Islam and Human Rights: Beyond the Universality Debate

Religion and the Universality of Human Rights (part two)

By Abdullahi A. An-Na'im

A possible response to this criticism of sharia is the argument that Muslims (and other believers) should strive to live by the dictates of their religion, not according to some fallible, humanly devised set of human rights norms. However, since divine commands are always understood and applied by human beings, the contrast between orthodox perceptions of "the dictates of religion" and new or unorthodox views on the matter is really between two human understandings of what the religion requires of its adherents. Accordingly, a reinterpretation of Islamic sources that demonstrates agreement with human rights norms should be considered on its own terms, rather than dismissed as un-Islamic because it is inconsistent with previously established human understandings of sharia. For Muslims, a reinterpretation should be accepted or rejected in terms of its own foundation in Islamic sources, instead of being rejected simply because it is new or unorthodox. Space does not permit a detailed discussion of possible Islamic reform methodologies that can achieve consistency between human rights and modern understandings of sharia. (7) What I wish to emphasize here is the possibility ofestablishing the religious legitimacy of such an interpretation through what might be called an anthropological approach to Islam.

As I have explained elsewhere, (8) this approach is premised on an organic and dynamic relationship between the sacred texts of a religion, the Qur'an and Sunna (traditions of the Prophet) in the case of Islam, on the one hand, and the comprehension, imagination, judgment, behavior and practical experience of human beings, on the other. Such an approach is not only justified, but in fact required by the terms of the Qur'an, which in numerous verses invites individuals, or the community, to reflect and reason independently. Indeed, verse 12 of chapter 2 and verse 43 of chapter 3 proclaim that human reflection and understanding is the whole purpose of revealing the Qur'an. The rich diversity of opinion among Muslim jurists over almost every significant legal principle or issue of public policy clearly indicates a dynamic relationship between the Qur'an and Sunna, on the one hand, and human comprehension, imagination and experience, on the other.

Since the historical context of the community and the personal experiences of individual believers substantially influence human perception and behavior, drastic changes in the conditions of individual and communal life should lead to reconsideration of the meaning and implications of the divine message. By the same token, one must appreciate the differential impact of these factors on the perception and orientation of each community of Muslims today. To emphasize the importance of the specific historical context within which Islamic principles are understood and practiced is to call for clear understanding of the nature of these factors and careful consideration of their consequences for each society. In other words, one should address these issues for each Islamic society in its own context, instead of treating all such societies in the same way.

This contextualization is particularly important because of the role of the state as the framework for the articulation and implementation of public policy for Islamic societies today. Whatever role sharia may play in the lives of contemporary Muslims, that role will necessarily be mediated through the agency of their respective national states, rather than by the autonomous action of the global Muslim community as such. As an essentially political institution, any state has to balance a variety of competing claims and interests. It is true that some of those claims and interests will probably reflect the religious sentiments of the population. But in view of the religious and political diversity of the population of Islamic countries today, and the complexity of their regional and global economic and security concerns, it is totally unrealistic to expect any state to be solely motivated by the religious sentiments of even the vast majority of its population.

In addition to the above-mentioned elements of internal discourse and its processes, consideration must be also be give to factors and processes of cross-cultural dialogue. First, the realities of global interaction and interdependence mean that cross-cultural dialogue is already taking place in different ways among various participants, and around a variety of national and international concerns. The question here is to what extent these processes can be used to promote acceptance of international human rights norms within different religious communities. Second, as is the case with all forms of human communication, the nature and outcomes of such dialogue are conditioned by the perspectives or agendas of different participants, their perceptions of historical and current power relations, levels of trust or misapprehension, and other features of both the immediate and the broader contexts. Moreover, these factors tend to interact over time not only in the context of experience but in that of shifting perceptions of self-interest, mounting or diminishing solidarity and other variable factors. Third, with regard to the relationship between religion and human rights in particular, it is important to understand the synergy between internal discourse and cross-cultural dialogue, as these two aspects of the process can reinforce or undermine each other, depending on the interaction of the contextual factors indicated above. While the preceding remarks may indicate the sort of factors and considerations that I believe should be taken into account, I can only conclude by calling for further exploration of local and global conditions that are likely either to facilitate or to hinder the legitimation of human rights within different religious traditions in general.

Possibilities of Reconciliation in the Modern Context: The View from Mauritius

During a visit to Mauritius in November 1999, I gave a lecture on Islamic family law (also known as Muslim personal law, or MPL) from a human rights perspective. In that lecture, I made the obvious point that historical formulations of sharia discriminate against women, and called for the reinterpretation of Islamic sources to secure equality between men and women in all aspects of MPL. I was speaking in the context of a debate over the enforcement of the MPL by the state, an issue that has been simmering in Mauritius since the constitutional conference of 1965. (9) After the lecture, I was denounced as a "heretic" in the press of some Islamic groups, and by imams and other speakers at local mosques, because I said that those formulations of sharia should not be enacted by the state since sharia discriminates against women. Some activists who claimed to speak in the name of the Muslim community in the country also called for me to be declared persona non grata in the country, citing financial support by the Ford Foundation for my work on Islamic family law as conclusive evidence that I was an agent of American imperialism seeking to undermine the stability of Islamic societies from within.

The intense and hostile Muslim reaction to my remarks clearly indicated that the issue of MPL has become proxy for broader cultural and political concerns in the historical tensions between the Muslim minority and other segments of the population. As the managing editor of Impact News, the weekly newspaper that led the attack, told me on the telephone, "You should understand how important it is for us to have MPL enacted as the law for our community in this country. If we fail in doing that, all of our freedom of religion will be lost, including the right to hold Friday prayers in our mosques." I find that claim unjustified by any independent criteria, but also appreciate the fact that this view is firmly held by many Muslims in the country, who tend to understand their local and regional situations against the background of a long and bitter history of interreligious strife in India, the land of origin of both the Hindu majority and the Muslim minority in Mauritius.

There was also a clear awareness among the Mauritians that the international legitimacy of their island country requires a good human rights record. This was true among Muslims who supported the move to enforce MPL through the official legal system. Otherwise, they would not have been as concerned with my saying that sharia violates human rights by discriminating against women. It is probably true that Muslim activists were more concerned about the government's rejection of the idea of a MPL code on human rights grounds than they were about upholding the fundamental human rights principle of nondiscrimination on the grounds of sex. Nevertheless, an awareness of the relevance of human rights norms to domestic policies is precisely the sort of influence the international system is supposed to exert.

This dialectic between the global and the local, which is commonly appreciated now, is part of the cross-cultural dialogue mentioned earlier in this essay. The point I wish to emphasize here is the need for a variety of strategies to enhance the influence of human rights standards in both the domestic and the global context of each society. In relation to the role of religion in particular, it is imperative to engage in an internal discourse within the framework of the religious community in question, in order to overcome objections to human rights norms. Whether such a discourse is conducted through the reform methodology suggested in this essay, or by some other means, an internal discourse about the religious validity of human rights is essential if these rights are indeed to be universal at the global level.

Concluding Remarks

The term human rights is popularly used to refer to a variety of systems for negotiating competing claims and interests in regard to how a society should be organized to achieve the best possible degree of freedom and justice. As used in this essay, however, this term means the particular normative and institutional system for realizing those objectives in the context of the state throughout the world today. Despite their clearly secular Western origins, human rights must also be legitimated in the context of different religious traditions because of the importance of those perspectives for the vast majority of people around the world. This process of religious legitimation requires creative approaches to theological questions in the specific socioeconomic and political context of each society. The universality of human rights must be realized through the implementation of deliberate strategies that are likely to attract popular support, instead of on the basis of assumptions that such universality already exists, or can be achieved by proclamation in international documents.

The proposed approach to the relationship between religion and human rights strongly emphasizes commonalities as well as differences in the experience of societies. These commonalities are easier to appreciate in light of a clear understanding of the dynamics of local struggles over power and resources, than by exclusively focusing on abstract theological precepts. This approach will enable human rights scholars and advocates to address the role of Islam (or any other religion) as a source of motivation and mobilization for particular political and social agendas, without appearing to challenge its legitimacy as the faith of a significant segment of the population of any country.

The experience I had in Mauritius clearly demonstrates that a more realistic and contextualized appreciation of the practical difficulties facing the universal acknowledgment of human rights in each society is essential to devising the best strategies for influencing the processes of cultural transformation in favor of better protection of those rights. The way out of the vicious cycle of the "universality-relativity debate" is to go deeper into the local context of each issue in order to find sustainable points of mediation. As with other public policy issues, the legitimacy and efficacy of the protection of human rights must be promoted through deliberate strategies that combine visionary belief in the possibilities of social and political change with a realistic appreciation of the difficulties.

In closing, I wish to express my personal appreciation of the fact that Professor Louis Henkin is the commentator on this presentation. With profound respect, I take the liberty of noting that both of us strive to combine adherence to our respective religious traditions with a strong commitment to the universality of human rights. While gladly accepting the possibility of disagreement between the two of us about how to reconcile religious adherence with a commitment to the universality of human rights, I still believe that our collaboration somehow resonates with the argument I have attempted to make in this lecture.

1. Charles Howard Candler Professor of Law, Emory University, Atlanta, Ga. Formerly Associate Professor of Law, University of Khartoum, Sudan.
2. While "humanitarian interventions" and actions by the UN Security Council can be cited as examples of coercive measures for the protection of human rights against the will of national governments, these mechanisms apply only in extreme cases and are too dependent on the political calculations of the major powers to qualify as part of a reliable system for the regular international enforcement of human rights norms.
3. See, generally, Abdullahi Ahmed An-Na'im & Francis Deng, eds., Human Rights in Africa: Cross-Cultural Perspectives (1990); Abdullahi Ahmed An-Na'im, ed., Human Rights in Cross-Cultural Perspectives: Quest for Consensus (1992).
4. On the origins and development of that historical understanding of sharia, see Abdullahi Ahmed An-Na'im, Toward an Islamic Reformation: Civil Liberties, Human Rights and International Law (1990), ch. 2.
5. Bernard Weiss, The Spirit of Islamic Law (1998), 116. Emphasis in original.
6. For a detailed discussion of discrepancies between historical formulations of sharia and modern international standards, see An-Na'im, supra note 3, at 4-7
7. An-Na'im, supra note 3, at ch. 3.
8. Abdullahi Ahmed An-Na'im, Toward an Islamic Hermeneutics for Human Rights, in Human Rights and Religious Values: An Uneasy Relationship ch. 16 (Abdullahi A. An-Na'im et. al., eds., 1995).
9. Bhewa and Alladeen v. Government of Mauritius and DPP, 1990 Mauritius Reports, pp. 79-90.

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.
Copyright: HeinOnline – American Society of International Law, Proceedings 1995 (2000).

4. April 2002


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