28.02.2003

Human Rights and Islam

Murad Wilfried Hofmann, a Muslim and former German ambassador to Algeria and Morocco, does not think Islam is incompatible with modern concepts of human rights.

Western civilization and the Islamic world - if there is such a thing - continue to confront each other, and many are the 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 in general, and the rights of women in particular. It is no exaggeration to state that the future of Islam in the Occident to a large extent depends on the answers given in these three fields.

Human Rights - a Christian-Occidental Invention

When addressing the human rights complex, Muslinis 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.

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, as limiting State intervention. At that time, during the seventeenth and eighteenth centuries, no one had yet thought of human rights in offensive terms, as freedoms to obtain something as demanding State intervention. These latter rights today play a much larger role.

The development of Human Rights, with capital letters, progressed through stages, from the British Magna Carta libertatum (1215), Habeas Corpus Act (1679), and Bill of Rights (1689) via the American Declaration of Independence (1776) - 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 19th 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 rather in spite of it. Nor does it imply that human rights had been without protection in former times, in spite of Qur'anic norms and Islamic jurisprudence.

More intolerable is the supposition that Islamic 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, throughout world history. In fact, they still are, not only in Muslinl 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 - for example, police brutality and torture, politically motivated rape, fraudulent elections, administrative corruption, etc. - are neither Islamically motivated nor legitimized by Islam. On the contrary it is mostly active Muslims who are imprisoned in some countries the latter Muslim by name only. [????]

Nor can we spare our Western partners the following painful question: Have human rights ever been as massively violated as during the two World Wars in Europe and Asia, with the employmnent of chemical and nuclear weapons? Or during the Stalinist terror and the industrial mass destruction of jews, gypsies, homosexuals and the infirm by Nazi Germany? Or during the massacres, mass rapes, and ethnic cleansing recently carried out by Serbian forces in Bosnia and Kosovo? Or between Hutus and Tutsis and in Cambodia under Pol Pot? Did any of these atrocities happen in the Muslim world?

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. Indeed, human rights discourses are also about political, eeonomic and cultural influence.

No use complaining. The Muslims cannot escape taking a position.Looking for Strong Arguments

Third World countries, euphemistically called developing countries, including even Muslim Petro-Dollar States, tried to form a forward line of defence 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 in peddling a whole set of human rights of their own, including the right to education, freedom from unemployment, and subsistence.

The same countries also believed they could ward off Western human rights weaponry by calling into question the universality of the declared Human Rights, calling them Euro-centric, ethno-centric 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 'liherty 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.

However, no one can rationally deny that classical, core Human Rights are indeed universal and not culturally conditioned. All human beings, no matter where, should be protected from murder, torture, or imprisoninent without fair trial; all of them should enjoy freedom of conscience and thought, freedom of religion, and be free to leave their countries. Muslims do a disservice to their case if they let themselves get caught denying the universality of these and similar basic rights.

It is a much better strategy to address the human rights issue within an Islanlic framework, i.e. under guidance from the Qur'an and the Sunna.

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 to the absence of modern legal vocabulary in ancient religious texts; to search them for human rights terminology would be an anachronism. Rather, Godbelieving people were unable, and still are, to conceive of God-created individuals as bearers of unalienable rights. Divine rights for individuals, yes; the rights of individuals, no. Enlightenment philosophy which enthroned man as the autonomous measure of all things - an idea unacceptable for people with transcendental links.

For Muslim professors of law, in particular, it would have amounted to blasphemy if they had dared to subdivide the Shari'a, i.e. Divine norms, into legal rules of higher and 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, Islamic fuqaha list all norms of Shari'a and fiqh as enjoying equal rank - from provisions about ghusl (ritual purification) to the interdiction of riba (interest).

An Islamic Human Rights Doctrine

Yet neither the Divine nature of Qur'anic 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 1,400 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.

The methodology that could have been followed is simple: When, for instance, Allah in an-Nisah:92 forbids murder and in al-Ma'ida:32 compares a one-time murderer with someone who has killed all of mankind, then it is possible - not directly, but indirectly - to deduce a general right to live, not as an individual claim but as reflex from a Divine norm. Similarly, if Allah in ash-Shura:38 gives the order for Muslims to arrange their affairs through consultation, then - at least indirectly - one can deduce from it a general right of political participation. Again, when the first three khulafa were elected, after consultation, without being blood relatives of the Prophet, 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 complementary human rights system.

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 by now be beyond dispute 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 personalitieslike the former German Chancellor Helmut Schmidt and the Swiss reform theologian Hans Küng recently drafted a United Nations Declaration on Human Responsibilities. However, it is not based on Revelation, all is in vain.Controversial Issues

All too late, but nevertheless, some Muslims became involved in the human rights initiative. On 5th August, 1990, the Organization of the Islamic Conference (OIC) published its Cairo Declaration on Human Rights, a non-binding document, of a mere political nature. Legally even less relevant, was a preceding Human Rights Declaration issued on 19th September 1981, by the Islamic Council of Europe, now only known as Islamic Council.

Additionally, a number of well-known independent Muslim personalities have entered the human rights arena, among them Muhammad Hamidullah Abu Ala Mawdudi and Prince Hassan of Jordan. During a Round Table Conference in Amman for 'Enhancing the Universality of Human Rights', 10-13th 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, Islam, was engaged in this same endeavour. For each of the 30 Articles of the Declaration, there are analogues in the Qur'an, the Hadith, and the Sunna of the Prophet Muhammad.' The first conclusion of the Conference stated that 'all people are bearers of human rights.'

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, (ii) dhimmi, (iv) women's rights, and (v) corporal punishment.

Given contemporary ijtihad, the positions of the two sides are perhaps less apart than might be expected. For this contemporary interpretative effort I refer primarily to the oeuvres of Muhammad Asad, Fazlur Rahman, Mohamed Talbi, Hasan al-Turabi, Alija Izetbegovic, Fathi Osman, Hassan and Maher Hathout, Rashid Ghannoushi, Yusuf al-Qaradawi, and Jeffrey Lang.

Apostasy and Slavery

As far as apostasy is concerned, any conflict disappears once Muslims realize that neither the Qur'an nor the Sunna foresee any punishment in this world (fi d-dunya) for merely deserting Islam. The Qur'an refers to several such cases without pronouncing a specific penalty. La ikraha fi d-Din should not only be respected between Muslis and non-Muslims but, so much more so, between Muslim brothers and sisters. In connection with apostasy, former Muslims were persecuted only if they also committed high treason (ar-ridda) in the sense of al Ma'ida:33, actively working against Islam or even fighting on the other side. Capital punishment for high treason, especially during war, is known worldwide.

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 Islamic umma like citizenship in a national State. It is internationally accepted that the law of inheritance may privilege citizens and discriminate aliens.

Slavery should pose no problem either. Of course, still relevant or not, Qur'anic verses dealing with slavery cannot be erased, even though it is clear that the Qur'an was instrumental in 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'an.

Religious Minorities

The protection of religious minorities (adh-dhimmi) is one of the strong points of Islamic international law.

However, nowadays, such dhimmi consider themselves discriminated against as long as they are not granted full citizenship. Well, to do so should not pose a problem for those Muslim States which in every other respect organized themselves on non-Islamic, national lines, provided that the dhimmi accept the responsibilities attached to citizenship, including military drafting. Crucial is the realization that the Qur'anic status of dhimmi constitutes the minimum of protection to be accorded, not the maximum that may be granted.

It is a different question whether it is admissible under international law for an Islamic 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 or she were, could one consider such a country Islamic?Sexual Equality

As far as women's rights in Islam are concerned it is important not to lose sight of the fact 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, but 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'Imran:36 where Allah in a precious way says: A male is not like a female.

Western human rights doctrine, on the other band, 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.

An-Nisa':11 seems to privilege sons over daughters in the division of an estate. But this provision of the Qur'anic 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. Also, it is possible for any father to increase his daughter's portion in his last will.

According to al-Baqara:282 f. a man's testimony in court can be replaced by the testimony of two women. From a Western point ofview; this is a case of unwarranted discrimination unless it is proven that women witnesses are biologically handicapped. On the other hand, the procedural rule in question might be acceptable if competence not sex was the decisive criterion. According to several modern Muslim authors that is exactly the case. They concede that the testimony of a Muslim businesswoman in a commercial lawsuit be given the same weight as a male testimony.

Traditionally, the respective roles of husband and wife in Islam were defined patriarchically in accordance with the orthodox interpretation of al-Baqara:228 and an-Nisa:34 - verses that seemned to say that men 'have the last word' and that men are 'superior' to, or in charge of women: a reading which caused outbursts of indignation in Western feminist circles, and beyond.

However, more and more contemporary translators of the Qur'an arrive at a significantly different reading of these verses. Al-Baqarah:282 is identified as a specific rule within the law of divorce without any bearing on the question of intra-family status. And ar-rijäl qawwamuna 'ala an-nisa (4:34) is, today, understood only to say: 'Men shall take full care of women' - a far cry from earlier interpretations. Men are no longer seen standing above women but protectivelv in front of them, in consideration of men's normally greater physical and financial potential.

This ijtihad while quite relevant for the human rights discussion is not a revisionist effort to adapt the Qur'an to modern ideology. Rather, certain macho-attitudes typical of Oriental mentality are to be adapted to the genuine, original Message of the Qur'an.

One can conclude from the rationale of al-Ma'ida:5 that 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 the husband as the guiding head of the family as also in religious matters. A Muslim wife, as a matter of course, would honour all Jewish Prophets, including Jesus. But could she count on tolerance from her non-Muslimn husband for her veneration of Muhammad? The Western human rights fiction of male-female equality is no solution in this dilemma.

According to Roman wisdom and Justinian law, pater semper incertus (fatherhood is always uncertain), and this may have been the earliest incentive for monogamy. It is also the modern practice in the Muslim world. In fact, one can certainly find today more Western men with installed maitresses than polygamous Muslims.

This development is not a departure from the Shari'a but its well-understood implementation. The Qur'anic conditions for polygeny 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 Sura with the grave judgement: 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 polygeny was the prototypical Islamic family.

Nevertheless, it is out of the question to act as if the Qur'an had not permitted polygeny 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.

Penal Law

Qur'anic 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 a thief's hands.

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 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 hudud 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 Bible but not in the Qur'an, and it is unwarranted to claim that a so-called ayat al-rajm had ever been in the air. On the contrary, al-Nur: punishes adultery with flogging only. In fact, the stoning of Muslims could at best be based on a single case of toleration by the Prophet, but that may well have taken place before the Revelation of 24:2. But even if this event had happened after this Revelation, could one even conceive of the Qur'an being abrogated by the Sunna?

It leads to contradiction if, in this context, one differentiates between free and unfree couples. According to an-Nur: 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 worthwhile adding that Islamic criminal procedure on the basis of an-Nur:4 is so strict that adulterers can be convicted only if they virtually desire it by making a credible confession. (In this respect president Clinton would have fared better under Islamic law....)

The Qur'anic penalty for theft (al-Ma'ida: 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 the 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 itself.

Here again, one should not overlook the practical consequences of this hudud ordinance. Obviously, one can live for decades within the Muslim world without ever running into somebody who is minus 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 Sunna of 'Umar ibn al-Khattab 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.

Adulterers exists in the Bible but not in the Qur'an, and it is unwarranted to claim that a so-called ayat al-rajm had ever been in the air. On the contrary, al-Nur: punishes adultery with flogging only. In fact, the stoning of Muslims could at best be based on a single case of toleration by the Prophet, but that may well have taken place before the Revelation of 24:2. But even if this event had happened after this Revelation, could one even conceive of the Qur'an being abrogated by the Sunna?