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   Conferences /The Fourteenth General Conference : The Truth about Islam in a Changing World
 
HUMAN RIGHTS AND ISLAM:Murad Wilfried Hofmann

HUMAN RIGHTS AND ISLAM Murad Wilfried Hofmann
1. Western civilization and the Muslim world- if there is such a thing continue to confront each other, and many are their points of dispute: not only differences of a theological / philosophical nature but also less elevated issues of public and private morality. Indeed, when Muslims meet with Western people formed by modernity or post- modernity, usually the hottest issues under discussion are not the existence or non- existence of God but rather socio- political questions. In that case, more often than not, Muslims find themselves on the defensive in three crucial respects: democracy, human rights on general, and the rights of women in particular. It is no exaggeration to state that the future of Islâm in the Occident to a large extent depends on the answers given in these three fields.
2. When addressing the human rights complex, Muslims may find out to their dismay that their Occidental partners believe that human rights are a Western invention and only guaranteed under modern conditions as if human rights as a matter of course were protected in the Occident and as a matter of course violated in the Orient.
a) These suppositions are an understandable reflection of the fact that specific human rights codices were first elaborated in the West-mainly in England- in order to improve the protection of citizens against abuse by the State. Thus the earliest formal human rights were conceived defensively as freedoms from something, limiting state intervention. At that time, in the l7th / l8th centuries, nobody as yet thought of human rights in offensive terms, as freedoms to obtain something, demanding state intervention. These latter rights are playing a bigger role only today.
The development of Human Rights, with capital letters, went in stages, from the British Magna Charta libertatum (1215), Habeas Corpus Act (1679), and Bill of Rights (1689) via the American Declaration of Independence (1779)- still mentioning God- to the French Human Rights Declaration of 1789- which no longer mentioned Him.
All further human rights codices developed from these purely Western documents. They include the United Nations’ Universal Declaration of Human Rights (1948) and their two International Covenants of 19 December 1966 on civil, political, social, economic, and cultural rights. The human rights instruments of the Council of Europe were drawn from the same sources.
Surely, this legal development did not take place thanks to Christianity but in spite of it; nor does it imply that "human rights" had been without protection in former times, in spite of Qur'ânic norms and Islamic jurisprudence.
b) More intolerable is the supposition that Muslim countries, as proven by history, were essentially incapable of assuring human rights protection. The bitter truth is rather that simple people have always been exposed to mistreatment and despotic licence, everywhere, all through world history. In fact, they still are, not only in Muslim countries but also in China and North Korea, South America, Black Africa, Serbia- you name it!
Western people must realize that human rights violations happening here and there in the Muslim world- e.g. police brutality and torture, politically motivated rape, fraudulent elections, administrative corruption, etc.- are neither islamically motivated nor legitimized by Islâm. On the contrary and they are, it is mostly active Muslims one finds imprisoned in some countries and they are, Muslims by name only.
Nor can we spare our Western partners the following painful question: Have human rights ever before been as massively violated as during the two World Wars in Europe and Asia, with the employment of chemical and nuclear weapons? Or during the Stalinist terror and the industrial mass destruction of Jews, gypsies, homosexuals and infirm people by Nazi Germany? Or during the massacres, mass rapes, and "ethnic cleansing" recently carried out by Serbian forces in Bosnia and the Kosovo? Or between Hutus and Tutsis and Cambodia under Pol Pot? Did any of these atrocities happen in the Muslim world?
3. Western people cannot but deny the last of these questions, and yet they are apt to claim the moral high ground. At any rate, under the threat of discontinuing their development aid, Western governments continue to demand the wholesale adoption of the Western, individualistic human rights culture. In this context, these rights may be wielded like a club, as a political weapon, Parvez Manzoor was therefore right when stating that human rights talk is power talk 1. Indeed: Human rights discourses are (also) about political, economic and cultural influence.
4. No use complaining. The Muslims cannot escape taking position.
a) Third World countries, euphemistically called developing countries, including even Muslim Petro-Dollar States, tried to form a forward line of defense by insisting on the interdependence of civil human rights and socio-economic ones. They were able to point out that free elections make little sense as long as most of the voters are illiterate and thus likely simply to confirm existing tribal structures. Even Western observers now usually admit that a functioning democracy presupposes the existence of what is called a civil society which, in turn, is preconditioned by a certain level of economic prosperity.
As a result of this argumentation, Third World countries succeeded impeding a whole set of human rights of their own, including the right to education, freedom from unemployment, and subsistence.
b) The same countries also believed they could ward off Western human rights weaponry by putting into question the universality of the declared Human Rights, calling them euro-centric, ethno- centric 2 and alien to non- European cultures in Asia and Black Africa.
This view may be defensible up to a point as far as fashionable, newly discovered "rights" are concerned, like the "freedom to be afraid" (i.e. the right to feel panicky because of atomic weapons and nuclear energy), the "liberty of intoxication" (i.e. the right to destroy oneself with drugs), and the right to enter same- sex marriages- all products of a "green" ideology typical of Western leftist and environmentalist protest movements.
But nobody can rationally deny that the classical, core Human Rights are indeed universal and not culturally conditioned. All human beings, no matter where, should be protected from murder, torture, or imprisonment without fair trial; all of them should enjoy freedom of conscience and thought, freedom of religion, and be free to leave their countries. Muslims hurt their case if they let themselves get caught denying the universality of these and similar basic rights.
5. It is a much better strategy to address the human rights issue within an Islamic framework, i.e. under guidance from Our'ân and Sunnah.
a) Following that path one will realize that the concept of human rights did not grow out of the Mosaic faith, Christianity or Islam- or any other religion. This is not only due the absence of modern legal vocabulary in ancient religious texts; to search them for human rights terminology would be an anachronism. Rather, God- believing people were unable, and still are, to conceive of God- created individuals as bearers of unalienable rights. Divine rights for individuals, yes; rights of individuals, no. In fact, the very concept of human rights grew out of 17th/ 18th century Enlightenment philosophy which enthroned man as the autonomous measure of all things- an idea unacceptable for people with transcendental links.
b) For Muslim professors of law in particular it would have amounted to blasphemy if they had dared to subdivide the shari'ah, i.e. divine norms, into legal rules of higher and of lower rank. Western jurisprudence is indeed based on such a normative hierarchy, distinguishing- in this order, from top down- international law, constitutional law, legislation, ordinances, administrative guidelines, and administrative acts.
In marked contrast, Muslim fuqaha list all norms of sharî'ah and fiqh as enjoying equal rank- from provision about ghusl to the interdiction of ribâ 3.
6. Yet, neither the divine nature of Qur'ânic norms, nor the consequential absence of human rights concepts, need have impeded the development of an Islamic human rights doctrine. That this did not happen, alas, opened Islam up to the suspicion that it was incompatible with the very idea of protecting individuals from abuse.
I submit that it would have been possible early on to prove that (i) Islam for 1400 years already has helped to protect what is to be protected by the core of human rights; and that (ii) these eternally guaranteed rights are better anchored in Islam than in Western codices subject to modification.
a) The methodology that could have been followed is simple:
When, for instance, Allâh (t.) in al-Nisâ’: 92 forbids murder and in al-Mâ’idah: 32 compares a one- time murderer with someone who has killed all of mankind, then it is possible- not directly, but indirectly- to deduct a general right to live, not as individual claim but as reflex from a divine norm. Similarly, if Allâh (t.) in al-Shűra: 38 gives order for Muslims to arrange their affairs through consultation, then- at least indirectly- one can deduct from it a general right of political participation. Again, when the first three khulafâ’ were elected, after consultation, without being blood relatives of the Prophet (s.), then one may deduce that a Muslim State can be a republic and need not be a monarchy.
Thanks to this method, it is possible to demonstrate an equivalent Islamic legal basis for the protection of human rights Western style, provided one does not stumble over terminological hurdles. In fact, Islam can be shown to be a complete "human rights" system.
b) It is obvious that rights based on divine revelation (whose observation is answerable to Allah Himself) are better grounded than amendable rights merely resulting from international negotiations. Clearly, all the beautifully bound Human Rights Codices, Pacts, and Covenants of the United Nations even after having been incorporated into national law, often had little or no effect on actual behaviour, neither in the former Soviet Union nor always in the United States. Just ask Afro- Americans or American Indians.
At any rate, it should be out of dispute by now that mankind has never been able to discover, through mere observation and reasoning, a universally accepted and binding system of Natural Law. Worse, in recent times it has been discovered that people, while being very fond of the idea of rights, less and less accept the corresponding idea of responsibilities. This is why some world- renowned personalities like the former German chancellor Helmut Schmidt and the Swiss reform theologian Hans Kűng recently drafted a United Nations Declaration on Human Responsibilities. Paper, paper, paper. If not based on revelation, all in vain.
7. All too late, but nevertheless, some Muslims got into the human rights act. On 5 August, 1990, the Organization of the Islamic Conference (O.I.C.) published its Cairo Declaration on Human Rights, a non- binding, merely political document. Legally even less relevant was a preceding Human Rights Declaration issued on 19 September 1981 by an obscure Islamic Council of Europe, never heard of again.
a) Also a number of well- known independent Muslim personalities have entered the human rights arena, among them the late Muhammad Hamîdullâh, Abu ‘Alâ Mawdűdî and Prince Hassan of Jordan. During a Roundtable Conference in ‘Amman for "Enhancing the universality of Human Rights" from 10-13 December, 1994, the latter said: "What we desperately need now is a global consensus on human rights. He added: "The Universal Declaration of Human Rights lays out the core minimum standard for human life", and "I believe that my faith, Islâm, was engaged in this same endeavour. For each of the 30 articles of the Declaration, there are analogues in the Qur'ân the Hadîth, and the Sunnah of the Prophet Muhammad." The first conclusion of the conference stated that "all people are bearers of human rights."4
b) Thanks to these precedents it is relatively simple to describe the few differences which seem to exist between Western and Islamic human rights codices. Under scrutiny are (i) apostasy, (ii) slavery, (iii) dhimmi, (iv) women's rights, and (v) corporal punishment.
Given contemporary ijtihâd, the positions of the two sides are perhaps less apart than might be expected. For this contemporary interpretative effort I refer primarily to the śuvres of Muhammad Asad,5 Fazlur Rahmân, Mohamed Talbi, Hasan al-Tűrabî, 6 Alija lzetbegovic,7 Fathi Osman,8 Hassan and Maher Hathout Rashid Ghannoűshi,9 Yűsuf al-Qaradâwî, and Jeffrey Lang 10
8 a) As far as apostasy is concerned, any conflict disappears once Muslims realize that neither Qur'ân nor Sunnah foresee any punishment in this world (fi-d-dunya) for merely deserting Islâm. The Qur'ân refers to several such cases without pronouncing a specific penalty. La ikraha fi-d-din should not only be respected between Muslim brothers and sisters. In connection with apostasy former Muslims were persecuted only if they also committed high treason (ar-riddahh) in the sense of al-Mâ’idah: 33, actively working against Islâm or even fighting on the other side. Capital punishment for high treason, especially during war, is known worldwide.
b) It is a different question whether the legal inability of apostates to inherit from Muslims constitutes such a violation. This is not the case, however, if one treats membership in the Muslim Ummah like citizenship in a national State. It is internationally accepted that the law of inheritance may privilege citizens and discriminate aliens.
9. Slavery should pose no problem either. Of course, whether relevant or not, Qur'ânic verses dealing with slavery cannot be erased, even though it is clear that the Qur'ân motivated the gradual disappearance of slavery. Against that background, Muslim States without any qualms can subscribe to a proscription of slavery as an institution.
This is not to say that de facto slaveholders in our day and age, be it in Mauritania or in remote areas of Pakistan, are no longer bound to observe the protective provisions for slaves, in the Qur'ân.
10. The protection of religious minorities (al-dhimmî) is one of the strong points of Islamic international law.
a) However, nowadays, such dhimmî consider themselves discriminated as long as they are not granted full citizenship. Well, to do so should not pose a problem for those Muslim state which in every other respect organized themselves on a non-Islamic, national lines provided that the dhimmî accept the responsibilities coming with citizenship, including military draft.11 Crucial is the realization that the Qur'ânic status of dhimmî constitutes the minimum of protection to be accorded, not the maximum that may be granted.
b) It is a different question whether it is admissible under international law for an Muslim country to reserve for Muslims the office of head of state. Seen from up close, this is again a non- issue. If the majority of the population is Muslim, a non- Muslim would hardly be elected president. If, however he would, could one consider such a country Islamic?
11. As far as women's rights in Islâm are concerned, it is important not to loose from sight that international law can only demand that equal matters are treated equally. Unequal situations may of course be handled equally, as a matter of policy, not of international law.
Now, whether this is fashionable or not, Muslim men and Muslim women alike proceed from the biological fact that men and women are not identical, neither physically nor psychologically, and that in accordance with ‘Al-'Imrân: 36 where Allâh in precise way says: A male is not like a female.
Western human rights doctrine, on the other hand, for ideological reasons legally ignores all gender differences, and that fiction of identity definitely clashes with Islamic naturalism and realism. This conflict should not be belittled; its practical consequences may, however, be less important than most would believe.
a) Al-Nisâ’: 11 seems to privilege sons over daughters in the division of an estate. But this provision of the Qur'ânic law of inheritance is not a true discrimination in view of the fact that daughters, in contrast to their brothers, are not burdened with obligations for the up-keep of the remaining family.12 Also, it is possible for any father to increase his daughter's portion in his last will.
b) According to Al-Baqarah: 282 f. a man's testimony in court can be replaced by the testimony of two women. From a Western point of view, this is a case of unwarranted discrimination unless proven that women witnesses are biologically handicapped. On the other hand, the procedural rule in question might be acceptable if not sex but competence was the decisive criterion. According to several modern Muslim authors13, that is exactly the case. They concede that the testimony of a Muslim business woman in a commercial lawsuit be given the same weight male testimony.
c) Traditionally, the respective roles of husband and wife in Islâm were defined patriarchically in accordance with the orthodox interpretation of Al-Baqarah: 228 and Al-Nisâ’ 4: 34- verses that seemed to say that men "have the last word" and that men are "superior" to, or in charge of women14: a reading which caused outbursts of indignation in Western feminist circles, and beyond. However, more and more contemporary Qur'ân translators arrive at a significantly different reading of these verses. Al-Baqarah: 228 is identified as a specific rule within the law of divorce without any bearing on questions of intra- family status. And ar-rijâl qawwâműna ‘ala-n-nisâ’ (4:34) is today understood only to say: "Men shall take full care of women" a far cry from earlier interpretations.15 Men are no longer seen standing above women protectively in front of them, in consideration of men's normally greater physical and financial potential.
This ijtihâd, while quite relevant for the human rights discussion,, is not a revisionist effort to adapt the Qur’ân to modern ideology. Rather, certain macho-attitudes typical of oriental mentality are to be adapted to the genuine, original message of the Qur’ân.
d) One can conclude from the rationale of al-Ma'idâh:5 that the Muslim women, in contrast to Muslim men, are not entitled to enter into marriage with a non-Muslim Jewish or Christian partner. This rule connects, of course, with the traditional Muslim understanding of the role of husbands as guiding head of the family also in religious matters. A Muslim wife as a matter of course would honor all Jewish prophets, including Jesus. But could she count on tolerance from her non- Muslim husband for her veneration of Muhammad? The Western human rights fiction of male- female equality is no solution in this dilemma.
e) According to Roman wisdom and Justinian law paler semper incertus (fatherhood is always uncertain), and that may have been the earliest incentive for monogamy, a modern practice also in the Muslim world. In fact, one can certainly find today more Western men with installed maîtresses than polygamous Muslims.
This development is not a departure from the sharî'ah but it is a well understood implementation. The Qur’ânic conditions for polygamy in Al-Nisâ’:3 are so strict and the warnings of the Qur’ân against polygamy are so serious that one may well conclude that monogamy is the primary, normal Islamic form of marriage. After all, 4:3 begins with a clear condition: (And if you have reason to fear that you might not be able to do justice to the orphans...) which rules out polygamy in any other case. In addition, the same verse warns: (But if you have reason to fear that you might not be able to treat them (i.e. your wives) with equal fairness, then marry only one).
This is topped in verse 129 of the same Sűrah with the grave judgment: (And it will not be within your power to treat your wives with equal fairness, however much you may desire it).
It is therefore beyond the comprehension of many contemporary Muslims how previous generations against this clear-cut textual background could believe that unconditional polygamy was the prototypical Muslim family.
Nevertheless, it is out of the question to act as if the Qur’ân had not permitted polygamy under specific conditions, and that for good reasons. We are now and again witnessing situations- especially after the large scale decimation of men in modern warfare- in which the permission to share a husband is a blessing and a mercy- no matter what human rights activists may say.
12. Qur’ânic penal law (al-hudud) for a very small number of offences foresees corporal punishment which, in and by itself, is considered cruel and degrading and thus proscribed by all human rights texts of Occidental provenance. In question are (i) capital punishment as such, (ii) stoning or lashing of adulterers, and (iii) amputation of thieves.
a) Without panicking apologetically, Muslims should not hesitate to point out that the leading Occidental power, the United States- not to speak of China and other important countries- continue to execute criminals, be it by hanging, decapitation, electrocution, gassing or poisoning. Yet, surely, destroying human life altogether is certainly the most cruel and degrading of possible penalties. It is therefore highly hypocritical to criticize Islam for capital and other corporal punishment as long as the described situation continues. Just as it is unfair to disregard the procedural modalities of Islamic law which considerably reduce the actual application of hudűd penalties.
b) As far as stoning is concerned, I support the view of those who deny an Islamic justification for it. A command to stone adulterers exists in the Bible16 but not in the Qur’ân, and it is unwarranted to claim that a so-called ayat al-rajm had ever been in the air.17 On the contrary, An-Nűr: punishes adultery with flogging only. In fact, stoning of Muslims could at best be based on a single case of toleration by the Prophet 18, but that may well have taken place before the revelation of 24:2.19
But even if this event had happened after this revelation, could one even conceive of the Qur’ân to be abrogated by the Sunnah? 20
It leads to contradiction if, in this context, one differentiates between free and unfree couples. According to An-Nűr:25 unfree women are liable to half the penalty to which free married women are liable. If that penalty is death, what, please, is half the penalty of death?
It is worth-while adding that Islamic criminal procedure on the basis of An-Nűr:4 is so strict that adulterers can be convicted only if they virtually desire it by making a credible confession. (President Clinton would have fared better under Islamic law...)
c) The Qur’ânic penalty for theft (Al-Mâ’idah: 38) is meant as a strong deterrent in an important socio- economic context. One must take into account that the social security of Muslim women, divorced or not, in old age largely depends on the availability of her dower, often given in form of jewellery and gold. In such a society, anterior to the credit card and bereft of bank safes, theft is an attack on the social system altogether.
Here again, one should not overlook the practical consequences of this hudűd ordinance. Obviously, one can live for decades within the Muslim world without ever running into somebody who misses a hand or foot.
This is not due to the absence of thieves but to the restrictive definition of theft in Islamic jurisprudence. According to the fuqaha and the Sunnah of ‘Umar b. Khattâb the crime of theft has only been committed if a valuable, secured, privately owned, licit object has illegally been taken, without any acute need to do so, for instance in times of famine and poverty. In addition, the Islamic statute of limitations prevents that theft be persecuted after the passage of some weeks only.
At this juncture one might recall that critics of Islâm are quick to dismiss "positive" Qur’ânic verses- like those on tolerance (2: 256) and religious pluralism (5:48)- as purely theoretical, without impact on life. These same critics are equally quick to dismiss Islamic legal practice- as in the case of adultery and theft-by focusing on Islamic legal theory. A no-win situation.
13. Summing up one can say that the sharî’ah largely but not fully accords with Occidental human rights documents. Muslim countries can therefore ratify these texts only under reservation.
The identified conflicts are, however, less intense than commonly assumed, last not least thanks to the results of contemporary ijtihad and the liberalism of Islamic procedural law. Yet efforts at harmonizing Western and Islamic law in the public interest (maslahah) are narrowly limited since the sharî’ah as divine law is not amendable at will.
In as mush as the conflict cannot be defused- and this is mostly the case with respect to the roles of men and women- the Muslims will simply have to wait patiently. One day the pendulum of public opinion in these matters may swing back towards normalcy, and human nature will prevail.
And patience is an Islamic virtue.
1. The Muslim World Review, Markfield, LE, UK, Autumn 1994, vol. 15, no 1, p.9. Also Anouar Hatem, L'Islam et les Droits de l'Homme, Suisse 1974, p. 15, sees human rights used as "un arme politique".
2. ‘Ali Mazrui sees "an arrogant Pan- Europeanism" at work, "greater in ambition than anything since the Holy Roman Empire", with "the White world closing ranks at global level": Human Rights between Rwanda and Reparation- Global Power and the Racial Experience, Encounters, Markfield, LE, UK, vol. 2, No l., March 1996, pp.3-22.
3. Archetypical for this a re an- Nawawi's Minhâj- et- Tâlibîn, trans. E.C. Howard, Lahore 1977, and Bidâyat al-Mujtahid (The Distinguished Jurist's Primer), 2 vol., Reading 1994, 1996. Some modern treatises, like Sharî'ah- The Islamic Law, by ‘Abdur Rahmân I. Doi, London 1984, deal with human rights but not as a superior category. In ‘Imrân Ahsan Khan Nyazee's excellent Theories of Islamic Law, Islamabâd 1994, the concept of human rights does not even figure in the index.
4. Ma’ab, ‘Ammân, vol. 6 issue 18 of June 1995, p.6.
5. Relevant is his superb Qur’ânic commentary, The Meaning of the Qur’ân, Gibraltar 1980, State and Government in Islâm, Gibraltar 1980, and This Law of Ours, Gibraltar 1987.
6. e.g. Women, Islâm, and Muslim Society, London 1991.
7. Islâm between East and West, Indianapolis 1984.
8. Shâri'ah in Contemporary Society, Los Angeles 1994; The Children of Adam, An Islamic Perspective on Pluralism, Washington, D.C. 1996.
9. He believes that Islamic civilization made a major contribution towards developing the concept of human rights. See: Ghannouchi, Encounters, Markfield, LE, UK, vol. 2, no.2, September 1996, p.193.
10. Struggling to Surrender, 1994, and Even Angels Ask, 1997, both Beltsville, MD, USA.
11. Fathi Osmân, The Children of Adam- An Islamic Perspective on Pluralism, Washington 1996.
12. Islamic law does not make provisions for the case that a daughter would like to share her brother’s responsibility.
13. Muhammad Asad, The Message of the Qur’ân, Gibraltar 1980, commentary to 2:282; Fathi Osman, ibid. p.50; Jeffrey Land, Struggling to Surrender, Beltsville, MD 1995, pp.165-167.
14. Qur’ân translations into English, French, and German typical for these interpretations are, e.g., those by Marmaduke Pickthall, Muhammad Hamidűllâh, Hamza Boubakeur, Denise Masson, O. Pesle/ Tîjânî, Max Henning, Lazarus Goldschmidt, Rudi Paret, and Muhammad Rassôul.
15. For this and similar readings see the Qur’ân translations by Yűsűf ‘Alî, Muhammad Asad, T.B. Irving, al- Hilâlî and Muhsin Khân, Jacques Berque, Adel Khoury, and Ahmad von Denffer.
16. 5 Moses, 22: 20-22.
17. Ahmad ‘Alî al-Imâm, Variant Readings of the Qur'ân: A critical study of their historical and linguistic origins, Herndon, VA, 1998, pp.50-53.
18. Abű Dâwűd no.4405; al-Bukhârî no.8.805 and 8.810.
19. Al- Bukhârî no.8.817.
20. This is vehemently denied by Tâhâ Jâbir al-‘Alwânî in al-Imâm, op. cit., p. xiv.




 
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