By Moataz El Fegiery
The debate on Islam and human rights is old and ongoing. It has received a considerable attention from both Muslim and non-Muslims scholars (Baderin2007:1). Muslim states have ratified numerous international human rights instruments and they have actively taken part in the activities of the international and regional human rights mechanisms (Baderin2008:626). The universal validity of human rights has become increasingly acceptable by Muslim states. However, the scope and content of certain rights have been significantly contested by the majority of these states (Baderin and Ssenyonjo2010, 21). Previous research in this area has shown that the thorny issues for Muslim states in relation to international human rights are women rights, religious freedom, religious minorities and the application of Islamic corporal punishments (Modirzadeh2006:201). Nonetheless, there is no monolithic Islamic position towards international human rights among either Muslim states or Muslim scholars who have demonstrated diverse practices and views towards the compatibility between Islamic law[1] and human rights (Baderin2007; Bielefeldt1995).
This paper offers a comparative analysis of the landmark academic contributions of An-Na’im, Baderin and Mayer who have engaged in a comparative critical overview of the intellectual and legal traditions of human rights in contemporary Muslim states (An-Na’im1992;Baderin2003;Mayer2004). Unlike the pessimistic view which argues that Islam is at odds with human rights, the three scholars have convincingly indicated that the reconciliation between Islamic law and human rights is possible, but it is always conditioned on the way Muslim states and jurists engage in the independent juristic reasoning ‘Ijtihad’ in order to best enforce the seminal Islamic humanistic values in the modern life. It is the argument of this paper that although the theoretical and methodological approach of the interpretation of universal human rights and the scope of reform in Islamic law differ from a scholar to another, the contribution of the three scholars indicates that international human rights in the Muslim world can be legitimized from within the Islamic traditions through an evolutionary and dynamic interpretation of Islamic law’s sources. The first section of the paper engages with the conceptual framework of the issue of human rights between universality and relativism as elaborated by the three scholars and it shows the strengths and weaknesses of the different perspectives. Then, the paper assesses the methodologies which have been suggested by the three scholars in order to realize the compatibility between human rights and Islamic law. The limitations and advantages of these mythologies will be tested on some controversial human rights in the Muslim world such as gender equality, discrimination based on religion and the application of Islamic corporal punishments. Finally, the paper examines the arguments of Mayer and Baderin towards the value of having Islamic human rights instruments.
2. Islam and the Universality of Human Rights
A considerable number of scholars have attempted to explain the universal nature of human rights and the various historical, moral, legal and pragmatic justifications for the universality of human rights (Freeman1994; Donnelly2003; Dembour2010). The modern human right was historically elaborated within certain political and social circumstances in Western societies. As noted by Meyer “the development of the intellectual foundations of human rights was given an impetus by the renaissance in Europe and by the associated growth of rationalist and humanistic thought” (Mayer2004:47).
However, there is a common ground between the historical experience of Islam and the values of Western modernity. As expressed by Mayer “the Islamic heritage offers many philosophical concepts, humanistic values, and moral principles that are well adapted for use in constructing human rights principles” (Mayer2004:52). Donnelly has also elaborated that the concept of human dignity which is the cornerstone of the modern human rights can be found in the Islamic cultural and legal traditions (Donnelly1982:306-307). Although the features of modern human rights do not typically exist in the Islamic tradition, the appreciation of human dignity and the centrality of human welfare represent a determinant common ground between both modern human rights and Islamic culture (Baderin2003:40-44).
Furthermore, it can be argued that the perception of human dignity is evolving within the same culture. Increasing voices inside the Muslims societies have become supportive to modern human rights more than any time before. According to Meyer, this fact has been manifested in the growing role of human rights movement in the Muslim states and even the popular revolt against political suppression under the name of religion in countries like Sudan and Iran (Mayer2004:34-35). Against this background, it is possible to harmonize between Islamic law and human rights. It has been demonstrated by Baderin comparative research that the majority of human rights norms are supported by the ethical message of Qur’an and Prophetic Traditions (Baderin2003:219; Baderin2005:165-185). Kamali has shown as well that human dignity is well- embedded in Islamic scripture (Kamali2002).
Nevertheless, the agreement among scholars that there is a common ground between human rights and Islamic traditions does not mean that Muslims certainly share similar appreciation and interpretation of international human rights law. This possibly depends on the scope of human dignity as understood by Muslims today and to what extent they believe that the Islamic ethics are better realized by the adherence to the universal human rights norms. To elaborate on this point, in the contemporary Muslim world, we can illustrate four common positions towards the universality of human rights. The first position is the strong relativism whose supporters engage in an adversarial relationship with international human rights as alien Western culture. This trend usually argues that the real human rights are exclusively manifested in Islam. As noted by Mayer, the writings of Al Mawdudi and Tabandeh are blatant examples of this trend (Mayer2004:28-30). The second position is what was considered by Mayer ‘the vague and qualified universalism’ under which international human rights are acknowledged by Muslim states but heavily limited by conservative interpretation of Islamic law (Mayer2004:198).
The third position is what is defined by Donnelly as the relative universality whereby “[actors] recognize both the universality of human rights and their particularity and thus accept a certain limited relativity, especially with respect to forms of implementation” (Donnelly2003:98). As we will see in the following part Baderin’s model of inclusive universalism could be considered a manifestation of this relative universal position. While he has progressively harmonized between international human rights and Islamic legal traditions in many aspects, he has tolerated with different interpretation and implementation of some human rights clauses as long as they are responsive to cultural context in the Muslim world (Baderin2003:231-235).
The fourth position is the strong universal position which according to Baderin considers that “human rights are (or must be the same) every where both in substance and application” (Baderin2003:26). Even some scholars who advocate international human rights norms are skeptical about the universal position if it implies an imposition of human rights norms over different cultural traditions without engaging in an intercultural dialogue. For instance, Sachedina considered that the foundationless universal human rights cannot be rooted in Muslims societies without having a strong moral justification emanates from the Islamic indigenous culture itself (Sachedina2009:7-9). An-Na’im as will see in this section believes as well in a moderate version of universality whereby human rights can be legitimized in the world’s cultures without dealing with it as a given set of values which are applied mechanically in all societies(An-Na’im2000:95-101).
As a persistent advocate of universal human rights, Mayer entirely opposes Islamic schemes which undermine the universal human rights norms. Unlike An Nai’m and Baderin, she has not engaged in details with the cultural justifications of human rights in different societies as much as she has been keen to deconstruct a sample of political and intellectual human rights discourses in the Muslim world and unveil their inconsistent and apologetic arguments. These discourses represented strong relativist trend which was manifested in the writing of Maududi and Tabandeh and they also represented a kind of rhetorical universalism which are manifested in the Islamic human rights instruments such as the Cairo Declaration of Human Rights in Islam (hereinafter the Cairo Declaration) (Mayer2004:28-33). She has also shown how the relativist discourse has been exploited by authoritarian regimes in many Muslim states in order to achieve political gains (Mayer2004:36-46).
Mayer’s defense of the universal human rights norms in the Muslim world is based on the argument that the popular support of these norms has notably grown from within the Muslim states (Mayer2004:199-201). However, she argues that Muslim relativists stick to irrational and conservative traditions in Islamic heritage which shape their ambivalent religious rights discourse. According to her, those relativists denounce the rationalist and humanistic features which can be found in the Islamic pre-modern legal and theological traditions, and they also deny the evolving understanding of Islamic law which has been manifested in several writings of liberal and moderate Muslims who believe that Islam is not in conflict with international human rights (Mayer2004:51-55).
To elaborate on An-Na’im position towards the universality debate, he understands the cross-cultural dialogue as a mean to legitimate modern human rights in different cultural traditions through a process of “overlapping consensus” by which different cultures can agree on a universal conception of human rights regardless of the different cultural justification of this agreement (An-Na’im1999:319). He stresses the fact that the process of internal cultural legitimization in the modern Muslim nation state should be done through an inclusive deliberation involving all individuals regardless their sex or religion as those groups are likely affected by the result (An-Na’im1999:323). The universality of Human rights which has been advocated by An-Na’im is based on a ‘trans-cultural justification’ whereby human rights are enjoyed equally by all human beings according to the principle of reciprocity under which each human being treat other human beings in the same way he/she want to be treated regardless of human differences based on language, religion, couloirs, sex and race (An-Na’im1992:162-164). However, he continues, historically there were some limitations on the practice of this principle in most of the cultural traditions whereby different basis of discrimination deprived certain humans inside or outside the same cultural tradition from the enjoyment of the rights provided for others (An-Na’im1992:165). In order to realize the universal application of the principle of reciprocity, An-Na’im suggests that each culture should pursue a reform process to repudiate the historical practices which discord with the emerging universal human rights (An-Na’im1992:165).
On the same track of cultural dialogue and mutual respect, Baderin argues in favor of an inclusive theory of universalism as a result of “a multi-cultural or cross cultural approach to the interpretation and application of human rights principles” (Baderin2003:28-29). While he asserts that the universality of human rights is recognized worldwide, the tensions still arise from the diverse interpretation and implementation of human rights(Baderin2003:23-24). He argues that there is no global homogeneous legal understanding of the substance of human rights not only between western and non western states but even within the western states (Baderin2003:28). This leads him to the conclusion that international human rights scheme should consider contextual cultural values of Muslims, but at the same time he invites the Muslim communities to demonstrate an evolutionary perception of their legal traditions (Baderin2003:6).
An-Na’im and Baderin appreciated the role of inter-cultural dialogue and acknowledged the socio-cultural difficulties to reach a global consensus on the substance of human rights. The model proposed by An-Na’im aims at legitimizing the existing international human rights scheme in the traditional Islamic culture by transforming the dominant hermeneutics of the symbols and meanings of this culture to be more receptive to this scheme. However, he fails to show how international human rights law can also learn from the seminal values of Islamic civilization. Foster noted in that regard that An-Na’im theory might be deemed as bias and “western centric” as long as it measures the development of Islamic law based on the standards of international human rights norms (Foster 2008:396-397). To overcome this defect, Foster suggests a model of reverse moderate relativism which “takes a given local law as the neutral standard, and exposes ways in which international law has drawn closer that standard” (Foster 2008:379).
On the other hand Baderin attempts to realize a process of cohabitation between various cultural interpretations of the recognized international human rights without imposing an exclusive interpretation of the scope and limits of these rights. Baderin’s proposal can substantially improve the understating and implementation of universal human rights in Muslim states in a very progressive way in comparison to strong relativists or rhetorical Universalists. However, it is obvious that Baderin’s elaboration of the concept of inclusive universalism suggests a certain level of tolerance with some differences in the application of rights on the grounds of cultural context. For those who believe that Muslims deserve the same level of rights enjoyed by other people in the world, the model of inclusive universalism might be accepted as a transitional tactic to encourage Muslim states to be more interactive and cooperative with international human rights system. In this direction, Berms noted that the feasibility of a model of inclusive universalism require an open atmosphere in Muslim states to find out innovative interpretation of Islamic law which gradually narrow the gap between Islam and human rights (Brems2004:15-16).
3. The Scope of Islamic Law Reform
This section explores the different legal mythologies which can solve or reduce the tension between international human rights and Islamic law. The interplay between reason and revelation throughout the Islamic theological and legal traditions was illustrated by Mayer who argued that contemporary Muslims can revisit the rationalistic traditions of their history in order to better accommodate modern human rights (Mayer2004:58). This position that has been underlined by Mayer has been embodied in the legal theories of a considerable number of modern Muslim scholars who challenged the traditional literal interpretation of Islamic law’s sources (Hallaq2007:231-253). Both Baderin and An-Na’im have advocated the evolutionary, rationalistic and contextual interpretation of Islamic law’s sources. However, and as will see in the following part, some substantive differences are observed in their legal methods and conclusions.
According to Baderin, the compatibility between Islamic law and international human rights law requires Muslims to embrace an evolutionary perspective towards Islamic law in order accommodate accelerating social changes and evolving human life and it also entails human rights bodies to abandon exclusionist interpretation of human rights which ignore the Islamic values of Muslim societies (Baderin2003:46-47). It is a balanced position whereby the task of accommodation does not only bring responsibilities over Muslim states but it is rather a mutual process shared by both Islamic law and international human rights community. According to Baderin, rules of Islamic law which concern human interactions might change according to time and changing conditions of Muslim societies “When the justifications attaching to certain legal provisions change then the legal rule may also change” (Baderin2003:46). Baderin is critical to Muslims’ blind conformism to the work of classical Muslim jurists which was developed in entirely different social and political milieus. However, Baderin has noted that the principle of eclectic choice ‘takhayyur’ would be a viable tool to choose relevant opinions from one of the principal schools of Islamic law (Baderin2003:39). Moreover, Baderin embraces the principle of public interest ‘Maslahah’ as a principle of Islamic law in order to realize international human rights in Muslim states. The principle as developed by classical Muslim jurists aims at “deriving legal benefits and averting hardship on the human person” (Baderin2003:44).
A new inclusive interpretation of universal human rights is also needed according to Baderin to harmonize between Islamic law and human rights which can be realized through the application of the margin of appreciation’s doctrine which would give some space for Muslim states in applying international human rights treaties while being committed to the provisions of Islamic law (Baderin2003:6). Baderin notes that this mechanism will provide the international human rights system with “the flexibility needed to avoid confrontation between Islamic law and international human rights law” (Baderin2003:235). It is obvious throughout his work that Baderin acknowledges that there are some tensions which might not be solved between Islamic law and human rights law even after applying his methodology. However, Baderin views that this tension is not substantial but it is a result of upholding different interpretation of some provisions of international human rights law (Baderin2003:234).
Other scholars found significant limitations in Baderin’s methodology. For instance, Mayer believes that the method developed by Baderin provides Muslim states with excuses to escape from their human rights obligations, and it will also undermine the adoption of universal rights in the Islamic world under the titles of accommodation and reconciliation (Mayer2005:302-306). Shah also referred to the negative elements of the doctrine of margin of appreciation which provide states with opportunity to misuse their discretionary powers and unjustifiably limit human rights (Shah2008:471). This concern has been even expressed by Baderin when explained the reluctance of the UN’s Human Rights Committee to adopt this doctrine (Baderin2003:231-232). According to Shah “the statutory laws of many Muslim states do not prevent polygamy, which can be condoned under the doctrine of marginal appreciation, making it difficult to achieve gender equality” (Shah2008:472). This concern should be taken seriously because if the international human rights bodies become tolerant with some practices in the Muslims states which falls short of the widely common interpretation of international human rights treaties, this might undermine the attempts of some Muslim scholars and activists who try to propagate drastic reform of Islamic law in order to realize substantial rights in the Muslim world such as gender equality, the right to convert from Islam without facing serious civil consequences, the abolition of corporal Islamic criminal penalties, or the full equality between Muslim and non Muslims.
The defects of the principle of Maslahah and takhayyur have been also underlined by numerous scholars. An-Na’im argued that the principle of Maslahah was a minor and marginalized source of Islamic law (An-Na’im1992:45-51). He noted that neither Maslahah nor takhayyur are able to present new interpretation of the clear and definite verses of Qur’an and Traditions which conflict with some fundamental human rights such as gender equality (An-Na’im1992:51). It can actually be concluded from the comparative examination of international human rights and Islamic law conducted by Baderin, that the principle of Maslahah has not consistently been able to introduce new interpretation of some rules originate from clear and definite text. Although some problematic issues have been solved such as the abolition of slavery, the equality between men and women in respect to testimonies in courts, the abolition of the lower status of non-Muslims who live in the Muslim states, other issues have not been solved such as the abolition of polygamy, gender equality in inheritance, the marriage of Muslim women from non Muslim men, the civil consequences of apostasy. This conclusion reveals the limitations of the methodology used by Baderin.
Furthermore, An-Na’im asserted that a reform method such as takhayyur “provide nothing more than temporary and insufficient relief” (An-Na’im1992:46) as it maintains the traditional methods and principles of Islamic law without a drastic reform. Therefore, his argument follows that “the temporary and insufficient relief that is introduced through these devices is subject to loss when there is a forceful reassertion of Shari’a” (An-Na’im1992:46). Moreover, the Pakistani Muslim scholar Fazulr Rahman observed that the principle of Maslahah is characterized by subjectivity and relativism and it contains dangers “without evolving a correct methodology of both its assessment and its application” (Rahman1980:223). As noted by Shah, the subjectivity of Maslahah was also underlined by Rashid Rida who intensively used this principle is the development of his modern Islamic legal theory (Shah2008:471). Baderin was able to realize a significant common ground between Islamic law and international human rights law. His approach is likely to be helpful in improving the current conservative application of Islamic law in many Muslim states. However, the limitations of his approach which were elaborated above might be overcome by the drastic reform proposed by An-Na’im.
Moving to the mythology of An-Na’im, he argues that re-opening the gate of Ijtihad has been extremely necessary to accommodate modern human rights but it will not bring significant results if it is carried out within the traditional methods and principles of Islamic law (An-Na’im1992:27). According to An Nai’m, Muslims should engage in a contextual analysis for the Qur’anic verses and Traditions to maintain their accommodation to the accelerating social, political and economic variables. He argued that historically and even before the establishment of the body of classical Islamic jurisprudence, the clear and definite texts of Quran and Sunna did not prevent Muslims to practice juristic reasoning. For instance, Umar, the second Caliphate of Muslims suspended the application of two rules derived from definite and clear texts of Qur’an, when he had believed that this suspension will better serve the interests of Muslim community (An-Na’im1992:28).
An-Na’im has made a case for the role of human agency in understating the divine text as supported by the Qur’an in verse 29:49 in which “the Qur’an describes itself as clear signs or meaning in the hearts and minds of those [human beings] who have been granted knowledge” (An-Na’im1992:48). This meaning had been also supported by Ali, the fourth rightly-guided Caliph of Muslims, who had said that “the Qur’an doesn’t speak but that men speak for the Qur’an” (Quoted by An-Na’im1992:48). As it has been mentioned before the main characteristic of An Nai’m’s philosophy of Islamic law reform is that Ijtihad will restrict the reform process if it is applied according to the traditional methods of Islamic jurisprudence as he argues that most of the controversial Islamic rules pertaining to human right, international law, criminal law and constitutional law are derived from unambiguous and definite texts of Qur’an and Sunna. Consequently, An-Na’im insisted on developing entirely new methods of Ijtihad that are not restricted by the clear and definite texts (An-Na’im1992:49-50).
An-Na’im believes that a decisive criteria to examine the authentic Islamicity of any norm or rule is its consistency with the total message of Islam. However, some rules in Qur’an and Sunna are not consistent with each other. To solve this problem according to An-Na’im, the founding jurists developed what so called ‘Naskh’ abrogation of specific texts in Qur’an and Sunna to develop a coherent and consistent system of Shari’a (An-Na’im1992:49). An-Na’im inspired the evolutionary approach of the Sudanese reformer Mahoumd Mohamed Taha who differentiated between the Qur’an and Sunna in Mecca and Medina. According to Taha, the message in Mecca was universal, considered the full equality of human beings and promoted the individual free choice but, the message in Media came up with a set of rules to regulate the emerging Muslim community in Al Medina. These rules of Al-Medina have been analyzed by Taha and An-Na’im according to the political, cultural and social circumstances of the Muslims at that time. All rules which concern women, non-Muslims and penal law were developed at this stage. According to this methodology, contemporary Muslims can appeal now to the Islamic message of Mecca to develop the Islamic public law and make it consistent with the current circumstances (An-Na’im1992:52-53). This method of abrogation harmonizes between Islamic law and the gender legal equality and the equality between Muslim and non-Muslims. This outcome has not been achieved by the methodological framework proposed by Baderin.
To elaborate on the previous conclusion, while An-Na’im and Mayer advocate the concept of gender equality as illustrated in international human rights law and particularly the Convention on the Elimination of All Forms of Discrimination Against Women (An-Na’im1992:175-177; Mayer2004:99-100), Baderin argues that equality in Islamic law is realized through the substantive justice and complementarity of roles between men and women (Baderin2003:62-63). According to Baderin, inheritance and the restrictive use of polygamy serve the purpose of justice in the socio-legal reality of Muslim communities which should be appreciated by international human rights law (Baderin2003:60-63). However, Baderin and according to the principle of public interest and unlike the position of the classical jurists, has advocated the equal weight of testimony between man and women before the courts as the justification behind the unequal position which laid out in the Qur’an is not valid anymore within the socio-cultural developments in Muslim societies (Baderin2003:102). Concerning the gender equality in relation to marriage and divorce, the position of Baderin, An-Na’im and Meyer are similar in their position to provide women with equal powers like men to dissolve the marriage and oblige spouses to be present before a court in order to dissolve the marriage instead of giving a unilateral authority for the men to repudiate their wives without prior arrangements (Baderin2003:151). However, Baderin demonstrates a vague position concerning the Muslim women right to marry from non-Muslims. Although he recognized that in modern life law provides protection for the individual beliefs and religions, he seems supportive to the classical opinion concerning inter-faith marriage (Baderin2003:144-146). He would have actually reached a different conclusion based on a historical and contextual interpretation of relevant Islamic sources as advocated by An-Na’im and Mayer.
On the equality between Muslims and non-Muslims, Baderin advocate the transformation of the traditional and historical concept of Dhimmis into the modern concept of citizenship. This position has been recently embraced by a considerable number of Muslim scholars (Baderin2003:166). The same can be said on the position towards the punishment on apostasy which was challenged by Baderin in light of the opinions of traditional and modern scholars (Baderin2003:123-125). However, the position of Baderin was vague in relation to other aspects of apostasy. The mainstream of the traditional jurisprudence deprived the apostate of many rights such as inheritance, marriage and custody of children. These issues were not discussed by Baderin, while they have been given a considerable attention by An-Na’im who has asserted that his evolutionary reading of Qur’an and Sunna has been able to solve this tension between the right to change the religion and the prohibition of discrimination based on this individual religious decision (An-Na’im1992:109).
On the application of Islamic criminal punishments, both Baderin and An-Na’im adopt a relatively similar position which argues for a very restrictive procedural framework for the application of these punishments. A very few Muslim states currently apply the Islamic criminal penalties. However, and as noted by An-Na’im there is a growing demand by Islamic political opposition in many Muslims societies to enforce these penalties (An-Na’im1993:109). There is no doubt that these corporal penalties are very harsh and inflict persons with severe bodily pain and harm and from the perspective of international human rights law and modern penology, they have been considered cruel punishments (Baderin2003:77-78). According to Baderin and An- Na’im, Islamic law prescribes very strict procedural and evidential conditions in order to reduce or even avoid the application of the penalties. However, both of them asserted that the total abolition of these penalties cannot be justified under Islamic law (Baderin2003:84). To solve the tension with human rights law, Baderin has noted that the hard procedural and evidential requirements would enable Muslims to avert the corporal penalties and apply other forms of punishment (Baderin2003:84-85).
On the other hand, An-Na’im followed more restrictive approach as he proposed that given the religious justification of criminal punishment in Islamic law which now conflicts with the modern penological principles, there should be a wide consensus in the society concerning the application of Islamic criminal penalties. This consensus must not exclude non-Muslims and secular Muslims. He also proposes that the application of these penalties is conditioned on a certain cultural and socio-economic requirements that should be provided for the society and the imposition of these penalties must be strongly reduced to very minimum cases (An-Na’im1992:134-136).
It is noted here that both of Baderin and An-Na’im considered that the divine weight of the prescription of these punishments do not permit any human interpretation that can abolish them. Although both of them strictly restricted the possibility of their application, they would have been adhered to a more rational and modern interpretation of Qur’an in a way that can lead to a total abolishment of these forms of corporal penalties which are not relevant to human rights and the modern penological philosophy. This can be done without violating the divine principle of justice and accountability. Mayer was critical to this approach and considered it inconsistent with the tradition of reason and evolution proposed by An-Na’im (Mayer1993:37-59).
4. Islamic Regional Human Rights Instrument: Does it promote the Harmonistic Perspective?
Mayer and Baderin have given considerable attention to the Islamic human rights instruments which appeared over the previous three decades. The Cairo Declaration as the main human rights document released by the Organization of Islamic Conference (OIC) has been received by obvious skepticism from human rights advocates even in the Muslim world. The vague and repetitive reference to Islamic law in the Declaration has been a blatant indication that this instrument offers a different scheme of rights which is at odds with the international scheme (Rishmawi2005:367). In her work, Mayer has been very critical to the Islamic instruments of human rights and considered them a political and apologetic response from the Muslims states to the international human rights norms (Mayer200432-33). On the other hand, Baderin considered the Declaration as a step forward in order to promote human rights in Muslim societies. He believes that the evolutionary and liberal interpretation of Islamic law will help in defining the scope and limits of the rights enshrined in the Declaration (Baderin2003:226-229).
According to Baderin, the current international and regional human rights system does not provide for clear parameters for the scope and limits of Islamic law in relation to international human rights law (Baderin2003:228). Muslim states adhere to different interpretations and arguments in this regard according to their cultural, political and social peculiarities. The analysis of the content of Muslim states’ reports to the UN’s treaties bodies supports this proposition (Baderin2008:625-663). Baderin observes that the absence of any international or regional human rights body which is entitled to interpret human rights within the scope of Islamic law has made Muslim states in many occasions invoke vague legal arguments to undermine the scope of international human rights law in the context of Islamic law (Baderin2003:228). According to Baderin, a binding regional treaty or judicial organ is a viable proposal in the Muslim world in order to develop binding and unified Islamic legal norms in respect to human rights and to enhance the understanding of UN’s human rights system of the application of Islamic law (Baderin2003:230).
Baderin’s proposal is believed to be controversial particularly for those who are skeptic from imposing broad and ambiguous Islamic limitations on universal human rights such as Meyer who insists that the Cairo Declaration is a manifestation of rhetorical and vague universalism (Mayer2004:198). Although it is a well-meaning proposal to promote an evolutionary interpretation of Islamic law in respect to human rights which come from within the Muslim world, it can be noted that there are no guarantees that the vague language already exist in Islamic human rights instruments, such as the Cairo Declaration will be interpreted in a progressive way. To reduce this risk, Baderin proposes a new regional binding to be adopted by the OIC and the establishment of a judicial organ or committee which enjoys full independence from governments (Baderin2003:229-230).
However, it might be also argued that an Islamic regional system as proposed by Baderin could buttress the attitudes of cultural relativism in Muslim world and isolate Muslims from the global human rights movement. It might also create negative precedents on Islamic law and human rights which would be possibly imitated widely in the Muslim states. Therefore, Muslims engagement with the international human rights organs might be more efficient to gradually reconcile between international human rights and Islamic law. These international organs should be more sensitive to the religious and cultural complications in the Muslim societies and encourage Muslim states to learn lessons from other Muslim societies which step forward in applying international norms in some sensitive issues such as gender equality or religious freedom. This dialogical and gradual approach has not been emphasized by Mayer who has been eager to promote universal rights in the Muslim states without paying much attention to the reality of cultural and religious attitudes in many Muslim societies.
5. Conclusion
Despite the different conceptual and methodological proposition towards the scope and limits of universal human rights and Islamic law, the academic contribution of An-Na’im, Baderin and Mayer promote the argument that Islamic law is not inherently in conflict with human rights. The methodology proposed by Baderin, provides for a very realistic and gradual approach for the realization of international human rights in the Muslim states from within the classical methods and principles of Islamic legal theory. However, it is characterized by significant limitations which are likely to obstruct certain interpretation of universal human rights as being widely accepted in the world and among an increasing number of Muslims as well. On the other hand, a drastic reform for the classical Islamic legal theory has been advocated by An-Na’im and Mayer as the only way to realize universal human rights in the Muslims states and particularly the right to equality before the law and religious freedom. This approach is more responsive to the aspirations of Muslim human rights defenders and the widely accepted interpretation of universal human rights. However, it is surrounded by serious challenges to gain the official as well as the wide popular support inside the Muslim states.
The work of three scholars, indicate the diverse nature of Islamic law and theology which offers multiple alternatives and solution to contemporary Muslim states and jurists in order to narrow the gap between international human rights law and Islamic legal traditions. However, this is highly dependent on the political will of Muslim states as well as on the margin of academic freedom which is allowed to Muslim scholars in Muslim states to develop the methods and substance of Islamic law without being intimidated or restricted by dogmatic official religious institutions or jurists who uphold rigid and monolithic views of Islamic law.
Finally, the literature which has been presented in this paper has struggled to show how Islamic legal and theological traditions are compatible or non combatable with human rights but it has shown little attention to how human rights values are socially and culturally constructed in reality in contemporary Muslim societies. Throughout her work, Mayer tried to show the cultural and social transformation which have occurred in the Muslim world by drawing the fact that international human rights have become more appealing among Muslims more than any time before. Actually, what is also needed as noted before by Preis is the academic scholarship which assesses human rights as cultural practices in the Muslim societies from sociological and anthropological perspectives (Preis1996:286-315) in order to understand the relationship between the different conceptions of human rights and the interaction of human agencies inside the Muslim societies in a globalized world order.
[1]For the purpose of this paper, Islamic law is defined as the methods and techniques used by jurists to derive rules from both Quran and Prophetic Sayings and Traditions (Baderin2009:186-190).
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