HUMAN RIGHTS AND
ISLAMIC LEGAL REFORM
Louay M. Safi
Is Islam compatible with human rights? This question has been in recent years the focus
of attention of numerous human rights scholars, who have produced varying answers and
advanced conflicting views. Any one who undertakes to study the literature generated in
the process of answering the above question soon realizes that his or her task is
exceedingly complex. For one finds that the foremost critics of traditional shari`a
(Islamic law) are united with its ardent advocates in denying any relationship between
Islam and human rights. One also finds that the proponents of a conception of human rights
rooted in Islamic worldview stand condemned by both modernist and traditionalist scholars:
by the former because of their association with Islam, and by the latter because of their
advocacy of human rights. In the midst of the contradiction and confusion that riddle the
discourse on Islam and human rights, clarity and understanding are sacrificed.
At the core of the confusion lies a static and ahistorical approach that fails to
distinguish the universal from its historical manifestation in particular forms, and
refuses to relate the applications of the Islamic principles to their historical contexts
and premodern socio-political conditions. Therefore, modern human rights scholars are
quick to point out that historically, Muslims and non-Muslims were not treated equally
under shari`a law, in complete disregard to the gulf that separate the nationalist
structure of modern political organization and the communalist structure of premodern
political societies. Likewise, Muslim traditionalists, driven by a similar static outlook,
and oblivious to the drastic social and political changes that separate historical and
contemporary Muslim societies, insist on embracing the rules expounded by early jurists,
even when the application of these historical rules would negate the universal principles
of Islam which gave them force in the first place.
While agreeing with the modern critics of historical shari`a that its application in
modern society would lead to serious violation of human rights, I reject the contention
that Islamic law has been oblivious to the notion of human rights. I argue that the
failure of modern critics to discern a human rights tradition in Islam results from a
static and ahistoric outlook that divorce the shari`a rules developed by classical
scholars from the socio-political structure of early Muslim society.
I further contend that for a modern human rights tradition to take hold in modern
Muslim society, it should be rooted in the moral/religious commitments of Muslims. This
can be achieved not through an imposition of a human rights tradition evolved in an alien
culture, but by appealing to the conception of human dignity embedded in the Qur’anic
texts, and by employing the concept of reciprocity which lies at the core of the
Qur’anic notion of justice.
I therefore conclude by showing that the application of the Islamic sources through a
paradigm that incorporates the principles of human dignity and moral reciprocity into a
modern society — characterized by cultural plurality and globalizing technology
— is bound to evolve a human rights tradition capable of ensuring equal protections
of the moral autonomy of both individuals and groups.
HISTORICAL SHARI`A AND ITS MODERN CRITICS
Islamic law (shari`a) has been the subject of an elaborate and penetrating critique by
human rights scholars. Modern scholars who have examined human rights schemes, advanced by
contemporary Muslim authorities, have concluded that these schemes run far short of the
protections provided by international human rights, enshrined in the Universal Declaration
of Human Rights (UDHR). Thus Mayer contends that contemporary endorsement of international
human rights by Muslims is more apparent than real, because all human rights
pronouncements by Muslim individuals and groups have been curtailed by qualifications
rooted in shari`a. The application of shari`a law would lead, she concludes, to serious
breaches of international human rights. More specifically, the application of shari`a law
would lead to the erosion of religious freedom and to discrimination against women and
non-Muslims.
Heiner Brelefeldt echos the concerns of Mayer regarding historical shari`a’s
capacity to provide for human rights protections, particularly for women and non-Muslims.
Examining areas of conflict between shari`a and human rights, he notes:
Due to the timing of its development, it is hardly surprising that the classical
shari`a differs from the modern idea of universal human rights. Although the shari`a puts
a great deal of emphasis on the equality of all the faithful before God, it traditionally
assumes unequal rights between men and women and between Muslims and members of other
religious communities.
Similar arguments are made by Rhoda Howard, who points out that traditional shari`a
fails to provide for equal protections of the law for women and non-Muslims.
"According to traditional interpretations," she writes, "Islam excludes
entire categories of people, most notably women, slaves [sic], and non-Muslims, from
equality under the law, although it does set out careful rules for their unequal
protection." Haword cautions, however, against any conclusion that would suggest that
the classical legal system was unjust, and goes on to argue that "compared with
Europe until barely a century and a half ago, Islamic societies might well be
characterized as far more just in the modern sense of protecting human rights."
Still, Howard is quick to deny the possibility of developing a modern human rights
tradition, rooted in Islamic worldview, insisting that "Islamic conception of justice
is not one of human rights."
Perhaps the most penetrating and systematic critique of traditional shari`a is provided
by Abdullahi An-Na`im. In his Toward an Islamic Reformation, An-Na`im discusses
specific examples of violation of religious freedom by shari`a rules, and cites instances
of discrimination against women and non-Muslims in the historical legal system. However,
unlike the previous critics of shari`a, An-Na`im realizes that the possibility and
importance of evolving a human rights tradition from within the Islamic normative system,
and warns against any external imposition. To do this, he calls for an Islamic reformation
aimed at overcoming contradictions between international human rights and shari`a rules,
and proposes a methodological approach based on what he calls "the evolutionary
principle" introduced in the seventies by his late mentor, Mahmoud Muhammad Taha.
According to this principle, the Makkan Qur’an embodies the eternal principles of the
Islamic revelation which emphasize human solidarity and establish the principle of justice
for all, regardless of religion, gender, or race. The Medinan Qur’an, however,
places, it is further argued, the solidarity of male Muslims above all others, thereby
giving rise to discrimination against women and non-Muslims. For this reason, An-Na`im
contends, one finds contradictions between the Makkan and Madinan Qur’an. While the
Makkan Qur’an emphasizes freedom of religion and the peaceful coexistence among
different religions, the Madinan Qur’an exerted Muslims to compel the unbelievers to
accept Islam, and introduced measures that discriminate against women and against
non-Muslims. Rightly recognizing that classical jurists introduced the principle of naskh
(abrogation) to discard early Qur’anic statements that appeared to contradict
later statements, An-Na`im calls for the application of reverse naskh, i.e. the
abrogation of the Madinan Qur’an whenever contradicts the Makkan. An-Na`im concludes
by making a passionate plea that succinctly summarizes his approach:
Unless the basis of modern Islamic law is shifted away from those texts of the
Qur’an and Sunna of the Medina stage, which constituted the foundations of the
construction of Shari`a, there is no way of avoiding drastic and serious violation of
universal standards of human rights. There is no way to abolish slavery as a legal
institution and no way to eliminate all forms and shades of discrimination against women
and non-Muslims as long as we remain bound by the framework of Shari`a.
An-Na`im’s proposal seems on its face value to provide a quick fix to the
contradictions between historical shari`a and international human rights. However, the
"evolutionary principle", alluded to earlier, is not sustainable, I contend, as
it can be easily faulted on both theoretical and practical grounds. First, since the
Qur’an is considered by Muslims, as An-Na`im himself agrees, as a divine revelation,
one has to accept the totality of the Qur’anic statements as a single discourse.
Therefore, one is not justified in abrogating the Madinan verses altogether on the ground
that they address a particular historical society. Rather one has to eliminate the
possibility of generalizing particular rules by demonstrating their particularity. Such a
procedure would permit one to arrive at the same result without reverting to a wholesale
rejection of one-third of the Qur’an. Secondly, negating the Madinan Qur’an
would not be acceptable by the bulk of Muslims, including those who agree with An-Na`im
that there should be a fresh reading of the Islamic sources so as to effect a sweeping
legal reform. For the Qur’anic statements revealed in Madina do not only comment on
family matters and relationships with non-Muslims, but also on issues relating to
fundamental Islamic practices, such as the performance of prayer, zakat, fasting,
and hajj. Thirdly, negating one-third of a book which the majority of Muslims
consider to be incontrovertible is counterproductive, particularly when it can be shown,
as I intend to do shortly, that the contradictions between the Makkan and Madinan
statements on women and non-Muslims are more apparent than real, resulting from faulty
interpretations by classical scholars, as well as the application of an atomistic
methodologies of derivation.
A better and more effective approach to reforming historical shari`a is one that sets
out from the very notion that constitutes the raison d’etre for the
articulation of human rights in Western tradition, viz. human dignity. Since the
Qur’anic texts embody clear and developed notion of human dignity, restructuring
shari`a rules — particularly those which relate to the public sphere — on the
basis of the Qur’anic notion of human dignity would lead, I contend, to a situation
in which the civil and political liberties of all citizens — regardless of gender,
ethnic, or religious distinctions — are protected. Further, setting out from the
notion of human dignity to reform the shari`a has another advantage: It has the potential
to nurture a liberal tradition without being limited to the tradition of individualistic
liberalism, which many scholars consider to be Western specific. As will be shown in the
next section, developing a human rights tradition on the basis of Islamic worldview and
heritage extends the notion of moral autonomy, presupposed by human dignity, from the
individual to the community.
