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Research - Law
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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            A better and more effective approach to reforming historical shari`a is one that sets out from the very notion that constitutes the raison d’etre for the articulation of human rights in Western tradition, viz. human dignity.  Since the Qur’anic texts embody clear and developed notion of human dignity, restructuring shari`a rules — particularly those which relate to the public sphere — on the basis of the Qur’anic notion of human dignity would lead, I contend, to a situation in which the civil and political liberties of all citizens — regardless of gender, ethnic, or religious distinctions — are protected.  Further, setting out from the notion of human dignity to reform the shari`a has another advantage:  It has the potential to nurture a liberal tradition without being limited to the tradition of individualistic liberalism, which many scholars consider to be Western specific.  As will be shown in the next section, developing a human rights tradition on the basis of Islamic worldview and heritage extends the notion of moral autonomy, presupposed by human dignity, from the individual to the community.

 

 

DIGNITY, RECIPROCITY, AND UNIVERSAL CLAIMS

 

The critics of shari`a have used UDHR as the standard through which shari`a is evaluated and faulted.  Because UDHR is rooted in the political culture of Western society, and is informed by the philosophical outlook of Western liberalism, its application in other societies requires that the universal validity of its principles is made evident to other peoples, particularly those whose worldviews and historical experiences are different from the West’s.  Realizing that the claim of universality cannot be established on theoretical grounds, most “international human rights” advocates advance practical and pragmatic reasons for establishing universality claims.  Some emphasize the fact that peoples of different cultural and geographical backgrounds “share a common humanity, which means that they are equally deserving of rights and freedom.”[13]  Others point out that the UDHR has been framed by representatives of the various nations that constitute the United Nations (UN), and hence conclude that UDHR receives the support of various cultures and religious communities.  Still others argue that human rights were developed in modern times to protect individuals from the encroachment of the modern nation-state.  Because the nation-state is the basic political organization for all societies and cultures, the need for adopting international human right to protect individual liberties is universal.[14] 

            The pragmatic arguments for the universality of human rights are problematic, because they either completely overlook the significant impact cultural differentiation has on values and perceptions, or ignore the fact that agreements through UN reflect, more often than not, political compromises by political elites, rather than normative consensus.  Further, many of the ruling elites who pretend to speak on the behalf of the peoples of the developing world lack political legitimacy and public support, and have embraced ideological outlooks at odd with the surrounding cultures.  In the absence of genuine democracy in the countries of the South, no one can ascertain whether, or to what extent, official policies reflect popular views and preferences.

            Given the Western roots of international human rights, and the absence of  any theoretical foundation or practical ground for their universal claims, I propose that a more fundamental criteria should be used to develop a human rights tradition, rooted in Islamic values and ethos, and capable of protecting the rights, and promoting the interests of citizens, regardless of religious, gender, racial, or national distinctions.  The fundamental criteria I am referring to are the concept of dignity and the principle of reciprocity.

Human dignity is the reason for which international human rights have been delineated.  The preamble of the UDHR begins by emphasizing this very point.  In Western tradition, the concept of dignity has been best elaborated by Kant, who points out that human beings are moral agents, and should hence always be treated as ends, and never as means.  Conceiving every human being as an end means that he or she should always be treated as a subject, capable of identifying and pursuing his or her interests.  This does not mean that one cannot use the services of others to achieve one’s goals, but that the services they provide must be performed with their consent, and should be based on their full realization of the intents, significations, and consequences of their actions.  Compelling people to act under the use or threat of force violates their dignity. Likewise, the Qur’an describes the human person as a unique being among the creatures of God, endowed with rational capacity to understand the natural order, and to distinguish right from wrong; and elevated over the entire creation by a moral capacity to commit oneself to a specific moral vision, and the ability to translate ideas and values to physical and social forms.  Life is presented as a trial in which people have the opportunity to make choices, and are individually responsible for the choices they make.  Therefore, central to the notion of dignity in both Western and Islamic traditions, is the notion of moral autonomy, i.e. the freedom to make rational choices, and to accept the outcome of the rational choices one makes. 

At the heart of the notion of dignity, though, is not social license to do whatever one wishes, but a moral character that acts out of deep convictions, including the conviction that one ought to respect the moral choices of others, and the expectation that others should reciprocate and respect one’s choices.  That is, dignity lies in the profound sense of moral autonomy which enable the person to behave in accordance with his or her moral commitments and convictions, regardless of whether others agree with him or her, or approve of their choices.  It is for this very reason that the behavior of those who are willing to give up their moral autonomy, in exchange for personal gratification, brings to mind the image of a shameless act deprived of dignity.  While those who are ready to withstand adversities, even ridicule, rather than betray their moral commitments or submit to the arbitrary will of others make us appreciate human dignity.

            Although the individual sense of dignity cannot be taken away, but can only be strengthened, by the use of arbitrary force to restrict moral autonomy, the belief in human equality, and the transcendental nature of moral responsibility require that the moral autonomy of the individual be protected by a system of rights from violation by others, particularly by a superior power, such as the state, or an organized social group.  A person who refuses to compromise deeply held principles in exchange for a generous monetary reward, or in the face of a serious threat to one’s safety, exemplifies human dignity at its best.

            Yet moral autonomy associated with human dignity is not limited to the individual, but involves the moral autonomy of the group to which one belongs as well.  Because the concretization of the moral choices one makes requires the cooperation of all individuals who share the same moral vision, the autonomy of individuals — and hence their dignity — hinges on the autonomy of the group to which they belong.   It is here where the notion of individualism in the Western and Muslim historical experience diverge.  In the tradition of Western individualism, the individual is seen as a member of a homogeneous community, and the freedom of the individual means that he or she has the right to enact their moral choices, as long as they do not violate the freedom of others.[15]  However, in the tradition of Islamic legal and political thought, society is not seen as homogenous, but consisting of a plurality of moral communities, each of which has the freedom to actualize its own moral vision.[16]

            Emphasizing the moral autonomy of groups is exceedingly important in a postmodern society that combines global orientation with moral and cultural fragmentation.  The homogenous culture in which Western individualism was developed has already become something of the past.  Cultural fragmentation and the coexistence of a multitude of moral communities is today the reality of societies once enjoyed remarkable cultural homogeneity, such as the French and the German.  Protecting human dignity in a heterogeneous society requires a markedly new approach whereby the moral autonomy of the individual is linked to that of the moral community to which he or she belong.

            While the notion of human dignity emphasizes the moral autonomy of individuals and groups, the extent of this autonomy can be specified by employing another principle, viz. the principle of reciprocity.  The principle, central to all religious and secular ethics, has been appropriated from Christian ethics by modern Western scholars, and has been given a secular expression in Kant’s categorical imperative: “Act only on that maxim through which you can at the same time will that it become a universal law.”[17]  Similarly, the principle of reciprocity lies at the core of the Islamic concept of justice.  The Qur’an is pervaded with injunctions that encourage the Muslims to reciprocate good for good and evil for evil.[18] 


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