By Abdullahi Ahmed An-Na'im
3 June, 2013
In view of the history and current realities of Islamic societies around the world, we should expect to see - and in fact do see - a significant range of views about human rights, rather than any kind of uniformity that might follow from preconceived notions of Islam and Muslims.
Profound political and theological differences have divided Muslims from the beginning in the Arabia of the seventh century, leading to civil wars over issues of political power within a few decades of the Prophet's death. What came to be known as Shari'a gradually evolved during the first three centuries of Islam through human interpretations of the Qur'an and Sunna of the Prophet. That process was characterized by diversity of opinion among various schools of Islamic jurisprudence (Madhahib) of the Sunni and Shi'a traditions, each according to its own methodology of Usul al-Fiqh (the science of sources or foundations of Islamic jurisprudence).
The established methodology of Usul al-Fiqh in that formative stage applied such techniques as reasoning by analogy (Qiyas) and consensus (Ijma) to develop a systematic corpus of Shari'a principles out of the texts of Quran and Sunna. When those textual sources were silent on a specific issue, the founding jurists of Shari'a exercised their independent juridical reasoning (Ijtihad).
Whatever the situation may have been in various parts of the Muslim world through the centuries, Shari'a principles were effectively displaced by European legislation and enforcement of positive state law during the colonial period in all fields except family law. Those colonial legal systems were generally continued by the new "nation states" with Muslim-majority populations after independence, with minor adjustments along similarly secular lines. There was certainly no general return to pre-colonial administration of justice anywhere in the Muslim world in any field except in family law. Matters of marriage, divorce, custody of children and inheritance remained governed by Shari'a principles throughout the colonial and post-colonial era.
Since the 1970s, however, there have been mounting demands for the enforcement of certain principles of Shari'a as the official law of the state, commonly known as the rise of "political Islam." This tension between the reality of secular national legal systems, on the one hand, and popular demands for the enforcement of Shari'a by the state, on the other, is the general background and context of current debates over the relationship of Islam to state law, democratic governance and human rights.
At one end of the spectrum, proponents of Islamic state (which I refer to as Islamists) tend to either openly reject the idea of universal human rights as an imperial Western imposition, or engage in an apologia for conflicts between Shari'a and human rights. Some Islamists, like Abu al-Ala al-Maududi, assert a competing notion he calls "human rights in Islam," which is neither consistent with the concept of human rights as such, nor accurately Islamic in the sense of conformity with Shari'a.
The tension between the reality of secular national legal systems and popular demands for the enforcement of Shari'a by the state is the context of current debates over the relationship of Islam to state law, democratic governance and human rights.
Maududi criticized what he called Western human rights as limited in theory and hypocritical in practice, and asserted that Islam established human rights many centuries before the West and according to a much superior conception. In his view, "human rights in Islam" are conferred by God, and cannot be withdrawn, amended or changed by any government or legislative assembly in the world. But I would argue that such a romantic notion was never true in the history of Islamic societies, up to and including the so-called Islamic states in Iran, Pakistan and Saudi Arabia today.
Moreover, Maududi’s claims about particular "human rights in Islam" are untenable, not only for their excessive ambiguity and intellectual dishonesty, but also because they are not about human rights as the rights of human beings as such. For instance, according to Maududi,
"Islam gives the right of freedom of thought and expression to all citizens of the Islamic State on the condition that it should be used for the propagation of virtue and truth and not for spreading evil and wickedness ... Under no circumstances would Islam allow evil and wickedness to be propagated."
But who is to determine what can be used "for the propagation of virtue and truth" and how and by whom can that issue be adjudicated and enforced in practice? Who is to decide what is "evil and wickedness" in order to disallow its propagation be on behalf of Islam?
A striking illustration of Maududi’s contradiction, intellectual dishonesty and romantic naivety can be seen in his views on the status of non-Muslims in his ideal Islamic state. On the one hand, in his commentary on verse 2:29 of the Qur'an, which instructs Muslims to subdue non-Muslims, Maududi says:
"The purpose for which the Muslims are required to fight is not as one might think to compel the unbelievers into embracing Islam. Rather, their purpose is to put an end to the sovereignty and supremacy of the unbelievers so that the latter are unable to rule over men. The authority to rule should only be vested in those who follow the true faith; unbelievers who do not follow this true faith should live in a state of subordination."
On the other hand, here is how he describes the status of non-Muslims in another publication:
"In an Islamic State, all non-Muslims will have the same freedom of conscience, of opinion, of expression (through words spoken and written) and of association as the one enjoyed by the Muslims themselves, subject to the same limitations as are imposed by law on the Muslims. Within those limitations they will be entitled to criticise the government and its officials, including the Head of the State. They will also enjoy the same rights of criticizing Islam as the Muslims will have to criticize their religion."
The status of non-Muslims presented in the first statement is closer to the established status of non-Muslims under Shari'a, but totally inconsistent with the rights granted to non-Muslims by Maududi in the second quotation. Contrary to what Maududi claims, it is simply not true of any school of Islamic jurisprudence, Sunni or Shi'a, that "all non-Muslims have the same freedom of conscience ... as the one enjoyed by the Muslims themselves."
Moreover, the term "non-Muslims" is misleading in this context because it covers all unbelievers, whereas Shari'a makes a clear distinction between People of the Book (mainly Christian and Jews) and those deemed by Shari'a to be unbelievers, such as Buddhists, followers of native tribal religions, polytheists and atheists. While People of the Book enjoy limited communal rights short of full citizenship under Shari'a, it does not acknowledge any legal personality or security of person and property of an unbeliever in the second group.
At the other end of the spectrum from Islamist ideologues like Maududi, we find some Muslim advocates of international human rights standards - such as Abdolkarim Soroush, Asghar Ali Engineer and Khaled Abou El-Fadl - who are attempting to develop Islamic support for human rights through a critical examination of Shari'a and calls for Ijtihad (independent juridical reasoning) and re-interpretation of the Qur'an and Sunna of the Prophet.
The challenge is how to develop and apply a systematic and effective methodology of re-interpretation of Shari'a, instead of arbitrary selectivity in the use of sources and historical evidence to support one view or another on an isolated issue or subject. It is easy to find verses of the Qur'an that apparently support various modern human rights principles, such as freedom of religion and equality for women. But one can equally quote verses that seem to support the opposing view. The real issue is to establish a consistent "framework of interpretation," and not simply the availability of texts of Qur'an that can be understood one way or another.
In my view, Ustad Mahmoud Mohamed Taha has provided a consistent framework of interpretation that addresses a wide range of reform issues in a systematic manner on the basis of the historical contingency of revelations of the Qur'an and reversal of the process of abrogation (Naskh) applied by early scholars of Shari'a. Whether through Taha's methodology or another adequate approach, the need for systematic revision of the methodology of Shari'a (Usul al-Fiqh) remains the fundamental challenge.
It is easy to find verses of the Qur'an that apparently support various modern human rights principles. But one can equally quote verses that seem to support the opposing view. The real issue is to establish a consistent 'framework of interpretation'.
Between the two poles that I have described, there is a wide range of civil society actors who seem to be either unaware of the human rights concerns with traditional interpretations of Shari'a or hope to continue their work without having to confront that issue. In my experience, Muslims in general tend to have a vaguely favourable view of human rights, but that could change if confronted with a claim that human rights are inconsistent with Shari'a, unless that negative view is effectively countered in favour of human rights. It seems reasonable to expect that civil society groups, as well as the general Muslim public, can be ambivalent in their human rights commitments when faced by a concerted assault from Mawdudi's type of argument unless they are able to respond with an "Islamic defence."
I would maintain that there is no alternative to accepting people's own foundations for human rights, whether religious or secular. If Westerners themselves insist on a frontal assault, the human rights side will lose among believers. In my view, however, such a zero-sum game is unnecessary. The focus should be on transforming the attitudes of Muslims (and other believers) regarding the social and religious meaning and implications of human rights, and not in terms of the application of the principles of Shari'a as state law.
The fact that Shari'a principles cannot by definition be enforced as state law - which I have argued elsewhere - even where Muslims are the predominant majority of the population, Shari'a objections to human rights standards cannot affect the legal enforcement of those standards by the state. In other words, from a strictly legal point of view, Shari'a should have no bearing on whether or not a Muslim-majority state adopts and implements human rights treaties or not. However, the sociological and political challenge to such adoption and enforcement remains if Muslim public opinion is opposed in the belief that human rights norms are contrary to Shari'a or Islam in general.
My fundamental conviction is that, by its nature and purpose, Shari'a can only be freely observed by believers, and its principles lose their religious authority and value when enforced by the state. This religious dimension requires free reflection and choice by believers among equally accessible competing interpretations and religious authorities, independently from coercive authority of the state. In contrast, since effective governance requires the adoption of specific policies, the administrative and legislative organs of the state must select among competing views within the massive and complex corpus of Shari'a principles.
By its nature and purpose, Shari'a can only be freely observed by believers, and its principles lose their religious authority and value when enforced by the state.
Whatever principle of Shari'a is enacted by the state as positive law ceases to be truly Shari'a by the very act of enacting it as the law to be coercively enforced by the state. Yet, such legislation will be difficult for the general population to resist or even debate when state law is presented as divine command.
To mediate the delicate relationship between religious norms and state law, I have proposed that the rationale of all public policy and legislation should be based on what might be called "civic reason." Muslims and other believers should be able to propose policy and legislative initiatives emanating from their religious beliefs, provided they can support them in free and open debate by giving reasons that are accessible and convincing to the generality of citizens, regardless of their religion or other beliefs. But since such decisions will in practice be made by majority vote in accordance with democratic principles, all state action must also conform to basic constitutional and human rights safeguards to protect against the tyranny of the majority.
In the final analysis, however, the realistic prospects of such constant mediation will depend on the credibility and moral authority of the human rights itself, as reflected in the practice of all states, especially the major powers. If the human rights project is to collapse, I believe, that would be as much the result of the failure of Western major powers to uphold these rights in their own domestic practice and international relations behaviour, as the consequence of Islamic opposition to human rights.
Abdullahi Ahmed An-Na'im is the Charles Howard Candler Professor of Law at Emory University School of Law. His most recent books are Islam and the Secular State: Negotiating the Future of Shari'a and Muslims and Global Justice.