The Dilemma of Islamic Human Rights Schemes

The Dilemma of Islamic Rights Schemes Author(s): Ebrahim Moosa Source: Journal of Law and Religion, Vol.
15, No. 1/2 (2000 - 2001), pp. 185-215 Published by: Journal of Law and Religion, Inc. Stable URL: http://www.jstor.org/stable/1051518 Accessed: 28/05/2009 10:11
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THE DILEMMA OF ISLAMIC RIGHTS SCHEMES

Ebrahim Moosa t
INTRODUCTION
The gulf in perceptionbetween Islamic and secular perspectives over the meaning of human rights is growing. Media reports and western governments repeatedly charge Muslim governments from Sudanto Iranof humanrightsviolations. In some partsof the Muslim world, a string of events indeed suggest that the violation of human rights continuewith little sign of immediateabatement. Tragedyis the that overriding topos of the mediaattention such events receive. The list can become endless, but I will only mentiona few incidentsin orderto highlightthe salientcontextsand issues for the purposesof a discussion on human rights. The Turkish Muslim feminist Konca Kuris was by kidnapped a Turkishgroupknown as the Hizbullahin 1998 and her deadbody was foundin 1999.1 In 1997 Egypt's highest courtruledthat the writings of a Cairo Universityprofessor,Nasr Hamid AbuiZayd to were tantamount apostasy.2 In 1992, Muslim militants assassinated the Egyptianhumanrightsactivistand essayistFaragFouda. The 1980s witnessed the internationalimbroglio amounting to a debacle when Iran's clergy offered a ransom to anyone who would assassinate the Indian-bornBritish author Salman Rushdie for writing novels that offendedMuslimsensibilities. On a dailybasis, spine chillingreportsof death and civilian casualtiesperpetrated Muslim militants and the by in Algeriabewilderobservers afterthe army's subversionof the military democraticprocess in that country. In many Muslim countries like Egypt, Syria, Saudi Arabia, Iraq, Iran, Bangladesh, Pakistan and and Tunisia, intellectualsare subjectedto harassment traditionalist by
of t Associate Professor,Department Religion, Duke University. I would like to thank for MarieFailinger herhelpfulcommentsandsuggestions.
1. Stephen Kinzer, Turkish Terror Victim Espoused a Tolerant Islam, N.Y. Times Foreign
Desk (Jan.26, 2000).

2. Charles Hirschkind, Heresy or Hermeneutics: The Case of Nasr Hamid Abu Zayd, 12/7
The Am. J. IslamicSoc. Sci. 463 (Winter1995);in the specialissue by Nancy Reynolds& Saba
Mahmood, eds., on Contested Polities Religious Disciplines & Structures of Modernity, appearing
in 5.1 StanfordElec. HumanitiesRev (Spring 1996). (http://www.stanford.edu/group/SHR/51/text/toc.htlml)
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alike as well as by governmentsfor theircritical fundamentalist quarters study of religion and for opinionsthat do not meet with approvalfrom the religious establishment. When human rights concerns are raised, officials from Muslim countries accuse the West of using a double in of standard its application humanrights,of mountingthe humanright of claim as an instrument political power against nations who do not further politicalandeconomicagendas.3 its Anyone familiar with the interculturaldebate on human rights would agree that the media debatesand dramaticevents conceal much more complex issues of history,traditionand the contestedperceptions are of law and religion. Few Westerners aware that the debatewithin Muslim societies abouthumanrightsis fierce in its intellectualrigor as well as its political consequences,as events in Iran over recent years suggest. Some Muslims argue that Islam has a human rights dispensationthat surpassessecularhumanrights declarations.4Others claim that the differencesbetween Islamic and secular constructsof human rights are but minor philosophicalquibbles without significant consequencesin contentand practice.5 Contraryto both these sets of claims, the content of a human rights doctrine and how they are Muslimlegal, achievedremainsa vexing questionwithin contemporary
3. See Azizah al-Hibri,Islam, Law and Custom:RedefiningMuslim Women's Rights, 12 Am. U. J. Intl.L. & Policy 1, 4 (1997), in whichshe states: have This view has receivedaddedsupport given the attitudethatWesterngovernments in takenrecentlytowardsdemocracy Muslimcountries. They advocateit, theypraiseit, but their deeds belie their words. They lend unconditionalsupportto regimes that consistentlyviolate humanrights,so long as these regimescontinueto protectWestern economicandgeopoliticalinterests. al-Ra'id 1 (7 Muta'aridali 'l-Hurriyya, WadihRashidal-Nadawi, See also Muhammad Mafahim The WestUnique,Not Universal,75 For. Sha'ban1620/Nov. 16, 1999). SamuelP. Huntington, Affairs 28, 38 (Nov./Dec. 1996); Samuel P. Huntington,The Clash of Civilizations,72 For. Affairs22, 36 (Summer1993). 4. Human Rights and the Conflict of Cultures: Westernand Islamic Perspectives on S.C.: ReligiousLiberty4 (DavidLittle,JohnKelsay& AbdulazizA. Sachedina,eds., Columbia, U.S.C. Press 1988). 5. Rashid al-Ghannfishi, al-Hurriyatat 'AmmafT '1-Dawla al-Islamiyya 320 (Beirut: de M'arkazDirasatal-wahda Ijurriyt]. Boaventura Sousa Santos, 1993) [hereafter al-'Arabiyya 344 Sense:Law,Scienceandthe Politics in the ParadigmaticTransitions a Toward New Common Routledge7 Sha'ban1620/Nov.1995)says: (London: ... the to WhatI find remarkable is the attempt transform Westernconceptionof human rights into a cross-culturalone that vindicates Islamic legitimacy rather than relinquishingit. In abstractand from the outside, it is difficult to judge whethera is religious or secularistapproach more likely to succeed in an Islamic-basedcrosscultural dialogueon humanrights. However,bearingin mindthatWesternhumanrights which is are the expressionof a profound,albeitincomplete,process of secularization in to not comparable anything Islamicculture,I wouldbe inclinedto suggestthat,in the Muslim context, the mobilizingenergy needed for a cosmopolitanproject of human withina religiousframework. rightswill be moreeasilygenerated
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politicalandethicaltheory. These are staggeringissues thathave hardly been addressedlet alone satisfactorilyresolved. I do not therefore answer,but ratherview this as an pretendto provide a comprehensive to contribute the largerdebate in a bid to identify some to opportunity problemareas in the context of Islamic humanrights. This essay thus examines the differences between secular human rights and Islamic rights and argues that they are indeed conceptually different things. Muslimthoughtmay be able to producea rights However,contemporary system, I would argue,thatmay be based on differentethicaland moral in premisesbut not dissimilarto secularhumanrightsdeclarations their outcomes. The success of a modem Islamic human rights theory dependson the extentto which modem Islamic thoughtwould be open to a revisionistor reconstructionist approachin philosophyand ethical orientation.6In this centurythe IndianthinkerMuhammad Iqbal gave new impetusto the term"reconstruction." attemptat reconstruction, His "thatthere is no such thing Iqbalargued,stems fromthe understanding as finality in philosophicalthinking."7Reconstruction involves both a of critiqueand adaptation the present. Iqbal argued that while early Muslims allowed for the evolution of religious experiencein Islam, he was severely critical of modem Muslim thinkerswhom he said had "become incapable of receiving any fresh inspirationfrom modem for thoughtand experience."8Reconstruction him thus meant a critical approachto the Muslim philosophical tradition and modem human knowledge in order to open new frontiers of thought and human understanding.
ISLAM AND RIGHTS: ISSUES AND PROBLEMS
Fromits very inceptionin seventhcenturyArabia,the message of Islam demonstrated preoccupation a with the social, moral and spiritual condition of human beings. The deity proclaimed by the Prophet Muhammad the world was both the "Lordof the Worlds"(rabb alto 'alamin)and "Lordof the People" (rabb al-nas). The subject of the of prophet'srevelation,the Qur'an,was not exclusively a self-revelation God to humanity,but an instant where humanity became the very leitmotifof revelation.
6. Fazlur Rahman, Internal Religious Developments in the Present Century Islam, 2 J.
WorldHistory862, especially872-875 (Nov. 1955).

7. Muhammad Iqbal, The Reconstruction of Religious Thought in Islam vi (Shaikh
Muhammad Ashraf1960).
8. Id. at 5.
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In governing the city of Madina the Prophet Muhammad coexistence hailed as the establishedthe basic rules of inter-communal Compactof Madinaat the time, a sort of primitiveconstitution. This agreement between the Arab-Muslimtribes, Jews, and other nonMuslim religious and ethnic groups (such as Christiansand perhaps bound of even some adherents pre-IslamicArabianreligious traditions) the partiesto observe certainrights and duties while they lived in the territories governedby the Prophet. However,the Prophet'simmediate successorssoon encountered problems. Thatwas due to the governance fact that the Islamic order of Arabia rapidly expandedto become an empirethat includedruralfolk as well as urbanizednon-Arabconverts to Islam. Necessities of that time led to several political innovations. During the reign of both the Prophet and his righteous successors, known collectively as the caliphate(632-661), some landmarkevents referencepoints for the inventionof a rightsdiscourse serve as standard in Islam. These include, among other things, the Prophet's famous farewell sermonto his followers at the last pilgrimage;passages from the Qur'andealingwith the sanctityof life, property, dignityand honor; and actionstakenby the Prophet'ssuccessorsto rectify rightsviolations of their subjects. One notable examplewas the response of the caliph 'Umar. News reachedhim in Madinathat the son of 'Amr bin al-'As (his governorto Egypt) chastisedan EgyptianCopt during a sporting game without any corrective justice from his father. The caliph to hurriedly expediteda letterof reproach his governorwhich contained line: "Sincewhen have you enslaveda people, oh 'Amr, the memorable when theirmothershad given birthto themin freedom?"9 The story of 'Umar and other examples are advancedby human rightsadvocatesas proof thatIslamicculturehas a legacy of rightsthat are with modernhumanrightsregimes. Such comparisons is compatible alas, hasty if not immodest, and do not take into account the Islamiclaw, the of and assumptions intellectualfoundations pre-modern which contrastsvastly with the legal and political assumptions sharfa, made by modernhumanrights codes. Islamic rights discourse has an entirelydifferentgenesis and pedigreecomparedto the secularhuman rights discourse. The failure on the part of Muslim human rights differencesbetween the theoriststo account for the very fundamental two systems result in major conflicts, misunderstandings and miscommunication. For it is now well accepted that rights are also
9. Ibn 'Abd al-Hakam, FutLh Misr wa' I-Maghrib 225-226 ('Abd al-Mun'im Amir ed., Cairo: 'Isa Babi al-Halabi 1961).
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culturallyconstructed. In each ethical and moral culture there is not only a sense of what human rights means, but also how rights are created. Thereis a heateddebatewhetherhumanrightsare universalor a Westernconceptandwhetherconcomitantly they are universallyvalid or not. I agree with de Sousa Santosthat the genesis of a moral claim may condition its validity, but it certainlydoes not determineit. The two questions(cultural are because originsanduniversality) interrelated, the mobilizing energy that can be generatedto make the acceptanceof humanrights concreteand effective depends,in part, upon the cultural identificationwith the presuppositions that ground human rights as a moralclaim.10It is thereforeimportant clarify the salient differences to between the two moral traditionsbefore attemptinga comparisonto or exploretheirmutualcompatibility incompatibility. One of the weaknesses in contemporaryMuslim human rights literature the attemptto conflatethe two very differentlegal, ethical is and moral traditionsso that they look instantlycompatible. I concede thatthereis considerable overlapin some of the concernsand objectives thatboth rightstraditions address. However,these similaritiesdo not in themselvesjustify the graftingof presumptions from one system to the in so doing packagingMuslimnotions of rightsas compatible otherand to modem humanrightspractices. To the extent that these perspectives can be shared,rejected,appropriated modified dependson the crossor culturaldialoguesthataremadepossibleby concretecontexts. Without such a dialogue and the careful calibrationof the two systems there are obvious risks involved. One dangeris that when put to the test, Islamic rights schemes are found lacking in protecting that Islam had endorsed"human people's rightsafterhavingannounced rights." In several cases involving freedom of speech in the last few decades of the twentiethcentury,Muslim human rights proclamations have by and large capitulated favor of authoritarian and declarations in and anti-rightstendencies."1The persecutionof reformistpoliticians, writersin Iran,as well as the violation of women's rights in Iran and Afghanistan,are well known examples. Often these violations are Islamichumanrights claims. These justified in terms of particularistic crises demonstratethe weakness and problems inherent in Muslim of adaptationsand formulations humanrights schemes. Rhetorically,
10. de Sousa Santos, supra n. 5, at 337. 11. See Ann Elizabeth Mayer, Islamic Law and Human Rights: Conundrums and Equivocations, in Religion and Human Rights: Competing Claims? 190 (Carrie Gustafson & Peter Juviler eds., Armonk, N.Y.: M.E. Sharpe 1999) for a discussion on how the Iranian constitution stipulates how human rights should be subordinated to Islamic criteria.
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Islamicand secularhumanrightsformulations may soundthe same, but they have very different theoretical assumptions and practical applications.
THE MODERN CONCEPT OF HUMAN RIGHTS
The notion of human rights as we know it today arises in the context of the evolutionof the nation-stateas a political system, even thoughsome may claima moreancientpedigreefor it to datebackto the by MagnaCartaandthe FrenchRevolution. The legal culturegenerated the nation-stateincreasinglyimposed its own logic of social behavior and social conditionsin societiesreceptiveto it. A crucialfeatureof this model of statecraftis the relationshipbetween the individualand the state, which broughtabout an awarenessof the individual'sencounter with a powerful and dominantentity, unknown in pre-modemtimes. The state is a permanent legal entity, which exercises its claim over a territory and community through a legal order and organized government,and also demonstratesa measure of political identity. Those rights, now known as "first generation"human rights were especially designed to protect the individual from the overwhelming state. Since then humanrights,have powers of the modem bureaucratic alreadyadvancedto secondandthirdgenerationrightsthatcover socioeconomicandpoliticalrightsas well as environmental rights. in The most criticaldevelopment the nation-state polity model was the conferralof citizenshipon the individual. In theory this bestowal entitled the bearerof citizenshipto claim certain rights as well as to fulfill certain duties. The individual was no longer subject to the discretionof a ruleror a system of governance,but insteadhad claims against such authorityin the form of rights, some more fundamental than others that precede one's social status, ethnic or religious affiliation. Humanrightsin this context are thus inviolablerights that one has "simplybecause one is a humanbeing."'2 They also have a of secularcharacter, havingbeen derivedfromthe jurisprudence natural itself from religion. Here the word rights when naturallaw separated betweentwo conceptsthathave politicalandmoral distinguishes "right" significance:being rightandhavinga right. In the first instance"right" refers to moral righteousness and in the second it may refer to entitlement. Humanrights are rights of entitlementand the failureto dischargea duty or fail to respectrightsis an affrontto the person. In the secularhumanrights scheme, rights revolve aroundan ethical and
12. JackDonnelly,TheConcept HumanRights1 (London: of Routledge1985).
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moralsystem where one's personhoodor the humanityof a person is of consequence. At least in theory, limitations of religion, politics or economics can not impede the protectionof humanrights. In practice however,it is a differentmatterin thatwe know thata rangeof political, economicandculturalfactorsimpingeon the rightsdiscourse.
NOTION OF RIGHTS IN MUSLIM JURISPRUDENCE
In order to gain a better overview of the evolution of Muslim thoughton the subjectof "rights"I will examine the views of mainly early jurists and then briefly contrast these with those of more or writers. In Arabica "right" "claim"is called haqq (pl. contemporary huqiiq),but also has a widermeaning. While the originalArabicroot of the term "haqq"is somewhat obscured it can be recovered from its Hebrewroot. It means among otherthings "to engrave" corresponding onto some object,"to inscribeor write,""toprescribeanddecree." And,
it also means that which is "due to God or man."13 Haqq means "that
which is establishedand cannotbe denied,"and thereforeit has more in common with the terms "reality"and "truth."14For this reason the opposite of haqq is "falsehood"(b,til). The term haqq is considered polysemous or multivalentand thus could mean right/claim/duty/truth dependingon contextandthe use of the wordin a specific context. Muslim jurists or jurist-theologianshave provided a general meaningfor haqq in their legal, theologicaland political treatises. The Egyptianjurist, Ibn Nujaym (d. 970/1563),15 in discussing property rights made a very clear case that humanbeings are bearersof rights, without stipulatinga reciprocalduty. He arguedthat a "right"is the or upon an individualor a "competence" "capacity" (ikhtisas)conferred collective entity. Thus the individualor entitybecomes the subjectof a right.16Fromvery earlyon, datingbackto the medievalperiod,Muslim scholarsdelineatedtypologies of rights or claims. They differentiated between three primarykinds of rights: the "rights of God" (huqit
13. Encyclopaediaof Islam second edition cited in full as Encyclopedia of Islam 2 citedas El 2] s.v. hakk(Leiden:Brill 1960). [hereinafter Kitaib 14. 'All b. Muhammad 'All al-Jurjani, b. al-Ibyaried., Beirut: al-Ta'rifit 120 (Ibrahim al-'Arabi1405AH/1985AD). Daral-Kitab 15. The first date is the hijri date, AH, and the second accordingto the Gregorian calendar, AD. Fathi 'Uthman,Taqr*r al-Insan bayna al-shari'a al-Islaniyya 16. See Muhammad Huqluq al-Ta'limal-'Ali 1398/1978). 'Uthmanis of 555 wa'l Fikral-Qaninfnal-Gharbi (2d ed., Wazarat the opinionthat Ibn Nujaym'snotion of rights is very similarto that of the Belgianjurist, Jean Dabin (d. 1963). See Jean Dabin, General Theoryof Law, in The Legal Philosophiesof Lask, Mass.:Harv.U. Press 1950). and Radbruch, Dabin232 (KurtWilk trans.,Cambridge,
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Alla7), the "rights of persons" (huqtiq al-'ibid) and "dual rights" shared by God and persons.17 "Rights of God" are those rights and duties that have a revealed imperative and a religious rationale. They can be both mandatory obligations of a devotional kind such as ritual obligations, or they could involve the performance of actions that benefits the entire community. Observing the five pillars of Islam for instance, such as belief in one God, praying five times daily, paying charity, observing the annual fasting, and performing the pilgrimage would be considered to be fulfilling the rights of God. The provision of services that result in the protection of the community from harm and the promotion of good in the broadest sense can also be included in the category of "rights of God." "Rights of persons" are overtly world affirming-secular and civil -in their imperative and rationales. They are attached to individual and social interests. Such rights can be general, like the right to health, to have children, to safety or, they could be specific, such as protecting the right of a property-owner or the right of a purchaser and seller in commercial transactions. "Dual rights" are a hybrid of both religious and secular imperatives and rationales. The mandatory waiting-period of three menstrual semesters to check for pregnancy immediately after a divorce or death of a husband, for example, is viewed as an instance where dual rights apply. The logic is that God demands that lines of kinship are maintained by means of paternity within wedlock and hence it is imperative that a pregnancy test is applied by requiring the divorcee or widow to wait a mandatory period before re-marrying.18 In this case, the "right of persons" are the right of parents and offspring to know that paternity had been established with certainty in order to avoid the social stigma of illegitimacy. The significance of this rights scheme in traditional Muslim jurisprudence is that civil and devotional obligations are accorded the same moral status. Muslim law deems certain collective civil rights and specific individual religious rights as inviolable and disallows their forfeiture, especially when they involve the right or claim of another
17. Ibn Amir al-Haj, al-Taqrfr wa 'l-Tahb-r vol. 2, 104 (2d ed., Beirut: Dar al-Kutub al'Ilmiyya 1403/1983); 'Abd al-Razzaq al-Sanhuri, Mas,dir al-Haqqfi' l-Fiqh al-Ishlamivol. 1, 14 (Cairo: Dar al-Ma'arif 1967); see also Baber Johansen, Secular and Religious Elements in Hanafite Law: Function and Limits of the Absolute Character of Government Authority, in Contingency in a Sacred Law: Legal and Ethical Norms in the Muslim Fiqh 210-216 (Leiden: E.J. Brill 1999). 18. In early Islam, pregnancy after a divorce or death of a husband was established by a waiting period of three menstrual cycles. It is still a matter of controversy whether this waiting period could be replaced by newer modes of pregnancy tests.
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person. Thereare however,some types of rightsthat can be transferred while otherscan be forfeitedby the consentof the owner of such rights. The relationshipbetween rights and duties is an interpersonaland correlative one. In the enforcement a rightjuristsunderstand one of that party has a claim to have a "right"(haqq) and another "obligation" (wajib) to honora right:everyrightthushas a reciprocalobligation. The sharfa is the source of rights and obligationsin Islam. The sharla also defines practicesof rightsas derivedfrom the teachingsof the Qur'an, the prophetic tradition (sunna), jurists' consensus and reason. Clearly,rights are framedwithin a religious-moralframework wherethe omissionof a duty/right subjectto religious sanctionand its is commissionresultsin the acquisitionof virtue. The crucialpoint in the Islamic rights scheme is that God is the one who confers rights on mediatesthese persons,via revealedauthority althoughhumanauthority Islamicrightsmay be derivedfrom rights. The rationalesunderpinning reason, a divine order and public interests. The latter category are essentiallythe policy objectivesof the revealedlaw (maqasidal-sharFa) thatjurists take into consideration when developing law. These goals that the sharFa advancesare the protectionof religion, life, progeny, intellect and wealth. In modem times this public policy aspect of Muslimjurisprudence gained greatercurrencyand acceptance. So has the modemjurist, Mustafaal-Zarqa' 1999) arguesthat in additionto (d. a rightas being conferred the law (sharFa), political authority by (sulta) andthe recognitionof a moralresponsibility can also become the (taklf) grounds for conferringrights.19 There is thus a greater openness to rights being created by means of a political process, rather than or exclusively by scriptural juristic authority. While Islamic law does have a ritual function one cannot ignore it is equally cognizant of "worldly"-secular and civil concerns-and social needs based on pragmatism. In order to establish a credible discourse within Muslim closer attentionshouldbe given to methodologicalissues jurisprudence, as well as the underlying juridicaltheologyandlegal philosophy. It may be convenient to employ an eclectic method in order to validate a particular point of view, but it does not provide a rigoroustheoretical for framework a debatesuch as humanrights. One of the problemsthat the humanrightsdebateexposes is the fact that it is extremelydifficult to talk of Islamic rights as if it is a monolithic and undifferentiated
19. Wahba al-Zuhayli, al-Fiqh al-Islami wa Adillatuhu 9 (2d ed., Damascus: Dar al-Fikr
1404/1985).
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category. For instance,early eighthcenturyhumanistinterpretations by an influentialtheologicalgroupcalled the Mu'tazilis,privilegedreason and freedom to produce universalist discourses in Islam. On the opposite side was the Ash'ari theologicaltraditionwhose hallmarkwas to limit humanfreedomand to defendtheocentrism advocatedivine and in voluntarism both theologyandlaw.20More extremethanthe Ash'aris were the Hanbalisfor whom the authorityof the literalmeaningof the Scripture was supreme. Each one of these theological traditions produceddifferentassumptionsabout what a "right"is and how it is in implemented law since they arebasedon differentlegal philosophies. Another error frequently committed by both "insiders" and to "outsiders" the study of Islamic law, is the tendency to accept the medievalconstructions interpretations law as final and immutable of and normativestatements. These normativestatementsare then held out as solutionsfor application the contemporary in worldwithout ready-made mediation. The claim that Islamic law is immutable any interpretative denies the historicalevolutionof the legal system over centuries. This mindsetthat Islamicrightsschemesare into easily translates the popular and absolutist,unchangeable basedon ineffablereligiousnorms. Such a view is entirely inconsistentwith the history and practice of Muslim times there is no shortage of legal jurisprudence. In contemporary on the part of advocates of Islamic revivalism who sloganeering notionsas gospel.21This trend circulatesuch simplisticandreductionist Muslimjurists,who once has become so pervasivethat even traditional treated the legal traditionwith great subtlety and complexity, have to views. succumbed suchreductionist Part of the problem of reductionismcan be attributedto some longstanding debates within Islamic jurisprudence. Viewed chronologically,many legal historians will concede that there is a tangibledissonancebetween the sources of Islam-the Qur'anand the of prophetictradition-and laterjuristic interpretations these sources.22 for that has been that the primarysources were not The explanation the to always considered be identicalwith the law. Rather legal tradition of and was a contextualapplication interpretation what the sourcessaid. Classical and medievaljurists developed a hermeneutical approachin the law. Howevertherewas also a tensionbetween orderto understand
20. See Abdul Aziz Said, Human Rights in Islamic Perspective, in Human Rights: Cultural and Ideological Perspectives 92 (Adamantia Pollis & Peter Schwab eds., N.Y.: Praeger 1980). 21. See Ann Elizabeth Mayer, Islam and Human Rights Policy, in 9 Intl. Rev. Comp. Pub. Policy: Islam & Pub. Policy 123 (1997) for a more full review of Islam and human rights policy. 22. Muhammad Asad, This Law of Ours and Other Essays (Gibraltar:Dar al-Andalus 1987).
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the hermeneutical approachand those who arguedin favor of a more literal approachto the sources. Over time two major trends have emergedin Muslimjurisprudence.One promotesthe idea that Islamic law and ethics should follow the canonical interpretationsof the establishedlaw schools. The othertrendarguesthat each generationof scholarsshouldbe free to have directaccess to the textual sources and make their derivationsand interpretations from the primarysources ab initio.23A surveyof the Muslimhumanrightsliterature shows thatthree have been adopted. The first relies on main methodological approaches the established juristic traditions as the authoritative canon of The is interpretation. difficultywith this approach thatit is a formidable task to negotiatejuristic traditions that are very diverse and variegated, spanningseveral centuries. The result is an eclectic approach. While eclecticism does have its merits, it depends entirely on the rigor and finesse of the jurists, who can either enrich the legal traditionwith or choices of insightfulinterpretations it can result in almost arbitrary authorities.The second approach to have directaccess to the primary is sources of Islamic teachings, namely the Qur'an and the prophetic traditions(sunna), without taking into considerationthe intervening canonical tradition. While this approachruns the risk of lacking credibility and acceptability among the traditional religious it establishment, also disruptsthe continuityof an establishedtradition. The thirdapproachis to combinethe two methods. Juristswould take of into considerationthe canonical interpretations the law in a nonto binding manner, while also providing creative interpretations the sourcesof the law.
MUSLIM CHARTERS FOR HUMAN RIGHTS
Some contemporary Muslim thinkersdo not have much difficulty in making the transition from the pre-modem Islamic concepts of reciprocalrights and duties to the modem understandingof human
rights. One scholar triumphantly proclaimed that "...
,,24
it was 14
centuriesago that the Prophetdeclaredthe world's first human rights

manifesto ... Others argue that the rights enshrined in the
Universal Declaration of Human Rights (UDHR) are not only compatible with Islamic thinking but that Islam has addressed the
23. MalcolmKerr,Islamic Reform:ThePolitical and Legal Theoriesof Muhammad Abduh and Rashid Rida (Berkeley: U. of Cal. Press 1966) for a detailed discussion of the various of interpretations Islamiclaw amongmodemMuslim jurists. 24. Badria al-Awadhi,Address by the Dean of the Faculty of Law and Shari'a in the University Kuwait,in HumanRightsin Islam28 (Geneva:Intl.Commn.of Jurists1982). of
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question of rights more comprehensively. ZafrullahKhan, a former wrote: foreignministerof Pakistan musttravelfar beyondthe Declaration [UDHR]both in Religion andin its methods. It is concerned with the totality its objectives
of life, both here and hereafter .... Thus in spirit the Declaration
andIslamarein accord.25 However, some thinkershave realizedthat the dominanthumanrights discourse stemmed from a secularpolitical culture,which made very differentassumptions. Khanwas aware of this tension and consistent with his Islam-centered warnedthat in the event of a conflict approach, between Islam and human rights then "the Islamic provision must continueto have priority."26 In modern times the Muslim approximation the human rights of debate culminated in the publication of the Universal Islamic Declarationof HumanRights (UIDHR), an effort co-ordinatedby the Islamic Islamic Council of Europe and launched at an International Conference held in Paris on September 19, 1980.27 The UIDHR overlappedin contentwith the UniversalDeclarationof HumanRights (UDHR) adopted by the United Nations. However, the differences betweenthe two systemsdeserveourattention. The languageemployed by the UIDHR is not only framed in an Islamic idiom. It is also theocentricin that it makes referenceto the divinity that is named in Arabic as "Allah"and pledges loyalty to the model behavior of the ProphetMuhammad. It makes referenceto the fact that humanbeings were entrustedby God with a "vicegerency"(khilgfa) and that the on protectionof humandignitywas paramount the imperativesof both reasonandrevelation. Then the UIDHR explicitly states that in "termsof our primeval covenantwith God, our duties and obligationshave priority over our the This statement sharplydistinguishes Islamicrights-scheme rights."28 fromwhat is generallymeantby secular"humanrights"where the term entitlementssimply and rights mean certainfundamental unconditional on the groundsof being human. This presentationof "Islamichuman rights"does containa paradoxin conceptionand nomenclature.Islamic
Zafrullah 25. Muhammad Khan,Islamand HumanRights 141-142 (4th ed., Tilford,Surrey: IslamIntl.Publications 1989). 26. Id. at 142. 27. UniversalIslamic Declarationof HumanRights, in Islam and Black MuslimRoots in Africa-Islam ResearchFound. 1982) [hereinafter Azania77-88 (YusufNazeered., Johannesburg: UIDHR]. See also Mayer,supra n. 11, at 123-148 for a more full review of Islam and human rightspolicy. 28. UIDHR,supran. 27, at 79.
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rightsschemesarguethatdutiesare priorto rights and thatit is only the fulfillmentof these dutiesthatwould producea requisiteset of rightsto be claimed. In such a configuration may have been more appropriate it to call the UIDHR,the UniversalIslamicDeclarationof HumanDuties. Anotherrecurringfeaturein the UIDHR is the referenceto "the Law" which refers to the sharla. The sharfa is meant to be the limitation couldpotentiallytrumpseveralotherclauses. In that statutory the UIDHR for example, freedom, especially freedom of speech is limitedby the "Law"clause. It is strikingthat despitethe omnipotence and almost fetish like invocation of the sharla in Muslim legal and ethical discourse,it remainsundefinedin the UIDHR as an inarticulate premise. In practicethe notion of sharFa is not only subjectto diverse but interpretations also an enigmatic category. Section 2 (x) of the UIDHR for example,statesthat "no one shall be deprivedof the rights assured to him by the Law except by its authority and the extent permitted it." (my emphasis). Since sharfa law is not codified in the by sense thatwe are accustomed understand to codificationin modem law, such limitation clauses introducean element of arbitrariness the to declaration. Therecould be variousinterpretations what the shari'a of view is on a single matter. In the absence of an international Muslim sharFa court, it would be difficult to enforce synod or international uniformor consistentsharFa verdicts within nationaljurisdictions,let alone in the international domain.29 Not only do such statements render the declaration vague but they also have immediateconsequences. In the absenceof any institutional regulationof the sharfa, legal power is then vested in the formally and informally constituted religious authorities who interpret sharf a as the final arbitersof God's law. the A closer look at the argumentsof the advocates of an Islamic rights schememay serveto illustrate some of the pointsmadeabove. The chief exponentof a theocentricinterpretation Islamic-rights of is the late Allah BukhshK. Brohi,a formerlaw ministerof Pakistanand prominent lawyer in that country. Brohi's apologetics are best illustrated whenhe says: Thereis a fundamental in difference the perspectives fromwhich IslamandtheWestview thematter human of rights. TheWestern in perspectivemay by and large be called anthropocentric the sense that man is regardedas constitutingthe measure of sincehe is the starting and everything pointof all thinking action. The perspective Islamon the otherhand is theocentric-God of
29. The Organization IslamicConference of (OIC) has made provisionfor an IslamicCourt of Justicebasedin Kuwait, littleis knownof its activities. but
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[I]n essence, the believer has only obligations or
dutiestowardsGod since he is called upon to obey the Divine stem Law, and such humanrightsas he is madeto acknowledge fromhis primary in duty to obey God. Yet paradoxically, these duties lie all the rights and freedoms. Man acknowledges the rightsof his fellowmenbecausethis is a dutyimposedon him by the religiouslaw to obey God andthe Prophet those who are and constituted authority conduct affairsof state.30 as to the Brohi accentuates the difference between anthropocentricand theocentricnotions of humanrights. He then embroidersentitlements (secular human rights tradition)and reciprocalrights (Islamic rights) of into a unifiedrights-system premisedon the performance duties. This creates a hybridphilosophyof rights, one that employs the obviously language of rights, but with rhetoricthat actually signifies the prior of performance dutiesbeforeany rightscould be confirmed. So whereas the secular human rights traditionrecognizes the sovereignty of the the individualas a right-bearer, same right in an Islamic rights-scheme could be subjectto limitation. Politicaland religious authority,as well as the competinginterestsbetween the rights of the communityversus the right of the individualcan lead to an infringementof individual rights. For this reason, Prozesky has rightly pointed out that theistic may be incompatiblewith the notion of human religions in particular rights since these faiths do not recognizethe notions of individualand personalsovereignty.31 Nevertheless, Brohi's distinction between anthropocentricand theocentric classifications of human rights may be questionable. Despite the face that Brohi presents to his human rights-schemeas theocentric,he hardly accounts for the role that the jurist-theologians of and and humanauthorities play in the construction adjudication these rights. To claim that that humanrights in Islam are theocentric,is to origins. But it does not necessarily suggest thatthey have transcendent mean that they become immutableand absolutist. Perhaps human beings played a far greater role in the shaping of theocentriclegal to systemsthanwhatreligiousideologiesareprepared admit. conflict Donnelly and Nasr perhapsbest capturethe fundamental between Muslim and secular perceptionsof human rights. Donnelly
30. A.K. Brohi, Islam and Human Rights, in The Challenge of Islam 179-181 (Altaf Gauhar ed., London: Islamic Council of Europe 1978). 31. Martin Prozesky, Is the Concept of Human Rights Logically Permissible in Theistic Religion?, 2 J. for the Study of Religion 17, 26 (1989).
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distinguishes between human rights and human dignity.32 The latter he believes, is normally the concern of religious-rights and cultural rights discourses. He points out that there are certain conceptions of human dignity that can be realised entirely independent of human rights discourse. On the other hand, human rights are something under the control of the right-holder. In Donnelly's words, Human rights are conceived as naturally inhering in the human person. They are neither granted by the state nor are they the result of one's actions ... they are general rights, rights that arise from no special undertakingbeyond membership in the human race. To have humanrights one does not have to be anythingother than a human being. Neither must one do anything other than be born a humanbeing.33 Nasr grasps the essence of a rights-system inspired by the tradition of Muslim juristic-theology. Rights in his scheme are part of a social contract or covenant between humans and God which requires conformity with the religious law (shar?a). Says Nasr: As a result of fulfilling these obligations we gain certainrights and freedoms which are again outlinedby the Divine Law. Those who do not fulfil these obligationshave no legitimate rights; any claims of freedom they make upon the environment or society is illegitimate and a usurpationof what does not belong to them, in the same way as those persons who refuse to recognize their theomorphic nature and act accordingly are only "accidentally" human and are usurping the human state which by definition implies centralityand divine vicegerency.34 Nasr emphasizes an almost irreconcilable conceptual gulf between Islamic and secular notions of rights. Nasr's view on this point has recently been explored by Perry who has raised the question whether our common understanding of human rights discourse is not "inescapably religious."35 Perry believes that the human rights talk coheres and is more consistent with the metaphysics and cosmology of religious ideas than with secular foundations. However, Nasr goes as far as denying those who do not subscribe to a religious worldview any "legitimate" grounds for making claims to rights since they have failed to realize their theomorphic nature. Perry is of course much more tentative in his
32. Jack Donnelly, Human Rights and Human Dignity: An Analytic Critique of Non-Western Conception of Human Rights, 76 Am. Pol. Sci. Rev. 303 (1982). 33. Id. at 305-306. 34. S.H. Nasr, The Concept of Reality and Freedom in Islam and Islamic Civilization, in Islamic Life and Thought 18 (Albany, N.Y.: S.U.N.Y. 1981). 35. Michael J. Perry, The Idea of Human Rights 13 (N.Y.: Oxford U. Press 1998).
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propositions. He does not deny that secularists, atheists or those hostile to a religion can embrace the cause of human rights or lay claim to protection under human rights. Instead he challenges non-religious advocates of human rights to explore the consistency of their views and urges them to interrogate the foundations of their philosophical convictions. Different to Brohi and Nasr, are other Muslim writers who do not interrogate the metaphysics of secular human rights. Rahid alGhannuishi,a liberal Tunisian Islamist ideologue adopts an approach that reduces the differences between the religious and secular views on human rights as superficial. Other writers too have tried to color the traditional religious source-texts with contemporary meanings. Ghannuishieloquently states his point. A comparisonbetween the principles of humanrights in Islam and the modem human rights charters discloses that there is a large area of commonality, with few exceptions, which is the reason why the universaldeclarationof humanrights, for example-in its general thrust-is so widely received by the Muslim who has a of good understanding his religion.36 By minimizing the differences between Islamic rights and modem human rights, Ghannuishiand others transplant the rhetoric of secular human rights onto the discourse of religio-moral rights.
THE DILEMMA OF ISLAMIC HUMAN RIGHTS
Despite the attempts to forge an Islamic equivalent of the modem human rights charter adopted by the United Nations there remain areas of incompatibility in practice. Human rights advocates highlight these contradictions when Islamic requirements seem to conflict with recognized secular human rights. Areas of conflict are the prohibition against Muslims converting to other religions; the historically entrenched "protected" (dhimma) status of non-Muslims living in Islamic states, or predominantly Muslim states; and, the patriarchal presumptions that pre-modem Islamic jurisprudence makes with respect to women that affect their civic and personal liberties especially, but not exclusively, in marital life.
CONVERSION
Classical Islamic law prohibits conversion out of Islam to another

36. HurriySt, supra n. 5, at 320.
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religion, which would prima facie be in violation of article 18 of the Universal Declarationwhich confers the right to freedom of thought, conscienceandreligion,includingthe rightto changeone's religion and to belief. Conversion would be tantamount apostasy(ridda)in termsof Islamic law and thus an offense punishableby death accordingto most legal schools of thought. In explainingthis rule, some contemporary scholarshave arguedthat apostasy in early Islam and medieval times was viewed as one of a numberof subversiveactivitiesthat threatened the public securityof the Muslimcommunity.37 Sachedina,for instance, explains that while the Qur'an advocated religious freedom, the disruptiveevents and political realities in the career of early Islam And when the of managedto restrictthe interpretation such freedoms.38 state becomes the guardianof the faith, then any threatto the state is also regarded an attackon religion. "Inthe face of the expansionof as Islamicpoliticalpowerandhegemony,"Sachedina argues, the deep Qur'anic towardreligiousfreedomsteadilylost impulse ground-in practiceand in theory-to the equallystrongconcern for defendingthe faith against active persecutionand violent assault. The defensiveuse of force gradually gave way to more andpolitical aggressive legal policies. This is also the view adoptedby some of the leading theoristsin the modem Islamicrevivalistmovementwho do not view apostasyas a religiousoffence punishableby religion.40Instead,they hold that it is a political offence that is subject to punishment at the discretion of from the medieval consensus, political authorities. This is a departure which regarded apostasy as a religious offence and its penalty sanctionedby law.41 It becomes easier for latterday scholarsto dissent from the traditional consensus on this issue because of subtle transformations had takenplace in modem Muslim that epistemological thought in dealing with the primarysources. Modem thinkersplace
37. Abdulaziz A Sachedina,Islam and Religious Liberty: Freedom of Conscience and Religionin the Qur'an,in HumanRightsand the Conflictof Cultures, supran. 4, at 79. See also Conferenceof Riyad, Paris, VaticanCity, Geneva and Strasbourgon Moslem Doctrine and HumanRightsin Islam betweenSaudi Canonistsand Eminent Juristsand Intellectuals European 55 (Riyad:Ministry Justice,n.d.). of 38. Sachedina, supran. 37, at 85. 39. Id. 40. Hurriy,t,supra n. 5, at 48-50. Al-Ghanniishi says that this was also the view al-Imam Muhammad 'Abduh,al-Shaykh'Abd al-Mut'alal-Sa'd, 'Abd al-Wahhab al-Khallaf,AbuiZahra, al-Shaykh'Abd al-'Aziz Shawish, Fathi 'Uthman,'Abd al-HamidMutawalli,'Abd al-Hakim, Hasanal-Turabi, Muhammad and SalimGhazfur. 41. Taqial-Din Ahmadibn 'Abd al-HalimIbn Taymiyya, Majm'uFatawa,vol. 37, 28, 413416 (Mu'assasat al-Risala(1618/1997).
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greater emphasis on the Qur'an and are less fastidious with hadgih for sources.42The warrant apostasyis not derivedfrom the Qur'an,but from propheticreports (hadth) that can be impugned with error in or with less controversy. The modem view transmission interpretation has also attemptedto reconcile the law with the overall spirit of the Qur'anicteachingsthat does advocategreaterfreedomto choose one's faith.
PROTECTEDSTATUS OF NON-MUSLIMS
of Pre-modeminterpretations the shar?a saw the world as two the primarydomainsor jurisdictions: jurisdictionof Islam (dar al-Islaim lit. "abode of Islam") where Muslim suzerainty prevails, and the jurisdiction of war (dir al-harb lit. "abode of war") where such legitimateIslamic authorityis absent. Modem jurists have developed hybrids of these two primary categories such as an intermediate jurisdiction, called a jurisdiction of peace or a jurisdiction of reconciliation(dar al-Islam.lit. "abodeof peace " dar al-mu'ahadalit. "abodeof mutualcontracting"). In this jurisdiction,Islamic authority come to some does not prevail,but the Muslimsubjectsof the territory with pledging political leadership, securityarrangement the non-Muslim to upholdthe rulesof domicilein exchangeforprotection. system of governancehave rendered Changesin the international these political and juridical models obsolete. No Muslim state, includingmodem day Iran and Saudi Arabia,adopts these as part of law. Nevertheless,these models of a bygone their public international political era still inform the thinking of traditionaljurists and some ideologuesof Islamicrevivaltoday. Non-Muslimsliving within Islamic jurisdictionsor even in secularMuslimcountries,constantlyfear that a of returnto an Islamic state could resultin the reinstatement these premodem political and legal models. The fear is that if Islamic parties come to power they may declarethe countryto be a "domainof Islam" and relegatenon-Muslimsto a statusof second-classcitizens underthe as guise of being a protectedperson(ahl al-dhimma) definedby Islamic law. A protectedcitizen (dhimmi)while enjoying most civil rights as his/her Muslim counterparts would be barredfrom enjoying some do, crucial liberties that are available to Muslims. For instance, a nonMuslimwould not be able to become a head of state or occupyjobs in key militaryand intelligencepositions of a Muslim country,according
42. See Daniel Brown, Rethinking Tradition in Modern Islamic Thought (Cambridge, Mass.: Cambridge U. Press 1966).
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of to classical interpretations the sharla.43 Althoughthese rules are not as implemented law in the majorityof Muslim countriestoday, they are still the unwrittenculturalpracticein many states. Again such notions may conflict with the requirementsof the rights of citizenship in democraticcontexts. While early Muslim political theory may have allowed for persons of other religions to be treateddifferentlysuch as requiringnon-Muslimsubjectsto wear specific forms of dress, or the differentialapplicationof law, there is no fundamentalimperativein such enforcement.44 the In modem Islamiclaw and ethics to perpetuate annals of Islamic history there is evidence of non-Muslims serving in Muslim governments high office withouttheirpresencebeing viewed either a violation of the law or a threatto the securityor identityof as the state. Many apologistsfor the retentionof the dhimmistatusof nonMuslim citizens use the discriminatory treatment of Muslim in communitiesin the West as an argument defense of theirpositions.45 The inexcusable levels of discrimination against Muslims by western powers cannot, however, be the basis for the relativizationof Muslim ethics thatresultin "titfor tat"justice.46
THE STATUS OF WOMEN
Most contemporary religiousexpressionsof Islam, excludingcrass advocates of savagery in the name of religion, would deny that discrimination againstwomen is permissible. Despite theirvehemence, these very same groups approvea range of manifestly discriminatory of practicesinheritedfromthe medievalformulation Islamiclaw.47The
43. Hurriyat, supran. 5, at 291. 44. For instancesome Muslimlegal schools held the view that a Muslim subjectcannotbe executed underthe rule of lex talion, if he killed a dhimmi. The assumptionis that it would if undermine statusof the "believers" a Muslimis killed for takingthe life of a non-Muslim the to citizen. TheMuslimoffenderor his familyis required pay compensation. 45. Hurriy,t,supran. 5, at 292. in 46. See Arcot Krishnaswami, Studyof Discrimination the Matterof ReligiousRightsand Practices, 11 N.Y.U. J. Intl.L. & Pol. 227 (Fall 1978). 47. For an interesting study of public reactionsto extendingcitizenshiprightsto women in Kuwait,see Katherine Meyer,Helen Rizzo & Yousef Ali, Islam and the Extensionof Citizenship Rights to Womenin Kuwait, 37 J. for the Sci. Study of Religion 131 (1998). The authors' conclusionsreflect the complexityin trying to pin down misogynistic trendswithin religious trends. towardsincorporating women more fully Models explainingKuwaiticitizens' attitudes in political life made clear several things about relationshipsamong Islam, social and structure women's rights .... Citizens,both Sunniand Shia, who stronglyupheld Islamic orthodoxywere very supportiveof more fully including women. However, were less inclinedto those favoringtraditional Islamicpracticesregardingappearance women's rightsalthoughIslamic wantto includeothers. Religiousorthodoxy supported religiositydid not.
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still resultis thatsome trendsin Muslimjurisprudence hold thatwomen do not acquire legal and moral majority in certain transactions,and hence requirethe guardianship males. According to some legal of schools, women lack the capacityto contractmarriagesindependently, own property.48Women also do not althoughthey can paradoxically have an unfettered rightto sue for divorce as men have the unqualified Recentchangesin Egyptianlaw may theirspouses.49 powerto repudiate be inchingin the directionof giving more freedomsin such mattersbut the legislation has also provoked a great deal of controversy and criticism from religious quarters. Most of the rules affecting interspousalandmale-femalerelationsare premisedon the strongpatriarchal and patrilineal of assumptions medieval Islam. For example,women's by evidentiarytestimonyhas to be corroborated that of anotherfemale before the cumulativetestimonyof both can be equal to that of a male. of Some schools arguethatthe requirement two females' evidence only to financialand commercial and transactions does not applyto all apply domainsof life. Similarly,most traditional juristic opinion disqualifies women fromholdingseniorpoliticalandjudicial office as in the case of Iran where women were preventedfrom holding judicial office after 1979 which is now gradually being rectified. In Pakistanit was debated whether a woman could be a Prime Minister of a Muslim country. a Thereis nevertheless vibrantdebatetakingplace in almostall Muslim societies aboutthe statusof women; the more gendersensitive reading of Qur'anic ethics proposed by some jurists, contrasts sharply with readingsof traditional jurisprudence.50
OR PROTECTING HUMANRIGHTS HUMANDIGNITY
The existing differencesbetween the two rights systems (secular and Islamic) does not lead to the conclusion that the Islamic system should be denied a role in the defense of humanrights, even if some Islamic interpretationsmay conflict with secular human rights conclusions. Failureto accept parallelmodels despite differencesmay
Id. at 142. 48. Muhammad ibn Ahmad al-Ramli, Nih#yat al-Muhtf ala Sharh al-Minha*, vol. 8, at 6:224 (Mustafa Babi al-Halabi 1967-1969). 49. See Werner F. Menski, South Asian Muslim Law Today: An Overview, 9 Sharqiyyat 16 (1997), an essay that covers a range of issues from constitutional issues to questions of divorce and polygamy. 50. See Feminism & Islam: Legal and Literary Perspectives (Mai Yamani ed., N.Y.: N.Y.U. Press 1996); Amina Wadud, Womenand the Qur'an: Rereading the Sacred Textfrom a Woman's Perspective (2d ed., N.Y.: Oxford U. Press 1999); see also Ziba Mir-Hosseini, Islam and Gender: The Religious Debate in ContemporaryIran (Princeton, N.J.: Princeton U. Press 1999).
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between societies and nations. Rentlenhas generatemiscommunication shown that rights enumerated undera moral system differentfrom the secular rights system, does not necessarily derogate it from being albeit rights in a differentsense.51 The rights-based notion of "rights," humanrights advancedby Donelly, it shouldbe remembered, based is on a Western understanding and experience of what it means to be human, which excludes the understandingof "human"nature and in relationships other cultures. The humanrights culturetoday has to address the fact of postcolonialism. It is also part of a process of globalizationthat has hegemonic designs on the part of economically Westernnationsto incorporate many compatiblepolitical as advantaged entities into a unified economic world.52Cooke and Lawrenceask the relevantpoliticalquestion,albeitin rhetorical fashion. In the context of Westernglobal hegemony under siege, can humanrightsever find expression exceptas a reflex of powerso that for but pervasive it feels no need to account its own interests, and of only forthedeviance non-compliance others?53 In recent years the hegemony of market capitalism and the globalizationof Westernpolitical culture has witnessed the abuse of humanrightsdiscourse. It has become a political weapon in the hands of powerful nations in order to subdue emerging nations and those communitiescontestingthe monopoly of global political power. The United States in its military adventuresabroad has openly violated humanrights conventions,just as some of its ThirdWorld allies have committedabusesthatremainunpunished the world community. At by the same time, countriesnot friendlyto Westernpowers are subjectedto sanctionsand international isolation for humanrights offences. Some Islamicnationsareat the forefront contestingthese contradictions of and issuing jeremiads of Western double standards,often for the wrong reasons,andmainlyto justify theirown humanrightsabuses. This state of affairs results in a monumental,unrelentingly bleak account of the statusof humanrights in the international discourse. Neither does the unremitting concentration of Western antipathy about Muslims'
51. Alison DundesRentlen,TheConceptof Human 343 Rights,83 Anthropos (1988). 52. RobertW. Cox, A Perspectiveon Globalization, Globalization: in CriticalReflections24 (JamesMittelmaned., Boulder,Colo.: Lynne RiennerPublishers1996), states that "Globalism and globalization arose togetheras orientations thoughtand action." See also Bassam Tibi, for Islam and the CulturalAccomodation Social Change (Clare Krojzl trans., Boulder, Colo.: of WestviewPress 1990). 53. Miriam Cooke & Bruce B. Lawrence,Muslim WomenBetween Human Rights and Islamic Norms, in ReligiousDiversity and HumanRights 313 (Irene Bloom, J. Paul Martin& S.C.: Colum.U. Press 1996). eds., Columbia, WayneL. Proudfoot
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the essentialinabilityto acceptof humanrightshelp to further languages moralandpoliticaldiscourse. for meaningful The global and universalist aspirations of the human rights movement raises thorny issues of cultural relativism versus universalism. The transferof humanrightsfrom one culturalsettingto anothermay be possible, but whetherit delivers satisfactoryresults is altogether another question. Culturalrelativists, like Rentlen, and argue that the differences between secular Islamists, like Ghannuishi, humanrightsand Islamicduty-basedtheories of rights are rights-based
negligible and at best semantic, but not real.54 Western human rights can
function within non-Westernsocial, moral and political systems. It requiresus to grasp the meaning of human rights as a "cumulative political struggle,"says Ashcraft.55 When the Universal Declaration was announcedthere was resistance to it in certain African, Asian, socialist and Muslim countries. Already that was an early indication that the mechanicaltransferand graftingof rights discourse from one culturalcontext to anothercould not be done mechanically. For this reason the United Nations adopted the InternationalCovenant on Covenant on Economic, Social and CulturalRights and International both came into force in 1976 in orderto give Civil and PoliticalRights, attentionto rights that UDHR did not fully explore. Irene Bloom, struggle"that echoingAshcraft'sidea of humanrightsas a "cumulative needs to be understood in its historical, sociological and political dimensions,writes: truthemergingfrom the complex Here we find an unmistakable of religion and humanrights: despite the universalism reality implied in its premises and affirmedin its achievements,the that itselfentailsstruggles mustbe carried human rightsmovement on in manypartsof the worldin responseto particular problems and conditions,with the energyand couragefor such struggles coming from individualswho, while ultimatelysharing some often drawon religiousresources commongoals and aspirations, diverse.56 andirreducibly thatremain richly
ORDER RIGHTS TO WINDOW A HUMAN ISLAM'S Raimundo Pannikar, a Catholic thinker, has addressed the issue of human rights in a multi- and cross-cultural context in a helpful manner.
54. Rentlen, supran. 51, at 345.
55. Richard Ashcraft, Religion and Lockean Natural Rights, in Religious Diversity and Human Rights, supra n. 53, at 209. 56. Irene Bloom, Introduction, in Religious Diversity and Human Rights, supra n. 53, at 10.
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Insteadof tryingto transliterate conceptof humanfights into another the culture,he suggeststhatwe shouldrathersearchfor the homeomorphic equivalentfor humanrightsin anotherculture.57If the goal of modem humanfights is to protectand show respectfor humandignity,then we shouldinvestigatehow a particular culturesatisfies thatneed. Needless to say, just as traditionis not static but constantly re-invents itself, similarly the culturalequivalentfor human fights is not fixed. Only after we have establishedconsensusarounda mutuallyunderstandable intercultural languageabout,say, humandignity,can a genuinedialogue and moral conversation take place. The language of international law may allow inter-governmentaldiscourse or conversations among into cosmopolitanelites to occur,but that does not necessarilytranslate a successful inter-cultural dialogue. Humanrights, to use Pannikar's simile, are but one "means"or "window"through which a specific cultureenvisagesa just humanorder. Those who inhabitsuch a human fights culturedo not necessarilysee that"window"andthen erroneously assumethe panorama be theirhome. Furthermore, to otherculturesmay have differentkinds of windows that provide a differentangle on the
view.
Some interpretations Islamic ethics, as discussed above, may of seemingly appear to be incompatible with secular human fights. that However,thereare otherapproaches may be able to find a common and a modicum of compatibilitybetween Islamic fights and language secularrightssystems. A revisionistor reconstructionist stancetowards the Islamic juristic legacy may be the most suited approach to accomplishsuch a challenge. ReformistandrevisionistMuslimthinkers take into account the sociological, economic and political transformations have occurredin Muslim societies. This empirical that reality is then brought into dialogue with the tradition in a bid to reinventit for newercontexts. To clarifythis point we might explorean importantpresumptioncommonly ignored by Muslim thinkers: the tension that exists between the notions of "status"and "contract" in Islamic law. It becomes evidentthat some of the Muslimthinkerscited above, such as Nasr and Brohi in their respective explanationsendorse the presumption it is the "status" the individualwhich determines that of a body of reciprocal in obligations,dutiesand responsibilities traditional societies.58In modem societies, perhapsless so in traditional societies,
Is 57. Raimundo Pannikar, the Notionof HumanRightsa WesternConcept?,120 Diogenes
78 (Winter 1982).
58. NorbertRouland,Legal Anthropology 124, 228 (Phillipe G. Planel trans.,London:The

Athlone Press 1994).
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"contract" the operativemeans of exchange,where the individualis is seen as a separateentity that exercises independentauthority.59Most anthropologistsagree that there is no chronological sequence from "status" to "contract,"but that societies are characterizedby the predominanceof one model over another. Most societies contain and "contract", though the formeris more a practicesof both "status" feature of traditional societies and the latter of modem ones. Nevertheless, it is observable how the effects of colonization, for traditional"status"societies into the "contract" instance, transformed model, by instituting centralized authority, bureaucratization, introducingwritten constitutions,legal codification, rule of law and notions of citizenship.60 On the other hand we observe that when societies into and regimesreversedemocratic dictatorships authoritarian occurs.61 to autocratic systems,the shift from"contract" "status" Any discussion of Islamic law and ethics must acknowledgeand recognize the broader political and economic system that regulates Muslim societies varies people's lives. The nature of contemporary as or -'status" "contract," well as betweenmodels that are preponderant variant hybrids of the two systems.62 To the extent that a society successfully implementsa political system that resembles a contract to modelbetweenstateand citizen, it may be morepredisposed interpret Islamic law as compatiblewith contractand hence open to modem humanrights. In such instances,the Islamic "text"would be read as supportingindividual liberty, given that traditionalIslamic law does in make provision for the will of the individualto be authoritative a In contract.63 places where society, ethnicity,religion,class and gender,
59. Id.
60. See Said Amir Arjomand, Religion and Constitutionalism in Westertl History and in Modern Iran and Pakistan, in Political Dimensions of Religion 69-99 (Said Amir Arjomand ed.,
Albany,N.Y.: S.U.N.Y.Press 1993). 61. For instancea dictatorship politicalclass, an ethnicgroupor even may favora particular than becomesmoreimportant the armyfor politicalprivileges. Thus,the statusof the beneficiary into therightsandcovenantthatthe politicalentityhas entered with its subjects. 62. Most of the Sunnischools of law, with the exceptionof the Hanafischool, insist that an withoutthe consentof her guardian.This is a clearexamplethat adultwomancannotget married as her"status" a womanis crucialin denyinghercontractual accordingto the capacityin marriage juristsof those schools. These very same schools, however,would allow a woman (who lacks withoutany impediments. and marital property capacity)discretion capacityto dispenseor acquire is In this instanceproperty regulated accordingto notionsof contract. Similarly,the distinctions thatIslamiclaw makesbetweenpenaltiesandobligationsfor women,slaves, and free personsall are suggestthatstatusconsiderations operative. Yusuf Musa, The Liberty of the 63. For the status of individualliberty see Muhammad
Individual in Contracts and Conditions according to Islamic Law (pts. 1 & 2), II Islamic Q. 79-95 (July 1955), II Islamic Q. 252-263 (Dec. 1955); see also S.D. Goitein, Individualism and Conformity in Classical Islam, in Individualism and Conformity in Classical Islam 3-17 (Amin
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largely determinesthe reciprocalduties and obligations,not the will of the individual, such Muslim communitieswould find the concept of "status"abundantlyevident in the traditionalinterpretation Islamic of law, mainly to reinforcetheir social conditionsand expectations. Such communitiesmight find modem humanrights to be too individualistic with theircommunitarian and incompatible cultureand religiousvalues. On the other hand, where Muslims live in democratic and liberal political contexts they may be more inclined to elicit the "contract" model in the Islamic legacy. It is thereforenot surprisingto find that Muslims,who live as minoritiesin Europe,as well as in economically would easily endorsemodem developedor rapidlydevelopingcountries, humanrights notions to be compatiblewith Islam. Despite bourgeois the flaws in the UIDHR, it is significantto note that it was Muslims in Europewho adoptedit. It should become evidentthat nothing about either the Islamic or the secularhumanrightstraditions make them inherentlycompatibleor with each other. In fact, it is the locationof the interpreter, incompatible the readingof the text and the social conditionsthat generatedifferent responsesto issues such as humanrights. Pluralityis a featureof living traditions. Brohi and Nasr, who are opposed to the anthropomorphic who states that nature of modem human rights, and al-Ghannuishi of anyone "who has a good understanding his religion"will not find a problemwith secularhumanrights,constitutetwo diametrically opposed and interpretations both the Islamic traditionand the of perceptions context. Most Muslimscholarswould arguethatthe pith contemporary of the modem humanrights debateis aboutthe preservation human of even though some secularist proponents would dignity (karaima), disagree. The Qur'an and the teachings of the Prophet explicitly entrench human dignity as a fundamentalethical norm in human conduct. Islamiclaw and ethicshave an established philosophythatwas to protecthumandignity. designed In theory,whatevermeanswere used in the past to protecthuman dignity can undergochange, providedthe new measuresgive effect to justice and fairness,since the essence of the sharta is justice. We have to consider,says a contemporary "thatwhich is more mufti(jurisconsult) convenientand betterfor people, as long as God had commandedus to act with justice and equity ('ad) without limiting us to the means of
Banani& Speros Vryonis Jr. eds., Wiesbaden: Otto Harrassowitz 1977) (presentedat the Fifth Giorgio Levi Della Vida Biennial Conference;RichardW. Bulliet, The Individualin Islamic
Society, in Religious Diversity in Human Rights, supra n. 53, at 175.
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achieving this justice and equity ('ad/)."64 Long before him, the noted fourteenth-centuryjurist belonging to the Hanbali school, Ibn Qayyim al-Jawziyya (d. 751/1350), eloquently made what could be termed a revolutionary statement in defining the meaning of sharf a: The foundationof the sharTa is wisdom and the safeguardingof people's interests in this world and the next. In its entirety it is justice, mercy and wisdom. Every rule which transcendsjustice to tyranny, mercy to its opposite, the good to evil and wisdom to triviality does not belong to the sharfa although it might have been introduced into it by implication. The sharTa is God's justice and mercy amongst His people. Life, nutrition,medicine, light, recuperationand virtue are made possible by it. Every good that exists is derived from it, and every deficiency in being results from its loss and dissipation. For the sharTa, which God entrusted His prophet to transmit,is the pillar of the world and the key to success and happinessin this world and the next.65 Ibn Qayyim also stated: God had sent His Prophetsand revealed His books so that people can establishjustice. It is the truthon which the firmamentof the heavens and earthrests. When the indices of truthare established; when the proofs of reason are decided and become clear by whatever means then surely that is the Law of God, His religion, His consent and His command. And God the sublime has not limited the methods and sources of justice and its indices in one genus [of methods] and invalidatedit in other methods, which are In fact, He more clear, more explicit and self-evident. demonstratedin His methods as contained in His legislation that His goal was to establish truth and justice and ground people in equity. So by whatever means truth is discovered and justice is known, then it is obligatoryto rule by the dictates and compulsion of these two [notions]. Methods are but causes and means which are not desired in themselves, but for their ends, which are the objectives (maqaiid) [of the law] . . . .66 Some contemporary revivalist and revisionist Muslim thinkers would happily endorse the views of Ibn Qayyim and announce the compatibility of Islam and modem rights discourses. However, the
64. Al-Fatiwa al-Islamiyya, vol. 8, 3032 (Cairo: al-Majlis al-A'la li' l-Shu'iin al-Islamiyya 1403/1983-1984). 65. Ibn Qayyim al-Jawziyya, I'lain al-Muwaqqi'hn 'an Rabb al- 'Alamin vol. 3, 3 (Taha 'Abd al-Ra'uif Sa'd ed., Beirut: Dar al-Jil n.d.); see also Subhi Mahmasani, Falsafat al-TashrF fi'l-Islam 220 (5th ed., Beirut: Dar al-'Ilm 1980). See also the same book translated by Farhat J. Ziadeh, Philosophy of Jurisprudence in Islam 106 (Leiden: E.J. Brill 1961). 66. Al-Jawziyya, I'lam al-Muwaqqi 'm 'an Rabb al-' Alami, supra n. 65, at vol. 4, 373.
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like those offeredby Ibn Qayyim is not mere adoptionof formulations enough. At best the statementshows that in earliertimes a criticaland courageouslegal scholarshipdid have a place in Muslim society. At worse Ibn Qayyim's views can serve as an apologetic to satisfy the "Islamhas all the answers" nostrums. On the positive side the apologia relief and providessome legitimacyto efforts providessome short-term in of juridicalreconstruction drawingon eminentauthorities the past. of The long-termhealth of Islamic jurisprudence, can only be however, furtheredif, and when, a substantialrevision of Muslim legal theory takesplace. Some of the rethinking takesplace can be gleanedfrom that the small-scale social experimentstaking place in Muslim minority contextssuch as SouthAfrica.
ISLAM AND HUMAN RIGHTS IN SOUTH AFRICA
In SouthAfrica,partof the Muslim communitywas guidedby an understandingof the sharFa, that carried a sense that a religious imperativeis also a just one. A numberof Muslims, along with their secularand other compatriots belonging to other religions opposed the policies of enforced legal racial segregation known as apartheid. Muslims in South Africa are estimatedto numberclose to a million people.67The earliestamongthem descendedfrom East Asia, from the islands near modem Indonesiaand Malaysia and were broughtto the Cape of Good Hope in the seventeenthcenturywith the earliestDutch colonizers. Another group from the Indian sub-continentarrived as indentured laborersand some as tradersin the middle of the nineteenth At variousperiodsin the twentiethcentury,manypersonsfrom century. a Muslimbackground in participated resistancepolitics from a secular platformand attainednationalprominence. However in the last four decadesof the twentiethcenturythere has been a noticeablegrowth of Muslim political activists and groups motivated to participatein the political struggle on the strengthof their religious convictions. They were influencedby pan-Islamic revivalistdiscoursesemanating fromthe MiddleEast and South Asia. Among the main revivalistgroups is the in MuslimBrotherhood Egyptandthe JamatIslamiin Pakistanthathave been influential an international on scale.68
& Gruchy Martin Prozeskyeds., CapeTown:DavidPhilip1995). (CapeTown:U. of CapeTownPress 1995).
67. See Ebrahim Moosa, Islam in South Africa, in Living Faiths in South Africa 129 (John de 68. See Abdulkader Tayob, Islamic Resurgence in South Africa: the Muslim YouthMovement
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Within the South Africancontext, groups like the Muslim Youth Movement,the Call of Islam, as well as the ultra-radical group Qibla Mass Movementspearheaded role in constructing Muslimethos of the a liberation. Togetherwith independentprogressive clerics as well as those affiliatedwith the Muslim JudicialCouncil (MJC), these groups provided an Islamic rationale-based on juristic and theological arguments-to resist oppressionand political injustice. These efforts culminated in a number of religious declarations that condemned as apartheid an illegitimatepolitical orderin terms of Islamic law and ethics.69In contrastto the Muslimprogressives,the traditional'ulama' groups functioningas organizedcouncils of theologians did little to issue any guidance to the Muslim community on how to deal with in apartheid terms of an Islamic ethos.70 Individualclergymenin their individualcapacityfrom time to time took anti-apartheid positions. It was only from 1984 onwards,and that too only in specific instances, that Muslim clergy groups under pressure from the younger Muslim and progressivesfelt the need to issue statements offer minimalpastoral guidanceon mattersrelatedto raceandIslam. The task of formulatingthe equivalent of a Muslim liberation of of theologylargelyfell on the shoulders a youngergeneration 'ulami' and activistsunderthe influenceof Islamicrevivalismin the 1980s who elements of a contextual Islam in began to describe the rudimentary SouthAfrica. Priorto this, much of SouthAfricanrevivalistIslam was the viewed through prismof the large-scalevision anduniversalgoals of that the pan-Islamism romanticized coming of a global Islamicorder,in which the adventof the Islamicstatewas but the first stage. Thatvision in abandoned the searchfor an Islamichumanrightsethos was gradually within a South African context. Challengedto combat racism and advancehumanrights,a few Muslimintellectuals began to rethinksome of the fundamental questionsof whatit meantto be a Muslimin a multiculturaland multi-religioussetting. Many of the exclusivist notions of "self' and "other" inherited from traditionaltheology came under criticalscrutiny. Muslim ethics in this context embracedthe humanist contextsharedwith multiple"others."The aspectsof Islamin a cultural injunction that humanity was a "single family" acquired Qur'anic greater prominence and began to overshadow the inherited Muslim
Islamand Liberation Elements 69. See AsgharAli Engineer, Theology: Essays on Liberative in Islam(New Delhi:SterlingPublishers & 1990);FaridEsack,Qur'in, Liberation Pluralism:An IslamicPerspective Interreligious of Solidarity (Oxford:OneWorld 1997). againstOppression in 70. See Ebrahim Moosa,MuslimConservatism SouthAfrica,69 J. Theologyfor S. Africa 73 (Dec. 1989).
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theological formulations that promised salvation for Muslims exclusively. Graduallyand almost imperceptibly somethingmore far-reaching was takingplace fromthe periphery the Muslim world, SouthAfrica. of Most of the inherited juridicalandtheologicalteachingsarepremisedon a model where Islam serves and advances the interests of an empire. of empire,many of the assumptions Despite the collapseof the Ottoman to empireas well as aspirations re-inventthe empirepersist in Muslim and multi-religiousSouth Africa, Islamic thinking. In multi-cultural of gave way to more universalor humanistinterpretation particularism Islam. This meant that for a generationof conscientious Muslims, freedomof belief and consciencewas an absoluteand unfetteredright, not only to believe but also the freedomto make one's choice of faith. Serving anotherhumanbeing became as importantas serving a person of one's own faith. Any humanbeing could be the beneficiaryof a Muslim's deeds and vice versa. Most conscientious Muslims under whereracismoppressedthe majorityof non-Muslimsas well apartheid, as a few Muslims,felt thatthis immoralpracticehad to be resistedand combatedbecause it was deemed an affront to a common humanity. Self-servingethnicand religiousinterestshad to be cast aside on moral grounds since they conflicted with the universal vision of Islam. In short, racial injusticeclashed with the vision of Islamic justice. The traditional continuedto clash with Muslim clergy ('ulama') nevertheless progressives over the emerging interpretations. They felt that the emergence of a humanist Islamic ethics as advocated by Muslim the progressivesthreatened very foundationsof traditionalnotions of "self' and "other" and issued loud protestations against such
reinterpretation.71
For the Muslim progressives, one thing led to the other. to that Consistency,as well as a commitment racialjustice, also required one could no longerignoregenderinjusticeperpetuated tradition and by of the constructions malejurists over the centuries. Women,who have suffered in all societies, were entitled to equality and freedom that acknowledged their humanity, not in rhetorical platitudes and triumphalistslogans, but in demonstrableaction. This meant that discriminatoryaspects and practices found in Islamic law towards women had to be replacedwith newer and more equitablesolutions. In this regardthe license that Islamiclaw allows for the adjustment the of law to new contexts and changing conditions throughthe process of
71. Id.
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creative legal reasoning (ijtihad) and renewal (tajdid) came to good effect. Outside the specific example of South Africa, it is evident that most Muslim societies are gradually moving in the direction of establishing social relationships on the basis of "contract,"and thinkers increasingly abandoningnotions of "status." Contemporary the Islamicnotion of leadership(imama)to mean a interpret traditional form of "social contract" ('aqd) between the rulerand the ruled.72The need to make the leap from personal governmentof the pre-modem imama model, to governance by means of an impersonal state, is actuatedby a need in contemporaryMuslim societies to fetter the powersof rulersand subjectthemto the scrutinyof the citizenryor their elected representatives. This interpretative innovationbrings Muslim political thought closer, albeit haltingly, to modem forms of of representative government which democracyis only one amongmany even thoughin a worldin which marketliberalismis triumphant models, it may appearto be the only model. In such a model the notion of citizenshipwill replace the idea of a political "subject". Citizenship becomes a normthatis graftedonto Muslimpolitical and constitutional jurisprudence. For some, this holds a promise that the nation-state, whose citizen enjoyed certain rights and obligations irrespective of religious,ethnicaffiliationand number,could become compatibleto an Islamicethos.73
CONCLUSION
The humanrightsdiscoursein Islam has undergoneseveralphases producing a kaleidoscope of views ranging from those that equate Islamic human rights with the secular rights discourse to those who claim thatthe two are radicallydifferent. I have shown thatthe concept of rights imagined in the early period of Islam, renders aspects of inherited notions of ethics incompatible with the modem rights discourse. On the other hand, those thinkerswho do equate Islamic rights discoursewith humanrights do so without explainingwhy and of how they abandonthe presumptions the pre-modemIslamic rights that they operate within a paradoxical discourse. The result is theoreticalframeworkthat displays its deficiency in several instances
72. Hurriy,t, supra n. 5, at 140. 73. Id. at 290; Abdullahi Ahmed An-Na'im, Islamic Law, International Relations, and Human Rights: Challenge and Response, 20 Cornell Intl. L. J. 317 (1987); Abdullahi Ahmed AnNa'im, Religious Minorities under Islam Law and the Limits of Cultural Relativism, 9 Human
RightsQ. 1 (1987).
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when Islamichumanrightsareputto the test. I have arguedthat Muslimjurists and thinkersmust acknowledge that quantum shifts have occurred in both human society and our inheritedconceptionsof "self' and "other",in addition to a range of othercategoriesnot discussedabove. These arenot staticcategoriesand they imperceptibly undergochangewithinthe Islamictraditionover the centuries. In order to produce a credible version of human rights in dialogue with both the traditionand the present, a fundamentalrethinkingneed to takeplace.

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The Dilemma of Islamic Rights Schemes Author(s): Ebrahim Moosa Source: Journal of Law and Religion, Vol.

THE DILEMMA OF ISLAMIC RIGHTS SCHEMES

Desk (Jan.26, 2000).

in 5.1 StanfordElec. HumanitiesRev (Spring 1996). (http://www.stanford.edu/group/SHR/51/text/toc.htlml)

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6. Fazlur Rahman, Internal Religious Developments in the Present Century Islam, 2 J.

WorldHistory862, especially872-875 (Nov. 1955).

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centuriesago that the Prophetdeclaredthe world's first human rights

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[I]n essence, the believer has only obligations or

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Classical Islamic law prohibits conversion out of Islam to another

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58. NorbertRouland,Legal Anthropology 124, 228 (Phillipe G. Planel trans.,London:The

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& Gruchy Martin Prozeskyeds., CapeTown:DavidPhilip1995). (CapeTown:U. of CapeTownPress 1995).

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