, Research Paper
Are Islamic human rights laws compatible with Western human rights laws? Does the Qur’an, as the most authoritative text in Islamic law, have the potential to be consistent with Western notions of human rights? In Islam, the Qur’an is the supreme authority in every religious matter including law, yet only a small percentage of Islamic law is derived exclusively from the Qur’an. The commands in the Qur’an are both general and few. Therefore, a great importance is placed upon hadiths, reports of the Prophet’s teachings, to explain the Qur’anic guidelines. In fact, the overwhelming majority of Islamic law is derived from hadiths, consensus of companions and classical scholars, and analogical or independent reasoning of scholars. These tools of Islamic law specify the means to the good and just society that the Qur’an calls for. Scholars, such as Anne Mayer or Nikki Keddie, who have written on this topic, evaluate the whole breadth of Islamic law and seek to prove that Islamic law has been tainted over the years and that the “true spirit” of Islam is completely in accordance with contemporary International human rights laws. If this is in fact the case, then a study of the Qur’anic verses themselves should reveal as much. Thus, this paper will only focus on the laws and principles contained explicitly in the Qur’an and examine some of the points of contention and convergence between Qur’anic laws and International laws to see if there is any hope for reconciliation. Is it possible that the Qur’an, in spirit, is completely consistent with contemporary International human rights, but centuries of legal tradition has “corrupted” its message? The answer to this question is the task of this paper.Individual human beings possess inherent dignity and worth. Rather, I should say, this is a belief common to both Eastern and Western moral philosophy. However, the means by which this worth is recognized and measured is quite different. In the West, human rights are regarded as self-evident truths that are purely recognizable by reason and the only task lies in discerning those rights. In 1948, the United Nations adopted the Universal Declaration of Human Rights. It is arguably the highest standard of human rights known in the West. Therefore, hence forth, the UDHR will be used as a symbol of Western International Human Rights. The Universal Declaration of Human Rights claims that it has identified the rights, discernible by reason, that are essential to all human beings. On the other hand, the traditional Muslim viewpoint is that God provides human rights through revelation and prophetic teachings. These rights are codified in Islamic law. Yet, as alluded to earlier, there are significant conflicts between the UDHR and rights derived from Islamic law. Articles two, four and five from the UDHR present the main conflict between the two systems of law. According to Article two “everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”Certainly one of the main sources of contention between International human rights and Qur’anic human rights is sexual and religious discrimination. The Qur’an consistently distinguishes between Muslims and non-Muslims as well as men and women. Each group is treated differently, afforded different rights, and subject to specific prohibitions. This is in direct contradiction to the first article of the UDHR. Which verses in the Qur’an sanction violation of this article and can there be any reconciliation?Religious discrimination is asserted in verses that deal with marriage practices and taxing. The believers are told to “wed not idolatresses till they believe and give not your daughters in marriage to idolaters till they believe” (2:221). Therefore, it can be reasonably concluded that idolaters are legally excluded from the wedding circle of Muslims. So in a case where a Muslim desired marriage with an idolater, laws derived on the basis of this verse could prohibit it. A reformist, who desires to create harmony between international human rights and Islamic human rights, could interpret this verse in a manner that suggests the social circumstances that necessitated this ruling no longer exist. However, the verse does not give a specific reason why Muslims cannot marry idolaters. It simply states that “a believing slave is better to marry then an idolater” (Qur’an 2:221). Therefore, due to the explicit religious discrimination of this verse an attempt to nullify this law so that it conforms to International human rights norms would require the use of tools outside of the text (i.e. historical studies, analogical reasoning, etc.).The Qur’an levied a poll tax against the non-Muslims living under the Muslim government. The believers are commanded to “fight against such of those who have been given the Scripture as believe not in Allah nor the Last Day, and forbid not that which Allah has forbidden by His Messenger, and follow not the religion of truth, until they pay the tribute readily, being brought low.” Clearly in this case a minority religious community is charged a tax so that they are “brought low” and recognize their inferior status in society. In fact, this was the practice of Islamic Empires for centuries. Non-Muslim Jews and Christians were allowed to practice their faith, but they were not allowed to propagate their religion. This is blatant religious discrimination. However, discrimination against religious minorities began to dissipate during the twentieth century. The poll tax, for example, is no longer levied against Christians and Jews and they are slowly gaining a position on par with Muslims despite intermarriage laws (Mayer, 128). So here there is a visible shift away from a Qur’anic mandate (i.e. tax on non-Muslims) due to a changed political climate. This is evidence of the potential for further reconciliation. In addition to religious discrimination, the Qur’an also discriminates on grounds of sex. The Qur’an provides certain rights for women, but they are notably different from those given to men. The implication of these rulings is that women are secondary to men. Regarding inheritance laws the Qur’an states, “unto the male is the equivalent of the share of two females.” Also, for business contracts it is necessary to reduce the agreement to writing and have it witnessed by two men. If it is not possible to get two male witnesses, then one male and two women are required as substitutes. Why is the Qur’an so concerned with the sex of the inheritors or the witnesses of a business contract? Most traditional commentators will insist that the women are not inferior to men. However, men and women are endowed with different strengths and weaknesses in accordance with their different roles in society. The woman’s most important role is as a mother and as such she does not require the extensive education of a man (Rouner, 90). Therefore, her assumed inexperience in business dealings is why two women are substituted for one man. Also, the man is responsible for supporting the family so he is allotted more money from the inheritance than the woman. The woman, as the benefactor of her husband’s support does not require the same amount as her male co-inheritor. Unfortunately, this view does not take into consideration single men and women who neither support families nor receive support from families. How, then, can this verse be brought into alignment with the UDHR? Again, this is a situation where social and historical context would have to be summoned to nullify the Qur’anic law. If the educational structure of society is such that women receive an equal education to men, then they should be just as capable of witnessing a business contract as men. If both the man and the woman of the house work to support the family, then perhaps they both require an equal share of the inheritance. If however the social structure has not changed dramatically from the time of revelation, as is the case in a number of Muslim countries, then a reform of these laws becomes more difficult because it requires complete social transformation. Aside from discrimination, there is the issue of slavery. Article four of the UDHR declares “no one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.” Slavery is no longer legal in Muslim countries due to the strong anti-slavery campaign of the nineteenth century. However, partly because the Qur’an allows for the practice of slavery, Muslim countries fought hard to maintain their right to own slaves. Usually, when the Qur’an speaks of slaves it speaks of freeing them. The emancipation of a slave is viewed as a meritorious act. For example, the Qur’an teaches that “righteousness is to set slaves free.” At the same time, it does not condemn the practice of slavery altogether. The Qur’an urges the believers to “show kindness unto (the slaves) whom your right hands possess” (4:36). Therefore, slavery is allowable according to Qur’anic law, yet Islamic law has already conformed to International law and verses dealing with slaves are generally considered no longer applicable to modern society (Mayer, 79). Still this episode does not reveal much light on the issue of reconciliation because this reconciliation is perhaps only possible because slavery is allowed and not commanded.
The Qur’an does have verses concerning the punishment of certain criminals that are deemed violations of article five of the UDHR, which states that “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. Thieves have their hand cut off as punishment for their crime . Adulterers are subjected to a public lashing according to the Qur’anic law . The verse about adultery even goes on to add “and let not pity for the twain withhold you from obedience to God.” This implies that the Qur’an recognizes that the punishment is harsh, but it deems this harshness necessary to combat the stated offenses. How would one go about re-interpreting these verses that are explicit, yet in direct contradiction to the UDHR? These verses do not seem to leave much room for the typical contextual argument. Now, where do the Qur’an and the UDHR directly coincide? This is a tricky issue. The points of convergence between the Qur’anic verses and the UDHR articles is often conditional. Therefore, it can only be considered a potential point of convergence. This will be demonstrated later. The two key articles from the UDHR for this discussion are as follows:Article 1: All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.Article 18: Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.These articles are concerned with two things: freedom of religion, and the primordial value of each human being. A widely quoted verse in support of freedom of religion states “there is no compulsion in religion.” Now as previously mentioned this verse is only potentially in accordance with the UDHR. That is because it is vague enough that it can be interpreted in a manner making it irrelevant to a discourse about equal rights for religious minorities. In other words, the right not to be forced into a religion does not mean that the religion of one’s choice will be treated on par with all other religions (Ali, 473). An example of this is in the case of the non-Muslims who were allowed to remain under the control of the Muslim Empire as long as they paid a tribute. Still, the potential does exist for this verse to champion the cause of freedom of religion. The primordial value of human life can be drawn from the following two verses:”O mankind! Lo! We have created you male and female and have made you nations and tribes that you may know one another. Lo! The noblest of you, in the sight of Allah, is the best in conduct. Lo! Allah is Knower, Aware.” “And slay not the life which Allah has forbidden save with right.” From these verses it can be concluded that not only is there an inherent value attached to life, but also that each nation, tribe, male, and female are equal in the sight of God and the noblest person is the one best in conduct. This is easily in perfect harmony with Article one. In fact, it nearly sounds like a paraphrase. However the condition “save with right” is a potential for contention, because what constitutes the right to slay a life? Nonetheless, it is safe to acknowledge there is an obvious overlapping of values on the issue of human worth. Generally, Muslims recognize the importance of universal human rights laws, yet they are aware of and opposed to the scope of international human rights, and they see the rights as excessive. Therefore, in the Universal Islamic Declaration of Human Rights limits are placed upon the rights of the UDHR to “cut them to their proper size”(Mayer, 22). Representatives from Egypt, Saudi Arabia, Pakistan, and others prepared the UIDHR, drafted in 1981. It was designed as a response to the UDHR and it demonstrates an effort on the part of Muslims to integrate Islamic law with International law. However, the limits placed by the UIDHR are vague and in reality only bear a superficial resemblance to the UDHR. Many of the articles are qualified by the phrase “according to the Law”, in reference to Islamic law. For example, the UIDHR declares that “Man is born free. No inroads shall be made on his right to liberty except under the authority and in due process of the Law.” Compare this to the UDHR declaration that “everyone has the right to life, liberty and security of person.” The clause in the UIDHR, “except under the authority and in due process of the Law,” indicates that Islamic Law, which is frequently in contradiction to the UDHR, will be used to determine the extent to which an individual has right to liberty. The UDHR, on the other hand, has no such qualifications on individual pursuit of liberty. So far, the possibility of re-interpreting Qur’anic laws so that they conform to the UDHR has been explored. Also, the UIDHR was discussed in order to get a feel for past Muslim attempts to equal the standards of the UDHR. Both the explicit nature of certain Qur’anic verses and the ambiguous language of the UIDHR reveal some of the complexities involved in resolving this dilemma of reconciliation. Muslim reformists are pushing for radical transformations of the Muslim society while Muslim traditionalist are calling for strict adherence to Qur’an and hadith as a means to reclaim the “golden years” of centuries past. Before the nineteenth and twentieth centuries, the Muslim world was no more in violation of the present UDHR articles than any other country. The main difference, however, between Muslims and non-Muslims is the Muslim resistance to change, and especially the current Islamic desire to return to the strict Islamic ways. The secularization of the West partially facilitated its embrace of change. However, a similar occurrence is unlikely at best in the Muslim world, because the religion is viewed as a comprehensive way of life. So is compatibility possible? The answer to this question lies in the answer to another question: why have the Muslims been so resistant to change in the modern era? Certainly, the Western colonization of the Muslim world has something to do with it. Muslims who adopt any values from the West are viewed as sell-outs to the enemy. Also, the social life of the West is shocking to many strict Muslims who are not accustomed to the relatively low standards of modest dress, the abuses caused by freedom of speech (i.e. pornography, vulgarity, etc.), and the free intermingling of the sexes. These factors make Muslims hesitant to embrace anything western, which may in turn result in a complete transformation to the West. The Qur’anic verses that were cited in this study revealed that for reconciliation to occur, clever re-interpretations must take place. Simultaneously, these re-interpretations will have to obtain the support of the Muslim community at large. Some of the more radical reformers, including a small Sudanese group, have suggested that Qur’anic laws were intended only for the Prophet’s time and the only verses that apply today are those that define the religious creed. Such drastic views are unlikely to gain loyalty from the majority of Muslims and therefore will be unsuccessful in transforming Islamic law (Rouner, 93). Ironically, such drastic measures are almost necessary to reconcile certain verses, such as the verse about lashing adulterers, with International human rights. The points of convergence show that commonality does exist between the Qur’an and the UDHR. Still it may be overly optimistic to expect one hundred percent reconciliation between the two unless both sides compromise their position. The supporters of the UDHR have so far made no discussions about adjusting their position and there is no reason to believe they will in the future. The West is in an advantageous position over the Muslim countries in that it has a firm grasp on the economic and political power of the world, and with that position comes the luxury to define and enforce laws. Syed Anwer Ali titles his book of tafsir, Qur’an: The Fundamental Law of Human Life: Being a commentary of the Holy Qur’an keeping in view the Philosophical thought, Scientific research, Political, Economic, and Social developments in the human society down the ages. This title illustrates the complexity by which any given society defines terms such as right, wrong, just, and good. So if Islamic law and International human rights are to be reconciled, then it is a transformation that must happen naturally and internally.