By Khaled Abou El Fadl
14 MAR 2014
Human rights and terrorism both are grand concepts. Human Rights is a grand concept of an ultimate or absolute good, in many ways, like the idea of divinity or like the idea of light. Terrorism, on the other hand, is a grand concept of an ultimate or absolute evil, very much the antithesis of divinity and the antithesis of light.
Although we human beings, including theologians, jurists and philosophers, produce a remarkable variety of terminology to negotiate our idea of good and our repulsion towards the idea of evil, ultimately we keep going back to this central dichotomous theme. This theme makes perfect sense to people of faith because it is the theme or the logic of being in a state of grace versus being in a state of the absence of grace; a state of mercy versus the absence of mercy; a state of blessing versus the absence of blessing.
Having said this, we also know that the real challenge for people of faith is the idea of people struggling with this same dynamic but under contemporaneous labels. As powerfully liberating as is the idea of the good, the light and the divine, and as remarkably suffocating as is the idea of the dark, the demonic and the terror-filled or terror-inducing, we human beings have enjoyed a miserable record of taking a concept of the ultimate and the absolute and rendering in practice, its opposite. That is the real challenge to people of faith through the contemporary notion of human rights.
To simplify and pass over a great many complications, it is fair to say that the genesis of human rights is in the natural rights tradition, and the genesis of the natural rights tradition, in turn, is found in the natural law tradition.
Very much like in the Christian tradition, in the Islamic intellectual tradition there was an earlier intellectual battle between those who believed that the notion of right and wrong exists in a primordial and transcendent essence, and that it was not dependent upon a divine command, and those who made the locus of the existence of natural right - what they used to call al-Husn (beauty) versus al-Qubh (ugliness), very much like the idea of dark and light - to be the divine command and not anything beyond the divine command. These two factions battle it out throughout Islamic history and, as often happens, eventually both factions are completely swept up by the political trends of the day.
At the height of the Islamic civilization, Muslim theologians - especially theologians of natural law and natural rights - thrived. They thrived in Baghdad, in Damascus and, about a century later, in Egypt. This is ultimately the tradition that eventually makes its way through Andalusia to Europe through the works of Ibn Rushd (d. 1198) - who had a profound influence on Thomas Aquinas (d. 1274) - and Ibn Tufayl (d. 1185) - who invented the idea of the social contract, which was then adopted by Jean-Jacques Rousseau (d. 1778) who made it relevant to his own tradition - and other Muslim thinkers like Ibn Baja and Ibn 'Aqil, who said that it is quite dangerous to make "good" and "bad" dependent on the divine command and nothing else, because the divine command in and of itself is represented through human will. They believed that God placed God's self, or the attributes of God, into God's creation, and the way that you discern good from bad, or light from darkness, is that you study divine creation to understand the attributes of divinity, which then become the basis for natural rights.
When the Islamic civilization, however, becomes an imperial power, expands into Europe, and has a larger number of people under its control - often in an outright military occupation - the idea of natural rights eventually gives way to the notion of divine command being only as revealed through the text, and it is the experts of the text that then interpret the divine command, rationalize it and justify it. In many ways, this dynamic is hardly surprising because we see this repeated pattern in civilizations - shifting from intellectual flexibility - or, if you will, a tradition of humanism, a tradition of openness, or a tradition of giving - to the opposite, where people, empires and states become intoxicated with their own power and increasingly feel a sense of moral righteousness. They close up and increasingly make morality defined by an elite group of people that act as the guardians and protectors of "the truth" and make "truth" ever more exclusive.
In the Islamic case, it was the Ahl al-Hadith who considered themselves the guardians of the text. This is the same school of thought that eventually takes the form of the Wahhabis today, the dominant puritanical school which spreads through Saudi Arabia and beyond. It is not a coincidence that the same school that reaches its ultimate logical conclusion in the form of the puritanism of Saudi Arabia - and which ends up generating the very practice of terrorism - arose at a time in which Muslims collectively experience their greatest level of political insecurity. I think the historical cycle here is divine. It is as if a divine lesson or a divine instruction that the people who start out by being bearers of the truth, through a monopoly of the divine command, end up being the people who ultimately justify terrorism; and this darkness, this evil is justified vis-a-vis people who are raising broader principles.
But at the same time, stepping outside the Islamic tradition, we cannot forget that the natural law, natural rights, and human rights tradition have been used and abused in our modern age repeatedly to justify everything from forms of slavery to colonialism, imperialism and forms of paternalistic political intervention, and that this provided the moral righteousness to do away with what I will argue is ultimately the basis of what defines the divine, the good, or the beautiful - whether in Islam or outside of Islam - and that is the voluntariness and the rational choice itself.
Quite often in the modern age, in every political intervention that has destroyed the native cultures of peoples - that forcibly converted them, destroyed their heritage or their language, exploited their resources, or worse, simply killed them - there is always that ultimate denial of choice vis-a-vis the other because "we know best" or "we know better."
Here is something that we often overlook in the human rights tradition in our contemporary age, which I see as parallel to the move from a school of natural goodness to a school of goodness strictly through revelation: the transition of human rights in the modern age from a model of a fairly open search for the natural good, to a model of making human rights a product of a consensus between sovereign states - in other words, a positive law theory where states negotiate and posit what is and what is not a human right. Then, once states reach an agreement through the International Covenant on Civil and Political Rights or theUniversal Declaration of Human Rights or whatever other instrument, then that is textually declared to establish what the right is, and even at times, to justify a violation of principle.
Quite often, textualism is indicative of the loss of moral vision about what is supposed to be represented by the principle of religious liberty or religious freedom - the idea that it is fundamental that a human being be able to choose their faith. The crux of what defines the obligation is the ability to rationally choose. In other words, in situations where people are free to choose, one can say that we analyse a right in a certain way, but when people are not free to choose then we analyse it in a different way.
There is a critical issue about reason and rationality that needs clarification. The contemporary conception of human rights, premised on the social contract methodology of human rights - or what I call the Rousseau model of human rights, in which the negotiation between states creates a written text - poses a challenge to the faith communities. If states can negotiate a text, draft a text and produce a text, then why do we need God for the human rights tradition? We have human rights, so what does God add to this dynamic?
The divine source plays a very critical role in creating that notion of obligation, so that the obligation coming through divinity becomes an acceptance of grace, an acceptance of goodness, an acceptance of mercy and an acceptance of a blessed state, rather than simply compliance with formal legal mechanisms or the instrumentalities of law. So, in other words, positive law, negotiated law, or textual law cannot create a state of grace, cannot create a state of peace, or cannot ultimately create a state of light to represent the goodness of human rights. It can only mimic the state of grace or the state of light or the state of divinity.
Let me approach this from a different angle. Rousseau has a very memorable passage in The Social Contract. Rousseau was responsible for an idea that has come to mark perhaps all the secular traditions in Europe, particularly in countries like France, and that is the idea of civil religion. In a passage that is quite fascinating, Rousseau argues that in principle we need gods, not men to make law. Rousseau was not actually advocating a role for the church, but was arguing that law is so difficult that, as the whole quote goes on to say, we need men to be able to see into the future, men who are able to be objective and so on - essentially, he was creating a theoretical construct of the lawmaker as divine-like without actually being divine. That enables Rousseau then to argue that in a civil society, religion becomes a civil religion - religion that is controlled, directed and defined by the state.
This is very different from the model we have in the United States, in which we talk about a state keeping an equal distance away from all religious involvement, and if it does get religiously involved, it must become equally involved with all religions at the same time. This is similar to the John Stuart Mill (d. 1873) model as opposed to the Rousseau model. The Rousseau model, the model of the state as the ultimate and absolute source of goodness in itself, is the one that has prevailed since colonialism in all Middle Eastern countries without exception, and it enables the state to act with a sense of absoluteness, unequivocalness and non-relativity in terms of its own legitimacy. Its legitimacy is absolute and not relative, and its process is all of the goodness, not part of the goodness. But at the same time, it severely limits the potentiality of grace - the power or the potential that comes from a voluntarily individual recognition of divinity.
It is in the Rousseau model that we end up arguing about very positive law types of issues - for example, the question of which religion has made itself part of the civil religion and which religion is still of an unknown status. This is exactly what you see happening in France, Switzerland and other European countries involving the status of Muslims. Often, arguments are made that we do not really know if Muslims are part of the civil religion because Muslims have not proven that they are capable of being a part of the civil religious tradition. Therefore, their status is tentative and negotiable, while older faith communities - Jewish and Christian - are argued to be already part of the civil religious tradition because they have a longer history in the region. It is a very lawyerly way of approaching the issue and very different than in the United States, where we do not make judgments about which religion has made it into the civic fabric, but assume all religions to be on an equal footing.
The European Court of Human Rights has cases in which it discusses whether or not limitations on religious practices in some European communities involving Muslims violate the human rights tradition. There are cases involving other communities, but for the most part, the cases involve Muslims. If you compare that to some of our own cases in the United States, the discourse is fascinating. Often in the European Court, the discussion goes as follows. Human rights is a grand idea, but it is so huge and so amorphous that we really should talk about European conceptions of human rights. This, in my opinion, is a contradiction in terms. Either human rights are universal, or they are not universal. Human rights cannot be European. If they are, then they are just European rights, not human rights.
The courts then often argue that we must stay limited to the specific tradition of Europe; but since we do not know what the specific tradition of Europe is, that then we must stick to the European Convention on Human Rights - namely, the actual legal language of the convention. And because we stick to the legal language of the convention on human rights, then it becomes an issue of whether this language incorporates the notion of civic religion and the right of the state - that is, the legitimate power of the state in defining the role that religion is going to occupy in public space.
Some may wonder why secularists in Egypt can claim to be secularists while the Shaykh of Azhar and the Pope of the Coptic Church can stand and support the coup. The reason comes from the French tradition, not the Muslim tradition. It comes from the French tradition that the state can define the space that religion can occupy, and since Azhar has a historical role in Egypt, the Egyptian Supreme Constitutional Court has said that the Coptic Church and Azhar University are part of the secular practice of the state.
To illustrate just one step further, there were new Christian churches that emerged in Egypt and, very much like the textualist tradition, or the French tradition, the Egyptian Supreme Court said that these churches do not have the same status as the Coptic Church because while the Coptic Church has a history and tradition that allows it to be part of the civic religion of the country, these new churches have not achieved access to that status. That ultimately sacrifices, in my view, the principle of human rights in itself. In this situation, we have moved from the freedom of thinking about human rights as equivalent to a state of blessing, or a state of grace or ultimate goodness - or what I call in my writings a state of beauty - to a specific textualist or historical context that I find suffocating and so limiting, and ultimately dangerous, because it consistently puts religion itself in the service of the state, which becomes for all practical matters the secular god.
Philosopher Roberto Mangabeira Unger argues that modern human beings have become uprooted, unsettled and so miserable that the solution is to develop a secular religion of divine human beings - a very Nietzschean view, in the sense that we should convince human beings that they are gods so that we do not need a God. It reminds me very much of the whole history of nationalist secularism and that is a critical distinction.
We are at a critical juncture right now where there is an ongoing battle as to how to relate to the human rights tradition. We have all heard of the Arab Spring, which is actually a term that was created by Western commentators - whether it is a spring or winter or fall, does not actually matter. The point is that we have, at this critical point, some referring to the Rousseau secular nationalist model, where you allow the state to control the space for religion - exactly like what we saw with the coup in Egypt - and the state becomes ultimately the beginning and the end of what human rights are and what the role of religion will be.
In contrast to that, there have been various movements and various theorists in Syria, Jordan, Tunisia and Yemen arguing that the model of the nationalist state - which is staunchly secularist, but also controls the role and space of religion ultimately - if it works, ends up supporting or at the very best giving victory to the idea of civic rights rather than human rights.
We often confuse the two in our own discourses. Civic rights are rights that are produced by an actual or hypothetical consensus of society. Civic rights are the rights that you have within your national boundaries because of a constitutional document or of a system of rights of any textual document. Human rights are literally that - rights that all human beings are entitled to. They are inherent and undeniable. Human rights don't require an agreement; they do not depend on anyone recognizing them or negotiating them. And our own role in supporting or opposing governments or movements is very critical when it comes to countries that have very strong statist traditions in the modern age.
I do not think we are doing anything for the human rights tradition when we support the position of countries in which the state claims to be the possessor of truth, and literally defines the space that God occupies. If things work well for us, we are supporting a civic rights tradition at best. That is a critical distinction and a distinction that theorists, philosophers and theologians often fail to think about or even appropriately understand. Either we uphold the principle of human rights - in its absoluteness and universality; in its blind stand towards justice and equality of causes; in its non-responsiveness to the element of whom you sympathize with as a human being - or we do not.
I often play a trick with my students: I give them a horrible narrative about a people who suffer some horrendous injustice and give them an erroneous identity - if they are Muslim, I tell my students they are Christian and vice versa. I ask them for their reaction. Once they commit their responses to writing, I tell them the actual identity of the people in the story. I get their reaction again, and the subtle change in language in how you see what is right and wrong is the space where the lack of grace shows up - where the true space of your inner darkness shows up. This is the space where the hypocrisy between civic rights and human rights shows up.
Human rights is an act of grace. Even if you don't recognize yourself as having that right, I extend it to you out of respect, as an extension of my own consciousness and sense of duty. My obligation is to present the good and offer it. Whether people accept it or not, you offer it. By offering it, you have respected my human rights. And you have upheld the principle of human rights.
At the same time, if anyone dares to force me to do something, they have violated my human rights and they have fallen into paradox and contradiction, and ultimately, hypocrisy. Like faith itself, you can only invite. Once you start compelling people to go beyond the invitation and say you will not feed them unless they convert, or you will take away their privileges, not pay their bills, or not fund their colleges unless they convert, then we have moved into a state of the antithesis of faith, or the antithesis of grace.
Human rights is like a state of grace or a state of light or a state of divinity. The divine hasn't forced us to believe in the divine. The divine hasn't compelled us. If God would have wanted, God could have created us all Christian, or all Muslim, or all white, short or tall. But the fact that God didn't, in itself, speaks volumes. For me, this is the genesis - the beginning of my human rights analysis.
Khaled Abou El Fadl is the Omar and Azmeralda Alfi Distinguished Professor of Law at the UCLA School of Law and Chair of the Islamic Studies Interdepartmental Program at UCLA. He is one of the world's foremost authorities on Islamic law, and a prominent scholar in the field of human rights.