Essay Title: Discuss
with reference to Islamic law/tradition: ‘The origins of Human Rights as
defined in the Universal Declaration on Human Rights, necessarily mean that
these rights are not or cannot be truly universal.’
Aafreen
Khan
January 2002
I attempt here to explore of the relationship between the universal claims of human rights and the traditional values/beliefs rooted in Islam. I refer to various Universalists and Cultural Relativists and rely heavily on the works of Islamic human rights scholars such as An-Na’im, Bielefeldt and Safi. In order to discuss areas of conflict between the Islamic normative tradition and human rights as well as focusing on the different positions advocated by Muslims to deal with these conflicts. I also wish to discuss briefly the significance of human rights for Islamic countries in the post-September 11th world.
First one must
distinguish between the two senses in which the term “human rights” is often
used. In popular discourse, the term is frequently used to refer to an
instinctive understanding of the requirements or implications of historical
struggles for freedom and social justice in general. But as used here, the term
human rights refers to the particular conception of freedom and social justice
articulated in the Universal Declaration of Human Rights (UDHR) of 1948, and
elaborated on in consecutive treaties and effectuated through a variety of
implementation mechanisms.
It is Article 1 of
the UDHR, which emphasises the aspect of human rights most intensely
debated--their claim to universality. In its preamble, the Universal
Declaration accentuates the global importance of human rights as "a
common standard of achievement for all peoples and all nations" and as
"the foundation of freedom, justice and peace in the world."
This statement is echoed in the Vienna Declaration and Programme of Action, which reaffirms the status of the UDHR as a "common standard" for everyone. Adopted in June 1993 by the United Nations World Conference on Human Rights in Austria, the Vienna Declaration continues to reinforce the universality of human rights, stating, "All human rights are universal, indivisible and interdependent and interrelated". This means that political, civil, cultural, economic and social human rights are to be seen in their totality. The notion that human rights are universal also stems from the philosophical view that human rights are inextricably linked to the preservation of human dignity. This means that respect for individual dignity is due equally to one and all, regardless of circumstance. As if to settle the matter once and for all, the Vienna Declaration states in its first paragraph that "the universal nature" of all human rights and fundamental freedoms is "beyond question".
Therefore human rights as enshrined
in the UDHR entail a universalistic claim in that they refer to all human
beings. This cosmopolitan claim, though, has provoked the charge that such
universalism only obscures the global dominance of a particular culture--the
cultural imperialism of Western states. Are human rights, as some critics have
alleged, only "a Western construct with limited applicability?"
(Pollis & Schwab eds: 1979). In order to assess this statement
on has to elaborate on statements from cultural relativists, and universalists
that continue to stress the unquestionable nature of the UDHR. The origins of
the UDHR and the conditions/time in which it was conceived of are also of vital
importance.
The appearance of the Universal
Declaration fifty years ago coincided with the vociferous humanist claims of
the West, which had recently prevailed in the struggle against fascism and
still retained much control over non-Western civilizations. It replaced Locke’s three generic
rights – life, liberty and property – with more 59 specific rights. In adopting the Declaration the delegates to the UN General Assembly
established a common set of principles, according to which human rights
practices of individual member states could be measured. Although these
principles were not initially binding on UN member states, they initiated an
international legal system in the sphere of human rights. In the meantime and
following the UDHR, a global human rights regime has emerged consisting of
numerous international conventions, specific international organizations to
monitor compliance, and regional human rights arrangements. According to Faulk,
international human rights have become constitutive elements of modern and
‘civilized’ statehood.
The modern concept of human rights, principally associated with Western
patterns of thought and practice, is rooted in the seventeenth century, at the time of the
‘Enlightenment’ and associated with the liberal theory of John Locke. Lockean
theory of natural rights to life, liberty and property emerged as an opposition
to arbitrary power. Basically his theory was based on the concept that rights
were natural, God-given, and it was the Government’s duty was to protect these
rights. The
centrality of the human being was stressed and the autonomy of the individual
elevated to the highest value; rights become essentially a means of realizing
that autonomy. Each individual is, in a sense, absolute. He or she is
irreducible to another and separated in his or her autonomy from society.
The UDHR was therefore, an instrument developed by European industrialized nations, based on their ideas of the concept of "natural law" and on their system of thought. Some argue that this makes these standards inapplicable to the rest of the world, especially not to nations historically dominated by Europe. Indeed the UDHR was challenged later by former colonies that had not been involved in the Declaration’s inception. These colonies after winning various anti-colonial struggles, then engaging in the daunting tasks of state building and economic development, implied in an indirect challenge that human rights (and democracy) were not a priority for newly independent societies confronting massive poverty and underdevelopment. It was often argued that order, more than freedom, was the precondition for sustained economic development, which in turn was necessary if massive poverty was to be reduced in the face of a rapidly expanding population. (Faulk: 2000)
However, from its very xisted much
diversity among the 58 member states of that time. The largest group of
countries was the Latin American contingent—21 of 58 U.N. members. There were
six members from Asia (giants like China, India, and Pakistan, plus Burma, the
Philippines, and Siam). Islamic culture was predominant in nine nations
(Afghanistan, Egypt, Iran, Iraq, Pakistan, Saudi Arabia, Syria, Turkey, Yemen).
Three countries had large Buddhist populations (Burma, China, Siam). Many of
the previously excluded countries, later ratified the
UN charter and subscribed to various international instruments that elaborated
upon UDHR and were therefore, bound to all earlier documents as well as ones
they had participated in from the beginning.
Regardless of
historical origins, the Universal Declaration specifies rights beyond the
familiar liberal Western individual rights of life, security, and freedom of
speech, assembly, religion, and conscience, to include rights that limit state
action (including prohi
community life and benefits (Article 27), and fulfilling one’s duty to community
(Article 29). According to the Universal Declaration, human rights include not
only liberal rights but also ways of organizing society.
However, from its very r parents (Article 26), sharing in
community life and benefits (Article 27), and fulfilling one’s duty to community
(Article 29). According to the Universal Declaration, human rights include not
only liberal rights but also ways of organizing society.
However, from its very inception cultural relativists
who dispute its claim to universality have critiqued the UDHR. The paradigmatic
expression of this view was elaborated by the Executive Board of the American
Anthropological Association, in a response to the preparation of the UDHR by
the United Nations. This stated that:
"Respect for differences between cultures is validated by the scientific fact that no technique of qualitatively evaluating cultures has been discovered ... Standards and values are relative to the culture from which they derive so that any attempt to formulate postulates that grow out of the beliefs or moral codes of one culture must to that extent detract from the applicability of any Declaration of Human Rights to mankind as a whole ... The rights of Man in the Twentieth Century cannot be circumscribed by the standards of any single culture, or be dictated by the aspirations of any single people" (1947, 542-3).
The association between human rights and power is also a frequent theme in accounts of imperialism, colonialism and neo-colonialism, of East-West relations during the Cold War, and of North-South relations today. For example, Chomsky and Herman (1n>In adopting the Declaration the delegonialism on the one hand, and in concealing and disguising the contrary practices of imperialist powers on the other, while Shivji (1989) suggests that the role of human rights ideology has functioned to perpetuate colonial and neo-colonial domination and oppression in Africa. As Chokr elaborates cultural relativists see the UDHR as particularizing rights and freedoms that are culturally, ideologically and politically non-universal. They argue that fundamentally, current human rights norms possess a distinctively “Western” bias, and hence are an “ethnocentric’ construct with limited applicability, if at all. There is a wide diversity of non-Western moral and justice systems embedded in their respective cultures, which seem to conflict with the Western systems and the human rights derived from them. Any adequate and viable theory of human rights must, they argue, take into account such diversity.
The characterisation of the dominant idea of human rights as a
"Western bias" has therefore become routine in the contemporary
literature on culture and human rights. For example Pollis and Schwab criticize
what they see as a cultural and ideological ethnocentrism in the area of human
rights and human dignity. In their
view, the UDHR is “universal” only in pretension, not in practice, since it is
the charter of an idealist European political philosophy “with underlying
democratic and libertarian values, based on the notion of atomized individuals
possessed of certain inalienable rights in nature” (1979:1,8). However there exists the notion of “group”
or “community” rather than that of the “individual” in many cultures, therefore
they conclude that “the Western conception of human right is not only
inapplicable” and “of limited validity,” but even “meaningless” to Third World
countries (1979:13).
On the other hand, universalists argue that
human rights are special entitlements of all persons –regardless of culture,
race, sex, religion, gender, etc. They
are grounded in human nature (a Western conception) and as such, are universal
and inalienable. “To have human rights,
they argue, one does not have to be anything other than a human being,” as a
common phrase goes (Donnelly, 1982; 1989). The alleged or presumed universality
of human rights is what gives the concept much of its authority and aura.
Universalism’s point to the most disturbing use, or rather abuse, of cultural
relativism is that it is often an argument of those governments who actively
oppose the application of international human rights standards in their
countries. Cultural relativism is often “one of the most useful ideology” in
mounting a defense and bringing about international compliance in state
violations and repressions (Wilson:1997:9).
Unsurprisingly there exist many cultural
relativists among Muslim human rights scholars. They
have been most concerned with the exclusion of religious perspectives from the
human rights discourse since the adoption of the UDHR, which has diminished the
moral force of claims of the universality of human rights. As Tamimi regards
it, the secularist
discourse on human rights undermines Muslim identity by negating, in the name
of universalism, the right of Muslims to any cultural specificity. To prove
their respect for human rights, Muslims are told they must embrace modernity.
The price they are expected to pay is to re-think their religious convictions
or reinterpret their sacred texts so as to conform to international standards
and universal values. For example, Tamimi articulates
an experience of his, a
live TV debate between himself and the assistant to the Secretary-General of
Amnesty International. The Amnesty official insisted that the Universal
Declaration was binding upon all and that it was Islam that needed to be
reinterpreted to reconcile it with the Declaration. The spokesman for Amnesty
found it more shocking to cast doubt on the universality of the UDHR, than to
cast doubt on the validity of divine revelation. It is not surprising,
therefore, that some Muslims regard the human rights movement a post- colonial
tool of cultural imperialism.
In Bielefeldt’s experience, conservative Muslims frequently perceive any commitment to the implementation of human rights as a new Western "crusade." That is, they fear that human rights are part of an all-encompassing ideology or way of life that is intended to eventually replace Islamic faith and practice. In order to avoid such a misunderstanding, Bielefeldt repeatedly stresses the limited scope of human rights. Human rights cannot offer any answers to the existential questions of human life and death, they are not intended to frame all aspects of human life, and they do not pretend to absorb or supplant all traditions. Their focus lies on basic political and legal institutions; in other words, human rights are not, and should not be presented as, an international "civil religion."
Ultimately the validity of universal human rights is bound
to be questioned in Islamic societies,
which believe in the supremacy of cosmological theocentric revelation over
human-centred reason. Whereas in the West, law has developed from and been
modelled by society, Islamic law precedes and models society. Islam emphasizes
duties not individual rights, however the UDHR presumes that individuals are
the key unit of society. For example to quote Article 1, it proclaims that "All human beings are born free and
equal in dignity and rights," and the articles that follow guarantee
individuals the rights to life, liberty, security, legal recognition, and
freedom from arbitrary arrest, detention, or exile. They ensure rights to free
speech, thought, and religion, to peaceful assembly, to marry one’s choice, to
education, to free choice of employment, to rest and leisure, and to an
adequate standard of living. Though these latter rights clearly depend on
social life and the Declaration notes the role of the community in each
individual’s personal development; Article 28 affirms that ‘Everyone is
entitled to a social and international order in which the rights and freedoms
set forth in this Declaration can be fully realized.’ Such language seems
to make society subservient to the individual, rather than the other way
around.
Islam, for example, has a more communal sense of
social life than do the European principles out of which human rights beliefs
have evolved. Where Christianity especially Protestantism, sees individuals
solely responsible for their sins, Islam sees God commanding everyone to
maintain the social order. Where Enlightenment philosophers began with
individual sense experience, Muslim philosophers began with the nature of
community. Thus in Islam one may not have an absolute right to marry whom one
pleases, and Muslims arguably do not have the right to change their religion.
The Quran builds community around religion and marriage, making them not just a
matter of individual choice.
However neither does Islam abandon the individual; it just
provides different protections. Where human rights advocates seek to protect
individuals by using "rights" as lines beyond which governments
cannot go, Islam protects the person by emphasising the collective need to
maintain a fair society. Both consider that people need protection, but only
the former sees "rights" as the solution. In Jack Donnelly’s words,
‘the [Islamic] right to justice proves
instead a duty of rulers to establish justice, whereas the right to freedom is
merely a duty not to enslave unjustly. In fact, economic rights turn out to be
duties to earn a living and to help provide for the needy, whereas the right to
freedom of expression actually is an obligation to speak the truth; i.e., the
right is not an obligation of others but an obligation of the rights holder!’
(1982:306)
Traditional
Islam thus puts society above the individual, while still counting
"justice" as a core value. Human rights ideals, on the contrary,
presume the individual’s ultimate worth.
Probably the major area of conflict between universal human rights as
defined in the UDHR and Islam is over ‘Shari’a’ or Islamic law and
jurisprudence. The primary source
of which is the Quran. However, because the Quran contains general ethical
principles rather than detailed instructions, other sources must also be
consulted. Next to the Quran, the most important source is the practice of the
prophet Muhammad (SAW). His sayings: ‘Hadith’ and patterns of behaviour
collected in the ‘Sunna’ or tradition represent a binding model for Muslims. In
addition to the Quran and Sunna, other sources include consensus among Islamic
scholars, conclusions based on analogy, customary law, and the principle of
common welfare. By drawing upon these various sources, the Shari’a was formulated
during the first two or three centuries of Islamic history. Although the
Shari’a emphasises the equality of all the faithful before God, it
traditionally assumes unequal rights between men and women and between Muslims
and members of other religious communities. Hence, discrimination against women
and religious minorities continues to occur, and the level of protection of rights
under Shari’a is not
sufficient when judged by standards set by the UDHR, which requires equal
rights for all human beings, without distinction on such grounds as sex or
religion. In addition, Islamic
criminal law includes some forms of corporal punishment regarded as cruel and
degrading according to UDHR standards.
In analysing the status of women, human rights
thinkers and activists have emphasised the importance of human agency in the
construction of gender discrimination in Islamic societies and in the
development of certain elements of Shari’a Law. An-Na'im emphasises the human
as oppose to the divine basis of certain elements of Shari'a Law, highlighting
the distinction between (a) the provisions in the Quran b) the provisions in
the Hadith and (c) the interpretation, application, development and
codification of these standards. Hence for An-Na’im, Shari'a is not the whole
of Islam but instead is an interpretation of its fundamental sources. It is
best understood:
"through
a consideration for the impact of the historical context within which Shari'a
was constructed by the founding jurists of the eighth and ninth centuries out of
the original sources of Islam’ (1990: 165).
Similarly,
for Othman, what is at present accepted as a body of Islamic tenets and laws
concerning women does not rest solely on the Quran or on direct interpretation
of its text. It also includes references and interpretations from the Hadith
and Sunna, as well as accumulated interpretations (tafsir) of classical
scholars. In this way, Othman suggests that the Islamic paradigm of the ideal
role, status, and duties of Muslim women was largely derived form the tafsir of
male jurists and scholars - particularly those of the classical age of Islamic
civilisation (1999:178).
The importance of cultural and political variables
has also been emphasised in this context. According to An-Na’im the historical
restriction of the ‘other person’ to members of one’s own culture was done in
retaliation to one’s exclusion by members of other cultures. The exclusion of
women, he suggests was partly due to the prevalence of the use of force and
lack of the rule of law which made physical strength the decisive factor of
status and power. While Nanji suggests that certain rules codified into Shari'a
Law reflect patriarchal traditions that pre-dated the Quran Islam and that:
"the
development and occurrence of customs and practices of seclusion and veiling of
women were a result of local tradition and customs, occasionally antithetical
to the spirit of emancipation of women envisaged in the Qur'an" (1993,
109).
Indeed, some thinkers and activists go further,
suggesting that the rights introduced in the Quran provide a revolutionary
basis for a feminist agenda. For example, Fatima Mernissi a feminist and a
founding member of the Moroccan Organisation for Human Rights - is a leading
proponent of the view that Islamic ideas and traditions provide rich
foundations for ideas of gender equality and the human rights of women. She has
expressed the view that:
"... Muslim women can
walk into the modern world with pride, knowing that the quest for dignity,
democracy, and human rights, for full participation in the political and social
affairs for our country, stems from no imported Western values, but is a true
part of the Muslim tradition ... Ample historical evidence portrays women in
the Prophet's Medina raising their heads from slavery and violence to claim
their right to join, as equal participants, in the making of their Arab
history. Women fled aristocratic tribal Mecca by the thousands to enter Medina,
the Prophet's city in the seventh century, because Islam promised equality and
dignity for all, for men and women, masters and servants. Every woman who came
to Medina when the Prophet was the political leader of Muslims could gain
access to full citizenship, the status of ‘Sahabi’, Companion of the Prophet.
Muslims can take pride that in their language they have the feminine of that
word, sahabiyat, women who enjoyed the right to enter into the councils of the
Muslim umma, to speak freely to its Prophet-leader, to dispute with the men, to
fight for their happiness, and to be involved in the management of military and
political affairs. The evidence is there in the works of religious history, in
the biographical details of sahabiyat by the thousand who built Muslim society
side by side with their male counterparts" (1991:8).
While Mayer suggests whereas certain elements of
Islamic Law are often represented as theologically binding, eternal and
unalterable, these elements are in fact interpretations that can and do change.
Analysing the grounds of reservations entered by various governments to
international human rights treaties including CEDAW as part of a political
process, she suggests that justifications for these reservations often reflect
the view that there is a single requisite Islamic law. In reality, however,
personal status laws vary from one Muslim country to another and change over
time within one country and under different political administrations.
Furthermore, there is enormous interpretative variety on issues relating to
family law and on the question of precisely what Islamic sources instruct in
terms of status for women. However Othman recommends that the primary objective
of Muslim women's groups in their struggle for women's rights is not simply the
recognition of international treaties such as CEDAW. The importance of the
increasingly positive record of countries with large Muslim populations signing
and ratifying international human rights instruments cannot be denied. In
Othman's view, the need for Muslim women to relate their claims to their rights
under their own cultural and religious traditions including their rights under
Islam, is also fundamental:
"the
need for consensus within their own culture that the kinds of women's rights
they are advocating are indeed acceptable on the grounds of a public ethic
derived form their own cultural and religious sources" (Othman:1999:189).
An-Na'im has cautioned against approaches that
overlook the difficulties and complexities involved in reconciling certain
aspects of Shari'a law with modern international human rights law, and has
emphasised that it is important for human rights thinkers and activists to cite
those elements of foundational Islamic texts that give rise to areas of
theoretical ambiguity and conflict, as well as those that are consistent with,
and supportive of, modern ideas about human rights. He has stressed the
importance of evolving a human rights tradition from within the Islamic
normative system, and warns against any external imposition.
As Othman notes, these are complex issues involving
"the validity and hegemony of certain religious interpretations over
others, gender bias, patriarchy, and the politics of identity" (1999:191).
They can only be resolved through extensive internal debate within the Islamic
community.
An-Na'im (1990) has therefore called for
an Islamic Reformation (I do not think many traditional Muslims would be
inspired by the use of this very Christian term/concept). However, he advocates
a critical re-examination and reinterpretation of Islam's foundational texts,
with a view to removing the bases of discrimination against non-Muslims and
women,
and overcoming contradictions between the UDHR and shari’a rules. He proposes a reform methodology for Islamic law
based on a (claimed) distinction between Quranic verses from the Mecca and Medina
periods. According to An-Na’im the Meccan Quran embodies the eternal
principles of the Islamic revelation that emphasize human solidarity and
establish the principle of justice for all, regardless of religion, gender, or
race. The Medinan Quran, however, emphasizes the solidarity of male Muslims
above all others, thereby giving rise to discrimination against women and
non-Muslims. For this reason An-Na`im contends, one finds contradictions
between the Meccan and Medinan Quran. While the Meccan Quran emphasizes freedom of religion and the peaceful
coexistence among different religions, the Medinan Quran introduced measures
that discriminate against women and against non-Muslims. An-Na’im mentions the principle of naskh (abrogation) introduced
by classical jurists to discard early Quranic statements that appeared to
contradict later statements, An-Na`im calls for the application of reverse naskh,
i.e. the abrogation of the Medinan Quran whenever it contradicts the Meccan. An-Na’im has expressed the view that:
"once it is
appreciated that Shari'a was constructed by its founding jurists, it should
become possible to think about reconstructing certain aspects of Shari'a,
provided that such reconstruction is based on the same fundamental sources of
Islam and is fully consistent with its essential moral and religious
precepts" (1990, 179-181).
However this proposal simply seems to provide a quick fix to the
contradictions between historical shari`a and international human rights. Since the Quran, as An-Na`im himself agrees is considered by Muslims as
a divine revelation, one has to accept the totality of Quranic statements as a
single discourse. Therefore, one is not justified in abrogating the Medinan
verses altogether on the ground that they address a particular historical
society. Rather as Safi suggests one has to eliminate the possibility of
generalizing particular rules by demonstrating their particularity. Such a
procedure would permit one to arrive at the same result without rejecting
one-third of the Quran. Indeed negating the Medinan Quran would not be
acceptable by the bulk of Muslims, it
would could be regarded as heretical to many including those like myself, who agree
with An-Na`im that there should be a fresh reading of the Islamic sources so as
to effect a sweeping legal reform. Also many of the Quranic statements revealed
in Medina do not only comment on family matters and relationships with
non-Muslims, but also on issues relating to fundamental Islamic practices, such
as the performance of prayer, zakat, fasting, and hajj and simply
cannot be ignored.
I would consider
Safi’s a more effective approach to reforming historical shari`a. He elaborates on the very notion that
constitutes the raison d’etre for the articulation of human rights in
Western tradition; human dignity. This he considers the reason for which
international human rights have been delineated. The preamble of the UDHR
begins by emphasizing this very point. In Western tradition, the concept of
dignity has been best elaborated by Kant, who points out that human beings are
moral agents, and should hence always be treated as ends, and never as means.
Conceiving every human being as an end means that he or she should always be
treated as a subject, capable of identifying and pursuing his or her interests.
This does not mean that one cannot use the services of others to achieve one’s
goals, but that the services they provide must be performed with their consent,
and should be based on their full realization of the intents, significations,
and consequences of their actions. Compelling people to act under the use or
threat of force violates their dignity. Likewise, the Quran describes the human
person as a unique being among the creatures of God, endowed with rational
capacity to understand the natural order, and to distinguish right from wrong.
Life is presented as a trial in which people have the opportunity to make
choices; they are individually responsible for the choices they make.
Therefore, central to the notion of dignity in both Western and Islamic
traditions, is the notion of moral autonomy, i.e. the freedom to make rational
choices, and to accept the outcome of the rational choices one makes. While the
notion of human dignity emphasizes the moral autonomy of individuals and groups,
employing another principle can specify the extent of this autonomy; the
principle of reciprocity, or as An-Na’im states the ‘golden rule’. This
rule/principle, central to all religious and secular ethics, has been
appropriated from Christian ethics by modern Western scholars, and has been
given a secular expression in Kant’s categorical imperative: “Act only on
that maxim through which you can at the same time will that it become a
universal law.” (Kant: 1993:84) Similarly, the
principle of reciprocity lies at the core of the Islamic concept of justice.
The Quran is pervaded with injunctions that encourage the Muslims to
reciprocate good for good and evil for evil. Safi therefore contends that since
Quranic texts embody a clear and developed notion of human dignity,
restructuring shari`a rules particularly those which relate to the public
sphere on the basis of the Quranic notion of human dignity, could lead to a
situation in which the civil and political liberties of all citizens regardless
of gender, ethnic, or religious distinctions are protected.
Furthermore An-Na'im advocates a cross-cultural
dialogue to promote universality at a theoretical or conceptual level by
highlighting moral and philosophical commonalities of human cultures and
experiences.
" the
Golden Rule of treating others as one would wish to be treated by them - which
is found in some formulation or another in all the major cultural traditions of
the world - can be presented as a universal moral foundation of human rights
norms. This principle of reciprocity could provide universal rationale for
human rights as those rights which one would claim for himself or herself, and
must therefore concede to others. However, efforts to articulate shared values
and principles must be founded on mutual respect and sensitivity to the
integrity of other cultures, especially in view of colonial and post-colonial
power relations between the North and South" (1994: 68).
An-Na’im uses the case of Islamic punishments to
illustrate the application of the cross-cultural perspective. He makes the very
valid point that a universal standard may not be as simple as it is thought to
be. To most western human rights advocates simply no comparison can be made
between the Islamic punishment for theft (amputation) and the most widely used
western punishment (imprisonment) Islamic punishment obviously goes against
human rights standards and is cruel and inhumane however Muslims may say this
feeling is a product of western ethnocentricity. An-Na’im says It would be instructive
to consider how a Westerner would feel if the Muslim punishment were made the
norm. Muslims may feel amputation appropriate punishment once strict safeguards
have been satisfied. However as An-Na’im points out;
‘Islamic Law requires the state to fulfill
its obligation to secure social and economic justice and to ensure decent
standards of living for all its citizens before it can enforce the Shahri’a
punishments’ (An-Na’im:1992:34)
An-Na'im suggests that cross-cultural and inter-faith dialogue on the subject of human rights is most likely to be successful if direct confrontation is avoided and dialogue is based on a combination of mediation, internal discourse and reconciliation. In particular, individuals and groups ought not to be confronted with the need to make exclusive choices between religious commitments on the one hand, and international human rights law on the other. In any event, self-criticism of one's own human rights policy is a necessary precondition to any serious cross-cultural dialogue on human rights.
The fact remains that despite fundamentalist
movements that do not represent the majority of Muslims today, Islam has always
accommodated a pragmatic humanitarianism, in keeping with the Quranic promise
that "God intends every facility for you; he does not want to put you
to difficulties." Surah 2:185. Hence, puritanical inflexibility is
atypical of the Islamic tradition, which has appeared capable of adapting to
human needs. Such pragmatism has shaped the sha'ria from its very beginning.
Therefore, some reconciliation between the traditional sha'ria and the modern
idea of human rights could be conceivably accomplished in accordance with this
well-established Islamic pragmatism.
Along with Safi I
would agree that the UDHR should be viewed as a common thread that can bind the
efforts of people belonging to diverse moral communities. While the principal
interpretations of the various articles of UDHR reflect the moral inclination
of Western individualism, the universal principles themselves are compatible
with Islamic values and ethos. Indeed, the rejection of UDHR is likely to
deprive Muslims achieving greater political liberation, a strong commitment to
its principles would undoubtedly allow them to enter the global debate, and
give them the opportunity to bring their values and ethos to bear positively on
the future development of human rights discourse.
While Bielefeldt makes the valid point that even
though human rights and the UDHR are of Western origin, they are historically
connected with the experience of radical pluralism that today has become an
inescapable reality all over the world. Pluralism and multiculturalism, within
and between states, cannot be eradicated unless one wants to risk political
disasters including civil wars, "ethnic cleansing," and the breakdown
of international communication and cooperation. In the face of such political
dangers, the idea of human rights offers an opportunity for accomplishing a
basic consensus across ethnic, cultural, and religious boundaries. In this
view, the universality of human rights does not mean the global imposition of a
particular set of Western values, but instead, aims at the universal
recognition of pluralism and difference, different religions, cultures,
political convictions, ways of life, differences which should express human
dignity. (1995:593-4)
Regarding the importance of the human rights discourse, one must also
take into account recent events; the attacks of September 11th; the
following war on terror and their implications for human rights in the Islamic
world. The attacks on the US have been explained as an act of violence against
western civilization and democracy. The language of righteousness adopted by
the US and its allies has distinctly suggested that they are embarking on a war
of good against evil, of civilization against barbarity. American and Western
officials have repeatedly stated that their war is not against Islam, however
President Bush’s use of the word ‘crusade’ and a campaign at first called
‘infinite justice’ has not convinced many Muslims. In fact, the ‘global
campaign’ that has been declared against terrorism has so far focused
exclusively on certain Islamist groups. In such a context it is not surprising that
large numbers of people in the Islamic world, perceive the conflict has been
defined in cultural terms, along a frontier between ‘Western’ or ‘Christian’
and ‘Islamic’ values and identity. This has resurrected discussion of Samuel
Huntington's thesis (1993) that the fundamental sources of conflict in the
post-Cold War world will not primarily be political or economic but cultural.
Huntington’s ‘clash of civilizations’ paradigm has been discussed world-wide in
the wake of the September attacks, and this has made clear that, whatever its
merits, a widespread perception exists that cultural/religious (or
civilizational) differences are relevant to analysing the attack and responses
to it. The perception of the attacks
in most of the Islamic world needs to be considered. The attacks have been
widely perceived as a reaction to injustice. While condemning them many are
strongly inclined to view them as a response to legitimate grievances that are
caused by US and “ Western” interventions in the region – especially support
for Israel and authoritarian governments in the Middle East and North Africa,
and maintaining sanctions against the Iraqi people.
Faulk has quoted Ahmet
Davutoglu’s ‘Civilizational
Transformation and the Muslim World’ which perhaps best expresses the nature of a
collective Islamic grievance against the ‘differential’ treatment of Muslims in
the functioning of the World Order:
‘The
Muslim masses are feeling insecure in relation to the functioning of
the international system because of the double standards in international affairs. The expansionist policy of Israel has been tolerated by the international system. The Intifada has been called a terrorist activity while the mass rebellions of East Europe have been declared as the victory of freedom. There was no serious response against the Soviet military intervention in Azerbaijan in January 1990 when hundreds of Azeris were killed while western powers reacted against intervention in the Baltic republics. The international organizations, which are very sensitive to the rights of small minorities in Muslim countries, did not respond against the sufferings of the Muslim minorities in India, the former Yugoslavia, Bulgaria, Kashmir Burma, etc. The atomic powers in some Muslim countries like Pakistan and Kazakhstan have been declared a danger when such weapons have been accepted as the internal affairs of other states such as Israel and India. Muslims, who make up about 25 percent of the world’s population, have no permanent member in the Security Council and all appeals from the Muslim world are being vetoed by one of the permanent members. The Muslim masses have lost their confidence in the international system as a neutral problem-solver after the experiences of the last decade.’ (Quoted in Faulk:2000:155)
In such an atmosphere of exclusion and
distrust the perception of difference means that we can expect a fresh debate
about the universality of rights. Huntington himself argued that international
human rights standards reflected western ‘civilization’ and disputes about
their universality indicated deep
‘civilizational’ differences. Other questions also arise: Is there a
risk, after September 11, of a deepening cultural/religious divide and if so
what are the implications for human rights work? In terms of human rights and
Islamic culture, what issues should be considered? If perceptions of a divide
persist, can existing international human rights standards retain/develop a
universal appeal? Or will we need to find other references (ethics) around
which to build agreement on cross-cultural values to reinforce human dignity
and freedom?
September 11 is not a unique event. What about
the hundreds of thousands of deaths that have resulted in Iraq from
malnutrition and disease, as a result of the sanctions policy? Or the hundreds
of Palestinian civilians that have died at the hands of Israeli soldiers over
the past year? However, given the global media coverage and global awareness of
the attacks, the moral issues and disagreements are more visible. This may
effect the fragile consensus that has existed on the importance and objectivity
of international human rights standards. In the American press, journalists ask
whether it is wrong if civilians are targeted in reprisal attacks, with little
deference to the point that such killings would be war crimes. Similarly they
are surprised at the concern shown for Al-Qaeda/Taleban prisoners in Cuba.
Opinions such as this have not encouraged Islamic countries in their attitude
towards human rights, indeed many countries such as Egypt, Pakistan, Israel and
Yemen have launched crackdowns on various Islamist groups/domestic opposition
and justified it in terms of the war on terror.
I would conclude that Islamic countries must press
harder for representation within the UN and other human rights organisations,
there are reasonable grounds for believing that Islamic participation could
make a difference with respect to the role of the United Nations on such issues
as Palestinian self-determination and the status of Jerusalem, the approach to
international terrorism, and the maintenance of the nuclear non-proliferation
regime. The
value of Human Rights is indeed a universal value and the cause of defending
these rights is a universal cause, however
cultural sensitivity and the dangers of cultural imperialism must be taken into
account especially with regard to Islam.
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