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The Dilemma of Islamic Rights Schemes

Published online by Cambridge University Press:  24 April 2015

Ebrahim Moosa
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Extract

The gulf in perception between Islamic and secular perspectives over the meaning of human rights is growing. Media reports and western governments repeatedly charge Muslim governments from Sudan to Iran of human rights violations. In some parts of the Muslim world, a string of events indeed suggest that the violation of human rights continue with little sign of immediate abatement. Tragedy is the overriding topos of the media attention that such events receive. The list can become endless, but I will only mention a few incidents in order to highlight the salient contexts and issues for the purposes of a discussion on human rights. The Turkish Muslim feminist Konca Kuris was kidnapped by a Turkish group known as the Hizbullah in 1998 and her dead body was found in 1999. In 1997 Egypt's highest court ruled that the writings of a Cairo University professor, Nasr Hamid Abu Zayd were tantamount to apostasy. In 1992, Muslim militants assassinated the Egyptian human rights activist and essayist Farag Fouda. The 1980s witnessed the international imbroglio amounting to a debacle when Iran's clergy offered a ransom to anyone who would assassinate the Indian-born British author Salman Rushdie for writing novels that offended Muslim sensibilities. On a daily basis, spine chilling reports of death and civilian casualties perpetrated by Muslim militants and the military in Algeria bewilder observers after the army's subversion of the democratic process in that country. In many Muslim countries like Egypt, Syria, Saudi Arabia, Iraq, Iran, Bangladesh, Pakistan and Tunisia, intellectuals are subjected to harassment by traditionalist and fundamentalist quarters alike as well as by governments for their critical study of religion and for opinions that do not meet with approval from the religious establishment. When human rights concerns are raised, officials from Muslim countries accuse the West of using a double standard in its application of human rights, of mounting the human right claim as an instrument of political power against nations who do not further its political and economic agendas.

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Journal of Law and Religion , Volume 15 , 2001 , pp. 185 - 215
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Copyright © Center for the Study of Law and Religion at Emory University 2000

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References

1. Kinzer, Stephen, Turkish Terror Victim Espoused a Tolerant Islam, N.Y. Times Foreign Desk (01 26, 2000)Google Scholar.

2. Hirschkind, Charles, Heresy or Hermeneutics: The Case of Nasr Hamid Abu Zayd, 12/7The Am. J. Islamic Soc. Sci. 463 (Winter 1995)Google Scholar; in the special issue by Nancy Reynolds & Saba Mahmood, eds., on Contested Polities Religious Disciplines & Structures of Modernity, appearing in 5.1 Stanford Elec. Humanities Rev (Spring 1996). (www.stanford.edu/group/SHR/5-1/text/toc.htlml)

3. See al-Hibri, Azizah, Islam, Law and Custom: Redefining Muslim Women's Rights, 12 Am. U. J. Intl. L. & Policy 1, 4 (1997)Google Scholar, in which she states:

This view has received added support given the attitude that Western governments have taken recently towards democracy in Muslim countries. They advocate it, they praise it, but their deeds belie their words. They lend unconditional support to regimes that consistently violate human rights, so long as these regimes continue to protect Western economic and geopolitical interests.

See also Muhammad Wāḍiḥ Rashīd al-Nadawī, Mafāhim Muta‘ārida li ‘l-Ḥurriyya, al-Rā'id 1 (7 Sha'bān 1620/Nov. 16, 1999). Huntington, Samuel P., The West Unique, Not Universal, 75 For. Affairs 28, 38 (11/Dec. 1996)Google Scholar; Huntington, Samuel P., The Clash of Civilizations, 72 For. Affairs 22, 36 (Summer 1993)Google Scholar.

4. Human Rights and the Conflict of Cultures: Western and Islamic Perspectives on Religious Liberty 4 (Little, David, Kelsay, John & Sachedina, Abdulaziz A., eds., Columbia, S.C.: U.S.C. Press 1988)Google Scholar.

5. al-Ghannūshī, Rāshid, al-Ḥurriyāt at ‘Āmma fī ‘l-Dawla al-Islāmiyya 320 (Beirut: M'arkaz Dirāsāt al-waḥda al-‘Arabiyya 1993)Google Scholar [hereafter Ḥurriyāt]. Santos, Boaventura de Sousa, Toward a New Common Sense: Law, Science and the Politics in the Paradigmatic Transitions 344 (London: Routledge 7 Sha'bān 1620/11 1995)Google Scholar says:

What I find remarkable … is the attempt to transform the Western conception of human rights into a cross-cultural one that vindicates Islamic legitimacy rather than relinquishing it. In abstract and from the outside, it is difficult to judge whether a religious or secularist approach is more likely to succeed in an Islamic-based cross-cultural dialogue on human rights. However, bearing in mind that Western human rights are the expression of a profound, albeit incomplete, process of secularization which is not comparable to anything in Islamic culture, I would be inclined to suggest that, in the Muslim context, the mobilizing energy needed for a cosmopolitan project of human rights will be more easily generated within a religious framework.

6. Rahman, Fazlur, Internal Religious Developments in the Present Century Islam, 2 J. World History 862, especially 872–875 (11 1955)Google Scholar.

7. Iqbal, Muhammad, The Reconstruction of Religious Thought in Islam vi (Shaikh Muhammad Ashraf 1960)Google Scholar.

8. Id. at 5.

9. al-Hakam, Ibn ‘Abd, Futiūḥ Miṣr wa’ l-Maghrib 225–226 (Āmir, ‘Abd al-Mun’im ed., Cairo: ‘Isā Babi al-Ḥalabl 1961)Google Scholar.

10. de Sousa Santos, supra n. 5, at 337.

11. See Mayer, Ann Elizabeth, Islamic Law and Human Rights: Conundrums and Equivocations, in Religion and Human Rights: Competing Claims? 190 (Gustafson, Carrie & Juviler, Peter eds., Armonk, N.Y.: M.E. Sharpe 1999)Google Scholar for a discussion on how the Iranian constitution stipulates how human rights should be subordinated to Islamic criteria.

12. Donnelly, Jack, The Concept of Human Rights 1 (London: Routledge 1985)Google Scholar.

13. Encyclopaedia of Islam second edition cited in full as Encyclopedia of Islam 2 [hereinafter cited as EI 2] s.v. ḥaḳḳ (Leiden: Brill 1960).

14. ‘Alī al-Jurjānī, ‘Alī b. Muhammad b., Kitāb al-Ta'rifāt 120 (al-Ibyāri, Ibrāhīm ed., Beirut: Dār al-Kitāb al-‘Arabī 1405AH/1985AD)Google Scholar.

15. The first date is the hijri date, AH, and the second according to the Gregorian calendar, AD.

16. See ‘Uthmān, Muhammad Fathi, Taqrīr Ḥuqūq al-Insān bayna al-shari'a al-Islāmiyya wa'l Fikr al-Qān ūn ī al-Gharbī 555 (2d ed., Wazarat al-Ta‘lim al-‘Āli 1398/1978)Google Scholar. ‘Uthmān is of the opinion that Ibn Nujaym's notion of rights is very similar to that of the Belgian jurist, Jean Dabin (d. 1963). See Dabin, Jean, General Theory of Law, in The Legal Philosophies of Lask, Radbruch. and Dabin 232 (Wilk, Kurt trans., Cambridge, Mass.: Harv. U. Press 1950)Google Scholar.

17. al-Ḥaj, Ion Amīr, al-Taqrīr wa 'l-Tahbīr vol. 2, 104 (2d ed., Beirut: Dār al-Kutub al-‘Ilmiyya 1403/1983)Google Scholar; al-Sanhuri, ‘Abd al-Razzāq, Maṣadir al-Haqq fi’ l-Fiqh al-Islāmī vol. 1, 14 (Cairo: Dar al-Ma‘ārif 1967)Google Scholar; see also Johansen, Baber, 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)Google Scholar.

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.

19. al-Zuhayli, Wahba, al-Fiqh al-hlāmi wa Adillatuhu 9 (2d ed., Damascus: Dār al-Fikr 1404/1985)Google Scholar.

20. See Aziz, Abdul Said, Human Rights in Islamic Perspective, in Human Rights: Cultural and Ideological Perspectives 92 (Pollis, Adamantia & Schwab, Peter eds., N.Y.: Praeger 1980)Google Scholar.

21. See Mayer, Ann Elizabeth, Islam and Human Rights Policy, in 9 Intl. Rev. Comp. Pub. Policy: Islam & Pub. Policy 123 (1997)Google Scholar for a more full review of Islam and human rights policy.

22. Asad, Muhammad, This Law of Ours and Other Essays (Gibraltar: Dar al-Andalus 1987)Google Scholar.

23. Kerr, Malcolm, Islamic Reform: The Political and Legal Theories of Muhammad Abduh and Rashid Rida (Berkeley: U. of Cal. Press 1966)Google Scholar for a detailed discussion of the various interpretations of Islamic law among modern Muslim jurists.

24. al-Awadhi, Badria, Address by the Dean of the Faculty of Law and Shari'a in the University of Kuwait, in Human Rights in Islam 28 (Geneva: Intl. Comma of Jurists 1982)Google Scholar.

25. Khan, Muhammad Zafrullah, Islam and Human Rights 141–142 (4th ed., Tilford, Surrey: Islam Intl. Publications 1989)Google Scholar.

26. Id. at 142.

27. Universal Islamic Declaration of Human Rights, in Islam and Black Muslim Roots in Azania 77–88 (Nazeer, Yusuf ed., Johannesburg: Africa-Islam Research Found. 1982)Google Scholar [hereinafter UIDHR]. See also Mayer, supra n. 11, at 123-148 for a more full review of Islam and human rights policy.

28. UIDHR, supra n. 27, at 79.

29. The Organization of Islamic Conference (OIC) has made provision for an Islamic Court of Justice based in Kuwait, but little is known of its activities.

30. Brohi, A.K., Islam and Human Rights, in The Challenge of Islam 179–181 (Gauhar, Altaf ed., London: Islamic Council of Europe 1978)Google Scholar.

31. Prozesky, Martin, Is the Concept of Human Rights Logically Permissible in Theistic Religion?, 2 J. for the Study of Religion 17, 26 (1989)Google Scholar.

32. Donnelly, Jack, Human Rights and Human Dignity: An Analytic Critique of Non-Western Conception of Human Rights, 76 Am. Pol. Sei. Rev. 303 (1982)CrossRefGoogle Scholar.

33. Id. at 305-306.

34. Nasr, S.H., 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)Google Scholar.

35. Perry, Michael J., The Idea of Human Rights 13 (N.Y.: Oxford U. Press 1998)Google Scholar.

36. Ḥurriyāt, supra n. 5, at 320.

37. Abdulaziz A Sachedina, Islam and Religion Liberty: Freedom of Conscience and Religion in the Qur'an, in Human Rights and the Conflict of Cultures, supra n. 4, at 79. See also Conference of Riyad, Paris, Vatican City, Geneva and Strasbourg on Moslem Doctrine and Human Rights in Islam between Saudi Canonists and Eminent European Jurists and Intellectuals 55 (Riyad: Ministry of Justice, n.d.).

38. Sachedina, supra n. 37, at 85.

39. Id.

40. Ḥurriyāt, supra n. 5, at 48-50. Al-Ghannūshi says that this was also the view al-Imam Muhammad ‘Abduh, al-Shaykh ‘Abd al-Mut'āl al-Sa'd, ‘Abd al-Wahhāb al-Khallāf, Abū Zahra, al-Shaykh ‘Abd al-‘Aziz Shāwish, Fathi ‘Uthmān, ‘Abd al-Ḥamīd Mutawalli, ‘Abd al-Ḥakīm, Ḥasan al-Turābi, and Muhammad Sālim Ghazūr.

41. Taqi al-Din Ahmad ibn ‘Abd al-Halīm Ibn Taymiyya, Majmū Fatāwā, vol. 37, 28, 413-416 (Mu'assasat al-Risāla (1618/1997).

42. See Brown, Daniel, Rethinking Tradition in Modern Islamic Thought (Cambridge, Mass.: Cambridge U. Press 1966)Google Scholar.

43. Ḥurriyāt, supra n. 5, at 291.

44. For instance some Muslim legal schools held the view that a Muslim subject cannot be executed under the rule of lex talion, if he killed a dhimmi. The assumption is that it would undermine the status of the “believers” if a Muslim is killed for taking the life of a non-Muslim citizen. The Muslim offender or his family is required to pay compensation.

45. Ḥurriyāt, supra n. 5, at 292.

46. See Krishnaswami, Arcot, Study of Discrimination in the Matter of Religious Rights and Practices, 11 N.Y.U. J. Intl. L. & Pol. 227 (Fall 1978)Google Scholar.

47. For an interesting study of public reactions to extending citizenship rights to women in Kuwait, see Meyer, Katherine, Rizzo, Helen & Ali, Yousef, Islam and the Extension of Citizenship Rights to Women in Kuwait, 37 J. for the Sci. Study of Religion 131 (1998)CrossRefGoogle Scholar. The authors' conclusions reflect the complexity in trying to pin down misogynistic trends within religious trends.

Models explaining Kuwaiti citizens' attitudes towards incorporating women more fully in political life made clear several things about relationships among Islam, social structure and women's rights.… Citizens, both Sunni and Shia, who strongly upheld Islamic orthodoxy were very supportive of more fully including women. However, those favoring traditional Islamic practices regarding appearance were less inclined to want to include others. Religious orthodoxy supported women's rights although Islamic religiosity did not.

Id. at 142.

48. al-Ramlī, Muhammad ibn Ahmad, Nihiyāt al-Muhtāj alāSharh al-Minhāj, vol. 8, at 6:224 (Mustafā Bābi al-Halabi 1967–1969)Google Scholar.

49. See Menski, Werner F., South Asian Muslim Law Today: An Overview, 9 Sharqiyyāt 16 (1997)Google Scholar, 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 (Yamani, Mai ed., N.Y.: N.Y.U. Press 1996)Google Scholar; Wadud, Amina, Women and the Qur'an: Rereading the Sacred Text from a Woman's Perspective (2d ed., N.Y.: Oxford U. Press 1999)Google Scholar; see also Mir-Hosseini, Ziba, Islam and Gender: The Religious Debate in Contemporary Iran (Princeton, N.J.: Princeton U. Press 1999)Google Scholar.

51. Rentlen, Alison Dundes, The Concept of Human Rights, 83 Anthropos 343 (1988)Google Scholar.

52. Cox, Robert W., A Perspective on Globalization, in Globalization: Critical Reflections 24 (Mittelman, James ed., Boulder, Colo.: Lynne Rienner Publishers 1996)Google Scholar, states that “Globalism and globalization arose together as orientations for thought and action.” See also Tibi, Bassam, Islam and the Cultural Accomodation of Social Change (Krojzl, Clare trans., Boulder, Colo.: Westview Press 1990)Google Scholar.

53. Cooke, Miriam & Lawrence, Bruce B., Muslim Women Between Human Rights and Islamic Norms, in Religious Diversity and Human Rights 313 (Bloom, Irene, Martin, J. Paul & Proudfoot, Wayne L. eds., Columbia, S.C.: Colum. U. Press 1996)Google Scholar.

54. Rentlen, supra n. 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.

57. Pannikar, Raimundo, Is the Notion of Human Rights a Western Concept?, 120 Diogenes 78 (Winter 1982)Google Scholar.

58. Rouland, Norbert, Legal Anthropology 124, 228 (Planel, Phillipe G. trans., London: The Athlone Press 1994)Google Scholar.

59. Id.

60. See Arjomand, Said Amir, Religion and Constitutionalism in Western History and in Modern Iran and Pakistan, in Political Dimensions of Religion 69–99 (Arjomand, Said Amir ed., Albany, N.Y.: S.U.N.Y. Press 1993)Google Scholar.

61. For instance a dictatorship may favor a particular political class, an ethnic group or even the army for political privileges. Thus, the status of the beneficiary becomes more important than the rights and covenant that the political entity has entered into with its subjects.

62. Most of the Sunni schools of law, with the exception of the Hanafi school, insist that an adult woman cannot get married without the consent of her guardian. This is a clear example that her “status” as a woman is crucial in denying her contractual capacity in marriage according to the jurists of those schools. These very same schools, however, would allow a woman (who lacks marital capacity) discretion and capacity to dispense or acquire property without any impediments. In this instance property is regulated according to notions of contract. Similarly, the distinctions that Islamic law makes between penalties and obligations for women, slaves, and free persons all suggest that status considerations are operative.

63. For the status of individual liberty see Musa, Muhammad Yusuf, The Liberty of the Individual in Contracts and Conditions according to Islamic Law (pts. 1 & 2), II Islamic Q. 79–95 (07 1955)Google Scholar, II Islamic Q. 252-263 (Dec. 1955); see also Goitein, S.D., Individualism and Conformity in Classical Islam, in Individualism and Conformity in Classical Islam 3–17 (Banani, Amin & Vryonis, Speros Jr. eds., Wiesbaden: Otto Harrassowitz 1977)Google Scholar (presented at the Fifth Giorgio Levi Della Vida Biennial Conference; Richard W. Bulliet, The Individual in Islamic Society, in Religious Diversity in Human Rights, supra n. 53, at 175.

64. Al-Fatāwa al-Islāmiyya, vol. 8, 3032 (Cairo: al-Majlis al-A'lā li’ l-Shu'ūn al-Islāmiyya 1403/1983-1984).

65. al-Jawziyya, Ibn Qayyim, I‘lām al-Muwaqqi'n an Rabb al-‘Ālaīn vol. 3, 3 (Sa'd, Tāhā ‘Abd al-Ra'ūf ed., Beirut: Dār al-Jīl n.d.)Google Scholar; see also Mahmasāni, Subhi, Falsafat al-Tashrī fi'l-Islām 220 (5th ed., Beirut: Dār al-‘Ilm 1980)Google Scholar. See also the same book translated by Ziadeh, Farhat J., Philosophy of Jurisprudence in Islam 106 (Leiden: E.J. Brill 1961)Google Scholar.

66. Al-Jawziyya, I'lām al-Muwaqqi'īn ‘an Rabb al- ‘Ālam īn, supra n. 65, at vol. 4, 373.

67. See Moosa, Ebrahim, Islam in South Africa, in Living Faiths in South Africa 129 (de Gruchy, John & Prozesky, Martin eds., Cape Town: David Philip 1995)Google Scholar.

68. See Tayob, Abdulkader, Islamic Resurgence in South Africa: the Muslim Youth Movement (Cape Town: U. of Cape Town Press 1995)Google Scholar.

69. See Engineer, Asghar Ali, Islam and Liberation Theology: Essays on Liberative Elements in Islam (New Delhi: Sterling Publishers 1990)Google Scholar; Esack, Farid, Qur'ān, Liberation & Pluralism: An Islamic Perspective of Interreligious Solidarity against Oppression (Oxford: One World 1997)Google Scholar.

70. See Moosa, Ebrahim, Muslim Conservatism in South Africa, 69 J. Theology for S. Africa 73 (12 1989)Google Scholar.

71. Id.

72. Ḥurriyāt, supra n. 5, at 140.

73. Id. at 290; An-Na'im, Abdullahi Ahmed, Islamic Law, International Relations, and Human Rights: Challenge and Response, 20 Cornell Intl. L. J. 317 (1987)Google Scholar; An-Na'im, Abdullahi Ahmed, Religious Minorities under Islam Law and the Limits of Cultural Relativism, 9 Human Rights Q. 1 (1987)CrossRefGoogle Scholar.