RELIGIOUS EQUALITY AND MORAL AUTONOMY
We have already seen that the record of historical shari`a concerning the human rights
of non-Muslims is mixed. On the one hand, the shari`a recognized the rights of non-Muslims
to enjoy equal protection of the law as far as their life, property, and personal security
are concerned. Non-Muslims also enjoyed the rights to freedom of conviction, and the right
for self-determination as far as their legal and administrative conditions were involved.
On the other hand, classical jurists imposed a number of restrictions on non-Muslims in
the area of dress code, display of religious symbols, the construction of churches in
predominantly Muslim districts, the use of mounts and carrying of weapons, etc. I have
already suggested that the restrictions imposed on non-Muslims do not stem from
Qur’anic standards, but rather security concerns during the political turmoil
associated with the Mongol and crusade invasions. Therefore, the apparent indifference on
the part of shari`a towards the civil and political rights of non-Muslims stems not from
any insensetivities attributable to classical jurists, but rather to the literalist
approach of contemporary traditionalist jurists. Indeed, the literalist and imitative
approach of Islamic traditionalism has been the main obstacle in the way toward evolving a
human rights tradition rooted in Islamic sources.
The first thing that strikes us when we study the Qur’anic texts is that the
Qur’an neither confines faith and salvation to those who accept the Islamic
revelation, nor deny faith and salvation to other religions. Indeed the Qur’an does
not limit the attribution of faith and salvation to the People of the Book (Jews and
Christians) but extend it to believers of other faiths.
Nor does the Qur’an consider all those who accepted Islam as true believers. For
some have accepted the new religion as a general mode of life but failed to internalize
its worldview and ethical mission:
The desert Arabs say, "We believe." Say, "Ye have no faith; but you
(only) say, ‘we have submitted our wills to God,’ for not yet has faith entered
your hearts. But if you obey God and His messenger, he will not belittle aught of your
deeds: for God is oft-forgiving, most merciful.(49 : 14)
Others conformed to Islamic teachings only in appearance, but continued to harbor
suspicion and doubts, even ill-will toward Islam and its adherents and advocates. It
follows that believers and disbelievers can belong to all religions.
Because believers and disbelivers cannot be distinguished on religious lines, as they
run across all religions, the Qur’an urges Muslims to seek a political order based on
peaceful cooperation and mutual respect, and warns them against placing religious
solidarity over covenanted rights and the principles of justice.
Equipped with the above set of principles, the Prophet managed to establish in Madina a
multi-religious political community, based on a set of universal principles that
constituted the Pact of Madina (Sahifatul Madina). The various rules ennunciated in
the Pact were aimed at maintaining peace and cooperation, protecting the life and property
of the inhabitants of Madina, fighting aggression and injustice regardless of tribal or
religious affiliations, and ensuring freedom of religion and movement. It is remarkable
that the Madina Pact placed the rules of justice over and above religious solidarity, and
affirmed the right of the victim of aggression and injustice to rectitude regardless of
their tribal or religious affiliation, or that of the culprit.
However, it is not sufficient today for Muslim jurists to recognize the moral autonomy
of non-Muslim communities, as the classical jurists did. The Qur’anic concept of
justice requires that they employ the principle of reciprocity in delineating the overall
legal structure to govern the religiously and morally pluralistic societies of today. That
is, contemporary Muslim should avoid invading the moral space of other communities in as
much as they would dread the imposition of alien moral or legal rules in their moral
space.
WOMEN’S RIGHTS: PUBLIC EQUALITY AND FAMILY PRIVACY
When approaching Islamic sources to shed light on the issue of women’s rights, a
clear distinction emerges between the rights of women in the public sphere, and their
rights in the area of family law. For while Islamic sources differentiate men’s and
women’s responsibilities within the family, all limitations on women’s rights
imposed by classical scholars in the public sphere were based on either faulty
interpretations of Islamic texts, or practical limitations associated with the social and
political structures of historical society.
The Qur’an is unequivocal in assigning equal responsibilities for men and women
for maintaining public order: "The believers, men and women, are protectors one of
another; they enjoin the right (ma’ruf) and forbid the intolerable (munkar);
they observe regular prayers, practice regular charity, and obey God and His
Messenger." (9:71). Since men and women are entrusted with the same public
responsibility to enjoin the right and forbid the intolerable, one should expect that both
would enjoy equal political rights. Yet it is obvious that classical jurists deny women
political equality with men. The question therefore arises as to what is the basis of the
classical position? Jurists who deny women the right to public office base their arguments
on one Qur’anic and one prophetic statements. The Qur’anic statement reads:
"Men are the protectors (qawwamun) of women, because God has given the one
more (strength) than the other, and because men support women from their means." (4 :
34) The word qawwamun which connotes "support" and "protection"
has come to signify authority as well. The fact that qawwamun also signifies
authority is not difficult to see as the remainder of the above Qur’anic statement
empowers men with the right to discipline women guilty of mischief. But can the above
verse be used to deny women access to public office? The answer is an emphatic no. For the
authority implied by qawwamun and the obedience it entails is relevant – even
under classical interpretation – within the confines of the family. It is clear that
the Qur’an does not intend to give authority to every single man over every single
woman. Nor do those who extend the implication of this verse to the public sphere expect
that any single woman in society should obey any single man, known to her or not. If this
is the case, no one can invoke the notion of qawwamun to deny women access to
public office.
The other textual evidence used by classical jurists, and continues to be held by
contemporary traditionalist jurists, is in the form of a hadith text that states:
"They shall never succeed those who entrust their affairs to a woman."
Reportedly the statement is a comment made by the Prophet upon hearing the news of the
accession of Buran, the daughter of King Anusherawan, to the Persian throne after the
passing away of her father. I wish to argue here that there are sufficient reasons to show
that the above hadith does
not stand in the face of a close scrutiny, and cannot, hence, be allowed to undermine
the principle of moral and political equality between the sexes, which is firmly
established in the Qur’anic texts. (1) The hadith statement is not given in
the form of a directive, but an opinion that has to be understood in its historical and
cultural context. That is, the hadith has to be interpreted in the context of a
historical society where women were not active participants in political life, and in the
context of a political culture that places the hereditary rule over the principle of merit
in deciding political succession. (2) The hadith is a single statement that has no
support in the most authoritative Islamic source – i.e. the Qur’an. (3) The hadith
stands in a direct contradiction with the principle of moral and political equality of the
sexes, a principle established by numerous Qur’anic verses. (4) Finally, the hadith,
being a singular narration (khabar ahad), is of a lesser degree of certainty than
the Qur’anic narration (khabar mutawatar), and hence cannot overrule
principles established in the Qur’an.
We have to conclude therefore that the Islamic sources support the right of women to
have full access to public office, and to enjoy complete equality with men in public life.
Our discussion of the notion of qawwamun, which provides men with a degree of
authority over women, must be confined to the realm of family life. It is in the family,
and in the family alone, that all of the practices cited by the critics of shari`a
as instances of gender inequality can be found, namely polygamy, unequal inheritance, and
inter-religious marriages. Defenders of these inequalities among contemporary Muslim
intellectuals have cited various biological, psychological, and functional bases to
justify inequalities within a framework of complementary family roles. Western critics, on
the other hand, dismiss gender role arguments as outdated and irrelevant, and insist that
for women to live a life of dignity, society must declare the two sexes absolutely equal,
and reject any legal rule that sanctions differentiation among the sexes.
While I do recognize the complexity of the issues involved in the debate on gender
equality and gender roles, and the need for undertaking further research to examine the
socio-historical meaning of biological differences between the sexes, and the
socio-political significance of psychological differences – if any – between
genders, I think that the debate is neither relevant nor helpful for the purpose of
elaborating human rights. It is obvious that the findings of all empirical studies on the
issue of sexual differences have been disputed on ideological grounds and have been
interpreted in support of competing normative positions. There is nothing to suggest that
human beings would ever subordinate their moral beliefs to empirical knowledge – at
least not in a historically relevant timeframe. I propose, instead, that for the purpose
of advancing equitable rights for all, we should focus our attention on how to ensure that
marriage constitutes a consensual relationship that contribute equally to advancing the
interests of the various parties involved. This, I suggest, can be achieved – as far
as the legal system is concerned – by: (1) providing men and women with equal rights
to enter into the relationship on their own terms, and to leave whenever they decide that
the relationship has become exploitative or dissatisfying, and (2) to empower women so as
to ensure that they can negotiate the conditions of the marriage from a point of strength,
and to ensure that they do receive the legal support they need to make it possible for
them to exit the relationship whenever it becomes undignifying.
The point being stressed here is that marriage should be viewed as a voluntary and
contractual relationship, entered into with the aim to founding a family. In keeping
within the framework of human rights, our efforts should focus on liberating the
individual, morally and legally, from the impositions of arbitrary wills, rather than
imposing a specific moral vision or legal code on him or her. Mature men and women should
be able to negotiate the terms of their relationship freely without imposition from
outside. Because, more often than not, families are organized in keeping with specific
religious traditions of recognized moral autonomy, it is wrong for a person who belongs to
one moral community to impose his or her moral vision on others.
The above point can be illustrated by looking into few concrete examples. Forcing a
woman to stay in a marriage against her will violates her right to moral autonomy and
hence contravene her civil liberties, to which she is entitled under international human
rights, even if this was done in keeping with a specific religious tradition, such as the
Catholic. By the same token, no one should be justified to force a woman who, in keeping
with Catholic morality and religion, decides to keep her marriage, even if it can be shown
that her relationship with her husband brings her no satisfaction or happiness. Similarly,
a woman who elects to maintain her marriage even after she became aware of her
husband’s intention to take a second wife, permitted under shari`a, must be allowed
to do so. The law should provide her with the option to opt for a dignified exit under
reasonable conditions. But it would be sheer arrogance for a person belonging to another
moral or religious view to insist that their moral values or religious practices should
prevail over her voluntarily made choice.
Even when one truly believes that the moral system to which he or she belongs is
superior to others, and that others, by following different moralities, are not being
treated to the full respect they deserve, one is not justified to require that his or her
moral system should be imposed through legal means on others. For human dignity, which
human rights intend to protect, requires that the person be first persuaded to the
superiority of this or that moral system, so as to allow him/her to be the agent through
which the legal system is reformed. The most the advocate of human rights should do is to
ensure the free flow of information, and a political environment conducive to freedom of
speech and action.
Because of the importance of the family to human society, all religions stress certain
attitudes and values to keep it intact, and to extend its protection to the fragile souls
who were brought to life within its confines. Human rights scholars should not direct
their efforts to undermine religious attitudes and values, but should focus on the
conditions that allow free and equal entrance and exist to the two genders. This would
mean that while Muslim women may keep in line with their religious conviction and refuse
to marry non-Muslim men, those who elect to violate the religious code should have the
legal freedom to do so. As we saw earlier, in violating the moral requirements of shari`a,
they will be answerable to their creator, not to society.
CONCLUSION
Our examination of the Qur’anic discourse reveals to us the significance it places
on the moral autonomy of human beings. While the Qur’an urges people to adopt high
moral standards, it makes it quite clear that people are ultimately accountable to their
creator for their moral failings. The Qur’an further stresses that while it is not
always possible for people to stay on a high moral plane, they should strive to the best
of their ability to do so. Those who have been more fortunate to lead a moral life should
strive, with tolerance and sympathy, to persuade others to adopt their vision of a good
life, but they should never go to the extent of imposing their morality on others. It was
such an attitude which allowed early Muslims to embrace diverse cultural groups, and to
cooperate and peacefully coexist with a plurality of religious communities.
The tolerant attitude and pluralistic outlook was later diluted, giving rise to a more
intrusive approach in which the lines separating the moral from the legal became blurred.
The traditionalist stance was further compounded by undermining the principle of moral
equality between men and women advanced in the Qur’anic texts. This was done by
giving more weight to particular pronouncements, while ignoring universal principles and
general purposes. Gradually, therefore, the moral autonomy of individuals and groups was
severely compromised. Interestingly, though, in their zeal to assert Islamic morality
through legal enforcement, the traditional jurists unwittingly undermined the moral fabric
of society. This is because moral character does not develop under conditions of rigid
restrictions on free speech and action. By definition, a moral choice presupposes that the
individual has also the choice of acting immorally, or in accordance with standards that
does not rise to the level of moral action. Take this choice away, morality cannot be
distinguished from hypocracy and duplicity.
There is a dire need today for Muslims to undertake a legal reform so as to restore the
principle of moral autonomy to both individuals and cultural groups. By so doing, Muslims
would have a greater opportunity to rid their communities from oppression, corruption, and
hypocricy. They would have also the chance to join hands with an increasing number of
individuals and groups belonging to the various religious communities of the world to
fight global injustice and oppression. The UDHR, should be viewed as a common thread that
can bind the efforts of people belonging to diverse moral communities the world over. As I
tried to show in this paper, supporting international human rights does not mean that one
has to accept the various interpretations assigned to them. While the dominant
interpretations of the various articles of UDHR reflect the moral inclination of Western
individualism, the universal principles themselves are compatible with Islamic values and
ethos. Indeed, the rejection of UDHR on the ground that it does not fit neatly into a
specific moral code derived from Islamic sources is not only a theoretical mistake, but a
strategic blunder as well. Whereas the rejection of UDHR is likely to deprive the Muslims
from achieving greater political liberation, a strong commitment to its principles would
undoubtedly allow them to enter the global debate, and give them the opportunity to bring
their values and ethos to bear positively on the future development of human rights
discourse
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