The compatibility of Islamic Law with Human Rights

"Al-Quran" foto di areta ekarafi, da flickr.com licenza CC BY-NC-ND 2.0
“Al-Quran” foto di areta ekarafi, da flickr.com licenza CC BY-NC-ND 2.0

Is Islamic Law compatible with human rights? The answer to this question has been in recent years the focus of the debates between numerous human rights scholars. Indeed, the increasing reaffirmation of Islamic beliefs and values in Muslim societies has led to widely divergent views on the issue at stake.

Shari’a literally means a water hole where animals gather daily to drink, or the straight path.[1]  From an Islamic point of view, it refers to the sum total of Islamic law found both in the Qur’an and in the

Sunnah. The Qur’an is the most important source of Shari’a, verbally revealed by God to the Prophet Muhammad, while the Sunnah has developed from the need for elucidation, by the Prophet, of some Qur’anic verses. Nevertheless, the Qur’an itself support its role as a source of law.[2]

One main aspect for a proper understanding of Islamic law, and consequently of the issue in question, is the distinction between Shari’a and Fiqh. Indeed, the first refers to the sources, while the second refers to the methods of understanding, interpreting and applying the Shari’a – the so-called “Islamic jurisprudence”. Hence, the Islamic law consists of two component parts: (1) an immutable divine revelation and (2) a human interpretation of the Shari’a.[3]

In relation to the compatibility between Islamic law and human rights, three main orientations in Islamic thought may be outlined.

  • First orientation: compatibility of Islamic law with international human rights

An important role in this orientation is played by the Maqasid al-Shari’a approach. The definitive exposition of this method, which provides a powerful tool for reforming historical Shari’a, can be found in the work of the Andalusian jurist Ibrahim bin Ishaq al-Shatibi, Al-Muwafaqat. The term Maqasid al-Shari’a is used in Islamic legal thinking to refer to the objective, purposes or intent of Shari’a. As an idea it was developed between the eleventh and the fourteenth centuries. According to it, (1) Shari’a rules purport to promote human interests; (2) the various rules and laws of Shari’a aim at advancing five general purposes: the protection of religion, life, reason, property and progeny.[4] The result of this protection should be maslahah, which means “public interest” or “public welfare”. To wit, the ultimate benefit of Shari’a does not end with the individual per se, but with the well-being of the entire community. Thus, this approach requires a comprehensive reading of the Qur’an as a whole and an interpretation of the particular verses in a way that does not contradict the identified Maqasid. Therefore, the discriminatory aspects in Islamic law are the result of human misinterpretation and misapplication of it (the limitations of the Fiqh). Indeed, Shari’a could never be misleading, erroneous or contradictory to rights per se. The Islamic law, if properly understood, it is argued, would not prohibit any restriction on the free exercise of religion, it would legitimize abolition of polygamy, and so on.  Since the turn of the century, many contemporary scholars, such as Muhammad Khalid Masud, Mohammad Hashim Kamali and Tariq Ramadan, have advocated and contributed to the Maqasid approach.

  • Second orientation: the middle ground positions – Islamic law as the root of the concept of human rights

This neo-fundamentalist trend, which represents the dominant force in current Islamic thinking, is supported by several intellectuals in the camps of the Muslim Brotherhood in different Arab countries. It accepts the notion of human rights, but it stresses the superiority of Islam in the protection of human rights. Therefore, it attempts to reconstruct the concept of human rights on Islamic grounds that would make it consistent with the provision of Shari’a. This orientation led to the Universal Islamic Declaration of Human Rights (UIDHR) in 1981, the Cairo Declaration on Human Rights in Islam (CDHRI) in 1990 and the Arab Charter on Human Rights in 2004, widely acknowledged as an Islamic response to the UDHR. These documents give to human rights the character of religious obligations, rather than allowances or licenses for human action.[5] As suggested by Ann Mayer, they represent middle-ground positions on the issue of the compatibility between Islamic law and international human rights. They assert that Islam does accept human rights, as long as those human rights are subordinate to Islamic criteria and incorporate Islamic values. Therefore, rights, such as the right of minorities or the right to equality between women and men, are tolerated, but they are also restricted. As a result, these statements have been criticized for being ambiguous and incompatible with the UN’s understanding of international human rights.

  • Third orientation: incompatibility of Islamic law with international human rights

Proponents of this conservative Islamic trend, in particular the activists, reject the international human rights movement, considering it a matter of imported and alien systems which, like democracy, are distant from the traditions and the teachings of Islam. Such “rejectionist” approach played a major role in forming the political culture of Islamic radical groups and Jihadists. They all stress the precedence of divine laws over positive laws, the supremacy of Shari’a over human rights, and the originality of the principles on which the Islamic state is founded – principles that must not be confused with their modern Western counterparties. Moreover, they believe that international human rights movements have a hidden imperialist and anti-religious agenda, which results in the suspicion that the Western world through the “crusade” of international human rights wants to discredit the Islamic faith.[6]

The discourse on the compatibility of Islamic law and human rights is not only theoretically relevant. Indeed, the different orientations outlined above have generally played and continue to play an evident role in the social, cultural, political and legal affairs of many predominantly Islamic countries and societies. There is no doubt that some traditional implementation of Islamic law, which when viewed historically may be considered to have been ahead of their time then, are today contradictory to human rights standards. The problem is exactly that Islamic law has mostly been viewed and promoted in its historical context by commentators and scholars, and also applied mostly as such by many Muslim States. It is important to emphasise in that regard that Islamic law should not be perceived as static and fossilized but rather as evolutionary. Moreover, it shares an important feature with international human rights law: the fact that both are moral visions intended to transcend conventional norms in favour of universal morality.

To protect human beings’ rights is not about giving priority to either international human rights norm or Shari’a. Rather, it is an ongoing attempt to understand what the humanism of human rights and the humanism of Islamic law demands of us.

REBECCA BARRESI

[1] Abdulkadir Mubarak, “Sharia and Human Rights, the Challenges Ahead”, Kom, (2013), vol. II, p. 19

[2] E.g. Qur’an 3:31 and 33:21

[3] Mashood A. Baderin, “Establishing Areas of Common Ground between Islamic Law and International Human Rights”, The International Journal of Human Rights, (2001), p. 76.

[4] Louay M. Safi, “Human rights and Islamic Legal Reform”, conference paper, Kuala Lumpur, (1998), p.9

[5] Burhan Ghalyoun, “Human rights in contemporary Arabic thought”, Human Rights in Arab thought, (2009), p. 365

[6] Mashood A. Baderin, “Establishing Areas of Common Ground between Islamic Law and International Human Rights”, The International Journal of Human Rights, (2001), p. 81