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Given the continuous expansion and maturation of Islamic reformist views, focusing on the views of the traditionalists, or on “middle-ground positions” is bound to distort the reality of cultural reform in the Muslim society, and obscure the direction and dynamism of social change. To doubt the potential of Islamic reform ― despite the overwhelming evidence of gradual change of views toward a more liberal and egalitarian position advocated by reformists ― because of the shortcomings of current reality is tantamount to doubting the liberating ethos of the declaration of independence at the time of its promulgation because the American society did not include women and blacks in the notion of “the people”. It took almost two centuries, and a lot of struggle on the part of countless individuals who strongly believed in human dignity, to bring this ethos to bear on the reality of social practices.
Again, despite the breathtaking cultural changes that took place in the twentieth century Muslim societies, we still find scholars who want to convince us that there is such a thing as a never-changing “Islamic culture”. Thus Tibi is able to make sweeping generalizations on Islam and Muslim cultures; he writes:
If Muslims are to embrace international human rights law standards full-heartedly, they need to achieve cultural-religious reforms in Islam ― not as faith but as a cultural and legal system. In fact, Islam is a distinct cultural system in which the collective, not the individual, lies at the center of the respective worldview. The concept of human rights, as Mayer rightfully stresses, is “individualistic” in the sense “that it generally expresses claims of a part against the whole.” The part pointed out by Mayer is the individual who lives in a civil society and the whole is the state as an overall political structure. Islam makes no such distinction. In Islamic doctrine, the individual is considered a limb of a collectivity, which is the puma/community of believers. Furthermore, rights are entitlements and are different from duties. In Islam, Muslims, as believers, have duties/afraid vis-à-vis the community/puma, but no individual rights in the sense of entitlements.
We are told in one breath that (1) Muslims are in need for cultural-religious reform, (2) Islam is not a set of values and beliefs that ― like other religions ― give rise to various cultural forms, but a “distinct cultural system,” and (3) Muslims have only duties towards the community, but “no individual rights in the sense of entitlements.”
Tibi is not the first to argue that the emphasis in Islam is on duty rather than rights. Donnelly advances similar arguments when he contends that, “Muslims are regularly and forcefully enjoined to treat their fellow men with respect and dignity, but the bases for these injunctions are divine commands that establish only duties, not human rights.” Yet these assertions only reflect the lack of awareness, and possibility access, to the hundreds of voluminous works in Islamic law that elaborate various rights, and judicial procedures for protecting those rights, in the historical Muslim society. Suffice it here to give one example from the work of the classical Muslim jurist al-Mawardi (d. 450 A.H./1086 A.C.). Recognizing people’s right to form their own views, and to disagree with the prevailing views and dominant social and political beliefs, he stresses that “if a group of Muslims rebelled by disagreeing with the views of the community, and forged their own ideology, they are to be left alone and should not be fought, and the rules of justice should be applied to them in accordance with their rights and obligations.” Further, Muslims were able always resort to the numerous courts of law established to enforce the rules of law in the areas of family, commercial, and criminal laws. They were also able to appeal to a high court, the court of mazalim, whenever they were not satisfied with ordinary courts rulings, or their rights were violated by governors or public officials.
Tibi’s statement that “Muslims … have duties … but not rights in the sense of entitlement” is a true description of contemporary Muslim society, but not “Islamic culture” throughout Muslim history. Contemporary Muslims do not enjoy rights not because these rights are not on the books, but very often because they are ruled by authoritarian regimes and police states that have very little respect to the idea of the rule of law. The “Islamic culture” in which the individual is lost in the crowd of the collectivity is that of authoritarian Muslim regimes who have entered into an unholy alliance with contemporary Islamic traditionalists against Muslim reformers. Authoritarian Muslim rulers have found it more convenient to cooperate with traditionalist jurists, whose agenda does not include such items as political participation, or constitutional and legal reforms, in their fight against reform ideas and their advocates.
UNIVERSALISM AND THE IMPERATIVE
OF CULTURAL MEDIATION
I have argued so far against a static and ahistorical approach to understanding the Islamic position on international human rights adopted by many human rights scholars critical of views held by Islamic traditionalists. I have maintained that such an approach inevitably distorts reality, since it fails to uncover the dynamism and direction of cultural reform currently underway in Muslim society. My contention is not that Muslim cultures have already achieved the desired political and legal reforms, or that they have already brought about effective protection of individual rights and social justice. For from it. I rather contend that Islamic reform has been a positive force in liberating Muslim consciousness from both the crushing and oppressive ideologies of developmentalism, and the limiting practices of Islamic traditionalism. I turn in this section to explore the relationship between moral universalism and cultural relativism, and to underscore the need for, even the imperative of, cultural mediation of any meaningful legal reform. The argument in this section paves the way for introducing, in the subsequent section, a slightly modified approach to cross-cultural dialogue.
Since the adoption of the Universal Declaration of Human Rights in 1948 by the UN General Assembly, and the subsequent empowerment of the UN Human Rights Commission to monitor and ensure compliance of state members in 1976, the question of the universality of international human rights has been hotly debated. Two main positions can be clearly distinguished: absolute universalism and absolute relativism. The former holds that culture is irrelevant to the moral validity of human rights, while the latter insists that culture is the only source of moral validity. Both positions fail to capture the full scope of the intercourse between culture and universal values, and both have been used to advance self-serving interests.