Human Rights

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HUMAN RIGHTS

Contemporary discourses concerning human rights (huquq al-insan) and Islam, or rather their compatibility or incompatibility, are manifold and controversial, both in the Near and Middle East and in the West. In the nineteenth century, concepts such as political rights, public liberties, constitutionalism and related issues, found their way into the Muslim world through thinkers such as the Egyptian scholar Rifa a Rafi? al-Tahtawi (1807–1871) and the Persian diplomat Miza Malkom Khan (1833–1908). In the Ottoman Empire, significant reforms were initiated with the hatt-i serif (1839; noble rescript of Sultan ?Abdulmejid) and the hatt-i humayun (1856; imperial rescript, reaffirming the hatt-i serif) guaranteeing security of life, honor, and property, and a fair and public trial for individuals, and civil equality for all Ottoman subjects.

The United Nation's Charter of Human Rights of 10 December 1948 was signed by the Muslim countries. In 1990 the Organization of the Islamic Conference (OIC, founded in 1973), which is composed of all the Muslim countries, submitted the Cairo Declaration of Human Rights in Islam, in an attempt to identify specific Islamic features of human rights in combination with elements of international law. The Cairo Declaration has not been ratified; nevertheless it is referred to as a meaningful contribution to the discourse on human rights and Islam. Although the signatories emphasized in the OIC preamble their "commitment to the UN Charter and fundamental human rights," the document of 1990 reveals differences and even conflicts with international human rights theory, since the latter does not accept that religious concepts are of overriding importance.

Article 24 of the Cairo Declaration subordinates all rights and freedoms to shari?a (Islamic law), without clarifying the limits or questioning the area of conflict between civil and political rights, enacted in the constitution and international conventions on human rights, and the obligations that arise according to shari?a. The sensitive points lay in the area of equality, particularly gender equality, as well as in the fields of art and science. Some examples may illustrate the dilemma: Under shari?a, all human beings, men and women, Muslims and non-Muslims, are equal in terms of dignity, but not in terms of rights. For instance, Muslim women and non-Muslims are not equal with Muslim men regarding family law and the law of inheritance. Although non-Muslim citizens enjoy the same rights and obligations as Muslim citizens, they are excluded from certain positions. Freedom of expression has to comply with the principles of shari?a, that is, it must conform to the prevailing interpretation of Islam. Furthermore, the right of religious freedom is extremely limited for Muslims, since apostasy entails numerous civil law sanctions—such as the loss of the entitlement to inherit or the loss of the right to remain married to a Muslim partner—and even carries the possibility of a death sentence. It should be mentioned that numerous human rights organizations and activists in the Muslim world (for example, in Tunisia, Morocco and Algeria) have called for a revision of the Cairo Declaration in order to bring it into line with the fundamental principles of the UN Declaration.

The actual situation in Muslim countries reflects the complex social and political balance of power, inclusive of the monopoly of definition and interpretation, rather than the relation between Islam and human rights. This explains the existing gap between ideals and practice. Still, contemporary interpretations and applications of the shari?a, especially under prevailing culturally or socially rooted inequalities and under authoritarian regimes, serve as a "legal" basis for violations of human rights. In these cases Islam is used to legitimize undemocratic measures. Pakistan provides one of the most striking examples because tribal (also patriarchal) traditions and customs, a gradual Islamization of the legal system, and a lack of adequate state protection there have resulted in the violation of several fundamental principles of human rights, such as freedom of religion, protection of minorities, and women's rights or gender equality. Muslim Shi?ite communities and members of the Ahmadiyya, who are considered to be heretical, and non-Muslim (Christians) minorities suffer severe persecutions and violence. Discriminatory practices against women, including honor killings, abuse, rape, institutionalized gender bias, among others, are widespread and rarely prosecuted.

The case of the Egyptian scholar Abu Zayd provides but one example of how the limits set by the principles of shari?a are defended by orthodoxy. Abu Zayd was accused of apostasy in 1993 because of his writings. After having taken his case to Egypt's final court of appeal, he was condemned to divorce in 1996. Further, despite concepts in legal thought providing for the protection of minorities in Muslim societies, the actual situation contrasts sharply with existing theoretical ideals. Non-Muslim critics and intellectuals focus on the apparent contradiction between the United Nation's Declaration of Human Rights and the principles of shari?a. On the one hand, civil and political rights are accorded to any citizen in Muslim countries by the constitution and the UN Charter but, on the other hand, the necessity of conformity with the norms and prescriptions of shari?a are religiously legitimized. However, this discourse rarely includes the intense and diverse debates that are going on simultaneously within the Muslim world regarding the limits and possibilities of the adoption of human rights within the Islamic context.

The contemporary voices are complex and diverse, but an inquiry into two positions should be ample to give an idea of the wide range of interpretations and readings with regard to human rights within the Muslim world. Secular positions, such as that of the Egyptian scholar ?Ali ?Abd al-Raziq (1888–1966), argue that the Qur?an does not prescribe any particular form of government, and therefore a system wherein religion and politics are separated is not necessarily un-Islamic. Many scholars and intellectuals are in favor of ?Abd al-Raziq's model, for example, the Egyptian jurist Muhammad Sa?id al-?Ashmawi and the Syrian sociologist Burhan Ghaliyun. Proponents of this position state that Islam implies individual responsibility before God, and in this sense provides a moral and ethical basis for a society, but this does not imply any specific form of political system.

Some modernists even go further in arguing the secularists' thesis. Like the secularists, they hold that Islam does not impose political or legal prescriptions, and add that Islam does not resolve the problems concerning the few and definitive legal regulations specified in the Qur?an and in the tradition. For Islam to do so, they argue, would call into question the Qur?an's authenticity as the eternally valid word of God. In order to avoid this, modernists such as the Syrian Muhammad Shahrur argue that although the Qur?an is the last revelation and thus the last truth, this does not mean that there is only one interpretation. To the contrary, the Qur?an is open for different approaches and readings. Shahrur's ideas elicit a great many positive responses within the Arab world. He is but one example of a scholar who pleads for an interpretation of Islam supportive of human rights. He, and scholars like him, challenge the prevailing Western perspective on Islam, while revealing that it is not Islam as such that is (or is not) compatible with human rights, but rather that certain interpretations of Islam are at the root of the issue.

BIBLIOGRAPHY

An-Nai?im, Abdullahi Ahmed. Toward an Islamic Reformation: Civil, Human Rights, and International Law. Syracuse, N.Y.: Syracuse University Press, 1990.

?Ashmawi, Muhammad Sa?id al-. "Shari?a: The Codification of Islamic Law." In Liberal Islam. A Sourcebook. Edited by Charles Kurzman. New York and Oxford, U.K.: Oxford University Press, 1998.

Mayer, Ann. Islam and Human Rights: Traditions and Politics. Boulder, Colo.: Westview Press, 1991.

Ursula Günther

Encyclopedia of Islam and the Muslim World