[Islam] Heiner Bielefeldt - "Muslim Voices in the Human Rights Debate"

I. INTRODUCTION

The main purpose of this article is to display a plurality of Muslim positions in the area of human rights. Like other religions or cultures, Islam is a complex reality harboring various, and frequently conflicting, interpretations about its inherent normative demands. Such diverse interpretations also emerge in the field of human rights. As the title of this article suggests, there is not one binding Islamic position but rather a great variety of "Muslim voices" offering different views about whether and how the idea of human rights and Islamic normative requirements fit together. ²

This article can, at the same time, be read as an exploration of the relationship between the universal claims of human rights on the one hand and the traditional values rooted in a particular culture on the other. It seems beyond question that many tensions between traditional Islamic norms and international human rights standards exist. No one can predict whether and how they will be settled in the future. However, because all cultures [End Page 587] and religions are open to various interpretations and evolutions, the frequently perceived antagonism between universal human rights and cultural identity appears at least questionable.

In order to overcome this perceived antagonism, one must clarify the concept of human rights. Therefore, I begin my analysis by suggesting an understanding of human rights that refers primarily to the Universal Declaration of Human Rights and, at the same time, is potentially open to a variety of different cultural interpretations. I then move on to an identification of the main areas of conflict between the Islamic normative tradition and human rights. The third section focuses on the different positions Muslims take today to deal with these conflicts. I conclude with a short retrospective on my main arguments followed by some remarks about the complexity of the human rights debate.

II. WHAT ARE HUMAN RIGHTS?

A. Basic Elements of Human Rights

Human rights constitute political and legal standards. That is, they require political and legal implementation through national, regional, and international institutions including, if possible, effective monitoring mechanisms. I would like to emphasize this political and legal aspect of human rights, in order to make sure that their scope is limited. Unlike Islam and other religions, which claim to shape the whole lives of their adherents, human rights do not represent an all-encompassing "weltanschauung" or way of life, nor do they provide a yardstick by which to evaluate cultures and religions in general. Human rights are not necessarily the highest manifestation of ethical spirit in human history either, because they are not intended to replace, for instance, Christian demands of love, Islamic solidarity, or the Buddhist ethic of compassion. Rather, they concentrate on political justice by setting up some basic normative standards. ³

However, in spite of their limited scope, human rights might have a significant influence on the self-perception of societies and cultural or religious communities in a way that extends beyond law and politics. This [End Page 588] is because they rely on a commitment to the mutual recognition of human beings in their inalienable dignity. This idea of human dignity has roots in various cultures and religions. It includes the claim that all human beings should be entitled to equal respect, a claim which, in the modern era, has become politically binding in terms of equal rights of freedom. Freedom and equality thus constitute the emancipatory content of human rights. This emancipatory demand finds expression in the 1948 Universal Declaration of Human Rights which states in Article 1: "All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood." ⁴

Article 1 suggests another aspect of human rights--their claim to universality. They are cosmopolitan rights, as it were. In its preamble, the Universal Declaration emphasizes the global importance of human rights as "a common standard of achievement for all peoples and all nations" and as "the foundation of freedom, justice and peace in the world." ⁵ Recently the World Conference on Human Rights confirmed that "the universal nature of these rights and freedoms is beyond question." ⁶

Combining the three elements just mentioned, I would like to propose the following short definition: Human rights are (1) political and legal claims; (2) to equal freedom; (3) in a universal perspective. Admittedly, this definition is quite abstract and does not contain anything novel. Its abstractness, however, can be seen arguably as a virtue, signalling an openness for further historic development in the human rights discourse, in light of future experiences and new demands.

B. UNDERSTANDING HUMAN RIGHTS

1. A Modern Concept

The concept of human rights emerged only in the modern era. To be sure, the various elements that comprise this concept can be found in premodern times as well. The idea of human dignity has prominent roots in the Biblical book of Genesis; cosmopolitan ideals can be found as early as the third century before the Common Era in Stoic philosophy; and the principle of the "rule of law" became binding in various medieval documents, such as the Magna Carta Libertatum of 1215. Comparable ideas have occurred in [End Page 589] non-Western cultures as well. A book edited by UNESCO has traced many of the roots of human rights in a variety of cultures across all continents. ⁷ Yet, the connection between these elements--the combination of the political principle of the rule of law with a universal commitment to equal dignity and freedom--came about only two or three centuries ago. A historic breakthrough was achieved in the late eighteenth century in the "Virginia Declaration of Rights" of 1776 and the "déclaration des droits de l'homme et du citoyen" of 1789. ⁸ The adoption of human rights in international law gelled even later, after the Second World War. Hence, it is fair to say that human rights are a genuinely modern phenomenon.

Acknowledging the modernity of human rights often has led to their being perceived as proof of "historical progress." Certainly, they are a political achievement that deserves defense and further development. However, instead of integrating them into an ideology of general progress--which implies the assumption that they are generally superior to traditional normative institutions--it seems more appropriate to view human rights as operating in response to concrete experiences of injustice in the modern world, such as political oppression by an absolutistic state, exploitation of workers in the market economy, colonialism, and imperialism. As Jack Donnelly has pointed out, the possible abuses of power in modern capitalist market economies and modern nation states require genuinely modern safeguards to facilitate human life with dignity. To provide such safeguards is the purpose of human rights. ⁹

Furthermore, recall that the twentieth century is not only the century in which international organizations and universal standards of human rights were brought about, it is also a century marked by global wars and experiences of injustice that immediately affected all of humankind. It is no coincidence that the preamble of the Universal Declaration of Human Rights refers to "barbarous acts which have outraged the conscience of mankind." ¹⁰ As this line suggests, it was not utopian expectations of future progress, but rather the experience of atrocities, especially those committed by Nazi Germany, that sharpened the awareness that international human rights standards had become an urgent need. ¹¹ Such experiences of injustice [End Page 590] lie at the heart of the human rights movement from its very beginning in early modernity. In any case, recollection of these injustices should prevent superficial pretensions that the societies of the modern era are morally superior to premodern societies.

2. The Emancipatory Challenge

Human rights are a political means of recognizing human dignity in a legally binding way. This legal codification involves the endowment of all people with equal rights of freedom. The individual person, thus, can gain a higher degree of freedom than is normally granted on the basis of traditional normative concepts. According to Immanuel Kant, freedom is the only "birthright" of all human beings. It is the underlying principle of all human rights in general: "There is only one innate right. Freedom . . . , insofar as it can coexist with the freedom of each other in accordance with a general law, is the only original right belonging to every man by virtue of his humanity." ¹²

However, although human rights clearly enlarge the scope of individual freedom, they are by no means merely individualistic. They are not meant to lead to an "atomistic society" devoid of communitarian solidarity. Against the widespread confusion of human rights and Western individualism, human rights always imply a social dimension, because human freedom can unfold only in relation to fellow persons. A purely individualistic concept of religious liberty, for instance, would almost amount to a contradiction in terms, because religious life is hardly conceivable outside of religious communities. Accordingly, religious liberty entails not only the right of individuals to hold and express their personal creeds, but also includes the rights to worship together and to organize religious communities independent of government interference. To give another example, freedom of expression does not focus only on the private individual but also facilitates the development of public discourse in a civil society. As Kant has emphasized, it is the duty of all citizens to make "public use of reason" to accomplish a just society. ¹³ "Freedom of the pen," he says, "is the only safeguard of the rights of the people," ¹⁴ that is, the basic "republican" right, [End Page 591] the significance of which cannot be fully appreciated unless one is committed to the ideal of a republican union of citizens. Finally, the most basic social community, the family, has received explicit recognition in the Universal Declaration of Human Rights. In what is clearly "communitarian" language, Article 16 states: "The family is the natural and fundamental group unit of society and is entitled to protection by society and the State." ¹⁵

These examples are intended to demonstrate that the emancipatory claim to equal freedom that underlies human rights does not entail the dissolution of communitarian bonds. However, it does challenge authoritarian traditions within communities. Undoubtedly, human rights are incompatible with some traditional practices such as child marriage, the persecution of religious dissenters, and the social ostracism of political dissidents. To put it in a different way, human rights can, and ought to, reshape communities and societies critically, in accordance with the equal respect owed to every person.

It remains an open question, though, how exactly this is to happen and how conflicting interests between individuals and communities can be settled justly. No encompassing solution can be offered in an academic analysis like this. Facing the frequently overwhelming power of communities over the individual, the individual certainly needs special protection in order to preserve some independence. Communities, in turn, might benefit from critical contributions made by their emancipated members and also comments made by outspoken dissidents. In any case, critical independence and solidarity do not form an insurmountable contradiction, but rather, belong together in shaping human life freely and responsibly. Hence, one should be suspicious of the purportedly general antagonism between individualism and communitarianism sometimes invoked by both "liberals" and "communitarians." ¹⁶ What is at stake in human rights is not an abstract individualism but rather the principle of equal freedom which, as a critical demand, always affects individuals and communities simultaneously.

3. Towards an "Overlapping Consensus" on Human Rights

As emphasized above, human rights entail a universalistic claim in that they refer to all human beings. This cosmopolitan claim, though, has triggered the charge that such universalism only conceals the global dominance of a particular culture--the cultural imperialism of Western states. Are human rights, [End Page 592] as some critics have alleged, only "a Western construct with limited applicability?" ¹⁷

Admittedly, one can hardly deny that the concept of human rights is of Western origin, insofar as it first emerged in Europe and North America. However, from this historical fact it does not follow that the very idea of human rights is essentially and exclusively connected with Western culture and philosophy and hence only applicable to Western societies.

First, recall that the concept of human rights gelled politically under circumstances of revolutions and often faced a great deal of resistance from the representatives of the established cultural and religious traditions in the West. The Catholic Church, for instance, endorsed religious liberty as late as 1965 in the Second Vatican Council. ¹⁸ This might give evidence that the idea of human rights does not simply derive from the entirety of the Occidental culture.

Further, human rights do not stem from, and are not dependent on, a particular Western philosophy or ideology. A French "homme des lettres" in the declining ancien regime and a Protestant preacher in the puritan colonies of New England would perhaps disagree about all questions of religion, philosophy, and life style; and yet, it is at least conceivable that they could cooperate politically in demanding human rights. Thus, pluralism has always been acknowledged in the human rights movement.

Moreover, the experience of radical pluralism has played a significant role in the formulation of the very concept of human rights. In order to overcome the religious and civil wars following the Protestant reformation, one had to learn how to coexist peacefully with people of different beliefs. The only way to establish a new social contract was by understanding difference as an expression of human freedom that, for the sake of human dignity, deserves political recognition and legal protection. ¹⁹ A person holding a different creed ought not be treated any longer as "a lost brother" or "a lost sister" but as a responsible agent entitled to equal respect. Thus emerged the concept of human rights as a way to promote mutual respect between people of different convictions and to render this respect politically effective.

Even though human rights are a concept of Western origin, they are historically connected with the experience of radical pluralism that today has become an unescapable reality in many societies all over the world. [End Page 593] Pluralism and multiculturalism, both within and between the states, cannot be abolished unless one wants to risk political disasters including civil wars, "ethnic cleansing," and the breakdown of international communication and cooperation. In the face of such political dangers, the idea of human rights seems to offer an opportunity for accomplishing a basic normative consensus across ethnic, cultural, and religious boundaries.

On this view, the universality of human rights does not mean the global imposition of a particular set of Western values, but instead, aims at the universal recognition of pluralism and difference--different religions, cultures, political convictions, ways of life--insofar as such difference expresses the unfathomable potential of human existence and the dignity of the person. To be sure, pluralism and difference apply also to the concept of human rights which itself remains open--and must be open--to different and conflicting interpretations in our pluralistic and multicultural political world. Without the recognition of such difference within the human rights debate, the discourse would amount to cultural imperialism. Nevertheless, it seems clear that the very idea of human rights precludes some political practices, such as oppression of dissidents, discrimination against minorities, slavery, and apartheid.

What is at stake in the international debate on human rights is accomplishing an "overlapping consensus" across different peoples, religions, and cultures. According to John Rawls, who has suggested this notion, an "overlapping consensus" means a practical normative consensus on political and legal justice in a pluralistic democratic society. ²⁰ Whereas comprehensive philosophical or religious doctrines are unlikely to get general support in pluralistic societies, the concept of political justice is defined by Rawls as entailing only limited normative demands: it refers to the basic societal institutions and does not cover the more encompassing normative claims made in comprehensive religious or philosophical doctrines. What Rawls describes as the feature of his concept of political justice can be applied to human rights as well: they too constitute only limited normative demands in that they focus on political and legal standards of international justice. ²¹ At the same time, however, they can potentially be connected with more comprehensive doctrines or cultural values, insofar as they refer to the principle of human dignity which itself might facilitate a critical mediation between the normative requirements of human rights on the one hand and various religious or cultural traditions on the other. Thus [End Page 594] an overlapping normative consensus between different religions and cultures might be achievable.

III. CONFLICTS BETWEEN SHA'RIA AND HUMAN RIGHTS

A. Areas of Conflicts

This section identifies the main areas of conflict between Islamic tradition and human rights. However, I would like to briefly emphasize first that authoritarian religious and cultural traditions certainly are not the only obstacles--not even the main obstacles--to the adoption and implementation of human rights in Islamic countries. Given a recent tendency to conjure up cultural and religious tensions as the new post-Cold War paradigm in the analysis of political conflicts, ²² one should take into consideration that the causes, features, and "justifications" of human rights violations actually look strikingly similar in very different countries, across all national, cultural, and religious boundaries. If abuses such as arbitrary detentions, torture, and the oppression of political dissidents occur in Islamic countries, they do not, for the most part, have a specifically "Islamic" rationale. ²³ Even if some governments try to vindicate political oppression by invoking "Islamic values" or by waging "holy wars," one should not blame Islam as a whole for its being abused politically.

On the other hand, the emancipatory principle of human rights presents a challenge to the Islamic tradition, because the emancipatory principle has been articulated only in the modern era. By comparison, the Islamic sha'ria--the normative tradition commonly known as "Islamic law"--is much older. ²⁴ The sha'ria rests partly on the Qur'an which stands out as its primary source. However, because the Qur'an primarily contains general ethical principles, rather than detailed instructions, other normative sources must be consulted as well. Next to the Qur'an, the most important source is the practice of the prophet Muhammad. Representing a binding model for Muslims, his sayings and patterns of behavior have been collected in the "Sunna," which means tradition. In addition to the Qur'an and Sunna, supplementary normative sources include consensus among Islamic scholars, conclusions based on analogy, customary law, and the principle of common welfare. ²⁵ By drawing upon these various sources, the sha'ria took shape during the first two or three centuries of Islamic history. [End Page 595]

Due to the timing of its development, it is hardly surprising that the classical sha'ria differs from the modern idea of universal human rights. Although the sha'ria puts a great deal of emphasis on the equality of all the faithful before God, it traditionally assumes unequal rights both between men and women and between Muslims and members of other religious communities. ²⁶ Hence, discrimination against women and against religious minorities continues to occur. In addition, the traditional Islamic criminal law includes some forms of corporal punishment that, according to human rights standards, are adjudged to be cruel and degrading. The following paragraphs give a brief overview of these conflicts.

B. The Legal Status of Women

Most scholars will certainly agree with the Pakistani author, Fazlur Rahman, who states: "The Qur'an immensely improved the status of the woman in several directions but the most basic is the fact that the woman was given a fully-pledged personality." ²⁷ For example, under pre-Islamic custom, the bride was regarded as an object to be purchased. However, under the Qur'an, the bride is considered a person whose consent must be obtained to validate a marriage contract. Accordingly, the dower that previously was owed to her father now is owed to the bride. Sura 4:4. Because the woman has the right to fully dispose of her own property, the dower, in turn, provides her with some independence within the marriage and with basic social security in cases of divorce or widowhood. Thus, the dower might be thought of as a symbol of the improved social and legal status of Muslim women in general.

On the other hand, the idea of equal rights regardless of gender is unknown to the traditional sha'ria. ²⁸ For instance, theoretically, the man is permitted to marry up to four women under certain circumstances. Polygamy, partly designed to provide for widows and orphans in a premodern society, certainly mirrors the inequality between the sexes. Further, to conclude a marriage contract the woman relies on a male representative who has some authority in shaping the agreement, although the bride's wishes are to be respected; at least she has the right to veto an unwanted husband. ²⁹ With regard to divorce, the husband can repudiate his [End Page 596] wife unilaterally. However, many Muslims disapprove of this practice and legal reforms in many Islamic countries have restricted the husband's traditional right to unilateral divorce while giving the wife more rights to demand divorce. ³⁰ Nonetheless, the legal regulations in matters of divorce still reflect the unequal status of the genders, discriminating against women. Finally, the laws of inheritance entitle male heirs to twice the share to which female heirs are entitled. ³¹

Because the focus of the sha'ria has always been upon family matters, these Islamic family and inheritance laws continue to hold force in the vast majority of Islamic countries today. ³² Therefore, several Islamic states have entered substantial reservations to the 1979 Convention on the Elimination of All Forms of Discrimination against Women, in particular to Article 16 which entails the claim of equal rights for men and women in matters of family law and divorce. ³³

Apart from family law, the social position of Muslim women varies greatly from country to country. For example, in Saudi Arabia women are not even permitted to drive cars, ³⁴ but in the Maghreb states women frequently hold public office. ³⁵

C. Restrictions on Religious Liberty

Islam has mostly shown tolerance towards religious minorities, following the command of the Qur'anic verse: "There shall be no compulsion in religion." Sura 2:256. Historic evidence shows that some Christian minorities and dissidents preferred living under Islamic rule to being persecuted by their fellow Christians in the Byzantine and Habsburg empires. Thus, with regard to religious tolerance, Islam seems to have a better historical record than Christianity. Ann E. Mayer emphasizes this point. She writes: "Despite incidents of discrimination and mistreatment of non-Muslims, it is fair to say [End Page 597] that the Muslim world, when judged by the standards of the day, generally showed far greater tolerance and humanity in its treatment of religious minorities than did the Christian West." ³⁶

Yet, this traditional tolerance falls short of full religious liberty which, as a basic human right, requires recognition of people of different creeds on the basis of equality. The traditional Islamic state, by contrast, assigned different ranks and rights to people of different beliefs. ³⁷ Only faithful Muslims qualified as full members of the political community. Adherents of the non-Islamic monotheistic "religions of the book"--Jews, Christians, and Zoroastrians--enjoyed considerable autonomy in matters of self-administration, religious law, and family law. However, even these protected minorities ("dhimmis") suffered from some kinds of discrimination. They were excluded from military service and accordingly had to pay a special tax. Their places of worship were not allowed to outshine the Islamic mosques in size or magnificence. Furthermore, restrictions concerning mixed marriages were enforced to preserve the ongoing Islamic dominance. Whereas a Muslim man was permitted to marry a woman from the tolerated minorities, Jewish or Christian males could not marry Muslim women. With the husband as the head of the family, this provision ensured that children of mixed parentage were raised as Muslims. Marriages between Muslims and polytheists generally were prohibited. ³⁸

In theory, the Islamic concept of tolerance only applied to the monotheistic religions of revelation and excluded polytheists and atheists explicitly. In practice, however, adherents of other religions were often placed on an equal footing with the non-Islamic monotheistic "people of the book." ³⁹ Had this not been the case, the coexistence of Muslims and Hindus in the Indian subcontinent would have been inconceivable. An absolute limit on tolerance, however, was drawn in cases of apostasy--the conversion from Islam to another religion. This was generally considered to be an act of betrayal warranting the death penalty. ⁴⁰

Although the constitutions of modern Islamic states profess Islam to be the official religion of the state, ⁴¹ non-Islamic minorities are for the most part granted religious liberty and equal rights as citizens. The position of head of state, though, generally remains reserved for a Muslim. The constitutions of Iran and Pakistan provide for distinct representation for religious minorities [End Page 598] in parliament. ⁴² Apart from constitutional law, however, serious discrimination is still legally enforced in nearly all Islamic countries. ⁴³ For instance, interreligious marriages continue to be restricted in accordance with the traditional sha'ria requirements, ⁴⁴ although this clearly violates Article 16 of the Universal Declaration of Human Rights which explicitly recognizes the right to marry "without any limitation due to race, nationality or religion." ⁴⁵

Religious minorities outside the traditionally tolerated "people of the book" suffer from even more dramatic forms of discrimination. For instance, the Baha'is community in Iran and the Ahmadis in Pakistan suffer such discrimination today. The Baha'is are often considered to be renegades of Islam because they have formed a new post-Islamic religion. In Iran, where about 350,000 Baha'is live, systematic discrimination--such as exclusion from higher education and from many professions, confiscation of property, and desecration of Baha'i shrines and houses of worship--became an official policy after the 1979 Islamic revolution. ⁴⁶ Unlike the Baha'is, the Ahamadis regard themselves as Muslims and perform all traditional Muslim practices such as prayer, fasting, and pilgrimage. However, they were excommunicated from the Islamic community by a 1974 amendment to the Pakistan Constitution, because they were alleged to have contested the position of Muhammad as the seal of the prophets. In 1984, Zia ul-Haq issued an ordinance forbidding the Ahmadis to call themselves Muslims. Thus, Ahmadis who continue to profess the Islamic creed publicly or call their places of worships mosques face charges of blasphemy, charges that carry drastic penalties. ⁴⁷

In general, Muslims converting to another religion encounter severe social and legal sanctions in many Islamic countries. Although the traditional death penalty for apostasy does not exist in the criminal codes of [End Page 599] contemporary Islamic states ⁴⁸ --except Mauritania and Sudan ⁴⁹ --cases of imprisonment and even execution on the charge of apostasy have been reported in recent years. ⁵⁰ Missionary work to convert Muslims is explicitly forbidden in some countries and punishable by criminal sanctions, fines, and even imprisonment. ⁵¹ Moreover, apart from criminal law, apostasy also carries harsh consequences in civil law. For example, a convert's marriage automatically becomes null and void, and he or she loses all claims to inheritance as well as the custody of his or her children. ⁵²

D. Corporal Punishment

Whereas the social and legal situation of women and religious minorities raises major human rights problems in many countries all over the Islamic world, traditional sha'ria penalties, such as amputating the right hand for theft, amputating a hand and a foot for highway robbery, or stoning for adultery, ⁵³ are rarely carried out today. These so-called "hadd-punishments," that partly derive from the Qur'an, do not exist in the criminal codes of the vast majority of contemporary Islamic states. There are, however, a few countries that continue to apply or that have reinstated these punishments. Thus, while Saudi Arabia has always maintained the sha'ria as the basis of its criminal law, other states, such as Pakistan, Iran, and Sudan, reintroduced hadd-punishments into their criminal codes only recently (between the late 1970s and the early 1980s). ⁵⁴ Unlike the amputation of limbs, flogging is still a widespread punishment in many countries. ⁵⁵ Human [End Page 600] rights organizations and UN monitoring bodies have repeatedly condemned the application of such cruel forms of corporal punishment as a violation of human rights. ⁵⁶

IV. MUSLIM POSITIONS ON HUMAN RIGHTS TODAY

A. Tradition and Modernity

As argued earlier, human rights represent a specifically modern standard of political and legal justice that challenges traditional normative rules that do not rest on the principle of equal freedom. However, human rights are not opposed to, or superior to, cultural or religious traditions. First, recall that the scope of human rights is limited--they focus on basic political and legal standards. Human rights cannot offer any answers to the existential questions of human life and death, they are not intended to frame all aspects of human life, and they do not pretend to absorb or supersede all traditions. In short, human rights do not compete with cultural and religious traditions directly, but concentrate on political and legal aspects of human coexistence. At the same time, human rights do rely on the idea of human dignity which can be which can also be found in various cultural and religious traditions. Thus, although human rights do not derive immediately from religious traditions, they are not alien to those traditions that have recognized the idea of human dignity. Hence, with reference to human dignity, a critical reconciliation between the competing requirements of particular religious traditions and modern international human rights standards might be conceivable.

Certainly, whether such a hermeneutic mediation will succeed remains an open question. Two widespread attitudes have the potential to render futile any attempt to reconcile human rights standards with religious traditions. The first attitude rejects human rights as an alien concept that is basically hostile to one's own traditional culture. The second attitude uncritically "embraces" human rights as an exclusive achievement of one's own culture. Interestingly, both of these attitudes have occurred in the West, for instance in the Christian churches. After a long period of resistance [End Page 601] against the emancipatory claims of the modern concept of rights generally, the churches today often consider human rights to be an expression of "Christian values." The problem with this is not the assumption that human rights have some Christian roots and make sense in a Christian ethic. This is certainly true. What seems problematic is the widespread presumption--be it explicit or implicit--that human rights belong exclusively to the Christian tradition. On this problematic view, the universality of human rights becomes tantamount to the universal religious mission of Christianity. At the same time, the emancipatory claim of equal rights of freedom might be distorted by premature harmonization with more traditional and authoritarian Christian concepts. As the next section shows, strikingly similar tendencies towards a unilateral embracing of human rights can be found in many contemporary Islamic statements as well.

In order to overcome both defensive and embracive attitudes towards human rights, the sources of tradition and of modernity must be scrutinized critically. Modern legal standards and the underlying emancipatory principles might shed new light on the understanding of tradition and the self-perception of cultural and religious communities. Studying the sources of tradition, in turn, might provide critical insights about modernity. In any case, one should refrain from all claims of exclusivity with regard to human rights that many consider "the privilege of the whole of humanity" ⁵⁷ or, more precisely, a normative demand directed to the different peoples, cultures, and religions that have to bring about an overlapping normative consensus in order to coexist peacefully on this small globe.

The following paragraphs present some Islamic positions in the human rights debate. The distinctions between conservative, liberal, and pragmatic approaches relied on in the following paragraphs are not meant to provide an adequate structure that can do justice to the complexity of the discourse and to the individual positions within it; rather, they are only a rough way of bringing some order to the analysis.

B. Conservative Arguments

When the General Assembly of the United Nations had to decide on the Universal Declaration on Human Rights, in 1948, the Saudi Arabian ambassador strongly objected to religious liberty, particularly to the right to change one's religion, a right explicitly mentioned in Article 18. Saudi Arabia eventually joined South Africa and six communist states and [End Page 602] abstained from the vote; no state rejected the declaration outright. ⁵⁸ Saudi Arabia's abstention reflects the reluctance of a conservative Islamic government to endorse the emancipatory concept of human rights, a concept that is perceived to be alien and detrimental to the Islamic tradition.

Meanwhile, different conservative approaches have arisen. Instead of rejecting human rights altogether, the emphasis is more on redefining these rights in an exclusively Islamic framework. A prominent representative of this tendency is the Pakistani author Abu l-A'la Mawdudi, an influential source of inspiration for Pakistani and international fundamentalist movements. ⁵⁹ In his book, Human Rights in Islam, Mawdudi blames the West for claiming human rights to be an exclusively Occidental heritage. He writes: "The people in the west have the habit of attributing every good thing to themselves and try to prove that it is because of them that the world got this blessing, otherwise the world was steeped in ignorance and completely unaware of all these benefits." ⁶⁰ This polemical criticism might be partly justified because Western arrogance often has presented an obstacle to cross-cultural discourse. Nevertheless, Mawdudi's approach deserves a similar critique, because he merely harmonizes human rights with the traditional sha'ria without addressing the possible tensions and conflicts between the two. In his view, human rights thus merely form an inherent part of the Islamic tradition.

In this uncritical amalgamation, the emancipatory content of human rights gets distorted, if not completely lost. It is striking, for instance, that in his section on "equality of human beings," Mawdudi only precludes distinctions in rights based on "colour, race, language or nationality" without mentioning gender and religion in this context. ⁶¹ He seems to ignore the fact that the idea of human rights, as it has been enshrined in international standards, implies the universal recognition of equal liberty. This is a concept that goes beyond the limited recognition of equality within the classical sha'ria, because the universal concept of human rights explicitly includes equal rights between men and women, and between adherents of different religions. ⁶² By contrast, Mawdudi holds a much more [End Page 603] restricted idea of equality and, accordingly, fails to address critically the ongoing discrimination against women and against religious minorities in many Islamic countries.

It is revealing that Mawdudi addresses the issue of women's rights primarily in a section entitled: "Respect for the Chastity of Women." ⁶³ Referring to Mawdudi's book, the Pakistani feminist Riffat Hassan points out sarcastically: "Many Muslims, when they speak of human rights, either do not speak of women's rights at all or are mainly concerned with the question of how a woman's chastity may be protected." ⁶⁴

With regard to religious liberty, Mawdudi makes reference to the Qur'anic verse 2:256 which forbids coercion in matters of faith. In accordance with traditional Islamic tolerance, he affirms: "No force will be applied in order to compel [non-Muslims] to accept Islam. Whoever accepts it he does so by his own choice." ⁶⁵ Mawdudi fails, however, to address crucial issues, such as the ban on conversion from Islam to another religion and the restrictions on interreligious marriages, that still stand as obstacles to the full recognition of religious liberty in most contemporary Islamic countries.

More outspoken on the latter question is Ahmad Farrag, a journalist from Saudi-Arabia, who unequivocally denies the right to marry without restrictions based on religious difference, a right that is guaranteed in Article 16 of the Universal Declaration on Human Rights. He writes: "As a Muslim I reject that article." ⁶⁶ In line with the classical sha'ria, he concedes that a Muslim male may marry a Jewish or Christian woman. However, marriages between Muslim women and non-Muslim males as well as all marriages between Muslims and polytheists are considered to be illegitimate. In an attempt to justify this, Farrag argues that a Muslim woman would not receive due respect for her religious beliefs by a non-Muslim husband. Furthermore, he claims that a marriage between persons of completely different faiths, such as Islam and polytheism, would necessarily break down. ⁶⁷

Some international Islamic statements on human rights also reflect this conservative disposition. This holds true for both the "Universal Islamic Declaration of Human Rights," issued by the Islamic Council for Europe in [End Page 604] 1981, ⁶⁸ and the "Cairo Declaration on Human Rights in Islam," adopted by the Organization of the Islamic Conference in August 1990. ⁶⁹ While the Islamic Council for Europe is a nongovernmental organization whose statements are by no means binding, the Organization of the Islamic Conference brings together representatives of the Islamic states. Hence the Cairo Declaration, albeit not legally binding, does carry some political authority.

Like Mawdudi, the authors of the Cairo Declaration seem to integrate the language of human rights into the preexisting framework of the sha'ria in such a way that the latter never is questioned critically. On the contrary, the sha'ria acts as the exclusive yardstick used to determine the scope and content of human rights. The concluding Article 25 emphasizes: "The Islamic sha'ria is the only source of reference for the explanation or clarification of any of the articles of this Declaration." ⁷⁰

Despite the fact that Article 1 affirms the equal dignity of all human beings, "without any discrimination on the grounds of race, colour, language, sex, religious belief, political affiliation, social status or other considerations," ⁷¹ differences in terms of basic rights continue to exist. Thus, Article 6 apparently presupposes the traditional understanding of gender relations, including the predominant role of the husband as head of the family. Article 6 states: "Woman is equal to man in human dignity, and has rights to enjoy as well as duties to perform; she has her own civil entity and financial independence, and the right to retain her name and lineage. The husband is responsible for the support and welfare of the family." ⁷² Equality in dignity, which is asserted in the declaration, apparently does not amount to equal rights for women and men, ⁷³ as they are claimed by Muslim feminists today with reference to international standards of human rights.

Although the Cairo Declaration does not explicitly mention traditional hadd-punishments, it is revealing that Article 2, which deals with the right to life, makes a caveat on behalf of the sha'ria saying that "it is prohibited to take away life except for a sha'ria prescribed reason." ⁷⁴ The same caveat applies to "safety from bodily harm" which also is granted only by allowing exceptions on a "sha'ria prescribed reason." In any case, the legitimacy of corporal punishment is not challenged critically and might even receive reinforcement from the Cairo Declaration. [End Page 605]

Article 5, which deals with marriage and family matters, states: "Men and women have the right to marriage, and no restrictions stemming from race, colour or nationality shall prevent them from enjoying this right." Nondiscrimination on the basis of religion is absent from this list of precluded restrictions on marriage. Accordingly, the traditional sha'ria obstacles to interreligious marriages are not addressed critically.

Even more problematic is Article 10 which unambiguously violates the principle of equality by giving Islam a privileged status above all other religions. It reads: "Islam is the religion of unspoiled nature. It is prohibited to exercise any form of compulsion on man or to exploit his poverty or ignorance in order to convert him to another religion or to atheism." The Cairo Declaration, thus, seems to ban conversion from Islam and, more clearly, all missionary work among Muslims. Undoubtedly, this is at odds with religious liberty as it has been enshrined in international legal standards within the UN framework. Hence, the Cairo Declaration actually weakens or denies some basic international human rights by claiming a general priority for the traditional sha'ria.

C. Liberal Arguments

Whereas conservative Islamic documents like the Cairo Declaration tend to "Islamize" human rights at the expense of their universality and their emancipatory content, liberal Muslim reformers consider human rights a genuine challenge. Liberal Muslim reformers admit that in modern circumstances a normative consensus across cultural and religious boundaries is imperative to promote international peace and cooperation. Abdullahi Ahmed An-Na'im, a leading figure in the Islamic discourse on human rights, writes: "Under contemporary economic and political conditions, no country in the world is religiously monolithic, however traditional and 'closed' it may wish to be." ⁷⁵ Consequently, Muslims, like people of other cultures, are called upon to engage in cross-cultural dialogue on human rights.

Understanding human rights to be an international and cross-cultural demand is tantamount to the insight that these rights cannot be simply integrated into the existing normative framework of the sha'ria. It has indeed to be admitted that there are fundamental tensions between traditional sha'ria norms and the requirements of human rights. These tensions need careful assessment, rather than premature harmonization. What is at stake is a self-critical reevaluation of the sha'ria and its underlying principles: an [End Page 606] opportunity to seek out ways to genuinely mediate between and reconcile the competing normative requirements.

Some scholars, like the Egyptian judge Muhammad Said al-Ashmawy, focus on the original significance of the sha'ria which etymologically means, a "path leading to the fountain in the desert." ⁷⁶ In this view, the sha'ria does not form a comprehensive legal system, ⁷⁷ but consists mainly of general religious and ethical principles, such as prayer and fasting, solidarity within the community, respect between the genders, and tolerance towards minorities. The conjoining of these ethical principles with medieval legal reasoning appears to be a historic process that calls for critical evaluation. Only such criticism can help to recapture the essential normative requirements of Islam that have been overshadowed by a historic body of detailed regulations. As the Lebanese philosopher Subhi Mahmasani puts it, "this great body of particulars often dominated the general principles, and, with repeated imitation, took a rigid and formalistic taint alien to the original substance." ⁷⁸ Mahmasani blames the medieval jurists for having "mixed religion with the daily ways of life" to such an extent that, finally, "incidental worldly matters were placed on the same level with the original, essential and immortal provisions of religion." ⁷⁹

Liberal Muslim reformers advocate for an emancipated understanding of the sha'ria, stressing its original meaning as a "path" or guide, rather than a detailed legal code. They do not attempt to deny the binding character of the sha'ria. On the contrary, at stake is a critical form of obedience that seems even more demanding because it requires active efforts of interpretation by the faithful. Such active reasoning--"ijtihad"--was originally regarded as an independent source of Islamic law that, only after increasing petrification of the sha'ria, became replaced by obedience to the established teachings of the Sunna law schools. ⁸⁰ Hence, many Muslim reformers demand the recovery of ijtihad in order to do justice both to modern needs and to the original spirit of the Islamic sha'ria. Mahmasani writes: "The door of ijtihad should be thrown wide open for anyone juristically qualified. The error, all the error, lies in blind imitation and restraint of thought. What is [End Page 607] right is to allow freedom of interpretation. . . ." ⁸¹ Ali Merad, a historian from Algeria, describes the task as follows: "We must therefore strive to peer through the contingencies of history, in order to discover the direction in which revelation points, to formulate normative criteria, and to find out what God's intention is. But this is a hazardous route to take." ⁸²

Abdullahi Ahmed An-Na'im goes a step further, subjecting the Qur'anic text itself to critical scrutiny. In keeping with traditional exegesis, he distinguishes between Suras that were revealed in Mecca from Suras that were revealed in Medina. However, following his teacher Mahmoud Muhammad Taha, An-Na'im holds that these two stages of revelation imply a kind of theological ranking. Whereas the Suras of the Mecca period contain the eternal theological message of Islam, the Medina parts of the Qur'an mostly refer to the particular needs of the first Muslim community and cannot be immediately applied to modern circumstances. An-Na'im suggests that an Islamic reformation can be achieved by reading the Qur'anic normative rules of the Medina period in light of the theological principles that form the first and most important message of Islam. ⁸³

The critical approaches of liberal Muslims, such as Ashmawy, Mahmasani, and An-Na'im, facilitate reforms both in the field of law and in theology. These critical approaches pave the way for political and legal changes. They also lead to a new awareness of the humane character of the Qur'anic revelation which is the most important source of the sha'ria. It is no coincidence, in that context, that modern Muslim thinkers place a great deal of emphasis on human dignity as an essential part of the Qur'anic teaching. For instance, they invoke the idea of each human's vocation as God's deputy on earth (Sura 2:30); they cite Sura 17:70 which says that God has honored the children of Adam; and they point out that, according to Sura 33:72, God has bestowed a special trust upon humankind, elevating the human person above all cosmic powers. ⁸⁴

Riffat Hassan refers to the main dogma of Islam, that is, the uniqueness and transcendence of God, in order to contest traditional hierarchies. As there is only one God and no mediator between God and the human being, each individual stands immediately before God--all human pretensions of religious guardianship over fellow persons must be condemned as illegitimate from a Qur'anic perspective. As Sura 12:40 emphasizes, the ultimate [End Page 608] judgment of a person's vocation and destiny lies exclusively with God. The monotheistic creed thus yields emancipatory consequences because it challenges all claims of absolute obedience among human beings. Such claims of absolute obedience by which a human being takes a quasi-divine role would indeed come close to polytheism that is strictly condemned in Islam. Applying this insight to the traditional gender roles, Hassan critically points out: "The husband, in fact, is regarded as his wife's gateway to heaven or hell and the arbiter of her final destiny. That such an idea can exist within the framework of Islam--which totally rejects the idea of redemption, of any intermediary between a believer and the Creator--represents both a profound irony and a great tragedy." ⁸⁵

The Tunisian scholar Mohamed Talbi, a member of the Honorary Committee of the "International Association for the Defence of Religious Liberty," invokes the very same argument in order to demand unambiguous and full recognition of religious liberty beyond the boundaries of the traditional concept of limited tolerance. Talbi argues that a faithful Muslim's submission to the unfathomable divine will should lead to the mutual recognition of human beings in their freedom of conscience, because no one can pretend to know God's plans concerning his or her fellow persons. Thus Talbi writes:

From a Muslim perspective, and on the basis of the Qur'anic teachings, religious liberty is fundamentally and ultimately an act of respect for God's sovereignty and for the mystery of His plan for man, who has been given the terrible privilege of building on his own responsibility, his destiny on earth and for the hereafter. Finally, to respect man's freedom is to respect God's plan. To be a true Muslim is to submit to this plan. It is, in the literal sense of the word, to put oneself, voluntarily and freely, with confidence and love, in the hands of God. ⁸⁶

With regard to the traditional forms of corporal punishment, Talbi, like many reformers, applies the critical distinction between the essential Qur'anic principles and the historic circumstances in which they were first implemented. While the principles remain valid, the modes of their implementation may change, in accordance with new experiences and possibilities. That is why Talbi regards corporal punishment as an anachronism that cannot be justified in modern circumstances. He writes:

When the Qur'an refers to justice and equality as the ultimate goals underlying amputation punishments, this means that the true purpose to be pursued is life, [End Page 609] not mutilation as such or death. Were it possible for us today to ensure a life of justice and equality in a different way, this would certainly be a way pointing in the same direction as the Qur'an does. ⁸⁷

From a liberal Islamic point of view, it seems possible that the traditional obstacles to the endorsement of human rights can be overturned critically. For many liberal Muslims, no inherent contradiction exists between Islamic principles and the emancipatory claims of human rights as embodied in the existing international standards. Moreover, the Qur'anic idea of human dignity, in the opinion of Talbi, requires a political commitment to human rights, in solidarity with people of different religious beliefs and philosophical convictions. Referring to the ongoing atrocities occurring worldwide, he insists: "In a world where giant holocausts have been perpetrated, where human rights are manipulated or blatantly ignored, our Muslim theologians must denounce all forms of discriminations as crimes strictly and explicitly condemned by the Qur'an." ⁸⁸

D. "Pragmatic" Reconciliation?

The contrast between conservative and liberal Islamic interpretations of human rights, as sketched above, does not cover the entire spectrum of the debate. Between both positions range a large number of "pragmatic" approaches that often combine liberal and conservative attitudes. Apart from fundamentalist movements that certainly do not represent the majority of Muslims today, Islam has always accommodated a pragmatic humanitarianism, ⁸⁹ in keeping with the Qur'anic promise that "God intends every facility for you; he does not want to put you to difficulties." Sura 2:185. Hence, rigidity and puritanism are atypical of the Islamic tradition as a whole. As a matter of fact, the Islamic tradition appears capable of dealing flexibly with human needs and shortcomings. Such pragmatism also has shaped the sha'ria from its very beginning. ⁹⁰ Therefore, some reconciliation between the traditional sha'ria and the modern idea of human rights conceivably could be accomplished in accordance with this well established Islamic pragmatism.

Actually, such steps already have been taken in many Islamic countries. Legal reforms, even those involving sensitive matters of family law, can be [End Page 610] traced back to the early twentieth century. Although not breaking away from the traditional sha'ria completely, these legal reforms, nonetheless, facilitated some changes towards a better social and legal status for women. Such reforms have restricted practices such as child marriage, polygamy, and the husband's right to repudiate his wife unilaterally.

The 1917 Ottoman Law of Family Rights, for instance, tried to curb polygamy by explicitly recognizing stipulations that, on a voluntary basis, can be inserted into the marriage contract to bestow the wife with the right to judicial divorce once the husband takes a second wife. ⁹¹ The possibility of negotiating and inserting such conditions or stipulations into a marriage contract traditionally has been acknowledged, at least by some of the established Islamic law schools. However, under the Ottoman Law of Family Rights, those marriage contracts, that effectively can impede polygamy, now receive official political and judicial support. Although polygamy still remains legally permissible in theory, it becomes officially discouraged. At the same time, women's rights concerning divorce have improved, partly because the clauses and conditions included in marriage contracts can provide new criteria for suing the husband for judicial divorce. ⁹²

It is noteworthy, in this context, how Muhammad Abduh, Grand Mufti of late nineteenth century Egypt, advocated restrictions on polygamy. ⁹³ His argument, based on the Qur'an, is as follows: Although the Qur'an allows a man to marry more than one woman, it adds the caveat that this may not be done unless the husband is able to treat all his wives with full equal justice. Sura 4:3. In another place, however, the Qur'an states that this requirement can hardly ever be satisfied: "you are never able to be fair and just as between women, even if it is your ardent desire." Sura 4:129. Muhammad Abduh and many of his Muslim followers, therefore, read the Qur'an as forbidding polygamy implicitly. Up until now, however, Tunisia is the only Arab state that has abolished polygamy completely by making reference to this interpretation of the Qur'an. ⁹⁴

With regard to religious liberty, mainstream Islam clearly accepts religious pluralism but still seems reluctant to endorse an unrestricted right to interreligious marriage and to conversion from Islam to another religion. Thus, converts continue to face social ostracism and are viewed by some as [End Page 611] "renegades" or "apostates." On the other hand, it is worth mentioning that Khomeini's fatwa against the novelist Salman Rushdie failed to get support from international Islamic organizations which also condemned Rushdie's Satanic Verses, but did not back up Khomeini's death sentence against the author. ⁹⁵ The execution of Mahmoud Muhammad Taha, leader of a liberal Islamic movement in Sudan, on the charge of heresy in January 1985, shocked most Sudanese. As Ann E. Mayer reports: "Outrage and disgust over the execution and televised heresy trial prevailed, even among Sudanese Muslims who had no personal sympathy for Taha's theological positions. . . . Owing to the policies of Nimeiri, Islam became associated with an act of medieval barbarism, but many Muslims considered the execution a violation of fundamental Islamic values." ⁹⁶

While traditional sha'ria norms continue to mark family structures all over the Islamic world, the sha'ria criminal law is applied only in a few Islamic countries today. As mentioned earlier, the emphasis of the sha'ria has always been much more on family matters than on criminal law. The portrayal of the sha'ria as primarily consisting of a set of cruel punishments, as it is sometimes presented in Western media, therefore, is at least one-sided.

Moreover, the "hadd-punishments," which in theory stand out as the most prominent part of the classical criminal law because they are based on the Qur'an and the Sunna, had only a minor practical importance in the history of Islamic societies. There is no doubt that these corporal punishments--amputation of limbs, decapitation, stoning--are utterly cruel. In keeping with the humane character of the Islamic tradition, however, they were only rarely carried out, even in the past. Indeed, in many parts of the Islamic world they have not been applied since time immemorial.

In his analysis of the classical sha'ria, Joseph Schacht concludes: "There is a strong tendency to restrict the applicability of hadd punishments as much as possible. . . ." ⁹⁷ Narrow definitions of the crimes in question, short statutes of limitation, and extremely high evidentiary requirements ensured that those punishments would be executed only in exceptional cases.

Hand amputation, for instance, did not apply to ordinary theft; rather hadd-theft was determined in such a narrow way that actual crimes seldom would fit the definition. Moreover, the second Caliph Omar reportedly ruled out the application of amputation for theft in times of starvation. ⁹⁸ Hence, many Muslims assume that this penalty, if it is applicable at all, will be [End Page 612] applicable only in an ideal Islamic society that can provide fully the basic needs of all of its members eliminating any excuse for theft. For the time being, however, these cruel penalties are inappropriate and must therefore be suspended. This type of reasoning might be typical of many moderately conservative Muslims who are reluctant to contest the validity of hadd-punishments in theory, but nevertheless, want to avoid their actual implementation by invoking practical obstacles to their reintroduction.

Actually, reports from the Sudan indicate that the vast majority of the population, including conservative Muslims, were opposed to the reintroduction of amputation punishments in 1983. ⁹⁹ It is revealing that many Sudanese called these new criminal sanctions only the "september laws," rather than recognizing them as "sha'ria." ¹⁰⁰ This suggests a widespread awareness among the Muslim population that the restoration of such cruel punishments is an abuse of political power and not a legitimate expression of religious or cultural tradition. Resistance against the reintroduction of amputation punishments has been reported from other countries as well. In Pakistan, for instance, amputation sentences could not be carried out because physicians generally refused to assist. ¹⁰¹

According to the classical sha'ria, stoning for adultery (which is not based on the Qur'an) cannot be imposed unless four male Muslim eyewitnesses with a good reputation give a detailed account of the act of penetration. ¹⁰² (According to some law schools, one or two of the males could be replaced by a double number of female witnesses.) The question that naturally arises in that case is whether it is conceivable that people could observe such an act of sexual intercourse without thereby jeopardizing their requisite good reputation. Even a conservative author like Aly Aly Mansour has to admit: "It is nearly impossible to satisfy the prerequisite for eyewitnesses. . . ." ¹⁰³ The only conceivable possibility is that the act of adultery is committed publicly, leading to the presumption that the people involved are insane and, consequently, cannot be punished.

Whatever the traditional sha'ria might require in theory, most contemporary Muslims will presumably feel that such a cruel punishment like stoning can never be applied in practice. This attitude seems to prevail even among conservative Muslim scholars. It might be worth mentioning, in this context, that Pakistan's Federal Sha'ria Court resisted the reintroduction of [End Page 613] stoning in Pakistan, in the early 1980s, by repeatedly refusing to apply this form of punishment. Only by replacing some of the judges with his own allies, prime minister Zia ul-Haq finally succeeded in having stoning judicially confirmed as being in accordance with the sha'ria. ¹⁰⁴

These examples may suggest that, not only in consciously liberal approaches, but also in moderately conservative strains of Islam, a reconciliatory mediation between tradition and modernity seems conceivable. Certainly, one should be aware of the possible misunderstandings that easily can occur in such a mediation: it can amount to a superficial harmonization between Islam and human rights, whereby the emancipatory and cosmopolitan claims of human rights get unilaterally amalgamated with the existing sha'ria tradition. In order to overcome such misunderstandings, the relationship between sha'ria and human rights needs to be further clarified. In any case, one should not underestimate the potential for Islam to cope with new challenges and demands in a pragmatic way. In con-formity with the humane flexibility that has largely marked the sha'ria, some of the conflicts between different normative requirements might be settled.

V. RETROSPECTIVE AND CONCLUSIONS

A. The Complexity of Contemporary Islam

I have tried to show that a great variety of Islamic positions in the area of human rights exist. There are conservatives who deny all conflicts between tradition and modernity, thereby simply merging the language of human rights with the classical sha'ria. Some liberal reformers, by contrast, suggest that only a self-critical reevaluation of the sha'ria, which in their view originally was intended to provide normative guidance rather than serving as a comprehensive legal code, facilitates a genuine reconciliation of the requirements of Islam and human rights. Besides the positions held by conservatives and liberals, intermediate approaches exist as well, resulting from the pragmatic humanitarianism that has largely shaped the sha'ria.

Given the fact that democratic structures are still missing or poorly developed in many Islamic countries, it is difficult to assess the strength of the various currents in contemporary Islam. A conservative point of view, as reflected in the Cairo Declaration on Human Rights in Islam, might be representative of the convictions of a large portion of Muslims today. The militancy of fundamentalist movements, however, is basically alien to the mainstream Islamic tradition and therefore can count only on limited [End Page 614] support. Although fundamentalist parties recently have gained ground in many Islamic countries, they are still far from representing the majority of Muslims today. Arnold Hottinger estimates that, apart from exceptional political circumstances, not more than 15 percent of the Muslim population would vote in elections in favor of fundamentalist movements or parties. ¹⁰⁵

Liberal critics and reformers, in turn, certainly occupy a difficult position in most parts of the Islamic world. The June 1992 assassination of Faraj Fouda, an Egyptian author who publicly proposed the adoption of secularist philosophy in Islam, ¹⁰⁶ shows that even physical survival of outspoken Muslim reformers is in jeopardy. It is no coincidence, therefore, that many of them have chosen to live outside their home countries. Labeling them as merely "Westernized," however, would do serious injustice to their identity as Muslims and to the complexity of the internal Islamic controversy as well.

Finally, one should take into account that many Muslims still might feel insecure about the relationship between traditional religious norms on the one hand and modern legal standards on the other. That is why many Muslims assert the validity of the traditional Islamic sha'ria in principle and, at the same time, seem prepared to accommodate pragmatically some political and legal reforms. For instance, even those who defend the legitimacy of hadd-punishment in theory, frequently prefer to avoid the actual implementation of these punishments, invoking practical obstacles to their reintroduction. Although such pragmatic accommodation is not sufficient to solve the general conflict between competing normative requirements, accommodation does provide some intermediate solutions.

B. Practical Consequences

What are the practical consequences of this analysis for the current debate on human rights? First, it is worth repeating that we must abandon the abstract counterpoising of universal human rights on the one hand with cultural sensitivity on the other. This is not to say that tensions and conflicts do not exist. As argued above, there are fundamental obstacles to an unconstrained and unambiguous recognition of human rights in the Islamic tradition--and in other traditions, too. However, because traditions evolve, in light of new experiences and needs, such obstacles might be overturned both by deliberate efforts on the part of intellectual reformers as well as through the pragmatic wisdom and humanitarianism of the people.

What can non-Muslims do to foster such a process? It seems clear that [End Page 615] they should not directly engage in the internal Islamic discourse about human rights. What can be done, however, is a self-critical analysis of one's own culture in order to overcome the various forms of ideological appropriation of human rights. As people from the West, we have to detach ourselves from the idea that these rights are simply individualistic claims that are detrimental to communitarian solidarity, we should refrain from building human rights into an ideology of general progress modeled on the patterns of Western civilization, and we should not confuse human rights monitoring with demands for the introduction of a Western-style market economy. In any event, self-criticism of one's own human rights policy is a necessary precondition to any serious cross-cultural dialogue on human rights.

According to my experience, conservative Muslims frequently perceive any commitment to the implementation of human rights as a new Western "crusade." That is, they fear that human rights are part and parcel of an all-encompassing ideology or way of life that is intended to eventually replace Islamic faith and practice. In order to avoid such a misunderstanding, I have repeatedly stressed the limited scope of human rights. Their focus lies on basic political and legal institutions; and they do not pretend to serve as a transhistoric yardstick, suitable to measuring cultures and religions generally. In other words, human rights are not, and should not be presented as, an international "civil religion."

On the other hand, human rights might shed new light on the self-perception of cultural and religious communities, because the principle of human dignity, which has roots in many different cultures, serves as the foundation for human rights. Moreover, given that the recognition of human dignity under circumstances of modernity needs to become binding in terms of emancipatory political and legal claims, human rights present a challenge to authoritarian traditions in cultures and religions. However, this challenge might well open up new occasions for developing a modern religious identity, by leading, for instance, to a new awareness of some essential Islamic principles that have been overshadowed by detailed legal casuistry.

The most desirable accomplishment of the international discourse on human rights would be an international and cross-cultural "overlapping consensus." This would be a normative consensus focusing on international political and legal standards that, at the same time, could be connected critically with the more specific perspectives of religious and cultural communities. To be sure, we are far from such an ideal situation. Human rights remain controversial across the various ideological camps throughout the world. Given that this is the case, what are we to do for the time being? Do we have to postpone the implementation of international normative standards until they are universally acknowledged? Does cultural sensitivity require that we refrain from monitoring human rights and first engage in cross-cultural dialogue?

We cannot afford such a strategy in the face of human rights abuses on all continents. Subordinating the monitoring of human rights to cross-cultural dialogue would result in an utterly restricted and biased "dialogue;" it would amount to a betrayal of all those whose voices are brutally silenced. Hence, there is no alternative to doing both simultaneously: implementing the existing standards and engaging in an open discourse about their interpretation and improvement, in the context of different cultural perspectives and changing political needs.

What is ultimately required in both human rights and cultural sensitivity [End Page 616] is that we learn to listen. We have to listen to the voices of the victims of human rights abuses and cultural imperialism. Human rights advocates have to speak on behalf of those who are silenced. This, however, is not meant to replace their voices, but rather, to make it possible that they can one day speak for themselves.

[Heiner Bielefeldt was born in 1958. He studied philosophy, theology, and history at the Universities of Bonn and Tübingen (Germany) where he received a Ph.D. He worked from 1983 to 1990 on the "Research Project on Human Rights" in Tübingen. He is currently employed at the Faculty of Law at the University of Heidelberg. Among his publications are several books on subjects of political philosophy and human rights.]

Notes

1. This article was written in the Law Faculty of the University of Toronto. I want to thank the Dean and the members of the Law Faculty for their generous support. I owe many insights to the students who attended my course on "Dialogue about Rights and Cultural Imperialism," in the spring term of 1994. I am also indebted to Cheryl Cline, David Dyzenhaus and Craig Scott who gave me helpful criticism of this paper. Finally, I would like to express my thanks to the Alexander von Humboldt Foundation for facilitating both my stay and my research in Toronto.

2. In order to avoid misunderstandings, I should make it clear that I am not a Muslim and thus not part of the internal Islamic discourse on human rights. Furthermore, I am lacking the language skills needed to explore the sources written in Arabic, Persian, Turkish or Urdu. Consequently, I will only make reference to articles or books which are available in English, French or German. I have tried to remedy this problem by talking, over some years, with many scholars of Islamic studies and, in particular, with Muslims of different backgrounds and various political convictions.

3. To borrow a concept coined by John Rawls, political justice refers to the basic institutions of society. See JOHN RAWLS, A THEORY OF JUSTICE 221 (1971). In his recent book on "Political Liberalism" Rawls has suggested a useful distinction between a political concept of justice on the one hand and comprehensive philosophical or religious doctrines on the other. While the political concept of justice focuses on basic institutions and their underlying values, the comprehensive doctrines represent more encompassing claims of both theoretical and practical validity. See JOHN RAWLS, POLITICAL LIBERALISM 13 (1993).

4. Universal Declaration of Human Rights, adopted 10 Dec. 1948, G.A. Res. 217A (III), 3 U.N. GAOR (Resolutions, part 1) at 71, U.N.Doc. A/810 (1948) [hereinafter Universal Declaration].

5. Id. at preamble.

6. Vienna Declaration and Programme of Action of 25 June 1993, reprinted in 14 HUM. RTS. L.J. 353 (1993).

7. UNESCO, LE DROIT D'ÊTRE UN HOMME. RECUEIL DE TEXTES PREPARÉ SOUS LA DIRECTION DE JEANNE HERSCH (1968).

8. See LOUIS HENKIN, THE RIGHTS OF MAN TODAY 5-9 (1978).

9. See JACK DONNELLY, UNIVERSAL HUMAN RIGHTS IN THEORY & PRACTICE 64 (1989). See also Reza Afshari, An Essay on Islamic Cultural Relativism in the Discourse on Human Rights, 16 HUM. RTS. Q. 248 (1994) ("The UDHR and the other human rights covenants define what is needed to protect a life of dignity and equality in a modern state.").

10. Universal Declaration, supra note 4, at preamble.

11. See Virginia A. Leary, The Effect of Western Perspectives on International Human Rights, in HUMAN RIGHTS IN AFRICA: CROSS-CULTURAL PERSPECTIVES 15 (Abdullahi Ahmed An-Na'im & Francis M. Deng eds., 1990).

12. IMMANUEL KANT, THE METAPHYSICS OF MORALS 63 (Mary Gregor trans., 1991) (parenthetical omitted). The German term "allgemeines Gesetz" has been translated by Gregor as "universal law." In my opinion, however, it refers to empirical legal norms which are to be brought about by the "general will" of the people. That is why I prefer the translation as "general law." See HEINER BIELEFELDT, NEUZEITLICHES FREIHEITSRECHT UND POLITISCHE GERECHTIGKEIT. PERSPEKTIVEN DER GESELLSCHAFTSVERTRAGSTHEORIEN 93-100 (1990).

13. See Immanuel Kant, An Answer to the Question: What is Enlightenment? in KANT'S POLITICAL WRITINGS 54-60 (Hans Reiss ed., 2d ed. 1991).

14. Id. at 85.

15. Universal Declaration, supra note 4, at art. 16.

16. This antagonism also occurs frequently in the Islamic debate on human rights. See, e.g., Bassam Tibi, Islamic Law/Shari'a, Human Rights, Universal Morality and International Relations, 16 HUM. RTS. Q. 289 (1994).

17. See generally Adamantia Pollis & Peter Schwab, Human Rights: A Western Construct with Limited Applicability, in HUMAN RIGHTS: CULTURAL AND IDEOLOGICAL PERSPECTIVES 1-18 (Adamantia Pollis & Peter Schwab eds., 1979).

18. For a detailed analysis see KINRAD HILPERT, DIE MENSCHENRECHTE: GESCHICHTE, THEOLOGIE, AUTUALITÄT 137-73 (1994).

19. See BIELEFELDT, supra note 12, at 108.

20. See RAWLS, POLITICAL LIBERALISM, supra note 3, at 133. It should be noted that Rawls while emphasizing religious and philosophical pluralism in modern democratic societies hardly mentions the phenomenon of multiculturalism.

21. See John Rawls, The Law of Peoples, in ON HUMAN RIGHTS: THE OXFORD AMNESTY LECTURES 1993, at 68-71 (Stephen Shute & Susan Hurley eds., 1993).

22. See Samuel P. Huntington, The Clash of Civilizations? 72 FOREIGN AFF. 22-49 (1993).

23. See DEMOKRATIE UND MENSCHENRECHTE IN NORDAFRIKA 133 (Sigrid Faath & Hanspeter Mattes eds., 1992).

24. See generally NOEL JAMES COULSON, A HISTORY OF ISLAMIC LAW (1964).

25. See generally JOSEPH SCHACHT, AN INTRODUCTION TO ISLAMIC LAW (1964).

26. See Mohamed Charfi, Islam et droits de l'homme, 9 ISLAMOCHRISTIANA 16-17 (1983).

27. FAZLUR RAHMAN, ISLAM 38 (2d ed. 1979).

28. See Schacht, supra note 25, at 161. See also WIEBKE WALTHER, WOMEN IN ISLAM FROM MEDIEVAL TO MODERN TIMES 47 (1993).

29. However, as Wiebke Walther points out, "silence is sufficient indication of agreement in the case of a virginal bride, since she is considered to be too shy or timid to speak for herself." Walther, supra note 28, at 55.

30. See NORMAN ANDERSON, LAW REFORM IN THE MUSLIM WORLD 118-23 (1976).

31. See SCHACHT, supra note 25, at 169-74.

32. This finds frequent expression in current constitutions of Islamic states. See, for example, the Egyptian constitution, Article 11: "The state shall guarantee the proper coordination between the duties of woman towards the family and her work in the society, considering her equal with man in fields of political, social, cultural and economic life without violation of the rules of Islamic jurisprudence." CONSTITUTION OF THE EGYPTIAN ISLAMIC REPUBLIC art. 11.

33. See Donna E. Arzt, The Application of International Human Rights Law in Islamic States," 12 HUM. RTS. Q. 202-230 (1990); SAMI A. ALDEEB ABU-SAHLIEH, LES MUSULMANS FACE AUX DROITS DE L'HOMME. RELIGION & DROIT & POLITIQUE. ÉTUDE ET DOCUMENTS 181-82 (1994).

34. See ALDEEB ABU-SAHLIEH, supra note 33, at 175.

35. On recent sociological developments in the Maghreb states, see FATIMA MERNISSI, BEYOND THE VEIL: MALE-FEMALE DYNAMICS IN MODERN MUSLIM SOCIETY xxiv-xxix (2d ed. 1987).

36. ANN ELIZABETH MAYER, ISLAM AND HUMAN RIGHTS: TRADITION AND POLITICS 148 (1991).

37. See SCHACHT, supra note 25, at 130-33.

38. See ADEL THEODOR KHOURY, TOLERANZ IM ISLAM 154-56 (1980).

39. See MAYER, supra note 36, at 148.

40. See DAVID LITTLE ET AL., HUMAN RIGHTS AND THE CONFLICT OF CULTURES: WESTERN AND ISLAMIC PERSPECTIVES ON RELIGIOUS LIBERTY 76 (1988).

41. See, e.g., the current constitutions of Bahrain (art. 2); Egypt (art. 2); Iran (art. 12); Jordan (art. 2); Kuwait (art. 2); Malaysia (art. 3); Morocco (art. 6); Tunisia (art. 1).

42. See the 1979 CONSTITUTION OF THE ISLAMIC REPUBLIC OF IRAN art. 64 (amended in 1989); the CONSTITUTION OF THE ISLAMIC REPUBLIC OF PAKISTAN art. 51 (amended in 1985).

43. See, e.g., Abdullahi Ahmed An-Na'im, Religious Freedom in Egypt: Under the Shadow of the Islamic Dhimma System, in RELIGIOUS LIBERTY AND HUMAN RIGHTS IN NATIONS AND RELIGIONS 43-59 (Leonard Swidler ed., 1986) [hereinafter RELIGIOUS LIBERTY]. See also Abdullahi Ahmed An-Na'im, Religious Minorities under Islamic Law and the Limits of Cultural Relativism, 9 HUM. RTS. Q. 1-18 (1987).

44. See ALDEEB ABU-SAHLIEH, supra note 33, at 127-37.

45. Universal Declaration, supra note 4, at art. 16. It should be noted that the International Covenant on Civil and Political Rights, which deals with marriage in Article 23, does not explicitly include the right to marry without limitations due to religion. International Covenant on Civil and Political Rights, at art. 23, adopted 16 Dec. 1966, 999 U.N.T.S. 171 (entered into force 23 Mar. 1976), G.A. Res. 2200(XXI), 21 U.N. GAOR Supp. (No. 16) 53, U.N. Doc. A/6316 (1966). See ABU-SAHLIEH, supra note 33, at 127-28.

46. See MAYER, supra note 36, at 157-58. HUMAN RIGHTS WATCH WORLD REPORT 1994, at 292 (1994).

47. See MAYER, supra note 36, at 159-60; AMNESTY INTERNATIONAL, PAKISTAN: VIOLATIONS OF HUMAN RIGHTS OF AHMADIS (1991).

48. See Martin Forstner, Das Menschenrecht der Religionsfreiheit und des Religionswechsels als Problem der islamischen Staaten, 10 KANON, KIRCHE UND STAAT IM CHRISTLICHEN OSTEN 118 (1991).

49. See ALDEEB ABU-SAHLIEH, supra note 33, at 108-09. Sudan officially reinstated the death penalty for apostasy in 1991. See Akolda M. Thier, Islamization of the Sudan Laws and Constitution: Its Allure and its Impracticability, 25 VERFASSUNG UND RECHT IN ÜBERSEE 211 (1992).

50. See ALDEEB ABU-SAHLIEH, supra note 33, at 110-11.

51. For instance, according to Article 220 of the Moroccan penal law, a person who tries to shake a Muslim's faith by means of seduction is to be punished with imprisonment up to three years. See Muhammad Makki Naciri, Judicial Aspects of Religious Liberty in Morocco, in CONSCIENCE AND LIBERTY 73-75 (1991).

52. See MAYER, supra note 36, at 167.

53. An overview of the sha'ria criminal law is given in SCHACHT, supra note 25, at 175-187. For a more detailed analysis of the traditional concepts, see THE ISLAMIC CRIMINAL JUSTICE SYSTEM (M. Cherif Bassiouni ed., 1982).

54. See Konrad Dilger, Tendenzen der Rechtsentwicklung, in DER ISLAM IN GESCHICHTE UND GEGENWART 186-97 (Werner Ende & Udo Steinbach eds., 3rd ed. 1991).

55. Not only in the Islamic world. See Tom Kuntz, Beyond Singapore: Corporal Punishment A to Z, N.Y. TIMES, 26 June 1994, at E5.

56. See ALDEEB ABU-SAHLIEH, supra note 33, at 67. During the 1994 annual session of the UN Human Rights Commission the conflicting views clashed when the Sudanese government charged the UN special rapporteur on Sudan with blasphemy, because he had frankly criticized the application of hadd-punishments in Sudan as violating human rights. See Human Rights and Islam: Sudan Cites Higher Authority, THE ECONOMIST, 5 Mar. 1994, at 42-45.

57. Isaac Nguéma, Human Rights Perspectives in Africa, 11 HUM. RTS. L.J. 262 (1990).

58. See Arzt, supra note 33, at 215. South Africa and the communist states abstained for different reasons. However, other Islamic states initially joined Saudi Arabia in its criticism of Article 18 but eventually endorsed the declaration. Id. at 216. Among the advocates of an encompassing religious liberty, including the right to conversion, was the foreign minister of Pakistan, Zafrullah Khan, a member of the Ahmadi minority. See LITTLE, supra note 40, at 41.

59. See generally Charles J. Adams, Mawdudi and the Islamic State, in VOICES OF RESURGENT ISLAM 99-133 (John L. Esposito ed., 1983).

60. ABU L-A'LA MAWDUDI, HUMAN RIGHTS IN ISLAM 13 (1976).

61. Id. at 23.

62. See the Universal Declaration on Human Rights: "Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status." Universal Declaration, supra note 4, at art. 2.

63. MAWDUDI, supra note 60, at 19.

64. Riffat Hassan, On Human Rights and the Qur'anic Perspective, in HUMAN RIGHTS IN RELIGIOUS TRADITIONS 63 (Arlene Swidler ed., 1982).

65. MAWDUDI, supra note 60, at 32.

66. Ahmad Farrag, Human Rights and Liberties in Islam, in HUMAN RIGHTS IN A PLURALIST WORLD: INDIVIDUALS AND COLLECTIVITIES 141 (Jan Berting et al. eds., 1990).

67. See id.

68. For a critical analysis, see MAYER, supra note 36, at 27.

69. The Cairo Declaration on Human Rights in Islam, reprinted in CONSCIENCE AND LIBERTY 90-95 (English translation 1991).

70. Id. at art. 25.

71. Id. at art. 1.

72. Id. at art. 6.

73. The fact that Islamic documents often stress equal dignity without acknowledging equal rights is emphasized by DONNELLY, supra note 9, at 49.

74. Emphasis added.

75. ABDULLAHI AHMED AN-NA'IM, TOWARD AN ISLAMIC REFORMATION. CIVIL LIBERTIES, HUMAN RIGHTS, AND INTERNATIONAL LAW 102 (1990).

76. MUHAMMAD SAID AL-ASHMAWY, L'ISLAMISME CONTRE L'ISLAM 124-25 (1989).

77. Ashmawy points out that only 80 Qur'anic verses, among about 6,000 verses, entail legal instructions. Id. at 37.

78. Subhi Mahmasani, Adaptation of Islamic Jurisprudence to Modern Social Needs, in ISLAM IN TRANSITION: MUSLIM PERSPECTIVES 183 (John J. Donohue & John L. Esposito eds., 1982).

79. Id. at 185.

80. See RAHMAN, supra note 27, at 78 ("The qualifications for ijtihad were made so immaculate and rigorous and were set so high that they were humanly impossible of fulfillment."). It should be noted that Shia Islam has always continued to recognize ijtihad as a source of law. See PATRICK BANNERMAN, ISLAM IN PERSPECTIVE: A GUIDE TO ISLAMIC SOCIETY, POLITICS AND LAW 46 (1988).

81. Mahmasani, supra note 78, at 182.

82. Ali Merad, Die Scharia als Weg zur Quelle des Lebens, in FREIHEIT DER RELIGION. CHRISTENTUM UND ISLAM VOR DER HERAUSFORDERUNG DER MENSCHENRECHTE 393 (Johannes Schwartländer ed., 1993) [hereinafter FREIHEIT DER RELIGION].

83. See AN-NA'IM, supra note 75, at 52-57.

84. See Rotraud Wielandt, Menschenwürde und Freiheit in der Reflexion zeitgenossischer islamischer Denker, in FREIHEIT DER RELIGION, supra note 82, at 179-209.

85. Hassan, supra note 64, at 63.

86. Mohamed Talbi, Religious Liberty: A Muslim Perspective, in CONSCIENCE AND LIBERTY 31 (1991).

87. Mohamed Talbi, Zum Problem der Umma und der Scharia in der islamischen Welt heute, in FREIHEIT DER RELIGION, supra note 82, at 391.

88. Talbi, supra note 86, at 27.

89. See Udo Steinbach, Die Menschenrechte im Verständnis des Islam, 8 VERFASSUNG UND RECHT IN ÜBERSEE 47-59 (1975).

90. See SCHACHT, supra note 25, at 76-77.

91. See Article 38: "If a woman stipulates in her marriage contract that her husband shall not marry another wife and that, should he do so, then either she herself or this other wife will be divorced, the contract is valid and the stipulation recognized." ANDERSON, supra note 30, at 49.

92. See ANDERSON, supra note 30, at 118-23.

93. See JOHN L. ESPOSITO, ISLAM AND POLITICS 51 (3rd ed. 1991).

94. See Dilger, supra note 54, at 174.

95. See MALISE RUTHVEN, A SATANIC AFFAIR. SALMAN RUSHDIE AND THE RAGE OF ISLAM 116 (1990).

96. MAYER, supra note 36, at 186.

97. SCHACHT, supra note 25, at 176.

98. See ASHMAWY, supra note 76, at 50.

99. See ARNOLD HOTTINGER, ISLAMISCHER FUNDAMENTALISMUS 55 (1993).

100. See Khalid Duran, Religious Liberty and Human Rights in the Sudan, in RELIGIOUS LIBERTY, supra note 43, at 74.

101. See ESPOSITO, supra note 93, at 173.

102. See SCHACHT, supra note 25, at 177.

103. Aly Aly Mansour, Hudud Crimes, in THE ISLAMIC CRIMINAL JUSTICE SYSTEM, supra note 53, at 199.

104. See ESPOSITO, supra note 93, at 173.

105. See HOTTINGER, supra note 99, at 38.

106. See HUMAN RIGHTS WATCH WORLD REPORT 1993, at 296 (1993).