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Written by Louay Safi   
Aug 11, 1998 at 08:00 PM
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Human Rights and Islamic Legal Reform
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Is Islam compatible with human rights?  This question has been in recent years the focus of attention of numerous human rights scholars, who have produced varying answers and advanced conflicting views.  Any one who undertakes to study the literature generated in the process of answering the above question soon realizes that his or her task is exceedingly complex.  For one finds that the foremost critics of traditional shari`a (Islamic law) are united with its ardent advocates in denying any relationship between Islam and human rights.  One also finds that the proponents of a conception of human rights rooted in Islamic worldview stand condemned by both modernist and traditionalist scholars: by the former because of their association with Islam, and by the latter because of their advocacy of human rights.  In the midst of the contradiction and confusion that riddle the discourse on Islam and human rights, clarity and understanding are sacrificed.

At the core of the confusion lay a static and ahistorical approach that fails to distinguish the universal principles from their historical manifestation in particular forms, and refuses to relate the applications of the Islamic principles to their historical contexts and premodern socio-political conditions.   Therefore, modern human rights scholars are quick to point out that historically, Muslims and non-Muslims were not treated equally under shari`a law, in complete disregard to the gulf that separate the nationalist structure of modern political organization and the communalist structure of premodern political societies.  Likewise, Muslim traditionalists, driven by a similar static outlook, and oblivious to the drastic social and political changes that separate historical and contemporary Muslim societies, insist on embracing the rules expounded by early jurists, even when the application of these historical rules would negate the universal principles of Islam which gave them force in the first place.

            While agreeing with the modern critics of historical shari`a that its application in modern society would lead to serious violation of human rights, I reject the contention that Islamic law has been oblivious to the notion of human rights.  I argue that the failure of modern critics to discern a human rights tradition in Islam results from a static and ahistoric outlook that divorce the shari`a rules developed by classical scholars from the socio-political structure of early Muslim society.

            I further contend that for a modern human rights tradition to take hold in modern Muslim society, it should be rooted in the moral/religious commitments of Muslims.  This can be achieved not through an imposition of a human rights tradition evolved in an alien culture, but by appealing to the conception of human dignity embedded in the Qur’anic texts, and by employing the concept of reciprocity which lies at the core of the Qur’anic notion of justice.

            I therefore conclude by showing that the application of the Islamic sources through a paradigm that incorporates the principles of human dignity and moral reciprocity into a modern society — characterized by cultural plurality and globalizing technology — is bound to evolve a human rights tradition capable of ensuring equal protections of the moral autonomy of both individuals and groups.

 

 

HISTORICAL SHARI`A AND ITS MODERN CRITICS

Islamic law (shari`a) has been the subject of an elaborate and penetrating critique by human rights scholars.  Modern scholars who have examined human rights schemes, advanced by contemporary Muslim authorities, have concluded that these schemes run far short of the protections provided by international human rights, enshrined in the Universal Declaration of Human Rights (UDHR).  Thus Mayer contends that contemporary endorsement of international human rights by Muslims is more apparent than real, because all human rights pronouncements by Muslim individuals and groups have been curtailed by qualifications rooted in shari`a.[1]  The application of shari`a law would lead, she concludes, to serious breaches of international human rights.  More specifically, the application of shari`a law would lead to the erosion of religious freedom and to discrimination against women and non-Muslims.[2]

            Heiner Brelefeldt echoes the concerns of Mayer regarding historical shari`a’s capacity to provide for human rights protections, particularly for women and non-Muslims.  Examining areas of conflict between shari`a and human rights, he notes:

            Due to the timing of its development, it is hardly surprising that the classical shari`a differs from the modern idea of universal human rights.  Although the shari`a puts a great deal of emphasis on the equality of all the faithful before God, it traditionally assumes unequal rights between men and women and between Muslims and members of other religious communities.[3]

 

Similar arguments are made by Rhoda Howard, who points out that traditional shari`a fails to provide for equal protections of the law for women and non-Muslims.  “According to traditional interpretations,” she writes, “Islam excludes entire categories of people, most notably women, slaves [sic], and non-Muslims, from equality under the law, although it does set out careful rules for their unequal protection.”[4] Haword cautions, however, against any conclusion that would suggest that the classical legal system was unjust, and goes on to argue that “compared with Europe until barely a century and a half ago, Islamic societies might well be characterized as far more just in the modern sense of protecting human rights.”[5] Still, Howard is quick to deny the possibility of developing a modern human rights tradition, rooted in Islamic worldview, insisting that “Islamic conception of justice is not one of human rights.”[6]

            Perhaps the most penetrating and systematic critique of traditional shari`a is provided by Abdullahi An-Na`im.  In his Toward an Islamic Reformation, An-Na`im discusses specific examples of violation of religious freedom by shari`a rules, and cites instances of discrimination against women and non-Muslims in the historical legal system.[7] However, unlike the previous critics of shari`a, An-Na`im realizes that the possibility and importance of evolving a human rights tradition from within the Islamic normative system, and warns against any external imposition.[8]  To do this, he calls for an Islamic reformation aimed at overcoming contradictions between international human rights and shari`a rules, and proposes a methodological approach based on what he calls “the evolutionary principle” introduced in the seventies by his late mentor, Mahmoud Muhammad Taha.  According to this principle, the Makkan Qur’an embodies the eternal principles of the Islamic revelation which emphasize human solidarity and establish the principle of justice for all, regardless of religion, gender, or race.  The Medinan Qur’an, however, places, it is further argued, the solidarity of male Muslims above all others, thereby giving rise to discrimination against women and non-Muslims.  For this reason, An-Na`im contends, one finds contradictions between the Makkan and Madinan Qur’an.[9]  While the Makkan Qur’an emphasizes freedom of religion and the peaceful coexistence among different religions, the Madinan Qur’an exerted Muslims to compel the unbelievers to accept Islam, and introduced measures that discriminate against women and against non-Muslims.[10]  Rightly recognizing that classical jurists introduced the principle of naskh (abrogation) to discard early Qur’anic statements that appeared to contradict later statements, An-Na`im calls for the application of reverse naskh, i.e. the abrogation of the Madinan Qur’an whenever contradicts the Makkan.[11]  An-Na`im concludes by making a passionate plea that succinctly summarizes his approach:

Unless the basis of modern Islamic law is shifted away from those texts of the Qur’an and Sunna of the Medina stage, which constituted the foundations of the construction of Shari`a, there is no way of avoiding drastic and serious violation of universal standards of human rights.  There is no way to abolish slavery as a legal institution and no way to eliminate all forms and shades of discrimination against women and non-Muslims as long as we remain bound by the framework of Shari`a.[12]

 

            An-Na`im’s proposal seems on its face value to provide a quick fix to the contradictions between historical shari`a and international human rights.  However, the “evolutionary principle”, alluded to earlier, is not sustainable, I contend, as it can be easily faulted on both theoretical and practical grounds.  First, since the Qur’an is considered by Muslims, as An-Na`im himself agrees, as a divine revelation, one has to accept the totality of the Qur’anic statements as a single discourse.  Therefore, one is not justified in abrogating the Madinan verses altogether on the ground that they address a particular historical society.  Rather one has to eliminate the possibility of generalizing particular rules by demonstrating their particularity.  Such a procedure would permit one to arrive at the same result without reverting to a wholesale rejection of one-third of the Qur’an.   Secondly, negating the Madinan Qur’an would not be acceptable by the bulk of Muslims, including those who agree with An-Na`im that there should be a fresh reading of the Islamic sources so as to effect a sweeping legal reform.  For the Qur’anic statements revealed in Madina do not only comment on family matters and relationships with non-Muslims, but also on issues relating to fundamental Islamic practices, such as the performance of prayer, zakat, fasting, and hajj.  Thirdly, negating one-third of a book which the majority of Muslims consider to be incontrovertible is counterproductive, particularly when it can be shown, as I intend to do shortly, that the contradictions between the Makkan and Madinan statements on women and non-Muslims are more apparent than real, resulting from faulty interpretations by classical scholars, as well as the application of an atomistic methodologies of derivation. 


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