Chapter: “Cultivating Human Rights: Islamic Law and the Humanist Imperative,” in Law and Tradition in Classical Islamic Thought, Festschrift in honor of Profess

My article will focus on the interface, interaction, and tensions between the human rights tradition and the Islamic tradition.  Both of these traditions—human rights and Islam—make normative demands upon all rational beings, and these demands are articulations of expectations regarding what counts as appropriate or inappropriate conduct in an endless range of contexts and social, economic, and political settings.  Both traditions attempt to create normative cultures that define standards of ethics, morality and even legality.  In addition, both traditions make their claims in the name of humanity—in other words, both claim that their normative demands ought to be believed and adopted, ought to earn deference and compliance, and ought to be accepted and acted upon for the good of humanity; both claim that, overall, human beings will prosper and be better off if they accept the legitimacy and the binding nature of the respective traditions.  The question that interests me here is whether these two systems of belief are mutually exclusive.  I do not intend to hold the response to this question in suspense; the answer is that it entirely depends on the substantive natures of the particular systems of religious and human rights beliefs, i.e., on how extensive, expansive, or even intrusive each is.

Islamic law stands in the most unique and perhaps even idiosyncratic position vis-à-vis the human rights tradition.  A considerable number of Western scholars have argued that the ideological roots of the human rights tradition is to be found in Judeo-Christian natural law, and more specifically, in the natural rights tradition.[1]  But to the extent that there has been a religious contribution to contemporary notions of human rights other than post-enlightenment Christian thought, it is the Islamic legal tradition that has contributed the most.  Yet, despite its historical contributions, in the contemporary age, Islamic law is often invoked in the context of challenging the universality of human rights standards, and in fact, many Muslims and non-Muslims believe that Islamic law is fundamentally and inherently at odds with modern human rights commitments.  To claim that Islamic law is fundamentally and inherently inconsistent with modern human rights commitments is to contend that the two institutions and systems of thought, by their very philosophical constitutions, their ideological and epistemological foundations, and even in their various possible permutations, cannot possibly be reconciled without doing such reconstructive violence to one or both of these systems that they will lose their integrity and coherence and no longer be recognized either as Islamic or law, or be about humans or rights.  The fact that this point is not and cannot be known by objective means, and that it entirely depends on how one subjectively understands Islamic law or human rights only underscores the critical importance of clarifying the assumptions and concepts being utilized when discussing the possibility of reconciliation between the two. 

The challenging issue that we confront when we deal with the possibility of reconciliation or the search for the optimum point of reconciliation is whether there is an unspoken assumption that the nature of one of these systems is static, changing, or even immutable.  If we believe that both systems are subjective constructs or subjectively recognized, is it inevitable or imperative that both of these systems must change and evolve in one and only one direction?  Is it inevitable that both of these systems become more expansive, more encompassing, and more liberal?  We are well aware of the criticism of many commentators about the crisis of legitimacy caused by the proliferation or inflation of human rights claims.[2]  If Islamic law is expected to keep up with or even tolerate what might be referred to figuratively as ever increasing aggressive territorial and jurisdictional claims by human rights regimes, does this mean that Islamic law will inevitably lose more of its integrity?  But alternatively, if the jurisdictional claims of Islamic law is sweeping—if the space in human life that Islamic law regulates is vast and all-encompassing does this necessarily mean that Islamic law crowds out human rights from the realm of significance, and that human rights commitments are rendered marginal and irrelevant?   Indeed, all too often discourses on the relationship of Islamic law to the human rights tradition are plagued by superficiality because of the failure to address the nature, scope, and function of each of those traditions.  Unfortunately, as I explain later, the failure to do so is not a methodological oversight, but at times is an intended omission driven by political motives.  At other times, it is the direct result of woefully ill-informed conceptions of the Islamic legal tradition.  Lack of clarity in discourses on human rights is often the result not of an intellectual but an ethical failure.  Meanwhile, lack of clarity in discourses on Islamic law is at times a result of obfuscation, but more often the result of self-serving states of ignorance about the Islamic legal tradition.

Human Rights as a Moral Commitment

Human rights, as I use it here, is a rationally-based intuitive or intellectual conviction, supported by an ethical and moral commitment, that is firmly, consistently, and systematically held to the extent that it leaves a deep emotional and psychological orientation that gravitates towards honouring, protecting, and serving the well-being, dignity, and autonomy of human beings simply because they are human beings.  In this construct, the origins of human rights could be intuition, reason, nature or a state of nature (i.e., a hypothetical assumption about what people will do or not do in a natural state), or God.  Human rights could be based on a firmly-held conviction as to the entitlements or immunities owed to the citizens of a national or international polity.  I do not believe that any of these convictions as to the origins of human rights, in and of themselves, are sufficient grounds for disqualifying any particular vision of human rights.   

Critically, however, there are some important caveats.  It is important to distinguish civil rights from human rights.  Human rights visions recognize the rights of human beings as human beings.  This means that visions that recognize the rights of people only because they are citizens of a democracy, or because the recognition of such rights are necessary for the proper functioning of one political system or another (most commonly a democracy), could be considered a form of civil rights commitment, but they are not human rights commitments.  Similarly, theories that recognize only the rights of particular groups of people, distinguished by race, ethnicity, religion, civilizational identity or national affiliation, properly speaking are not theories of human rights.  They are theories of rights for some people in some places living under certain conditions, but they are not theories about the rights due to all human beings.  Moreover, rights claims that make the existence of particular human rights contingent on the will of a majority are highly suspect as human rights commitments.  I think that a rather subtle distinction is needed here.  As I already noted, a human rights commitment recognizes that humans have rights simply because they are humans.  There are various ways or methodologies that lead to this conclusion, and one of those ways is to speculate as to what people will do in a state of nature or to believe in a hypothetical social contract.  These philosophical investigations could lead to the realization that all humans ought not or ought to be treated in particular ways.  Once this realization is reached what must follow is an ethical and moral commitment to the principle of human rights—a firm and unwavering conviction that there are a core set of rights that are fundamental and necessary for the well being of human beings.  In my view, the well being of human beings does not only include the protection of the life and dignity of people, but also safeguarding the ability of individuals to pursue, develop, and fulfil their potential for ethical and moral growth. [3]  But in all cases, if the recognition of rights is made contingent on the will of the majority of a citizenry then the commitment to human rights is rendered meaningless.  Put differently, if the will of the majority, regardless of how large it might be, could void or abrogate these core rights then it becomes practically meaningless to speak of a serious human rights commitment. 

A human rights commitment necessarily means a commitment to respect the rights of human beings wherever and whoever they might be.  The commitment ought not be affected one way or another by the desire of a majority of the people to honour these rights.  From the perspective of the one making the commitment to human rights, if the majority decides to honour the rights of human beings then the majority is considered to have acted properly and morally, and if the majority decides to do otherwise then such a majority is acting improperly and immorally.  For the sake of convenience, I will refer to the position that I defended here as an anti-majoritarian thesis.

The anti-majoritarian thesis has clear implications upon the issues of the universality, invariability, or relativity of rights.  A human rights commitment, if it is to make any sense at all, does necessarily entail a belief in the universality of rights.  The critical distinction, however, is that believing in the universality of rights is very different from believing in the universality of values.  It warrants emphasis that a human rights commitment is a commitment in favour of the idea that all human beings by the very nature of things enjoy certain basic and fundamental rights.  The belief in the existence of these rights is not in any way contingent upon or conditioned by, or affected in one way or another by the system of values that a particular group of people adhere to in any part of the world.  Consequently, those who make a human rights commitment are duty-bound, per their own belief system, to treat all human beings in fashion consistent with fundamental rights standards. Moreover, reciprocity of conduct or treatment has no bearing on the binding nature of human rights commitments.  For instance, a person who has made a human rights commitment will not resort to the use of torture even he or she is maltreated or tortured.

One further clarification is of critical importance:  the very logic of human rights ought to preclude the possibility of attempting to coerce people into either making commitment in favour of human rights or into adjusting their habits, customs, and social practices to meet the standards set by those who have committed themselves to human rights.  For one, social practices cannot be compelled or coerced without resulting in numerous cultural deformities such as traumatic social upheaval, tension inducing inconsistencies, and embedded hypocrisies.  But far more importantly, the use of coercion against the socio-cultural convictions of people is inconsistent with the individual and collective right to self-determination and autonomy. 

The Culture of Human Rights: The Dialectics of Doctrine and Practice

The effective plane of human rights commitments—the level at which they manifest and produce recognizable results is not law, but culture.  There are numerous laws that honour human rights in the grandest of terms, and yet they are nothing but rhetoric on paper.  Political systems, particularly constitutional democracies, might be necessary for the effective implementation of human rights commitments, but political institutions give effect to pre-existing humanitarian commitments, and they may even encourage and augment them, but they do not invent such commitments.  It is at the socio-cultural level that individual commitments turn into collective wills, which embody normative priorities, aesthetic consciousness, epistemological justifications—the collective sense of right and wrong and the ought and the ought not.  It is also at socio-cultural level that one finds the collective sense of entitlement, denial, or outrage.  Before becoming effective laws, human rights are embedded in individual consciences and collective wills expressed as cultural practices, habits, and attitudes that embody fundamental values such as the following:  people ought to be able to speak their minds; people should not be tortured; there should be gender equality; no person ought to starve or be homeless; or parents ought to be respected and honoured.  Importantly, it is also at this level that people feel a sense of shock, outrage, or revulsion at the perceived mistreatment or humiliation of human beings.  Quite aside from official declarations and state sanctioned rhetoric, prevalent socio-cultural attitudes are the most truthful and genuine measure of the extent to which human rights exists as a dominant moral paradigm and also to the extent that a particular human rights scheme or another dominates.  By emphasizing the role of culture as a foundation for human rights practices, I am not de-emphasizing or marginalizing the role of doctrine.  Theories of universal human rights are in perpetual dialectic discourse with cultural practices.  Although doctrine and practice influence and revise each other this does not mean that the two should be limitlessly malleable—there are many reasons why neither doctrine nor culture can be sweepingly deconstructed and reconstructed without losing all semblances of coherence and integrity.  But for the purposes of this presentation, the most important reason is that human rights paradigms are not endlessly negotiable. 

Having set out what I believe is necessary foundation for analyzing the dynamic interaction between human rights doctrine and culture we are in a position to address the Islamic context. 

Islamic Law and Muslim Cultures

It would be erroneous to speak of a single Islamic socio-cultural practice.  Not only are Muslim cultures very diverse, but even the culturally based attitudes of various Muslim societies towards human rights differ from one country to another.  Human rights practices and commitments among the various Muslim populations in countries such as in Saudi Arabia, Egypt, Iran, Pakistan, Malaysia, Indonesia, Uzbekistan, China, England, Germany, and the United States are extremely diverse and cover a very wide range of convictions, customs, and trends. 

Islamic law is not a code of law or a codified system of law.  There is no set of specific legal determinations that authoritatively represent the Islamic legal system.  Rather, what is referred to as Islamic law is a cumulative system of juristic explorations by a variety of interpretive communities into both the Divine Will and the public good.  Islamic law is represented by a never-ending, fallible and non-immutable search into the right and wrong, and good and bad—in other words, it is an ethical search that seeks to resolve conflicts and establish justice within parameters set by God.  Importantly, Islamic law is represented by several extinct and extant, but historically rooted, competing schools of jurisprudential thought.  These schools diverge on matters related to legal methodology and hermeneutical approaches as well as to the ultimate jurisprudential determinations but are considered equally legitimate and authoritative.  Therefore, when we speak of Islamic law, we are describing a tradition that bears the intellectual and psychological imprint of many different juristic orientations and a broad array of legal arguments—a vast micro-history that presents a rich and complex picture. 

I emphasize the organic character of Islamic law, and the fact that with all its different and competing schools of jurisprudence is a perpetual work in progress—ever striving for a more perfect fulfilment of its moral objectives—to counter the stereotypical portrayals of Islamic law as a rigid, inflexible, immutable, and code-based system of law.  Nevertheless, I do not want to overstate my case by giving the impression that Islamic law is an entirely fluid system without any concrete form.  There is a specialized linguistic and methodological practice that does give the legal system a uniform structure, and that does unite the various jurisprudential schools of thoughts, even with their often conflicting determinations, under a single systematic tradition. 

It is somewhat ironic that with all the diversity and disagreement, the fact remains that the most uniform determinations in the Islamic legal tradition are the ones that are the most inconsistent with contemporary doctrines of human rights.  These determinations, known as the laws of hudud, deal mostly with the punishment of criminal offences, and because they are adopted by the vast majority of the different schools of jurisprudential thought, they pose the most formidable moral and philosophical challenge to Muslims who wish to make a commitment to human rights—at least human rights as conceived and understood within today’s prevailing paradigms.  For instance, I suspect that most human rights advocates would consider the severing of the left hand of thieves or the stoning of adulterers to death to be serious human rights violations—at a minimum as serious a violation as the use of torture whether for investigatory or punitive purposes.

Paradoxically, these Islamic laws, which are the most inconsistent with human rights schemes and commitments, are also the most difficult to apply in practice. The Islamic legal system itself sets up practically insurmountable obstacles to the enforcement of hudud penalties.  From the time of the Prophet onwards, hudud penalties have been seriously obstructed by strict procedural requirements and demanding evidentiary standards that are intended to limit the application of these punitive measures to truly exceptional cases where the guilt of a defendant can be proven with absolute certainty or where the criminal conduct in question is notoriously egregious.  But even beyond innocence or guilt, the text of the Qur’an sets up what could be described as ethical barriers to hudud penalties by persistently exhorting Muslims to be merciful and forgiving—mercy and forgiveness, the Qur’an asserts, is morally superior to vengeance or entrapment. [4] 

Furthermore, the practice of the Prophet Muhammad and his disciples affirmed the principle, especially in the case of hudud, that the existence of any doubt must act to suspend the enforcement of serious penalties with irrevocable consequences.[5]  The historical legal practice of Muslims, in numerous contexts and time periods and up to the Colonial era, is consistent with the doctrinal limitations placed on the enforcement of hudud penalties in that there are very few recorded instances in which hudud crimes were successfully prosecuted and the penalties applied.  Indeed for most of Islamic history, the hudud penalties have had a very limited impact upon the socio-cultural practices and commitments of Muslims. 

 I cited the case of hudud penalties only as an illustrative example of the kind of subtleties that guide the dynamic interrelationship of Islamic legal doctrine, Muslim cultures, and the ability or willingness to make a commitment in favour of human rights.  Of course, this example is not exhaustive; there are many legal doctrines—the products and the legacies of medieval jurisprudential dynamics—that are inconsistent with most modern human rights schemes. But the example of hudud penalties is illustrative at an entirely different level—it poignantly demonstrates the unfortunate fact that practically all assertions and manifestations, and even most of the discourses about the role of Islamic law in the modern age are highly politicized, and this level of politicization has had a near devastating effect on the equanimity, integrity, and effectiveness of the various efforts that have sought to discover the proper balance between the two formidable normative systems of Islamic law and human rights.

Establishing, Promoting and Undermining Cultures of Human Rights

As a religious tradition, Islam does share with the human rights tradition its heavy emphasis on the sanctity of human life.  The Qur’an, as revealed divine text, and the teachings of the Prophet Muhammad, known as the Sunna, as well as the cumulative interpretive theological and juristic communities of Islam, have placed a great deal of emphasis on the value of life, especially human life, which is endowed with an irrevocable degree of divinity.  Human beings are considered to be viceroys or deputies (khulafa’ fi al-ard) who have entered into a symbolic covenant with God (amana) according to which creation, including the heavens and earth, has been entrusted to their care.  But under the morally obligatory terms of this covenant Muslims are entrusted with duties towards both the physical and metaphysical, the tangible and intangible, and the material and the abstract.  While all human beings, and not just Muslims, are bearers of the Divine trust and therefore viceroys or deputies of God, Muslims, in particular, have the added duty of having to bear witness for God (shuhada’ li-Allah).  This means that Muslims are expected to safeguard not just the material well being of God’s creation, but, as a critical part of the process of bearing witness on God’s behalf, Muslims must defend the very moral and ethical principles that ought to guide human conduct.  This does not mean that only Muslims, and not all human beings, are charged with ethical and moral obligations.  It only means that Muslims, in particular, are expected to stand as the vanguards of moral and ethical principles, guarding them against the risk of being compromised by maximal utilitarian considerations, and also against paradigms of dilution, and deconstructionism.

The covenantal obligation with God is not discharged through unfettered or undirected moral reflection.  Indeed, the law (the set of Divine directives)[6] is treated as a sacred trust that is at the heart and core of the covenantal obligation.  As part of this sacred law, human beings, especially Muslims, are charged with the obligation of establishing justice (‘adl), which includes the upholding of particular virtues, such as equity (‘ihsan), compassion (rahma), and fairness and equality (musawa), and precepts or principles such as the presumption of innocence (bara’at al-dhimma), and the prohibition against the use of coercion or compulsion (man’ al-ikrah) whether by private parties or the state. Significantly, as early as the 1st-2nd century A.H./8th century C.E., and onwards, diverse but cumulative interpretive communities maintained that the all-encompassing moral obligation of any Muslim state, and indeed the very objective of the Shari’a, or the sacred law, is to promote the people’s well being, and welfare.  

But by their very natures, concepts such as the people’s well being, or welfare are vague and highly negotiable. The interpretive communities of the Muslim classical age,[7] however, did give these negotiable concepts a degree of determinacy by concluding that the well being or welfare of people must necessarily include divinely ordained or reason-based values.  Whether divinely ordained or rationally mandated, these values are not intended to be all exhaustive and all encompassing; they provide the minimal and most fundamental basis for a virtuous social existence.  During the Islamic classical age, cumulative interpretive communities have emphasized particular fundamental values as constitutive of the basic well being and welfare of human beings.  Notably, other than the protection of life and property, the various juristic interpretive communities agreed that the protection of dignity (al-karama), rationality (al-‘aql), personality (reputation) (qiwama), and privacy (al-satr) as being among the core values necessary for human welfare and well being.  Basing themselves on the Qur’an and Sunna, Muslim jurists argued that values such as life, property, dignity, or reputation enjoyed a level of sanctity (‘isma) not just acceptable to, but ordained by God.  Moreover, through complex socio-historical processes, classical jurists developed legal doctrines that expressed a strong sense of aversion to particular practices deemed to be offensive such as mutilation of corpses, torture (al-ta’dhib, al-mithla, al-musabara), character assassinations or defamation of a person’s honour (al-qadhf), collective punishments, excessive and exceptional taxes (mukus), or killing of non-combatants during rebellions or conventional wars. 

Although these legal doctrines had clear humanitarian overtones, they did not constitute material or significant contributions to the formation of a human rights culture.  Contextually, within their time and place, and compared to other (non-Muslim) legal cultures, these legal determinations clearly exhibited an advancement in the degree of regard and respect afforded human beings.  But as proclaimed legal conclusions, these determinations lacked a developed system of ethical reasoning, or a coherently communicable set of ideological convictions.[8]  It would be absurdly anachronistic to fault Muslim jurists of the 4th/10th or 6th/12th centuries for failing to articulate coherent and systematic humanitarian ideologies. [9]  One can, however, legitimately wonder as to why later generations of Muslims did not co-opt, reclaim, and ultimately, develop these humane legal orientations into doctrines that could support a cultural commitment to human rights.  This question becomes all the more pertinent and even compelling, when one considers the range of promising discourses and doctrines generated by Muslim jurists in the pre-modern, and especially pre-Colonial, period. 

The Arabic word for a moral or legal right is: haqq.   As early as the 2nd-3rd/9th century, Muslim jurists, in principle, recognized the idea or concept of a right.  And they divided all rights as: 1) belonging to God; 2) belonging to human beings; and 3) shared by God and human beings.  Rights were recognized as protected spheres, and most jurists agreed that the pertinent spheres protected by law are: life, intellect, lineage, honour, and property.  There is a fairly complex jurisprudential discourse on what rightfully belongs to God as opposed to human beings, and what is shared between them, and what ought to take precedence in case of a conflict of rights.  Importantly, classical Muslim jurists recognized that there is a significant bifurcation between the moral consequences of actions in the Hereafter and the legal consequences of actions on this earth.  In most cases, the rights of God are vindicated by God in the Hereafter, while the rights of people are to be vindicated by the legal system on this earth.[10]  Furthermore, according to the classical juristic tradition, rights belonging to human beings cannot be forgiven, waived, or dismissed by the state or even God.   Depending on the circumstances and the kind of right involved, human beings must either consent, or be justly compensated for having their rights dismissed or compromised in any fashion whether by the state or God.           

The classic juristic discourses on huquq (rights), and Islam’s emphasis on the inherent worth and sanctity of human life are promising orientations that could have contributed to the formation of a cultural commitment to human rights.  Indeed some Muslim commentators citing the classical discourses on huquq have been quick to proclaim that the Islamic civilization had developed a Natural Rights tradition not different from that developed by the West. 

However, whatever the merits of this claim, I believe that contending that the huquq tradition in Islam is equivalent or even similar to the Western natural rights tradition is problematic at many levels.  The huquq tradition, unlike that of natural rights, was not focused primarily on investigating or exploring inherent and inalienable immunities or entitlements owed to every human being or Muslim living within socially organized entities.  Nevertheless, the Islamic classical discourses on huquq were indeed very similar to the early European debates on natural law (as opposed to natural rights), where references to rights effectively meant legal jurisdiction and competence to adjudicate.  Similarly, huquq primarily, but not exclusively, referred to what properly belongs to God and what God has taken jurisdiction of as opposed to what is left to the competence and jurisdiction of persons.  I am not denying the theoretical, and even at times historical, nexus between huquq and rights; I am only pointing out to the obvious similarities between jurisprudential classical discourses on huquq and early debates on natural law in the West.

I ought to note another important classical jurisprudential discourse in Islam that bore a close affinity to Greek Stoicism, the pre-Thomas Aquinas in the West, and in some respects, the natural rights tradition.  As early as the 2nd-3rd/9th century, Muslim theologians and jurists developed a field of ethics that focused on investigating the nature of good and evil (al-husn wa al-qubh), and the source of the obligation to do good and to refrain from committing evil (al-ilzam).  Although much of this discourse correlates to the natural law tradition, it is in this field that one finds the most promising insights into the natural entitlements of human beings.  The classical discourses on husn and qubh investigated the critical question of the extent to which right and wrong is rationally derived or defined by revelation or creation as well as the moral imperatives borne out of ethical or aesthetic values such as beauty, justice, mercy, and compassion.

For instance, one illustrative example of this discourse is particularly pertinent to the field of human rights: there is a very well-known tradition in which Umar b. al-Khattab, a close companion of the Prophet and the second Caliph of Islam, was reported to have proclaimed, as he protested the inequitable conduct of one of his appointed governors, ‘By what right do you enslave people (through oppression and injustice), and they were born free!’  This remarkable statement remained without any significant moral, ethical, or even legal consequence except in the writings of the Rationalist jurists.  In the context of investigating the foundations and implications of this statement, the Qadi ‘Abd al-Jabbar, a 4th/10th century Mu’tazili scholar who has written a remarkable multi-volume work titled al-Mughni,[11] which truly rivals Aquinas’ Summa in size, sophistication and insight, reached the conclusion that slavery is inherently immoral (huwa qubhun li dhatih wa laysat min makarim al-akhlaq) even when it is done as a method of reciprocal retaliation in response to the enslavement of Muslims by non-Muslims during a state of war.  But ‘Abd al-Jabbar was not an outlier to the Islamic tradition.  Both Islamic jurisprudence and theology places a great deal of emphasis on the desirability of manumitting slaves either as an act of charity, or in repentance and absolution from sin.[12]  However, it is the Rationalists, such as Ibn Rushd (Averroes) or much later, Muhammad bek Shafiq, who were able to go beyond investigating legalistic rules of manumission, or issuing general exhortations against owning slaves, and in many ways going beyond the literal words of the religious text in condemning the very institution of slavery as inherently immoral, and therefore, un-Islamic (tunafi makarimu al-akhlaqi wa hiya ithmun wa fasadun fa laysat min al-Islam).

The ethical and moral philosophical investigations of the Rationalist orientations of Islam, whether Mu’tazili or otherwise, made substantial and significant contributions to human thought—to the shared ethical legacy of humanity, and not just to Islam or to Muslim culture.  Instead of allowing the religious text to become an authoritarian force that constrains, or even suffocates reason, the Rationalist schools of thought transformed the religious text into a stabilizing force, acting to serve as a firm moral foundation that propels ethical investigations into greater levels of philosophical insights.  In doing so, the Rationalist orientations contributed to the idea of a universal truth that is accessible, accountable, and binding upon all human beings.  Not only did the Rationalist orientations contribute to the idea of universal ethical values, but they made the Islamic civilization serve as part of a natural historical progression from particular orientations within Greek philosophy to the thought that gave birth to the European Renaissance, Reformation, and then the age of Enlightenment.[13]  It is not common knowledge that it was Ibn Rushd (Latinized name, Averroes), not Thomas Aquinas, who was the first to argue systematically that the a priori and primary principle of moral obligation is the duty to enjoin the good and avoid wrong.  We know that this was also Aquinas’ famous First Principle, which is often credited for opening the door to the development of a matured Natural Rights tradition.  But it is not a secret that Aquinas was quite familiar, not just with Averroes’ thought, but also with the philosophy of other prominent Muslim rationalist thinkers such as Ibn Sina (Avicenna), Ibn Baja (Avempace), and al-Ghazali[14].  In his Summa, Aquinas often engaged the debates of Muslim thinkers, and he frequently took sides in favour of one Muslim philosopher over the other, which is a rather clear indication of the level of familiarity and engagement that Aquinas enjoyed with even the micro-discourses of the Rationalist scholars of Islam.

My point is not to make the typically apologetic, and also historically inaccurate, claim:  Muslims did it first! Quite the opposite, my point is: Although the Islamic classical tradition was rich with ideas and concepts that appeared well-suited for the development of an intellectual trajectory that would support a cultural commitment to human rights, this did not happen.  In the West, in part by transplanting and co-opting Islamic intellectual achievements, the Natural Law tradition eventually gave birth to the Natural Rights tradition, which in turn was instrumental in the development of the revolutionary idea of universal human rights.[15] Moreover, though many Western historians tend to ignore it, the fact is that human rights, as natural rights, emerged from perspectives that were deeply religious, especially Christian.[16]  The most prominent jurists of the Natural Rights tradition from as early as William of Ockham and Jean Gerson to Pufendorf, Vitoria, Suarez, and Grotius to Locke and Rousseau, and then to the contemporaneous Karl Barth, Germain Grisez, or John Finnis were all deeply religious people, and whether they sought to liberate natural rights theory from philosophical dependency on an authoritative divine being or not, no doubt religious, particularly Christian, ethics coloured their world views, and deeply influenced their own commitments, normative choices, and priorities.[17]  Post-13th/19th century Natural Rights theorists, most prominently Grisez, Barth, and Finnis, were compelled to justify and defend their theories in the face of powerful onslaughts by a variety of inhospitable movements and orientations including positivism, scientific scepticism, and atheism, and even more importantly, within the context of cultures undergoing a process of rabid secularization.  For our purposes, however, it is necessary to underscore that up to and through the 12th/18th and 13th/19th centuries, Natural Rights theorists invoked the Divine as the ultimate the source of obligation, so that even if rights are said to exist in nature, it is the Divine that is the source of obligation, or the duty to do right.  In what might be called the classical Natural Rights thesis, even if nature can be said to be the source of rights, (and nature does not necessarily have to be the exclusive source of rights, or even a source of rights at all), it is the divine command that is the ultimate source of obligation to do right by others or, put differently, to be duty-bound to observe the rights of others.

In the Islamic Civilization, the classical Natural Rights thesis was philosophically developed by Rationalist jurists such as the Andalusians: Ibn Baja (d. 533/1139), Ibn Aqil (d. 581/1185), Ibn Rushd (d. 595/1198), and Ibn Tufayl (581/1185). [18]  The same thesis was debated, or philosophically treated by Rationalists from diverse geographic locations and theological and philosophical orientations such as: Sadr al-Din al-Shirazi (a.k.a. Mulla Sadra) (d. 1051/1641), Ibn al-Hasan al-Tusi (d. 459/1067), Nasir al-Din al-Tusi (d. 672/1274), Ibn Aqil (d. 513/1119), al-Suhrawardi (d. 587/1191, founder of school of Illumination), Abu Bakr al-Razi (d. 313/925), Fakhr al-Din al-Razi (d. 606/1209).  However, the reality is that although the Rationalists had a profound impact upon the foundations and methodologies of Islamic jurisprudence, their intellectual influence upon the Islamic Civilization as a whole consistently waned and weakened after the 7th/13th century.  The 7th/13th century was a pivotal point; the Islamic Civilization, which had already been under siege by the Christian West, from that time onwards defended itself against renewed waves of Crusaders, suffered the loss of Andalusia,[19] and most importantly, witnessed the fall and sacking of Baghdad, the capital of the Abbasid Caliphate, by the Mongols in 656/1258.  Defensive and conservative intellectual orientations, in general, tended to thrive during times of socio-economic and political unrest, but from the 7th/13th century and onwards a fateful and ironic exchange seems to have taken place—as Rationalist forces retreated in the Islamic civilization, these same intellectual orientations started on their laborious, and often tortuous progress in the West. 

Rationalist scholars, who made genuinely original contributions to the classical Natural Rights thesis, did exist during both the Ottoman and Safavid periods, in Sunni and Shi’i Islam respectively.  But for the most part, the works of these scholars were isolated achievements in an otherwise arid and inhospitable intellectual environment.  The growth of conservatism and even anti-rationalist theological orientations eventually culminating in the ultra-conservative and uncompromisingly anti-rationalist Wahhabi movement in the contemporary Islam was due to a variety of historical reasons that cannot be adequately summarized in this essay. 

In the contemporary age, the West had gone through its own massive transformations and political and social upheavals that re-negotiated the place and role of the Church, Canon law, and religion, in general.  But many Muslims contended that while the re-negotiated status of religion in the West was the product of genuine, and natural historical processes, i.e., the outcome of voluntary responses to demands that grew out of actual historical needs, conversely in the Muslim world, the debates as well as their outcomes took place within the coercive contexts of Colonialism and a Western-defined modernity.  These debates raised numerous questions as to the historical sources, cultural identity, universality, and coercive nature of modernity,[20] and most of all, the possible inter-dependence between modernization and Westernization.  At heart of all these issues was a basic anxiety as to whether surrendering to the demands of modernity in effect meant the end of the Muslim tradition and the Islamic Civilization, or the destruction of the most sanctified aspects of Muslim culture.  What greatly aggravated this concern was the growing, and eventually dominant, role of Western educated elites in Muslim societies.  According to this influential and powerful group, all the changes that took place in Muslim societies, whether related to the status of the Caliphate, the Umma, or Shari’a, were acts of sombre recognition of the twin imperatives of modernity: nationalism and secularism.

Whether nationalism and secularism are inevitable, and whether the Islamic Civilization is dead and what, if any, are the chances of a revival are exceedingly complex issue, and luckily, we need not resolve them.  But these ideas and the anxieties that persistently accompany their existence continue to have serious consequences on human rights discourses. One of the most profound and lasting changes that took place with the rise of Western colonialism and imperialism was the systematic and gradual displacement of Islamic law.  This was achieved through a long process of forced commercial concessions, special status privileges for foreign nationals, right of intervention on behalf of non-Muslim minorities, courts of special subject-matter jurisdiction, mixed courts such as the Anglo-Muhammadan courts in India, scholarship programs for members of the ruling class and intellectual elite to study in European law schools, the construction of secular law schools that increasingly monopolized the legal market, and the implementation of numerous legal reforms, whether initiated by native powers or decreed by foreign powers.  The end result of this process was the replacement of Islamic law, in most cases, with the Civil Legal system, and in a few syncretistic exceptions, with the Common Law system.  Not only was Islamic law formally abolished in the overwhelming majority of Muslim countries, but the very institutions that once supported the study and scholarly development of Islamic jurisprudence deteriorated to the point of becoming entirely marginal. 

Most of the educational institutions of Islamic law were closed down primarily due to the shortage of clientele[21]—lawyers trained in the secular legal schools squeezed the less qualified and also increasingly irrelevant lawyers trained in the Islamic law schools. Perhaps the final act signing the death warrant of Islamic law in the modern age was the co-optation by the state of the private endowments that used to fund the largest and oldest institutions supporting the study of Islamic law.  After their co-optation, the same institutions that centuries ago produced the great jurists of Islam had become a mere shell of their past forms.

Consequently, a paradoxical duality developed in Muslim cultures: on the one hand, from the age of colonialism to this day, in practice Muslims were governed by, in most cases, the French legal system, but at the same time, a custom developed according to which the very practitioners and experts who implemented foreign legal systems would write books exalting the numerous virtues, and basic superiority of the Islamic legal system.  Essentially, this was an apologetic practice—as if plagued by guilt about applying foreign legal systems and abandoning Islamic law, Muslim legal experts compensated by constantly singing the praises of Islamic law as a system of total justice.  In effect, modern Muslims transformed Islamic jurisprudence from a dynamic living system to a mummified piece of antiquity to be valued, admired, and praised, but not engaged, used, or deferred to as an authoritative process of problem solving and conflict resolution.  But even worse, the idolized and sanctified image of Islamic law was static, unreal, and entirely disconnected from history. 

The fact that Muslims have become disconnected from their own legal tradition, and have failed to develop the Natural Rights potentialities existing in the Rationalist orientation does not adequately explain why human rights cultures have not developed at any case.  With the waning of colonialism, arguably, the 1368/1948 Universal Declaration of Human Rights represented a truly transitional moment in history.  For one, the Universal Declaration was a fascinating combination of natural rights ideas as well as the emerging and eventually dominant model of human rights within the international law context of positivist consensual ideas.  Purportedly, Muslim states could have developed commitments leading to cultures that respect human rights on the basis of: 1) either the natural rights tradition represented by the Universal Declaration; or 2) the consensual model that governed all human rights conventions and treaties.  By consensual model, I mean the idea that human rights are obligatory because sovereign states consent to them, and agree to be bound thereby.

In the Muslim experience, the truth of human rights has asserted itself or regressed with constantly shifting political interests.  More fundamentally, the paradigm of human rights has been delivered and persistently advocated by first, colonial powers, and then super powers.  But while these powers preached human rights, what they in fact practiced were civil rights.  In other words, while the dominant world powers might have respected the basic rights of their own citizens, there was an unmistakable duality in practice.  They acted on the assumption that observing civil rights means the upholding of human rights, but then being anchored on this assumption provided the necessary legitimacy to engage in the pretense of teaching or preaching human rights to the Muslim world.  Of course, at odds with the ideals of human rights were the discriminatory laws and special concessions giving preferential treatment to the citizens of colonial powers.  This practice has left a memory on the Muslim psychology that demanded a considerable amount of good will to erase, and in fact, the sense of humiliation felt over the practice of colonial concessions was a consistent theme inspiring the rise of self-determination and nationalism movements in the 1370’s/1950’s and 1380’s/1960’s.  But the problem goes much deeper than the issue of concessions or even exploitation. 

Conclusion

Human rights as an idea and concept is a truly unique, and profoundly remarkable development in human history, as an institution and practice.  Too many theorists overlook the fact that by definition, human rights are universal—they describe a truth about human beings; they are not variable—they cannot be observed as to some people but ignored as to others; and they cannot be coercively transplanted—it is not moral to teach people dignity by ignoring their autonomy.  The West, through a robust humanism that inspired its civilization, was the first to systematically and coherently express the idea, but since its articulation and to this day, the three categories: human rights, civic rights, and international human rights have been used interchangeably, or the observing of one has been erroneously taken to mean observing the other categories. The West has enjoyed many successes with civic and international—treaty based rights, but it has been far less successful with the category that by definition cannot tolerate the corruptions and ailments of political realism or real politik—double-standards, institutionalized hypocrisies, occupation and domination. 

It is very difficult to nurture and develop the moral values that lead to the type of principled commitments necessary for the growth of human rights cultures under intensified political conditions.  Nevertheless, there is no alternative to developing human rights cultures through a cumulative process of education and internally generated pressure that brings about an intellectual and moral conviction in human rights as a moral imperative.  Every society has its own internally persuasive epistemological, and ontological sources, and in the case of Muslim societies the most socially impactful and persuasive sources are those of the Islamic religion.  It is therefore very reasonable to expect that Muslims would mine, explore, and interrogate their own tradition for the instruments that would enable them to launch their own process of search and discovery into the mandates and imperatives of human rights.  Human rights commitments cannot be commanded into existence, and cannot be transplanted or borrowed from alien sources so that the borrowed may play the role of the natural borne child of Muslim societies.  Therefore, it is difficult to think of an alternative source to Islam that could have helped human rights commitments take root in Muslim societies, especially because, as explained earlier, Islam has a very rich humanistic and rationalistic tradition that could have been fruitfully developed by modern Muslims. Especially in light of the challenging political conditions confronting Muslims, humanistic religious convictions could have proven to be inspirational and motivational in empowering Muslims with the resolve to overcome the adversity of their circumstances. 

Muslims must track their own way to human rights, but in doing so, they must firmly anchor themselves in the elements in Islamic intellectual history that could have led to and possibly could now lead to the formation of firm commitments in favour of human rights, and to the eventual construction of cultures that respect and give effect to these commitments. 



[1] See, e.g., C. Fred Alford, Narrative, Nature, and the Natural Law: From Aquinas to International Human Rights (New York: Palgrave Macmillan, 2010); John Finnis, Human Rights and Common Good: Collected Essays, Volume III (New York: Oxford University Press, 2011).

[2] Carl Wellman, The Proliferation of Rights: Moral Progress or Empty Rhetoric? (Boulder, Co: Westview Press, 1999).

[3] Some have argued that the well being of human beings means their happiness regardless of the sources of this happiness.  It is not that I cherish being unhappy, but in my view, happiness is an inadequate measure of the well being of human beings.  This is not the place to offer a philosophical justification of this view, but in my opinion the well being of humans is inseparable from virtue. 

[4] Khaled Abou El Fadl, “The Death Penalty, Mercy and Islam: A Call for Retrospection,” in Religion and the Death Penalty: A Call for Reckoning, Erik C. Owens, John D. Carlson & Eric P. Elshtain, eds. (Grand Rapids, Mich: Wm. B. Eerdmans Publishing Co., 2004).

[5] See Intisar Rabb, “Islamic Legal Maxims as Substantive Canons of Construction: Ḥudūd Avoidance in Cases of Doubt,” Journal of Islamic Law & Society 17 (2010): 63-125.  More generally, see her Doubt’s Benefit: Legal Maxims in Islamic Law, 7th-16thcenturies (unpublished PhD dissertation, Princeton 2009).

 

[6] The term “law” here does not necessarily mean a detailed set of positive commandments; the law means the fundamental and basic Divine directives to human beings that are not subject to the vagaries of time and place.  The Covenantal Law is absolute, immutable, eternal, and inherently good (Shari’a).  What is derived from the Covenantal Law is contingent, contextual, revisable, and at experimental (fiqh).  On the distinction between Shari’a and fiqh, see Khaled Abou El Fadl, The Great Theft: Wrestling Islam from the Extremists (San Francisco, Ca: HarperSanFrancisco, 2005) 150-51, 261, 263; idem, “The Islamic Legal Tradition: A Comparative Law Perspective,” in The Cambridge Companion to Comparative Law, Mauro Bussani & Ugo Mattei, eds. (Cambridge: Cambridge University Press, forthcoming).  

[7] There are various definitions of the Islamic classical age, but in this context, I use the expression to refer to the period covering from the time of the death of the Prophet to the 9th/15th century—a period lasting around nine hundred years of intellectual activities.

[8] Modern day Islamists retort that the Qur’an provides a coherent ethical framework for a humanitarian ideology.  This often heard argument ignores what might be the objective reality of the Qur’an, and the subjective understanding or cultural realization of the Qur’an.  The Qur’an could embody the most perfected ethical and humanitarian message, but this does not mean that Muslims today, leave alone those of the 10th A.D., have managed to understand or meaningfully commit to this message.

[9] On humanistic orientations in medieval Islam and on there likely impact on the development of European humanism, see George Makdisi, The Rise of Humanism in Classical Islam and the Christian West: With Special Reference to Scholasticism (Edinburgh: Edinburgh University Press, 1990); Mehdi K. Nakosteen, History of Islamic Origins of Western Education (Boulder, Co: University of Colorado Press, 1964); Joel Kraemer, Humanism in the Renaissance of Islam: The Cultural Revival During the Buyid Age (Leiden: Brill Academic Publisher, 1986).

[10] The important exception to this rule is known as the hudud penalties.  These are also the penalties that pose the greatest conflict with the human rights tradition.  But even in the case of these penalties any doubt must be interpreted in the light most favorable to human beings.  

[11] He also wrote a much shorter set of works known as the five epistles that in many ways are even more significant for the fields of natural law, natural rights, and ethics than al-Mughni, which is an encyclopaedic opus that documented in great detail the arguments of his (‘Abd al-Jabbar’s) own opponents.  

[12] The Qur’an itself repeatedly urges Muslims to manumit slaves.  Interestingly, in their writings classical Muslim jurists would always dedicate a chapter discussing the legal issues pertinent to the manumission of slaves such the rules concerning the possible right of a slave to buy back his freedom from his owner, and the rights of a slave to own money or property (otherwise, it is not very meaningful to discuss the possible right of a slave to buy back his/her freedom.)  The classical sources almost never dedicated a chapter to the topic of purchasing or acquiring of slaves.  

[13] Most Western (and even Muslim) scholars writing on the European heritage of faith and reason will with all due diligence march through the purported Hebrew origins then to the Greek tradition, the Greco-Roman world, Christian Scholasticism, Humanism, Thomism, Renaissance, the so-called Cartesian revolution, the Protestant Reformation, including the Lutheran revolt and Calvinism, then, if they are fair-minded, to the Catholic Reformation, and then to the birth of the Enlightenment, and then the reason-based progression to the age of modernity and secularism. Somewhat inconsistently, this is often called the Judeo-Christian heritage.  This historical progression would not make sense without the Muslim intervention, and yet what might be described as the Muslim link is most often ignored.  The Rationalist orientations within Islam did not only influence numerous Christian theologians and philosophers, but it also exercised a considerable impact upon Jewish thinkers such as Maimonides.      

[14] Although al-Ghazali was associated with the Ash’ari theological school of thought, and he also wrote a very well-known refutation of the philosophical methods of speculative theology, substantively, in the later phases of his life his thought was marked by a distinctive blend of aesthetic rationalism or perhaps rational aestheticism.  Al-Ghazali influenced a considerable number of Western thinkers—other than Thomas Aquinas, his thought influenced writers from Ramon Martin, author of Pugio Fides, all the way to Pascal.     

[15] There are a number of scholars who contend that the Western Civilization and all its ethical achievements, including human rights, originated from a uniquely Christian or Judeo-Christian foundation.  For instance see, Thomas Woods, How the Catholic Church Built Western Civilization (Wash. D.C.: Regnery Publishing Inc. 2005): 197-215.

[16] I am aware that this is a controversial claim and that there are scholars (typically of the positivist orientation) who believe that universal human rights developed only when rights theorists freed themselves of the shackles of religion.   In fact, some have argued that in an effort to make their theories accessible, accountable, and legitimately universal, Natural Rights theorists, in effect, got rid of God, and attempted to base their theories on reason alone or rationally justified basic goods.  But in doing so, it is argued that Natural Rights theorists entirely undermined their own coherence or plausibility.  This is frequently dismissively referred to as ‘the crisis of Natural Rights theory,’ but criticisms of modern Natural Rights theories one way or another invariably seem to go back to the so-called ‘Naturalistic Fallacy’.  For instance, see Pauline Westerman, The Disintegration of Natural Law Theory: Aquinas to Finnis (Leiden: Brill, 1998), esp. 231-85.  This is a controversy that I am not eager to engage, but would note that the argument that rights theory made sense only after it discounted the divine as an authoritative frame of reference obviously is a normative and not a historical, claim.       

[17] See Elizabeth Bucar and Barbara Barnett (eds.) Does Human Rights Need God? (Grand Rapids, Mich: Edermans Publishing Co., 2005); especially the article by Max Stackhouse, “Why Human Rights Needs God: A Christian Perspective,” 25-40

[18] The author of al-Hayy bin Yaqdhan, a book that became widely influential in both the Islamic and Latin speaking worlds.  Eventually, this tale was plagiarized into the famous Robinson Crusoe story. 

[19] The loss of Muslim Spain was incremental and protracted; not until the mid-eighth/mid-fourteenth century was all of Muslim Spain, except for Granada, lost to the Christian Kingdoms from the North. Granada was conquered in 897/1492.

[20] This is why, initially, some Muslim jurists tried to ban the use of printing presses or the taping of Qur’anic recitations on records. 

[21] On the history of the colleges of law in Islamic history and their role, see George Makdisi, The Rise of Colleges: Institutions of Learning in Islam and the West (Edinburgh: Edinburgh University Press, 1981).

 

 

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