Shari‘ah and Human Rights
by Dr. Khaled Abou El Fadl*
This chapter identifies some of the main obstacles that hinder serious Islamic engagement with the field of human rights, and analyzes potentialities within Islamic doctrine for realizing a vision of human rights. This chapter will focus on potentialities—the doctrinal aspects in Muslim thought, and particularly Shari’ah, which could legitimize, promote, or subvert the emergence of a human rights practice in Muslim cultures. Doctrinal potentialities exist in a dormant state until they are directed by systematic thought, supported by cumulative social practices, toward constructing a culture that honors and promotes human rights.
Introduction: Human Rights Discourses in the Modern Muslim World
The construct of human rights has achieved notable symbolic significance in the modern world. Politically, whether a nation regularly violates the rights of its citizens or not, most nations go through the pretense of claiming to honor some version of human rights. In the past half-century, human rights have become a significant part of international relations, as there has been a globalization of human rights concerns and discourses.[i] At least since the widespread adoption of what has been referred to as the International Bill of Rights,[ii] the idea of human rights has become established as a powerful symbolic construct often used to shame or embarrass governments into exhibiting a higher degree of restraint in dealing with their citizens.[iii] Importantly, in the case of the Muslim world, the human rights movement has, so-to-speak, won indigenous converts, and as a result, it is not unusual to observe the language of human rights being used as a medium for expressing dissent and making demands on local governments. This is the case particularly with women’s rights activists in the Muslim world who frequently cite international standards and obligations as a means for exerting pressure upon their domestic governments.[iv] More significantly, the revolutions of the so-called Arab Spring demonstrated the widespread utilization of the language of rights (huquq), demands for dignity, and social justice. There were persistent efforts such as the document called Wathiqat al-Azhar hawl mustaqbal fi Misr (Azhar Statement on the Future of Egypt) in which the Azhar theological seminary recognized that all citizens have basic and fundamental unwavering rights.[v] However, the tumultuous conditions into which the countries of the Arab Spring deteriorated have made attempts at deriving conclusions from these chaotic lived socio-political experiences problematic.
A number of Arab countries such as Egypt, Lebanon, and Tunisia actively participated in drafting the aspirational language of the Universal Declaration of Human Rights as well as other international human rights documents.[vi] Nevertheless, a considerable tension remained between traditional Islamic law and the normative demands of human rights. This was particularly the case in matters relating to personal status laws, equal rights for women, freedom of religion, and harsh Islamic criminal penalties for offenses such as theft, adultery, and apostasy.[vii] However, the primary intellectual and theological response to the challenge of international human rights followed a pattern that had become well ingrained since the onslaught of colonialism and the taunting criticisms of Orientalists against the Islamic tradition and systems of belief. Colonialism, and its accompanying institution of Orientalism, had not only played a pivotal role in undermining the traditional institutions of Muslim learning and jurisprudence, but it had also posed a serious challenge to traditional Muslim epistemologies of knowledge and its sense of moral values.[viii] Although international human rights law was enshrined in various treaties during a period in which most Muslim countries gained political independence, the experiences of colonialism and post-colonialism influenced the Muslim intellectual response in several important respects. Muslims did not first encounter Western conceptions of human rights in the form of the Universal Declaration of Human Rights of 1948, or in the form of negotiated international conventions.[ix] Rather, Muslims encountered such conceptions as part of the “White Man’s Burden” or the “civilizing mission” of the colonial era, and as a part of the European natural law tradition, which was frequently exploited to justify imperialistic policies in the Muslim world.[x] There is considerable irony in the fact that 1948, the year the Universal Declaration of Human Rights was issued, is the same year that Palestinians lost their homeland. These experiences have had a significant impact on the understanding of human rights in the Muslim social imaginary and on the construction of Islamic discourses on the subject.[xi] Although in the late nineteenth and early twentieth centuries there were several systematic efforts to come to terms with the Western natural law tradition in general,[xii] and human rights more specifically, the Muslim intellectual response to the emergence of the human rights tradition tended increasingly to range between two predominate orientations: apologetics and exceptionalism.
The apologetic orientation consisted of an effort by a large number of Islamists to defend and salvage the Islamic system of belief and tradition from the onslaught of Westernization and modernity by simultaneously emphasizing both the compatibility and supremacy of Islam. Apologists responded to the intellectual challenges of modernity and to universalist Western paradigms by adopting pietistic fictions about the presumed perfection of Shari‘ah and eschewed any critical evaluation of Islamic legal doctrines. A common heuristic device of apologetics was to argue that any meritorious or worthwhile modern institutions were first invented and realized by Muslims. Therefore, according to the apologists, Islam liberated women, created a democracy, endorsed pluralism, and protected human rights, long before these institutions ever existed in the West. [xiii] The apologetic orientation raised the issue of Islamic authenticity in relation to international human rights, but did not seriously engage it. By simply assuming that Islam presented a genuine and authentic expression of international human rights, the apologetic orientation made those international rights redundant. According to the apologetic orientation, all society needed to do in order to fully attain the benefits of human rights was to give full expression to real and genuine Islam. But what naturally flowed from this position was an artificial sense of confidence, and an intellectual lethargy that neither took the Islamic tradition nor the human rights tradition very seriously.
An incidental effect of the apologetic movement was that it contributed to the secularization, and therefore to the marginalization, of human rights movements in the Muslim world. It is notable, for instance, that human rights activists in Muslim countries, most often belonged to a Western educated secular elite, who typically possessed no more than a superficial familiarity with the Shari‘ah tradition. I am not arguing that all human rights activists in Muslim countries are committed to a secular paradigm, or that they entirely ignored the Islamic tradition. The point is that activists who articulated human rights demands in society did so while armed with Western categories and paradigms, but their demands did not arise from a dynamic engagement with Islamic Shari‘ah imperatives. As discussed later, in contrast to speculative theological works of classical Islam, and the often complex rights conceptions of pre-modern Islam, contemporary Islamist approaches remained superficial. For instance, during the heyday of socialist ideologies in the third world, a large number of Islamists insisted that the essential character of the Islamic approach to rights is collectivist, and not individualistic. But in the 1980s, with the increasing influence of the United States on the world scene, a large number of Islamists claimed that Islam emphasized individualistic conceptions of rights, and guaranteed the right to private property. Unfortunately, as a number of commentators pointed out, even the Universal Islamic Declaration of Human Rights, and others mentioned above, would have to be considered apologetic in nature. Typically, these international instruments affirm the Universal Declaration of Human Rights and International Covenant on Civil and Political Rights, and are modeled after the so-called International Bill of Rights. But they have been criticized for failing to resolve any of the real tensions between Shari‘ah law and international human rights such as the hudud punishments, and the unequal treatment of women.[xiv]
In the 1970s, much of the Muslim world witnessed an Islamic resurgence, which took the form of a powerful puritan movement demanding a return to an authentic Islamic identity through the re-implementation of Shari‘ah law. The return to an authentic Islamic identity as well as the call for the reassertion of Shari‘ah law were recurrent themes during the colonial era. Both the Wahhabi[xv] and Salafi[xvi] theological movements, the main proponents of puritan Islam, had emerged during the Colonial era, and remained active throughout the twentieth century. But for a variety of reasons, including the aggressive proselytizing, and generous financial support of Saudi Arabia, these two movements became practically indistinguishable from each other, and they also became a dominant theological force in contemporary Islam. Puritanism resisted the indeterminacy of the modern age by escaping to a strict literalism in which the text became the sole source of legitimacy. It sought to return to the presumed golden age of Islam, when the Prophet created a perfect just polity in Medina. According to the puritans, it was imperative to return to a presumed pristine, simple, and straightforward Islam, which was believed to be entirely reclaimable by a literal implementation of the commands and precedents of the Prophet, and by a strict adherence to correct ritual practice. The puritan orientation also considered any form of moral thought that was not entirely dependent on the text as a form of self-idolatry, and treated humanistic fields of knowledge, especially philosophy, as “the sciences of the devil.” It also rejected any attempt to interpret the divine law from a historical or contextual perspective, and, in fact, treated the vast majority of Islamic history as a corruption or aberration from the true and authentic Islam. The dialectical and indeterminate hermeneutics of the classical jurisprudential tradition were considered corruptions of the purity of the faith and law. In that puritanical context, this movement became very intolerant of the long-established Islamic practice of considering a variety of schools of thought to be equally orthodox, and attempted to narrow considerably the range of issues upon which Muslims may legitimately disagree.
In some of its more extreme forms, the puritans explicitly demanded that Muslims must show enmity and hostility towards the unbelievers (mushrikun)—insisting that a Muslim should not adopt the customs of unbelievers, and should not befriend them. According to these puritans, Muslim displays of enmity and hostility towards the unbelievers must be visible and unequivocal. In this particular puritan orientation it was argued that it is entirely immaterial what a non-Muslim might think about Muslim practices, and in fact, it was a sign of spiritual weakness to care about whether non-Muslims were impressed by Muslim behavior or not.[xvii] In general, the puritans espoused a self-sufficient and closed system of belief that had no reason to engage or interact with the other, except from a position of dominance.[xviii] This is plainly evident in many of the fatawa (non-binding legal opinions) issued by Saudi jurists in favor of the institution of slavery, and patriarchy. It is also tragically evident in the thought of movements such as the Taliban, Al Qaeda, and the ISIS. All of these movements drink from the same spring well of puritanical Wahhabi thought, and all exhibit a contemptuous attitude towards the institutions and ideas of universal human rights. It is not entirely accurate to describe the puritan orientation as exceptionalist because the puritans did not seek a relativist or cultural exception to the universalism of human rights. Rather, the puritan claim was that whatever rights human beings are entitled to enjoy, they are entirely within the purview of Shari‘ah law. It is important to realize that the puritans did not deny, in principle, that human beings have rights; they contended that rights could not exist unless granted by God. Therefore, one finds that in puritan literature, there is no effort to justify international rights on Islamic terms, but simply an effort to set out the divine law, on the assumption that such a law, by definition, provides human beings with a just and moral order.
Shari‘ah and Human Rights: Between Ambiguity and Determinism
In this chapter, I am primarily interested in human rights as a convictional paradigm—human rights is a moral and normative belief about the basic worth and standard of existence that ought to be guaranteed for any human being.[xix] Whether this belief is founded on a vision of human dignity, rational capacity, or freedom from harm and suffering, in its essence, it expresses a commitment to the well-being of the human being. Even collectivist or communitarian visions of rights are often forced to justify their commitments by claiming to provide for the well-being of most of the members of the imagined community or collectivity.[xx] Importantly, visions of human rights do not necessarily seek to exclude subjective or contextual perceptions of rights or entitlements. Such visions are not necessarily premised on the idea that there is a fixed set of human rights that is immutable and unevolving from the dawn of history until today. However, human rights visions do tend to objectify and generalize the subjective experiences of human beings.[xxi] By evaluating the socio-historical experience of human beings—the demands made for protection, and the resistance offered to these demands—and by evaluating the impact of practices that cause suffering, degradation, or deny people the ability to develop, it becomes possible to articulate objectified visions of a universal set of rights that ought to be enjoyed by all human beings.[xxii] At the legalistic level, arguably the so-called Bill of International Human Rights has already recognized what ought to be objective standards for human conduct, and such standards are binding on all nations of the world, even as to states that have not become signatories to the two human rights covenants.[xxiii] But whether the legal argument is valid or not, the universal human rights schemes have the unmistakable characteristic of an ideology that, as noted above, resembles a religious faith in that it believes that human beings ought to be treated in a certain way because, quite simply, as a matter of conviction, it is what is right and good.[xxiv] Once a claim of right is objectified, unless it goes through a process of deconstruction and de-objectification, as a matter of commitment and belief it becomes binding to all, and it also becomes a measure by which to judge the behavior of violators.[xxv]
One of the major aspects that human rights schemes share with the Shari‘ah is the objectification of subjective experience. The tension between religion and human rights, as systems of convictional reference, is not in the subjective experience. Genuine regard for human rights may be subjectively experienced in a fashion that is entirely consistent with one’s religious convictions.[xxvi] Put differently, a religious person’s unique set of experiences may resolve all possible tensions between his/her own personal religious convictions and human rights. At the subjective level, individuals may feel that they have not experienced any irreconcilable conflicts between their commitment to human rights and their religious convictions. Rather, the tension between the convictional systems of religion and human rights exist in the objectified standards and realities that each system claims.[xxvii] Put rather bluntly, which of the two generalized and objectified systems warrants deference, and which constitutes the ultimate frame of reference? Unless one argues, as was claimed in the classical natural law tradition, that God willed that human beings have a particular set of rights; the tension between the two systems becomes inevitable.[xxviii] If the generalized and objectified set of human rights asserted by people just happen to be exactly the same as the divinely ordained set of rights, then, in effect, the tension is resolved, or such a tension never really existed in the first place. The tension is most pronounced, however, when the objectified religious experience is inconsistent with the objectified claims to human rights. This is especially the case when, as is the situation today, such claims arise from a fundamentally secular paradigm.[xxix]
The ambiguity one finds in modern Muslim discourses regarding a commitment to human rights is due to the failure to confront the two objectified experiences of Shari‘ah and human rights. The apologetic discourse avoided the issue by assuming that the two experiences must be one and the same, and that God has granted human beings the same set of rights found in the international human rights discourse. But such a claim was not made out of a process of re-objectifying, or reconstructing Islam so as to engineer such a consistency. However, in light of the colonial experience, and the perception of the vast hypocrisy in human rights practices, many Muslims did not take the human rights discourses seriously enough to effectuate such an engineering of the objectified experience of Islam.[xxx] The puritan orientation, exemplified in the Wahhabi movement, Al Qaeda, or ISIS, on the other hand, opted out of the process altogether, and asserting the supremacy of Islam as a convictional system, rejected, as a matter of principle, the process of the re-engineering or re-objectifying of Islam in order to resolve such a tension. This is what accounts for the puritan orientation’s defiant stance towards contemporary international human rights claims, and its assumption that Islamic imperatives must necessarily be very different from the imperatives set by human rights commitments.
What is the Shari‘ah?
According to Muslim legal theory, the purpose of Shari‘ah is to achieve the welfare of people by seeking after the righteous path—to try to come as close as possible to it, and in doing so promote goodness or Godliness. In Islamic law, achieving the welfare of the people (tahqiq masalih al-'ibad) is a term of art that is intended to acknowledge that the pursuit of abstract values, such as justice, compassion and mercy, is supposed to translate into concrete and tangible benefits to be enjoyed by human beings. Muslim and non-Muslim writers often refer to Islamic law as Shari‘ah, which is not entirely accurate. Linguistically, the word shari‘ah literally means the fountainhead that quenches the thirst of living beings or the way to goodness. Jurisprudentially, the Shari‘ah is the revealed guidance of God—perfect, complete, incorruptible, immune and immutable. In a sense, the Shari‘ah provides the skeletal ethical and moral norms of the Islamic legal system. The Shari‘ah is comprehended, absorbed, and expressed through a jurisprudential process known as the fiqh (the human understanding of Shari‘ah). While Shari‘ah is Divine, fiqh was recognized to be only potentially so, and it is the distinction between Shari’ah and fiqh that fueled and legitimated the practice of legal pluralism in Islamic history.
The conceptual distinction between Shari‘ah and fiqh was the result of recognizing the limitations of human agency, and also a reflection of the Islamic dogma that perfection belongs only to God. While Shari‘ah was seen as an abstract ideal, every human effort at understanding or implementing this ideal was considered necessarily imperfect. Muslim jurists debated whether in the final analysis on every point of law there is a single correct position, but this position is known only to God and it is only in the Hereafter that this truth will be revealed. Much of this debate tended to revolve around a number of traditions attributed to the Prophet. According to one group of legal theorists, those who are ultimately proven to be wrong will still be rewarded for their due diligence but those who prove to be right will receive a greater reward. The alternative point of view, however, argued that on all matters of fiqh there is no single truth to be revealed by God in the Hereafter. All positions held sincerely and reached after due diligence are in God’s eyes correct. This classical debate had an impact upon the development of various doctrines and institutions in Islamic jurisprudence the most important of which was negotiating the dynamics between Shari‘ah and fiqh.
In the Islamic legal tradition, there is only one Shari‘ah (Shari‘at Allah) but there are a number of competing schools of thought of fiqh (madhahib fiqhiyyah). Even the most ardent of the process-oriented jurists did not go as far as claiming that there are no objective and ultimate values to Shari‘ah. Process-oriented jurists contended that the search for the Divine Will is the ultimate moral value but only as to matters open to a fiqh inquiry. At the same time, although all jurists embraced the theological dogma that God’s perfection cannot be reproduced or attained by human beings, this did not mean that they considered every aspect of Shari‘ah to be entirely unattainable or inaccessible until the Hereafter. In many regards, one could say that Shari‘ah is the unwritten constitutional law of the Islamic common law system but because of the particular historical practices of the schools of fiqh such a re-conceptualization would need to be developed analytically. For instance, it is firmly established in the Islamic legal tradition that Shari‘ah seeks to protect and promote five fundamental values: 1) life; 2) intellect; 3) reputation or dignity; 4) lineage or family; and 5) property. Furthermore, Muslim jurists overwhelmingly held that there are three basic levels of attainment or fulfillment of such values: the necessities, needs, and luxuries. Under Shari‘ah law, legal imperatives increase in proportion to the level demand for the attainment of each value. Thus, when it comes to life, for example, the legal duty to secure a person’s survival is a priori to the obligation of guaranteeing human beings any basic needs that are above and beyond what is necessary for survival. Nevertheless, alongside these broad fundamental principles, historically, Muslim jurists developed specific positive commandments that were said to be necessary for the protection of the values mentioned above. These laws include, for instance, the laws punishing slander, which were said to be necessary for the protection of reputation or dignity, or the laws punishing fornication, which were said to be necessary for the protection of lineage and family. I will discuss the hudud penalties below, but for now it is important to emphasize that many of the positive legal determinations purportedly serving the five values were often declared to be a part of Shari‘ah, and not just fiqh, or were left in a rather ambiguous and contested status between Shari‘ah and fiqh. Claiming that a positive legal commandment is not a byproduct of fiqh, but is essentially part of Shari‘ah effectively endowed such a commandment with immunity and immutability. The boundaries between Shari‘ah and fiqh were negotiated in a variety of highly contextually contingent ways in the course of Islamic history but the dynamics and processes of this history remains grossly understudied.
The application of fiqh (human understanding) to Shari‘ah allows the jurist to emerge with determinations about God’s will and law. Essentially, through the mechanics of fiqh, the values and virtues of Shari‘ah are translated into a set of duties, obligations, and rights that allow for the realization of Shari‘ah through learned and considered judgments. In classical theory, no one can pretend that his/her opinion or judgment is the will of God or the fulfillment of Shari‘ah unless it is based on the literal word of God that cannot withstand different interpretations or ambiguity in meaning. In the classical tradition, the so-called hudud offenses were cited as the typical example of laws that are Divinely stipulated without ambiguity or vagueness.
The Challenge of the Hudud Punishments
The so-called hudud punishments—which include lashing, stoning to death and the severing of hands—are the most controversial aspect of Shari‘ah law in the modern age. For many Muslims, they have become the indisputable proof of the unique identity of the Islamic legal system and also the symbol for Muslim cultural and political autonomy. For many non-Muslims and Muslims, however, hudud punishments are considered medieval, draconian and barbaric. Furthermore, many non-Muslim and Muslim scholars and writers, who are poorly informed about Islamic jurisprudence, treat these laws as if they are the very heart and core of the Islamic legal system. Consequently, many have come to the rather inescapable conclusion that Shari‘ah law is fundamentally incompatible with modern conceptions of human rights.
The example of criminal penalties that include corporal punishments, maiming, and mutilations are of special interest because they are irreconcilable with contemporary human rights paradigms, but they are also significant because they put us squarely before the challenge of the immutability of Qur’anic law. Qur’anic laws, or the special class of specific ethical commandments, although a small and narrow part of the legal system, are of considerable symbolic significance. This particular set of laws includes the group of criminal sanctions that have become known as the hudud punishments.[xxxi] Underscoring the significance of the hudud punishments is the fact that most of these laws, as explained below, implicate the mixed rights of God and human beings (huquq mukhtalita).
There is no question that most medieval Muslim jurists considered the hudud punishments to be part of the immutable and eternal Shari‘ah and, therefore, they rendered the hudud punishments not subject to change, modification, or abrogation. Whether intentionally or not, most medieval Muslim jurists created the impression that it is not possible to implement Shari‘ah law without enforcing the hudud punishments and that, in general, the hudud are integral to the Islamic legal system. Interestingly, however, hudud punishments were hardly ever implemented in Islamic legal history, for the most part because Muslim jurists made the evidentiary requirements and the technical pre-conditions for the enforcement of the hudud practically impossible to fulfill, or because they admitted so many mitigating factors to the point that only a criminal who was most determined to be punished could be made to suffer the hudud penalties.[xxxii]
Whether the so-called hudud crimes ought to be considered an immutable and permanent part of Shari‘ah warrants re-thinking. As mentioned earlier, generally, the Shari‘ah embodies the characteristics and attributes of Divinity, which consist of general ethical and moral teachings. However, Muslim jurists treated specific laws, which are explicitly commanded by God, to be a part of the eternal Shari‘ah as if these laws are in and of themselves ethical precepts that by their nature are not subject to contingency, context, or temporal variations.
Dealing with the hudud, Muslim jurists focused on the punishments and not on the behavior or conduct that warranted the penalties. In doing so, they erroneously rendered some of the punitive measures mentioned in the Qur'an and Prophetic traditions sacrosanct and eternal. But there is no plausible reason to believe that the attributes or characteristics of Divinity or that the ethical precepts of Islam are embedded in specific punishments—whatever these punishments may be. If the Divine Will was to safeguard the hudud punishments, either as embodying the attributes and characteristics of God or essential ethical and moral values, it would be incongruous for such punishments to be contingent, contextual, or subject to mitigation.
In my view, the classical approach, which tended to sanctify particular punitive measures, and treat them as if part of the immutable and eternal Shari‘ah, is quite unfortunate. What ought to be considered immutable and eternal are the ethical values that the punitive measures were intended to safeguard, and not the punitive measures themselves. The severity of the punishments mentioned in the sources is an indication of the importance of a particular value to the Shari‘ah.
Therefore, the punishments prescribed for fornication or stealing are powerful indicators of the value that the Shari‘ah places on chastity and on not stealing. The punishments themselves, however, are contextual—they depend on a variety of factors such as: mitigation; evidentiary certitude; the intent and purpose of the individual perpetrator; the reliability and accountability of the judicial system at a particular time and place; community standards; sociologically dependent and shifting notions of cruelty, barbarity and mercy; and the possible deterrence value of such punishments within the context of a certain age and place.
As already noted, the classical jurists were keenly aware that to the extent possible, an Islamic judicial system ought to avoid applying the hudud punishments. In fact, in a well-known set of traditions, the Prophet is reported to have taught that in criminal matters any doubt must be construed in the light most favorable to a defendant.
Moreover, in the case of hudud, the Prophet instructed that Muslims ought to seek out the shadows of doubt in order to avoid having to inflict a hadd (singular of hudud) punishment against a defendant. According to the Prophet, if a person knows that someone has committed a hadd crime, it is better to help the criminal repent than to expose the criminal by turning him in to the authorities. Furthermore, bringing hadd charges against a suspect that the accuser is ultimately unable to prove might in some circumstances subject the accuser to punishment, and sneaking and spying are not valid ways of proving a hadd crime.[xxxiii]
This principled recalcitrance and various safeguards against a wide application of the hudud are a clear indication that the hudud punishments themselves do not embody an ethical or moral value. The value is in the unethical and immoral behavior that the hudud are intended to deter. Therefore, for instance, it is the ban against the consumption of alcohol that is immutable and eternal and a part of the Shari‘ah, and not the punitive measure prescribed in the text for the commission of such an offense.
I do realize that this argument requires something of a paradigm shift in the way that Muslims think about the so-called hudud punishments. Nevertheless, I believe that this paradigm shift is critically important for the internal coherence of the Shari‘ah system. It is reasonable to deal with the ethical and moral values of the Shari‘ah as immutable, eternal and absolute, but any positive and context-based laws are temporal and changeable.[xxxiv]
Beyond puritanism and apologetics, there have been some serious efforts by contemporary Muslim scholars to deal with the conflicts between the two systems of Shari‘ah and human rights paradigms.[xxxv] Methodologically, many of these efforts have tried to locate a primary Islamic value, such as tolerance, dignity, or self-determination, and utilize this value as a proverbial door by which the human rights tradition may be integrated into Islam. Other efforts, however, have relied on a sort of original intent argument; namely that God’s original intent was consistent with a scheme of greater rights for human beings, but that the socio-historical experience was unable to achieve a fulfillment of such an intent.[xxxvi] My point here is not to critique these methodological approaches, and I do not necessarily even disagree with them. I do think, however, that Islamic discourses need to go further than either identifying core values or constructing arguments about a historically frustrated divine will. It is not an exaggeration to say that what is needed is a serious rethinking of the inherited categories of Islamic theology. Nonetheless, in my view, what is needed is not a human centered theology, but a rethinking of the meaning and implications of divinity, and a re-imagining of the nature of the relationship between God and creation. It is certainly true that in Qur’anic discourses, God is beyond benefit or harm, and therefore, all divine commands are designed to benefit human beings alone, and not God. One of the basic precepts of Shari‘ah is that all laws are supposed to accrue to the benefit of human beings, who are ultimately charged with fulfilling the Divine Covenant.[xxxvii] But in and of itself, this avowed goal of Islamic law is not sufficient to justify a commitment to human rights. Rather, the challenge is to re-imagine the nature of the Divine Covenant, which defines the obligations and entitlements of human beings, in order to centralize the imperative of human rights, and to do so from an internally coherent perspective in Islam.
From an internal perspective, the question is: Is the subjective belief of human beings about their entitlements and rights relevant to identifying or defining those entitlements and rights? May human beings make demands upon each other, and God for rights, and, upon making such demands, become entitled to such rights? As Islamic theology stands right now, the answer would clearly be that, in the eyes of God, the demands of human beings are irrelevant to their entitlements. God is not influenced one way or the other by human demands, and it is heretical to think otherwise. The response given by traditional Islamic theology does not necessarily preclude a recognition of human rights, but I do believe that such a response creates the potential for foreclosing the possibility of giving due regard to the evolving field of universal human rights. As I noted earlier, in this article, I am dealing with potentialities, and not absolute determinations. Therefore, as argued below, giving a different response to these questions could contribute to, or could create a potential for resolving what I described as the problematic tension between human rights schemes and Shari‘ah law. I will argue that in order to create an adequate potential for a realization of a human rights commitment in Shari‘ah law, it is important to visualize God as beauty and goodness, and that engaging in a collective enterprise of beauty and goodness, with humanity at large, is part of the realizing of the divine in human life.
The Rights of God and the Rights of People
The very notion of individual rights is elusive both in terms of the sources and the nature of those rights. Furthermore, whether there are inherent and absolute individual rights, or simply presumptive individual entitlements that could be outweighed by countervailing considerations, is debatable.[xxxviii] In addition, while all constitutional democracies afford protections to a particular set of individual interests, such as freedom of speech and assembly, equality before the law, right to property, and due process of law, which exact rights ought to be protected, and to what extent, is subject to a large measure of variation in theory and practice. In this context, I am using a minimalist, and hopefully a non-controversial, notion of individual rights. By individual rights, I do not mean entitlements, but qualified immunities—the idea that particular interests related to the well-being of an individual ought to be protected from infringements whether perpetuated by the state or other members of the social order, and that such interests should not be sacrificed unless for an overwhelming necessity. This, as noted, is a minimalist description of rights, and in my view, a largely inadequate one. I doubt very much that there is an objective means of quantifying an overwhelming necessity, and thus, some individual interests ought to be unassailable under any circumstances. These unassailable interests are the ones that, if violated, are bound to communicate to the individual in question a sense of worthlessness, and that, if violated, tend to destroy the faculty of a human being to comprehend the necessary elements for a dignified existence.[xxxix] Therefore, for instance, under this conception, the use of torture, the denial of food or shelter, or the means for sustenance, such as employment, under any circumstances, would be a violation of an individual’s rights. For the purposes of this chapter, however, I will assume the minimalist description of rights.
It is fair to say, however, that the pre-modern juristic tradition did not articulate a notion of individual rights as privileges, entitlements, or immunities. Nonetheless, the juristic tradition did articulate a conception of protected interests that accrue to the benefit of the individual. However, as demonstrated below, this subject remains replete with considerable ambiguity in Islamic thought. As noted earlier, the purpose of Shari‘ah in jurisprudential theory is to fulfill the welfare of the people. The interests or the welfare of the people is divided into three categories: the necessities (daruriyyat), the needs (hajiyyat), and the luxuries (kamaliyyat or tahsiniyyat). The law and political policies of the government must fulfill these interests in descending order of importance: first the necessities, then the needs, and then the luxuries. The necessities are further divided into five basic values (al-daruriyyat al-khamsah: life, intellect, reputation or dignity, lineage or family, and property).[xl] But Muslim jurists did not develop the five basic values as conceptual categories and then explore the theoretical implications of each value. Rather, they pursued what can be described as an extreme positivistic approach to these rights. Muslim jurists examined the existing positive legal injunctions that arguably can be said to serve these values, and concluded that by giving effect to these specific legal injunctions, the five values have been sufficiently fulfilled. So, for example, Muslim jurists contended that the prohibition of murder served the basic value of life, the law of apostasy protected religion, the prohibition of intoxicants protected the intellect, the prohibition of fornication and adultery protected lineage, and the right of compensation protected the right to property.[xli] Limiting the protection of the intellect to the prohibition against the consumption of alcohol or the protection of life to the prohibition of murder is hardly a very thorough protection of either intellect or life. At most, these laws are partial protections to a limited conception of values, and at any case, cannot be asserted as the equivalent of individual rights because they are not asserted as immunities to be retained by the individual against the world. It is reasonable to conclude that these five values were emptied of any theoretical social and political content and were reduced to technical legalistic objectives. This, of course, does not preclude the possibility that the basic five values could act as a foundation for a systematic theory of individual rights.[xlii]
To argue that the juristic tradition did not develop the idea of fundamental or basic individual rights does not mean that that tradition was oblivious to the notion. In fact, the juristic tradition tended to sympathize with individuals who were unjustly executed for their beliefs or those who died fighting against injustice. Jurists typically described such acts as a death of musabarah, a description that carried positive or commendable connotations. Muslim jurists produced a formidable discourse condemning the imposition of unjust taxes and the usurpation of private property by the government.[xliii] Furthermore, the majority of Muslim jurists refused to condemn or criminalize the behavior of rebels who revolted because of the imposition of oppressive taxes or who resisted a tyrannical government.[xliv] In addition, the juristic tradition articulated a wealth of positions that exhibit a humanitarian or compassionate orientation. I will mention only some of these positions, leaving the rest to a more extensive study.
Muslim jurists developed the idea of presumption of innocence in all criminal and civil proceedings, and argued that the accuser always carries the burden of proof (al-bayyinah ‘ala man idda‘a).[xlv] In matters related to heresy, Muslim jurists repeatedly argued that it is better to let a thousand heretics go free than to wrongfully punish a single, sincere Muslim. The same principle was applied to criminal cases; the jurists argued that it is always better to release a guilty person than to run the risk of punishing an innocent person.[xlvi] Moreover, many jurists condemned the practice of detaining or incarcerating heterodox groups that advocate their heterodoxy (such as the Khawarij), and argued that such groups may not be harassed or molested until they carry arms and form a clear intent to rebel against the government.[xlvii] Muslim jurists also condemned the use of torture, arguing that the Prophet forbade the use of muthlah (the use of mutilations) in all situations,[xlviii] and opposed the use of coerced confessions in all legal and political matters.[xlix] A large number of jurists articulated a doctrine similar to the American exculpatory doctrine—confessions or evidence obtained under coercion are inadmissible at trial. Interestingly, some jurists asserted that a judge that relies on a coerced confession in a criminal conviction is, in turn, to be held liable for the wrongful conviction. Most argued that the defendant, or his family, may bring an action for compensation against the judge, individually, and against the Caliph and his representatives, generally, because the government is deemed to be vicariously liable for the unlawful behavior of its judges.[l]
But perhaps the most intriguing discourse in the juristic tradition is that which relates to the rights of God and the rights of people. The rights of God (huquq Allah) are rights retained by God, as God’s own through an explicit designation to that effect. These rights belong to God in the sense that only God can say how the violation of these rights may be punished and only God has the right to forgive such violations.[li] These rights are, so to speak, subject to the exclusive jurisdiction and dominion of God, and human beings have no choice but to follow the explicit and detailed rules that God set out for the handling of acts that fall in God’s jurisdiction. In addition, in the juristic theory, all rights not explicitly retained by God, accrue to the benefit of human beings. In other words, any right (haqq) that is not specifically and clearly retained by God becomes a right retained by people. These are called huquq al-‘ibad, huquq al-nas, or huquq al-adamiyyin.[lii] Importantly, while violations of God’s rights are only forgiven by God through adequate acts of repentance, the violation of people’s rights may be forgiven only by the people. For instance, a right to compensation is retained individually by a human being and may only be forgiven by the aggrieved individual. The government, or even God, does not have the right to forgive or compromise such a right of compensation if it is designated as part of the rights of human beings. Therefore, the Maliki jurist Ibn al-‘Arabi (d. 543/1148) states:
The rights of human beings are not forgiven by God unless the human being concerned forgives them first, and the claims for such rights are not dismissed [by God] unless they are dismissed by the person concerned...The rights of a Muslim cannot be abandoned except by the possessor of the right. Even the imam [ruler] does not have the right to demand [or abandon] such rights. This is because the imam is not empowered to act as the agent for a specific set of individuals over their specific rights. Rather, the imam only represents people, generally, over their general and unspecified rights. [liii]
In a similar context, the Hanafi jurist al-‘Ayini (d. 855/1453) argues that the usurper of property, even if a government official, will not be forgiven for his sin, even if he repents a thousand times, unless he returns the stolen property.[liv] Most of these discourses occur in the context of addressing personal monetary and property rights, but they have not been extended to other civil rights, such as the right to due process or the right to listen, to reflect, and to study, which may not be abandoned or violated by the government under any circumstances. This is not because the range of the rights of people was narrow—quite to the contrary, it is because the range of these rights was too broad. It should be recalled that people retain any rights not explicitly reserved by God. Effectively, since the rights retained by God are quite narrow, the rights accruing to the benefit of the people are numerous. The juristic practice has tended to focus on narrow legal claims that may be addressed through the processes of law rather than on broad theoretical categories that were perceived as non-justiciable before a court. As such, the jurists tended to focus on tangible property rights or rights for compensation instead of focusing on moral claims. So, for instance, if someone burns another person’s books, that person may seek compensation for destruction of property, but he could not bring an action for injunctive relief preventing the burning of the books in the first place. Despite this limitation, the juristic tradition did, in fact, develop a notion of individual claims that are immune from governmental or social limitation or alienation.
There is one other important aspect that needs to be explored in this context. Muslim jurists asserted the rather surprising position that if the rights of God and rights of people (mixed rights) overlap, in most cases, the rights of people should prevail. The justification for this was that humans need their rights, and need to vindicate those rights on earth. God, on the other hand, asserts God’s rights only for the benefit of human beings, and, in all cases, God can vindicate God’s rights in the Hereafter if need be. As to the rights of people, Muslim jurists did not imagine a set of unwavering and generalizable rights that are to be held by each individual at all times. Rather, they thought of individual rights as arising from a legal cause brought about by the suffering of a legal wrong. A person does not possess a right until he or she has been wronged, and as a result, obtains a claim for retribution or compensation. Shifting paradigms, it is necessary to transform the traditional conceptions of rights to a notion of immunities and entitlements. As such, these rights become the property of individual holders, before there arises a specific grievance regardless of whether there is a legal cause of action. The set of rights that are recognized as immutable and invariable are those that are necessary to achieve a just society while promoting the element of mercy. It is quite possible that the relevant individual rights are those five values mentioned above, but this issue needs to be re-thought and re-analyzed in light of the current diversity and particularity of human existence. The fact that the rights of people take priority over the rights of God, on this earth, necessarily means that a claimed right of God may not be used to violate the rights of human beings. God is capable of vindicating whichever rights God wishes to vindicate in the Hereafter. On this earth, we concern ourselves only with discovering and establishing the rights that are needed to enable human beings to achieve a just life, while, to the extent possible, honoring the asserted rights of God.[lv]
Shari‘ah and the Promise of Human Rights
I have argued that God’s sovereignty is honored in the pursuit of a just society, and that a just society must, in pursuit of mercy, respect human diversity and richness, and must recognize the immunities that are due to human beings. I have justified this position on Islamic grounds; while acknowledging that this approach is informed by the interpretive traditions of the past, it is not the dominant approach to the subject or even a well-established approach among Muslims in the modern era. Unfortunately, the only well-established approaches to the subject today are the apologetic and puritan approaches. As far as contemporary discourses are concerned, they are replete with unjustified assumptions, and intellectual shortcuts that have seriously undermined the ability of Muslims to confront such an important topic as human rights. In addition, partly affected by Muslim apologists, many Western scholars repeat generalizations about Islamic law that, the least one can say, are not based on historical texts generated by Muslim jurists. Among those unfounded generalizations are the claims that Islamic law is concerned primarily with duties, and not rights, and that the Islamic conception of rights is collectivist, and not individualistic.[lvi] Both claims, although they are often repeated, are somewhat inconsistent, but more importantly, they are not based on anything other than cultural assumptions about the non-Western “other.” It is as if the various interpreters, having decided on what they believe is the Judeo-Christian, or perhaps Western, conception of rights, assume that Islam must necessarily be different.[lvii] The reality, however, is that both claims are largely anachronistic. Pre-modern Muslim jurists did not assert a collectivist vision of rights, in the same way that they did not assert an individualistic vision of rights. They did speak of al-haqq al-‘amm (public rights), and often asserted that public rights ought to be given preference over private entitlements. But as a matter of juristic determination, this amounted to no more than an assertion that the many should not be made to suffer for the entitlements of the few. For instance, as a legal maxim, this was utilized to justify the notion of public takings or the right to public easements over private property. This principle was also utilized in prohibiting unqualified doctors from practicing medicine.[lviii] But as noted above, Muslim jurists did not, for instance, justify the killing or the torture of individuals in order to promote the welfare of the state or the public interest. Even with regard to public takings or easements, the vast majority of Muslim jurists maintained that the individuals affected are entitled by the state to compensation equal to the fair market value of the property taken. In addition, pursuant to a justice perspective, one can argue that a commitment to individual rights, taken as a whole, will accrue to the benefit of the many (the private citizens) over the few (the members of ruling government). I do believe that the common good is greatly enhanced, and not hampered, by the assertion of individual rights, but this point needs to be developed in a more systematic way in a separate study.[lix] My point here, however, is that the juristic notion of public rights does not necessarily support what is often described as a collectivist view of rights.[lx] Likewise, the idea of duties (wajibat) is as well established in the Islamic tradition as the notion of rights (huquq); the Islamic juristic tradition does not show a proclivity towards one more than the other. In fact, some pre-modern jurists have asserted that to every duty there is a reciprocal right, and vice versa.[lxi] It is true that many jurists claimed that the ruler is owed a duty of obedience, but they also, ideally, expected the ruler to safeguard the well-being and interests of the ruled. The fact that the jurists did not hinge the duty to obey on the obligation to respect the individual rights of citizens does not mean that they were, as a matter of principle, opposed to affording the ruled certain immunities against the state. In some situations, Muslim jurists even asserted that if the state fails to protect the well-being of the ruled, and is unjust towards them, the ruled no longer owe the state either obedience or support.[lxii]
The widespread rhetoric regarding the primacy of collectivist and duty-based perspectives in Islam points to the reactive nature of much of the discourse on Islamic law in the contemporary age. In the 1950s and 1960s, most Muslim countries, as underdeveloped nations, were heavily influenced by socialist and national development ideologies, which tended to emphasize collectivist and duty-oriented conceptions of rights. Therefore, many Muslim commentators claimed that the Islamic tradition necessarily supports the aspirations and hopes of what is called the Third World. But such claims are as negotiative, re-constructive, and inventive of the Islamic tradition as any particular contemporaneous vision of rights. In my view, however, from a theological perspective, the notion of individual rights is easier to justify in Islam than a collectivist orientation. God created human beings as individuals, and their liability in the Hereafter is individually determined as well. To commit oneself to the safeguarding and protecting the well-being of the individual is to take God’s creation seriously. Each individual embodies a virtual universe of divine miracles in body, soul, and mind. Why should a Muslim commit himself/herself to the rights and well-being of a fellow human being? The answer is because God has already made such a commitment when God invested so much of the God-self in each and every person. This is why the Qur’an asserts that whoever kills a fellow human being unjustly, it is as if he/she has murdered all of humanity – it is as if the killer has murdered the divine sanctity, and defiled the very meaning of divinity.[lxiii] The Qur’an does not differentiate between the sanctity of a Muslim or non-Muslim.[lxiv] As the Qur’an repeatedly asserts, no human being can limit the divine mercy in any way, or even regulate who is entitled to it.[lxv] I take this to mean that non-Muslims, as well as Muslims, could be the recipients and the givers of divine mercy. The measure of moral virtue on this earth is who is able to come closer to divinity through justice, and not who carries the correct religious or irreligious label. The measure in the Hereafter is a different matter, but it is a matter that is in the purview of God’s exclusive jurisdiction.
* Professor of Law, UCLA School of Law, and the Omar and Azmeralda Alfi Distinguished Fellow in Islamic Law. I am very grateful to my students Holly Robins and Dana Lee, and my wife, Grace Song, for their invaluable feedback and assistance.
[i] Jack Donnelly, “The Social Construction of International Human Rights,” in Human Rights in Global Politics, eds. Tim Dunne and Nicholas J. Wheeler (Cambridge: Cambridge University Press, 1999), 71-102; Donnelly, International Human Rights: Dilemmas in World Politics (Boulder, CO: Westview Press, 2nd ed. 1998), 3-17, 86-114; David P. Forsythe, Human Rights in International Relations (Cambridge: Cambridge University Press, 2000), 139-60, 217-36; Peter Schwab and Adamantia Pollis, “Globalization’s Impact on Human Rights,” in Human Rights: New Perspectives, New Realities, eds. Adamantia Pollis and Peter Schwab (Boulder, CO: Lynne Rienner Publishers, 2000), 209-23; Paul Gordon Lauren, The Evolution of International Human Rights: Visions Seen (Philadelphia: University of Pennsylvania Press, 1998), 241-80. For useful anthropological studies on the “globalization of human rights,” see Richard A. Wilson, ed., Human Rights, Culture and Context (Chicago: Pluto Press, 1997). For a study that analyzes this phenomenon, but is critical of the American contribution, see Diana G. Zoelle, Globalizing Concern For Human Rights: The Failure of the American Model (New York: St. Martin’s Press, 2000).
[ii] The so-called International Bill of Rights is comprised of the Universal Declaration of Human Rights, the International Covenant on Economic, Social, and Cultural Rights, and the International Covenant on Civil and Political Rights. See Jimmy Carter, Adolfo Perez Esquivel, and Tom J. Farer, The International Bill of Rights (Glen Ellen, CA: Entwhistle Books, 1981). Also, see Johannes Morsink, The Universal Declaration of Human Rights: Origins, Drafting, and Intent (Philadelphia: University of Pennsylvania Press, 1999).
[iii] See Michael Ignatieff, The Rights Revolution (Toronto: House of Anansi Press, 2000); Carl Wellman, The Proliferation of Rights: Moral Progress or Empty Rhetoric? (Boulder, CO: Westview Press, 1999); Kristen Sellars, The Rise and Rise of Human Rights (Gloucestershire: Sutton Publishing, 2002); Norberto Bobbio, The Age of Rights (Cambridge: Polity Press, 1996); Louis Henkin, The Age of Rights (New York: Columbia University Press, 1990).
[iv] For instance, see Susan E. Waltz, Human Rights and Reform: Changing the Face of North African Politics (Berkeley and Los Angeles: University of California Press, 1995), esp. 14-34, 216-30; Kevin Dwyer, Arab Voices: The Human Rights Debate in the Middle East (Berkeley and Los Angeles: University of California Press, 1991); George Black, ed., Islam and Justice: Debating the Future of Human Rights in the Middle East and North Africa (New York: Lawyers Committee for Human Rights, 1997); Eugene Cotran and Mai Yamani, eds., The Rule of Law in the Middle East and the Islamic World, Human Rights and the Judicial Process (London: I.B. Tauris, 2000). A particularly insightful analysis is: Katerina Dalacoura, Islam, Liberalism and Human Rights (London: I.B. Tauris, 1998).
[v] Wathiqat al-Azhar hawl mustaqbal fi Misr, June 20, 2011, available at: http://www.bibalex.org/Attachments/arabic/elazhar%20arabic.pdf; English translation of the Azhar statement available at: http://www.sis.gov.eg/En/Templates/Articles/tmpArticles.aspx?ArtID=56424#.U_QYI1bwvwI. Also, see Khaled Abou El Fadl, “ The Shari‘ah,” in The Oxford Handbook of Islam and Politics, eds. John L. Esposito and Emad Shahin (Oxford: Oxford University Press, 2013), 23-24.
[vi] These documents include: Universal Islamic Declaration of Human Rights (1981), Cairo Declaration on Human Rights in Islam (1990), and Arab Charter on Human Rights (1994; 2008).
[vii] On the issue of the general tension between Islamic law and human rights law, see Bassam Tibi, “Islamic Law/Shari‘a and Human Rights: International Law and International Relations,” in Islamic Law Reform and Human Rights: Challenges and Rejoinders, eds. Tore Lindholm and Kari Vogt (Oslo: Nordic Human Rights Publications, 1993), 75-96. On the response of several Muslim countries to international human rights obligations, see Ann Mayer, Islam and Human Rights: Tradition and Politics (Boulder, CO.: Westview Press, 3rd ed. 1999). Mayer critiques the practice of several Muslim countries of entering reservations to human rights treaties providing that they are bound by human rights law only to the extent that such international obligations are consistent with Shari‘ah law. On Islamic criminal punishments, and human rights, see Abdullahi An-Na’im, “Toward a Cross-Cultural Approach to Defining International Standards of Human Rights: The Meaning of Cruel, Inhuman, and Degrading Treatment or Punishment,” in Human Rights in Cross-Cultural Perspectives: A Quest for Consensus, ed. Abdullahi An-Na’im (Philadelphia: University of Pennsylvania Press, 1992), 19-43. Also, see Ann Mayer, “A Critique of An-Na’im’s Assessment of Islamic Criminal Justice,” in Islamic Law Reform and Human Rights, 37-60. On freedom of religion in Islam, see Nathan Lerner, Religion, Beliefs, and International Human Rights (Maryknoll, NY: Orbis Books, 2000), 47-48.
[viii] See J.N.D. Anderson, Islamic Law in the Modern World (New York: New York University Press, 1959); Anderson, Law Reform in the Muslim World (London: Athlone Press, 1976); Wael Hallaq, A History of Islamic Legal Theories (Cambridge: Cambridge University Press, 2001), 207-11. On the adoption of secularized law, and the emergence of Western legal professionals in Egypt, see Farhat J. Ziadeh, Lawyers, The Rule of Law, and Liberalism in Modern Egypt (Stanford, CA: Hoover Institution Publications, 1968), 3-61.
[ix] See Lynn Hunt, “The Paradoxical Origins of Human Rights,” in Human Rights and Revolutions, eds. Jeffrey Wasserstrom, Lynn Hunt and Marilyn Young (Lanham, MD: Rowman and Littlefield Publishers, 2000), 3-17.
[x] The classic studies on orientalism and its effects remain those of Edward Said, Orientalism (New York: Random House, 1979), and Culture and Imperialism (New York: Vintage Books, 1994). For a probing survey of orientalism and its practices, see Bryan S. Turner, Orientalism, Postmodernism and Globalism (London: Routledge Press, 1994), 3-114.
[xi] See David Rieff, “A New Age of Liberal Imperialism,” in Human Rights and Revolutions, 177-90.
[xii] This period has been described by some scholars as the liberal age of modern Islam, see Albert Hourani, Arabic Thought in the Liberal Age: 1798-1939 (Cambridge: Cambridge University Press, 1983); Leonard Binder, Islamic Liberalism: A Critique of Development Ideologies (Chicago: University of Chicago Press, 1988); Daniel Brown, Rethinking Tradition in Modern Islamic Thought (Cambridge: Cambridge University Press, 1996).
[xiii] For a critical, and similarly grim, assessment by a Muslim intellectual of the impact of apologetics upon Muslim culture, see Tariq Ramadan, Islam, the West and the Challenges of Modernity, trans. Said Amghar (Markefield, UK: The Islamic Foundation, 2001), 286-90.
[xiv] See Ann Mayer, “Universal versus Islamic Human Rights: A Clash of Cultures or a Clash with a Construct?” Michigan Journal of International Law 15, no. 2 (1994): 307-429. The International Commission of Jurists, which works under the auspices of the Human Rights Commissioner, has strongly criticized the Arab Charters and the Cairo Declaration. See International Commission of Jurists, The process of “modernizing” the Arab Charter on Human Rights: a disquieting regression, December 20, 2003, available at: http://icj.wpengine.netdna-cdn.com/wp-content/uploads/2004/03/MENA-modernising-Arab-Charter-position-paper-2004-eng.pdf.
[xv] The foundations of Wahhabi theology were set into place by the eighteenth century evangelist Muhammad b. ‘Abd al-Wahhab (d. 1206/1792). With a puritanical zeal, Ibn ‘Abd al-Wahhab sought to rid Islam of all the corruptions that he believed had crept into the religion – corruptions that included mysticism, including the doctrine of intercession, and rationalism. The simplicity, decisiveness, and incorruptibility of the religious thought of Ibn ‘Abd al-Wahhab made it attractive to the desert tribes, especially in the area of Najd. Ibn ‘Abd al-Wahhab’s ideas would not have spread even in Arabia had it not been for the fact that in the late eighteenth century, the Al Sa‘ud family united itself with the Wahhabi movement, and rebelled against Ottoman rule in Arabia. The Wahhabi rebellion was considerable, at one point reaching as far as Damascus in the north and Oman in the south. Egyptian forces under the leadership of Muhammad Ali in 1818, however, after several failed expeditions, quashed the rebellion, and Wahhabism seemed to be on its way to extinction. Nevertheless, Wahhabi ideology was resuscitated once again in the early twentieth century under the leadership of ‘Abd al-‘Aziz b. Al Sa‘ud (r. 1319-73/1902-53) who adopted the puritanical theology of the Wahhabis and allied himself with the tribes of Najd, thereby establishing the nascent beginnings of what became Saudi Arabia. On the relationship between Wahhabism and the Saudi state, see Khaled Abou El Fadl, Reasoning with God: Reclaiming Shari’ah in the Modern Age (Lanham, MD: Rowman & Littlefield, 2014), 227-48.
[xvi] Salafism is a creed founded in the late nineteenth century by Muslim reformers such as Muhammad ‘Abduh (d. 1323/1905), Jamal al-Din al-Afghani (d. 1314/1897), Muhammad Rashid Rida (d. 1354/1935), Muhammad al-Shawkani (d. 1250/1834), and al-Jalal al-San‘ani (d. 1225/1810). Salafism appealed to a very basic and fundamental concept in Islam, and that is Muslims ought to follow the precedent of the Prophet and his rightly guided companions (al-salaf al-salih). The founders of Salafism maintained that on all issues, Muslims ought to return to the original textual sources of the Qur’an and the Sunna (precedent) of the Prophet. In doing so, Muslims ought to re-interpret the original sources in light of modern needs and demands without being slavishly bound to the interpretive precedents of earlier Muslim generations. Methodologically, Salafism is nearly identical to Wahhabism except that Wahhabism is far less tolerant of diversity and differences of opinions. By the 1980s, however, Wahhabism co-opted the language, symbolisms, and even the very name of Salafism, and therefore, was able to spread in the Muslim world under the Salafi label.
[xvii] For instance see Muhammad b. ‘Abd al-Wahhab, “al-Risalah al-ula,” in Majmu‘at al-tawhid, collected by Hamad b. ‘Atiq al-Najdi (Damascus: al-Maktab al-Islami, 1962), 30-31, 68; Ibn ‘Abd al-Wahhab,, “Bayan al-najah wa al-fakak: al-risalah al-thaniyyah ‘ashrah,” in Majmu‘at al-tawhid, 394, 400, 421-23, 433.
[xviii] This was, for instance, reproduced in Sayyid Qutb’s notion that the world, including the Muslim world, is living in jahiliyya (darkness and ignorance associated with the pre-Islamic era). See Sayyid Qutb, Milestones on the Road (Indiana: American Trust Publications, 1991); Ahmad S. Mousalli, Radical Islamic Fundamentalism: The Ideological and Political Discourse of Sayyid Qutb (Syracuse, NY: Syracuse University Press, 1993). This intellectual and moral isolationism was resisted, perhaps not very successfully, by a variety of jurists in the first half of the twentieth century. For instance, many of the articles published in the Azhar Journal, Nur al-Islam, in the 1930s and 1940s attempted to engage, interact, and discourse with world thought. It is clear that many Muslim scholars, at that time, tried to stay informed about the latest in European thought, and attempted to discuss how the latest ideas in philosophy and sociology would impact upon Muslim culture.
[xix] See the discussion on this point by Michael Ignatieff, Human Rights: As Politics and Idolatry (Princeton, NJ: Princeton University Press, 2001), 53-94.
[xx] See, for instance, William F. Felice, Taking Suffering Seriously: The Importance of Collective Human Rights (Albany: State University of New York Press, 1996).
[xxi] Charles Taylor, “Conditions of an Unenforced Consensus on Human Rights,” in The Politics of Human Rights (London: Verso Press, 1999), 101-19; Brian Tierney, “Religious Rights: An Historical Perspective,” in Religious Human Rights in Global Perspective: Religious Perspectives, eds. John Witte and Johan van der Vyver (The Hague: Martinus Nijhoff Publishers, 1996), 17-45. Also, see Michael J. Perry, The Idea of Human Rights: Four Inquiries (Oxford: Oxford University Press, 1998), 57-106.
[xxii] For instance, one can speak of a right to education because of the fact that such a right has been demanded and often denied. On the other hand, one normally does not speak of a right to go to the toilet because that function is normally not demanded and then denied. However, one might start articulating such a right if, for instance, state or non-state actors are torturing a prisoner by denying him or her access to such facilities. I am not necessarily articulating a sociological understanding of human rights. A right could exist as a perennial right for eternity, but it is not recognized or claimed until human experience demonstrates the need to recognize or claim it. On the social recognition and promotion of rights, see Rex Martin, A System of Rights (Oxford: Clarendon Press, 1993), 24-97.
[xxiii] Reference here is typically made to jus cogens or customary international law as the reason that non-signatory states are still bound by international human rights standards.
[xxiv] See A.J.M. Milne, Human Rights and Human Diversity: An Essay in the Philosophy of Human Rights (Albany: State University of New York Press, 1986), 62-78. Also, see Richard Falk, “A Half Century of Human Rights: Geopolitics and Values,” in The Future of International Human Rights, eds. Burns H. Weston and Stephen P. Marks (Ardsley, NY: Transnational Publishers Inc., 1999), 1-24. Criticizing what he calls “personalisms”, Yves Simon argues that the Natural Law tradition is at its weakest when it functions as ideology, instead of as philosophy. He asserts that there is a tendency to use the Natural Law tradition in highly politicized ways, and that this trend has greatly damaged the credibility of this moral tradition. See Yves Simon, The Tradition of Natural Law: A Philosopher’s Reflections (New York: Fordham University Press, 1992).
[xxv] This is well exemplified by the unfortunate practice of retaliatory “political” rapes that exist in some countries. Once a woman’s right to be free of sexual molestation is recognized, political rapes become indefensible regardless of the applicability of the legal argument. Whether rape is mentioned in an international declaration or treaty, and whether a particular country is a signatory to a particular covenant or not is treated as irrelevant to assessing the moral wrong of retaliatory rapes. On retaliatory rapes, see Shahla Haeri, “The Politics of Dishonor: Rape and Power in Pakistan,” in Faith and Freedom: Women’s Human Rights in the Muslim World, ed. Mahnaz Afkhami (Syracuse, NY: Syracuse University Press, 1995), 161-74.
[xxvi] By an exercise of personal volition, an individual may resolve most, if not all, conflicts between religious conviction and human rights claims. For instance, although the divine law may decree that the hands of a thief be severed, I may refuse to sever anyone’s hands, or even refuse to prosecute anyone if the punishment is so harsh. Likewise, I may abstain from stoning an adulterer or adulteress to death, or refuse to take part in a proceeding that would result in a stoning. Of course, the more a system is compulsory and the more it denies individual volition, the more exasperated the tension becomes between the subjective experience and human rights standards.
[xxvii] On the dynamics between religion and human rights, see Martin Marty, “Religious Dimensions of Human Rights,” in Religious Human Rights in Global Perspective: Religious Perspectives, 1-16.
[xxviii] See Basil Mitchell, Law, Morality and Religion in a Secular Society (Oxford: Oxford University Press, 1967), 103-18; Richard Tuck, Natural Rights Theories: Their Origin and Development (Cambridge: Cambridge University Press, 1979), 5-31. On the religion and the natural rights tradition, see Paul E. Sigmund, Natural Law in Political Thought (Lanham, MD: University Press of America, 1971), 36-89; Leo Strauss, Natural Right and History (Chicago: University of Chicago Press, 1965), 81-164.
[xxix] See Mahmood Monshipouri, Islamism, Secularism, and Human Rights in the Middle East (Boulder, CO: Lynne Rienner Publishers, 1998), 207-35.
[xxx] On the issue of hypocrisy in international human rights practices and its impact upon the credibility of the field, see Richard Falk, Human Rights Horizons: The Pursuit of Justice in a Globalizing World (London: Routledge Press, 2000).
[xxxi] Although the hudud are often equated with Qur’anic law, not all the hudud penalties were even mentioned in the Qur’an. Most notably, stoning as a punishment for adultery and death in cases of apostasy are not derived from the text of the Qur’an. The Qur’an neither mentions stoning nor apostasy. Moreover, corporal punishment for the consumption of alcohol is considered to be among the hudud although it is not Qur’anically based.
[xxxii] See Intisar A. Rabb, Doubt in Islamic Law: A History of Legal Maxims, Interpretation, and Islamic Criminal Law (New York: Cambridge University Press, 2015); Rabb, “Islamic Legal Maxims as Substantive Canons of Construction: Hudud-Avoidance in Cases of Doubt,” Islamic Law and Society 17 (2010): 63-125; Rabb, “The Islamic Rule of Lenity: Judicial Discretion and Legal Canons,” Vanderbilt Journal of Transnational Law 44 (2011): 1316-51.
[xxxiii] See Qur’an 49:12 which prohibits spying on people (“O you who have believed, avoid assumption [amanu ujtanibu kathiran min al-zann]. Indeed, some assumption is sin. And do not spy or backbite each other [wa-la tajassasu wa-la yaghtab]”) and Qur’an 24:27 which prohibits entry into another person’s home without the owner’s permission. There is an often quoted tradition about ‘Umar b. al-Khattab (the second caliph) entering the house of a man without permission because he heard singing in the home. When ‘Umar entered the house by climbing over the wall, he found the man in the company of women and drinking wine. The man in the house told ‘Umar: “O Commander of the Faithful, do not make haste. If I have disobeyed God once, you have disobeyed [God] three times. God has said: ‘Do not spy’, and you have spied; God has said: ‘It is not righteous to enter homes from the back’, and you have climbed over my wall; and God has said: ‘Do not enter houses other than yours’, and you have entered my home without my permission…’ Then ‘Umar said: ‘Forgive me.’ Then the man said: ‘I will. O Commander of the Faithful, if you forgive me, I will not repeat my offense.’ ‘Umar forgave him and left.” See Abu Hamid al-Ghazali, Ihya’ ulum al-din (Aleppo: Dar al-Wafi, 1998), 2:323. Also, see Rabb, Doubt in Islamic Law, 108; Rabb, “Islamic Legal Maxims as Substantive Canons of Construction: Hudud-Avoidance in Cases of Doubt,” 63-65, 78-79, 81-83, 101-102, 107-108.
[xxxiv]On contingency and temporality in law, see Khaled Abou El Fadl, Reasoning with God, 222-58, 295-300; Abou El Fadl, “The epistemology of the truth in modern Islam,” Philosophy and Social Criticism 41, no. 4-5 (2015): 473-86.
[xxxv] For the Iranian context, see Abdolkarim Soroush, Reason, Freedom and Democracy in Islam, trans. M. Sadri and A. Sadri (Oxford: Oxford University Press, 2000), 61-4, 122-30, 132-33; Ziba Mir-Hosseini, Islam and Gender: The Religious Debate in Contemporary Iran (Princeton, NJ: Princeton University Press, 1999).
[xxxvi] For instance, see Abdulaziz Sachedina, The Islamic Roots of Democratic Pluralism (Oxford: Oxford University Press, 2001); Farid Esack, Qur’an, Liberation, and Pluralism (Oxford: Oneworld Publications, 1997); Abdullahi A. An-Na’im, Toward An Islamic Reformation: Civil Liberties, Human Rights, and International Law (Syracuse, NY: Syracuse University Press, 1996); Abdullahi An-Na’im, “Islamic Foundations of Religious Human Rights,” in Religious Human Rights in Global Perspective: Religious Perspectives, 337-59; Mohammad Hashim Kamali, The Dignity of Man: An Islamic Perspective (Cambridge: Islamic Texts Society, 2002); Ahmad Moussalli, The Islamic Quest for Democracy, Pluralism, and Human Rights (Gainesville: University Press of Florida, 2001).
[xxxvii] For elaboration on this, see Khaled Abou El Fadl, Speaking in God’s Name: Islamic Law, Authority, and Women (Oxford: Oneworld Press, 2001), 32-33.
[xxxviii] Debates on individual rights raise questions about the nature, foundations, and universality of such rights. The historical discontinuities of individual rights suggest that, despite the absolutist-moral overtones of some rights-talk, individual rights are the product of complex historical processes. See Austin Sarat and Thomas R. Kearns, eds., Legal Rights: Historical and Philosophical Perspectives (Ann Arbor: University of Michigan Press, 1997); Louis Henkin, The Age of Rights (New York: Columbia University Press, 1990); Carl Wellman, A Theory of Rights: Persons Under Laws, Institutions, and Morals (Totowa, NJ: Rowman & Allanheld Publishers, 1985).
[xxxix] See Virginia Black, “What Dignity Means,” in Common Truths: New Perspectives on Natural Law, ed. Edward McLean (Wilmington, DE: Intercollegiate Studies Institute, 2000), 119-50.
[xl] Abu Hamid al-Ghazali, al-Mustasfa min ‘ilm al-usul (Beirut: Dar al-Arqam, n.d.), 1:286-87; Fakhr al-Din al-Razi, al-Mahsul fi ‘ilm usul al-fiqh (Beirut: Mu’assasat al-Risalah, 1997), 5:159-60.
[xli] Abu al-‘Aynan Badran, Usul al-fiqh (Cairo: Dar al-Ma‘arif, 1965), 430-31; Wahbah al-Zuhayli, al-Wasit fi usul al-fiqh al-Islami (Beirut: Dar al-Fikr, 1969), 498-99.
[xlii] I would argue that the protection of religion should be developed to mean protecting the freedom of religious belief; the protection of life should mean that the taking of life must be for a just cause and the result of a just process; the protection of the intellect should mean the right to free thinking, expression and belief; the protection of honor should mean the protecting of the dignity of a human being; and the protection of property should mean the right to compensation for the taking of property.
[xliii] See Khaled Abou El Fadl, “Tax Farming in Islamic Law (qibālah and ḍamān of kharāj): A Search for a Concept,” Islamic Studies 31, no. 1 (1992): 5-32.
[xliv] See Khaled Abou El Fadl, Rebellion and Violence in Islamic Law (Cambridge: Cambridge University Press, 2001), 234-94.
[xlv] ‘Ali Ahmad al-Nadhwi, al-Qawa‘id al-fiqhiyyah (Damascus: Dar al-Qalam, 3rd ed. 1994), 400-01; Ahmad b. Muhammad al-Zarqa, Sharh al-qawa‘id al-fiqhiyyah (Damascus: Dar al-Qalam, 4th ed. 1996), 369-89.
[xlvi] Ibn Hajr al-‘Asqalani, Fath al-bari bi-sharh ṣahih al-Bukhari (Beirut: Dar al-Ma‘rifah, 1963), 14:308.
[xlvii] See Abu Ishaq Burhan al-Din b. Muhammad b. Muflih, al-Mubdi‘ fi sharh al-muqni‘ (Beirut: al-Maktab al-Islami, 1980), 9:168.
[xlviii] Muslim jurists, however, did not consider the severing of hands or feet as punishment for theft and banditry to be mutilation. Ibn Kathir al-Dimashqi, Tafsir al-Qur’an al-‘azim (Beirut: Dar al-Khayr, 1990), 2:56-57; Abu Bakr Ahmad b. ‘Ali al-Razi al-Jassas, Ahkam al-Qur’an (Beirut: Dar al-Kitab al-‘Arabi, 1986), 2:407-08; Abou El Fadl, Rebellion and Violence in Islamic Law, 32, 50-57, 73-77, 340-41.
[xlix] A considerable number of jurists in Islamic history were persecuted and murdered for holding that a political endorsement (bay‘ah) obtained under duress is invalid. Muslim jurists described the death of these scholars under such circumstances as a death of musabarah (under perseverance). This had become an important discourse because Caliphs were in the habit of either bribing or threatening notables and jurists in order to obtain their bay‘ah. See Ibn Khaldun, al-Muqaddimah (Beirut: Dar Ihya’ al-Turath, n.d.), 165; Khaled Abou El Fadl, Rebellion and Violence in Islamic Law, 86-87. On the Islamic law of duress and on coerced confessions and political commitments, see Abou El Fadl, “Law of Duress in Islamic Law and Common Law: A Comparative Study,” Islamic Studies 30, no. 3 (1991): 305-50.
[l] Abu Bakr Ahmad b. ‘Amr b. Munir al-Shaybani al-Khassaf, Kitab adab al-qadi, ed. F. Ziyadah (Cairo: American University of Cairo Press, 1978), 364-65; Abu al-Hasan ‘Ali b. Muhammad al-Mawardi, Adab al-qadi (Baghdad: Matba‘at al-Irshad, 1971) 1:233.
[li] Some modern Muslim commentators tried to equate the rights of God with the idea of public rights. Muhammad Abu-Hassan, “Islamic Criminal Law,” in Justice and Human Rights in Islamic Law, ed. Gerald E. Lampe (Washington, D.C.: International Law Institute, 1997), 79-89, 81-82; Shaikh Shaukat Hussain, Human Rights in Islam (New Delhi: Kitab Bhavan, 1990), 38-39; Mohammad Hashim Kamali, Freedom of Expression in Islam (Cambridge: Islamic Texts Society, 1997), 10. This argument is untenable and it is based on misunderstanding the theory behind the concept of God’s rights. For a Muslim critique of God’s rights as the equivalent of public rights, see Fazlur Rahman, “The Concept of hadd in Islamic Law,” Islamic Studies 4, no. 3 (1965): 237-51.
[lii] Abu Zahrah, Usul al-fiqh (Cairo: Dar al-Fikr al-‘Arabi, n.d.), 256-58.
[liii] Abu Bakr Muhammad b. ‘Abd Allah b. al-‘Arabi, Ahkam al-Qur’an, ed. ‘Ali Muhammad al-Bajawi (Beirut: Dar al-Ma‘rifah, n.d.), 2:603; Khaled Abou El Fadl, Conference of the Books (Lanham, MD: University Press of America, 2001), 105-08. Also, see Abu ‘Abd Allah Muhammad b. Ahmad al-Ansari al-Qurtubi, al-Jami‘ li-ahkam al-Qur’an (Beirut: Dar al-Kutub al-‘Ilmiyyah, 1993), 6:103.
[liv] Abu Muhammad Mahmud b. Ahmad al-‘Ayini, al-Binayah fi sharh al-hidayah (Beirut: Dar al-Fikr, 1990), 6:482.
[lv] This idea is reflected in the well-known tradition attributed to the Prophet that whenever God commands humans to do something, then they should do of it as much as they can. This tradition represents further recognition of the contingent and aspirational nature of human ability, and that while humans may strive for perfection, God is perfection, itself.
[lvi] For this often-repeated claim, see Lawrence Rosen, The Justice of Islam (Oxford: Oxford University Press, 2000), 7, 79-80, 156-57; Rhoda Howard, Human Rights and the Search for Community (Boulder, CO: Westview Press, 1995), 92-104.
[lvii] For the claim that the human rights tradition is Judeo-Christian in origin, see Claudio F. Benedi, Human Rights: The Theme of Our Times (St. Paul, MN: Paragon House Publishers, 1997), 27-32.
[lviii] Salim Rustum Bazz, Sharh al-majallah (Beirut : Dar Iuya’ al-Turath al-‘Arabi, 1986), 31. Muslim jurists also asserted that specific rights and duties should be given priority over general rights and duties. But, again, this was legal principle that applied to laws of agency and trust. Bazz, Sharh al-majallah, 43-44. Although the principle could be expanded and developed to support individual rights in the modern age, historically, it was given a far more technical and legalistic connotation.
[lix] On this, see Simon, The Tradition of Natural Law, 86-109; Alan Gewirth, Human Rights: Essays on Justification and Applications (Chicago: University of Chicago Press, 1982), 218-33; John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press, 1980), 205-18.
[lx] It might be that someone would want to argue that collectivist rights schemes are superior to individual rights schemes. But a collectivist rights scheme would need to be justified on Islamic grounds as much as an individualist rights scheme. Both types of rights schemes are equally alien, or familiar, to the Islamic tradition. In addition, I do not dispute the morality of some collectivist rights, such as the rights of indigenous people, the right to culture, or development, and that these rights could be justified on Islamic grounds. But from an Islamic perspective, it is much harder to justify the sacrificing of the safety or well-being of individuals in pursuit of a collective right. It seems to me that the collectivist rights mentioned above are justifiable largely when a collectivity is trying to protect its individuals and collective interests from aggression coming from outside the collectivity. In other words, it is justifiable when a community of people, sharing common interests, are trying to protect themselves from external dangers. But it seems far less justifiable when the community is turning inwards, and trying to target individuals within its own membership, under the auspices of protecting the character of the collectivity against the dangers of dissent. On this issue, see James Crawford, ed., The Rights of Peoples (Oxford: Clarendon Press, 1995); Alexandra Xanthaki, “Collective Rights: The Case of Indigenous Peoples,” in Human Rights in Philosophy and Practice, eds. Burton Leiser and Tom Campbell (Burlington, VT: Ashgate Publishing Company, 2001), 303-13; Emily R. Gill, “Autonomy, Diversity, and the Right to Culture,” 285-300 in the same source.
[lxi] On the relationship between duty and right in Roman law, and the subsequent Western legal tradition, see Finnis, Natural Law, 205-10. The dynamic that Finnis describes is very similar to that which took place in classical Islamic law.
[lxii] On this subject, see Abou El Fadl, Rebellion and Violence in Islamic Law, 280-87.
[lxiii] Qur’an 5:32.
[lxiv] Some pre-modern jurists did differentiate between Muslim and non-Muslim especially in matters pertaining to criminal liability and compensation for torts.
[lxv] Qur’an 2:105; 3:74; 35:2; 38:9; 39:38; 40:7; 43:32.
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