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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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            While I do recognize the complexity of the issues involved in the debate on gender equality and gender roles, and the need for undertaking further research to examine the socio-historical meaning of biological differences between the sexes, and the socio-political significance of psychological differences – if any – between genders, I think that the debate is neither relevant nor helpful for the purpose of elaborating human rights.  It is obvious that the findings of all empirical studies on the issue of sexual differences have been disputed on ideological grounds and have been interpreted in support of competing normative positions.  There is nothing to suggest that human beings would ever subordinate their moral beliefs to empirical knowledge – at least not in a historically relevant timeframe.  I propose, instead, that for the purpose of advancing equitable rights for all, we should focus our attention on how to ensure that marriage constitutes a consensual relationship that contribute equally to advancing the interests of the various parties involved.  This, I suggest, can be achieved – as far as the legal system is concerned – by: (1) providing men and women with equal rights to enter into the relationship on their own terms, and to leave whenever they decide that the relationship has become exploitative or dissatisfying, and (2) to empower women so as to ensure that they can negotiate the conditions of the marriage from a point of strength, and to ensure that they do receive the legal support they need to make it possible for them to exit the relationship whenever it becomes undignifying. 

            The point being stressed here is that marriage should be viewed as a voluntary and contractual relationship, entered into with the aim to founding a family.  In keeping within the framework of human rights, our efforts should focus on liberating the individual, morally and legally, from the impositions of arbitrary wills, rather than imposing a specific moral vision or legal code on him or her.  Mature men and women should be able to negotiate the terms of their relationship freely without imposition from outside.  Because, more often than not, families are organized in  keeping with specific religious traditions of recognized moral autonomy, it is wrong for a person who belongs to one moral community to impose his or her moral vision on others. 

            The above point can be illustrated by looking into few concrete examples.  Forcing a woman to stay in a marriage against her will violates her right to moral autonomy and hence contravene her civil liberties, to which she is entitled under international human rights, even if this was done in keeping with a specific religious tradition, such as the Catholic.  By the same token, no one should be justified to force a woman who, in keeping with Catholic morality and religion, decides to keep her marriage, even if it can be shown that her relationship with her husband brings her no satisfaction or happiness.  Similarly, a woman who elects to maintain her marriage even after she became aware of her husband’s intention to take a second wife, permitted under shari`a, must be allowed to do so.  The law should provide her with the option to opt for a dignified exit under reasonable conditions.  But it would be sheer arrogance for a person belonging to another moral or religious view to insist that their moral values or religious practices should prevail over her voluntarily made choice.

            Even when one truly believes that the moral system to which he or she belongs is superior to others, and that others, by following different moralities, are not being treated to the full respect they deserve, one is not justified to require that his or her moral system should be imposed through legal means on others.  For human dignity, which human rights intend to protect, requires that the person be first persuaded to the superiority of this or that moral system, so as to allow him/her to be the agent through which the legal system is reformed.  The most the advocate of human rights should do is to ensure the free flow of information, and a political environment conducive to freedom of speech and action.

            Because of the importance of the family to human society, all religions stress certain attitudes and values to keep it intact, and to extend its protection to the fragile souls who were brought to life within its confines.  Human rights scholars should not direct their efforts to undermine religious attitudes and values, but should focus on the conditions that allow free and equal entrance and exist to the two genders.  This would mean that while Muslim women may keep in line with their religious conviction and refuse to marry non-Muslim men, those who elect to violate the religious code should have the legal freedom to do so.  As we saw earlier, in violating the moral requirements of shari`a, they will be answerable to their creator, not to society.

 

CONCLUSION

Our examination of the Qur’anic discourse reveals to us the significance it places on the moral autonomy of human beings.  While the Qur’an urges people to adopt high moral standards, it makes it quite clear that people are ultimately accountable to their creator for their moral failings.  The Qur’an further stresses that while it is not always possible for people to stay on a high moral plane, they should strive to the best of their ability to do so.  Those who have been more fortunate to lead a moral life should strive, with tolerance and sympathy, to persuade others to adopt their vision of a good life, but they should never go to the extent of imposing their morality on others.  It was such an attitude which allowed early Muslims to embrace diverse cultural groups, and to cooperate and peacefully coexist with a plurality of religious communities.

            The tolerant attitude and pluralistic outlook was later diluted, giving rise to a more intrusive approach in which the lines separating the moral from the legal became blurred.  The traditionalist stance was further compounded by undermining the principle of moral equality between men and women advanced in the Qur’anic texts.  This was done by giving more weight to particular pronouncements, while ignoring universal principles and general purposes.  Gradually, therefore, the moral autonomy of individuals and groups was severely compromised.  Interestingly, though, in their zeal to assert Islamic morality through legal enforcement, the traditional jurists unwittingly undermined the moral fabric of society.  This is because moral character does not develop under conditions of rigid restrictions on free speech and action.  By definition, a moral choice presupposes that the individual has also the choice of acting immorally, or in accordance with standards that does not rise to the level of moral action.  Take this choice away, morality cannot be distinguished from hypocrisy and duplicity.

            There is a dire need today for Muslims to undertake a legal reform so as to restore the principle of moral autonomy to both individuals and cultural groups.  By so doing, Muslims would have a greater opportunity to rid their communities from oppression, corruption, and hypocrisy.  They would have also the chance to join hands with an increasing number of individuals and groups belonging to the various religious communities of the world to fight global injustice and oppression.  The UDHR, should be viewed as a common thread that can bind the efforts of people belonging to diverse moral communities the world over.  As I tried to show in this paper, supporting international human rights does not mean that one has to accept the various interpretations assigned to them.  While the dominant interpretations of the various articles of UDHR reflect the moral inclination of Western individualism, the universal principles themselves are compatible with Islamic values and ethos.  Indeed, the rejection of UDHR on the ground that it does not fit neatly into a specific moral code derived from Islamic sources is not only a theoretical mistake, but a strategic blunder as well. Whereas the rejection of UDHR is likely to deprive the Muslims from achieving greater political liberation, a strong commitment to its principles would undoubtedly allow them to enter the global debate, and give them the opportunity to bring their values and ethos to bear positively on the future development of human rights discourse.


NOTES



[1]      The world “shari’a” in this work refers to the various rules and doctrines derived from Islamic sources by jurists, and not the sources themselves.  Historical shari’a thus signifies rules derived by classical Muslim jurists.

[2]      Ann Elizabeth Mayer, Islam and Human Right: Tradition and Practice, 2nd ed. (boulder, co.: Westview Press, 1995), pp. 64-5.

[3]      Ibid. p. 89.

[4]      Heiner Biefeldt, “Muslim Voices in the Human Rights Debate,”  Human Rights Quarterly, 17.4 (1995), p. 596.

[5]      Rhoda Howard, Human Rights and the Search for Community (Boulder, Co. : Westview Press, 1995), p. 93.

[6]      Ibid., p. 94.

[7]      Ibid.

[8]      Abdullahi Ahmad An-Na`im, Toward an Islamic Reformation (Syracuse University Press, 1990), p.52-6.

[9]      “Makkan Qur’an” refers to the Qur’an which was revealed in the city of Makkah (or Mecca), prior to the Prophet’s migration to the city of Madina where the Madinan Qur’an was revealed.

[10]     Ibid., p. 176.

[11]     Ibid. p. 49.

[12]     Ibid. p. 180.

[13]     Mayer, Islam and Human Rights, p. 7.

[14]     See for example Reza Afshari, “An essay on Islamic cultural Relativism in the Discourse of Human Rights”, Human Rights Quarterly, 16 (1994), pp. 235-76.

[15]     Natural rights thinkers, such as Hobbes, Locke, or Rousseau, perceived society to be composed of free and equal individuals.  The cultural homogeneity of members of society is taken for granted, and assumed in the notion of the state of nature.

[16]     The attitude of early Muslim jurists toward the moral autonomy of non-Muslims is illustrated in the next section.

[17]     Immanuel Kant, Groundwork of the Metaphysics of Morals (London: Routledge, 1993), p. 84.

[18]     See for example (2:194) and (55:60).

[19]     Muhammad bin Ahmad al-Sarakhsi, Sharh Kitab al-Siyar al-Kabir (Pakistan: Nasrullah Mansur, 1405 A.H.), Vol. 4, p. 1530.

[20]     Ibid.

[21]     Ali bin Muhammad al-Mawardi, al-Ahkam al-Sultaniyyah (Cairo: Dar al-Fikr, 1983/1401), p.59.

[22]     Ibid. pp. 20-23.

[23]     Ibid. p.24.

[24]     See Ibn al-Qayim, Sharh al-Shurut al-Umariyyah (Beirut: Dar al-‘Ilm lilmalayin, 1961/1381).

[25]     Muhammad bin Ahmad bin Rushd (d.595), Bidayat al-Mujtahid wa Nihayat al-Muqtasid (Beirut: Dar al-Ma‘rifah, 1986/1406) vol. 2, p. 5.

[26]     Ibid. p.8.

[27]     Ibid. p. 66-68.

[28]     Ibid. p. 40; see also al-Mawardi, p.59.

[29]     For further elaboration on this point, see Louay M. Safi “Islamic Law and Society”, American Journal of Islamic Social Sciences.

[30]     Muhammad bin Idris al-Shafi‘i, Al-Risala (Beirut, lebanon: Dar al-Kutub al-‘Ilmiyyah, n.d), pp. 401-76.

[31]     Ibid. p.

[32]     For elaboration of Hanbali Principles of Jurisprudence see Ibn al-Qayim, A‘lam al-Muaqi ‘in (Beirut, Lebanon: Dar al-Kutub al-‘Ilmiyyah, 1991 A.C. 1411 A.H.), Vol. 1, pp. 24-6.

[33]     Shi‘a jurists imposed, by far, fewer restrictions on ijtihad.

[34]     I have elsewhere expounded this approach under the title “The Methodology of Comparative Rules,”  See also Louay ‘Imal al-‘Aql (Damascus, Syria: Dar al-Fikr, 1998), Chapter 4.

[35]     He [Noah] said: O my people! See if I have a clear sign from my Lord, and that he has sent mercy unto me, but that the mercy has been obscured from your sight?  Shall we compel you to accept it when you are averse to it!”  (11 : 28).  “The message of freedom of belief and conviction, and the call to religious tolerance is reiterated time and again through various Prophets: And if there is a party among you that believes in the message with which I have been sent, and a party which does not believe, hold yourselves in patience until Allah does decide between us: for He is the best to decide.  The leaders, the arrogant party among his people, said: O Shu‘ayb! We shall certainly drive you out of our city, and those who believe with you, or else you shall have to return to our ways and religion.  He said: “What! Even though we do not wish to do so.” (7 : 86-7).

[36]     Say: O my people!  Do whatever you may:  I will do (my part).  But soon will you know on whom an anguish of ignoring shall be visited, and on whom decends an anguish that abide”.  (39 : 39-40).  “Say:  Everyone acts according to his own disposition:  But your Lord knows best who it is that is best guided on the way.” (17 : 84).

[37]     O you who believe!  Guard your own souls:  If you follow (right) guidance, no hurt can come to you from those who stray.  The goal of you all is God:  It is He that will show you the truth of all that you do.”  (5 : 105).  “So if they dispute with you, say:  I have submitted my whole self to God and so have those who follow me.  And say to the People of the Book and to those who are unlearned: Do you (also) submit yourselves?  If they do, they are in right guidance.  But if they turn back, your duty is to convey the Message; And in God’s sight are (all) His servants.”  (3 : 20)

[38]     In fact, one cannot find in the Qur’an any support for the ridda penalty.  The Qur’an makes two references to ridda: “Nor will they cease fighting you until they turn you back from you faith if they can.  And if any of you turn back (commit ridda) from their faith and die in unbelief, their works will bear no fruit in this life; and in the hereafter they will be companions of the fire and will abide therein.” (2:217) “O you who believe!  If any from among you turn back (commits ridda) from his faith, soon will God produce a people whom He will love as they will love Him — humble with the believers mighty against the disbelievers, thriving in the way of god, and never afraid of the reproaches of detractors.  That is the grace of God, he bestows on whom He please; and God encompasses all and he knows all things.” (5:54).  In both cases the Qur’an does not specify any physical punishment here and now, let alone a death penalty.  The Qur’an rather warns those who renounce their faith of disgrace and ill-fate.  To the countrary, the Qur’an provides a direct evidence, albeit open to interpretation, that ridda is not punishable by death: “Those who believe then disbelieve, then believe again, then disbelieve and then increase in their disbelief – God will never forgive them nor guide them to the path.” (4 : 137).

[39]     See al-Shatibi, al-Muafaqat (Beirut, Lebanon: Dar al-Ma‘rifah, n.d.), vol. 3, pp. 15-26.

[40]     Ibn Hisham, al-Sirah al-Nabawiah (Cairo : Mustafa Halabi Press, 1955/1375), Vol. 2, P. 409.

[41]     For an elaborate discussion of this point see Mohamad Hashim Kamali, Freedom of Expression In Islam, (Kuala Lumpur : Ilmiah Publishers, 1998), pp. 87-106.

[42]     See for example, Abu Hamid al-Ghazzali, Fada’ih al-Batiniyyah (Amman, Jordan: dar al-Bashir, 1993/1413), p. 95-97.

[43]     See for instance Al-Iz bin Abdul Salam (d. 660AH), Qawa’id al-Ahkam (The Basis of Rules), Vol. 1, pp. 113-21; al-Shatibi, Ibid., Vol. 2, pp. 318-20.

[44]     The Qur’an repeatedly points out that people’s neglect of its commandments has no consequences onto the Divine whatsoever — be it good on evil — but only onto themselves:  See for example, verses: (2 Baqarah 57), (7 al-A’raf 160), (3 Al-Imran 176-77), and (47 Muhammad 32).

[45]     The execution of Ghaylan al-Dimanshqi by the order of Caliph Abdul Malik bin Marwan, and Ahmed bin Nasir by the order of Caliph al-Wathiq after being accused of heresy are cases in point.

[46]     See Ibn al-qayim, al-shurut al-Ummariyyah; also Ibrahim bin Nujaym (d.970 ah), Al-Ashbah was al-Naza’ir (Damascus; Dar al-Fikr, 1988/1403), pp. 386-8.  Ibn Nujaym belongs to the more tolerant school of Hanafi.

[47]     Not all of them are alike! Of the People of the Book are a portion that stand (for the right); they rehearse the signs of God around the night, and they postrate themselves in adoration.  “They believe in God and the last day; they enjoin the right and forbid the intolerable (munkar); and they hasten in (all) good works:  they are in the rank of the righteous.  Of the good that they do, nothing will be rejected of them; for God knows well those that do right.”   (3 : 113-5)  “And there are certainly among the People of the Book those who believe in God, in the revelation to you, and in the revelation to them, bowing in humility to God.  They will not sell the signs of God for a miserable gain!  For them is a reward with their Lord, and God is swift in account.”   (3 : 199)

[48]     Those who believe (in the Qur’an), those who follow the Jewish (scriptures), and the Sabians and the Christians – any who believe in God and the Last Day, and work righteousness – on them shall be no fear, nor shall they grieve.”  (Al-Ma’idah 69)  “The Qur’an goes even further to make it abundantly clear that no religious community has the right to claim monopoly on righteousness or salvation:  The Jews say:  The Christians have naught (to stand) upon;  and the Christians say: The Jews have naught (to stand) upon.  Yet they (Profess to) study the (same) book.  Like unto their work is what those say who know not; but Allah will judge between them in their quarrel on the Day of Judgement.” (2 : 113)  “Indeed the Qur’an rebuke those of the People of the Book who justify the violation of their moral code when dealing with people who belong to another faith:  Among the people of the book are some who, if entrusted with a hoard of gold, will (readily) pay it back; others, who, if entrusted with a single silver coin, will not repay it unless you constantly stood demanding, because they say: there is no call on us (to keep faith) with these ignorant (pagans).  But they tell a lie against god, and (well) they know it.” (3 : 75)

[49]     See for example (2:8-20) and (4:142-3).

[50]     Those who believed, and migrated, and fought for the faith, with their property and their persons, in the cause of God, as well as those who gave (them) asylum and aid — these are (all) friends and protectors, one of another.  As to those who believed but chose not to migrate, you owe no duty of protection to them until they migrate; but if they seek your aid in religion, it is your duty to help them, except against a people with whom you have a treaty of mutual alliance.  And (remember) God sees all that you do.  The unbelievers are protectors, one of another: unless you do this (protect each other), there would be oppression and commotion on earth, and great mischief.” (8 : 72)

[51]     See Ibn Hisham, al-Sirah al-Nabawiyah, vol. 1, p

[52]     Reported by Bukhari, al-Tirmidhi, and al-Tabarani.

[53]     Empowering women through public work, education, and legal reform addresses cases of injustice steaming from polygamy, while separating moral from legal obligations addresses interrelagious marriage.  Unequal inheritance, on the other hand, is connected with exempting women from any obligation to spend on the household, even when they enjoy high income, and hence must be dealt with in any legal reform by considering both rights and obligations within the family.


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