381.
354 Minority Rights
However, the 1992 UN Declaration on Minorities is not particularly enriching
in terms of advancing the cause of minority rights. The Declaration for the most
part covers the same ground as Article 27 of the ICCPR but adds that the stipulated
rights should be exercised in private and public, freely and without interference or
any form of discrimination.34 As one writer notes, there are escape clauses in the
Declaration, and the broadly worded commitments give little guidance on specific
duties of states to enable minorities to express and develop their culture, language,
and religion.35
The reluctance and indeed the confusion about the nature and scope of the rights
of minorities in the only universally binding legal document would inevitably give
rise to other attempts to fill out what constituted a minority and the nature of
minority rights under international law.
In 1977, the UN Special Rapporteur on Minorities, Francesco Capotorti
launched a landmark ‘Study on the Rights of Persons Belonging to Ethnic, Reli-
gious and Linguistic Minorities’ (Capotorti Study).36 The document based, in part,
on the previous case law of the Permanent Court of International Justice and the
opinions of many government officials,37 proposed the following definition of a
minority:38
[a] group numerically inferior to the rest of the population of a State, in a non-dominant
position, whose members—being nationals of the State—possess ethnic, religious or lin-
guistic characteristics differing from those of the rest of the population and show, if only
implicitly, a sense of solidarity, directed towards preserving their culture, traditions, religion
or language.
This definition is the inevitable result of the arbitrary distribution of sovereign
power around the world and epitomised in the legacy of the Treaty of Lausanne
that has caused so much conflict in the Middle East in particular. The numerical
inferiority criteria in Capotorti’s definition applies also to majorities in certain
regions or units within the sovereign state but who still constitute a minority
within the boundaries of the sovereign state as a whole. In this fashion, the
francophone majority in the Province of Quebec constitutes a national minority
in the sovereign state of Canada. The indicator of ‘non-dominant position’ would
also apply to minorities who are subordinate in political, economic, cultural, and
social standings.39
Finally there is the recognition that the present distribution of sovereign powers
around the world will often lead to groups evidencing a solidarity, believing that
34 See Pejic, ‘Minority Rights in International Law’, 677.

36 Francesco Capotorti, Special Rapporteur of the Sub-Commission on Prevention of Discrimin-
ation and Protection of Minorities, Study on the Rights of Persons Belonging to Ethnic, Religious and
Linguistic Minorities, UN Doc E/CN. 4/Sub.2/384/Rev.1, UN Sales No E. 78.XIV 1 (1979)
(‘Capotori Study’).
38 Capotorti Study, para 568.
their culture, traditions, religion, or language sets them apart from the dominant
majority, and a desire to preserve that difference.40
The Capotorti definition of a minority reflects the main characteristics of such a
group of individuals, which will trigger an intra-state dialectic that will continually
push demands for recognition of the identity of the minority as a vital human need
along with the rights that reinforce that identity. These politics of recognition will
first take place within the sovereign state and subsequently in the dialectic of
finitude that leads to the creation of international law norms.41
Despite these attempts to define the nature and scope of minority rights in
international law, in the years following the coming into force of the ICCPR,
critical ambiguities remain. These include whether Article 27 of the ICCPR and the
scope articulated by Rapporteur Capotorti applies to non-nationals residing within
the boundaries of the sovereign state, and the definition of what constitutes an
ethnic minority.
The Treaty Body of the ICCPR, the Human Rights Committee, has asserted
that Article 27 does apply to all minorities in the sovereign state irrespective of
nationality or citizenship and could even apply to migrant workers or other non-
permanent minority residents. The Sub-commission on Minority Rights regarded
the term ethnic minority as broader than ‘racial minority’ and including national
minorities.42
This brief description of the unsuccessful attempts in international law to
establish a universally accepted definition and scope for minority rights should be
of major concern to the international community. Such a failure will lead in some
countries to their national governments arbitrarily justifying limitations on the
rights of minorities within their borders. In other cases, minorities may well
overreach on claims they assert are their collective rights in the quest for either
unreasonable powers or, as seen in an increasing number of cases, the right to
secede from the sovereign country in which they find themselves. The ultimate
consequence of this situation could well be civil conflict, insurrection, and the
actual or potential breakup of existing sovereign states. The following section will
first demonstrate how the failure of states to understand the importance of the
politics of recognition and the dialectic that it triggers can lead to the most serious
consequences for the sovereign state, including civil conflict and insurrection.
Then, the essential minority group demands of such politics of recognition from
Rapporteur Capotorti, an internationally renowned civil society group on minority
rights, and leading academic authorities will be discussed.

41 For Hegel’s exposition of recognition as a vital human need see G W F Hegel, The Phenomenology
of Spirit, trans A V Miller (Oxford: Oxford University Press, 1977), chapter 4. For a modern-day
discussion of the politics of recognition as it relates to minority rights, see Charles Taylor and Amy
Gutmann, Multiculturalism and ‘The Politics of Recognition’: An Essay (Princeton: Princeton University
Press, 1992).
42 Pejic, ‘Minority Rights in International Law’, 671–2.
356 Minority Rights
C. The imperative of incorporating minority

rights into national laws and constitutions
with a little help from international law
Recent history would seem to offer up a stunning paradox, that federal states may not
be the best form of human governance for societies with multi-ethnic populations.
The former Soviet Bloc had nine states, six of which were unitary states while three
were federal in structure. With the unification of Germany, the six unitary states are
now five, but the three federal states, Yugoslavia, the Soviet Union, and Czechoslo-
vakia are now 22 independent states, perhaps 23 if we include Kosovo.43 Most of these
newly independent states were forged by minorities who did not feel that their rights
were sufficiently protected by the federal structures in which they previously existed.
It is not an adequate counter-argument to suggest that this spectacular break-up of
multi-ethnic federal states in Eastern Europe, the Soviet Union, and the Balkans was
due to the ending of the oppressive authoritarian state after the end of the Cold War
and the return of the historic ethnic hatreds and conflicts let loose without the
restraints of the strong man and his overwhelming security forces. I suggest that ethnic
identities are not predetermined to be in conflict with other groups and that the causes
of ethnic conflict are not only influenced by history, but also by the way in which such
groups are treated. As one Bosnian Muslim teacher is reported to have said: ‘We were
Yugoslavs. But when we began to be murdered because we are Muslims, things
changed. The definition of who we are today has been determined by our killing’.44
At first sight, this does not bode well for federations being particularly good
structures for the protection of minority rights. Yet, the orthodox thesis is that it is
federations rather than unitary states that can best protect minorities across diverse
populations or across large territories. Perhaps this view is outdated and should be
replaced with the thesis that it is only multiethnic societies, whether federations or not,
that develop the appropriate constitutional and legal framework on the definition and
scope of minority rights appropriate to each society that can hope to remain united
and avoid the human rights catastrophes that we see in multiethnic societies around
the world today. This is the struggle for recognition and identity within nations that
then drives the dialectic between nations at the international level.
I suggest that this appropriate implementation of minority rights may be even more
important than having a formal democratic system in a multiethnic society. For
43 See A Stephan, ‘Federalism and Democracy: Beyond the U.S. Model’ (1999) 10 J of Democracy 4 at
19–34. For an excellent analysis of how federal structures in the Former Republic of Yugoslavia (FRY) did
or did not contribute to the breakup of the FRY, see S Malesevic, ‘Ethnicity and Federalism in Communist
Yugoslavia and its Successor States’ in Yash Ghai (ed), Autonomy and Ethnicity, Negotiating Competing
Claims in Multi-Ethnic States (Cambridge: Cambridge University Press, 2000), 147. The author’s thesis is
that regarding the value of federal arrangements for the maintenance of multiethnic societies, ‘A great deal
depends on the historical, political and social conditions of the particular society. What is crucial is the way
in which the agreement between the constituent units is reached.’
44 See B W Jentleson, ‘A Responsibility to Protect, the Defining Challenge for the Global
Community’ (2007) 28(4) Harvard Int Rev 19 at 19.

example, Sri Lanka, a democratic multi-ethnic state, has stood accused of violating the
human rights and equality rights of its Tamil minorities and found itself in one of the
world’s most brutal civil wars over 25 years that has left more than 70,000 dead,
culminating in the final capture of rebel Tamil Tiger territory in May of 2009.45
Similarly, other theoretically democratic multiethnic states, such as Russia,46 are, in
practice, refusing to respect minority rights—with potentially similar disastrous
consequences for Muslim minorities in the Russian Federation. The future for
authoritarian non-democratic multi-ethnic states is even bleaker. We only have to
look at the genocidal carnage in Sudan to understand this horrible future.
What then are the essential aspects of minority rights promoted under inter-
national law that national constitutions must incorporate?
Above any of the specifics of minority rights that must be incorporated into
national constitutions is the most fundamental foundation of the protection of
minority rights, namely the establishment of an effective rule of law framework in
states with national minorities.
As has been well argued elsewhere, respect for rights, both individual and
collective can be illusory in the absence of a real and effective rule of law. The
most minimum content of an effective rule of law framework means an independ-
ent judiciary and legal profession along with the effective enforcement of judicial
decisions by organs of the state. If individuals are unable to bring their claims of
rights infringements under national constitutions and laws before independent
judges not under the control of the government and whose decisions are respected
by all organs of the state, there is only the illusion of individual and minority rights.
As one writer has stated, ‘Rights are not only statements of ideals and entitlements
but goals and tools for the pursuit of those goals, means for pursuing law reform,
advancing the rule of law, and enhancing society’s legitimacy’.47
We see the reality of the need for this fundamental pre-condition of minority
rights, not only in authoritarian states where there is no independent judiciary such
as in China48 and Sudan,49 but also is allegedly democratic states which do not have
45 See Neelan Tiruchelvam, ‘The Politics of Federalism and Diversity in Sri Lanka’ in Yash Ghai
(ed), Autonomy and Ethnicity (Cambridge: Cambridge University Press, 2000), 198. The author, a
friend and colleague, was a moderate Tamil scholar and jurist who paid with his life for his belief that
constitutional reform in the direction of regional autonomy could resolve Sri Lanka’s ethnic conflict.
He was killed by a suicide bomber.
46 The annual reports of Amnesty International continue to condemn the gross human rights
violations and lack of effective democratic institutions in the Russian Federation, see Amnesty Inter-
national online <http://www.amnestyusa.org/all-countries/russian-federation/page.do?id=1011228>.
47 S J M Donnelly, ‘Reflecting on the Rule of Law: Its Reciprocal Relation with Rights, Legitimacy
and Other Concepts and Institutions’, Annals of American Academy of Political Science and Social
Science 603, January 2006, p 37.
48 For extensive discussion of the gaps in the Chinese framework for the rule of law and the impact
on rights, see E P Mendes and Anik Lalonde-Roussy, Bridging the Global Divide on Human Rights;
A China-Canada Dialogue (UK, USA, Australia, Singapore: Ashgate, 2004), and also E P Mendes and
A-M Traeholt (eds), Human Rights, Chinese and Canadian Perspectives (HRREC, University of
Ottawa, 1997).
49 For a description of how the absence of the rule of law can lead to the ultimate violation of
minority rights, namely war crimes, crimes against humanity and genocide in the case of Sudan, see
358 Minority Rights
these pre-requisites for minority rights. Examples in this latter category include
Malaysia50 and the Russian Federation.51
Only in the presence of a non-illusory rule of law framework can the following
discussion of the content of effective minority rights legal and constitutional
framework make any sense.
Rapporteur Capotorti and Jelena Pejic have argued that Article 27 of the ICCPR
links up with Article 18 of the same Covenant provisions on freedom of thought,
conscience, and religion. This linkage would argue for minorities having the right
to give expression to their religion in worship, observance, practice and teaching,
whether in public or private.52 It would include the right to religious and moral
education of children belonging to minorities. Capotorti goes further and argues
that the protection of culture under Article 27 includes the medium of language
leading to the necessity to provide for minority language education, including in
educational institutions other than those established by public authorities.53 There
is nothing more critical to the survival of minorities than the right to have their
children educated in their language and in the culture, traditions, and religion of
the minority. The 1960 UNESCO Convention Against Discrimination reinforces
this imperative for national minorities.
According to Pejic, Article 5 provides that members of national minorities have
the right to minority educational activities, including the maintenance of schools
and to use or teach their own language in the schools depending on the educational
policy of each state.54 Likewise under Article 2 of the same Convention, if needed
for religious or linguistic reasons, the establishment or maintenance of separate
educational systems should also be permitted under specified conditions.55
The ICCPR also clearly establishes an imperative for the need for national
constitutions of states with minorities to prohibit discrimination against minorities
and that they should enjoy the rights and freedoms guaranteed by law without
distinction of any kind and on the basis of equality.
The frameworks provided by international law for the protection of minority
rights, however unsatisfactory, must be the foundation for the incorporation of
these rights into national laws and national constitutions. The most compelling
reason for doing so is to both resolve and prevent some of the worst human rights
and humanitarian crises around the world, that have their roots in the failure to
protect and promote the rights of minorities.
Errol P Mendes, Peace and Justice at the International Criminal Court, A Court of Last Resort
(Cheltenham: Edward Elgar, 2010), at 48–96.
50 See Arjuna Ranawana, ‘Daring to Rule’ (2001) 27(25) Asiaweek, 29 June, p 21; see also W Case,
‘New Uncertainties for an Old Pseudo-Democracy: The Case of Malaysia’ (2004) 37(1) Comparative
Politics 83 at 101.
51 See L Edwards, ‘Russia Claws at the Rule of Law’ ABA Journal; July 2009, Vol. 95 Issue 7, pp 38–62.
52 Capotorti Study, 238. See also Pejic, ‘Minority Rights in International Law’, 677.
53 Capotorti Study, 239.
54 See Pejic, ‘Minority Rights in International Law’, 677.
As discussed, the failure of both democratic and authoritarian multiethnic and

multinational states in the past 50 years is demonstrable proof of this need to use the
basic principles of international law frameworks on minority rights and then
strengthen them by incorporation into national laws and national constitutions.
This is both a necessary and urgent task as leading experts have concluded that despite
the plethora of treaties, declarations, documents and oversight bodies on minorities in
international law, the substance of minority rights remain weak in the international
law sphere.56 Given the obstacles of state sovereignty in giving minority rights that
substance, there is a growing perception that the substantive protection of minority
rights can only be afforded by national laws and constitutions.57
It is suggested that the weak thesis that international law can be the strongest
support for the rights of minorities has been met with the antithesis of claims of
severe oppression by minorities around the world, and especially by various
groupings of Muslim and other ethnic or sectarian minorities within powerful
sovereign states such as the Russian Federation or by such minorities within states
that had their boundaries drawn without regard for potential sectarian conflicts
after World Wars I and II as described above. The growing number of international
treaties and norms discussed above has failed to effectively provide protection for
many of these minorities.
To avoid the potential for civil conflict that could even evolve into humanitarian
crises, there must be a move to establish real and effective protections of minority
rights within national laws and constitutions that can be policed legally and
politically by the minorities and the legal systems of the sovereign states. The
contestation of rights between the sovereign state and civil society represented by
minorities within the state must lead to the development of adequate domestic laws
and constitutions that protect their fundamental rights. The question then becomes
what are the most essential characteristics of those rights?
The internationally renowned Minority Rights Group International (MRGI)
produced a major research paper in 2007 that reinforced this dialectic thesis and
also presented the critical aspects of the rights of minorities that should be
translated into domestic laws and constitutions.58
Pointing to the some of the world’s most intractable civil conflicts in Chechnya,
Darfur, Kashmir, Kosovo, and Sri Lanka, the MRGI report asserts that these savage
conflicts were fuelled and fought over ethnic, linguistic, religious, and cultural
issues involving minority groups. The report asserts that disregard for minority
issues lay at the heart of these conflicts. MGRI then asserts that when minority
56 For a detailed analysis of the weakness of these attempts to give substance to minority rights in
international law, see Javaid Rehman, The Weaknesses in the International Protection of Minority Rights,
(The Hague: Kluwer Law International, 2000).
57 See for example the view that it is up to the states with the assistance of the UN to protect
minorities domestically in F Ermocora, ‘The Protection of Minorities Before the United Nations’
(1983) 182 Recuil des Cours de l’Academie de Droit International 251 at 346.
58 MRGI research report by Clive Baldwin, Chris Chapman, and Zoë Gray, Minority Rights: The
Key to Conflict Prevention (2007) available online at <http://www.ssrnetwork.net/document_library/

detail/3673/minority-rights-the-key-to-conflict-prevention> accessed 25 May 2012.
360 Minority Rights
rights are enshrined in constitutions and implemented through electoral, justice,
and educational systems, conflicts can be avoided or not allowed to fester. Examples
given include how post-apartheid South Africa promoted representative participa-
tion in the National Assembly by a range of groups such as black linguistic minority
groups, white, Indian, and coloured groups as the country emerged from its pariah
status. In contrast, the MRGI points to the failure in Bosnia to allow minorities to
participate politically without compromising their religious or ethnic identity,
which is creating the possibility of new conflicts arising in that troubled country.59
The MRGI asserts that the critical minority rights that need to be incorporated
into national laws and constitutions fall into four main categories: the right to
existence; the right to identity; the right not to be discriminated against; and the
right to political and economic participation. This should not mean separating
these groups from the dominant population or result in the support for secessionist
movements, as some states fear if minorities are given the rights advocated by the
MGRI or by the international law frameworks discussed above. Rather the funda-
mental aim of incorporating such minority rights into national laws and consti-
tutions is to protect the groups that lack power and protect the vulnerable members
of that group, such as women.60
The right to exist and the right to identity should also include the right to be
recognised as minorities deserving equal concern and respect under the national
laws or constitution. While protective measures against genocide and other forms of
destruction or violence against the group is the ultimate form of the violation of
these rights, MGRI asserts that simple denial of the group’s existence should also be
unacceptable under domestic regimes.
Other rights related to existence and identity include full recognition that the
culture, language and religion can be freely practiced and recognised and supported
by the national authorities. Groups should be allowed to self-identify themselves
according to their own criteria. Hate speech that promotes hatred and violence
towards minorities, particularly in the media and education systems, should also be
regarded as an attack on the right of minorities to exist. It is in the educational
systems of the state where the fight against such hate speech and intolerance of
minorities can be most effective and it is in the educational system that the
foundations for tolerance and understanding between minorities and the majority
59 MRGI report, Minority Rights: The Key to Conflict Prevention, 2.

60 MRGI report, Minority Rights: The Key to Conflict Prevention, 2. The report gives present-day
examples of the four main categories of where minority rights are being violated: ‘(1) Existence: for
example the Turkish state currently denies that Kurds are a minority, and for many years the
government policy was to refer to them as “Mountain Turks”; (2) Identity: in Iraq, minority
communities such as Christians and Turkomans are targeted for violence because of their religious
and ethnic identities; (3) Discrimination: in China, well-qualified members of minority communities
such as Uyghurs face discrimination in employment because they are not Han Chinese; and (4)
Participation: political and economic. In Sudan, national identity is defined in terms of one or a small,
restricted, number of ethnic/religious groups and other groups that form part of the country are
implicitly or explicitly excluded from political life. The source of the Darfur crisis lies in economic
exclusion and competition over scarce resources, exacerbated by the historical discrimination of
minorities and neglect of the area by successive governments.’
population can be established. Finally, the rights to existence and identity can be
enhanced by personal laws governing family life, children, and marriage which are
sufficiently lenient to allow minorities to exercise their culture and traditions as
long as such minority dispositions regarding personal laws do not exacerbate
divisions between communities.61
One can add that these personal laws cannot override the fundamental human
rights values of the state such as the commitment to gender equality and the right to
life, liberty, and security of the individual members of the minority.
MRGI asserts that the right to be free from discrimination should include prohib-
itions against persistent, intersectional, and systemic discrimination. The justice
systems of states should also ensure that those who violate the rights of minorities
should be held accountable and punished. This is especially important where mass
crimes have been committed against an entire minority group, to prevent the slide into
further violence and even genocide. It is important that national laws and policies
establish early warning systems that allow early action against violations of minority
rights including the incorporation and analysis of patterns of discrimination and
exclusion that foretell of the rise of conflict and tension.62
The right of minorities to participation, according to the MRGI, should include
the ability to effectively participate in the political and economic decision-making
process, in order to protect their distinct identities being undermined by their lack
of power. For such participation to be effective it must not be merely token
representation which has little or no impact on the decisions of the national
governments that affect the autonomy of the minority groups. In addition, devising
electoral systems, reserved seats, promotion of minority-based parties, and minority
consultative or advisory bodies should also be considered. In states where minorities
are concentrated in specific regions of the state, autonomous governments, complex
power sharing or the evolution of a minority-respecting federalism should also be
considered to promote the long-term peace and security of the state.63
D. Conclusion
The fundamental lessons to be learned from both the history of the 20th century
and the first decade of the 21st century is that the international law framework on
minority rights is part of a very complex dialectic that has occurred both within
states and then between states. The fundamental lesson from that dialectic is that
for legal norms both national and international to be effective in minority-rights
protection, minorities can not be regarded as subordinate to the dominant popula-
tion and relegated to separate, but unequal, parts of the social and economic spheres
of the sovereign state.
61 MRGI report, Minority Rights: The Key to Conflict Prevention, 5–10.

62 MRGI report, Minority Rights: The Key to Conflict Prevention, 2–5.
63 MRGI report, Minority Rights: The Key to Conflict Prevention, 5 and 12–16.
362 Minority Rights
In all aspects of the social and economic spheres of the sovereign state, to ensure
the peaceful integration of minorities, the demands of the minority rights dialectic
requires equal access by national and ethnic minorities to society’s most valuable
goods, especially in the realms of education and political participation. This equal
access must be founded on a rigorous attempt to eradicate all forms of overt and
systemic discrimination against such minority groups and prevent the instigation of
hatred and violence against such groups, including the prohibition of hate speech
that can lead to even worse assaults on minorities, including genocide.
A final discussion should be devoted to whether the dialectic of minority rights
has any resonance today at the intersection of the principles of the Islamic tradition,
the norms of international law, and the aspirations of the international community
in Muslim majority states. As regards the role of Muslim dominated states in the
Middle East in this dialectic of finitude, there has been general acceptance by a
majority of such states of some of the most importance treaties dealing with critical
aspects of minority rights. This includes the ratification of the ICCPR, the CERD,
and the Genocide Convention. In addition, Muslim states participated in the
drafting of the foundational human rights document of the ‘world’s court of
judgment’, namely the Universal Declaration of Human Rights.64
Much as this author and the MRGI group would advocate for it, only a few
Muslim states have enshrined the rights of minority religious groups in their
constitutions. In this regard, the most important states that have domestically
enshrined minority rights include Pakistan, Algeria, Iran, and Iraq.65 Turkey has
also recognised the main religious groups in the former citadel of the Ottoman
Empire under the 1923 Lausanne Treaty. As described earlier,66 the enforcement
of such rights, when translated into domestic law, may be far from perfect and
serious infringements of minority rights continue to be seen in these countries. But
there are better chances of effective protection of such rights under domestic law
supported by relevant international norms.
The fulfillment of the synthesis of this dialectic of minority rights protection and
promotion will not be easy as the history of the most troubled countries in the
world have demonstrated. Equal access to a sovereign state’s most valuable goods
will require overcoming historical grievances and in some cases the dominant
population seeking forgiveness for historical assaults against their national and
ethnic minorities. This process of historical reconciliation of majorities with
minorities may well require integrating international frameworks for minority
rights into hotly contested new national laws and amending the national consti-
tution. These initiatives could include new forms of power and revenue sharing and
even the consideration of constitutional amendments that provide greater and more
effective forms of autonomy for national and ethnic minorities.
64 Susan Waltz, ‘Universal Human Rights: The Contribution of Muslim States’ (2004) 26(4)
Human Rights Quarterly 799–844.

65 See Kamran Hashemi, ‘Muslim Legal Traditions of DHIMMAH on Religious Minorities and its
Effects on Current State Practices’, unpublished paper presented at Princeton University.

66 See n 60.
Even in the most troubled states of the world, there is recognition of the need for
innovative actions to bring the reality of international frameworks for the protec-
tion of minority rights into their national laws and constitutions to have a chance of
a sustainable peace in their countries.67
The international community seems barely to have learned that much of the
conflict in the world both in the last century and in the early part of this century has
its roots in the assaults on the rights of minorities who have found themselves in
sovereign states based on treaties that ended wars fought by great powers. The
failure of universal agreements such as the ICCPR to give precise parameters to the
promotion and protection of minority rights must be rectified by national laws and
constitutions to ensure that humanity at the end of this century does not witness
many decades of the type of bloodshed and humanitarian crises involving minor-
ities seen in the last decade.
Given that many of the challenges regarding minorities on this tiny blue planet
concern conflicts between the state and religious minorities and is particularly
pronounced in Muslim majority states or states with Muslim minorities, does the
Hegelian dialectic offer any hope for the rest of this century? The optimist
Hegelian, as this author is, would answer in the affirmative. The hope is that the
international community is moving toward a telos of a world spirit based on reason
and freedom. That telos would affirm that the ultimate good in any faith to do
God’s will is not only reconcilable with, but also supportive of, the foundation of all
universally recognised human rights, namely that the protection and enhancement
of human dignity is the foundational duty of all of humanity in the world’s court of
judgment.
67 The MRGI report cites the efforts by the Transitional Administrative Law in Iraq to have a three-
member presidency with a Kurd, Shi’a, and Sunni representative as a form of transitional consocia-
tional arrangement to constrain the tyranny of a simple majority which has been carried over into the
post TAL. MRGI report, Minority Rights: The Key to Conflict Prevention, 17.
20
Commentary: Religious Minorities
and Islamic Law
Richard J Goldstone
A. Introduction
This commentary responds to the essays on religious minorities written respectively

by Anver M Emon and Errol P Mendes (Chapters 18 and 19). The essays comple-
ment each other, the first describing the history of accommodation of religious
minorities made by Islamic law and the second dealing in more general terms with
the necessity for greater attention to be given to the protection of minorities in
international and domestic human rights law.
B. Anver Emon’s thesis
At the outset, it should be recognized that ancient religions were intolerant of other,
often competing, religions. Monotheism makes it difficult for true believers to
regard other deities as being on the same level as their own. Belief in one deity is not
consistent with the recognition or acceptance of others. Indeed, Anver Emon
illustrates how difficult it is for adherents of one religion to recognize, on the
basis of equality, other religions and especially those of minorities.
Emon demonstrates that Islamic law, like the laws of other religions, and
especially ancient religions, is not able to recognize other religions as equal in
respect and acceptance. Thus there was the ‘aqd al-dhimmi, the protective laws that
governed religious minorities who permanently resided in the Islamic polity. As
Emon explains:
The academic interest in the dhimmi rules has much to do with the fact that they are facially
discriminatory in ways that offend contemporary sensibilities. There is no denying the fact
that such rules discriminate because the dhimmi is not a Muslim. Examples of such rules
include: limitations on whether dhimmi can build or renovate their places of worship;
clothing requirements that distinguish the dhimmi from Muslims; special tax liability known
as the jizya; and their incapacity to serve in the military.
He insightfully suggests that:
Commentary: Religious Minorities and Islamic Law 365
to use ‘tolerance’ to frame the analysis of the treatment of minorities is to look past how the
meaningfulness of being a minority is dependent upon the extent to which majoritarian
values animate the governing enterprise that rules in a context of diversity.
By contemporary standards the very recognition of dhimmi is itself an act of
discrimination that violates the human dignity of non-Muslims. The purpose of
the ‘aqd al- dhimmi, as amply demonstrated by Emon, is to ‘tolerate’ Christians and
Jews living permanently in a Muslim state. Perhaps the most disturbing illustration
of modern-day discrimination provided by Emon comes from Saudi Arabia where
amounts of monetary damages for wrongful death depend upon the religious
affiliation of the victims.
. . . [I]f the victim is a Muslim male, his family can claim SR100,000. But if the victim is a
Christian or Jewish male, the family can only claim half that amount, namely SR50,000.
Further, if the victim belongs to another faith group, such as Hindu, Sikh or Jain, his family
can claim only approximately SR6,667. The family of a female victim can claim half the
amount allowed for her male co-religionist.
The egregious discrimination against other faith groups and against women speaks
for itself. That kind of discrimination continues to this day in other nations that
recognize a state religion and do not have a Bill of Rights entrenching the inalien-
able equality of all its citizens. The discrimination might follow from laws explicitly
entrenching discrimination, as in Apartheid South Africa, or might be less direct
and brought about by people more or less voluntarily segregating themselves, as in
many cities and towns in modern states.
Emon refers to some illustrations of religious discrimination in modern democra-
cies. He refers to legislation in Western Europe banning forms of traditional Muslim
veiling of women, the ban on building minarets in Switzerland, and the controversy
that surrounded the building of a Muslim Center two blocks from Ground Zero in
New York. He also refers to the securitization of these issues—the threat of terrorism
emanating from Islamic groups adds to the weight of majoritarian fears.
Emon’s conclusion is that the symptoms of religious discrimination and intoler-
ance are in fact symptoms of ‘the larger, more difficult, and arguably globally shared
challenge of governing pluralistically’.
C. Errol Mendes’s thesis
Whilst Anver Emon describes and explains the commonality of differentiation and
discrimination, Errol Mendes devotes his attention to ways of controlling and
deterring this phenomenon. The question that he poses for himself and that he
proceeds to address is ‘ . . . can this diversity of humanity be given the protection of
what is now called minority rights under international law?’ Mendes traces the
history of international human rights and describes as ‘astonishing’ the absence of
any reference to minorities in the Charter of the United Nations and the Universal
Declaration of Human Rights (UDHR). In this regard he points to the role that the
treatment of minorities played in the events leading up to and during World War II,
366 Minority Rights
and especially the Holocaust. The absence of a reference to the rights of minorities is
also explained by opposition from some states that had problems with minorities in
their populations, such as China, Hungary, Romania, and Yugoslavia. The General
Assembly recognized the relevance of this issue and referred it to the Commission on
Human Rights and the Sub-Commission on the Prevention of Discrimination. The
discussions languished there for some 15 years.
The only concrete treatment of the issue of minorities is to be found in the
European Convention of Human Rights which in Article 14 prohibits discrimination
based on ‘association with a national minority’. This wording was unclear and its force
and effect became a matter of controversy. It was not until 1966 that the International
Covenant on Civil and Political Rights (ICCPR) affirmed in a ‘universally legally
binding text, a specific reference to the rights of minorities’. That the ICCPR came
into effect almost three decades after the UDHR illustrates the extreme reluctance of
the members of the global community to advance the rights of minorities. And, even
then, as Mendes points out, the ICCPR only recognizes the right of individual
members of minorities to claim relief. It failed to recognize or allow collective
complaints. He gives the example of France, which refuses to recognize the very
existence of minorities within its borders in accord with its Republican traditions that
there are only French citizens and no minorities within the state. As he points out:
‘The millions of Muslim French citizens would not agree.’
The answer, according to Mendes, is for states with national minorities to
establish an effective rule of law framework.
Mendes relies on the 2007 report of Minority Rights Group International
pointing out that some of the world’s most intractable civil conflicts have been
fought over ethnic, linguistic, religious, and cultural issues involving minority
groups. The report pointed out that disregard for minority issues lay at the heart
of these conflicts. Reference is made in this context to South Africa and how:
. . . post-apartheid South Africa promoted representative participation in the National
Assembly by a range of groups such as black linguistic minority groups, white, Indian,
and coloured groups as the country emerged from its pariah status. In contrast, the MRGI
points to the failure in Bosnia to allow minorities to participate politically without com-
promising their religious or ethnic identity, which is creating the possibility of new conflicts
arising in that troubled country.
The conclusion reached by Mendes is that the international community appears
to have ignored the fact that much of the conflict in the world has had its roots in
the assaults on the rights of minorities who have found themselves in states based
on treaties that ended wars fought by great powers. However, he ends his essay on
an optimistic note:
The hope is that the international community is moving towards a telos of a world spirit
based on reason and freedom. That telos would affirm that the ultimate good in any faith to
do God’s will is not only reconcilable with, but also supportive of, the foundation of all
universally recognised human rights, namely that the protection and enhancement of
human dignity is the foundational duty of all of humanity in the world’s court of judgment.
D. Comment
In his essay, Mendes correctly highlights minority issues as an important and persistent
cause of wars and oppression. One might add the forced migration of people across
and within borders that has resulted in untold suffering for tens of millions of people in
past decades and still it continues. He is also correct in looking to international human
rights law as one of the ways in which these problems might be addressed and
ameliorated. I would suggest, however, that the answer lies not only in legal remedies
and their enforcement, but also in the broad acceptance that all ethnic characteristics
should be irrelevant to government interests.1
Emon’s essay is a useful backdrop to the unacceptability of ‘tolerance’ for
differences. Tolerance carries with it a value-judgment based upon a superior
‘tolerating’ an inferior. Thus colonial powers tolerated native culture and language
and older religions sometimes tolerated minority religions. Emon shows us the
religious and gender discrimination that was associated with the recognition of the
dhimmi and the adoption of laws applying to them. We see the same discrimination
in the laws and practices in many modern states, both oppressive and democratic.
Mendes refers to the example of South Africa. There is one point of difference
that should be emphasized—in South Africa it was a black majority that was
oppressed by a white minority. With the end of Apartheid, a black majority
controlled the levers of power of the state and could immediately begin to
implement some of the promises of the new Constitution and its Bill of Rights.
It is worth having regard in this context to its Solomonic solution to the language
problem. During the Apartheid era, there were two official languages, both those of
the white minority—English and Afrikaans. There was no majority language in the
population of some 43 million people. To follow other former British colonies in
Africa and adopt English as the sole official language would have been unacceptable
to the six million Afrikaans-speaking South Africans (three million white and three
million ‘coloreds’). English was the home language of only three million South
Africans (two million white and one million Asian). To retain both white languages
as the official languages of post-Apartheid would have been demeaning of the nine
main indigenous languages. The solution was the recognition of eleven official
languages: the two ‘white languages’ and nine indigenous languages.2 The central
government and each of the nine provinces were required to adopt at least two of
these languages.3 In practice English has become the unofficial ‘official’ language
and is the language of government and the superior courts. The recognition of
1 I accept without reservation the necessity of using race or gender in order to redress previous
disadvantage caused by discrimination on grounds of race or gender, ie affirmative action programs. To

exclude such use effectively makes it impossible to introduce such programs. Indeed, section 9(2) of the
South African Constitution helpfully provides: ‘To promote the achievement of equality, legislative
and other measures designed to protect or advance persons, or categories of persons, disadvantaged by
unfair discrimination maybe taken.’
2 1996 Constitution of the Republic of South Africa, section 6.
3 1996 Constitution of the Republic of South Africa, section 6(3)(a).
368 Minority Rights
language equality and the respect shown to each of them removed what could have
been a highly divisive obstacle in charting the way to a new democracy.
A crucial issue for religious minorities is the similar acceptance (rather than
tolerance) of diversity. That acceptance can only come from an entrenched and
enforceable Bill of Rights and its respect and enforcement by all three organs of the
state: the legislature, the executive, and the judiciary. In this context it must be borne
in mind that in a democracy a majority does not require protection—whether for its
language, culture, or religion. In a democracy the majority has the means to look
after its own interests. A Bill of Rights is conceived for the protection of minorities,
which may be illustrated with one of my favorite stories about Nelson Mandela.
In too many new democracies and even in some older ones, the constitution is
seen as a document to empower the government and not as a brake on the misuse of
majority rule. Nelson Mandela had an instinctive grasp of this. The first case heard
in 1995 by the then new Constitutional Court of South Africa was on the
constitutionality of the death sentence. This was the only issue on which the
drafters of our Interim Constitution could not agree. They decided to omit any
reference to it in the new Bill of Rights and to leave it to the Constitutional Court
to decide in light of the provisions that were incorporated into the Bill of Rights.
The Court unanimously held that this extreme punishment was indeed inconsist-
ent with the right to life and the right to human dignity and that it constituted a
cruel and inhuman punishment.
On the day that the decision on the death sentence was announced, the former
Apartheid President, F W de Klerk, made a public statement to the effect that
whilst he accepted the decision of the Court, he believed that a majority of South
Africans, black and white, supported the death penalty. He suggested a referendum
on the question and that if he was correct, the Bill of Rights should be amended to
expressly sanction the death penalty. That same evening, in a televised address,
President Mandela expressed surprise at the suggestion of rule by referendum. He
said he had thought that all the major political parties had agreed to South Africa
being a constitutional democracy and would not be governed by whatever stand-
ards the majority of South Africans might wish from time to time. He viewed the
Bill of Rights as having been designed to restrain the will of the majority. However,
he said, if we were to be governed by referenda, he suggested the first one should
contain two questions. The first, he said, should relate to the death sentence and
that if the majority of South Africans, black and white wished to reintroduce it the
Constitution should be amended accordingly. The second question, he said, was to
ascertain whether the majority of South Africans, black and white, wished white
South Africans to keep the property they had acquired over the preceding 350 years
of racial oppression. If the majority of South Africans, black and white thought that
they should not, then the provisions in the Bill of Rights prohibiting the confisca-
tion of private property should be removed. It should come as no surprise that there
has not been another call for a referendum! President Mandela appreciated that the
Bill of Rights was there to protect minorities from the whims of the majority and
not simply to entrench power in the hands of the government or, for that matter,
the majority.
With regard to freedom of religion, I can do no better than to quote my former

colleague, Justice Albie Sachs who, in an opinion relating to freedom of religion,
said the following:4
South Africa is an open and democratic society with a non-sectarian state that guarantees
freedom of worship; is respectful of and accommodatory towards, rather than hostile to or
walled-off from, religion; acknowledges the multi-faith and multi-belief nature of the
country; does not favor one religious creed or doctrinal truth above another; accepts the
intensely personal nature of individual conscience and affirms the intrinsically voluntary and
non-coerced character of belief; respects the rights of non-believers; and does not impose
orthodoxies of thought or require conformity of conduct in terms of any particular world-
view. The Constitution, then, is very much about the acknowledgement by the state of
different belief systems and their accommodation within a non-hierarchical framework
of equality and non-discrimination. It follows that the state does not take sides on questions
of religion. It does not impose belief, grant privileges to or impose disadvantages on
adherents of any particular belief, require conformity in matters simply of belief, involve
itself in purely religious controversies, or marginalize people who have different beliefs.
It must be acknowledged that South Africa might not be the best illustration of a
country that has successfully resolved its religious problems. Religion was not at the
center of the colonial and post-colonial regimes that imposed 350 years of racial
oppression on the majority of South Africans. It was race and the assumed superior-
ity of being white. Religion was certainly an important ingredient in the justification
of racial oppression—the domination of Christianity, the religion of the Dutch and
later the British colonial rulers. The South African Bill of Rights is designed, as we
have already seen, to remove all religious preference. By the same token, the Bill of
Rights recognizes the cultural rights of all the people as well as indigenous law—but
only to the extent that they are consistent with the provisions of the Bill of Rights.
I might add that the Bill of Rights cannot without more achieve such acceptance.
The converse situation unfortunately is represented in the former Yugoslavia and
especially Bosnia and Herzegovina. Following upon the terms of the 1995 Dayton
Agreement, Bosnia and Herzegovina is divided into three areas defined by the
religious majorities living in them, Catholic, Russian Orthodox, and Muslim. This
definition of people by reference to their national or religious affiliations for political
purposes can only be calculated to harden rather than soften let alone eradicate the
hatreds of the past. The fact that the people of that troubled country have not
become reconciled is not difficult to understand. What is necessary is a unitary state
in which religious differences, as in South Africa, are celebrated rather than
despised. The Dayton Agreement has become a negative rather than a positive
instrument and I would support a call for a constitutional assembly to consider a
more democratic dispensation.
I fully concur with Mendes in looking to international human rights law for
necessary added protection for minorities. However, as he also recognizes, it is
essential for this protection to be entrenched at the domestic level. A Bill of Rights
4 S v Lawrence, 1997 (1) BCLR 1348 (CC) at para 148.

370 Minority Rights
that is enforceable by the courts and respected by the legislative and executive
branches of government is likely to be even more effective. This has much current
relevance with the onset of the Arab Spring and formerly autocratic oppressive
societies looking to become democracies. The acceptance of religious minorities
will not come easily for previously and still theocratic societies. The only way
religion will be removed as a force for oppression and violence is to keep it out of
the political and legal arena. Religion should be embraced as a force for good and
peace, and that will only be realized if there is recognition of the respect due to all
religions or, indeed, no religion at all.
21
Islam vs the Shari‘a: Minority Protection
within Islamic and International
Legal Traditions
Javaid Rehman
The position of minorities within the Shari‘a remains controversial and contested.1
Considerable jurisprudential and theological differences of interpretation are ad-
vanced not only by states purporting to apply the Shari‘a but also by Islamic jurists.
In order to rationalise the debate on minority rights within Islam, it is of critical
importance to take into account the historical and contextual perspectives.
A feature crucial to the understanding of the substance and practice of the Shari‘a
is embodied in the history and development of Islam. While deriving from the
Qur’an and the Sunna of the Prophet Muhammad and therefore having divine
origins, Shari‘a itself is a product of human endeavour and application of God’s
ordinances by mortal men. The development of a body of positive laws has been a
task that took up considerable time and effort, with substantial variances in its
content and application. The Muslim jurists who developed the Shari‘a during the
2nd and 3rd centuries of the Islamic calendar did so in accordance with their
personal understanding and comprehension of the Word of God and the actions
and deeds of Prophet Muhammad (the Ahadith, plural of Hadith). It is significant
to note that the Qur’anic text was codified in a single volume soon after the death of
the Prophet, whilst the recordings of the Sunna took a much longer period.
While the authenticity and authority of the recordings of the Qur’an are beyond
doubt, jurisprudential debates have resolved on the question of its legal content
within a number of provisions. Despite the fact that it is the primary source of the
Shari‘a, the Qur‘an is not a legal text. In fact, there is little in it with a strictly legal
1 See generally S S Ali, ‘The Conceptual Foundations of Human Rights: A Comparative Perspec-
tive’ (1997) 3 European Public Law 261; S S Ali and J Rehman, ‘Freedom of religion versus equality in
international human rights law: Conflicting norms or hierarchical human rights. (A case study of
Pakistan)’ (2003) 21 Nordic J Human Rights 404; M Baderin, Islam and International Law (Oxford:
Oxford University Press, 2003); J Rehman, Islamic State Practices, International Law and the Threat
from Terrorism: A Critique of the ‘Clash of Civilizations’ in the New World Order (Oxford: Hart
Publishing, 2005); J Rehman and S Breau (eds), Religion, Human Rights and International Law:
A Critical Examination of Islamic State Practices (The Hague: Martinus Nijhoff, 2007).
372 Minority Rights
content. From its over 6,000 verses, strict legal content is arguably attached to only
around 120 verses.2 Therefore, a task faced by classical jurists formulating and
advancing principles of the Shari‘a has been to find compatibility amongst the
legally authoritative verses from the Qur’an and the more fluid Ahadith. In order to
deal with this situation and develop at the same time a concrete set of laws, varying
strategies were adopted: while different weightage was afforded to competing
ordinances within the Qur’an and Sunna, new issues were dealt with through
values such as Ijma,3 Qiyas,4 and Ijtihad.5 More arguments and differences arose
over the correct interpretation of the Qur’an and hadith and its application with the
Shari‘a, and in the course of time, differing Islamic schools of thought emerged
(madhabs). Amongst the Sunni sect of Islam, there exist the Hanafi, Malaki, Shafii,
and Hanbali schools, whereas the Shias follow the fiqh (Islamic jurisprudence) of
Jafar al-Sadiq. A significant historical factor surrounding these legal and jurispru-
dential developments, was the expansion of Islam at a phenomenal pace. Within a
hundred years of the death of Prophet Muhammad in 632 ce, Muslim Arabs had
conquered and were rulers of an area stretching from the borders of India and
China to the Atlantic Ocean. This was a huge empire, which included much of
North Africa, the Near East, and Spain—‘a collection of peoples under banner
greater than any before and a domain more extensive than the Roman Empire at its
height’.6 With the expansion of Islam to new territories and as Muslim commu-
nities interacted with peoples of other faiths, the pristine values of the Shari‘a
absorbed attributes and traditions of diverse cultures and faiths: several of the laws
currently operational in Shari‘a-compliant states represent a mixture of indigenous
customary traditions and premodern perceptions of the divine instructions of
the Almighty. Unravelling the historical and contextual issues associated with
the debate surrounding Islam’s relationship with minorities is a fascinating and
challenging project—presenting however an extreme divergence of opinions.
Amongst the various juristic interpretations on this subject, several clusters can
be readily identified. There is a group of academics and jurists who seek compati-
bility between the Shari‘a principles and modern human rights (including prin-
ciples relating to the treatment of minorities).7 In an opposing camp are those
jurists for whom the Shari‘a cannot be bound by modern values on the protection
of human rights and minorities: according to them, the divine ordinances as
2 See G M Badr, ‘Islamic Law: Its Relations to Other Legal Systems’ (1978) 26 Am J Comp L 188,
at 188.
3 Meaning: Consensus of the Ummah (the community of Believers). Ijma provided essential tools
for the Muslim community to reach agreements over contentious issues. According to an established
Sunna the Prophet is reported to have said ‘My People will never agree together on an error’ cited in
C Weeramantry, Islamic Jurisprudence: An International Perspective (London: Macmillan, 1988), 39.
4 Broadly meaning ‘analogy’ or ‘deduction’. ‘Kiyas’ in Gibb and Kramers (eds), Shorter Encyclo-
paedia of Islam (1953) 267.

5 Ijtihad is term that refers to the use of independent legal reasoning in search of an opinion. Ijtihad
conveys a sense of exertion, a sense of struggle and has the same meaning as Jihad. For further
elaboration see J Rehman, Islamic State Practices, 14.
6 See R Landau, Islam and the Arabs (London: George Allen and Unwin Ltd, 1958), 46.
7 See Baderin, Islam and International Law; SS Ali, Gender and Human Rights in Islam and
International Law: Equal Before Allah, Unequal Before Man (The Hague: Kluwer Law, 2000).
Islam vs the Shari‘a: Minority Protection in Legal Traditions 373
enunciated through the Shari‘a are neither open to challenge nor do they necessarily
have to be compatible to the man-made evolutionary systems.8 Amidst these
diametrically opposed camps remains a range of jurists and analysts who seek to
find compatibility in a variety of ways, including for example, retaining an exclusive
focus on early practices of Muslim rulers in relation to ahl-al-kitab (the Peoples of
the Book) who were accorded the political status of the dhimmis. There are others,
who in their attempt to seek compatibility between the Shari‘a and human rights
norms, minimalise the role of the Shari‘a on Islamic communities or rulers, picking
liberal (though selective) examples of practices and rights exercised by marginalised
minorities and women within Islamic rule.9
This commentary is engaged with two essays in this book, Chapters 18 and 19,
which represent variants of the aforementioned typology.
In Chapter 18, Anver M Emon provides a particularly useful articulation of the
differing perceptions by which premodern treatment of dhimmis is assessed in
modern legal literature. Through its refreshing perspective, Emon engages with
the status of the dhimmis within the Islamic polity. That said, in setting out his
parameters, the essay is almost exclusively confined to analysing the status of
dhimmis. The focus of the exercise is thus potentially quite narrow in that the
concept of dhmmi, originally—and at least initially—was confined to ‘Peoples of
the Book’ resulting in the exclusion of other non-believers. The author manages
however to capture our interest.
The discussion, on the whole, accurately reflects the state of affairs as established
by ‘the two predominant myths hovering over the dhimmi rules . . . those of
harmony and persecution’.10 Notwithstanding the generally accurate portrayal,
there are nevertheless tensions in the description of both these apparent myths:
the exemplification of the myth of harmony, through the Muslim rule during the
Andalusian period is more a representation of the political concessions and com-
promises that were necessitated to ensure political survival rather than an affirmed
conscious application of liberal values on religious minorities. Other similar
examples of generous liberality could be found in the Muslim rule, notably during
the Ottoman period. The Ottomans experimented with a special mechanism for
the granting of autonomy through the millet system—a system which allowed
various religious minorities to enjoy a generous measure of autonomy, in social,
civil, and religious affairs. Vernon Van Dyke highlights this feature by noting that
‘[the millet system] was an application of the right of self-determination in advance
of Woodrow Wilson’.11 The other often less recognised yet more striking example
8 See, eg, S A A Maududi, Human Rights in Islam (Lahore: Islamic Publications, 1995).
9 See, eg, W B Hallaq, An Introduction to Islamic Law (New York: Cambridge University Press,
2009).
10 Chapter 18, Section B.
11 V V Dyke, Human Rights, Ethnicity and Discrimination (Westport, Conn and London: Green-
wood Press, 1985), 74; ‘[w]hile the [Millet] system was hardly based on any recognition of “human
rights”, its application is most compatible with the philosophy of human rights’. J Packer, ‘The
Protection of Ethnic and Linguistic Minorities in Europe’ in J Packer and K Myntti (eds), The
Protection of Ethnic and Linguistic Minorities in Europe (Turku/Åbo: Åbo Akademi, Institute for
Human Rights, Åbo Akademi University, 1993), 42.
374 Minority Rights
of the so-called myth of harmony could be found in the Moghul rule of the Indian
sub-continent.12 This is an even stronger case, because, unlike in Europe, Muslims
were not confronted with ahl-a-kitab (People of the Book) but with pagans: the
Hindus and the Buddhists with their deeply embedded traditions and religious
values. The need to placate influential sections of all religious communities were
features strongly influential in the formulation of conciliatory and accommodating
policies by Moghul Emperors Akbar, Jahangir, and Shahjahan. These conciliatory
policies were most clearly visible during the period of Emperor Akbar (1556–
1605). Akbar issued ordinances declaring marriages between Hindus and Muslims
lawful without the requirement for Hindus to renounce their faith as a prerequisite
for such a union. Many Hindus, in particular Rajputs, were employed and indeed
elevated to high offices. Having regard to the religious sensibilities of Hindus, the
slaughter of cows was prohibited. In 1564, the Emperor abolished the pilgrimage
tax formerly imposed on Hindus. Notwithstanding opposition, a year later, he also
abolished the much despised Jizya hitherto levied from non-Muslim subjects. He
followed this by enunciating the principle of Sulaakins (Universal tolerance and an
undertaking to respect the rights of all peoples, irrespective of religion or creed). In
re-enforcing and supporting the argument, Charles Alexandrowicz notes:
The ideology of the Moghuls deviated significantly from that of the Ottoman Empire, as
well as from the traditions of pre-Moghul Islamic rulers in India who had been under the
political or religious over lordship of the Caliphs (at first effective, then nominal). The reign
of the Moghul Emperors Akbar, Jehangir and Shajahan witnessed the victory of a secular
policy in inter-group relations in India, no doubt under Hindu influence and in conditions
of decline of the jihad ideology.13
The myth of persecution, according to Emon, advances the view ‘that endemic to
the Muslim mindset is a notion of the non-Muslim as not only the Other, but also
as subservient, submissive and politically disempowered’.14 The essay reflects
suspicion of those analysts (notably Bat Ye’ or) who regard as accurate the historical
accounts of oppression or overt discrimination conducted by Muslim rulers.
Notwithstanding this suspicion, a considerable portion of the chapter itself deals
with discriminatory aspects of pre-modern Shari‘a in the context inter alia of
property rights including Islamic endowment rules (waqf ) and aspects of criminal
and public law. In the context of modern practices emergent from states purporting
to apply the Shari‘a, Emon elaborates on the discriminatory practices in relation to
rules governing damages for wrongful deaths. To establish damages based on the
victim’s religion is patently discriminatory; there is no doubt that other examples of
the application of the variants of the Shari‘a principles also result in persecution and
ostracism of religious minorities. It is therefore to Emon’s considerable credit that
he acknowledges that ‘there is no denying that the dhimmi rules differentiated
12 See J Rehman, The Weaknesses in the International Protection of Minority Rights: A Study with
Particular Reference to the State Practice of Pakistan (The Hague: Martinus Nijhoff, 2000), 34–7.
13 See C H Alexandrowicz, ‘Kautilyan Principles and the Law of Nations’ (1965–66) 41 British
Year Book of International Law 301, at 313.

14 Emon, Chapter 18, Section B.
between people in ways that moderns find patently discriminatory but the fact that
minorities could be treated in such fashion is hardly unique to the Islamic
tradition’.15 In relying upon such an excuse a word of caution is mandated: the
discriminatory practices in other premodern or even in modern western liberal
democracies can neither serve as a justification nor an excuse for the prevalence of
discrimination or violation of rights of religious minorities in states which purport
to apply the Shari‘a.
In Chapter 19 Errol Mendes advances a pragmatic view of human rights and
minority rights based on human dignity.16
By articulating a jurisprudential analysis of international law, Mendes raises the
question of the efficacy and potency of the latter, particularly as far as its imple-
mentation at the domestic level is concerned. International human rights law is
therefore perceived as partaking an ‘aspirational nature’17 which could only trans-
late into an effective system through concrete implementation of treaties and other
international commitments domestically.18
Notwithstanding the sombre picture of the limitations of international law,
Mendes nevertheless acknowledges the increasingly significant role played by
non-state actors in the development of a regime of international minority protec-
tion.19 In his account of the position of minority rights in international law,
Mendes takes a holistic, historical approach, accurately recounting that ‘the catalyst
for the search for regional or universal synthesis on minority rights has been driven
in part by the fact that some of the most savage conflicts between and within
nations, in the last century continuing into the first decade of this century, has been
caused by the failure to protect the rights of minorities’.20
A. Minority rights in modern international law
Chapter 19 provides a consideration of the limited attempts by the League of

Nations to protect minorities of Central and Eastern Europe in the aftermath of
the First World War. This system eventually was bound to collapse as ‘it was not
executed in good faith; it was never given a fair trial, since none of the interested
parties—neither minority states, nor minorities nor kin-states nor neutral powers—
entered into the great experiment with spirit and attitude which were essential to its
success’.21 At the end of the Second World War, chastened by the experiences of
the League of Nations, the newly formed United Nations refused to engage with
minorities: instead the emphasis was upon individual human rights. Neither the
United Nations Charter (1945) nor the Universal Declaration of Human Rights
(1948) makes any specific references to minority rights, although a number of
15 Emon, Chapter 18, Section G. 16 Mendes, Chapter 19, Section A.

17 Mendes, Chapter 19, Section A. 18 Mendes, Chapter 19, Section A.
19 Mendes, Chapter 19, Section A. 20 Mendes, Chapter 19, Section B.
21 I Claude Jr, National Minorities: An International Problem (Cambridge, Mass: Harvard Univer-
sity Press, 1959), 48.

376 Minority Rights
rights (eg Article 18) could be parenthetically related to protecting minorities. In its
survey of the post-Second World War efforts on human rights, Mendes neverthe-
less makes a number of comments which are surprising and without elaboration
and analysis are liable to be misconstrued. The first relates to the indeed astonishing
observation that ‘Canada, founded by national minorities and aboriginal peoples
opposed the UDHR in general’. In his capacity as the first Director of the United
Nations Division of Human Rights, the Canadian, John Humphrey, is accredited
as being the principal investigator and drafter of the Universal Declaration of
Human Rights (UDHR). Canada also voted emphatically in favour of the
UDHR within the General Assembly on 10 December 1948. However, this
apparent enthusiasm conceals the serious scepticism and bitter internal divisions
within the Canadian government and foreign office in relation to human rights
issues and in particular many of the substantive provisions contained within the
Declaration. These political divisions and dissatisfaction with the Declaration
became obvious, resulting in Canada’s abstention from voting on the adoption of
the UDHR in the third Committee of the United Nations General Assembly.22 In
adopting such a position, Canada allied itself with the Soviet communist Block, and
in direct opposition to western liberal democracies. Such a stance was hugely
embarrassing and in order to avoid further criticisms and condemnation from its
western allies, on 10 December 1948, Canada joined ranks with 47 other states to
vote in favour of the Declaration in the plenary General Assembly. The UDHR was
adopted on 10 December 1948 with 48 votes in favour, none against, and eight
abstentions—the abstaining states were Byelorussia, Czechoslovakia, Poland,
Ukraine, USSR, Yugoslavia, Saudi Arabia, and South Africa.23
The second comment which merits further explanation relates to the European
Convention on Human Rights (1950): while Mendes correctly highlights the
limitations and ‘parasitic’ character of Article 14 within the Convention, it needs
to be recognised that its scope has been expanded through the adoption of Protocol
12, which extends the rights provided by the text of the Convention to ‘any right
set forth by law’.24 Further advancement in the rights of minorities has been
undertaken through the European Framework Convention for the Protection of
National Minorities (1994)25 and the European Charter for Regional or Minority
Languages (1992).26
Although Article 27 of the International Covenant on Civil and Political Rights
(1966) continues to remain the main treaty provision to protect minorities,
Mendes is rightly critical of the limitations inherent in this Article. The Article is
22 See W A Schabas, ‘Canada and the Adoption of the Universal Declaration of Human Rights’
(1998) 43 McGill LJ 403 at 439.

23 J Rehman, International Human Rights Law (London: Longman, 2009), 76.
24 Article 1, Protocol 12 provides as follows: ‘The enjoyment of any right set forth by law shall be
secured without discrimination on any ground such as sex, race, colour, language, religion, political or
other opinion, national or social origin, association with a national minority, property, birth or other
status’.
25 For the text of the Convention see (1995) 16 Human Rights LJ 98.
26 ETS No 148.
drafted in an awkward manner, with a basic presumption that a majority of states

are comprised of homogenous groups and the issue of minorities is confined to only
a few of them. The wording of the provision, contrary to that of the other Articles,
is definitely negative in tone, and there is a clear difference in approach compared
with other provisions where an express prohibition is involved. The discussions that
took place in the then-Commission of Human Rights reveal that the generally held
view was that the sole obligation placed on the states was not to deprive or deny
members of the minority groups of the status they were already enjoying. These
criticisms are fully justified, as is the concern expressed with the definition of
minorities expounded by the Special Rapporteur Francesco Capotorti. Capotorti’s
definition can be criticised inter alia for its identification of minorities as numeric-
ally inferior and confined to nationals of the states. However, subsequent attempts
such as the one provided by Jules Deschênes and Asbjrn Eide are equally fraught
with their own limitations.27 The fact of the matter is, as Mendes ably demon-
strates, minority groups exist in such myriad forms that it is certainly impossible to
have a single—or uniform—definition to describe them.
Much like the difficulties in conceptualising minority rights, there are also the
complexities in proposing appropriate models for constitutional accommodation of
minority claims. Mendes is suitably critical of the former Soviet Bloc, which
although ostensibly operating federal structures was in reality representative of an
oppressive and authoritarian scheme. As the cases of Canada, Lebanon, and Cyprus
establish, federal structures do not always provide an absolute guarantee for a
proper settlement of minority grievances. That said, no single model of governance
can be deployed to resolve minority issues; the latter have to be addressed on a case-
by-case basis in order to ensure that the broad framework of minority rights is
applied effectively within the domestic constitutional mechanisms.
B. Islam, rule of law, and the future of minority rights
The rule of law represents core values of supremacy of law over arbitrary state
powers, equality and non-discrimination of all before the law, respect and recogni-
tion for human dignity, and protection for all fundamental human rights: this
broad interpretation of the rule of law reflects values that are inherent and
embedded in all religious traditions and legal codes of civilised nations and
societies. The rule of law doctrine also encapsulates the emerging right to demo-
cratic governance, the right to self-determination, and the right to equality of
treatment. It is conceded that defects and shortcoming do emerge from systems
based on the rule of law and democratic governance; unruly and uncaring democ-
racies could potentially pose greater threats to the existence of minorities than
enlightened theocracies as were witnessed in the Muslim rule of medieval and
modern times. There is, therefore, no guarantee that a democratic regime would
27 J Rehman, The Weaknesses in the International Protection of Minority Rights, 18–19.

378 Minority Rights
always be the ultimate panacea for protection of individual or minority rights, but
as Paul Sieghart succinctly puts it ‘[o]n the whole . . . democracy tends to march
with respect for human rights and respect for human rights tends to march with
freedom under law’.28 The great virtue inherent in the respect for the rule of law is
the recognition of fundamental human rights for all without discrimination on the
basis of religion, race, or gender. Democracy also ensures freedom of speech and
assembly with an opportunity of debate in a tolerant and instructive manner. The
establishment of democratic and representative structures may well not resolve
every disagreement or conflict but it might just provide such an opportunity.
Islam’s interaction with democracy and the rule of law remains contested: in the
Refah Partisi case, the European Court of Human Rights considered Shari‘a to be
incompatible with human rights law.29 One may criticise the European Court for
its frontal assault and insensitivity towards the Shari‘a principles, although there is
no denying the fact that many of the archaic laws prevalent in Muslim-majority
states consistently undermine the values of minority rights and the rule of law.
Chapters 18 and 19 have made references to laws that discriminate against religious
minorities in states purporting to apply the Shari‘a. Emon notes the discrimination
in Saudi Arabia in relation to rules governing compensation for wrongful death,
whereas Mendes is critical of the constitutional position adopted by Syria and
Bangladesh for a lack of recognition of non-Muslim communities. To this, one
could add the serious violation of minority rights in Iran, Sudan, and Pakistan. It is
important to recognise and reiterate that the call of reform of discriminatory laws is
not a criticism of the great religion of Islam itself. Laws are constructed by fallible
human beings; they are a construct of a human mind set and need consistent review
and revision based on changing socio-economic needs and perceptions of morality.
In order to make progress, Muslim societies (in common with other societies) must
ensure consistent alignment of constitutional norms with evolving norms on
human rights and minority rights.
28 P Sieghart, The Lawful Rights of Mankind (Oxford: Oxford University Press, 1985), 156.
29 Case of Refah Partisi (the Welfare Party) and Others v Turkey, Judgment of 13 February 2003 App
Nos 41340/98, 41342/98, 41343/98 and 41344/98, para 123.
Epilogue
Common Ground or Clearing Ground?
Robin W Lovin
A. Urgency and understanding
The search for common ground has an urgency in the law. Advocates for the
oppressed and dispossessed know that until they can find a shared vocabulary of
justice in which to make their appeal, they are unlikely to gain any ground in the
courts or among the public, and the abuses that they are trying to combat will
continue. Mediators between civic factions or competing religious parties spend
long hours examining history, law, and their own experience to find shared terms of
peace. This urgency is clearly evident in the work of the scholars who have
contributed to this volume. They understand, often from first-hand experience,
the need to reconcile the universal aspirations of human rights law with the
integrity and identity that Islamic law and practice provide, often at a very local
level. They are aware that peace between nations, and sometimes within them, may
depend on identifying ‘a greater consensus as to the core of the rights in question’.1
When the authors met to discuss the essays which have been collected in this
volume, however, they began to see that the search for common ground had
become perhaps a little too urgent. The importance of justice and peace was
obvious enough, but it was not clear that anyone understands international
human rights law or Islamic law well enough to do more than build superficial
connections between them. Values and practices might converge, but they might
just as easily split apart again, and in any case, the cultures involved are so different
that any claims about common understanding would have to overcome a good deal
of skepticism about whether genuine communication is even possible. With due
respect for the initial framework of ‘searching for common ground’ at the 2008
Salzburg Global Seminar (Seminar 457), the scholars around the table began to talk
about ‘clearing ground’, rather than finding ‘common ground’. Some basic ques-
tions about the nature and purpose of law, the relations between principle and
practice, and the meanings of freedom and equality had to be addressed before there
1 Urfan Khaliq, Chapter 10, Section D.
380 Epilogue
could be significant identification of common ground. Of course, these were old
questions both in Islamic law and international human rights law, but familiar
theoretical problems seemed now to require reconsideration within each framework
of law, precisely in light of the problems raised by its relationship to the other.
As an observer at the authors’ workshop at the Center of Theological Inquiry,
I took a particular interest in this tension between moral urgency and theoretical
understanding, because it had arisen in a similar way in discussions of Christian
theology and international law. Like those concerned about the relations between
Islamic law and international law, theologians and lawyers were initially drawn to
the topic by an urgent question. George Hunsinger convened a conference on
religious responses to torture at Princeton Theological Seminary and shaped a
significant interreligious response to the human rights abuses that were coming to
light as the ‘war on terror’ expanded.2 Some of the participants in those discussions,
however, recognized a need for further exploration of the relationship between
Christian moral traditions and the principles of international law. An interreligious
approach to the legal issues surrounding imprisonment and interrogation was clearly
urgent, but it raised the question whether the Christian scholars understood their
own tradition well enough to think through its application to these questions and
the further implications for religious understandings of human rights. Some of them
undertook a separate inquiry into theology and international law under the auspices
of the Center of Theological Inquiry in Princeton, New Jersey.3
B. Cleared ground and common ground
Thinking about the relationship between Christian theology and international law
clearly poses different problems from thinking about the relationship between
Islamic law and international human rights law. Christianity has no normative
system of religious law comparable to Shari‘a in Islam, and the contemporary
framework of international human rights law owes a good deal to Christian
traditions of natural law and, indeed, to the missionary impulses of American
Protestantism.4 The scholars in the CTI project were uniformly concerned to
strengthen the normative salience of international law in American law and
2 See George Hunsinger (ed), Torture is a Moral Issue: Christians, Jews, Muslims, and People of
Conscience Speak Out (Grand Rapids, MI: Eerdmans, 2008).

3 This group was convened by William Storrar, Director of CTI, who also provided arrangements
for the authors’ workshop for this project and was a participant in the 2010 Salzburg Global Seminar
on Islamic and International Human Rights Law (seminar 475). For further reflections on the
discussions of Christian theology and international law, see the Test Lectures delivered at Princeton
University by that group’s co-chair, Jeremy Waldron, in March 2011 (<http://papers.ssrn.com/sol3/
papers.cfm?abstract_id=1823702> accessed 25 May 2012).
4 See Hilaire McCoubrey, ‘Natural Law, Religion and the Development of International Law’
in M W Janis and C Evans (eds), Religion and International Law (Leiden: Martinus Nijhoff, 2004),
177–89; John S Nurser, For All Peoples and Nations: The Ecumenical Church and Human Rights
(Washington, DC: Georgetown University Press, 2005), 11–27.
Common Ground or Clearing Ground? 381
practice, so that the tensions between international law and local religious practice
that often vex discussions of Islamic law would not arise in quite the same way.
Nevertheless, the connections between the two discussions were striking. Under-
standing the relationship of a global religious tradition with centuries of history to
the relatively more determinate contours of a modern legal system provides a focus
that is usually missing in attempts at ‘interreligious dialogue’.5 Both Christian
theology and Islamic law are constrained to address some of the same issues
about the nature of political authority and the relationship between believers and
political communities. The interweaving between theological commitment and
political expectation is complex, however. The assumption that people from
different religious traditions will be able find common ground by isolating within
their ‘comprehensive beliefs’ a set of propositions that belong to an ‘overlapping
consensus’ shared by other participants who have different reasons to consent to the
same principles seems not to work as well as supposed in liberal political theory.6 It
is not easy to separate the legal and political principles that belong to the overlap-
ping consensus from the religious reasons why they are held. International law and
human rights are important to both Islamic and Christian thought because both
faiths are fundamentally concerned with how their adherents understand political
order and political obligations, not because law occasionally impinges on religious
practice.
We cannot expect to get to common ground by simply adopting one of the
political and cultural systems that compete for attention in the places where Islamic
law and international human rights law are politically contested. Various inventor-
ies of individual human rights, various versions of political Islam, various versions
of the secular national identity that the French call laïcité, and various versions of
US and Canadian multiculturalism have all been offered as candidates for the
overlapping consensus. Each model is different from the others, and each is
disputed internally.
The essays and commentaries in this volume take the inquiry in quite a different
direction. By clearing ground, they create a space that Islamic law and international
law can both occupy, though neither one of them holds the territory entirely on its
own terms. The common ground is not a space where all questions have been
settled. The common ground is where both systems of law continue to pose
questions to one another, but each understands the other better and understands
itself differently because of the ground clearing that has taken place.
This book thus may suggest a way of proceeding in future discussions about law
and religion or, indeed, about any interaction between different normative systems
that have wide reaches, long histories, and deep cultural roots. Such interactions are
almost inevitably conflicted, and given the globalization of commerce and culture,
they will certainly be with us in new forms and new combinations in the future.
5 On this point, see Robin W Lovin, ‘Religion and Political Pluralism’ (2007) 27 Mississippi College
L Rev 91–104.
6 On the ‘overlapping consensus’, see John Rawls, Political Liberalism (New York: Columbia
University Press, 1993), 133–72.

382 Epilogue
The kind of ground clearing undertaken here may show the best way under those
circumstances to create common ground on which an ongoing discussion can be
sustained.
C. Law in context
The authors of the essays and commentaries collected in this volume begin to clear
ground by setting a context. One way to do this is to see institutions and practices
in historical perspective. Tracing things back to their origins can make the require-
ments of law seem more fluid and contingent. Anver Emon and Abdullah Saeed do
this for aspects of Shari‘a law in their essays on the modern state, apostasy, and
criminal law. Located in historical context, severe punishments for apostasy no
longer seem a unique problem for Islamic law, nor need these premodern practices
be interpreted as a direct challenge to modern human rights to religious freedom.
The definition of apostasy proceeds historically through specific examples that defy
formulation as general principles appropriate to modern law. Both the crime and its
punishment seem more susceptible to interpretation when viewed in historical
detail, and as Saeed observes, ‘much depends on the school of thought to which a
Muslim belongs’.7 Anver Emon argues that the continuities in the content of
Islamic law may obscure the fact that it plays a very different role in the modern
Islamic state from its role in premodern Islamic governance. A modern state’s
commitment to Islamic law may sometimes have the effect of legislation, but it may
also be symbolic, hortatory, or advisory. Emon’s aim, as he says, is to shift the
debate about Islamic law and international human rights law ‘from the content
of the law to the dynamics of legal ordering’.8 The rule of law as a process becomes
the focus of attention, rather than focusing on specific provisions of the law, and
the process of governance in the premodern world is obviously different from the
process in the modern state. It may also be different in modern Muslim-majority
states from other modern states where legislative authority is more clearly distinct
both from religious authority and from moral aspiration.
Emon’s reminder of the legal pluralism that existed within premodern Islam9
thus alerts us to local variations that are also important even in contemporary
understandings of Islamic law. International human rights law necessarily aims at
universal application. It will treat differences, where they must be recognized, as
exceptions. Local variations in Islamic practice, by contrast, are seen as law-
governed by those who live with them. The authors of these essays also take
these local variations seriously as the starting point for their analysis. Their objective
is to understand how law works in a specific place, without assuming that that there
is a uniform principle that explains all practices. Urfan Khaliq examines different
7 Abdullah Saeed, Chapter 11, Section A.

8 Anver M Emon, Chapter 2, Introduction.
9 Emon, Chapter 2, Section A.1.b.
ideas of religious freedom in this way, and Ratna Kapur takes the same approach in
her study of different understandings of gender equality.
Before we adopt something as a universal solution, then, we will want to clear the
ground by seeing how it works in some specific place, and before we abandon any
practice because it contradicts universal principles, we will want to know why it
seemed to make sense to somebody, somewhere. Situating a practice in a local
context can make it more understandable, so that it becomes less alien, at the same
time that it becomes more authentically ‘other’. Envisioning law concretized in
practices in that way may help us see that variations need not be treated as
exceptions to some more universal norm. In this way, historical and local context-
ualizing provides a way of seeing connections while preserving real differences.
To understand why it makes sense to approach competing religious and legal
systems as these scholars do, we need to remember that this contextualized
approach has its own context. The convergence on this way of clearing the ground
says something about the times in which we are living, about the origins of
international human rights law, and about subsequent events that have shaped
our contemporary expectations. It may be that we are more interested in the local
and the particular because we are less confident of the universal.
The adoption of international human rights standards after the Second World
War began with a sense of urgency about ending the abuses of the past and an
enthusiasm for remaking the world in ways that would incorporate the recognition
of human dignity into all systems of law.10 That urgency gave us the Universal
Declaration of Human Rights, but subsequent difficulties in translating the aspir-
ations of the Declaration into conventions that would be acceptable to the import-
ant state actors and, even more, difficulties in establishing judicial mechanisms to
address violations, have scaled back those early expectations dramatically. Likewise,
the emergence of political Islam as an alternative to authoritarian regimes depend-
ent on Western military alliances has in many places given way to disappointment
with the ineffectiveness and radicalization of the movement.11 Even after the ‘Arab
Spring’, assessments of Islamic political parties are usually hedged in terms of
particular circumstances that account for their success in particular places. In the
West, the exaggerated hopes for the global future of liberal democracy that followed
the end of the Cold War have been tempered by the difficulties of actual political
transitions and questions about the projection of US power into the Islamic
world.12 Models of democracy, where they can be identified, must be explained
in terms of the local circumstances that make them possible, with cautious projec-
tions, if any, about their future prospects.
The need for clearing ground thus arises because none of the political develop-
ments of the last seven decades has quite lived up to the expectations that have been
10 Mary Ann Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of
Human Rights (New York: Random House, 2002).

11 Mohammed Ayoob, The Many Faces of Political Islam: Religion and Politics in the Muslim World
(Ann Arbor: University of Michigan Press, 2008).

12 Andrew J Bacevich, The Limits of Power: The End of American Exceptionalism (New York:
Metropolitan Books, 2008).

384 Epilogue
loaded onto them. Ideas and movements that were supposed to have transformed
the world have succeeded or failed in very local ways.
It has become difficult to make sense of these developments relying only on the
usual professional skills of the legal scholar, drawing principles out of texts and
constructing a system of positive law that can be applied to any circumstances.
Ground clearing today is more a matter of mapping what is actually on the ground
than clearing it away, tracing patterns of interaction and mutual transformation that
have created the institutions, practices, and expectations that make up the structures
of ordinary life. Legal scholarship must incorporate the work of the historian and
approximate the skills of the anthropologist, both to know what the normative order
in any given place actually is and to understand why it works.
D. An emerging method
Out of all these inquiries, then, a method begins to emerge that goes beyond the
information gathered and the events reviewed. We may turn to the words of Nehal
Bhuta to sum it up:
. . . a fruitful approach to the question of common ground is to start not from comparative
axiological lists of values and norms, but to engage in comparative histories of the present
configurations of norms and values. Rather than take one set of principles as the universal
norms (purportedly transcending culture and political power) to which other values must be
assimilated or acculturated, we relativize both sets of values by trying to grasp their meaning
and social significance within specific historical formations of politics, place and power.13
The key to the success of these essays and commentaries, individually and as a
collection, is this commitment to ‘relativize both sets of values’ without eliminating
the tension between them. Both sets of values retain ‘meaning and social signifi-
cance’, even though this must be grasped within ‘specific historical formations’.
These authors have implicitly suggested three methodological guidelines, which we
may hope will be developed by future investigators.
First, competing practices and values must be seen in relation to a particular
setting, and this contextual analysis must be applied even-handedly to all of the
normative systems under consideration. Relativization is popular when it is applied
to other people’s values. It meets with less enthusiasm when the values relativized
are one’s own. It is easy to embed Islamic family law in patriarchal culture, while
allowing human rights law to envision a role for women that floats free of cultural
differences; or to treat religious freedom as a secular culture’s way of relativizing
religious commitment, while regarding Islamic law as a way of protecting a
universal religious identity from erosion by the prevailing cultural currents. What
makes the essays in this volume persuasive is that their authors, regardless of
personal commitments, see both international human rights law and Islamic law
in a social and historical context. Islamic law is not interpreted apart from the
13 Nehal Bhuta, Chapter 7, Section B.

details of its long historical development, and the universal aspirations of inter-
national human rights law are tested against the impact of its provisions on
particular, local settings.
Second, while the differences between Islamic law and international law must
always be seen in a specific place and time, the measure of specificity varies with the
inquiry. When Anver Emon thinks about the rule of law, the context in which he
locates it may be as large as the modern West or over a time period lasting as long as
medieval Islam. For Musawah, the women’s equality movement discussed by Ziba
Mir-Hosseini and Lynn Welchman, the critical events take place in specific
countries and cities, and three years may be a long time. Each scale is important,
and the fact that both are included makes it possible for both activists and scholars
to participate in the discussions. Indeed, a full understanding of the issues requires
consciously moving between different contextual frames of reference, allowing
contemporary cases to find a place in the discussion of larger historical and
theoretical questions and concretizing theory by application to cases.
Third, while values are relativized in these inquiries, they should retain ‘meaning
and social significance’ when seen in context. The goal is not a relativism in which
laws and values fade into the background of material and social conditions. The
point is rather to see clearly how questions about material and social conditions can
be raised from within those conditions. It is true that systems of law reflect the
circumstances of their creation and the structures of power that maintain them, but
however hegemonic the system becomes, it was devised by someone as a means for
framing and settling disputes. Systems of law exist because people disagree about
what ought to be done. It is in the nature of a system of law that subversive
questions can be raised within it, even if they are not exactly the same questions that
we might want to ask when looking at the system from outside.
E. The way forward
We arrive, then, at something like common ground through the process of clearing
ground. The agreements we reach no doubt include some shared political and legal
principles, though hardly enough in themselves to constitute that ‘overlapping con-
sensus’ on which a unitary system of law might be built. The common ground
between Islamic law and international human rights law is a space in which systems
of law can continue to put questions to society and to other systems of law. It is not yet
a space where all those questions can be answered. It is not clear that it ever will be.
We also arrive at some shared normative principles for continuing the discussion.
These are not themselves rules of law. They are emerging guidelines or critical
standards by which to evaluate the local, contextual efforts at ground-clearing. They
do not prescribe specific ways to organize the life of a society, but they help us to
decide whether our efforts to arrive at those prescriptions have been done well.
These critical standards would include respect for law itself. Whether expressed in
terms of the modern idea of the rule of law or in terms of the classical Islamic idea
that law is a path that both leads to life and is life, the respect for law is a shared
386 Epilogue
conviction that law is more than an instrument for the exercise of power or some
other political purpose.
Another shared critical standard is justice. This is not justice defined by some
particular theory, but justice in the more simple and more ancient sense of equity.14
Solutions must not only be legally correct. They should be recognizably fair and
seem reasonable in the situations where they are applied.
The essays in this volume also recognize that conflicts between international
human rights law and Islamic law do not arise entirely from incommensurable
values. Often, they reflect tensions inherent in social life: freedom versus order,
individual identity versus community solidarity, or protection of privacy versus
freedom of expression. Competing legal and religious systems may frame the terms
in which these controversies are argued differently, but they can hardly be said to
cause them, nor can the values of a highly developed and durable tradition be
associated exclusively with one side or the other in these oppositions. The oppos-
itions arise because in their lived experiences, most people want both values, and
when their societies are functioning well, they do not experience this as a contra-
diction. Our critical standards for continuing the discussion between competing
legal systems should thus include preservation of the tensions inherent in social life.
Solutions which abolish one or the other pole in these oppositions may seem like
good choices in times of serious conflict, but the end result is a loss of human
possibilities for society as a whole.
This list of criteria is not complete, and its terms are suggestive, rather than well-
defined. I offer it by way of conclusion to this volume as an indication how the
discussion begun in these pages might develop constructively in the future.
To put the suggestion in another way, we might say that we are trying to identify
the values that would enable a thoughtful mullah or shaykh to argue the case for a
version of Islamic family law before an international human rights court—provided
that the human rights court held a set of values that would enable it to listen. I do
not see this as a likely development in the interaction between Islamic law and
international human rights law, nor do I suggest it as a political goal. I have no idea
how we would certify someone for that sort of legal practice. I offer it rather as a sort
of ‘thought experiment’ that might help us to specify further the values we want to
cultivate to live together on the ground that we have cleared.
Alongside the particular models that seem to work and that we want to com-
mend in context, we do have some emerging sense of what makes them good
models. We know enough to recognize them as lawful, fair, and realistic, even if we
are not yet sure that there is any substantive feature that they all have in common.
We can begin to say what it is we are seeking, even when we see that we might have
to do very different things to get the same results in a different context. Developing
these criteria that identify common ground and developing different models for
different places comprise the double task that still lies ahead of us.
14 Cf Aristotle, Nicomachean Ethics, v.10, 1137b.

Index
‘Abbasid period 242 American Convention on Human

‘Abbasid revolution 240 Rights 29, 199
‘Abd al-Malik b. Marwan 240 American Declaration of the Rights and Duties
‘Abd Allah b. Sa‘d b. Abi al-Sarh 237 of Man 199
‘Abduh, Muhammad 244 Amnesty International 28n
aboriginal peoples 12, 200, 321, 349, 350, amputation 57, 58
351, 353, 376 Andalusia 325
Abou El Fadl, Khaled 72, 300 anti-terrorism legislation 28
Abrahamic traditions 227 ‘anwiyya 328
Abrams, Elliot 129 apostasy 146–8, 175, 227–9, 246
abrogated Qur’anic verses 105–6 consequences
Abu al-‘Abbas al-Saffah 240 inheritance 230–1
Abu Bakr 238 marriage 230
Abu Hanifa 110, 336 property ownership 229–30
Abu Muslim al-Khurasani 240 death penalty 227, 231, 238, 243–4
Abu-Odeh, Lama 68 pre-modern Muslim contexts 239–41
Abu Yusuf 229, 336 Qur’an silent on 231–4
Abu Zayd, Nasr Hamid 230 determining perpetrators 229
accountability 33, 119 equated with treason 241–2
adultery 15, 94 hadith 234–8
Afghanistan 2, 38, 40, 43, 44, 304 prescribed versus discretionary
constitutional law 145 punishment 238–9
human rights record 94 ‘aqd al-dhimma 323, 328, 329, 364
limits to free speech 176 ‘aqd al-nikah 293
Mujahidin 112 ‘aqil 229
African Charter on Human and People’s Arab Charter on Human Rights 47, 48,
Rights 201, 202 102, 193
African Court of Justice and Human Rights 201 Arab Commission on Human Rights 47–8
African Court on Human and People’s Arab Spring 89, 119, 144, 165, 167, 302,
Rights 23 370, 383
African Union 201–2, 222 Argentina 44
Agamben, Giorgio 18n, 19, 33, 34 Ashtiani, Sakinah Mohammadi 15, 94
aghrama thamnahu 333 Asian values 99–100
ahl-al-kitab 373, 374 asrar 108
Ahmadi faith 181, 321 asylum seekers 28
al-ahwal al-shakhsiyya 115 atheism 196, 204
‘A’isha bt. Abi Bakr 149 Austria 11
Akasoy, Anna 325 al-Awza‘i, Abd al-Rahman 110
alcohol ayat al-akham 105
consumption of 330–2, 333–4 al-‘Ayni 336–7
theft of 330, 332–3
Algeria Badawi, Jamal 296
gender equality 312, 313, 314 Baderin, Mashood 95, 96, 100
minority rights 362 Baghdad 78, 79
participation in international human rights baghy (and bughat) 146, 151, 152
mechanisms 38, 39, 40, 192, 304 see also rebellion
ICCPR and freedom of religion 245 Baha’i faith 181, 321
waqf structure and colonial government 64–5 Bahrain
‘Ali 149–51, 152, 153, 154, 161–2 gender equality 313, 317
‘Ali b. Abi Talib 328–9 human rights record 101–2
Alp Arslan 78 participation in international human rights
‘amal 108 mechanisms 38, 40, 41, 43, 192, 193,
Amer, Kareem 176 304, 305
388 Index
al-Baji 238–9 Cavanaugh, Kathleen 80, 82, 84, 85, 86, 92,
Bakhit, Shaykh Muhammad 109 96, 98, 105, 112
Bangladesh 192, 306 Center of Theological Inquiry, Princeton
religious minorities 378 NJ vii, 9, 12, 380
Baroody, Jamil 188, 189n Chang, P C 257
batila 335 charitable endowments 76, 77–8
Battle of Siffin 150 made by dhimmis 333–8
Battle of the Camel 149, 153 Charter-based mechanisms 21, 22
bayan 106 Muslim state participation 42–7
Beirut Declaration on the Regional Protection Charter of the United Nations 22, 42, 47, 92,
of Human Rights 47, 48, 49 349, 365, 375
Belgium 221 children’s rights 48
Benedict XVI (Pope) 244 Convention on the Rights of the Child 29n,
Berkey, Jonathan 79 35, 38, 39, 40
Bharatiya Janata Party 280 additional protocols 37
Bhatti, Shahbaz 176 forced marriage 94, 99
Bhinder, Karnel Singh 207 Chile 128
Bhuta, Nehal 384 China 349, 357, 366
Bibi, Aasiya Noreen 144, 164, 167, 175–6 Christianity 12, 102, 172
Biden, Joseph 307 apostasy 227, 234, 239
blasphemy 121, 167, 175 Coptic Christians 321
acts 162–3 dhimmi rules see dhimmis
against Prophet Muhammad 11, 144, 156, Jehovah’s Witnesses 211, 341–2
158, 160, 161, 162, 167, 175 religious freedom 184
as political threat 158–60 religious symbols 141–2, 221, 261
evidentiary standards 163–4 theology and legal traditions 380, 381
US First Amendment rights 172 civil strife 152–3
words 160–2 clash of civilizations 9
Bosnia 360, 369 Claude, Inis 23
Boyle, Kevin 188 clemency 150, 151
Brazil 200 Clinton, William J (Bill) 306
Breivik, Anders 118, 321 Cold War 112, 127, 129, 130, 350, 356, 383
Brockopp, Jonathan 72 colonialism 2, 6, 25, 63–5, 67n, 108–9
Brown, Wendy 124 Commission on Human Rights (UNCHR) 42,
al-Bukhari, Muhammad b. Isma‘il 234, 237 43, 128, 195, 377
bulugh 229 Common Law 82
burqa 221, 285, 287 Comoros 45
Bush, George H W 306 compensation 57–8
Butterfield, Herbert 125 wrongful death damages 339, 365, 374, 378
Connolly, William 124
Cairo Declaration on Human Rights in Constantine (Emperor) 184
Islam 47, 48, 95, 113–14, 193 constitutional law 116
caliphate 106–7, 108, 151, 239 contextualist approach 17, 24
Cambodia 88 Convention against Discrimination in
Canada Education 353, 358
First Nations 321, 353 Convention Against Torture and Other Cruel,
freedom of speech versus defamation of Inhuman or Degrading Treatment or
religion 177 Punishment (CAT) 29n, 35–6, 40,
Islamic family arbitration 263 41, 96
opposition to the Universal Declaration on Optional Protocol 37
Human Rights 350, 376 Convention on the Elimination of all Forms of
Quebec 354 Discrimination Against Women
religious freedom 192, 200 (CEDAW) 35, 96, 113, 291, 310, 319
limits to 181, 207, 285 compatibility with Shari‘a 300
Canadian Charter of Rights and Freedoms 118 core obligations 316
capitulation agreements 63, 64 cultural relativism 302
Capotorti, Francesco 354–5, 358, 377 model of equality 271–2, 284, 310
Carter, Jimmy 128, 129, 306 Optional Protocol 36
Index 389
reservations by Muslim states 38, 39, 40, Andalusia 325
41–2, 49, 86, 114, 292, 304–5 charitable endowments by 333–8
states parties 305 contract of protection 323, 328–30
Convention on the Elimination of all Forms of modern equivalents 343
Racial Discrimination (CERD) 35, 37, myths 324–5, 326, 373
38, 40, 96, 174, 175, 353 payment of jizya 243, 323, 324, 326, 328–9,
Convention on the Prevention and Punishment 337–8
of the Crime of Genocide 353 post-colonial rules 338–41
Convention on the Rights of Persons with property rights 330
Disabilities (CRPD) 36, 38, 39 consumption of alcohol or pork 330–2,
Convention on the Rights of the Child 333–4
(CRC) 29n, 35, 38, 39, 40, 96 theft of alcohol or pork 330, 332–3
additional protocols 37 recognition of diversity 327, 328
core values 69–70, 116–17, 118 rules and limits of tolerance 324–7
diyana min al-diyanat 69 Saudi Arabia 339–41, 365
corporal punishment 57, 58 wrongful death damages 339, 365, 374
Council of Europe 197, 222 disbelief 70
Covenant on the Rights of the Child in Islam 48 see also apostasy
criminal law 6, 107, 116, 146 discretionary punishment 71, 107, 108, 238–9
cultural essentialism 277–9 dissent
cultural relativism 3, 35, 95, 302, 384 political
versus universalism 25–7, 97–8, 99, 100, accommodation of 148–53, 167
290, 292 legitimacy requirements for 153–5
custom 108 theological 160
diversity 344
Dahlab v Switzerland 136–40, 141–2, 214–16, divorce 59–60, 75, 294, 312, 314, 315
219, 221, 288 diyya 339
Danish cartoon controversy (2006) 11, 121, Djibouti 43, 45
144, 164 Doumato, Eleanor 340–1
dar al-Islam 240 Dunn, John 132
dar al-kufr 240 Dutch penal code 173–4
Dayton Agreement 369 Dworkin, Ronald 52
De Klerk, F W 368
death penalty 37, 175 Eckel, Jan 127
for apostasy 227, 231, 238, 243–4 Economic and Social Council (ECOSOC) 43, 310
pre-modern Muslim contexts 239–41 Edict of Milan 184
Qur’an silent on 231–4 educational systems 360
Declaration on Race and Racial Prejudice 353 effective interpretation 24
Declaration on the Elimination of All Forms of Egypt 6, 109
Intolerance and Discrimination Based adoption of the Napoleonic Code 63, 66
on Religion and Belief 186, 187, 194–6, apostasy 230
203, 206, 213, 225, 353 Arab Spring 144, 145, 302
Declaration the Rights of Persons Belonging to Civil Code (1949) 66
National or Ethnic Religious and Constitution 116, 117
Linguistic Minorities 353–4 Coptic Christians 321
Declaration on Violence Against Women 273 gender equality 312
defamation 155, 156–8 limits to free speech 176
of religion 176–80 limits to religious freedom 191, 192
democracy 110, 378, 383 Mixed Courts 63, 64, 66
freedom of speech 121 niqab worn in state schools 117
see also freedom of speech participation in international human rights
neo-conservatist promotion of democratic mechanisms 38, 39, 40, 49, 304,
liberalism 129–31 306, 312
supposed incompatibility of Shari‘a with 95, Shari‘a courts disbanded 66
104–5, 113, 378 Supreme Constitutional Court 116, 118
derogation regime 29–31, 32, 96, 101–2 Eide, Asbjrn 377
Deschênes, Jules 377 El-Awa, Selim 233, 234, 238
dhimmis 148, 321, 323–4, 364–5, 373 Eltahawy, Mona 301
accommodating minority interests 327–8 emergency measures 28–9, 31–2, 34
390 Index
Emon, Anver M 82, 83, 84, 89, 93, 96, 102, contemporary Muslim discourses and 295–8
105, 115–16, 364–5, 367, 374, 378, distinction between Shari‘a and 300,
382, 385 311, 312
English law 174 fiqh al-Shari‘a 107
equal treatment 267, 270 Fitzpatrick, Joan 30
equality 49–50 flash-points 9, 12, 121
definition 266–9 forced marriage 94
substantive equality 268–9, 310 formalism 92
see also gender equality Foucault, Michel 129
equity 386 foundational values 69–70, 116–17, 118
erroneous belief 153–4 France 173, 221
Eurocentricity 26 ban on the use of religious dress and
European Convention on Human Rights and symbols 279, 285, 286
Fundamental Freedoms 29, 118, 137, minority rights 352
173, 174, 350, 376 freedom of conscience 132–4
religious freedom 190, 197–9, 202 religious freedom and 255–61
European Court of Human Rights 7, 11, 16, freedom of religion see religious freedom
30, 94, 95, 350 freedom of speech
freedom of religion jurisprudence 135–6, European law 173–4
142–3, 222–4 international law 174–5
Dahlab v Switzerland 136–40, 141–2, Islamic law see Islamic doctrines of expression
214–16, 219, 221, 288 limitations to 4–5, 10–11, 121–2, 144–5
Kokkinakis v Greece 210–14, 216 Muslim world 175–6
Lautsi v Italy 221 political expression see political expression
Lawless v Ireland 210 US Constitution 168, 169–73
Refah Partisi v Turkey 95, 220, 378 versus defamation of religion 176–80
Sahin v Turkey 136, 140–1, 216–21, see also hate speech
278–9, 288n furu‘ 117
European legal paradigms 63–5, 66, 80
European Union: freedom of speech versus gender equality 3, 11–12, 49–50
defamation of religion 177, 179 CEDAW see Convention on the Elimination
Evans, Malcolm 218, 223 of all Forms of Discrimination Against
exception 17–18, 19, 84 Women
anti-terrorism legislation 28 compensatory treatment 271
derogation regime 29–31, 32, 96, 101–2 contemporary Muslim legal discourses 295–8
emergency measures 28–9, 31–2, 34 contentious issues 263–4, 265
normative developments 33–4 cultural essentialism and 277–9
post 9/11 27, 28, 33–4 Declaration on Violence Against Women 273
extraordinary measures 28–9, 31–2, 34 definition of equality 266–9
definition of gender equality 269–72
Fairbanks, Charles 129 demonization of Islam 285–9
faith traditions 69, 70, 87–9 differential treatment 270
Falk, Richard 46 distinction between Shari‘a and fiqh 300,
family law 66–7, 263 311, 312
distinction between Shari‘a and fiqh 300, equal treatment 267, 270
311, 312 gender essentialism and 274–7
divorce 59–60, 75, 294 Hindu Right and 277–8, 280–1
marriage see marriage Shah Bano case 282–3, 285, 286, 287, 318
modern legislation 312–17 Uniform Civil Code 281–4
rights of non-Muslims 319 Islam-feminism divide 300–1, 318
faskh 230 marriage see marriage
fatwa 61, 74n, 248–9 modern legislation 312–17
federal states 356, 377 Musawah 291, 298–301, 303, 309–11, 312,
Feldman, Noah 104 315, 318, 319, 385
feminism 12, 274, 276, 277, 279, 287 regressive tendencies 298
Islam-feminism divide 300–1, 318 Shari‘a and 300, 301, 302, 317
see also gender equality Sisters in Islam 291, 309
fiqh 6, 58–9, 63, 66, 71, 82, 83, 93, 106–8, substantive equality 268–9, 271, 310
112, 227, 292, 293 Vienna Declaration 272
Index 391
women-centered approach 273–4, 275, Hegel, Georg Wilhelm Friedrich 126, 344–5,
276, 277 346, 347
gender essentialism 274–7 Helms, Jesse 306
genealogical approach 4, 10 Helsinki Accords 129
Geneva Conventions 20n, 100 Herzegovina 369
genocide 131, 132 hierarchy of values 2–3
Germany 142, 173 Higgins, Tracy 277
Geuss, Raymond 134 hijab (headscarf) 136–42, 208–9, 214–20,
al-Ghazali, Abu Hamid 70, 331 278–9, 285–9
Ghunaimi, Tal’at 111 Hindu Rashtra 280, 281, see also Hindu Right
global cooperation 119–20 Hindu Right 277–8, 280–1
globalisation v Shah Bano case 282–3, 285, 286,
governance 53 287, 318
secular and religious 83 Uniform Civil Code 281–4
Shari‘a and 66, 67, 68, 69–71, 108–9 Hinduism 189n, 374
Gross, Oren 27 Hindutva 280, 281, see also Hindu Right
Ground Zero 365 Holocaust consciousness 132
Guatemala 200 Holocaust denial 5, 11, 121
Guilhot, Nicolas 128 honest belief 153
hudud 107, 156, 157, 158, 159
hadd 237, 238, 239 hukm 109–10
hadith 6, 54–6, 57–8, 61, 371, 372 human rights
abrogation of a Qur’anic rule 238 comparative histories 125
Islamic legal curriculum 76 Cold War 112, 127, 129, 130
on apostasy 234–8 contexts and institutions 127
on judging 73–4 freedom of conscience 132–4
traditional authority and social political and social movements in the late
responsiveness 82–3, 93 twentieth century 127–31
al-Hajjaj b. Yusuf 240 rechtstaat 134–5
hakimiyya 110 teleologies 125–6
halal 227 international law see international human
Halley, Janet 275 rights law
halqas 77 Human Rights Commission see Commission on
Hamidullah, Muhammad 231 Human Rights
Hammami, Rema 317 Human Rights Committee 30, 32, 96, 103
Hanafi jurists 57, 59, 62, 74, 75, 108, 158, 160, freedom of religion 190, 203–10, 222
161, 372 minority rights 351, 352, 353, 355
Abu Hanifa 110, 336 Human Rights Council 22–3, 42–3, 45,
Abu Yusuf 229, 336 46, 168
al-‘Ayni 336–7 freedom of speech versus defamation of
dhimmi rules 330, 332, 336 religion 176, 177, 179, 180
al-Kasani 157, 330, 331, 332 Human Rights First 180
on apostasy 229, 230–1, 234, 235, 236, 239 human rights violations 88–9, 131
al-Sarakhsi 239, 240 Human Rights Watch 23, 28n
al-Shaybani 111, 229, 336 humanitarianism 131–2
Hanbali jurists 58, 59, 229, 230, 372 humility 13
dhimmi rules 334, 335 Humphrey, John 376
Ibn ‘Aqil 108 Hungary 349, 366
Ibn Taymiyya 71, 108, 109, 236, 238, 239 Hunter, Ian 133
haqq Allah 166 Huntington, Samuel v, 9
haqq al-nas 166 huquq Allah 156
haram 227 huquq al-‘ibad 156
al-Harith b. Suwayd 237
Hasayin, Waleed 176 ‘Ibadi jurists 59
Hastings, Warren 109 Ibn Abi al-Damm 73–4
hate speech 121, 360 Ibn ‘Aqil 108
see also freedom of speech Ibn Hazm 333
Havel, Vaclav 128–9 Ibn Jama‘a 108
headscarf (hijab) 136–42, 208–9, 214–20, Ibn Muljam 150, 161
278–9, 285–9 Ibn al-Muqaffa 106–7
392 Index
Ibn Qutayba 108 Muslim state participation 42–7
Ibn Taymiyya 71, 108, 109, 236, 238, 239 contextual nature 4, 16, 382, 384–5
‘idda 230 frameworks 19–20
ijab 293 freedom of speech 174–5
ijaza 76 human rights conventions 3, 16
ijma‘ 56, 107, 228, 372 Human Rights Council see Human Rights
ijtihad 57, 310, 372 Council
ikhtiyar 229 humanitarian and customary law 3
‘ilm 107 Islamic law and 91
immigration 12 common ground 2, 4, 8, 15, 104, 123–5,
India 12, 109, 160 379–80, 381
gender equality 265–6, 268, 277–85 dynamics of law 52
Hindutva 278, 280–1 gender equality see gender equality
Hindu Right 277–8, 280–5 historic protections 3, 95
Shah Bano case 282–3, 285, 286, 287, 318 religious freedom see religious freedom
Uniform Civil Code 281–4 tensions 86, 87, 95, 111–12, 113
Moghuls 374 non-derogable rights 101–2
indigenous peoples 12, 200, 321, 349, 350, see also derogation regime
351, 353, 376 primary sources 23–4
Indonesia 94, 304 regional mechanisms 23
limits to religious freedom 181, 192, 321 freedom of religion 197–202, 222
women’s rights activists 300 Muslim state participation 47–50, 95
inheritance 64, 319 religious freedom see religious freedom
apostasy and 230–1 role of states 7
InterAction Council of Former Heads of State security versus rights 18
and Government 90 torture 18
Inter-American system 199–200 treaty-based mechanisms 21
International Bar Association vi, vii, viii, 1, 2, 7, Muslim state participation 37–42
8, 9 United Nations see UN human rights system
International Bill of Rights 21 Universal Periodic Review 22, 43, 46–7, 96
International Convention on the Protection of universalism 18, 19, 24–5, 91, 92, 103,
the Rights of All Migrant Workers and 128, 132
Members of their Families versus cultural relativism 25–7, 97–8, 99,
(ICRMW) 36, 38 100, 290, 292
International Court of Justice 38 International Humanitarian Law (IHL) 20n, 25
International Covenant on Civil and Political International Labour Organization 185
Rights (ICCPR) 21, 29, 35, 38, 39, 40, international law
41, 49, 96, 101, 102, 126, 224 aspirational nature 345
freedom of religion 187, 189–94, 196, 199, contextualist readings 17, 24
200, 202, 203, 204–5, 225, 226–7 critical legal theorists’ critique 346
response of Muslim states 245–6 exception 17–18, 19, 84
freedom of speech 174–5 anti-terrorism legislation 28
minority rights 351–4, 355, 358, 363, 366, derogation regime 29–31, 32, 96, 101–2
376 emergency measures 28–9, 31–2, 34
Optional Protocols 36, 37, 351, 352 normative developments 33–4
International Covenant on Economic, Social post-9/11 27, 28, 33–4
and Cultural Rights (ICESCR) 21, 29n, formalism 92
35, 96, 126 fundamental purpose 344–5
Optional Protocol 36 hegemonic contestation 346, 348
International Convention for the Protection of instrument of international politics 346
All Persons from Enforced interpretative approach 24
Disappearances 36 legality 17, 19, 33, 34
International Criminal Court 7, 100 minority rights see minority rights
international human rights law (IHRL) national law and 83
ability to protect fundamental rights and non-positivist view 346
minimum standards 2 post-structuralist and post-modern
armed conflict paradigm 19 critique 346
aspirational nature 345 textualist readings 17, 24
Charter-based mechanisms 21, 22 universality 18, 19, 24–5
Index 393
challenges to 1 family law 66–7, 263
Internet 176 distinction between Shari‘a and fiqh 300,
interpretation 311, 312
international law 24 divorce 59–60, 75, 294
Islamic law 56–8, 83 marriage see marriage
iqa‘ 294 modern legislation 312–17
Iqbal, Muhammad 244 rights of non-Muslims 319
Iran 15, 115 fiqh 6, 58–9, 63, 66, 71, 82, 83, 93, 106–8,
Baha’i community 181, 321 112, 227, 292, 293
Green Movement 302, 303 contemporary Muslim legal discourses
human rights record 94 and 295–8
minority rights 362, 378 distinction between Shari‘a and fiqh 300,
participation in international human rights 311, 312
mechanisms 39, 40, 43, 45, 192, 304 freedom of speech see Islamic doctrines of
Iranian revolution (1979) v, 113, 291 expression
Iraq 2, 6 gender equality see gender equality
constitutional law 145 hukm 109–10
early Islam 239–40 institutions of adjudication and
minority rights 362 enforcement 61–3
participation in international human rights international adherents 8
mechanisms 38, 40, 43, 44, 96, international human rights law and 91
192, 304 common ground 2, 4, 8, 15, 104, 123–5,
Irving, David 11 379–80
Islam dynamics of law 52
contribution to Western culture v gender equality see gender equality
demonization 285–9 historic protections 3, 95
dress codes religious freedom see religious freedom
burqa 221, 285, 287 tensions 86, 87, 95, 111–12, 113
hijab 136–42, 208–9, 214–20, 278–9, interpretive authority 56–8, 83
285–9 schools of law 59
niqab 117, 181, 285 see also jurists
early history 148–51, 152, 153–4, 239–42 jurisprudence 107–8, 116, 117
equality within 49–50 personal status statutes 6, 39, 115, 313–14
see also gender equality pluralism 80–1, 82, 84, 93, 94, 95, 102, 382
expansion 372 role of the state 6–7, 16, 115
pillars 163, 227 rule of law and see rule of law
Islamophobia 224 siyar 107, 110–12
Islamic Council 113 source texts 54–6, 61, 63, 84, 93, 371
Islamic doctrines of expression traditional authority and social
apostasy see apostasy responsiveness 82–3, 93
blasphemy see blasphemy tragic narrative 81
defamation 155, 156–8 see also Shari‘a
modern geopolitics 164–5, 166–7, 175–6 Islamists 113, 244
political speech 146, 148 gender equality and 292, 297
accommodation of dissent 148–53, 167 Turkey 140
legitimacy requirements for rebellion and Isma‘ili jurists 59
dissent 153–5 isnad 55
procedural requirements 163–5 Israel
Qur’anic commands 165–6 non-recognition of 38
sexual and religious mores 155, 156 participation in international human rights
Islamic law mechanisms 38, 39, 40, 41, 43, 45, 47
constitutional provisions 116 ‘iwad 294
contextual nature 4, 16, 382, 384–5
controversies and anxieties 15–16 Ja‘fari jurists 59
conventional approaches to 53 Jahangir, Asma 197
core values 69–70, 116–17, 118 Jehovah’s Witnesses 211, 341–2
criminal law 6, 107, 116, 146 Jellinek, Georg 125
degradation 1 jihad 15, 51, 95, 111
discontinuity with the past 63, 84 jizya 243, 323, 324, 326, 328–9, 337–8
394 Index
Jordan 66 Lebanon: participation in international human
gender equality 312, 314–17 rights mechanisms 37, 38, 40, 41,
participation in international human rights 44, 304
mechanisms 304, 311 legal education
Joy, Lina 144, 164, 167 madhhab 112
Judaism 227, 234, 239 madrasas see madrasas
judges (qadis) 61–2, 68, 73–5, 106 secularized 67
jurisprudence 107–8, 116, 117 legal pluralism 80–1, 82, 84, 93, 94, 95, 382
jurists 106 legality 17, 19, 33, 34
Hanafi see Hanafi jurists legitimacy 4, 81, 82
Hanbali see Hanbali jurists liberalism 94, 123, 124
‘Ibadi 59 neo-conservatist promotion of democratic
interpretive role 83 liberalism 129–31
Isma‘ili 59 Libya 100
Ja‘fari 59 Arab Spring 145, 302
Maliki see Maliki jurists participation in international human rights
Shafi‘i see Shafi‘i jurists mechanisms 38, 40, 41, 45, 192, 304
‘ulama’ 75, 79 Locke, John 133
Zaydi 59 Lovelace, Sandra 353
jus ad bellum 18n, 25
jus cogens 91, 93, 100, 101 MacKinnon, Catharine 269n, 274–5, 276
jus in bello 18n, 25 madhhab 59, 112
just war doctrine 18n madrasas 67, 75
justice 386 charitable trusts 76, 77–8
Justinian (Emperor) 184 independence 76–7
al-Juwayni, Abu al Ma‘ala 62, 68, 74–5 Islamic legal curriculum 75–6
Nizamiyya colleges 78–9
Kamali, Muhammad Hashim 244, 248–9 residential facilities 77
Kambaksh, Sayed Pervez 176 site of contest between jurists and governing
Kantian liberalism 26 regime 79–80
Kapur, Ratna 26, 304, 307, 310, 318, 383 teacher-student relationship 79
al-Kasani, Abu Bakr 157, 330, 331, 332 Madrid Agenda 85
Kelly, Duncan 134 magic 162
Kennedy, David 346 Mahmasani, Subhi 111
Kerry, John F 307 mahr 293
Khadduri, Majid 111 Majalla 65
Khaliq, Urfan 255, 260, 261, 382 Makdisi, George 77, 79
Khan, Ahmad 244 Malaysia 6, 11, 144, 358
kharaj 111 limits to free speech 145
Khawarij 109n, 150–1, 154, 155 religious freedom 244, 249–53
khul ‘ 294, 312, 314, 315 women’s rights activists 300
Kirkpatrick, Jeanne 129 Maldives 192, 193, 245
Kokkinakis v Greece 210–14, 216 Malik b. Anas 106
Koskienniemi, Martti 18, 24, 33, 92, 346–7, 348 Malik Shah 78
Ku Klux Klan 171 Maliki jurists 58, 59, 107–8, 229, 230, 372
kuffar 151, 232 al-Baji 238–9
kufr 241 dhimmi rules 333, 337
Kumm, Mattias 138 Sahnun 333
Kuwait Mandal Commission 269n
gender equality 313 Mandela, Nelson 368
participation in international human rights Al-Mansur (Abbasid caliph) 106
mechanisms 38, 39, 40, 41, 43–4, 192 Maritain, Jacques 222
marital rape 94
land law 64–5 marriage 59
Lausanne Treaty 348, 354, 362 apostasy and 230
Lautsi v Italy 221 classical Islamic jurisprudence 293–5
law of nations 110–12 divorce 59–60, 75, 294, 312, 314, 315
League of Arab States 47, 48 polygamy 294, 295
League of Nations 322, 327, 328, 375 Martin, Richard 47
Index 395
Al-Marzouqi, Ibrahim Abdulla 248 women’s rights activists 298–9, 312–13
ma‘siya 335 mosques 77
ma‘siyya haqiqa 336 Moyn, Samuel 20–1, 126, 131
masjid-khan 77 Mu‘awiya 150, 151, 153, 154, 239
maslaha 56, 108 mubtal 153
Masud, Muhammad Khalid 300 mufti 61–2, 74
ma‘sum 329 Muhammad 3
matn 55 blasphemy against 11, 144, 156, 158, 160,
Maududi, Abul A’la 232, 297 161, 162, 167, 175
Maududi, Sayyid 109–10 hadith see hadith
Mauritania Sunna 106, 371
participation in international human rights muharibun 235
mechanisms 40, 41, 192, 193 muhtasib 61, 62
ICCPR and freedom of religion 245 multiculturalism 12, 321–2
al-Mawardi, Abu al-Hasan 60–1, 69, 70, munafiq 235
73, 108 murtadd 229
Mayer, Ann Elizabeth 25, 48, 49, 319 Musawah 291, 298–301, 303, 309–11, 312,
Mazower, Mark 322 315, 318, 319, 385
Mehta, Uday 124 Muslim b. Hajjaj 235, 237
Mendes, Errol 365–6, 367, 369, 375, 376, Muslim minorities 28
377, 378 Muslim world
Menocal, Maria Rosa 325 breakup of empires 2
minority rights 12, 321–2 defence of religious freedom 243–4
Bill of Rights 368, 369 freedom of speech 175–6
dhimmis see dhimmis influence on Western culture v
equal access and participation 362 minority rights 362
European Convention on Human Rights and population 8
Fundamental Freedoms 350, 376 post 9/11 tensions 2, 91
federal states and 356, 377 state participation in Charter-based
incorporation into national laws and mechanisms 42–7
constitutions 356–61 state participation in regional
individual rights bearers 351, 352 mechanisms 47–50, 95
International Covenant on Civil and Political state participation in treaty-based
Rights 351–4, 355, 358, 363, mechanisms 37–42
366, 376 state participation in UN human rights
League of Nations 322, 347, 348, 375 regime 34–7, 85–6, 96
modern international law 375–7 ICCPR and freedom of
Muslim states 362 religion 245–6
rule of law and 357–8, 377–8 state power 6
Shari‘a 371–5 Mutahhari, Morteza 297
see also dhimmis mutaqawwam 330, 332
South Africa 360, 365, 366, 367, 368 mutashabihat 117
UN human rights system 349, 353–5, 375–6
Universal Declaration of Human nafaqa 294
Rights 349–50, 365, 375 Napoleonic Code 63, 66
see also religious minorities nation states 347
Minority Rights Group International 359–60, national security 341–3
362, 366 natural law 381
Mir-Hosseini, Ziba 304, 307, 309, 318, 385 Nawawi 237
missionaries 188, 189 Nazis 171, 173
Mixed Courts 63, 64, 66 neo-conservatism 129–31
modernity 104, 112 Netherlands: Dutch penal code 173–4
modesty 117 Nigeria 15, 304
Moghuls 374 niqab 117, 181, 285
Mohamed, Mahathir 250 Nizam al-Mulk 77, 78
Mohanty, Chandra 274 Nizamiyya colleges 78–9
monotheism 364 non-derogable rights 101–2
Morocco 115 non-state actors 113, 346
gender equality 313, 314, 315 normativity
participation in international human rights international law 346
mechanisms 38, 39, 40, 41, 192, 304 Islamic law 107–8, 346
396 Index
nushuz 294 proselytising 211, 212, 215–16
Nussbaum, Martha 259 public safety 146, 147
punishment 15, 16, 57, 58, 146
Obama, Barack 178 death penalty see death penalty
Office of the High Commissioner for Human discretionary (ta‘zir) 71, 107, 108, 238–9
Rights (OHCHR) 45 for apostasy 238–9
Ohnesorge, John 69 for defamation 156–8
Oman: participation in international human stoning 15, 94
rights mechanisms 39, 40, 41, 304, 305 purdah 285
Organisation for Cooperation and Security in
Europe 185 qabul 293
Organisation of African Unity 201 qadhf 155
Organisation of American States 199, 222 qadis 61–2, 68, 73–5, 106
Organization of the Islamic Conference al-Qaeda 15, 343
(OIC) 47, 48, 168, 176, 245 Qatar
Ottoman Empire 2, 6, 63, 64, 65, 109, 184–5, gender equality 312, 313
348, 362 participation in international human rights
religious minorities (millet system) 373 mechanisms 39, 40, 41, 304
qat‘i 234
Pakistan 11, 113, 114, 304 qat‘iyyat 116, 117
condemnation of religious qatl 231
intolerance 179, 180 qiyas 56, 107, 372
limits to free speech 144, 145, 175–6 Quebec 354
limits to religious freedom 181, 188n, 189n, Qur’an 3, 6, 54, 55, 57, 58, 61, 107
193, 321 abrogated verses 105–6
minority rights 362, 378 abrogation by hadith 238
Palestine 292 ambiguous verses 117
gender equality 317 apostasy 231–4
limits to free speech 176 ayat al-ahkam 105
participation in international human rights desecration 173, 175, 176
mechanisms 44, 45, 46 Islamic legal curriculum 76
Partsch, K J 191 legal content 371–2
patriarchy 114, 301 ‘mother of the book’ 117
Peace of Westphalia 226, 347 obedience 165
peacemaking 151–2 peacemaking and reconciliation 151–2
Pejic, Jelena 358 religious freedom 242–3
People of the Book 243, 373, 374 ‘no compulsion in religion’ 166, 175,
Philippines 200 181, 242
Pipes, Daniel 121 sanctions and punishments 146
pluralism al-Qurtubi 70n
legal 80–1, 82, 84, 93, 94, 95, 102, 382 quwwa 151
religious 218, 219, 220, 223, 247
see also religious freedom Race Convention 186, 195, 224, 225
polemics 15 racial hatred 171, 173, 174, 175, 224
political expression 146, 148 racial profiling 28
accommodation of dissent 148–53, 167 Rahman, Fazlur 56
legitimacy requirements for rebellion and Rahman, S A 233, 244
dissent 153–5 al-Rashid, Harun 111
political Islam see Islamists Rashidun 239, 242
polizeiwissenschaft 134 Rashtra Sevika Sangh 280, see also Hindu Right
polygamy 294, 295 ra’y 107
pork al-Razi, Fakhr al-Din 165, 166, 167
consumption of 330–2 Reagan, Ronald 129, 306
theft of 330, 332–3 rebellion 146
Powers, David 64–5 accommodation of dissent 148–53, 167
prayer 162–3 legitimacy requirement for 153–5
pre-emptive self-defence 51, 84 rechtstaat 134–5
property law 64–5 reconciliation 151–2
apostasy and 229–30 Refah Partisi v Turkey 95, 220, 378
Index 397
refugees 28 hijab 136–42, 208–9, 214–20, 278–9,
regional mechanisms 23 285–9
freedom of religion 197–202, 222 manifestations of belief 207–10, 222–3
Muslim state participation 47–50, 95 niqab 117, 181, 285
religious conversion 144 prayer 162–3
religious freedom 11, 88, 181–4 Religious Peace of Augsburg (1555) 184
apostasy see apostasy religious symbols 141–2, 221, 261, 285
compatibility of Shari‘a and international religious traditions 69, 70, 87–9
human rights law 247–8, 254 repressive regimes 112, 113, 114
defence of 243–4 revelation 106
early Islam 241–2 Rida, Rashid 109, 244
essential nature of the freedom 255–61 ridda 146, 227, 228, 229
European Court of Human Rights see also apostasy
jurisprudence 135–6, 142–3, 222–4 Roma 12
Dahlab v Switzerland 136–40, 141–2, Romania 349, 366
214–16, 219, 221, 288 Rome Statute 100
Kokkinakis v Greece 210–14, 216 ru’asa’ al-kuffar 232
Lautsi v Italy 221 rule of law 52, 89, 118–19
Lawless v Ireland 210 definition 68–9
Refah Partisi v Turkey 95, 220, 378 minority rights 357–8, 377–8
Sahin v Turkey 136, 140–1, 216–21, religious freedom 249–53
278–9, 288 Shari‘a and 68–9, 378
freedom of conscience and 255–61 core values 69–70
international law 184–5 decentralization thesis 72
European Court of Human governance 69–71
Rights 135–43, 210–21, 222–4 madrasas and legal education see madrasas
Human Rights Committee 190, role of the qadi 73–5
203–10, 222 Russian Federation 357, 358, 359
regional provisions 197–202, 222
universal provisions 185–97, 222 Sachs, Albie 369
Malaysia 244, 249–53 Saeed, Abdullah 255, 260, 382
manifestations of belief 207–10, 222–3, 225, Sahin v Turkey 136, 140–1, 216–21, 278–9,
226, 261 288n
gender equality and 285–9 Sahnun 333
modern geopolitics 225 Said, Edward 249
national security and 341–3 salat 227
‘no compulsion in religion’ 166, 175, Salzburg Global Seminar v–vi, vii, viii, 1, 2, 7,
181, 242 8, 9, 12, 379
non-discrimination 187, 190, 195, 222, 225 Sangh Parivar 280
pluralist society 218, 219, 220, 223, 247 al-Sanhuri, ‘Abd al-Razzaq 66
Qur’anic conception 242–3 al-Sarakhsi, Shams al-Din 239, 240
regressive tendencies 255 Sarkozy, Nicolas 279, 285
right to change religion 188–9, 191–2, 193, Sarvakar, Vir D 280
196, 200, 201, 204, 206–7, 226, 247 Saudi Arabia 67n, 115
rule of law and 249–53 dhimmi rules 339–41, 365
South Africa 369 gender equality 313
toleration 132–4 human rights record 94, 99
religious hatred 224 limits to religious freedom 188, 189, 191, 192
religious minorities 12, 321 participation in international human rights
dhimmis see dhimmis mechanisms 38, 40, 41, 44, 86, 98, 304
discrimination against 365 preservation of fiqh 295
Moghul period 374 religious freedom 244
Ottoman period 373 school textbooks 340–1
tolerance 324, 325, 365, 367, 374 wrongful death damages 339, 365, 378
see also minority rights Scheinin, Martin 186, 188
religious doctrine 155 Schmitt, Carl 132, 134, 135
blasphemy see blasphemy Scott, Joan 26
dress code secular governance 83, 94, 95
burqa 221 secularism 124, 142–3, 218–19, 221, 223, 285
398 Index
secularism (cont.) Singh, Parmanand 268
Hindu Right and 281 Sisters in Islam 291, 309
legal curriculum 67 siyar 107, 110–12
self-defence 17, 51, 84 al-siyasa al-shar‘iyya 71, 96, 108–9
self-reflection 13 slander 155, 156
September 2001 (9/11) 2, 17, 27, 28, 33–4, 84, Somalia 44
91, 112, 298 source texts 54–6, 61, 63, 84, 93, 371
see also war on terror South Africa
sexual mores 155, 156 minority rights 360, 365, 366, 367, 368
Shafi‘i jurists 58, 59, 60, 62, 74, 75, 230, religious freedom 369
234, 372 sovereignty
al-Mawardi 60–1, 69, 70, 73, 108 of God 109–10
al-Shirazi 335, 336 of states 20, 67, 92, 112, 131, 347, 348
dhimmi rules 334, 335, 339 Soviet Union 128, 356
Shah, Niaz 94 see also Cold War
Shah Bano case 282–3, 285, 286, 287, 318 Spain: Andalusia 325
Shaltat, Mahmud 233 Spivak, Gayatri 287
Shari‘a 6, 11, 38–42, 105–6 Sri Lanka 357
colonial government and 63–5, 108–9 state actors 6–7
compatibility with European Convention on state sovereignty 20, 67, 92, 112, 131, 347, 348
Human Rights 94, 95 Stilt, Kristen 72
core values 69–70, 116–17, 118 stoning 15, 94
distinction between Shari‘a and fiqh 300, Storrar, William 9
311, 312 Sudan 44, 100, 192, 246, 304
equality within 49 minority rights 357, 378
gender equality and 300, 301, 302, 317 sulaakins 374
history 54, 63 Sulayman, Abu 111
legitimacy 52 sulhiyya 328
legitimating function 81, 93 Sullivan, D 195
minority rights 371–5 Sunna 106, 107, 371
see also dhimmis Sunni 59, 65, 149, 154, 234, 372
politics and 52 Switzerland
religious freedom see religious freedom ban on minarets 342, 365
role in modern governance regimes 66, 67, Dahlab v Switzerland 136–40, 141–2,
68, 95–6, 103 214–16, 219, 221, 288
rule of law and 68–9 limits to religious freedom 181
core values 69–70 Syria
decentralization thesis 72 Arab Spring 144, 302
governance 66, 67, 68, 69–71, 108–9 participation in international human rights
madrasas and legal education see madrasas mechanisms 38, 39, 40, 41, 44, 45,
role of the qadi 73–5 192, 304
siyasa 71, 96, 108–9 religious minorities 378
supposed incompatibility with democracy and
human rights 95, 104–5, 113, 378 takhayyur 66
see also Islamic law talaq 59, 60, 230, 294
al-Shatibi, Abu Ishaq 108 talfiq 66
al-Shawkani, Muhammad 232, 233, 234, 235 Tamil minorities 357
al-Shaybani, Muhammad b. Hasan 111, tamkin 294
229, 336 tamlik 334
Shi‘a 59, 65, 149, 154, 230, 372 Tanzimat 65
al-Shirazi 335, 336 Taseer, Salman 176, 180
Shiv Sena 280, see also Hindu Right Taseer, Shehrbano 180
shubha 163 Taub, Nadine 271
shura 109 ta’wil 163
shurb al-khamr 331 Taylor, P 191, 196
Sieghart, Paul 378 ta‘zir (ta‘zirat) 71, 107
Sierra Leone 88 Tehran World Conference (1968) 47
Sikhs 207–8 teleologies 125–6
Singapore 98–100 terrorism 15, 28, 112, 343
Index 399
law enforcement and 85 UN Special Rapporteur on Violence Against
see also war on terror Women 273
textualist approach 17, 24 UNESCO
Tibawi, A L 78, 79 Committee on the Theoretical Bases of
tolerance 132–4, 324, 325, 365, 367, 374 Human Rights 222
torture 18 Convention against Discrimination in
transparency 119 Education 353, 358
treason 241–2 Declaration on Race and Racial
treaty-based mechanisms 2 Prejudice 353
Muslim state participation 37–42 UNHRC see Human Rights Council
Treaty of Lausanne 348, 354, 362 United States
Treaty of Westphalia 226, 347 Bill of Rights 118
trusts 64, 76, 77–8 First Amendment rights 168, 169–73
al-Turabi, Hasan 244 foreign policy
Tunisia Carter presidency 128
Arab Spring 144, 145, 302 neo-conservatist promotion of democratic
ban on polygamy 295 liberalism 129–31
gender equality 313, 314 Reagan presidency 129
participation in international human rights freedom of speech versus defamation of
mechanisms 39, 192, 304 religion 177, 178, 179
Turkey 11, 109, 304 influence of terrorism on domestic
abandonment of fiqh 295 legislation 112
Islamists 140 non-ratification of CEDAW 304, 306–7
Refah Partisi v Turkey 95, 220, 378 religious freedom 134
Sahin v Turkey 136, 140–1, 216–21, limits to 341–2
278–9, 288n Universal Declaration of Human Rights 20,
secularism 94, 95 21, 85–6, 92, 126, 349–50, 365,
Treaty of Lausanne 348 375, 383
see also Ottoman Empire freedom of conscience 256, 257, 258
freedom of religion 187–8, 189, 191, 194,
UAE 195, 196, 198, 222, 226, 248, 256,
gender equality 313, 315 257, 258
participation in international human rights Universal Islamic Declaration of Human
mechanisms 38, 39, 40, 41, 44, Rights 47, 49–50, 95, 113–14
304, 311 universal mind/spirit 345, 346
‘ulama’ 75, 79 Universal Periodic Review 22, 43,
see also jurists 46–7, 96
‘Umar b. ‘Abd al-‘Aziz 155 universalism 18, 19, 24–5, 91, 92, 103,
Umayyad period 239, 242 128, 132
umma 246 versus cultural relativism 25–7, 97–8, 99,
umm al-kitab 117 100, 290, 292
UN Charter 22, 42, 47, 92, 349, 365, 375 use of force 25, 151
UN human rights system 21–2 usul 117
gender equality see Convention on the usul al-din 76
Elimination of all Forms of usul al-fiqh 56, 57, 76, 234
Discrimination Against Women ‘Uthman b. ‘Affan 150, 152, 153, 237
(CEDAW) Uzbekistan 208–9
minority rights 349, 353–5, 375–6
Muslim state participation 34–7, 85–6, 96 Van Dyke, Vernon 373
ICCPR and freedom of religion 245–6 veil see burqa; hijab; niqab
protection of minorities 322 Vienna Declaration 272
UN Security Council 130–1 Vietnam War 171
UN Special Rapporteur on Freedom of violence against women 273
Expression 177 Vishwa Hindu Parishad 280, see also Hindu
UN Special Rapporteur on Freedom of Religion Right
and Belief 196–7, 224
UN Special Rapporteur on Minorities 354–5, Wadud, Amina 300
358, 377 al-Wahhab, Shaykh Abd 109
400 Index
Wahhabism 67n Williams, Roger 258–60, 261
wahy ghayr matluw 106 Williams, Rowan 263
Waldron, J 97 women’s equality see gender equality
wali 293 wrongful death damages 339, 365, 374, 378
Waliullah, Shah 108
Waltz, Susan 35 Yemen 38, 44, 302, 304
waqf structure Ye’or, Bat 326–7
charitable endowments 76, 77–8 Yugoslavia 349, 356, 366, 369
made by dhimmis 334, 335
land and inheritance 64 Zahra, Abu 111
war on terror 15, 17, 25, 27–8, 51, 84–5, 91, zanni/zanniyat 116, 117, 234
292, 298, 302 Zaydi jurists 59
Welchman, Lynn 385 Ziyad b. Abihi 240
Wilders, Geert 173–4 Zoroastrianism 184

Islamic Law and International Human Rights Law (PDFDrive)

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Islamic Law and International Human Rights Law (PDFDrive)

Uploaded by

Copyright:

Available Formats

ISLAMIC LAW AND INTERNATIONAL

‘Common Ground’ to ‘Clearing Ground’:

Anver M Emon, Mark S Ellis, and Benjamin Glahn

A. Interrogating ‘common ground’

This book is the culmination of a multi-year effort by the International Bar

2001). For an online copy of the document, see <http://www.lapa.princeton.edu/hosteddocs/unive_

16(2) Human Rights Quarterly 235–76.

denial of the Holocaust is strictly prohibited? Likewise, while many Muslim

C. Clearing ground, revealing the state

D. ‘Clearing ground’ as modus vivendi

E. Overview of the book

10 Application no 44774/98 [2005] ECHR 819 (10 November 2005).

1 Martti Koskenniemi, ‘International Law and Hegemony: A Reconﬁguration’ (2004) 17(2)

Cambridge Rev Int’l Affairs 197.

State of Exception (University of Chicago, 2005).

B. Deﬁning the space

Europe’ (2000) 54 International Organization 217–52.

composition and functioning, as the Council’s membership includes states with

26 Human Rights Watch, ‘Keeping the Momentum’.

States of Emergency (UPENN, 1994), 60.

C. Narrating law through the ‘other’

Koskenniemi reminds us that ‘“Universal values” or “the international community”

Theory for Feminism’ (1988) 14 Feminist Studies 33, 43.

D. The state of exception and the ‘war on terror’

47 Steiner, Alston, and Goodman, International Human Rights in Context, 517.

Part One: An Overview’ (2001) 11(2) J Transnat’l L & Pol’y 2, 1–17.

Against Terrorism’ (2003) 14 EJIL 2, 265–82, 278.

64 Lawless v Ireland (1979–80) 1 EHRR 15, para 28.

73 Invoking the doctrine of a margin of appreciation.

European Convention on Human Rights’ (2011) 12 German LJ 1764–5, 1766.

Compilation of General Comments and General Recommendations Adopted by Human Rights

79 Fitzpatrick, ‘Speaking Law to Power’, 241.

Mortati, Hoerni, Ranelletti, and Rossiter.

Balladore-Pallieri, and Carré de Malberg.

E. Narrating human rights in treaties

Transformation’ (2010) 60(3) University of Toronto LJ 799–854, 799.

critiques of the international human rights machinery. That said, imposing a

1. State participation in the UN human rights regimes

Quarterly 26 (November 2004), 799–844.

92 Somalia has signed but not ratiﬁed the CRC <http://treaties.un.org/doc/Publication/MTDSG/

Volume I/Chapter IV/IV-11.en.pdf> accessed 14 July 2010.

Volume I/Chapter IV/IV-2.en.pdf> accessed 14 July 2010.

doc/Publication/MTDSG/Volume I/Chapter IV/IV-8.en.pdf> accessed 14 July 2010.

Islands have signed but not yet ratiﬁed <http://treaties.un.org/doc/Publication/MTDSG/Volume

<http://treaties.un.org/doc/Publication/MTDSG/Volume I/Chapter IV/IV-15.en.pdf> accessed 14

un.org/doc/Publication/MTDSG/Volume I/Chapter IV/IV-13.en.pdf> accessed 19 July 2010.

ICCPR-OP1 <http://treaties.un.org/doc/Publication/MTDSG/Volume I/Chapter IV/IV-5.en.pdf>

treaties.un.org/doc/Publication/MTDSG/Volume I/Chapter IV/IV-8-b.en.pdf> accessed 23 July

cations with treaty monitoring bodies. Additionally, there is an additional Optional

2. Participation in the treaty-based system: a brief analysis

OP2 <http://treaties.un.org/doc/Publication/MTDSG/Volume I/Chapter IV/IV-12.en.pdf> accessed

signatories <http://treaties.un.org/doc/Publication/MTDSG/Volume I/Chapter IV/IV-11-c.en.pdf>

111 See n 48. 112 See n 48.

declarations to which State compliance to a particular right is to be interpreted through Shari‘a. At

3. Charter-based system and related procedures

160 For more details on these, see <http://www2.ohchr.org/english/bodies/chr/special/visits.htm>.

169 See <http://www2.ohchr.org/english/bodies/chr/special/invitations.htm> for a complete list.

period 1998 to date.

Special Procedure visits organized by country. Last accessed 23 July 2010.

territories occupied since 1967 (A/HRC/10/20).

Redondo, ‘Universal Periodic Review of UN Human Rights Council’.

Rights Council Universal Periodic Review.

ILSA J Int’l & Comp L 459, 460.