Islam and Human Rights: Beyond the Universality Debate
Religion and the Universality of Human Rights
In this essay, I use the case of Islam and Islamic societies for illustration, while emphasizing that similar issues arise in relation to other religions and societies. My argument isthat the terms of this debate should be expanded, to include the role of local and global social, economic and political factors, instead of focused on purely theological analyses of the relationship between religion and human rights. In my view, this approach is more conducive to mediating between the polar extremes of universality and relativity by emphasizing common features of human experience over differences in abstract theological terms. This mediation is more likely to be effective when the focus is on the actual perception and practice of Muslims and other believers in their specific context. In other words, I am advocating that religious factors be understood in their proper perspective or context, instead of disregarded altogether or granted exaggerated impact as theological ideals.
For the purpose of this essay, it is necessary to distinguish between the two senses in which the term human rights is often used. In one sense, the term human rights refers to historical struggles for freedom and social justice in general. While prevalent in popular discourse, this general sense of the term is not useful for an analysis of the compatibility of human rights with any specific religious, political or ideological tradition, as each of these paradigms would claim its own understanding of human rights. As used here, the term human rights refers to the particular conception of freedom and social justice that was articulated in the Universal Declaration of Human Rights (UDHR) of 1948, and more specifically defined in subsequent treaties and effectuated through a variety of implementation mechanisms.
The key feature of human rights as defined in the UDHR is that these rights are due to all human beings by virtue of their humanity, without distinction on such grounds as race, sex (gender), religion, language or national origin. There is no doubt that the most immediate antecedents and articulation of this concept of human rights have emerged from Western (European and American) experiences since the late eighteenth century. As commonly acknowledged, however, those experiences were premised on the Enlightenment, rather than Christian or Jewish theologies, though the latter have tended to reconcile themselves with the former over time. In particular, the concept of human rights as defined in the UDHR is essentially a "universalization" of the idea of fundamental constitutional rights as developed by Western countries, although the actual set of rights provided for in the Declaration surpasses what can be found under the constitutional system of any country, Western or non-Western.
It is important to note here that while it is not binding as such under international law, the UDHR is clearly the enabling document for efforts to definehuman rights and devise mechanisms and strategies for their implementation. Given the realities of national sovereignty and international relations, it was imperative to strike a balance between the need for international supervision and respect for the domestic jurisdiction. Thus, in universalizing certain notions of fundamental rights, international human rights systems seek to make these rights binding under international law, while leaving application on the ground to the agency of the nation-state. The mitigation of this paradox of self-regulation by states of their own human rights performance requires a clear understanding of domestic and international factors and processes, including religion and the role of religious institutions, which influence the actual conduct of states in this regard.
Since there is no reliable international mechanism for "enforcing" human rights standards against the will of national governments, (1) the crucial question is how to encourage governments to ratify human rights treaties, and motivate them to comply with the obligation to protect these rights within their respective territories. An effective and sustainable way of doing this is to generate a local constituency to advocate for the ratification and implementation of human rights within the national context. Even if the elite in control of government want to respect some human rights, it is unlikely to do so against the wishes of its own population. For such a local constituency to emerge and be effective in its advocacy of human rights, these rights must be seen by the general public as consistent with its own religious beliefs. In other words, international human rights norms are unlikely to be accepted by governments as legally binding, and respected in practice, without strong legitimation within national politics. Popular perceptions of human rights as consistent with the religious beliefs of the population are essential for these rights' legitimation in each country. Even in so-called secular states, such as the United States and France, a clear understanding and appreciation of the political and sociological importance of religion is essential to efforts to influence the human rights policies and practices of the state.
As noted earlier, I am not suggesting that consistency between religion and human rights can be assumed, or taken for granted, in any part of the world. On the contrary, one can easily identify some fundamental tensions, if not open conflict, between religious precepts and human rights norms. Therefore, a key question in the universality debate is whether the secular Western origins of human rights, as defined by the UDHR, necessarily mean that these rights are not (or cannot be) truly universal.
The response I am proposing to this question is based on the following
To develop these propositions in relation to Islam and Islamic societies,
I will first attempt to briefly explain what I believe to be the key
issue in current Islamic discourse, and explain its relevance to the
subject of this essay. The framework I propose for addressing this issue
in particular societies consists of an internal discourse and a cross-cultural
dialogue with other societies. (2) To illustrate the application of
this proposal, I will briefly outline how it might work in relation
to Islamic societies. Drawing on a recent experience in Mauritius, I
will examine some of the factors and conditions that affect the prospects
of internal discourse and cross-cultural dialogue.
Like other believers, Muslims have always sought to experience their faith in terms of individual and collective conformity with its normative system, commonly known as sharia, which is supposed to regulate their daily lives as Muslims. While Muslims tend to ascribe divine authority to historical formulations of shariaby jurists of the eighth and ninth centuries, it is clear that the precise content of that normative system has always been, and will continue to be, the product of human understanding in specific historical context. (3) As a scholar of Islamic studies recently explained, "Although the law [sharia] is of divine provenance, the actual construction of the law is a human activity, and its results represent the law of God as humanly understood. Since the law does not descend from heaven ready-made, it is the human understanding of the law--the human fiqh [literally, understanding] --that must be normative for society."(4)
While readily understandable, the common confusion between sharia as divinely ordained, on the one hand, and human efforts to discover what it means, on the other, needs to be clarified if Islam itself is to play a positive role in the lives of Muslims today. Given drastic changes in the social, economic and political circumstances of Islamic societies throughout the world, an understanding of sharia that was developed more than a thousand years ago is bound to face some practical difficulties today. Yet, significant reform of any problematic aspect of sharia cannot occur as long as preexisting human formulations of it are taken to be divine. As a result of this "man-made" deadlock, Muslims everywhere continue to subscribe to a conception of sharia that none of them are willing or able to live by. For example, religious condemnation of ribba (usury) is understood to mean that the payment of any interest on loans is totally prohibited. Similarly, religious objections to gharar (uncertainty and speculation in commercial dealings) is taken to invalidate contracts of insurance where the obligations of the parties are contingent on whether or not something happens in the future. In practice, however, Muslim individuals and their governments routinely charge and pay interest on loans, and conclude and enforce contracts of insurance because it is impossible to have viable economic systems today without these practices. This discrepancy between theory and practice can be bridged through an appreciation of the fact that all specific definitions of concepts such as ribba and gharar are necessarily the product of human understanding in specific historical context, not direct divine decree.
Failing to distinguish between the two meanings of human rights noted
earlier, some Muslims claim that historical formulations of sharia
have always secured human rights in theory, though such a situation
may not have materialized in practice. In my view, by securing a relatively
advanced degree of protection for the rights of women and non-Muslims,
historical formulations of sharia did provide for better protection
of human rights than other normative systems in the past. For example,
from the very beginning, sharia was understood to require an
independent legal personality for women, and the protection of certain
minimum rights for them in inheritance and family relations, beyond
what was possible under other major normative systems until the nineteenth
century. Similarly, sharia guarantees specific rights for the
so-called People of the Book (mainly Christians and Jews) more than
what had been provided for under other major normative systems in the
past. However, since the rights of women and non-Muslims under sharia
are not equal to those of men and Muslims, respectively, the level of
protection of rights under sharia is not sufficient when judged
by the standards set by the UDHR, which require equal rights for all
human beings, without distinction on such grounds as sex, religion or
(to be continued)
Abdullahi A. An-Na'im is Charles Howard Candler Professor
of Law at Emory University, Atlanta, GA, USA. He is the author of "Toward
an Islamic Reformation: Civil Liberties, Human Rights and International
Law" (1990, translated in Arabic 1994, Indonesian 1995 and Russian
1999). In 1999 he received the Dr. J. P. van Prag Award of the Dutch
Humanist Society for promoting the protection of Human Rights.
15. März 2002
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