14 Islamic Critique of human rights
Dr. Y S R Murthy
1. Learning Outcomes
- To understand the Islamic perspective of human rights with special reference to Cairo Declaration.
- To get an insight into the views of prominent Islamic thinkers on the notion of human rights.
- To explore the possibilities of reconciliation between the universal approach and Islamic Perspective of human rights.
2. Introduction
The pursuit of a uniform standard of human rights since the Second World War has led to the current framework of international human rights. The adoption of UDHR and subsequent human rights instruments were championed by prominent western nations seeking to create a universal value system whose validity transcended political, religious, ethnic, or racial boundaries. It is true that these human rights instruments found acceptance in most parts of the world. However, the Muslim world has severely contested the notion of universal theory of human rights. It is well established that the roots of the current understanding of human rights is premised on western values which are often contradictory to Islamic values. Therefore, the conflict between the universal values and Islamic approach is bound to arise.
It is imperative to point out here that Islamic critique of universalism is an important strand of cultural relativism which challenges the universal approach to human rights.
3. Validity of theories of Human Rights vis-à-vis Islamic law
To understand the Islamic critique of universalism of theory of human rights, it is important to understand the fundamental conception of human rights as per Islam. Islam is “not simply just a legal system but rather a composite system of law and morality which aspires to regulate all aspects of human activities, not only those that may entail legal consequences.”
In Islam, there is no separation between religion and politics. According to Vincent, the main reason “for the close link between Islam and politics are to be found in the early days of Islam in which the Prophet Muhammad was considered to be both a political and religious leader.” During his life, the Prophet Muhammad acted as the “supreme authority in matters of religious duties as well as a Statesman whose political leadership played a key role in shaping the nascent Muslim nations.”
The Islamic legal tradition is based on the following:
4. Historical Evolution of Islamic Critique of Human Rights
The Universal Declaration on Human Rights adopted in 1948 by the United Nations General Assembly represents the broad consensus of the contemporary world on the topic of Human Rights. The Islamic concept of human rights is based on the Quran and Sunna of the Holy Prophet of Islam. Islam seeks to protect human rights by hitting at the conscience of every man. It rather than emphasizing on rights gives due regard to duties and obligations the effective discharge of which will ultimately protect human rights. In Islam human rights derive their authority from God and thus they cannot be taken away. They are to be practiced and lived. Every person accepting Islam has the right to enforce them.
Source: http://www.futureislam.com/inner.php?id=MjUy
If one looks at the Universal Declaration of Human Rights from the Islamic point of view, Islam lays down the broad values which are provided in the UDHR while it is silent on the specific provisions. The whole Islamic jurisprudence is based upon this concept that Quran lays down broad guidelines leaving enough space for man to exercise his own jurisdiction according to the situation, developing his intellect.
While Muslims claim that Islam supports human rights a brief understanding of Islamic concept of Human Rights would help us understand why the Islamic notion of human rights differs from other religion and the how a gradual shift has started from the western notion of universality of human rights.
The decade of 1970s witnesses a rise in political Islam a term used to denote the impact of Islam on the laws of the Islamic countries. This decade witness a transition of Islam from a religious ideology to a political ideology. Parallel to such a transition was a growing conviction that the failure of Muslim Countries is due to the failure of upholding Islam the only solution of which is reinstating laws and institutions by Islam. Such a transition had a major impact on the human rights policy of such state. Anyone upholding the western notion of human rights was seen a servant of their interests. For example, Mohammad Reza Pahlavi who ruled Iran from the year 1941 to 1979 was overthrown by a political revolution carried in the name of Islam and the existing system supporting the notion of human rights was replaced by the Islamic clerics. Their leader was Ayatollah Ruhollah Khomeni. This new system repressed all the secular voices to pursue their Islamic agenda which was the rigorous application of Islam to the laws. The task of ensuring compliance to such ideology was given to the jurists who were at the top of the Government hierarchy.
a) Prominent Islamic thinkers on human rights
In Shari’ah there is no clear reference to the concept of individual human rights, since individuals are seen as “a limb of a collectivity”3 which is the Islamic community. Therefore in Islam, “Muslims have duties vis-a-vis the community, but possess no individual rights in the sense of entitlement.” In other words, in Islam the idea of human rights is understood with the concept of duty to God rather than individual entitlement of rights. Therefore, whatever rights that exist are the consequence of the individual’s relationship with God, and “on his behaviour and faithfulness and not on his mere being.”4 In the Quran, submission to God is repeatedly stressed at all times. Consequently the “essential characteristic of human rights in Islam is that they constitute obligation connected with the Divine, and derive their force from this connection”.5 Thus, for Muslims, “an Islamic society should be governed with the laws instituted by God rather than by laws created by men.”
i. Sayyib Qutb
Prominent conservative Islamic thinker like Sayyib Qutb do support the notion of human rights like freedom of conscience and toleration but they feel that Islamic governance is much more superior to the democratic form of governance as the former not only provides for equality and freedom but also cares for the spiritual needs of the people.
ii. Abul A’la Mawdudi
Another conservative thinker Mawdudi also asserts the superiority of Islam. Even when it comes to the treatment of women he argues that women in Islam get the right to own their own property which other religions of the world have failed to provide and thus the religion of Islam is superior. They claim themselves to be the advocates of free speech but justify a curb on it if it is done to uphold Islamic values. They also go on to suggest that Muslim scholars should avoid the study of western social science so that it does not contaminate their Islamic teachings.
Although the discourse on human rights in the Islamic world is dominated by conservative thinkers. There have been who have embraced liberal traditions as well. Some liberal Islamic scholars like Abdullah Ahmed An’Naim, Fatima Mernissi and Abdul Karim Soroush denounce Islamic extremism and attempt to align Islamic teachings with the western notion of equality and free speech. According to these thinkers, Shari’a should only be adopted after being tested against its various interpretations. Sororus advocates freedom of speech even if it results into rebellious literature in an attempt to find the Universal truth. Fatima Marrinissi advocates testing of Sharia in an attempt to discredit the misogynic texts in it.
There is an apparent conflict between Shari’a and human rights especially on the issues of treatment of non-Muslims, status of women and religious liberty. Iran and Saudi Arabia became the prominent critique if the universalization of the human rights basing their criticism on the rights of culture.
i. Treatment of Non-Muslims
In the present framework of international human rights law, the protection of religious minorities is considered to be a binding principle. Article 27 of International Covenant on Civil and Political Rights (ICCPR) reads: “In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language.”
Most of the Islamic states have adopted and ratified the obligations under international human rights instruments with regard to minority rights protection. It is important to note here that Quran has several verses that denounce imposition or compulsion towards minorities. However, there is enormous literature documenting the violation of human treatment of non-Muslim communities. Vast majority of Islamic states still have discriminatory laws with regard to non-Muslims. In most Islamic countries, religious minorities are compelled to “show respect for Islam and deference to Muslims.”
In other words, according to Buck, the way religious “minorities are treated within the Islamic world depends, to a large degree, on how the religious identities of those minorities are defined by the Islamic States in which they live.” For instance, the non-Muslim religious minorities are “not generally permitted to conduct their religious rituals and ceremonies and to advertise their religion in any shape or form. Non-Muslims are also generally barred from holding high political office. Perhaps, the most discriminatory practice of Jizyah are still imposed on non-Muslims, who live within Islamic territories.” It is evident from this discussion that the Islamic world has a completely different idea of protection for religious minorities which is in conflict with the binding principles under international law instruments.
ii. Religious Freedom as per Islamic Law
Since the adoption of UDHR and its two subsequent International Covenants, the idea of religious freedom, whether it is right to practice one’s religion or abandon or convert to other religions has been a source of ideological dispute. Apostasy laws are common to most Islamic nations. The underlining argument made by the Islamic States is based on a notion that “right to one’s religion – converting from Islam to any other religion – is in contradiction with the principles of Shari’ah Law.” In this regard, scholars like Mawdudi argue that Islam is “not only a religion in the modern technical sense of that term but a complete order of life.”11 Furthermore, according to Maududi, Islam “not only to the metaphysical but also to nature and everything in nature; it discourses not only on the salvation of life after death but also on the questions of prosperity, improvement and the true ordering of life before death.” However, he believes that none of Islam’s penal laws should be applied when the Islamic state does not exist. As per Maududi, “where religion itself is the ruler, where religious law is state law, where religion has taken into its own hands the responsibility of maintaining peace and order”, the ruling religion has the “right to punish those who have promised loyalty and obedience to it and then turn away.”
iii. Status of Women’s rights
The issue of gender inequality is perceived as a characteristic of the Islamic law. However, several scholars agree that the “Spirit of the Quran points toward ultimate equality between the sexes [this is] partly on the grounds that the Quran has indeed improved the position of women in many ways, compared to pre-Islamic Arabia.” There is nowhere in the Quran that clearly commends women to wear a veil; or to be stoned for adultery; or that women must be secluded or circumcised.
Therefore, it can be concluded that the Quranic law was given a deliberate misogynistic interpretation with complete disregard to the scriptural texts to suit the political interests.
Cairo Declaration of Human Rights
With a view to create an alternate narrative of human rights, the Islamic world has enacted several legal instruments. Among them, the Cairo Declaration is considered to be extremely significant. The criticism by the leader of Muslim countries led the Organisation for Islamic Cooperation (OIC) to issue a Cairo Declaration of Human Rights in 1990. It basically was an Islamic version of human rights which either eliminated some of the international human rights or restricted their application. It maintained that the right to freedom and the other fundamental rights are integral part of Islam. This declaration asserts that Islam is superior to any other declaration on Islam.
Article 24 of the Declaration makes all rights and freedom subject to Shari’a and Article 25 makes Shari’a the only reference of the Declaration thereby impacting the applicability of the International Human Rights Law. It is to be noted that hence there is no specific jurisprudence on the law entailed in Shari’a and its varying interpretations such restriction placed on human rights seems arbitrary and thus do no stand equivalent to the concept of Universal Human Rights.
Cairo Declaration does not has any provision which talks of equal rights for men and women. Article 6 of the Declaration do states that, “Woman is equal to man in human dignity, and has her own rights to enjoy as well as duties to perform, and has her own civil entity and financial independence, and the right to retain her name and lineage.” But the second part of the Article makes husband responsible for maintenance and welfare of his family. The article gives women three rights:
This article does not talk of equal rights but merely accords some rights to women. Such a distinction has made it possible for Islamic countries to have discriminatory laws against women. The second part also makes women dependent on men. Article 19 makes every person equal on the basis of distinction between rulers and ruled. No such equality is granted when the distinction is on the basis of sex.
Article 19(d) provides that there shall be no crime or punishment except as provided in Shari’a. Though Article 20 of the Cairo Declaration prohibits any form of physical or psychological torture, it is subject to Shari’a and to the application of this provision by Muslim countries. Thus, many of the Muslim countries regularly employ the Islamic forms of punishment like flogging and amputation of limbs. The authority of such acts is derived from Quran which is superior to any other law. The verses from Quran which authorizes torturous punishment are mentioned below:
Cairo Declaration guarantees the right to life except for Shari’a prescribed reason. This implies that death penalty can be imposed upon any person in violation of International Human Rights law done in accordance to Shari’a.
The Cairo Declaration turned to be ambiguous piece of legislation in an attempt to harmonize Islamic concept with the concept of Human Rights however the result has been only the ‘degrading of civil and political rights’ as noted by Ann Elizabeth Mayer.
iv. CONCLUSION
It is important to bear in mind that cultural traditions certainly are not the only impediment to the adoption and implementation of human rights in Islamic countries. As Bielefeldt rightfully asserted, “one should take into consideration the causes, features, and justifications of human rights violations”.16 Secondly, as Bielefeldt argues, the emancipatory principle of human rights also presents a challenge to the Islamic tradition, because “the emancipatory principle has been articulated only in the modern era, whereas Islamic laws by comparison are much older.”
The traditional understanding of Shari’ah law does not embrace or advocate the notion of human rights since “the notion of right is not at the center of Islamic justice. Rather, submission to God and duty are emphasized.” Donnelly however, claims that Islam protects human rights but it just provides different way of protection. While the concept of human rights in the west has essentially been understood as individual rights in Islam the emphasis has been made on the collective right and so the right to justice is protected through the performance of duties and obligation of the rulers to establish justice.
The claim of Islamic Critique that the notion of human rights is too westernized has not gained enough support outside the Muslim countries. Among the Muslim scholars too, there are several advocates of universal approach to human rights. Though certain articulations have been the product of western ideology but in essence the human rights have gained universal support. The argument of culture relativism to uphold the Islamic perspective of human rights seems to be an attempt by the Muslim countries to not adjust with the progressive ideologies. An attempt though has been made by the liberal scholars to reconcile Islamic teachings with the notion of human rights but it hasn’t gathered much support in their community which still resonates with the idea propounded by conservative thinkers like Qutb and Mawdudi.
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Reference
- Islam and Human Rights, Muhammad Zafrulla Khan, Islam International Publications Ltd., 1967 (Available at https://www.alislam.org/library/books/Islam-HR.pdf).
- Human Rights in Islam (Available at http://www.islamguiden.com/arkiv/human.pdf)
- Human Rights in Islam and Common Misconceptions (Available athttp://hrlibrary.umn.edu/research/Egypt/HumanRightsinI-slam.pdf)
- Irene Oh, “Islamic Conception of Human Rights,” in Thomas Cushman, Handbook of Human Rights, Routledge International Handbook, London and New York, 2012.
- Khaled Abou El Padi, “The Human Rights Commitment in Modern Islam”, in Joseph Runzo, Human Rights and Responsibilities in the world religions, Vol. IV, Oneworld Publications, 2003.
- Mayer, Ann Elizabeth, Islam and Human Rights: Tradition and Politics. 4th Ed. Boulder, Colo. Westview Press, 2006.
- Heiner Bielefeldt, “Muslim Voices in the Human Rights Debate,” Human Rights Quarterly, 17, 4 (1995), pp 587-617.
- Ann Elizabeth Mayer, “Current Muslim Thinking on Human Rights” in Human Rights in Africa, Cross- Cultural Perspectives, eds. Abdullahi Ahmed An-Na’im and Francis M. Deng (Washington: Brookings Institution, 1990), p. 154.
- Jack Donelly, “Culture Relativism and Universal Human Rights” in Human Rights Quarterly. Also in ‘The Development of International Human Rights’, Volume 1, Ashgate, 2014. P. 400- 419.
- Gerrie ter Harr, “Rats, Cockroaches, and People like us: Views of Humanity and Human Rights” in Human Rights and Responsibility, Joseph Runzo, V. IV, Oneworld Publications, England 2003. Pg. 80-81.
- “Non-Western Societies Have Influenced Human Rights” in Jacqueline Langwith (ed.), Opposing Viewpoints: Human Rights, Gale/Greenhaven Press: Chicago, 2007.