Humans Rights Law and Islamic Shari'ah: Areas of Compatibility and Conflict

by Dr. Khalid Zaheer

 

1. Introduction

Human Rights activism emerged in the twentieth century with the potential of the universal recognition and application of its ideals as the only acceptable way of approaching human values. Based on the ideas of a large number of intellectuals, by and large of European origin, who lived in the last five centuries the ideas of human rights approach reached a conclusive phase in its ambition to universalize its ideals when the United Nations adopted Universal declaration of Human Rights on December 10, 1948. The resolution was signed by a large number of member countries many of which were Muslim.

The concerns expressed in the UN Resolution were in the areas which have also been traditionally the interest of Islamic teachings as well. It was quite natural to expect that religious people would look at the contents of the resolution in the light of their religious teachings on the subject. As a result of this exercise, some aspects of the resolution were found consistent with Islamic teachings while others were found inconsistent. This paper is an attempt to identify some of the prominent aspects of the Universal Declaration of Human Rights that are consistent with Islamic teachings and some of those that are not, in an effort to discover the extent of co-operation possible between the two approaches. The paper also attempts to identify the reasons why there are differences in the two points of view and concludes by suggesting the right approach in addressing the situation that has arisen as a result of the conflict.

a) Disclaimer: The ideas expressed in this paper are what I understand about the issue on the basis of my understanding of Human Rights concerns on the one hand and the Islamic teachings on the same issues on the other. In no way do these thoughts claim to be the only representative understanding of Islamic teachings.

b) Divine Revelation and Human Intellect: According to the Qur'anic understanding, human intellect is in no conflict with the Divine Revelation the way it has been expressed in the Qur'an. However, there can be occasions when human intellect could be at a loss to understand the contents of Divine Revelation. One of the reasons such a possibility can arise is that at times Divine Revelation guides human intellect because of the latter's inherent inability to come to concrete answers on certain issues on its own. The other possibility could be when human intellect may have degenerated because of persistent exposure to unfavourable environment and/or deliberate indulgence in known vices. The Qur'an is emphatic in its claim that a normal human intellect would find itself in agreement with Divine Revelation.

c) The Islamic law (Shari'ah) is not very elaborate. It confines itself to describing only a few important rules for regulating the individual and collective lives of Muslims. The Shari'ah mentions rules regarding worship and moral considerations in social, economic, and political life of humans. All rules of human rights should be allowed to influence Muslims only to the extent that they don't go against the Shari'ah. There is therefore considerable scope for cooperation between Islamic teachings and secular understanding of the rules affecting human beings.

d) While forming academic opinions about Islamic teachings, one should confine one's attention to the Qur'an and Sunnah (the religious practices given by the prophet). There can at times be considerable difference between what Islamic teachings say and what Muslims do. There could at times be differences between true Islamic teachings and what many Muslim scholars say or write.

2. Human Rights in Islam

a) Human Rights in Shari'ah: There are two categories of rights discussed in the Shari'ah: Rights of Allah and Rights of fellow human beings. Since these rights have been mentioned in the form of basic principles and have been applied in the immediate environment, they need to be explored intelligently with a view to applying them to changing circumstances.

b) Scope of Co-operation with Secular Understanding of HRs: Any new development in the area of Human Rights that is consistent with the teachings of Islam should be welcomed as a new step towards actualization of the spirit of Islamic teachings. For instance, POWs used to become slaves at the time of the revelation of the Qur'an. Islam stopped it. Now, since the Geneva Convention rules are consistent with the spirit of Islam, they should be deemed to be Islamically desirable and Muslims should promote them as a part of the extension of the spirit of the Islamic teachings. See 1c above and 2c below.

c) Mention of Human Rights: Islamic teachings mention rights of parents1, children2, relatives3, poor4, slaves5, spouses6, minorities7, prisoners8 etc. Islamic teachings also emphasize freedom of thought and expression9.

d) Reservations of HR Activists: Human Right Activists however have serious reservations on the following aspects of Islamic teachings: punishments, women, minorities, slavery, democracy, and jihad

Since the philosophy of human rights believes that every human being has some inherent rights which are quite independent of the duties that he/she owes to others, all forms of punishments that cause bodily harm to him/her or cause death are unacceptable to it. Thus Islamic punishments like capital, public flogging, or amputation of hands are not acceptable to believers in human rights philosophy.

The basic understanding of human rights demands that all human beings should be treated equally irrespective of their colour, gender, religion, and nationality. Islamic teachings on the other hand do not allow women to divorce their husbands directly the way husbands are allowed. Similarly husbands have been given the charge of the custodians of their homes while their wives are their subordinates. In the Islamic law of inheritance women generally get half the share of men. Furthermore, women are generally speaking expected to follow a dress code that more demanding than that for men. All these Islamic stipulations are seen by the human rights activists as discriminatory and therefore unacceptable.

Likewise, there is a concern that minorities do not enjoy equal rights in Islam, its teachings allow its followers to make and keep slaves and slave girls; Islamic political system is not democratic; and Islamic teachings urge the followers to engage in war (Jihad) against non-Muslims to force the implementation of Islamic law in their lands.

3. Non-Issues

Some of the concerns of human rights activists are based on either the un-Islamic attitude of some Muslims or incorrect interpretation of Islamic teachings.

a) For instance, according to Islamic teachings, minorities enjoy equal rights of worship, employment, doing business, and practicing their religion the way they understand it. However, all these rights are allowed to them within limits of the law of the land, which is expected not to be discriminatory against non-Muslims.

There could be problems in some Muslim societies in allowing open preaching of another religion to Muslims. Resistance to open preaching is not quite as much an issue of Islamic teachings as it is the sensibilities of the Muslim population of a certain region. It is of course always advisable for the non-Muslim preachers to be more careful of the possible reaction of the local population while they introduce and preach their religions. Activities of Christian missionaries have been going on in Muslim countries for centuries, and in most cases, without any official censure from the state. Conversions of Muslims to Christianity, whatever the scale, has been a regular feature in the past, despite the popular understanding that Islamic teachings propose death sentence for apostates.

The requirement in some Muslim countries like Pakistan that the head of the state cannot be a non-Muslim is again a Muslim law which is not directly based on any Islamic injunction. The truth is that in a country with Muslim majority population it is very unlikely that a non-Muslim can ever be democratically elected as the head of the state. In the two-and-a-half centuries of American democracy all presidents have been white, Christian, men. Why should Muslim countries expected to do any better?

b) Treatment of the Islamic teachings of the institution of slavery is another area of understanding wherein there is unnecessary concern amongst some human rights activists. The truth of the matter is that Islam arranged for the elimination of slavery in its teachings in such a conclusive manner that if Muslims were to follow Qur'anic teachings properly, they could neither make new slaves nor keep the already enslaved ones if the latter were unwilling to continue with that arrangement with their masters.

The only reason why a misunderstanding has been created in the minds of some people about this clear position of the Qur'an is that in order to get rid of the menace of slavery which was widely practiced in the Arabian society, the Qur'an dealt with the issue gradually in order to prevent the situation from going out of hands. Had there been one clear injunction for the elimination of slavery, as some people believe it should have been, the injunction would have caused considerable harm to slaves and slave girls in the absence of any viable alternative arrangements of living for them.

Thus what we find in the Qur'an is a series of instructions that were all meant to uplift the status of salves on the one hand and pave the way for their lasting emancipation on the other. In a series of directives on the issue, the Qur'an has required believers i) to free slaves to please God both as voluntary act of piety and a measure of expiating crimes, ii) to get slaves and slave girls married to raise their status in the society, iii) to allow them complete freedom whenever they show willingness and ability to do so on writing a contract of promise to compensate the master, and iv) to not make prisoners of war slaves but to free them with or without compensation. While this reform movement was being carried out during a period of more than two decades, there were verses revealed that acknowledged slavery as given reality of the society. Thos people who discover in the Qur'an verses of the interim period mentioning slavery as a routine reality, get the impression as if it is legitimate in Islam. However, if the Qur'anic logic and proper sequence of its verses is appreciated, the misunderstanding is removed.

c) It is a misgiving about Islam that its teachings do not view democracy favourably. The understanding is partly based on the perception created by the predominantly dictatorial monarchies one reads about in the history of the Muslim dynasties and partly on the impression created by the political systems of the contemporary Muslim states whereby there are hardly any real democracies visible in any of the more than fifty Muslim countries.

The reality is that the Qur'an required Muslims to follow basically the following three principles in their political system: i) The political system should be consistent with the teachings of Islam; ii) the masses should be obedient to the political authority of the rulers; and iii) the political system should function on the basis of mutual consultation of the participants. What emerges from the understanding of all the three principles is the outlines of a political system wherein the Qur'an and Sunnah would be the supreme law and the masses would be loyal to the system which would be consultative in nature. The details of the process have been left to the consultative abilities of Muslims to carve out in accordance with the needs of the time. In other words, the Qur'an proposes the outlines of an Islamic democracy which has one limitation: it cannot violate the Islamic Shari'ah. How exactly is that condition going to be met is again something left for the Muslims to decide in accordance with the principle of mutual consultation. Thus the primary religious text of Muslim has given a strong signal to believers to look for the best democratic set up that suits there needs.

d) Perhaps the one aspect of Islamic teachings that has caused the biggest misunderstanding about Islam in the minds of non-Muslims and many Muslims as well is the concept of Jihad. It is commonly thought that Muslims have been given religious sanction by their God to settle their scores with their rivals provided some religious excuse could be presented to justify their actions. The perception has grown strong partly because of the Islamically illegitimate aggression shown by some seemingly practicing Muslims against their rivals some of who were even Muslim and partly because of the propaganda campaign launched by some segments of the non-Muslim media to tarnish the image of Islam.

A careful reading of the entire Qur'an and not just a few verses isolated from the context reveals the following facts:

i) There were divine punishments inflicted by God on the people who deliberately rejected His message delivered to them through His messenger Muhammad. These punishments took the form of military aggression, while in the case of earlier messengers like Nuh, Lut, Hud, Saleh, Sho'aib, and Musa the punishments were sent by God by and large through natural calamities.

ii) The basic Islamic approach governing aggression against other individuals is mentioned in the law that stipulates that whosoever creates chaos and mischief on earth such a person or group of persons should be either killed mercilessly or banished from the locality.

iii) Anyone who kills a single soul for no justifiable cause -- neither in a legally justifiable retaliation for another killing nor for the crime mentioned in point ii -- then such an individual has committed a crime equivalent to killing the entire mankind. Anyone who saves a single soul has done an act of virtue which is the equivalent of saving the entire mankind.

iv) Muslims cannot engage in a war with another nation except under the command of a ruler who should openly declare a war for a justifiable cause. (See points v and vi below)

v) Even if there is a justifiable cause to fight the enemy, Muslim rulers should not, generally speaking, engage in military adventurism whereby the military strength of the enemy is more than twice as much as theirs. This and condition iv together rule out the possibility of guerilla warfare in the name of Islam.

vi) The only two reasons why Muslims are allowed to fight even under the command of Muslim ruler (apart from defending themselves against aggression) are to eliminate religious persecution or to force back to peace a warring party that had agreed to a peace agreement and then reneged on its promise. (Qur'an; 49:9)

One of the implications of the above-mentioned rules of Islamically valid jihad is that whoever engages in military aggression against others in violation of the conditions iv and vi, he/they is/are guilty of the crimes mentioned in point ii and iii.

4. Real Issues

There are at least two areas of Islamic law which are criticized by human rights activists and their understanding on these issues is not completely faulty, if not entirely correct. The two areas are Islam's proposed punishments fro certain criminals and its certain injunctions affecting women. Since in the opinion of this writer there is a clear conflict between the ideals of human right activists and Islamic teachings on these issues, it needs to be clarified what those areas of conflict are, what are the reasons for the conflicts, and what could be done to come to a compromise given these differences.

The Qur'an requires Muslim system of justice to kill the person who is guilty of creating mischief on earth mercilessly, to kill a murderer, to publicly flog an adulterer and fornicator with hundred lashes, to flog a false accuser of chaste individuals with eighty lashes, and to amputate a hand of a thief. All these punishments are viewed by human rights activists as contravening the basic human rights of the criminals.

Likewise, the Qur'an declares husbands in charge of their wives; it expects good wives to adjust themselves with their husbands; it allows husbands to take remedial actions if the wife has become rebellious; it allows a husband to divorce only indirectly; it expects women to be more particular about their dress while in the company of men than it expects from men; and it allows, generally speaking, a share twice as much to women in the property of a deceased relative. All these rules are considered as discriminatory against women by the human right activists.

5. Reasons for Differences

The reason why there happen to be differences in the way the two systems of thought have proceeded to sort out some of their practical issues lies in the difference in their respective worldviews. A worldview is like a seed. When a plant sprouts from it, it has to carry the basic ingredients of it.

a) The Ideological Backgrounds

i) Islam views this worldly life as the creation of an All-Knowing, All-Wise God, Who created it for a definite purpose, which was to allow His two intelligent creatures, one of which are humans, the independent opportunity to live a morally responsible life. The human existence of this worldly life is temporary and only meant to be a trial. This period of trial will give way to a period of accountability followed by eternal rewards and punishments. Man is guided in this life of trial by two sources: i) his God-given nature and intellect, which if properly used, show him the way of true moral life, and ii) Divine Revelation which God arranged to communicate to humans through His prophets. The last in the series of these formal revelations was sent to Muhammad during the period 610 to 632 AD. The fully preserved form of that revelation is the Qur'an and the Sunnah, prophet's religious practices. The divine revelation is meant to guide human intellect, which despite its tremendous God-given potential, has its limitations. Human intellect is expected by God to realize its full potential in the light of the guidance provided to it by the moral law within and the formal divine message in the form of the Qur'an and the fully preserved religious example of the prophet, Sunnah.

ii) The secular worldview, one of the emerging plants of which is Human Rights activism, considers the question of the Creator and the purpose of creation by and large irrelevant. Whoever created it, if at all any one did, doesn't really matter; the existence of life with its tremendous potential is before us and that is what matters. This world probably came into existence through an initial big bang that was followed by a long process of evolution that is continuing and would probably continue for ever. There has been a physical evolution that has continued for billions of years since the big bang. That process culminated in the emergence of man (homo sapiens) from less refined forms of life. Probably this process has nearly reached its climax in the form that can be seen in the western world. There are some landmarks still likely to be achieved in this evolutionary march towards material excellence. Extinction of death and the resultant eternity of life would probably be the climax of this process.

According to the emerging unanimity of the secular creed, side by side with the physical evolution, there is a continuing flow of intellectual ands moral evolution in human beings. Man started his philosophical journey with primitive ideas about the reality of this world. He took refuge in the idea of many gods and some superstitious ways of pleasing them. At some stage in this journey, according to the understanding, some highly gifted individuals presented themselves as men from God. They presented their spiritual and moral teachings as originating from God. Their efforts did manage to bring about an intellectually and morally better world. However, as it was, the journey had to inevitably proceed further. Over the last five centuries, an extremely hard fought encounter took place between religious forces and the soldiers of enlightenment. The outcome of this encounter has resulted in the intellectual supremacy of the new worldview which is secular - religion-less and God-less -- in nature. Man has emerged victorious in in the process and it has been finally intellectually established that despite its definite contribution at some intermediary stage of the process of social evolution of humans, religion is now a remnant of the past, now worthy of a respectable place only in a museum of the intellectual and spiritual struggle of mankind.

Human rights law is one of the proud outcomes of the commendable effort of human intellect and conscience against the stubborn resistance of religious dogma that has now outlived its utility. It is but natural that all societies of the world should adopt these laws. There are still improvements needed in it, but by and large, it is close to the ideal human law in its present form, that ensures happiness to almost every one. The United Nations, in its capacity as a world body of nations, should ensure its swift implementation around the globe. Whatever resistance is being encountered is like the final gasps of the dying body of religion.

b) The Effect of Ideologies

i) In the context of Islamic ideology, since this worldly life is a trial and man is expected to lead a morally correct life, which includes worshipping God, an ideal Islamic society is designed to provide a conducive environment to the people to achieve their goal of life properly. Thus if the offence of a criminal is proved beyond doubt in a society where there were no compelling reasons for the crime to be committed under normal circumstances, he should be given commensurate and exemplary punishment to deter the rest of the population from coming close to repeating it. As for the criminal, whether he loses his life or receives physical chastisement, the punishment would provide him with the all important opportunity to repent and, as a result, enhance his chances of success in the hereafter, which is the real, eternal life. Some discomfort in a temporary life is a small price for the eternal happiness of the hereafter.

The human rights ideology, on the contrary, would abhor the idea of physical pain inflicted on an individual, given the understanding that this life is the only chance of human existence. It would appear against human dignity and therefore abhorring even to imagine a person getting publicly flogged, deprived of a hand, or, much worse, killed under any pretext. As for the possibility of checking the tendency of committing crimes in future, there are better, more 'humane' ways of achieving that end. Such people can be taught, trained, and psychologically cured in encouraging, conducive environment. Even in the worst case of the crime of murder, there is no point in losing another precious life, just because one was lost earlier.

Likewise, in the context of man-woman relationship it is a strong concern of Islam that the institution of family be strengthened, possibilities of extra-marital sex be minimized, and tendency of unnecessary attraction towards the opposite sex that often affects an individual's spiritual progress is discouraged. All these concerns necessitated that the parameters of wife-husband relationship, inheritance law, and other rules be so designed that instead of pitching as rivals unto each other in the open market where the more vulnerable often gets exploited, man and woman should be arranged to be made partners in a system where every one plays a role in line with his or her moral, spiritual, intellectual, and creative abilities and potential.

The philosophers of human rights on the contrary believe that in the evolutionary process of intellectual and moral progress, man has been a dominant member of a patriarchal society where women were often reduced to the status of second-rate citizens, if not non-humans and beasts. Ideologies like Islam have made salutary contributions in raising women from the abysmal position of beasts to a somewhat more dignified one. However, since it was to be only one station towards the ultimate goal of complete equality of both sexes in all respects, the bridging role of Islam between dark ages and the era of enlightenment has been completed and therefore Islam has outlived its utility in this field of human interest as well. A woman now has, or ought to have, rights equal to men in all possible areas of human aspirations, except for so far as the biological restrictions that have been imposed by nature on her. Like in all other areas of moral and social development, here too human beings have reached a climax. It may take some while before the flower of this blessing reaches its full bloom, but any call for retreat is anachronistic and should therefore be snubbed to extinction.

6. Conclusion

There is a large area of understanding concerning human affairs wherein human rights concerns and Islamic teachings broadly converge. This includes concerns of both ideologies for the protection of life, property, and honour of all individuals; looking after the needs of the elderly, the young, and the vulnerable; honouring the views of the majority and protecting the rights of the minorities; removing all kinds of discriminations based on race, colour, and religion; providing freedom of expression and choice to all individuals within the parameters of law; ensuring complete elimination of slavery and respectable repatriation of prisoners of war; protecting common people from criminals and ensuring justice for perpetrators of crimes; and ensuring that violence and aggression except for legitimate needs of the state is curbed at all costs.

The Islamic explanation for the reason why the two apparently divergent worldviews agree on such a vast area of human interest is that divine revelation, the fountainhead of Islamic teachings, is a source that acknowledges the usefulness of human intellect and emphasizes its sanctity. Human intellect is God-given too and therefore it's likely to reach correct or nearly correct conclusions on many issues. Human rights activist on the contrary would explain Islam's concern for human rights on the basis of their understanding that Islamic teachings like those of other religions were an important landmark in the progressive journey of human rights movement. The similarities in the two are there the way they should be in the older and final editions of a book, in that one is crude, preliminary and the other an ultimately refined version of a thought process.

There are some areas where the two ideologies unmistakably disagree. These areas are Islamic punishments for certain criminals and Islamic teachings on rights, duties, and role of women in the society.

We have seen in this paper that there are reasons for the agreements and disagreements in the practical expectations of the two ideologies. One should be thankful that despite differing ideologies, practical differences are not quite as enormous as one could expect.

As for the worldview of the ideologies, the reality is that the chasm that divides the two is vast. Unlike in the practical areas of application, no reconciliation is possible in them. The worldviews are the very opposite of each other. The basic philosophical difference between the two systems of thought can only be sorted out through peaceful battles. These battles have been fought since man started his intellectual journey. They will continue to be fought, won, and lost in the future as well. The only hope we can entertain - and we ought to struggle to ensure that it materializes - is that this battle is fought intellectually in the 'battle grounds' of book shops, libraries, conferences, the electronic media etc. rather than in the fields of Iraq or the mountains of Afghanistan., nor in the training camps of al-Qaida or in the strategic meetings in the Pentagon or Tel Aviv.

What needs to be actively curbed in the inevitable, and desirable, exchange of ideological views is the arrogant attitude of influential individuals and institutions belonging to a group that tends to snub the other view as rubbish and unworthy of any consideration. There should also not be any tendency to force the agenda of one camp down the throat of the other. It is quite often this hawkish tendency that carries the seeds of violence and incites peace-threatening responses from the other camp. Aggressive fundamentalism, in some cases at least, is the outcome of, and a reaction to, such an arrogant attitude, quite apart from the professed reasons of the aggressors. When military leaders are able to mix the immediate agenda of, for instance, liberation of a certain land with the more potent appeal to the gullible masses that their religion is being threatened by the nefarious designs of the Satanic forces, the outcome is understandably a stronger and a bigger support from devoted believers.

Viewed from the above angle, some of the aggressive initiatives of human rights activists are a far greater threat to world peace than any of the seemingly senseless outbursts of anger and violence against America we are given to witness on the television screens. The latter is only an outcome of the former.


References

1. "And your Lord has ordained that none shall be worshipped except Him and that (you shall behave) exceedingly well with your parents." (Qur'an; 17:23)

2. "Indeed there could be your religious enemies amongst your wives and children. However, if you ignore (their excesses), remain cordial, and forgive them (then your God would appreciate that) as God too is Forgiving and Merciful." (Qur'an; 64:14)

3. "And give your relatives, the poor, and the wayfarers their due share, and spend not (their share in your wealth) excessively." (Qur'an; 17: 26)

4. See above.

5. "And those amongst your slaves who are desirous of (entering into) a written contract (of freedom) then write it down for them if you find goodness in them. Also, give them from God's wealth which He has given you (to enable them to honour their commitment of the contract). (Qur'an; 24:33).

6. "Live with them (i.e. your wives) befittingly. For even if at times you don't like them (for some reason, try to put up with them) for, (you never know) at times you may dislike something and God may have kept for you in it abundant goodness." (Qur'an; 4:19) "And good (wives) are those who adjust (with their husbands) and guard (their honour) in their absence the way God has guarded." (Qur'an; 4:34)

7. "As for those polytheists who have formalized agreements with you and have not spared any efforts (in fulfilling their covenants), nor have they assisted anyone in aggression aginst you, then fulfil your covenant with them for its duration. Indeed God loves those who are mindful (of their promises)" (Qur'an; 9:3)

8. (God's beloved humans are those who) feed the poor, the orphans, and the prisoners out of His love." (76:8)

9. "We have shown him (i.e. the man) the right path (intuitively, and then set him free to see) if he becomes grateful or ungrateful." (Qur'an; 76:3)

 


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