[Islam]: Ali Salman: "Human Rights and Islam: Some Points of Convergence and Divergence"

The main title of this essay is ‘Human Rights and Islam’, which signals some assumptions. I have not selected ‘Human Rights in Islam’ because it depicts a certain type of apologetic behaviour. I have even resisted the temptation of using ‘Islam and Human Rights’, which, by placing Islam before the human rights in contemporary sense becomes historically questionable. This essay, in fact, is in part a summary of the uneasy relationship between religion, especially Islam, and human rights as explicated by some contemporary thinkers and human rights activists. The essay summarizes this relationship from both theoretical and practical perspectives and the questions pertaining to the status of women in Muslim society gets special attention. The overarching question behind this inquiry has been ‘Can religion contribute to building a culture of human rights?’ by the delineation of some points of convergence and divergence between ‘Human Rights’ and ‘Islam’.

Genie of Human Rights
The genie of the concept of human rights in the contemporary sense is the belief in the sacredness of human personality (Perry 1998:2). This sacredness is supposedly universal and absolute at ideal and conceptual levels, at least and it has some consequences, which means that certain choices should be made for all human beings and certain choices should be rejected for any human being (Ibid:5). ‘The Universal Declaration of Human Rights’ (UDHR-1948), ‘International Covenant on Civil and Political Rights’ (ICCPR-1976), and ‘International Covenant on Economic, Social, and Cultural Rights’ (ICESC-1976) -- the three documents constituting ‘The International Bill of Human Rights’-- commonly speak of ‘human dignity’ as something which should be respected in its own right. There is also the ‘Declaration on Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief’, which has not become a part of the International Bill so far. On the grounds of ‘sacredness’ and ‘dignity’, a direct epistemological link can be established between human rights and religion, as religion, in Durkheimian sense (Marshall 1998:575), is primarily concerned with the idea of sacredness. Moreover by giving references to Biblical teachings like ‘love on another’ and ‘brother/sister-hood’, Perry has argued for an elaborate relationship between the concept of equality as expounded in the idea of human rights and religion; equality cannot be assumed unless we assume that all human beings belong to the same origin (1998:13). Obviously such teachings are also mentioned in holy scriptures like the Qur’an, which lays emphasis on the belief that all human beings were created from Adam and Eve, and in this sense, tied in a natural and permanent ‘brother/sister-hood’ or a family (The Qur’an, 49:13). Thus this could become an important point of convergence between human rights and religion.

Let me now turn the idea of sacred on its head. It is noted that in most of modern sociological interpretations of religion, God and other-worldliness -- the pillars of belief in religion in traditional sense -- are absent or avoided explicitly. Thus we hear about ‘rituals’, ‘symbols’, ‘reverence or awe’, and of course ‘community of believers’ (Gidden 1997:436) but we do not hear about God or the other world. This is not surprising, then, that ‘references to God, Nature and even human nature were deleted from the drafts of the 1948 UDHR shortly before its adoption’ (Ombres 1992, cited in Perry 1998:110). Thus the idea of association between sacredness and awe or reverence and belief in God is replaced with belief in sacredness and dignity of human personality which becomes the object of reverence, and therefore society becomes sacred. Religion, in the traditional sense, becomes marginalized in the human rights discourse. It seems that the advice of Nietzsche, who is essentially bracketed with ‘God is dead’, for all practical and understandable reasons, has been shelved, and who asserts that if Christian God is given up, Christian morality should be given up too, as former is the origin of latter. Thus if the ‘God-man is nothing more than an illusion, the same thing is true of the idea that every individual possesses incalculable worth’ (read ‘inherent sacredness/ dignity’) (Tinder 1989, cited in Ibid:23, emphasis added). Thus the flip side of a convergence between religion and human rights is actually a deep divergence.

After establishing this ambivalence of religion for human rights, I now turn to some central dialectics of human rights discourse. Broadly speaking, we can consider three dichotomies, without considering them essentially as ‘ideal types’. Firstly, I mention individualism/collectivism. Human Rights, as a modern phenomenon, are based upon the premise that every individual has the right to express his or her opinion, belief and expression in all the societal relationships. Thus an individual can adopt or leave a religion, marry with his own choice, live and earn by his own free will. This individualism is contrasted with collectivism or communitarianism, which is supposedly a pre-modern phenomenon common to all religions (Mayer, 1999:56). But it is conveniently ignored that the concept of human rights is not absolutely individualistic, as it conditions the expression of individualism with certain collectivist arguments like ‘public health’, ‘public moral’, ‘public order’ etc (Perry, 1998:90). For example, Article 19(3) of ICCPR, following 19(2) (which allows freedom of expression), says: ‘The exercise of the rights …may therefore be subject to certain restrictions, but these shall only be as are provided by law and are necessary: (a) For respect of the rights or reputations of others; (b) For the protection of national security or of public order (ordre public), or of public health or morals.’ What is a public moral or what is necessary is left imprecise and open to interpretation of a situation to ‘individual’ member-states. We conclude, therefore, that human rights do not grant individual freedom in an absolute manner, but explicitly tie these rights with certain identifiable conditions. The supposedly religious objection on human rights for being too individualistic and far too less collectivist becomes feeble, if not invalid and therefore an obvious point of divergence becomes a point of convergence.

Here it is pertinent to ask what is wrong with individualism as such and is individualism only a legacy of Enlightenment? It is grossly unfair to fail acknowledging the role that human rights concepts have played in the empowerment of the individual, which helps in the transformation of the authoritarian rule into the democratic one and in advancing a culture of accountability (Muzaffar 1996:268). However, let me record here something, which Muzaffar does not mention in his valid appreciation of human rights in the empowerment of the individual, and which is the second part of my question: Is the tradition of ‘individualism’ only a legacy of Eurocentric Enlightenment? This semblance overlooks such tradition of ‘heresy’, in Muslim history. Interestingly, all the four major founders of Sunni Islam i.e. Imam Abu Hanifah, Imam Hanbal, Imam Malik, and Imam Shafi‘i, were jailed and punished frequently for their independent opinions against the ‘Islamic’ rulers and religious establishment of their age. As a matter of record, at least three of these Imams took their last breath while in prison.

We also note the more violent expression, and subsequently the execution of characters like Mansoor Hallaj (9th century) and many other Sufi thinkers, who demonstrated their ‘right’ of freedom against all odds and had to bear grave consequences for their boldness. In fact, the tradition of individualism in Sufism has also been acknowledged by some contemporary Western thinkers like Mayer (1999:43). One can also notice fully developed schools of thought as collective dissidents like Kharijites (7th century) and Mutazilites (9th century), which challenged the then orthodoxy, and subsequently were eliminated as schools by the state and conservative religious elements but continued and reappeared in individuals like Farabi (d: 950 AD) and Ibn Rushd (d: 1198 AD). This glorious tradition is as important and influential as of the French intellectuals in the French revolution; therefore, if the assertion and determination of individuals is important in establishing a culture of human rights, then ample historical precedents exists before and beyond the European civilization. Fortunately, Muslim society can still produce some, though not really tolerate, ‘heretical’ thinkers like Abdullah Na‘im and Nasr Abu Zayd, both in exile though, while the latter was declared apostate by Egyptian ‘secular’ courts. Another author Bulliet asserts that the Islamic worldview is predicated on the individual ‘intrinsically enjoy[ing] the freedom to choose his or her authoritative definition of Islam, whether it be grounded in law, or in practice of a pious or political leader, or in the traditional usage of his or her community’, (cited in Cooke and Lawrence 1996:318).

Another dichotomy exists in the case of universalism/relativism. The very term ‘Universal’ in UDHR becomes misleading when we see that the exercise of these universal rights is coupled with some permissible derogation of these laws related with the particular situation of a country. Though, what is ‘necessary’ as a precondition for this derogation remains highly controversial, UDHR allows its signatories ie. states to interpret the situation. It becomes more serious and dramatic if a situation is declared a ‘public emergency’, which allows the states to annul fundamental human rights on legitimate reasons, as public emergency has been acknowledged as a legitimate reason for derogation (ICCPR, Article 4). In this context, the discussion on ‘rights’ is reduced to ‘fundamental rights’, and thus space for controversies and ambiguities widens. Acknowledgement of such situations in the Human Rights concept, however further weakens the religious argument that UDHR does not respect particularities as many states, especially Muslim states, put forward religious arguments for not respecting certain universal rights such as freedom of religion or belief. Instead of invoking religious arguments or associated public morals, which may not be equally acceptable to the world, Muslim states should consider if a particular act of any person or group is hazardous for public order, a ‘universally’ valid reason for annulment of basic human rights.

My third ‘ideal type’ is rights/responsibilities, which is built upon the tension between ‘rights’ and ‘responsibilities’ as two distinct types of human behaviour. Many critics of UDHR, especially Muslim scholars, argue that the whole idea of UDHR is ‘un-Islamic’, because Islam stresses on responsibilities and not on rights. Here, of course, I am placing the apologist argument aside, which reminds us of the old dichotomy between the rights of Allah and the rights of people. This is apologist because it takes strain in proving that the idea of ‘human rights’ in Islamic discourse existed much before UDHR was signed. My contention is that no doubt this terminology existed but in almost the opposite sense of the contemporary understanding of human rights. For example, Islamic discourse emphasizes on certain Haququ’l-‘Ibad (Rights of People) such as rights of the neighbour, fellow traveller, parent, wife, children etc. For example, one eminent woman’s rights activist notes that the Qur’an puts great emphasis on the ‘right to justice’ (Hassan 1996: 372). I have no problem as far as the importance of justice is concerned in the Qur’an, but my point is that the verse being used as a warrant for this argument says: ‘Be just!’ (5:8), which is essentially an instruction, and not a question of right for Muslims. Instead of twisting the original and common sense purpose of Qur’anic injunction, Muslim scholars may do well by insisting upon the alternative discourse, but this is a digression.

It should now become obvious that these ‘rights’ are in fact ‘responsibilities’ of the individual, which he owes to others, like the one he owes to Allah. Thus, nobility aside, the responsibility concept is not ‘right’ as far as human rights are concerned and this argument is not only apologetic but also incorrect. There are some more serious efforts, which have been made by contemporary Muslim scholars, to which I will refer shortly. For now, I want to point out that the UDHR and its accompanying documents are not devoid of the idea of duties and responsibility. For example, what I left in an earlier quotation from ICCPR was this: ‘The exercise of rights provided for in paragraph 2 (i.e. 19(2)) of this article carries special duties and responsibilities’ (ICCPR, Article 19(3), emphasis and parenthesis added). Therefore, the religious argument declaring Human Rights devoid of responsibility loses its ground. The difference between responsibilities and rights is also reflected in an interview by a famous Iranian human rights activist and scholar, Soroush, who clearly states that ‘secularism is assertion of ‘rights’ as opposed to the traditional language of fiqh (Islamic jurisprudence) which talks about obligations’ (in Noor, forthcoming). Soroush flips the coin in an interesting way by further saying that in societies where Muslims enjoy majority, it is common to say that it is our duty to love and obey God, but where Muslims are a minority community, they say it is our ‘right’ to follow our religion (Ibid). This political expediency is clearly articulated by Asghar Ali Engineer, who lives and works in India where the world’s largest Muslim minority exists. For Engineer, one of the most attractive features of secularism is pluralism with equal rights for all without religious or any other kind of discrimination (Ibid.) Thus the boundary between responsibility and right is further blurred leaving all kind of space for convergence and divergence.

At this point, it is pertinent to mention an international attempt to emphasize responsibilities outside the domain of religion. I refer to the proposed Universal Declaration of Human Responsibilities prepared in September 1997 by some statesmen with the aim of getting this document endorsed by the United Nations General Assembly on the occasion of fiftieth anniversary of UDHR on 10 December 1948. This document did not get much attention, not to talk about endorsement, and was criticized for its ambiguous and soft terms, its apparent similarities with UDHR and its lack of understanding of the implications of globalization for human rights (Boven 1998:73). My purpose of mentioning this experiment here is to remind ourselves that the notion and concern of responsibility is not essentially a religious concern and some kind of common ethical standard can be referred as criteria. In any case, as this attempt has shown, the emphasis on responsibility overlooks the historical context in which UDHR was presented: forties was the decade which witnessed culmination of many totalitarian regimes like those of Hitler and Mussolini, which were essentially built upon the belief that every individual has some duty towards the state for nation-building and economic development.

The Islamist response to UDHR

A comprehensive response from Muslim thinkers to UDHR is the UDHIR (Universal Islamic Declaration of Human Rights) of (1981) published under Islamic Council of Europe, which is largely based on Mawdudi’s idea on Human Rights in Islam (Cooke and Lawrence 1996:322). Though, it has been developed on lines similar to its ‘secular’ antecedent, in its spirit, UIDHR remains highly ‘religious’. Mayer has identified interesting differences between its Arabic and English version, and has shown that the former version is more explicit in preserving the traditional concept of religious freedom and the latter version appears more moderate (Mayer 1999:161). Its article 12(a) on the ‘Right to Freedom of Belief, Thought and Speech’ says: ‘Everyone may think, believe and express his ideas and beliefs without interference or opposition from anyone as long as he obeys the limits set by the Shari#‘ah. It is not permitted to spread falsehood or disseminate that which involves encouraging abomination or forsaking the Islamic community’. Its essentialist language can be compared with the Qur’anic injunction:

There shall be no compulsion in the religion. (2:256).

As a matter of fact, the standards set in UIDHR in this case go well beyond the conventional norms of public safety and public moral. What is falsehood for one party can conveniently be truth for another and therefore a lot in the UIDHR is left open to the will of Muslim states, which more often than not are un-democratic and authoritarian.

One of the most sensitive and controversial human rights issues is the status of women in Muslim society. Here again, extremes can be observed by either totally rejecting the Islamist discourse on allegations of discrimination based on sex, or by absolute submission to the Qur’an in the matter of women rights. Issues pertaining to equality between man and woman in general, law of inheritance, relative ease of the right to divorce for men, law of evidence and injunctions related with modesty in dress and public roles have been discussed widely. Though satisfactory answers to these burning questions are yet to develop and establish in the larger Muslim thought, one important historical context should be noted, which serves as a useful point of caution before taking extreme positions. The Qur’an was revealed in the 7th century Arabia, which by no means was a civilized society especially before Islam. The legal rights of women to inheritance in the property was a revolution in that context, which remained superior to the status of women till 19th century Europe (Cooke and Lawrence 1996:324). Similar arguments can be presented for other supposedly gender-based discrimination allegedly associated with the Qur’an. So far so good. But what does it mean for contemporary Muslim women? When shall a revolution come to her doorstep?

Attempts have been made to reconcile the apparent inequalities between men and women present in the scripture. For example, the law of evidence, which presupposes that the evidence of two women will be equal to that of one man, has been reinterpreted by a modern thinker, Sachedina, who has argued that this difference was kept because of literacy and two women were called for as the level of literacy was especially low among women of the Arab society. So, in case of evidence, if they cannot produce anything in writing, the two can do it verbally and jointly (Ibid:325). How modern this interpretation may seem, it is debatable for a generalization for law of evidence as it put forwards literacy as a principle criteria for being able to give evidence, which for law, is not a requirement. Another eminent feminist Riffat Hassan has done some research into the idea of equality between man and woman as understood through the Qur’a#n. She has presented intelligible religious arguments proving that both Adam and Eve were created as separate human beings, and likewise both of them (and not Eve alone) were enticed by Satan to eat from the tree (Hassan 1998:383). Hassan, while proving equality through her exegesis, does not mention her opinion about more explicit issues like the law of inheritance, the law of evidence, or polygamy, albeit conditionally. Another famous feminist Nawal Al-Saadawi from Egypt remains skeptical of the Qur’a#nic verse stating the story of repentance of Adam, and questions as if God has not forgiven Eve since then! (Saadawi 1998: 270). It should be noted here that Saadawi has been recently alleged of apostasy by conservative circles of Egypt and has been jailed for her own safety concerns. Therefore, the overall question of women’s rights remains a bone of contention for all, and it is likely to remain so in the near future. The greatest impediment towards a more feminist interpretation of feminist issues in the Islamist discourse is almost an absence of women interpreters of traditional sources of Islamic law in the entire Muslim history. Establishment of women’s Shari#‘ah college in Qum, Iran recently is an interesting development in this regard (Cooke and Lawrence 1996: 324).

So far we have been talking in theoretical framework. If we enter the framework of practice, obviously, new kinds of convergence and divergence will emerge. The birthplace of human rights in contemporary sense is the West, which also happens to be the birthplace of secularism and in fact, both human rights and secularism are flip sides of the same coin: one cannot exist without the other -- it is supposed. But we also notice that the gravest crimes against human rights associated with freedom to live have been committed in or inspired by the West. Here I refer to the Holocaust and Soviet Marxism-Leninism in the first half of this century and then Rwanda and Bosnia in the latter half. Especially, the first two are built on supposedly modern and secular structure, but subsequent events have shown that secularism, as a principle alone, does not guarantee preservation of human rights (An-Naim, forthcoming). Similarly, a Muslim rule, such as the Mughal empire in Indian sub-continent and the Andulus Sultanate does not mean out-right discrimination: Muslims in hundreds of years of constant rule in these areas demonstrated pluralism and allowed complete freedom to people from other religions -- Hindus, Sikhs, and Buddhists in the former and Jews in the latter case. On the other hand, one cannot lose sight of historical facts like the execution of heretical sects like Kharijites (7th century AD) and Mutazilites (9th century AD) in Muslim history and the atrocious institution of Inquisition under Catholic Church. Therefore, we cannot identify either secularism or religion as guarantor and oppressor of human rights, or otherwise, as a general rule, though recent historical developments, especially in the field of media and information and communication technology (ICT) and the prevalent pluralistic democratic model have provided far more freedom of expression in the West.

In recent history also, evidence can be produced for proving any case. While Europe was discovering the principles of liberty, fraternity, and equality, it was expanding its empire through colonial rule to Africa, Asia and South America. These colonial rules, without any exception, were directed at exploitation of domestic resources or development of local market to put in another way and the concern like right to self-determination, right to economic freedom etc was hardly given serious attention. Similarly, in the post-colonial era, economic and national interests of the Western nations superseded the universal interests in human rights. For example, since 1945, United States has supported more authoritarian or military regimes than democratic ones despite its professed claims in human rights (Muzaffar 1996:270). Likewise, it should be acknowledged that in most Muslim countries -- many non-Muslim countries not precluded here. The democratic institutions are either malfunctioning or not present. Thus they have become an impediment in the establishment of a culture of human rights in any sense. Both in the cases of democratic or authoritative governments, dismal rule of law is perhaps the single most serious challenge for human rights. The situation becomes grave when Islam is described as a scape goat for the worst kind of oppressions. This happens at the state level, when, for example, Pakistan declares Ahmadis a non-Muslim minority, and at the level of community, when ‘honour-killings’ are justified on religious grounds. In both cases, however, as has been argued widely, association with religion is misleading and at best, simplistic as many political and cultural reasons can be traced in the backstage of what appear as religiously motivated actions.

Conclusion

I have tried to show various points of convergence and divergence between Human Rights and Islam, by reinforcing my arguments both with theoretical accounts and historical evidences. Relationship between the two remains highly complicated: where the apparently religious idea of sacredness may become non-religious, the apparently secular assertion of freedom of religion or belief may become highly religious. Similarly, one may note that the UDHR, with all its prose coloured with nobility and exhortation, almost speaks like a religious doctrine. Thus in my view, the tension between human rights and Islam is inherent and permanent, though not entirely harmful for the parties involved. I do not favour the arm-twisting efforts of some modern Muslim jurists trying to adapt the script to prove human rights in Islam. Re-interpretation is a welcome sign and it should be continued at all risks, but Muslims should remain watchful to the fact that human rights is a twentieth century phenomenon and like any other human invention, liable to change. Hence, to hook divine injunctions with human rights is inherently unstable and is also liable to change. Similarly, I do not favour the apparent prophetic language of UDHR, as if these universal claims shall hold forever, and for everybody, everywhere.

I find solace in An-Naim’s argument calling for synergy and interdependence between religion and secularism, as I cannot divest myself of the moral guidance provided by religion and neither can I forgo the right to live in a pluralistic society, as envisioned by secularism. The ideal situation, for a religious mindset, would be that the conditions allowing pluralism and freedom of thought exist under a religious framework once again in Muslim history, but unless that begins to take some shape, the call for synergy is realistic and desirable. It may not resolve intellectual inquiries by any means, but it will help in creating a culture of peace -- an essential end to the culture of human Rights and also an important precondition for intellectual freedom.

Selected Bibliography

    -- An-Naim, Abdullahi (forthcoming) ISIM Working Paper, (ed.) Farish A. Noor, Leiden.

    -- Boven, Theo Van, 1998, A Universal Declaration of Human Responsibilities? in Barend van der Heijden and Bahia Tahzib-lie (Eds.) Reflections on the Universal Declaration of Human Rights, Martinus Nijhoff Publishers: 73-79

    -- Cooke, Miriam and Lawrence, Bruce B., 1996, Muslim Women between Human Rights and Islamic Norms, in Irene Bloom, J. Paul Martin and Wayne L. Proudfoot (eds.) Religious Diversity and Human Rights, Columbia University Press, New York: 313-331

    -- Engineer, Asghar Ali (forthcoming) ISIM Working Paper, (ed.) Farish A. Noor, Leiden.

    -- Gidden Anthony, 1997, Sociology, Polity Press, London: 434-468

    -- Hassan, Riffat, 1996, Rights of Women within Islamic Communities, in John Witte, Jr. and Johan D. van der Vyver (eds.) Religious Human Rights in Global Perspectives: Religious Perspectives, Martinus Nijhoff Publishers, The Hague: 361-386

    -- Marshall, Gordon, 1998 Oxford Dictionary of Sociology, Oxford University Press, Oxford.

    -- Mayer, Ann Elizabeth, 1999, Islam and Human Rights: Tradition and Politics, Westview Press, Colorado.

    -- Muzaffar, Chandra, 1996, Towards Human Dignity, in Human Wrongs, proceedings of an international conference on ‘Rethinking Human Rights’ in Kuala Lumpur, JUST World Trust, Penang: 268-275

    -- Perry, Michael J., 1998 The idea of Human Rights: Four Inquiries, Oxford University Press, New York.

    -- Saadawi, Nawal El, 1998, The Right to Life in Barend van der Heijden and Bahia Tahzib-lie (Eds.) Reflections on the Universal Declaration of Human Rights, Martinus Nijhoff Publishers: 268-273

-- Soroush, Abdul Karim, (forthcoming) ISIM Working Paper, (ed.) Farish A. Noor, Leiden.