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Research - Law
Written by Louay Safi   
Mar 18, 1999 at 02:00 PM
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Human Rights and Cultural Reform
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Mayer immediately dismisses the doubts raised in the above question, insisting that “[a] lthough in the abstract this question might seem justified, there are indications that warrant the assumption that these qualifications are designed to dilute rights.”[5]  She goes on to cite three grounds for her contention: (1) that the Iranian government excludes “[l]iberal Muslims with strong commitments to human rights, like Mehdi Bazargan and Muslim clerks like Taleghani, who believe that Islam protects individual rights and freedoms…”[6] (2) that Middle Eastern governments in general are “hostile to claims on behalf of individual liberties and the rights of the citizens,”[7] and (3) that there is “no developed tradition of Islamic human rights protections.”[8]

Yet it is not difficult to show, on a closer examination, that the grounds cited by Mayer are fragile, and do not warrant her assumption.  Thus the first point she advances supports the contention I raised earlier that she is relying on traditionalist interpretations of shari’a while obscuring the role of Islamic reformers in bringing about profound sociopolitical change to Muslim society.  For Mehdi Bazargan is himself a leading figure in the Islamic reform movement that contributed to the demise of the authoritarian regime of the Shah.  He was a member of the committee that drafted the Iranian Constitution, and the first prime minister in post-revolution Iran.  He continued to work toward the creation of an open, egalitarian, and tolerant Islamic society after he was pushed to the opposition by the traditionalist policies of the Ayatollahs until his death.  His efforts, and those of other Islamic reformers, gave rise to a vibrant reform movement, opposing the conservative regime in Iran. The movement has recently succeeded in dislodging the conservatives from the executive branch, bring more moderate government under Khatami.

Similarly, to argue that Middle Eastern governments are “hostile to claims on behalf of individual liberties” is to miss the point.  For one needs only to remember that these regimes embrace the ideologies of developmentalism — in their both nationalist and socialist forms — which justify forced assimilation and cultural imposition, the very ideologies that gave rise to Islamic reform movements.  These governments are, by and large, avowedly antagonistic to Islamic reform, and have rejected in the past all attempts to base social development on Islamic values on ethos.  The recent efforts on the part of some Muslim governments to incorporate certain elements of historical shari’a into the law are aimed at gaining the support of traditionalist jurists in their struggle against Islamic reformers.

Finally, Mayer’s contention that there is “no developed tradition of Islamic human rights protections” is perplexing, and illustrative of a legalistic approach that lacks sensitivity to cultural dynamism.  For while it is true that historical shari’a does not support a full-fledged system of human rights protection in modern society, Islamic reformers have been actively engaged, since Afghani and Abduh, in efforts to reform traditional shari’a, as it is shown bellow.  Still, it is inaccurate to suggest that one cannot find principles, laws, and doctrines that can provide strong foundation for Islamic human rights tradition. Indeed, as early as the second century of Islam (eighth century) Muslim jurists have recognized the rights of non-Muslims to equal protection of the law as far as their personal safety and property are concerned, as well as their right to full religious freedom.  Thus Muhammad bin Hassan al-Shaybani, the author of the most authoritative classical work on non-Muslim rights, states in unequivocal terms that when Muslims enter into a peace covenant with non-Muslims, “Muslims should not appropriate any of their [the non-Muslims] houses and land, nor should they intrude into any of their dwellings.  Because they [have become] party to a covenant of peace, and because on the day of the [peace of] Khaybar, the Prophet’s spokesman announced that none of the property of the covenanters is permitted to them [to Muslims].  Also because they [non-Muslims] have accepted the peace covenant so as they may enjoy their properties and rights on par with Muslims.”[9]  Similarly, al-Shaybani concedes that Christians who have entered into a peace covenant with Muslims have the right to practice their religion and maintain their Churches, and are entitled to trade freely in wine and pork in their own towns, even though trade in, and consumption of, the two items is prohibited to Muslims under shari’a rules.[10]

Evidently, Mayer’s assumption that shari’a rules are bound to effect excessive restrictions on Islamic human rights schemes rests solely on reading these schemes through the eyes of the traditionalists, while keeping the views of reform-minded Muslim scholars and activists in the background.  Indeed, leaving crucial facts and evidence out, while conveniently focusing on radical and traditionalist elements of Islamic resurgence are characteristic of those human rights scholars who have been quick to dismiss the profound Islamic reform currently underway in Muslim societies, and to overlook its anti-traditionalist stance and liberal tendencies and ethos. 

Similarly, scholars engaged in hegemonic discourse often water down the negative impact of the self-serving foreign policies of major Western powers on cultural reform, and on the maturation of human rights traditions.  Thus Bassam Tibi dismisses the selective application of human rights by Western powers as irrelevant to the debate on human rights practices in the Middle East, and rejects the complaint of non-Western critics against selective application as mere polemics.[11]  He goes further to dennounce non-Western opposition to Western hegemony as unwarranted resistence “disguised as a claim to cultural authenticity”.[12]   Tibi does not stop even once to ask: whence comes this hostility?  Nor does he seem interested in finding out whether the non-West is resisting the principles of human rights themselves, or only Western interpretations of the mode and scope of their application.  In fact Tibi seems to be completely oblivious to the possibility that non-Western hostility might have to do with the support Western powers lend to oppressive non-Western regimes, ruled by hated dictators.  The hegemonic nature of the intellectual discourse in which Tibi is engaged is so pervasive that it turns out that even the notion of “cross-cultural consensus” he vigorously advocates does not involve a dialogue among autonomous cultures engaged in rational persuasion, but a coercive discourse that takes the form of monologue through which non-Western cultures are expected to learn the manners and habits of a presumably morally superior West.[13]

 

THE PURPOSE OF HUMAN RIGHTS:

FROM AUTONOMY TO PATERNALISM

Can international human rights, which borrow their moral and intellectual strength from natural rights tradition — a tradition that places great emphasis on human dignity and individual autonomy — be used as an instrument to patronize and control other cultures?  The answer to this question can be found in an article written by a human rights scholar and Middle East specialist, under the title “An Essay on Islamic Cultural Relativism in the Discourse of Human Rights”.[14]  The article begins by pointing out certain oppressive practices of the Iranian Islamist regime, and rightly identifies as the source of these practices the regime’s failure to recognize the incompatibility of nation-state structures with the historically based Islamic legal system.  However, the author turns, in the second part of his article, to direct his moral indignation of the Iranian regime at the practice of hijab (Islamic dress) by Muslim women.  Rejecting the assertion by Muslim women that their voluntarily adoption of the hijab signifies a self-expression of their idea of Islamic decency, and an “affirmation of female autonomy and subjectivity”, Afshari insists that the assertion is

illusory, more a symptom of a deeply rooted sociocultural malady than a sign of female autonomy.  It is illusory because the precondition that necessitates the adoption of the hijab is set by the patriarchal reinvigoration of control and dominance, a new bay’a (oath of allegiance) to male autonomy and subjectivity.  It is illusory because the wearer’s notions of propriety and modesty have internalized the androcentric norms of the culture.[15]


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