The Dilemma of Islamic Rights Schemes*
E B RAHIM M OO SA
Introduction
T
he 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 1999.1 In 1997 Egypt’s highest court ruled that the writings of a Cairo University professor, Nasr H~mid Abã Zayd were tantamount to apostasy.2 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.3
* This article was first published in Journal of Law and Religion.
2 | Worlds & Knowledges Otherwise | Fall 2004
Anyone familiar with the intercultural debate on human rights would agree that
the media debates and dramatic events conceal much more complex issues of history,
tradition and the contested perceptions of law and religion. Few Westerners are aware
that the debate within Muslim societies about human rights is fierce in its intellectual
rigor as well as its political consequences, as events in Iran over recent years suggest.
Some Muslims argue that Islam has a human rights dispensation that surpasses secular
human rights declarations.4 Others claim that the differences between Islamic and
secular constructs of human rights are but minor philosophical quibbles without significant consequences in content and practice.5 Contrary to both these sets of claims,
the content of a human rights doctrine and how they are achieved remains a vexing
question within contemporary Muslim legal, political and ethical theory. These are
staggering issues that have hardly been addressed let alone satisfactorily resolved. I do
not therefore pretend to provide a comprehensive answer, but rather view this as an
opportunity to contribute to the larger debate in a bid to identify some problem areas
in the context of Islamic human rights. This essay thus examines the differences between secular human rights and Islamic rights and argues that they are indeed conceptually different things. However, contemporary Muslim thought may be able to
produce a rights system, I would argue, that may be based on different ethical and
moral premises but not dissimilar to secular human rights declarations in their outcomes. The success of a modern Islamic human rights theory depends on the extent
to which modern Islamic thought would be open to a revisionist or reconstructionist
approach in philosophy and ethical orientation.6 In this century the Indian thinker
Muhammad Iqbal gave new impetus to the term “reconstruction.” His attempt at reconstruction, Iqbal argued, stems from the understanding “that there is no such thing
as finality in philosophical thinking.”7 Reconstruction involves both a critique and adaptation of the present. Iqbal argued that while early Muslims allowed for the evolution of religious experience in Islam, he was severely critical of modern Muslim
thinkers whom he said had “become incapable of receiving any fresh inspiration from
modern thought and experience.”8 Reconstruction for him thus meant a critical approach to the Muslim philosophical tradition and modern human knowledge in order
to open new frontiers of thought and human understanding.
Islam and Rights: Issues and Problems
From its very inception in seventh century Arabia, the message of Islam demonstrated
a preoccupation with the social, moral and spiritual condition of human beings. The
deity proclaimed by the Prophet Muhammad to the world was both the “Lord of the
Worlds” (rabb al-‘~lam§n) and “Lord of the People” (rabb al-n~s). The subject of the
prophet’s revelation, the Qur’~n, was not exclusively a self-revelation of God to humanity, but an instant where humanity became the very leitmotif of revelation.
In governing the city of Madina the Prophet Muhammad established the basic
rules of inter-communal coexistence hailed as the Compact of Madina at the time, a
sort of primitive constitution. This agreement between the Arab-Muslim tribes, Jews,
and other non-Muslim religious and ethnic groups (such as Christians and perhaps
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| The Dilemma of Islamic Rights Schemes | 3
even some adherents of pre-Islamic Arabian religious traditions) bound the parties to
observe certain rights and duties while they lived in the territories governed by the
Prophet. However, the Prophet’s immediate successors soon encountered governance
problems. That was due to the fact that the Islamic order of Arabia rapidly expanded
to become an empire that included rural folk as well as urbanized non-Arab converts
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 landmark events serve as standard reference points for the invention
of a rights discourse in Islam. These include, among other things, the Prophet’s famous farewell sermon to his followers at the last pilgrimage; passages from the Qur’~n
dealing with the sanctity of life, property, dignity and honor; and actions taken by the
Prophet’s successors to rectify rights violations of their subjects. One notable example
was the response of the caliph `Umar. News reached him in Madina that the son of
`Amr bin al-`}s (his governor to Egypt) chastised an Egyptian Copt during a sporting
game without any corrective justice from his father. The caliph hurriedly expedited a
letter of reproach to his governor which contained the memorable line: “Since when
have you enslaved a people, oh `Amr, when their mothers had given birth to them in
freedom?”9
The story of `Umar and other examples are advanced by human rights advocates
as proof that Islamic culture has a legacy of rights that is compatible with modern human rights regimes. Such comparisons are alas, hasty if not immodest, and do not take
into account the assumptions and intellectual foundations of pre-modern Islamic law,
the shar§`a, which contrasts vastly with the legal and political assumptions made by
modern human rights codes. Islamic rights discourse has an entirely different genesis
and pedigree compared to the secular human rights discourse. The failure on the part
of Muslim human rights theorists to account for the very fundamental differences between the two systems result in major conflicts, misunderstandings and miscommunication. For it is now well accepted that rights are also culturally constructed. In each
ethical and moral culture there is not only a sense of what human rights means, but
also how rights are created. There is a heated debate whether human rights are universal or a Western concept and whether concomitantly they are universally valid or not. I
agree with de Sousa Santos that the genesis of a moral claim may condition its validity,
but it certainly does not determine it. The two questions (cultural origins and universality) are interrelated, because the mobilizing energy that can be generated to make
the acceptance of human rights concrete and effective depends, in part, upon the cultural identification with the presuppositions that ground human rights as a moral
claim.10 It is therefore important to clarify the salient differences between the two
moral traditions before attempting a comparison to explore their mutual compatibility
or incompatibility.
One of the weaknesses in contemporary Muslim human rights literature is the attempt to conflate the two very different legal, ethical and moral traditions so that they
look instantly compatible. I concede that there is considerable overlap in some of the
concerns and objectives that both rights traditions address. However, these similarities
4 | Worlds & Knowledges Otherwise | Fall 2004
do not in themselves justify the grafting of presumptions from one system to the other
and in so doing packaging Muslim notions of rights as compatible to modern human
rights practices. To the extent that these perspectives can be shared, rejected, appropriated or modified depends on the cross-cultural dialogues that are made possible by
concrete contexts.
Without such a dialogue and the careful calibration of the two systems there are
obvious risks involved. One danger is that when put to the test, Islamic rights schemes
are found lacking in protecting people’s rights after having announced that Islam had
endorsed “human rights.” In several cases involving freedom of speech in the last few
decades of the twentieth century, Muslim human rights proclamations and declarations
have by and large capitulated in favor of authoritarian and anti-rights tendencies.11 The
persecution of reformist politicians, writers in Iran, as well as the violation of women’s
rights in Iran and Afghanistan, are well known examples. Often these violations are
justified in terms of particularistic Islamic human rights claims. These crises demonstrate the weakness and problems inherent in Muslim adaptations and formulations of
human rights schemes. Rhetorically, Islamic and secular human rights formulations
may sound the 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 evolution
of the nation-state as a political system, even though some may claim a more ancient
pedigree for it to date back to the Magna Carta and the French Revolution. The legal
culture generated by the nation-state increasingly imposed its own logic of social behavior and social conditions in societies receptive to it. A crucial feature of this model
of statecraft is the relationship between the individual and the state, which brought
about an awareness of the individual’s encounter with a powerful and dominant entity,
unknown in pre-modern times. 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 demonstrates a measure of political identity. Those rights, now known
as “first generation” human rights were especially designed to protect the individual
from the overwhelming powers of the modern bureaucratic state. Since then human
rights, have already advanced to second and third generation rights that cover socioeconomic and political rights as well as environmental rights.
The most critical development in the nation-state polity model was the conferral
of citizenship on the individual. In theory this bestowal entitled the bearer of citizenship to claim certain rights as well as to fulfill certain duties. The individual was no
longer subject to the discretion of a ruler or a system of governance, but instead had
claims against such authority in the form of rights, some more fundamental than others that precede one’s social status, ethnic or religious affiliation. Human rights in this
context are thus inviolable rights that one has “simply because one is a human being.”12 They also have a secular character, having been derived from the jurisprudence
of natural rights when natural law separated itself from religion. Here the word “right”
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| The Dilemma of Islamic Rights Schemes | 5
distinguishes between two concepts that have political and moral significance: being
right and having a right. In the first instance “right” refers to moral righteousness and
in the second it may refer to entitlement. Human rights are rights of entitlement and
the failure to discharge a duty or fail to respect rights is an affront to the person. In
the secular human rights scheme, rights revolve around an ethical and moral system
where one’s personhood or the humanity of a person is of consequence. At least in
theory, limitations of religion, politics or economics can not impede the protection of
human rights. In practice however, it is a different matter in that we know that a range
of political, economic and cultural factors impinge on the rights discourse.
Notion of Rights in Muslim Jurisprudence
In order to gain a better overview of the evolution of Muslim thought on the subject
of “rights” I will examine the views of mainly early jurists and then briefly contrast
these with those of more contemporary writers. In Arabic a “right” or “claim” is called
haqq (pl. huqãq), but also has a wider meaning. While the original Arabic root of the
term “haqq” is somewhat obscured it can be recovered from its corresponding Hebrew
root. It means among other things “to engrave” onto some object, “to inscribe or
write,” “to prescribe and decree.” And, it also means that which is “due to God or
man.”13 Haqq means “that which is established and cannot be denied,” and therefore it
has more in common with the terms “reality” and “truth.”14 For this reason the opposite of haqq is “falsehood” (b~til). The term haqq is considered polysemous or multivalent and thus could mean right/claim/duty/truth depending on context and the use of
the word in a specific context.
Muslim jurists or jurist-theologians have provided a general meaning for haqq in
their legal, theological and political treatises. The Egyptian jurist, Ibn Nujaym (d.
970/1563),15 in discussing property rights made a very clear case that human beings
are bearers of rights, without stipulating a reciprocal duty. He argued that a “right” is
the “competence” or “capacity” (ikhtis~s) conferred upon an individual or a collective
entity. Thus the individual or entity becomes the subject of a right.16 From very early
on, dating back to the medieval period, Muslim scholars delineated typologies of rights
or claims. They differentiated between three primary kinds of rights: the “rights of
God” (huqãq All~h), the “rights of persons” (huqãq al-‘ib~d) 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
6 | Worlds & Knowledges Otherwise | Fall 2004
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
person. There are however, some types of rights that can be transferred while others
can be forfeited by the consent of the owner of such rights. The relationship between
rights and duties is an interpersonal and correlative one. In the enforcement of a right
jurists understand that one party has a claim to have a “right” (haqq) and another “obligation” (w~jib) to honor a right: every right thus has a reciprocal obligation.
The shar§`a is the source of rights and obligations in Islam. The shar§`a also defines practices of rights as derived from the teachings of the Qur’~n, the prophetic
tradition (sunna), jurists’ consensus and reason. Clearly, rights are framed within a religious-moral framework where the omission of a duty/right is subject to religious sanction and its commission results in the acquisition of virtue. The crucial point in the
Islamic rights scheme is that God is the one who confers rights on persons, via revealed authority although human authority mediates these rights. The rationales underpinning Islamic rights may be derived from reason, a divine order and public
interests. The latter category are essentially the policy objectives of the revealed law
(maq~sid al-shar§`a) that jurists take into consideration when developing law. These
goals that the shar§`a advances are the protection of religion, life, progeny, intellect and
wealth. In modern times this public policy aspect of Muslim jurisprudence has gained
greater currency and acceptance. So the modern jurist, Mustafa al-Zarqa’ (d. 1999) argues that in addition to a right as being conferred by the law (shar§`a), political authority (sulta) and the recognition of a moral responsibility (takl§f) can also become the
grounds for conferring rights.19 There is thus a greater openness to rights being created
by means of a political process, rather than exclusively by scriptural or 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 jurisprudence, closer attention should be given to methodological issues as well as the underlying juridical
theology and legal 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 rigorous theoreti-
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| The Dilemma of Islamic Rights Schemes | 7
cal framework for a debate such as human rights. One of the problems that the human
rights debate exposes is the fact that it is extremely difficult to talk of Islamic rights as
if it is a monolithic and undifferentiated category. For instance, early eighth century
humanist interpretations by an influential theological group called the Mu‘tazilis, privileged reason and freedom to produce universalist discourses in Islam. On the opposite
side was the Ash‘ari theological tradition whose hallmark was to limit human freedom
and to defend theocentrism and advocate divine voluntarism in both theology and
law.20 More extreme than the Ash‘aris were the Hanbalis for whom the authority of
the literal meaning of the Scripture was supreme. Each one of these theological traditions produced different assumptions about what a “right” is and how it is implemented in law since they are based on different legal philosophies.
Another error frequently committed by both “insiders” and “outsiders” to the
study of Islamic law, is the tendency to accept the medieval constructions and interpretations of law as final and immutable normative statements. These normative
statements are then held out as ready-made solutions for application in the contemporary world without any interpretative mediation. The claim that Islamic law is immutable denies the historical evolution of the legal system over centuries. This easily
translates into the popular mindset that Islamic rights schemes are absolutist, unchangeable and based on ineffable religious norms. Such a view is entirely inconsistent
with the history and practice of Muslim jurisprudence. In contemporary times there is
no shortage of legal sloganeering on the part of advocates of Islamic revivalism who
circulate such simplistic and reductionist notions as gospel.21 This trend has become so
pervasive that even traditional Muslim jurists, who once treated the legal tradition with
great subtlety and complexity, have succumbed to such reductionist views.
Part of the problem of reductionism can be attributed to some longstanding debates within Islamic jurisprudence. Viewed chronologically, many legal historians will
concede that there is a tangible dissonance between the sources of Islam—the Qur’~n
and the prophetic tradition—and later juristic interpretations of these sources.22 The
explanation for that has been that the primary sources were not always considered to
be identical with the law. Rather the legal tradition was a contextual application and
interpretation of what the sources said. Classical and medieval jurists developed a
hermeneutical approach in order to understand the law. However there was also a tension between the hermeneutical approach and those who argued in favor of a more
literal approach to the sources. Over time two major trends have emerged in Muslim
jurisprudence. One promotes the idea that Islamic law and ethics should follow the
canonical interpretations of the established law schools. The other trend argues that
each generation of scholars should be free to have direct access to the textual sources
and make their derivations and interpretations from the primary sources ab initio.23 A
survey of the Muslim human rights literature shows that three main methodological
approaches have been adopted. The first relies on the established juristic traditions as
the authoritative canon of interpretation. The difficulty with this approach is that it is a
formidable task to negotiate juristic traditions that are very diverse and variegated,
spanning several centuries. The result is an eclectic approach. While eclecticism does
8 | Worlds & Knowledges Otherwise | Fall 2004
have its merits, it depends entirely on the rigor and finesse of the jurists, who can either enrich the legal tradition with insightful interpretations or it can result in almost
arbitrary choices of authorities. The second approach is to have direct access to the
primary sources of Islamic teachings, namely the Qur’~n and the prophetic traditions
(sunna), without taking into consideration the intervening canonical tradition. While
this approach runs the risk of lacking credibility and acceptability among the traditional religious establishment, it also disrupts the continuity of an established tradition.
The third approach is to combine the two methods. Jurists would take into consideration the canonical interpretations of the law in a non-binding manner, while also providing creative interpretations to the sources of the law.
Muslim Charters for Human Rights
Some contemporary Muslim thinkers do not have much difficulty in making the transition from the pre-modern Islamic concepts of reciprocal rights and duties to the
modern understanding of human rights. One scholar triumphantly proclaimed that
“ . . . it was 14 centuries ago that the Prophet declared the world’s first human rights
manifesto . . . .”24 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 question of rights more comprehensively. Zafrullah Khan, a
former foreign minister of Pakistan wrote:
Religion must travel far beyond the Declaration [UDHR] both in its objectives and
in its methods. It is concerned with the totality of life, both here and hereafter . . .
Thus in spirit the Declaration and Islam are in accord.25
However, some thinkers have realized that the dominant human rights discourse
stemmed from a secular political culture, which made very different assumptions.
Khan was aware of this tension and consistent with his Islam-centered approach,
warned that in the event of a conflict between Islam and human rights then “the Islamic provision must continue to have priority.”26
In modern times the Muslim approximation of the human rights debate culminated in the publication of the Universal Islamic Declaration of Human Rights
(UIDHR), an effort co-ordinated by the Islamic Council of Europe and launched at an
International Islamic Conference held in Paris on September 19, 1980.27 The UIDHR
overlapped in content with the Universal Declaration of Human Rights (UDHR)
adopted by the United Nations. However, the differences between the two systems
deserve our attention. The language employed by the UIDHR is not only framed in an
Islamic idiom. It is also theocentric in that it makes reference to the divinity that is
named in Arabic as “Allah” and pledges loyalty to the model behavior of the Prophet
Muhammad. It makes reference to the fact that human beings were entrusted by God
with a “vicegerency” (khil~fa) and that the protection of human dignity was paramount
on the imperatives of both reason and revelation.
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Then the UIDHR explicitly states that in “terms of our primeval covenant with
God, our duties and obligations have priority over our rights.”28 This statement
sharply distinguishes the Islamic rights-scheme from what is generally meant by secular “human rights” where the term rights mean certain fundamental and unconditional
entitlements simply on the grounds of being human. This presentation of “Islamic
human rights” does contain a paradox in conception and nomenclature. Islamic rights
schemes argue that duties are prior to rights and that it is only the fulfillment of these
duties that would produce a requisite set of rights to be claimed. In such a configuration it may have been more appropriate to call the UIDHR, the Universal Islamic
Declaration of Human Duties.
Another recurring feature in the UIDHR is the reference to “the Law” which refers to the shar§`a. The shar§`a is meant to be the statutory limitation that could potentially trump several other clauses. In the UIDHR for example, freedom, especially
freedom of speech is limited by the “Law” clause. It is striking that despite the omnipotence and almost fetish like invocation of the shar§`a in Muslim legal and ethical
discourse, it remains undefined in the UIDHR as an inarticulate premise. In practice
the notion of shar§`a is not only subject to diverse interpretations but also an enigmatic
category. Section 2 (x) of the UIDHR for example, states that “no one shall be deprived of the rights assured to him by the Law except by its authority and the extent
permitted by it.” (my emphasis). Since shar§`a law is not codified in the sense that we
are accustomed to understand codification in modern law, such limitation clauses introduce an element of arbitrariness to the declaration. There could be various interpretations of what the shar§`a view is on a single matter. In the absence of an international
Muslim synod or international shar§`a court, it would be difficult to enforce uniform or
consistent shar§`a verdicts within national jurisdictions, let alone in the international
domain.29 Not only do such statements render the declaration vague but they also have
immediate consequences. In the absence of any institutional regulation of the shar§`a,
legal power is then vested in the formally and informally constituted religious authorities who interpret the shar§`a as the final arbiters of God’s law. A closer look at the arguments of the advocates of an Islamic rights scheme may serve to illustrate some of
the points made above.
The chief exponent of a theocentric interpretation of Islamic-rights is the late Allah Bukhsh K. Brohi, a former law minister of Pakistan and prominent lawyer in that
country. Brohi’s apologetics are best illustrated when he says:
There is a fundamental difference in the perspectives from which Islam and the West
view the matter of human rights. The Western perspective may by and large be called
anthropocentric in the sense that man is regarded as constituting the measure of everything since he is the starting point of all thinking and action. The perspective of Islam on the other hand is theocentric—God conscious . . . . [I]n essence, the believer
has only obligations or duties towards God since he is called upon to obey the Divine Law, and such human rights as he is made to acknowledge stem from his primary duty to obey God. Yet paradoxically, in these duties lie all the rights and
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freedoms. Man acknowledges the rights of his fellow men because this is a duty imposed on him by the religious law to obey God and the Prophet and those who are
constituted as authority to conduct the affairs of state.30
Brohi accentuates the difference between anthropocentric and theocentric notions of
human rights. He then embroiders entitlements (secular human rights tradition) and
reciprocal rights (Islamic rights) into a unified rights-system premised on the performance of duties. This obviously creates a hybrid philosophy of rights, one that employs
the language of rights, but with rhetoric that actually signifies the prior performance of
duties before any rights could be confirmed. So whereas the secular human rights tradition recognizes the sovereignty of the individual as a right-bearer, the same right in
an Islamic rights-scheme could be subject to limitation. Political and religious authority, as well as the competing interests between the rights of the community versus the
right of the individual can lead to an infringement of individual rights. For this reason,
Prozesky has rightly pointed out that theistic religions in particular may be incompatible with the notion of human rights since these faiths do not recognize the notions of
individual and personal sovereignty.31
Nevertheless, Brohi’s distinction between anthropocentric and theocentric classifications of human rights may be questionable. Despite the face that Brohi presents to
his human rights-scheme as theocentric, he hardly accounts for the role that the juristtheologians and human authorities play in the construction and adjudication of these
rights. To claim that that human rights in Islam are theocentric, is to suggest that they
have transcendent origins. But it does not necessarily mean that they become immutable and absolutist. Perhaps human beings played a far greater role in the shaping of
theocentric legal systems than what religious ideologies are prepared to admit.
Donnelly and Nasr perhaps best capture the fundamental conflict between Muslim and secular perceptions of human rights. Donnelly distinguishes between human
rights and human dignity.32 The latter he believes, is normally the concern of religiousrights 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 undertaking beyond membership in the human race. To have human rights one does not have to be anything other than a human being. Neither must one do anything other than be born a human being.33
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Nasr grasps the essence of a rights-system inspired by the tradition of Muslim juristictheology. 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 certain rights and freedoms which
are again outlined by the Divine Law. Those who do not fulfil these obligations have
no legitimate rights; any claims of freedom they make upon the environment or society is illegitimate and a usurpation of 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 centrality and 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 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 al-Ghannãshi, 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. Ghannãshi eloquently
states his point.
A comparison between the principles of human rights in Islam and the modern human rights charters discloses that there is a large area of commonality, with few exceptions, which is the reason why the universal declaration of human rights, for
example—in its general thrust—is so widely received by the Muslim who has a good
understanding of his religion.36
By minimizing the differences between Islamic rights and modern human rights,
Ghannãshi and others transplant the rhetoric of secular human rights onto the discourse of religio-moral rights.
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The Dilemma of Islamic Human Rights
Despite the attempts to forge an Islamic equivalent of the modern 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-modern 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 religion, which
would prima facie be in violation of article 18 of the Universal Declaration which confers the right to freedom of thought, conscience and religion, including the right to
change one’s religion and belief. Conversion would be tantamount to apostasy (ridda)
in terms of Islamic law and thus an offense punishable by death according to most
legal schools of thought. In explaining this rule, some contemporary scholars have argued that apostasy in early Islam and medieval times was viewed as one of a number
of subversive activities that threatened the public security of the Muslim community.37
Sachedina, for instance, explains that while the Qur’~n advocated religious freedom,
the disruptive events and political realities in the career of early Islam managed to restrict the interpretation of such freedoms.38 And when the state becomes the guardian
of the faith, then any threat to the state is also regarded as an attack on religion. “In
the face of the expansion of Islamic political power and hegemony,” Sachedina argues,
the deep Qur’~nic impulse toward religious freedom steadily lost ground—in practice
and in theory—to the equally strong concern for defending the faith against active
persecution and violent assault. The defensive use of force gradually gave way to
more aggressive legal and political policies.39
This is also the view adopted by some of the leading theorists in the modern Islamic
revivalist movement who do not view apostasy as a religious offence punishable by
religion.40 Instead, they hold that it is a political offence that is subject to punishment
at the discretion of political authorities. This is a departure from the medieval consensus, which regarded apostasy as a religious offence and its penalty sanctioned by law.41
It becomes easier for latter day scholars to dissent from the traditional consensus on
this issue because of subtle epistemological transformations that had taken place in
modern Muslim thought in dealing with the primary sources. Modern thinkers place
greater emphasis on the Qur’~n and are less fastidious with had§th sources.42 The warrant for apostasy is not derived from the Qur’~n, but from prophetic reports (had§th)
that can be impugned with error in transmission or interpretation with less contro-
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| The Dilemma of Islamic Rights Schemes | 13
versy. The modern view has also attempted to reconcile the law with the overall spirit
of the Qur’~nic teachings that does advocate greater freedom to choose one’s faith.
Protected Status of Non-Muslims
Pre-modern interpretations of the shar§`a saw the world as two primary domains or
jurisdictions: the jurisdiction of Islam (d~r al-Isl~m lit. “abode of Islam”) where Muslim
suzerainty prevails, and the jurisdiction of war (d~r al-harb lit. “abode of war”) where such
legitimate Islamic authority is absent. Modern jurists have developed hybrids of these
two primary categories such as an intermediate jurisdiction, called a jurisdiction of
peace or a jurisdiction of reconciliation (d~r al-Isl~m. lit. “abode of peace” d~r al-mu‘~hada
lit. “abode of mutual contracting”). In this jurisdiction, Islamic authority does not prevail,
but the Muslim subjects of the territory come to some security arrangement with the
non-Muslim political leadership, pledging to uphold the rules of domicile in exchange
for protection.
Changes in the international system of governance have rendered these political
and juridical models obsolete. No Muslim state, including modern day Iran and Saudi
Arabia, adopts these as part of their public international law. Nevertheless, these models of a bygone political era still inform the thinking of traditional jurists and some
ideologues of Islamic revival today. Non-Muslims living within Islamic jurisdictions or
even in secular Muslim countries, constantly fear that a return to an Islamic state could
result in the reinstatement of these pre-modern political and legal models. The fear is
that if Islamic parties come to power they may declare the country to be a “domain of
Islam” and relegate non-Muslims to a status of second-class citizens under the guise of
being a protected person (ahl al-dhimma) as defined by Islamic law. A protected citizen
(dhimmi) while enjoying most civil rights as his/her Muslim counterparts do, would be
barred from enjoying some crucial liberties that are available to Muslims. For instance,
a non-Muslim would not be able to become a head of state or occupy jobs in key military and intelligence positions of a Muslim country, according to classical interpretations of the shar§`a.43 Although these rules are not implemented as law in the majority
of Muslim countries today, they are still the unwritten cultural practice in many states.
Again such notions may conflict with the requirements of the rights of citizenship in
democratic contexts. While early Muslim political theory may have allowed for persons
of other religions to be treated differently such as requiring non-Muslim subjects to
wear specific forms of dress, or the differential application of law, there is no fundamental imperative in modern Islamic law and ethics to perpetuate such enforcement.44
In the annals of Islamic history there is evidence of non-Muslims serving Muslim governments in high office without their presence being viewed as either a violation of the
law or a threat to the security or identity of the state. Many apologists for the retention
of the dhimmi status of non-Muslim citizens use the discriminatory treatment of Muslim communities in the West as an argument in defense of their positions.45 The inexcusable levels of discrimination against Muslims by western powers cannot, however,
be the basis for the relativization of Muslim ethics that result in “tit for tat” justice.46
14 | Worlds & Knowledges Otherwise | Fall 2004
The Status of Women
Most contemporary religious expressions of Islam, excluding crass advocates of savagery in the name of religion, would deny that discrimination against women is permissible. Despite their vehemence, these very same groups approve a range of
manifestly discriminatory practices inherited from the medieval formulation of Islamic
law.47 The result is that some trends in Muslim jurisprudence still hold that women do
not acquire legal and moral majority in certain transactions, and hence require the
guardianship of males. According to some legal schools, women lack the capacity to
contract marriages independently, although they can paradoxically own property.48
Women also do not have an unfettered right to sue for divorce as men have the unqualified power to repudiate their spouses.49 Recent changes in Egyptian law may be
inching in the direction of giving more freedoms in such matters but the legislation
has also provoked a great deal of controversy and criticism from religious quarters.
Most of the rules affecting inter-spousal and male-female relations are premised on the
strong patriarchal and patrilineal assumptions of medieval Islam. For example,
women’s evidentiary testimony has to be corroborated by that of another female before the cumulative testimony of both can be equal to that of a male. Some schools
argue that the requirement of two females’ evidence only apply to financial and commercial transactions and does not apply to all domains of life. Similarly, most traditional juristic opinion disqualifies women from holding senior political and judicial
office as in the case of Iran where women were prevented from holding judicial office
after 1979 which is now gradually being rectified. In Pakistan it was debated whether a
woman could be a Prime Minister of a Muslim country. There is nevertheless a vibrant
debate taking place in almost all Muslim societies about the status of women; the more
gender sensitive reading of Qur’~nic ethics proposed by some jurists, contrasts sharply
with readings of traditional jurisprudence.50
Protecting Human Rights or Human Dignity
The existing differences between 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 human rights, even if some Islamic interpretations may conflict with secular human
rights conclusions. Failure to accept parallel models despite differences may generate
miscommunication between societies and nations. Rentlen has shown that rights enumerated under a moral system different from the secular rights system, does not necessarily derogate it from being “rights,” albeit rights in a different sense.51 The rightsbased notion of human rights advanced by Donelly, it should be remembered, is based
on a Western understanding and experience of what it means to be human, which excludes the understanding of “human” nature and relationships in other cultures. The
human rights culture today has to address the fact of postcolonialism. It is also part of
a process of globalization that has hegemonic designs on the part of economically advantaged Western nations to incorporate as many compatible political entities into a
unified economic world.52 Cooke and Lawrence ask the relevant political question, albeit in rhetorical fashion.
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| The Dilemma of Islamic Rights Schemes | 15
In the context of Western global hegemony under siege, can human rights ever find
expression except as a reflex of power so pervasive that it feels no need to account
for its own interests, but only for the deviance and non-compliance of others?53
In recent years the hegemony of market capitalism and the globalization of Western
political culture has witnessed the abuse of human rights discourse. It has become a
political weapon in the hands of powerful nations in order to subdue emerging nations
and those communities contesting the monopoly of global political power. The United
States in its military adventures abroad has openly violated human rights conventions,
just as some of its Third World allies have committed abuses that remain unpunished
by the world community. At the same time, countries not friendly to Western powers
are subjected to sanctions and international isolation for human rights offences. Some
Islamic nations are at the forefront of contesting these contradictions and issuing
jeremiads of Western double standards, often for the wrong reasons, and mainly to
justify their own human rights abuses. This state of affairs results in a monumental,
unrelentingly bleak account of the status of human rights in the international discourse. Neither does the unremitting concentration of Western antipathy about Muslims’ essential inability to accept of human rights help to further the languages for
meaningful moral and political discourse.
The global and universalist aspirations of the human rights movement raises
thorny issues of cultural relativism versus universalism. The transfer of human rights
from one cultural setting to another may be possible, but whether it delivers satisfactory results is altogether another question. Cultural relativists, like Rentlen, and
Islamists, like Ghannãshi, argue that the differences between secular rights-based human rights and Islamic duty-based theories of rights are negligible and at best semantic, but not real.54 Western human rights can function within non-Western social,
moral and political systems. It requires us to grasp the meaning of human rights as a
“cumulative political struggle,” says Ashcraft.55 When the Universal Declaration was
announced there was resistance to it in certain African, Asian, socialist and Muslim
countries. Already that was an early indication that the mechanical transfer and grafting of rights discourse from one cultural context to another could not be done mechanically. For this reason the United Nations adopted the International Covenant on
Economic, Social and Cultural Rights and International Covenant on Civil and Political Rights, both came into force in 1976 in order to give attention to rights that
UDHR did not fully explore. Irene Bloom, echoing Ashcraft’s idea of human rights as
a “cumulative struggle” that needs to be understood in its historical, sociological and
political dimensions, writes:
Here we find an unmistakable truth emerging from the complex reality of religion
and human rights: despite the universalism implied in its premises and affirmed in its
achievements, the human rights movement itself entails struggles that must be car-
16 | Worlds & Knowledges Otherwise | Fall 2004
ried on in many parts of the world in response to particular problems and conditions,
with the energy and courage for such struggles coming from individuals who, while
ultimately sharing some common goals and aspirations, often draw on religious resources that remain richly and irreducibly diverse.56
Islam’s Window to a Human Rights Order
Raimundo Pannikar, a Catholic thinker, has addressed the issue of human rights in a
multi- and cross-cultural context in a helpful manner. Instead of trying to transliterate
the concept of human rights into another culture, he suggests that we should rather
search for the homeomorphic equivalent for human rights in another culture.57 If the
goal of modern human rights is to protect and show respect for human dignity, then
we should investigate how a particular culture satisfies that need. Needless to say, just
as tradition is not static but constantly re-invents itself, similarly the cultural equivalent
for human rights is not fixed. Only after we have established consensus around a mutually understandable intercultural language about, say, human dignity, can a genuine
dialogue and moral conversation take place. The language of international law may
allow inter-governmental discourse or conversations among cosmopolitan elites to
occur, but that does not necessarily translate into a successful inter-cultural dialogue.
Human rights, to use Pannikar’s simile, are but one “means” or “window” through
which a specific culture envisages a just human order. Those who inhabit such a human rights culture do not necessarily see that “window” and then erroneously assume
the panorama to be their home. Furthermore, other cultures may have different kinds
of windows that provide a different angle on the view.
Some interpretations of Islamic ethics, as discussed above, may seemingly appear
to be incompatible with secular human rights. However, there are other approaches
that may be able to find a common language and a modicum of compatibility between
Islamic rights and secular rights systems. A revisionist or reconstructionist stance towards the Islamic juristic legacy may be the most suited approach to accomplish such a
challenge. Reformist and revisionist Muslim thinkers take into account the sociological, economic and political transformations that have occurred in Muslim societies.
This empirical reality is then brought into dialogue with the tradition in a bid to reinvent it for newer contexts. To clarify this point we might explore an important presumption commonly ignored by Muslim thinkers: the tension that exists between the
notions of “status” and “contract” in Islamic law. It becomes evident that some of the
Muslim thinkers cited above, such as Nasr and Brohi in their respective explanations
endorse the presumption that it is the “status” of the individual which determines a
body of reciprocal obligations, duties and responsibilities in traditional societies.58 In
modern societies, perhaps less so in traditional societies, “contract” is the operative
means of exchange, where the individual is seen as a separate entity that exercises independent authority.59 Most anthropologists agree that there is no chronological sequence from “status” to “contract,” but that societies are characterized by the
predominance of one model over another. Most societies contain practices of both
“status” and “contract”, though the former is more a feature of traditional societies
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| The Dilemma of Islamic Rights Schemes | 17
and the latter of modern ones. Nevertheless, it is observable how the effects of colonization, for instance, transformed traditional “status” societies into the “contract”
model, by instituting centralized authority, bureaucratization, introducing written constitutions, legal codification, rule of law and notions of citizenship.60 On the other
hand we observe that when dictatorships and authoritarian regimes reverse democratic
societies into autocratic systems, the shift from “contract” to “status” occurs.61
Any discussion of Islamic law and ethics must acknowledge and recognize the
broader political and economic system that regulates people’s lives. The nature of contemporary Muslim societies varies between models that are preponderant “status” or
“contract,” as well as variant hybrids of the two systems.62 To the extent that a society
successfully implements a political system that resembles a contract model between
state and citizen, it may be more predisposed to interpret Islamic law as compatible
with contract and hence open to modern human rights. In such instances, the Islamic
“text” would be read as supporting individual liberty, given that traditional Islamic law
does make provision for the will of the individual to be authoritative in a contract.63 In
places where society, ethnicity, religion, class and gender, largely determines the reciprocal duties and obligations, not the will of the individual, such Muslim communities
would find the concept of “status” abundantly evident in the traditional interpretation
of Islamic law, mainly to reinforce their social conditions and expectations. Such
communities might find modern human rights to be too individualistic and incompatible with their communitarian culture and religious values. 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 therefore not surprising
to find that Muslims, who live as minorities in Europe, as well as in economically developed or rapidly developing countries, would easily endorse modern bourgeois human rights notions to be compatible with Islam. Despite the flaws in the UIDHR, it is
significant to note that it was Muslims in Europe who adopted it.
It should become evident that nothing about either the Islamic or the secular
human rights traditions make them inherently compatible or incompatible with each
other. In fact, it is the location of the interpreter, the reading of the text and the social
conditions that generate different responses to issues such as human rights. Plurality is
a feature of living traditions. Brohi and Nasr, who are opposed to the anthropomorphic nature of modern human rights, and al-Ghannãshi who states that anyone “who
has a good understanding of his religion” will not find a problem with secular human
rights, constitute two diametrically opposed perceptions and interpretations of both
the Islamic tradition and the contemporary context. Most Muslim scholars would argue that the pith of the modern human rights debate is about the preservation of human dignity (kar~ma), even though some secularist proponents would disagree. The
Qur’~n and the teachings of the Prophet explicitly entrench human dignity as a fundamental ethical norm in human conduct. Islamic law and ethics have an established
philosophy that was designed to protect human dignity.
In theory, whatever means were used in the past to protect human dignity can
undergo change, provided the new measures give effect to justice and fairness, since
18 | Worlds & Knowledges Otherwise | Fall 2004
the essence of the shar§`a is justice. We have to consider, says a contemporary mufti
(jurisconsult) “that which is more convenient and better for people, as long as God
had commanded us to act with justice and equity (‘adl) without limiting us to the
means of achieving this justice and equity (‘adl).”64 Long before him, the noted fourteenth-century jurist 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 shar§`a:
The foundation of the shar§`a is wisdom and the safeguarding of people’s interests in
this world and the next. In its entirety it is justice, mercy and wisdom. Every rule
which transcends justice to tyranny, mercy to its opposite, the good to evil and wisdom to triviality does not belong to the shar§`a although it might have been introduced into it by implication. The shar§`a is God’s justice and mercy amongst His
people. Life, nutrition, medicine, light, recuperation and 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 shar§`a, which God entrusted His prophet to
transmit, is the pillar of the world and the key to success and happiness in this world
and the next.65
Ibn Qayyim also stated:
God had sent His Prophets and revealed His books so that people can establish justice. It is the truth on which the firmament of the heavens and earth rests. When the
indices of truth are 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 invalidated it in other
methods, which are more clear, more explicit and self-evident. In fact, He demonstrated in 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 obligatory to 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 (maq~sid) [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 modern rights
discourses. However, the mere adoption of formulations like those offered by Ibn
Qayyim is not enough. At best the statement shows that in earlier times a critical and
courageous legal scholarship did have a place in Muslim society. At worse Ibn Qayyim’s views can serve as an apologetic to satisfy the “Islam has all the answers” nostrums. On the positive side the apologia provides some short-term relief and provides
some legitimacy to efforts of juridical reconstruction in drawing on eminent authori-
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| The Dilemma of Islamic Rights Schemes | 19
ties of the past. The long-term health of Islamic jurisprudence, however, can only be
furthered if, and when, a substantial revision of Muslim legal theory takes place. Some
of the rethinking that takes place can be gleaned from the small-scale social experiments taking place in Muslim minority contexts such as South Africa.
Islam and Human Rights in South Africa
In South Africa, part of the Muslim community was guided by an understanding of the
shar§`a, that carried a sense that a religious imperative is also a just one. A number of
Muslims, along with their secular and other compatriots belonging to other religions
opposed the policies of enforced legal racial segregation known as apartheid. Muslims
in South Africa are estimated to number close to a million people.67 The earliest
among them descended from East Asia, from the islands near modern Indonesia and
Malaysia and were brought to the Cape of Good Hope in the seventeenth century with
the earliest Dutch colonizers. Another group from the Indian sub-continent arrived as
indentured laborers and some as traders in the middle of the nineteenth century. At
various periods in the twentieth century, many persons from a Muslim background
participated in resistance politics from a secular platform and attained national prominence. However in the last four decades of the twentieth century there has been a noticeable growth of Muslim political activists and groups motivated to participate in the
political struggle on the strength of their religious convictions. They were influenced
by pan-Islamic revivalist discourses emanating from the Middle East and South Asia.
Among the main revivalist groups is the Muslim Brotherhood in Egypt and the Jam~t
Isl~mi in Pakistan that have been influential on an international scale.68
Within the South African context, groups like the Muslim Youth Movement, the
Call of Islam, as well as the ultra-radical group Qibla Mass Movement spearheaded the
role in constructing a Muslim ethos of liberation. Together with independent progressive clerics as well as those affiliated with the Muslim Judicial Council (MJC), these
groups provided an Islamic rationale—based on juristic and theological arguments—
to resist oppression and political injustice. These efforts culminated in a number of
religious declarations that condemned apartheid as an illegitimate political order in
terms of Islamic law and ethics.69 In contrast to the Muslim progressives, the traditional ‘ulam~’ groups functioning as organized councils of theologians did little to issue
any guidance to the Muslim community on how to deal with apartheid in terms of an
Islamic ethos.70 Individual clergymen in their individual capacity from 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
progressives felt the need to issue statements and offer minimal pastoral guidance on
matters related to race and Islam.
The task of formulating the equivalent of a Muslim liberation theology largely fell
on the shoulders of a younger generation of ‘ulam~’ and activists under the influence
of Islamic revivalism in the 1980s who began to describe the rudimentary elements of
a contextual Islam in South Africa. Prior to this, much of South African revivalist Islam was viewed through the prism of the large-scale vision and universal goals of pan-
20 | Worlds & Knowledges Otherwise | Fall 2004
Islamism that romanticized the coming of a global Islamic order, in which the advent
of the Islamic state was but the first stage. That vision was gradually abandoned in the
search for an Islamic human rights ethos within a South African context. Challenged
to combat racism and advance human rights, a few Muslim intellectuals began to rethink some of the fundamental questions of what it meant to be a Muslim in a multicultural and multi-religious setting. Many of the exclusivist notions of “self” and
“other” inherited from traditional theology came under critical scrutiny. Muslim ethics
in this context embraced the humanist aspects of Islam in a cultural context shared
with multiple “others.” The Qur’~nic injunction that humanity was a “single family”
acquired greater prominence and began to overshadow the inherited Muslim theological formulations that promised salvation for Muslims exclusively.
Gradually and almost imperceptibly something more far-reaching was taking
place from the periphery of the Muslim world, South Africa. Most of the inherited
juridical and theological teachings are premised on a model where Islam serves and
advances the interests of an empire. Despite the collapse of the Ottoman empire,
many of the assumptions of empire as well as aspirations to re-invent the empire persist in Muslim thinking. In multi-cultural and multi-religious South Africa, Islamic particularism gave way to more universal or humanist interpretation of Islam. This meant
that for a generation of conscientious Muslims, freedom of belief and conscience was
an absolute and unfettered right, not only to believe but also the freedom to make
one’s choice of faith. Serving another human being became as important as serving a
person of one’s own faith. Any human being could be the beneficiary of a Muslim’s
deeds and vice versa. Most conscientious Muslims under apartheid, where racism oppressed the majority of non-Muslims as well as a few Muslims, felt that this immoral
practice had to be resisted and combated because it was deemed an affront to a common humanity. Self-serving ethnic and religious interests had to be cast aside on moral
grounds since they conflicted with the universal vision of Islam. In short, racial injustice clashed with the vision of Islamic justice. The traditional clergy (‘ulam~’) nevertheless continued to clash with Muslim progressives over the emerging interpretations.
They felt that the emergence of a humanist Islamic ethics as advocated by Muslim
progressives threatened the very foundations of traditional notions of “self” and
“other” and issued loud protestations against such reinterpretation.71
For the Muslim progressives, one thing led to the other. Consistency, as well as a
commitment to racial justice, also required that one could no longer ignore gender injustice perpetuated by tradition and the constructions of male jurists 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 triumphalist slogans, but in demonstrable action. This meant that discriminatory aspects and practices
found in Islamic law towards women had to be replaced with newer and more equitable solutions. In this regard the license that Islamic law allows for the adjustment of
the law to new contexts and changing conditions through the process of creative legal
reasoning (ijtih~d) and renewal (tajdid) came to good effect.
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| The Dilemma of Islamic Rights Schemes | 21
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 abandoning notions of “status.” Contemporary thinkers increasingly interpret the traditional Islamic notion of leadership (im~ma) to mean a form
of “social contract” (‘aqd) between the ruler and the ruled.72 The need to make the leap
from personal government of the pre-modern im~ma model, to governance by means
of an impersonal state, is actuated by a need in contemporary Muslim societies to fetter the powers of rulers and subject them to the scrutiny of the citizenry or their
elected representatives. This interpretative innovation brings Muslim political thought
closer, albeit haltingly, to modern forms of representative government of which democracy is only one among many models, even though in a world in which market
liberalism is triumphant it may appear to be the only model. In such a model the notion of citizenship will replace the idea of a political “subject”. Citizenship becomes a
norm that is grafted onto Muslim political and constitutional jurisprudence. For some,
this holds a promise that the nation-state, whose citizen enjoyed certain rights and obligations irrespective of religious, ethnic affiliation and number, could become compatible to an Islamic ethos.73
Conclusion
The human rights discourse in Islam has undergone several phases producing a kaleidoscope of views ranging from those that equate Islamic human rights with the secular
rights discourse to those who claim that the two are radically different. I have shown
that the concept of rights imagined in the early period of Islam, renders aspects of inherited notions of ethics incompatible with the modern rights discourse. On the other
hand, those thinkers who do equate Islamic rights discourse with human rights do so
without explaining why and how they abandon the presumptions of the pre-modern
Islamic rights discourse. The result is that they operate within a paradoxical theoretical
framework that displays its deficiency in several instances when Islamic human rights
are put to the test.
I have argued that Muslim jurists and thinkers must acknowledge that quantum
shifts have occurred in both human society and our inherited conceptions of “self”
and “other”, in addition to a range of other categories not discussed above. These are
not static categories and they imperceptibly undergo change within the Islamic tradition over the centuries. In order to produce a credible version of human rights in dialogue with both the tradition and the present, a fundamental re-thinking need to take
place.
22 | Worlds & Knowledges Otherwise | Fall 2004
NOTES
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. Islamic Soc. Sci. 463 (Winter 1995); 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).
(http://www.stanford.edu/group/SHR/5-1/text/toc.htlml)
3. See Azizah al-Hibri, Islam, Law and Custom: Redefining Muslim Women’s Rights, 12 Am. U. J.
Intl. L. & Policy 1, 4 (1997), 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 Wãdih Rash§d al-Nadaw§, Maf~him Muta‘~rida li 'l-Hurriyya, al-R~’id 1 (7
Sha`b~n 1620/Nov. 16, 1999). Samuel P. Huntington, The West Unique, Not Universal, 75 For.
Affairs 28, 38 (Nov./Dec. 1996); Samuel P. Huntington, The Clash of Civilizations, 72 For. Affairs 22, 36 (Summer 1993).
4. Human Rights and the Conflict of Cultures: Western and Islamic Perspectives on Religious Liberty 4
(David Little, John Kelsay & Abdulaziz A. Sachedina, eds., Columbia, S.C.: U.S.C. Press 1988).
5. R~shid al-Ghannãsh§, al-Hurriy~t at ‘}mma f§ ’l-Dawla al-Isl~miyya 320 (Beirut: M’arkaz
Dir~s~t al-wahda al-‘Arabiyya 1993) [hereafter Hurriy~t]. Boaventura de Sousa Santos, Toward a
New Common Sense: Law, Science and the Politics in the Paradigmatic Transitions 344 (London:
Routledge 7 Sha`b~n 1620/Nov. 1995) 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. Fazlur Rahman, Internal Religious Developments in the Present Century Islam, 2 J. World History 862, especially 872-875 (Nov. 1955).
7. Muhammad Iqbal, The Reconstruction of Religious Thought in Islam vi (Shaikh Muhammad
Ashraf 1960).
8. Id. at 5.
9. Ibn ‘Abd al-Hakam, Futãh Misr wa’ l-Maghrib 225-226 (‘Abd al-Mun‘im }mir ed., Cairo:
`Is~ Babi al-Halab§ 1961).
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.
12. Jack Donnelly, The Concept of Human Rights 1 (London: Routledge 1985).
13. Encyclopaedia of Islam second edition cited in full as Encyclopedia of Islam 2 [hereinafter cited as EI 2] s.v. hakk (Leiden: Brill 1960).
14. ‘Al§ b. Muhammad b. ‘Al§ al-Jurj~n§, Kit~b al-Ta`rif~t 120 (Ibr~h§m al-Iby~ri ed., Beirut:
D~r al-Kit~b al-‘Arab§ 1405AH/1985AD).
15. The first date is the hijri date, AH, and the second according to the Gregorian calendar,
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| The Dilemma of Islamic Rights Schemes | 23
AD.
16. See Muhammad Fathi ‘Uthm~n, Taqr§r Huqãq al-Ins~n bayna al-shari`a al-Isl~miyya wa’l
Fikr al-Q~nãn§ al-Gharb§ 555 (2d ed., Wazarat al-Ta‘lim al-‘}li 1398/1978). ‘Uthm~n 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 Jean Dabin, General Theory of Law, in The Legal Philosophies of Lask, Radbruch,
and Dabin 232 (Kurt Wilk trans., Cambridge, Mass.: Harv. U. Press 1950).
17. Ibn Am§r al-H~j, al-Taqr§r wa ’l-Tahb§r vol. 2, 104 (2d ed., Beirut: D~r al-Kutub al‘Ilmiyya 1403/1983); ‘Abd al-Razz~q al-Sanhuri, Mas~dir al-Haqq fi’ l-Fiqh al-Isl~m§ vol. 1, 14
(Cairo: Dar al-Ma‘~rif 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.
19. Wahba al-Zuhayli, al-Fiqh al-Isl~mi wa Adillatuhu 9 (2d ed., Damascus: D~r al-Fikr
1404/1985).
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).
23. Malcolm Kerr, Islamic Reform: The Political and Legal Theories of Muhammad Abduh and
Rashid Rida (Berkeley: U. of Cal. Press 1966) for a detailed discussion of the various interpretations of Islamic law among modern Muslim jurists.
24. Badria al-Awadhi, 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. Commn. of Jurists 1982).
25. Muhammad Zafrullah Khan, Islam and Human Rights 141-142 (4th ed., Tilford, Surrey:
Islam Intl. Publications 1989).
26. Id. at 142.
27. Universal Islamic Declaration of Human Rights, in Islam and Black Muslim Roots in Azania 7788 (Yusuf Nazeer ed., Johannesburg: Africa-Islam Research Found. 1982) [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. 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).
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).
36. Hurriy~t, supra n. 5, at 320.
37. Abdulaziz A Sachedina, Islam and Religious 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.
24 | Worlds & Knowledges Otherwise | Fall 2004
40. Hurriy~t, supra n. 5, at 48-50. Al-Ghannãshi says that this was also the view al-Imam
Muhammad ‘Abduh, al-Shaykh ‘Abd al-Mut‘~l al-Sa‘d, ‘Abd al-Wahh~b al-Khall~f, Abã Zahra,
al-Shaykh ‘Abd al-‘Aziz Sh~wish, Fathi ‘Uthm~n, ‘Abd al-Ham§d Mutawalli, ‘Abd al-Hak§m,
Hasan al-Tur~bi, and Muhammad S~lim Ghazãr.
41. Taqi al-Din Ahmad ibn `Abd al-Hal§m Ibn Taymiyya, Majmã` Fat~w~, vol. 37, 28, 413416 (Mu’assasat al-Ris~la (1618/1997).
42. See Daniel Brown, Rethinking Tradition in Modern Islamic Thought (Cambridge, Mass.:
Cambridge U. Press 1966).
43. Hurriy~t, 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. Hurriy~t, supra n. 5, at 292.
46. See Arcot Krishnaswami, Study of Discrimination in the Matter of Religious Rights and Practices,
11 N.Y.U. J. Intl. L. & Pol. 227 (Fall 1978).
47. For an interesting study of public reactions to extending citizenship rights to women in
Kuwait, see Katherine Meyer, Helen Rizzo & Yousef Ali, Islam and the Extension of Citizenship
Rights to Women in Kuwait, 37 J. for the Sci. Study of Religion 131 (1998). 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. Muhammad ibn Ahmad al-Raml§, Nih~yat al-Muht~j al~ Sharh al-Minh~j, vol. 8, at 6:224
(Mustaf~ B~bi al-Halabi 1967-1969).
49. See Werner F. Menski, South Asian Muslim Law Today: An Overview, 9 Sharqiyy~t 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, Women and the Qur’an: Rereading the Sacred Text from a Woman’s Perspective
(2d ed., N.Y.: Oxford U. Press 1999); see also Ziba Mir-Hosseini, Islam and Gender: The Religious
Debate in Contemporary Iran (Princeton, N.J.: Princeton U. Press 1999).
51. Alison Dundes Rentlen, The Concept of Human Rights, 83 Anthropos 343 (1988).
52. Robert W. Cox, A Perspective on Globalization, in Globalization: Critical Reflections 24 (James
Mittelman ed., Boulder, Colo.: Lynne Rienner Publishers 1996), states that “Globalism and
globalization arose together as orientations for thought and action.” See also Bassam Tibi, Islam
and the Cultural Accomodation of Social Change (Clare Krojzl trans., Boulder, Colo.: Westview Press
1990).
53. Miriam Cooke & Bruce B. Lawrence, Muslim Women Between Human Rights and Islamic
Norms, in Religious Diversity and Human Rights 313 (Irene Bloom, J. Paul Martin & Wayne L.
Proudfoot eds., Columbia, S.C.: Colum. U. Press 1996).
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. Raimundo Pannikar, Is the Notion of Human Rights a Western Concept?, 120 Diogenes 78
(Winter 1982).
58. Norbert Rouland, Legal Anthropology 124, 228 (Phillipe G. Planel trans., London: The
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| The Dilemma of Islamic Rights Schemes | 25
Athlone Press 1994).
59. Id.
60. See Said Amir Arjomand, Religion and Constitutionalism in Western 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 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 Muhammad Yusuf Musa, The Liberty of the 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 Banani & Speros Vryonis Jr.
eds., Wiesbaden: Otto Harrassowitz 1977) (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-Fat~wa al-Isl~miyya, vol. 8, 3032 (Cairo: al-Majlis al-A‘l~ li’ l-Shu’ãn al-Isl~miyya
1403/1983-1984).
65. Ibn Qayyim al-Jawziyya, I‘l~m al-Muwaqqi‘§n ‘an Rabb al-‘}lam§n vol. 3, 3 (T~h~ ‘Abd alRa’ãf Sa‘d ed., Beirut: D~r al-J§l n.d.); see also Subhi Mahmas~ni, Falsafat al-Tashr§‘ fi’l-Isl~m 220
(5th ed., Beirut: D~r 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‘l~m al-Muwaqqi‘§n ‘an Rabb al-‘}lam§n, supra n. 65, at vol. 4, 373.
67. See Ebrahim Moosa, Islam in South Africa, in Living Faiths in South Africa 129 (John de
Gruchy & Martin Prozesky eds., Cape Town: David Philip 1995).
68. See Abdulkader Tayob, Islamic Resurgence in South Africa: the Muslim Youth Movement (Cape
Town: U. of Cape Town Press 1995).
69. See Asghar Ali Engineer, Islam and Liberation Theology: Essays on Liberative Elements in Islam
(New Delhi: Sterling Publishers 1990); Farid Esack, Qur’~n, Liberation & Pluralism: An Islamic
Perspective of Interreligious Solidarity against Oppression (Oxford: One World 1997).
70. See Ebrahim Moosa, Muslim Conservatism in South Africa, 69 J. Theology for S. Africa 73
(Dec. 1989).
71. Id.
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 An-Na‘im,
Religious Minorities under Islam Law and the Limits of Cultural Relativism, 9 Human Rights Q. 1
(1987).