Human Rights 1 and Islamic Law 2
Human Rights 1 and Islamic Law 2
Abstract and Keywords
This chapter begins by discussing the different traditional barriers which must be destroyed in order to facilitate the dialogical approach adopted to confront the discourse of human rights from an Islamic legal perspective. It then talks about the Islamic responses in international human rights discourse as well as the definition of human rights and Islamic law. It explains the emergence of international human rights, its categorisations, universalism, cultural relativism, and the relevance of Islamic law to universalism in international human rights law. It also examines the nature of Islamic law, its sources, methods, spiritual and temporal aspects, scope and purpose, as well as its application of the Maslahah. It highlights that morality and substantive justice are not displaced as very important factors of human rights philosophy.
2.1 Breaking Traditional Barriers
Traditionally, a number of difficulties confront the discourse of human rights from an Islamic legal perspective. They are traditional barriers that must be broken to facilitate the dialogical approach adopted in this book.
On one hand is the domineering influence of the ‘Western’ perspective of human rights, which creates a tendency of always using ‘Western’ values as a yardstick in every human rights discourse.3 While it is true that the impetus for the formulation of international human rights standards originated from the West, the same cannot be said of the whole concept of human rights, which is perceivable within different human civilizations.4 Related to that, is the negative image of Islam in the West. Often, some of the criminal punishments under Islamic law and the political cum human rights situation in many parts of the Muslim world today are, inter alia, cited by some Western analysts as evidence of lack of provision for respect for human rights in (p.11) Islamic law.5 This is part of what has been termed ‘Islamophobia’6 in the West, which adversely affects the view about human rights in Islam generally. In the academic realm there is also what Strawson has called the ‘orientalist problematique’ by which ‘Islamic law is represented within Anglo-American scholarship as an essentially defective legal system’,7 especially with regards to international law.8
On the other hand is the obstacle of static hardline interpretations of the Sharî‘ah and non-relative application of traditional Islamic jurisprudence on some aspects of inter-human relations. Islamic law or Sharî‘ah are both sometimes vaguely advanced by some Muslim countries as an excuse for their poor human rights records without exhaustive elaboration of the position of Islamic law on the matter.
Due to the above difficulties, the concept of human rights under Islamic law has often been discussed from either a reproachful or a defensive angle, depending on the leanings of the discussant. Piscatori has frowned at the defensive approach of most Muslim writers in the international human rights discourse.9 We need to determine however, whether the defensiveness is merely an apology in the face of genuine challenges posed by international human rights to Islamic law, or reasonable defence against criticisms of Islamic law for human rights situations in Muslim countries not necessarily justifiable even under the Sharî‘ah. On one hand, it is undeniable that Western initiatives and modern challenges, which include the international human rights regime, have forced contemporary Muslim thinkers and intellectuals to propose strongly a review (p.12) of some traditional Islamic jurisprudential views, especially in the area of international law and relations.10 On the other hand, there have also been general erroneous reproaches of Islamic law for the sometimes appalling attitudes or actions of some governments in Muslim countries that are not justifiable even under the Sharî‘ah. At the end of a Seminar on Human Rights in Islam held in Kuwait in 1980, jointly organized by the International Commission of Jurists, the University of Kuwait and the Union of Arab Lawyers, the conclusion, inter alia, was that:
It is unfair to judge Islamic law (Shari’a) by the political systems which prevailed in various periods of Islamic history. It ought to be judged by the general principles which are derived from its sources… Regrettably enough, contemporary Islamic practices cannot be said to conform in many aspects with the true principles of Islam. Further, it is wrong to abuse Islam by seeking to justify certain political systems in the face of obvious contradictions between those systems and Islamic law.11
While the theoretic arguments concerning the conceptual foundations of human rights may be difficult to settle, the indisputable fact is that international human rights are today not a prerogative of a single nation. They are a universal affair that concern the dignity and well-being of every human being. However, there is yet to emerge what we may call a ‘universal universalism’ in international human rights. What exists now has been described as ‘provincialism masquerading as universalism’.12 While the flagrant abuse of human rights in Muslim States under the pretext of cultural differences is unacceptable, the role and influence of the Muslim world in achieving a peaceful coexistence within the international community does permit Muslim States to question a universalism ‘within which Islamic law (generally) has no normative value and enjoys little prestige’.13 Since human rights are best achieved through the domestic law of States, recognition of relevant Islamic law principles in that regard will enhance the realization of international human rights objectives in Muslim States that apply Islamic law fully or partly as State law.
Conversely, there is a need for the Muslim world also to acknowledge change as a necessary ingredient in law. The adaptability of the Sharî‘ah must be positively utilized to enhance human rights in the Muslim world.14 While Muslims must be true to their heritage, the noble ideals of international human rights (p.13) can shed new light on their interpretation of the Sharî‘ah, their international relations and self-awareness within the legal limits of Islamic law.
2.2 Islamic Responses In International Human Rights Discourse
Halliday has identified at least four classes of Islamic responses to the international human rights debate. The first is that Islam is compatible with international human rights. The second is that true human rights can only be fully realized under Islamic law. The third is that the international human rights objective is an imperialist agenda that must be rejected, and the fourth is that Islam is incompatible with international human rights.15 There is a fifth noteworthy response omitted by Halliday, which is that the international human rights objective has a hidden anti-religious agenda.16 Viewed critically, most of these responses are Muslim reactions to what is often described as the double standards of countries at the helm of international human rights promotion. The responses reflect the entrapment of human rights between humanitarianism and international politics rather than actual disagreements with the concept of human rights in Islamic law. We will now evaluate these responses within the perimeter of Islamic law.
The view that Islam is compatible with human rights is the most sustainable within the principles of Islamic law. This is not merely by vaguely or apologetically reading the Western notion of human rights into Islamic principles. The sources and methods of Islamic law contain common principles of good government and human welfare that validate modern international human rights ideals. Respect for justice, protection of human life and dignity, are central principles inherent in the Sharî‘ah which no differences of opinion can exclude. They are the overall purpose of the Sharî‘ah, to which the Qur’an refers.
God commands justice, the doing of good, and liberality to kith and kin, and He forbids all shameful deeds, and injustice and rebellion: He instructs you, that you may receive admonition.17
The view that true human rights can only be fully realized under Islamic law is exclusionist and will be culpable of the same egoism of the criticized (p.14) exclusive Western perspective to human rights. Islam is not egocentric with respect to temporal matters but rather encourages co-operation (ta ‘âwuri) for the attainment of the common good of humanity.18 Islam encourages interaction and sharing of perception. A Tradition of the Prophet Muhammad (PBUH)19 advised Muslims to seek knowledge as far away as China, (a non-Muslim country) and in another Tradition he stated that wisdom is the lost property of a Muslim and he or she is most entitled to it wherever it may be found. All these point towards the recognition by Islam of possible complementary permissible routes to the betterment of humanity in temporal matters. AbuSulayman has thus observed that: ‘[t]he Islamic call for social justice, human equality [equity], and submission to the divine will and directions of the Creator requires the deepest and sharpest sense of responsibility, as well as the total absence of human arrogance and egoism, both in internal and external communication’20
The view that the international human rights regime is an imperialist agenda is not peculiar to the Islamic discourse on human rights. It is common in the human rights discourses of all developing nations.21 This results from the fear of neo-colonialism, and is a psychological effect of the past colonial experience of most developing nations under Western imperialism. That fear is sometimes strengthened by the Western nations’ insistence on defining human rights only in the Western perspective without consideration for the contribution and understanding of other cultures.
If we understand international human rights strictly as a universal humanitarian objective for the protection of individuals against the misuse of State authority and for the enhancement of human dignity, then the view that Islam is incompatible with it is very unsustainable. That is because the protection and enhancement of the dignity of human beings has always been a principle of Islamic political and legal theory. While there may be some areas of conceptual differences between Islamic law and international human rights law, this does not make them incompatible. It is sometimes also argued that human beings have no rights in Islamic law but only to submit to God’s commands.22 That is also misleading. While it is true that human beings are to submit to God’s commands, this does not mean that they have no inherent rights under Islamic law. The principle of legality is a fundamental principle of Islamic law whereby all actions are permitted except those clearly prohibited by the (p.15) Sharî‘ah,23 which means that human beings have inherent rights to everything except for things specifically prohibited. To hold that humans have no rights but only obligations to God expresses a principle of illegality, which makes life very restrictive and difficult. That will be inconsistent with the overall objective of the Sharî‘ah, (i.e. maqâsid al-Shaî‘ah), which is the promotion of human welfare as will be analysed later.24
Most Muslim proponents of the incompatibility view are not really opposed to the concept of human rights per se. Their position only reflects a disappointment with, and protest against, Western hegemony and thus against any ideology considered as championed by Western nations. They often refer to the ‘double standards’ of the West and the general disparity in reactions to human rights abuses under ‘Islamic’ and ‘non-Islamic’ regimes as evidence of lack of sincerity in the international human rights regime.25 For instance one Egyptian critic, ‘Ismat Sayf al-Dawla, has been quoted as denouncing the UDHR in the following words:
I must admit that I am not a supporter of the Universal Declaration of Human Rights that the United Nations Organisation issued on December 10, 1948. Our history of civilisation has taught us to be wary of big and noble words as the reality of our history has taught us how big words can be transformed into atrocious crimes. We cannot forget that the initiators of the Declaration of Human Rights and the plain French citizens are the same people who shortly afterwards, and before the ink of the Declaration had dried up, organised a campaign and sent their forces under the leadership of their favourite general, Napoleon, to Egypt. We must not forget either that the United Nations Organisation issued the Universal Declaration of Human Rights in the same year that it recognised the Zionist state that usurped Palestine and robbed its people of every right stipulated in the Declaration, including the right of life.26
According to Ridwan al-Sayyid, this position ‘stems … from the contradiction between word and deed among Westerners despite the beauty and truth of the word’.27 Huntington has also drawn attention to this protestation by observing that:
Non-westerners… do not hesitate to point to the gaps between Western principle and Western action. Hypocrisy, double standards, and ‘but nots’ are the price of universalist pretensions. Democracy is promoted but not if it brings Islamic fundamentalists to power; nonproliferation is preached for Iran and Iraq but not for Israel; … human (p.16) rights are an issue with China but not with Saudi Arabia;… Double standards in practice are the unavoidable price of universal standards of principle.28
Finally, the view that the international human rights objective harbours a hidden anti-religious agenda also results from some suspicion among Muslims that, having separated the Church from the State in the Western world, the West intends the same for the Muslim world and through the ‘crusade’ of international human rights wants to discredit the Islamic faith with a new international ideology of humanism in its effort to remove religiosity totally from the world order. This, as it may seem, is not an opinion canvassed only by governments in Muslim States but even by individual Muslims whom international human rights are intended to protect.
This indicates the need for continuous education and practical demonstration of sincerity and genuine commitment to the humanitarian ideals of international human rights, especially by the ‘big’ States at the helm of human rights promotion. Bielefeldt has stressed in this regard that human rights ‘do not pretend to serve as a transhistoric yardstick, for measuring cultures and religions generally (and)… are not, and should not be presented as, an international “civil religion”‘ but should be presented as shedding ‘new light on the self-perception of cultural and religious communities because, the principle of human dignity, which has roots in many cultures, serve as the foundation for human rights’.29
2.3 What Are Human Rights?
Human rights are the rights of humans. They are the rights of all human beings in full equality. We are entitled to them simply because we are human beings. They emanate from the ‘inherent dignity of the human person’30 and have been defined as ‘those claims made by men, for themselves or on behalf of other men, supported by some theory which concentrates on the humanity of man, on man as a human being, a member of mankind…’.31 These claims relate to standards of life, which every person has a right to expect from society as a human being. In the words of Umozurike:
Human rights are thus claims, which are invariably supported by ethics and which should be supported by law, made on society, especially on its official managers, by individuals or groups on the basis of their humanity. They apply regardless of race, (p.17) colour, sex or other distinction and may not be withdrawn or denied by governments, people or individuals.32
Scholars have advanced different views concerning the origins of the human rights idea. While some authors assert that ‘human rights are as old as people are’, others hold that human rights should be listed as ‘new business’.33 A better perspective to considering the idea of human rights either as old or new business, is to conceive it as an evolutionary phenomenon that has matured over time through the different stages of human civilization and enlightenment. Lauren has thus observed that:
The historical evolution of visions of international human rights that continues to this day started centuries ago with efforts attempting to address these difficult and universal questions. It began as soon as men and women abandoned nomadic existence and settled in organized societies, long before anyone had ever heard of the more recent expression ‘human rights,’ or before nation-states negotiated specific international treaties.34
2.3.1 Emergence of the international human rights regime35
Although the historical origins of human rights date back into ancient times and are often linked with the idea of natural rights, the First and Second World Wars and the periods between them played the antecedent roles for the emergence of the current international human rights regime.36 The opprobrious and savage treatment of individuals and groups during the period, and the use of the apparatus of State to deal unwholesomely with human beings created international concerns for the general protection of human beings.
Concern for the protection of minority groups in Central and Eastern Europe after the First World War was the first attempt for an international human rights regime. Two human rights notions emerged in the process, namely the notion of individual rights and that of collective rights. The first was for the protection of the rights of individuals and the second for the protection of minorities.37 Attempts at including human rights provisions in the Covenant of the League of Nations that was to be created were, however, unsuccessful. (p.18) What emerged were separate minority protection treaties and State declarations guaranteeing the protection of the rights of minorities. The League of Nations however performed a supervisory role over the obligations created, which were considered of international concern.38
Private endeavours continued both within and outside the League of Nations for the realization of an international human rights regime. In 1929 the Institute of International Law, a private body of distinguished authorities on international law in Europe, the Americas and Asia, adopted the Declaration of the Rights of Man,39 in which it considered it the duty of every State to recognize, inter alia, the equal rights of every individual to life, liberty, and property. The Institute also considered that every State had a duty to accord to everyone within its territory the full and entire protection of these rights without distinction as to nationality, sex, race, language, or religion. Although the Declaration was not a binding document, it contributed to the popularization of the idea of international human rights in the years immediately after its adoption. The Declaration also set a pace for a new relationship between the individual and the State under international law. Marshall Brown, an editor of the American Journal of International Law, in 1930 reflected the Declaration’s significance in the then emerging international regime as follows:
This declaration… states in bold and unequivocal terms the rights of human beings, ‘without distinction of nationality, sex, race, language and religion,’ to the equal right to life, liberty and property, together with all the subsidiary rights essential to the enjoyment of these fundamental rights. It aims not merely to assure to individuals their international rights, but it aims also to impose on all nations a standard of conduct towards all men, including their own nationals. It thus repudiates the classic doctrine that states alone are subjects of international law. Such a revolutionary document, while open to criticism in terminology and to the objection that it has not juridical value, cannot fail, however, to exert an influence on the evolution of international law. It marks a new era which is more concerned with the interests and rights of sovereign individuals than with the rights of sovereign states.40
The fascist atrocities during the Second World War further aroused the asperity of humanity and moved the world community to call for formal international measures aimed at ensuring the protection of human rights and achievement of world peace and security. The Allies determined even before the end of the war that an international commitment to the protection of human rights should be a part of the post Second World War settlement. Thus, in the preamble to the Charter of the United Nations Organization which emerged after the (p.19) war,41 the Member States declared their determination ‘… to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small…’.42 They also made it clear in Article 1(3) that one of the purposes of the UN was ‘(t)o achieve international co-operation in… promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion. ’.
The UN Member States also pledged themselves under Article 56 of the Charter ‘to take joint and separate action in co-operation with the Organization for the achievement of the purposes stated in Article 55’, which include ‘universal respect for, and observation of, human and fundamental freedoms for all without distinction as to race, sex, language, or religion’. Although the Charter contains no provisions as to the contents of human rights, it signalled the dawn of the international human rights regime. It provided for the establishment of an Economic and Social Council (ECOSOC) whose functions included making ‘recommendations for the purpose of promoting respect for, and observance of, human rights and fundamental freedoms for all’.43 Henkin has succinctly described the development as follows:
The UN charter ushered in a new international law of human rights. The new law buried the old dogma that the individual is not a ‘subject’ of international politics and law and that a government’s behaviour toward its own nationals is a matter of domestic, not international concern… It gave the individual a part in international politics and rights in international law, independently of his government. It also gave the individual protectors other than his government, indeed protectors and remedies against his government.44
The UDHR was the first UN document adopted containing a list of internationally recognized human rights.45 It was adopted as a simple resolution of (p.20) the General Assembly of the UN in 1948.46 The rights in the UDHR were stated in very general terms and some of its principles are today considered to have become part of customary international law because they lead to rights accepted by States generally.47 The UDHR has served as a framework not only for subsequent international human rights treaties but also for many national and regional human rights documents.48
In 1966, the International Covenant on Civil and Political Rights (ICCPR)49 and the International Covenant on Economic, Social and Cultural Rights (ICESCR)50 were adopted, and both entered into force in 1976.51 The two Covenants together with the UDHR constitute the International Bill of Rights. The rights guaranteed under the two Covenants cover nearly all the basic values cherished by every civilized human society.52 Apart from the International Bill of Rights, the UN has also adopted other ancillary international treaties and declarations on the rights of women, children, refugees, stateless persons, diplomatic agents, minorities, and.the like. There are also specific international human rights treaties for the protection of the human person against atrocities such as genocide, racial discrimination, apartheid, slavery, forced labour, torture, etc.53
Regional organizations such as the Council of Europe, the Organization of American States, the Organization of African Unity,54 and the League of Arab States have also adopted different regional human rights treaties in recognition of the noble ideals of international human rights. The basic regional human rights treaties are the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950),55 the European Social Charter (1961),56 the American Convention on Human Rights (1969),57 the African Charter on (p.21) Human and People’s Rights (1981),58 and the Arab Charter on Human Rights (1994).59 Also of relevance is the Cairo Declaration on Human Rights in Islam adopted by the Organization of Islamic Conference in 1990.60
All the above international treaties and declarations on human rights confirm, as rightly observed by Henkin, the acceptance of the human rights idea by ‘virtually all states and societies’ of the contemporary world ‘regardless of historical, cultural, ideological, economic or other differences’.61
2.3.2 Categorization of human rights
Human rights are today classified either by subject, object or ‘generation’. Thus, we talk of civil and political rights distinct from economic, social and cultural rights, and of individual rights separate from collective or group rights. We also talk of first generation, second generation, and third generation rights.
The civil and political rights are often referred to as the ‘first generation’ rights.62 They are the traditional rights relating to the liberty and justice that individuals are entitled to expect from the State. They are the favourites of Western States, some of whom considered them as the only true human rights.63 The ICCPR contains the list of the internationally recognized civil and political rights. Apart from the right of self-determination, the civil and political rights are mostly individual rights, which every individual may demand of the State. In the past, these rights were sought through the channel of civil disobedience and revolution. Today, international human rights law provides the individual with legal channels for the demand and guarantee of these rights.64
Economic, social, and cultural rights are the so-called ‘second generation’ rights. They are mostly rights which States have to take positive action to promote. They may be called the sustenance or enjoyment rights, and are strongly advanced by socialist and developing nations.65 The ICESCR contains a list of internationally recognized economic, social, and cultural rights. Despite their inevitability for the sustenance of human dignity, the economic, social, and cultural rights are often considered as ‘utopian aspirations’, non-legal and (p.22) non-justiciable.66 Shue however argues strongly that there is a basic or fundamental human right to subsistence which the economic, social, and cultural rights fulfil. He contends that justice and international law require the rich nations to share their abundant resources with the millions of human beings who are chronically malnourished all over the world.67 Human rights would certainly be meaningless in a world where one part of humanity is in abundance but yet feels no obligation for another part of it in abject poverty. The notion of ‘generations’ of human rights can thus be misleading if not well addressed. For instance, it had for a long time distracted attention from the important role of the economic, social, and cultural rights in the enhancement of human dignity. Many scholars therefore reject this notion of ‘generations’.68 While the civil and political rights might have been pursued more vigorously in international law for political and ideological reasons, this does not mean that the economic, social, and cultural rights are less important.69
Supplementary to the so-called first and second ‘generation’ of rights mentioned above is also the notion of a ‘third generation’ of human rights. These are collective rights, not individual rights. They are described as solidarity rights based on solidarity between men. According to its major proponent, Karel Vasak, the ‘third generation’ human rights are born of the obvious brotherhood of men and their indispensable solidarity.70 The right to development, right to peace, and right to a healthy and balanced environment are prominent on the list of the proposed third generation of human rights. This group of human rights also expresses aspirations for co-operation between developed affluent nations on one hand and developing poor nations of the world on the other, for the benefit of humanity. With the exception of treaties on environmental protection, (p.23) which are reflective of the right to a healthy and balanced environment, there is no UN international treaty yet on the ‘third generation’ of human rights.71
Although the categorization of human rights may serve the useful purpose of easy identification of particular rights, there is the need to emphasize the treatment of human rights as a totality. The UN General Assembly has thus stressed the fact that all human rights are indivisible and interdependent.72 This will prevent a rigid compartmentalization of human rights and ensure a wholesome realization of the ideals of international human rights law.
2.3.3 Universalism in international human rights law
The question of universalism in international human rights law has been very intensely debated.73 It is noted however that the ‘universality of human rights has often generally been confused with ‘universalism in’ human rights within the international human rights discourse. Although the two concepts are interrelated, each refers to a different aspect of the universalization of human rights. An appreciation of the distinction between the two concepts is very important for a realistic approach to the question of universalism in international human rights law.
‘Universality of human rights refers to the universal quality or global acceptance of the human rights idea as elaborated above, while ‘universalism in’ human rights relates to the interpretation and application of the human rights idea.74 The universality of human rights has been achieved over the years since the adoption of the UDHR in 1948, and is evidenced by the fact that there is no State today that will unequivocally accept that it is a violator of human rights. Today, all nations and societies do generally acknowledge the human rights idea, thereby establishing its universality. However, universalism (p.24) in human rights has not been so achieved. Universalism connotes the existence of a common universal value consensus for the interpretation and application of international human rights law. The current lack of such universal consensus is evidenced by the fact that universalism continues to be a subject of debate within the international human rights objective of the UN.75 Universalism is often confronted by the cultural relativist argument at every opportunity in the international human rights discourse. For example during the Vienna Conference on Human Rights, representatives of some African, Asian, and Muslim States challenged the present concept of universalism in international human rights as being West-centric and insensitive to non-Western cultures. Prior to the conference, a group of Asian States had adopted the Bangkok (Governmental) Declaration recognizing the contribution that can be made by Asian countries to the international human rights regime through their diverse but rich cultures and traditions.76 An NGO coalition from the Asia Pacific region had also adopted the Bangkok NGO Declaration on Human Rights promoting the emergence of ‘a new understanding of universalism encompassing the richness and wisdom of Asia pacific cultures’.77 Muslim States that apply Islamic law also often advance similar arguments in respect of Islamic law.78
When the UDHR was adopted by the UN General Assembly in 1948 it was very clear from the outset that the human rights it guaranteed were intended to be universal. Apart from it being titled a ‘Universal Declaration’, the General Assembly proclaimed it as ‘a common standard of achievement for all peoples and all nations’. The need to promote respect for the rights through national and international measures and to secure their universal and effective recognition and observance was also identified in the Declaration.79 The UN was then constituted of only 58 Member States.80 Although none of the (p.25) Member States opposed the human rights idea or its universalization, eight of them (Byelorussian SSR, Czechoslovakia, Poland, Saudi Arabia, South Africa, USSR, Ukrainian SSR, and Yugoslavia) abstained from voting for the adoption of the Declaration due principally to interpretational differences on some of its provisions.81 While the number of abstaining States may have seemed insignificant, it was no doubt a signal of the possible interpretational divergence ahead of the then emerging universal human rights initiative. Renteln has observed notably in this respect that all the eighteen drafts considered for the UDHR ‘came from the democratic West and that all but two were in English’.82 She concluded thus that ‘(t)he fact that there were no dissenting votes should not be taken to mean that complete value consensus had been achieved’.83
One of the earliest indications of the need for a universal value consensus and thus a multicultural approach to the then emerging international human rights initiative was given in 1947 by the American Anthropological Association in its memorandum submitted to the UN Commission on Human Rights charged with the drafting of the UDHR. The Association had stated, inter alia, that:
Because of the great numbers of societies that are in intimate contact in the modem world, and because of the diversity of their ways of life, the primary task confronting those who would draw up a Declaration on the Rights of Man is thus, in essence, to resolve the following problem: How can the proposed Declaration be applicable to all human beings, and not be a statement of rights conceived only in terms of the values prevalent in the countries of Western Europe and America?… the problem is complicated by the fact that the Declaration must be of world-wide applicability. It must embrace and recognize the validity of many different ways of life. It will not be convincing to the Indonesian, the African, the Indian, the Chinese, if it lies on the same plane as like documents of an earlier period. The rights of Man in the Twentieth Century cannot be circumscribed by the standards of any single culture, or be dictated by the aspirations of any single people. Such a document will lead to frustration, not realization of the personalities of vast numbers of human beings.84 (emphasis added)
The above observation was calling attention to universalism in human rights because it referred specifically to the ‘world-wide (that is, universal) applicability’ to the Declaration. The UN Commission seemed however to have (p.26) concentrated more on the universality of human rights at that early stage and not necessarily on the means of identifying a universal value for achieving the rights guaranteed by the Declaration—that is, universalism in human rights. It is in the context of universalism (not universality) that many publicists, in retrospect, contend that were the UDHR to be readopted, it would perhaps be impossible to reach the same unanimity in today’s fragmented world of more than 190 culture-conscious Member States of the UN.85
It is discernible however that emphasizing universalism by the UN Commission at that early stage in 1947 could have stalled the whole universal human rights initiative. Rather, the UDHR was drafted in very general terms to secure the support of all the States despite their different cultures. The seventh preambular paragraph to the Declaration however stated that ‘a common understanding of these rights and freedoms is of the greatest importance for the full realization of this pledge’. But since the Declaration contained no ultimate interpretative organ, the interpretation of the rights declared was, more or less, left to the individual States, each interpreting the values within its cultural context. The controversy on universalism in human rights did not fully arise until human rights had established itself as a powerful catalyst in international relations championed strongly by Western States, and Western scholarship consequently projecting human rights as a strictly Western concept subject to complete West-oriented interpretations. This was met by counter arguments advocating a culturally relative interpretation of international human rights norms. Thus began the contending theories of universalism versus cultural relativism within the universal human rights objective of the UN, which has resulted in a sort of paradox.
2.3.4 The paradox of universalism and cultural relativism
The theory of universalism is that human rights are the same (or must be the same) everywhere, both in substance and application. Advocates of strict universalism assert that international human rights are exclusively universal. This theory is mostly advocated by Western States and scholars who present universalism in human rights through a strict Western liberal perspective. They reject any claims of cultural relativism and consider it as an unacceptable theory advocated to rationalize human rights violations. Scholars who argue that human rights were developed from Western culture also often argue that Western norms should always be the universal normative model for international human rights law.86 Advocates of this exclusive concept of (p.27) universalism usually seek support for their argument in the language of international human rights instruments, which normally state that ‘every human being’, ‘everyone’, or ‘all persons’ are entitled to human rights. While it is trite that the language of international human rights instruments generally supports the theory of universalism, present State practice hardly supports any suggestion that in adopting or ratifying international human rights instruments, non-Western State Parties were indicating an acceptance of a strict and exclusive Western perspective or interpretation of international human rights norms.87 One may observe in this regard that Article 31(2) of the ICCPR, for instance, provided that in electing members of the Human Rights Committee ‘consideration shall be given to equitable geographical distribution of membership and to the representation ofthe differentforms ofcivilization and of the principal legal systems’ of the State Parties (emphasis added). It is arguable that this recognizes the need for an inclusive and multi-civilizational approach in the interpretation of the Covenant.88
The theory of cultural relativism is thus advocated mostly by non-Western States and scholars who contend that human rights are not exclusively rooted in Western culture, but are inherent in human nature and based on morality. Thus human rights, they claim, cannot be interpreted without regard to the cultural differences of peoples. Advocates of cultural relativism assert that ‘rights and rules about morality are encoded in and thus depend on cultural contexts’.89 The theory emanates from the philosophy of the need to recognize the values set up by every society to guide its own life, the dignity inherent in every culture, and the need for tolerance of conventions though they may differ from one’s own.90 Cultural relativism is thus conditioned by a combination of historical, political, economic, social, cultural, and religious factors and not restricted only to indigenous cultural or traditional differences of people.
A critical evaluation of both theories reveals that, on the one hand, the theory of cultural relativism is prone to abuse and may be used to rationalize human rights violations by different regimes. It admits of pluralistic inputs, which, if not properly managed, can debase the efficacy of human rights. On the other hand, the current values projected for the interpretation of international human rights law by advocates of strict universalism have been criticized as (p.28) purely Western and not really universal.91 The present theory of universalism is itself thus criticized as being culturally relative to Western values.92 That is the paradox, whereby the controversy between universalism and cultural relativism actually portrays a situation of cultural relativisms.
To most of the former colonies, Western values are essentially being used as the universal repugnancy test for the interpretation of international human rights law in the same way colonial laws and customs were used in colonial periods to eliminate local laws.93 The question has thus often been raised as to whether the theory of strict universalism in human rights is not another ‘form of neocolonialism serving to strengthen the dominance of the West’.94 The ideals of universalism in international human rights law need therefore to be advanced in a manner that escapes charges of cultural imperialism within non-Western societies.
A supposed coherent and homogeneous notion of a ‘Western’ human rights tradition is however also misleading and must therefore be embraced with caution. It is contestable whether there is, in fact, a complete homogenized legal interpretation of human rights among ‘Western’ States. For example, there is evidence from the practice and case law of both the European and Inter-American regional human rights mechanisms that ‘Western’ States do also differ in some cases on the scope of some human rights principles. While there is certainly a wide area of consensus in human rights traditions among ‘Western’ States, this does not in practice always translate into a single homogeneous ‘Western’ human rights approach in relation to universalism in international human rights law.
Universalism in international human rights law demands the evolution or identification of a universal consensus in the interpretation of human rights principles. This calls for a multicultural or cross-cultural approach to the interpretation and application of the international human rights principles in a manner that will not reduce its efficacy but lead to the realization of an inclusive theory of universalism. The American Anthropological Association had argued in its earlier quoted comment to the Human Rights Commission that international human rights should ‘… not be circumscribed by the standards of any single culture, or be dictated by the aspirations of any single people’.95 An-Na’im has also reiterated that: ‘Any concept of human rights that is to be universally accepted and globally enforced demands equal respect (p.29) and mutual comprehension between rival cultures’.96 That argument continues to be advanced today mostly by non-Western States. There is thus a need for an objective evaluation of what every civilization can contribute to universalism in international human rights law. Presumptions of cultural inferiority must be avoided and justifications on cultural differences must be examined and critically evaluated within the parameters of human dignity with a view to evolving an inclusive universalism in international human rights law.
Whatever definition or understanding we ascribe to human rights, the bottom line is the protection of human dignity. There is perhaps no civilization or philosophy in today’s world that would not subscribe to that notion. Thus it may only be difficult, but not impossible to evolve a universally acceptable conception in that respect. There is need for sincere and justificatory cross-cultural evaluations of human dignity with a view to evolving international moral values which no repressive regime may find easy to circumvent in the business of State governance.
2.3.5 Relevance of Islamic law to universalism in international human rights law
The relevance of Islamic law in the quest for an inclusive universalism that will ensure the full realization of international human rights in the Muslim world is, in view of the number of Muslim States in the international legal order, quite obvious. This has often been practically demonstrated by references to Islamic law in the arguments and reports of Muslim States to UN charter and human rights treaty committees.97 The general relevance of Islamic law in international law is also demonstrated by the existence of a ‘Committee on Islamic Law and International Law’ amongst the international committees of the International Law Association (ILA). Notably, the Committee for instance proposed in its report after the ILA London Conference in July 2000, ‘to contribute to the advancement of International Law on asylum and refugees by incorporating some aspect of Islamic Law on asylum in International Law’.98
Mayer has however observed that there is a general indifference to the Islamic tradition within learned international human rights literature and that ‘[q] uestions of Islamic law are only occasionally mentioned in scholarly writing on international human rights—for the sake of comparison with international norms or to illustrate the problems of introducing international norms in areas of the developing world’.99 Thus, while Islamic law is recognized as (p.30) a factor relevant to the introduction of international norms in Muslim areas of the developing world, legal scholarship on the subject has not been projected strongly enough to achieve effective harmonization of the differences in scope between Islamic law and international human rights law.
It is noteworthy however that the ILA adopted Resolution No. 6/2000 after the London Conference acknowledging that ‘… aspects of Islamic Law are protective of human rights’ and requested its Committee on Islamic Law and International Law ‘to continue its work on the contribution of Islamic Law to the development of International law by undertaking further studies, with a view of reporting on that work to the 70th conference to be held in New Delhi in 2002’.100
More than just establishing a religious and legal order, Islam is an institution of legitimacy in many States of the Muslim world. Many regimes in the Muslim world today seek their legitimacy through portraying an adherence to Islamic law and traditions. Thus any attempt to enforce international or universal norms within Muslim societies in oblivion of established Islamic law and traditions creates tension and reactions against the secular nature of the international regime no matter how humane or lofty such international norms may be. For example the Representative of the Islamic Republic of Iran, Said Raja’i-Khorasani at the 65th meeting of the Third Committee during the 39th Session of the UN General Assembly on 7 December 1984 had argued in defence of alleged violation of human rights by his country that the new political order in Iran was:
in full accordance and harmony with the deepest moral and religious convictions of the people and therefore most representative of the traditional, cultural, moral and religious beliefs of Iranian society. It recognised no authority… apart from Islamic law… (therefore) conventions, declarations and resolutions or decisions of international organisations, which were contrary to Islam, had no validity in the Islamic Republic of Iran.101
Conversely, accommodation of Islamic law is also often seen in international human rights circles as accommodating a constraint on freedoms, liberties, and human rights generally. The assumption is that it is impossible to realize human rights within an Islamic legal dispensation. For example when one of the States in the Federal Republic of Nigeria promulgated a law in (p.31) 1999 for the full application of Islamic law within its jurisdiction102 many human rights groups both within and outside the country expressed fears that such application of Islamic law would adversely constrain fundamental human rights and freedoms within the jurisdiction of the State.103 Similar fears were expressed by human rights groups in 1998 when the government of Pakistan proposed a constitutional amendment Bill to its Parliament seeking to make the Qur’an and Sunnah the supreme law of Pakistan.104 Such apprehension is believed to have also contributed to the abortion of the democratization process in Algeria in 1992 through a military takeover, when it appeared that the Islamic Salvation Front (FIS) would emerge victorious in the overall elections. According to Bassam Tibi: ‘If the FIS were to come to power, the first measure it would have taken would have been to abolish the constitution and declare nizam al-islami [Islamic system of government based on the sharî‘ah]’.105
While the political and legal philosophy of Islam may differ in certain respects from that of the secular international order, it does not necessarily mean a complete discord with the international human rights regime. Removing the traditional barriers of distrust and apathy would reveal that diversity is not synonymous to incompatibility. Mayer has observed that:
The Islamic heritage offers many philosophical concepts, humanistic values, and moral principles that are well adapted for use in constructing human rights principles. Such values and principles abound even in the premodem Islamic intellectual heritage.106
It is those Islamic humanistic concepts and values of the Sharî‘ah that need to be fully revived for the realization of international human rights within the application of Islamic law in Muslim States.
Judge Weeramantry formerly of the International Court of Justice had also observed in his penetrating work, Justice Without Frontiers, Furthering Human Rights, that although Locke, the founding father of Western human rights, never attended most of his lectures as a student at Oxford, ‘he assiduously attended only the lectures of Professor Pococke, the professor (p.32) of Arabic studies’. According to the learned judge: ‘Those studies may well have referred to Arabic political theory including the idea of rights that no ruler could take away, subjection of the ruler to the law, and the notion of conditional rulership’. He concluded that: ‘When Locke proclaimed his theory of inalienable rights and conditional rulership, this was new to the West, but could he not have had some glimmerings of this from his Arabic studies?’.107
The wide gap that still exists between the theory and reality of the universal protection of human rights108 indicates that universalism in international human rights law is not yet a fait accompli. The evolution of international human rights has therefore not reached the end of its history yet. With the cognizance that international human rights law is aimed at the enhancement of human dignity and the promotion of human welfare, it is submitted that Islamic law rather than contradicting it, should be able to contribute to the realization of its ideals and also to the achievement of its universal observation, especially in the Muslim world. What is required, as observed by one writer, is an analysis ‘from within by a Muslim intellectual who can engage in dialogue with the traditionally educated scholars of Islamic jurisprudence’,109 comparatively with international human rights law in a manner that facilitates better understanding and appreciation between the two legal regimes.
2.4 What Is Islamic Law?
Traditionally, Islamic law is not strictly speaking monolithic. Its jurisprudence accommodates a pluralistic interpretation of its sources, which does produce differences in juristic opinions that can be quite significant in a comparative legal analysis. Afshari has thus argued that ‘(w)hen reference is made to “Islamic law”, a host of diverse positions … comes into the picture’.110
The complexity of Islamic law does not however make it indeterminable. The differences of the jurists and schools of Islamic jurisprudence represent ‘different manifestations of the same divine will’ and are considered as ‘a diversity within unity’.111 This depicts recognition of the inescapable (p.33) pluralism that exists within human society. According to Breiner, Islam ‘refuses the temptation to find unity only in uniformity, even in matters of law’.112 The appreciation of differences, Breiner continued, is an ‘important principle of Islamic law, one quite different from the assumptions of Roman law inherited throughout most of Europe’.113 There is in fact an Islamic jurisprudential maxim that says: ‘The blessing of the Muslim community lies in the jurists’ differences of opinion’.114
Law is ultimately the product of its sources and methods, and Islamic law is not an exception to that fact. It is important therefore to distinguish between Sharî‘ah as the source from which the law is derived and Fiqh as the method by which the law is derived and applied.115
2.4.1 Nature of Islamic law
There is often a traditional misconception about Islamic law being wholly divine and immutable. This usually arises from a non-distinction between the sources and methods of Islamic law. Distinguishing between Sharî‘ah and Fiqh is very significant for a proper understanding of the nature of Islamic law. Although either of the terms ‘Sharî‘ah’ and ‘Fiqh’ is often referred to as Islamic law, they are not technically synonymous.
Literally Sharî‘ah means ‘path to be followed’ or ‘right path’116 while Fiqh means ‘understanding’.117 The former refers principally to the sources while the latter refers principally to the methods of Islamic law. In the strict legal sense Sharî‘ah refers to the corpus of the revealed law as contained in the Qur’an and in the authentic Traditions (Sunnah) of the Prophet Muhammad. It differs in this sense from Fiqh because it (Sharî‘ah) refers here to the primary sources (p.34) of the law, which is textually immutable. Fiqh on the other hand refers to methods of the law, that is, the understanding derived from, and the application of the Sharî‘ah, which may change according to time and circumstances.118 The significance of this distinction with respect to the Islamic law arguments advanced in this book are:
1. Sharî‘ah as a source of Islamic law is divine in nature and thus immutable, while Fiqh, as the understanding, interpretation, and application of the Sharî‘ah, is a human product that may change according to time and circumstances; and
2. Sharî‘ah broadly covers the moral, legal, social, and spiritual aspects of the Muslims’ life, while Fiqh mostly covers the legal or juridical aspect of the Sharî‘ah as distinguished from the moral.119
Islamic law thus consists of two component parts: (i) immutable divine revelation termed Sharî‘ah and (ii) human interpretation of the Sharî‘ah termed Fiqh. ‘Abd al ‘Ati has correctly observed that ‘confusion arises when the term Sharî‘ah is used uncritically to designate not only the divine law in its pure principal form, but also its human subsidiary sciences including figh.120 We will now examine the characteristics of these two component parts of Islamic law.
2.4.2 Sources of Islamic law—(Sharî‘ah)121
The Qur’an and the Sunnah primarily constitute both formal and material sources of Islamic law. Their nature as formal sources of Islamic law emanates from their being divine and quasi-divine revelations respectively, which Muslims must religiously obey and follow. Their nature as material sources of Islamic law follows from the fact that they contain the corpus of the revealed law. The Qur’an is the principal source and is believed by Muslims to be the exact words of God revealed to the Prophet Muhammad over a period of approximately twenty-three years for the guidance of humanity.122 It is (p.35) not strictly a constitutional code, but more specifically described by God as a book of guidance.123 Out of its approximately 6,666 verses, which cover both the spiritual and temporal aspects of life, Muslim jurists estimate between 350 to 500 verses as containing legal elements,124 while according to Coulson: ‘No more than approximately eighty verses deal with legal topics in the strict sense of the term’.125 This, conceivably, anticipates the application of some juridical principles to extend the few strictly legal verses to cover the dynamic and expansive nature of human life. However, those verses that may be viewed largely as moral rules also constitute the basis for every Islamic legal principle.126
The words of the Qur’an are, to Muslims, immutable and from it ‘springs the very conception of legality’127 in Islam. The Qur’an forms the foundation or the basic norm of Islamic law, the grundnorm, as Kelsen calls it. However, while legal texts are very significant as material sources in every legal system, their interpretation is what actually constitutes law at every point in time. The text of the Qur’an is divine, but its application has been through human interpretation since revelation. The Prophet Muhammad being the receiver of its revelation, was obviously in the best position to interpret the Qur’an during his lifetime, and he did so in his dual role as a Prophet and a judge. His elucidation of some verses of the Qur’an formed the initial basis of what came to be known as his Sunnah or Traditions.
The Sunnah as a source of law consists of the Prophet’s lifetime sayings, deeds and tacit approvals on different issues, both spiritual and temporal. The Sunnah developed from the need for elucidation, by the Prophet, of some Qur’anic verses, supply of details to some general provisions of the Qur’an and instructions on some other aspects of life not expressly covered by Qur’anic texts. Thus Imâm al-Shâfi‘î, the eponym of the Shâfi‘î school of Islamic jurisprudence128 had stated that:
the Sunnah of the Prophet is of three types: first is the Sunnah which prescribes the like of what God has revealed in His Book; next is the Sunnah which explains the general principles of the Qur’an and clarifies the will of God; and last is the Sunnah where the Messenger of God has ruled on matters on which nothing can be found in the Book of God.129
(p.36) The role of the Sunnah as a source of law is supported in the Qur’an itself.130 The Qur’an and the Sunnah thus formed the only sources of law from the Prophet’s lifetime. Ramadan has therefore observed that ‘the structure of Islamic Law—the Sharî‘ah—was completed during the lifetime of the Prophet, in the Qur’an and the Sunnah’.131 An illustrative evidence of the Qur’ an and Sunnah being sources of Islamic law from the time of the Prophet Muhammad is the well-known Tradition in which the Prophet was reported to have asked one of his companions named Mu’adh ibn Jabal, when he deployed the latter as a judge to Yemen, as to what would be his source of law in deciding cases. Mu’âdh replied: ‘I will judge with what is in the book of God (Qur’ an)’. The Prophet then asked: ‘And if you do not find a clue in the book of God?’. Mu’adh answered: ‘Then with the Sunnah of the Messenger of God’. The Prophet asked again: ‘And if you do not find a clue in that?’. Mu’âdh replied: ‘I will exercise my own legal reasoning’.132 The Prophet was reported as being perfectly satisfied with these answers by Mu’adh, which signified an approval by the Prophet.
The general rule on the application of the Qur’ an and Sunnah as main sources of Islamic law is that in case of any irresolvable conflict between a verse of the Qur’an and a reported Sunnah, the former prevails, because of its indubitable authenticity in Islamic law.133
While Muslims believe generally that the Sunnah also has elements of divine inspiration, they appreciate that not every reported Tradition is authentic. The political differences between the fourth Caliph, Ali and Mu’ âwiyah in the middle of the first century of Islam, which led to the emergence of factions among the Muslims, led to the emergence of fabricated statements and distorted Traditions attributed to the Prophet.134 A conscientious and critical technique of authenticating the Sunnah was thus developed which eventually culminated in the emergence of the six recognized and authentic books of Sunnah of the Sunnî School in the third century of Islam.135
In applying a Sunnah, the two main questions that need to be answered are whether the Sunnah is authentic and if so whether it is obligatory. The first (p.37) question is basically a question of fact that is usually considered on the basis of the evidence adduced to support it in accordance with laid down criteria for the verification of Prophetic Traditions. The second question is a question of law depending, inter alia, on the context and language of the particular Tradition.
2.4.3 Methods of Islamic law—(Fiqh)
The passage of time and the expansion of Islam after the demise of the Prophet brought many new cases that were not directly covered by the Qur’anic texts or the Prophetic Traditions. On the authority, inter alia, of the Tradition of Mu’âdh ibn Jabal quoted earlier above, the concept of ijtihâd (legal reasoning) was developed as a method of Islamic law from which later emerged the legal methods of Ijmâ’ (juristic consensus) and Qiyâs (legal analogy) as well as doctrines such as Istihsân (juristic preference), Istislâh or Maslahah (welfare), ‘Urf (custom), Darûrah (necessity), through which the formal sources could be extended to cover new developments of life. These methods, which are usually considered as secondary or subsidiary sources of Islamic law, were products of human reasoning, an indication of the recognition of human reasoning in the Islamic legal process from the earliest period of Islam. The methods were applied to new cases not expressly covered by Qur’ anic texts or the Sunnah, and also facilitated the adequate interpretation and application of those two sources to suit the different and changing circumstances of human life. Thus, while the revealed sources of Islamic law (that is, Sharî‘ah) was completed with the demise of the Prophet, the evolved methods of Islamic law were to be the vehicle by which the jurists would transport the Sharî‘ah into the future. In the words of Qadri, ‘the jurists are emphatic in saying that though God has given us a revelation He also gave us brains to understand it; and He did not intend to be understood without careful and prolonged study’.136 The careful and prolonged study helps to prevent misapplication of the methods.
With the expansion of Islam and its establishment within different cultures outside Arabia, about 500 schools of legal reasoning developed in the early years but most of them disappeared and others merged by the beginning of the third century of Islam. Four Sunnî 137 schools of jurisprudence survive up to the present times. They are the Hanafî School (prevails in Turkey, Syria, Lebanon, Jordan, India, Pakistan, Afghanistan, Iraq, and Libya), the Mâlikî School (prevails in North Africa, West Africa, and Kuwait), the Shâft‘î School (prevails in Southern Egypt, Southern Arabia, East Africa, Indonesia, and Malaysia) and the Hanbalî School (prevails in Saudi Arabia and Qatar). Other schools of jurisprudence also emerged from within the Shî‘ah. The major ones being the Ithnâ ‘Asharî or Twelvers (prevails in Iran and Southern Iraq), the (p.38) Zaydî (followed in Yemen), the Ismâ‘ilî (followed in India) and the Ibâdî (followed in Oman and parts of North Africa).138
All the schools of Islamic jurisprudence generally recognize the Qur’an and Sunnah as the primary sources of Islamic law. The differences of opinion on particular matters result from their different interpretations of some Qur’ anic verses and Prophetic Traditions. The different views of jurists on certain matters reflected their sensitivity to the different cultures of the different provinces within which the schools of jurisprudence flourished.139 To control the divergence in interpretation of the sources and also to regulate the legal process, the jurisprudence of the established schools on both the aspects of worship (ibâdât) and inter-human relations (mu‘âmalât) compiled in form of legal treatises became accepted as the established material sources of Islamic law. By the tenth century it was thought that the established schools of jurisprudence had fully exhausted all the possible questions of law and that the necessary material sources of Islamic law were fully formed. The utilization of the doctrine of independent legal reasoning (ijtihâd) consequently diminished and this led, by the thirteenth century, to what was termed as ‘closing the gate of legal reasoning (ijtihâd) and opening that of legal conformism (taqlîd)’. Islamic law thus became restricted largely to the application of the legal findings of the jurists as recorded in the legal treatises of the established schools of jurisprudence dating back to the tenth century.140 Muslims thus became restricted to conform to or follow the rulings of any one of the schools of jurisprudence but were not generally allowed to exercise independent legal reasoning on any matter. This brought a halt, or at least a slowdown, to the dynamism that had been injected into Islamic law from its inception, and that, according to Iqbal, ‘reduced the Law of Islam practically to a state of immobility’.141 Although many contemporary scholars have challenged the notion of the closing of the gate of ijtihâd,142 the legal conformism (taqlîd) of following the rulings of the jurists of the very early period of Islam continues to this day. The jurisprudence (fiqh) of the established schools found in their treatises dating from the tenth century are today held as the corpus of Islamic law and portrayed as the immutable Sharî‘ah. In respect to which Ramadan has rightly observed that:
the invariable basic rules of Islamic Law are only those prescribed in the Sharî‘ah (Qur’an and Sunnah), which are few and limited. Whereas all juridical works during (p.39) more than thirteen centuries are very rich and indispensable, they must always be subordinated to the Sharî‘ah and open to reconsideration…143
While legal conformism (taqlîd) is not in itself an undesirable practice, it must be distinguished from blind conservatism that does not allow for a reflective and contextual application of classical precedents. It is a necessary methodology of Islamic law, especially for lay persons not qualified in the science of Islamic jurisprudence. Nyazee has observed that legal conformism (taqlîd) ‘as distinguished from blind conservatism,… is a legal method for ensuring that judges who are not fully qualified mujtahids may be able to decide cases in the light of precedents laid down by independent jurists’.144 That neither places unnecessary restrictions on the development of new theories of interpretation nor prevents qualified judges or jurists from exercising their own independent ijtihâd when necessary. Nyazee has further observed that Islamic jurists do ‘maintain that if a person has the necessary ability, it is binding upon him to follow his own opinion The only requirement is that he must declare hisprinciples of interpretation so that other jurists should be able to judge his competence’.145
2.4.4 Spiritual and temporal aspects of Islamic law
As already observed above, the provisions of the Sharî‘ah broadly cover all aspects of human life. However, through the methods of Islamic law the jurists have categorized Islamic law into two broad spheres. The first sphere embodies spiritual rulings regulating religious observance and acts of worship. This is generally referred to as ibâdât and concerns the direct relationship between an individual and God. The second sphere embodies temporal laws regulating inter-human relations and the temporal affairs of this world. This is generally referred to as mu ‘âmalât and generally promotes the realization of the common good (ma ‘rûf) of humanity. While the jurisprudence on the spiritual aspects is considered to be fully settled and mostly unchanging, the same is not true of the temporal aspects. It is in the sphere of temporal affairs that the arrest in the dynamism of Islamic jurisprudence is greatly felt. The traditional jurisprudence (fiqh) of the established schools on some aspects of inter-human relations has been overtaken by the dynamic nature of human life and thus created some lacunae that must be revisited in Islamic legal and political thought.146
The need to rejuvenate the methods of Islamic law to generate a more encompassing and realistic jurisprudence to meet contemporary challenges became (p.40) evident from the nineteenth century with the intimate interaction between the East and the West. That urge continues today. The advancements and developments of modern life have affected inter-human relations in many ways which Islamic law needs to address from contemporary perspectives. The challenges of international human rights law is one of such developments. Due to the erroneous impression that the traditional opinions of the established schools of Islamic jurisprudence were totally immutable, Muslims were hesitant in formally accepting the need for a reappraisal of the methods of Islamic law and of the established views of its early great jurists. Nevertheless, Islamic legal scholarship aimed at a formal, adequate and cohesive reappraisal of the methodology of Islamic law in the light of contemporary challenges has been going on since the late nineteenth century with general contributions from many Muslim thinkers and intellectuals.147 However, the stagnation from the thirteenth century continues to eclipse the great legacy of the earliest Islamic jurists that developed Islamic law into a most dynamic legal system from which even the West was a borrower in the Middle Ages.148
2.4.5 Scope and purpose of Islamic law
Today, Islamic law continues to be formally applied in many parts of the Muslim world as we had it interpreted by the classical Sunnî schools of Islamic jurisprudence with regards to the Sunnî Muslims and the classical Shî‘ah schools with regards to Shî‘ah Muslims. A static and immoderate application of some of the traditional interpretations of the Sharî‘ah can however constrain the scope of Islamic law for present times. Research shows that the earliest Islamic jurists had utilized the methods of Islamic law within the scope of the Sharî‘ah in an evolutionary and constructive manner that prevented any unwarranted circumscription upon humans living during their times. Such evolutionary and constructive application is more relevant today than before.
Taking cognizance of the object and purpose of the Sharî‘ah (maqâsid al-sharî‘ah), which has been identified as promotion of human welfare and prevention of harm (maslahah),149 is an important holistic approach for realizing the proper and benevolent scope of Islamic law. In his discussion of al-Shâtibî’s theory of the object and purpose of the Sharî‘ah (maqâsid al-sharî‘ah), Hallaq emphasizes, inter alia, al-Shâtibî’s view that ‘the original intention of God in revealing the law (is) to protect the interests of man (both (p.41) mundane and religious)’.150 God says in the Qur’ an,’ To each among you have We prescribed a Law (shir‘ah) and an Open Way (minhâj)’, that is, an approach for its application.151 The maqâsid approach of interpreting and applying the Sharî’ah is thus recognized as guaranteeing the full equity of Islamic law.
In his analysis of the scope and equity of Islamic law, Ramadan identified six important characteristics of Islamic law deducible from a thorough study of the Qur’an, the Sunnah and the works of classical Islamic jurists. They are as follows:
1. The formal sources of Islamic law, namely the Qur’ an and Sunnah ‘are basically inclined towards establishing general rules without indulging in much detail’. This makes room for a wider application of the legal sources through the legal methods for the best benefit of humanity.
2. Qur’ anic ‘texts were directly meant to deal with actual events [and] Presupposition was basically excluded from’ the legislative philosophy of Islamic law. This characteristic, Ramadan observes, is a method of realism which ‘is apt to minimize the definite limitations imposed on human dealings’, which in essence makes things easier for humanity.
3. ‘As a rule, everything that is not prohibited is permissible.’ In explaining this rule Ramadan rightly observed that: ‘Islamic Law was not meant to paralyze people so that they might not move unless allowed to. Man on the contrary, is repeatedly called upon by the Qur’an to consider the whole universe as a Divine grace meant for him, and to exhaust all his means of wisdom and energy to get the best out of it’.
4. ‘ Even in the field of prohibition, the Qur’ an sometimes used a method which could gradually meet a growing readiness in the society where the revealed enjoinments were to be implemented.’ This is the so-called principle of gradualism (tadrîj) by which legislation was gradually upgraded in view of societal circumstances. Thus social circumstances are not overlooked in the development of the law.
5. ‘All that the Qur’an and the Sunnah have prohibited becomes permissible whenever a pressing necessity arises.’ This is based on the doctrine of necessity (darûrah) by which all Islamic jurists generally agree that ‘necessity renders the prohibited permissible’.
6. ‘The door is wide-open to the adoption of anything of utility, of whatever origin, so long as it does not go against the texts of the Qur’an and the Sunnah.’152
(p.42) Apart from many other Qur’anic verses and Prophetic Traditions in support of the above characteristics of Islamic law, the following Qur’anic verse succinctly summarizes the benevolent nature of Islamic law.
… For he commands them what is just and forbids them what is evil; he allows them as lawful what is good and prohibits them from what is bad. He releases them from their heavy burdens and from the yokes that are upon them.153
Thus, the overall objective and purpose of the Sharî‘ah is the promotion of human welfare and prevention of harm (maslahah), which must always be kept in mind in both its interpretation and application as Islamic law.
2.4.6 Promotion of human welfare and prevention of harm—(Maslahah)
Among the different doctrines and principles established by the founding jurists for an intelligible application of Islamic law, maslahah is considered as the most viable means of bringing the ideals of Islam closer to realization for all time. Kamali has observed that:
The doctrine of maslahah is broad enough to encompass within its fold a variety of objectives, both idealist and pragmatic, to nurture the standards of good government, and to help develop the much needed public confidence in the authority of statutory legislation in Muslim societies. The doctrine of maslahah can strike balance between the highly idealistic levels of expectation from the government on the part of the public and the efforts of the latter to identify more meaningfully with Islam.154
The doctrine was originally introduced by Imâm Mâlik, the eponym of the Mâlikî school of Islamic jurisprudence, and later developed further by jurists such as al-Ghazâli and al-Tûfi of the Shâft‘î and Hanbalî schools respectively. The fourteenth century Malikî jurist, Abû Ishâq al-Shâtibî further developed the concept as a ‘basis of rationality and extendibility of Islamic law to changing circumstances (and also) as a fundamental principle for the universality and certainty of Islamic law’.155 It is an expedient doctrine of Islamic law acknowledged today by Islamic legalists as containing ‘the seeds of the future of the Sharî‘ah and its viability as a living force in society’.156
The term maslahah literally means ‘benefit’ or ‘welfare’ and is generally used under Mâlikî jurisprudence, in a narrower sense, to express the principle of ‘public benefit’ or ‘public welfare’ and often qualified as ‘maslahah mursalah’ (literally meaning ‘released benefit’) when such benefit is not tied down to (p.43) specific textual authority but based on consideration of collective well-being. Maslahah has in that sense often been understood to connote ‘maslahah al-‘ummah’, that is, the benefit or welfare of the Muslim community as a whole. However, the utilization of maslalah to achieve collective/communal benefit or welfare does not necessarily preclude its broader application to protect the rights and welfare of individuals. The general concept of maslahah also accommodates what may be called ‘maslahah shakhsiyyah’, that is, individual benefit or welfare, to ensure the protection of human rights.
While human rights specifically aim at protecting the rights of individuals, the ultimate aim is equally to guarantee the benefit and welfare of human beings as a whole wherever they may be. Protecting the welfare of individuals does ultimately ensure communal/public welfare and vice versa. This makes the doctrine of maslahah very relevant in the discussion of human rights under Islamic law.
In relating maslahah to the overall objective of the Sharî‘ah (maqâsid al-sharî‘ah), al-Shâtibî, building on al-Ghazâlî’s theory, has advanced a three hierarchical classification for the determination of its scope. On the first and highest level are those benefits considered as indispensable benefits (darûriyyât), consisting of what has been described as the five universals,157 namely: protection of life, religion, intellect, family, and property. Due to their indispensability they must not only be promoted but also protected. Some contemporary Muslim scholars equate these with fundamental rights (al-huqûq al-fitriyyah).158 On the second level are those considered as necessary benefits (hâjiyyât). These are supplementary to the first category and consist of those benefits the neglect of which may cause hardship to life, but the upholding of which does not lead to the collapse of society. They ensure accommodation of the necessary changes in life within the law and thereby make life tolerable. The third level are those considered as improvement benefits (tahsîniyyât) and consist of those things that improve and embellish life generally and thereby enhance the character of the Sharî‘ah generally.159
Against the background of the nature and evolution of Islamic law established above, the doctrine of maslahah is thus advocated in this study as a veritable Islamic legal doctrine for the realization of international human rights within the dispensation of Islamic law. This is based on the understanding earlier expounded that international human rights has a universal humanitarian objective for the protection of individuals against the misuse of (p.44) State authority and for the enhancement of human dignity.160 We will rely on the doctrine of maslahah within the ample scope of the Sharî‘ah in deriving legal benefits and averting hardship to the human person, as endorsed by the Qur’anic verse that: ‘He [God] has not imposed any hardships upon you [humans] in religion’.161
This utilization of maslahah in relation to the maqâsid al-sharî’ah will accommodate the principle of takhayyur (eclectic choice),162 to facilitate movement within the principal schools of Islamic jurisprudence as well as consideration of the views of individual Islamic jurists to support alternative arguments advanced on topical issues in this book.
Interpretations of the Sharî‘ah in the Muslim world today may be classified into the main divisions of ‘traditionalist’ and ‘evolutionist’. The ‘traditionalists’ are those who see value in a tenacious adherence to the classical interpretations of the Sharî‘ah as laid down from the tenth century in the legal treatises of the established schools of Islamic jurisprudence. They are sometimes also referred to as ‘conservatives’ or ‘hardliners’ due to their often strict ‘back looking’ adherence to the classical legal treatises and ‘non-forward looking’ application of the classical opinions of the founding jurists of Islamic law. The ‘evolutionists’ are those who, while identifying with the classical jurisprudence and methods of Islamic law, seek to make it relevant to contemporary times. They believe in the continual evolution of Islamic law and argue that if the Sharî‘ah must really cope meaningfully with modern developments and be applicable for all time, then such modern developments must be taken into consideration in the interpretation of the Sharî‘ah. They are also referred to as Islamic liberals or moderates. They adopt a ‘back and forward looking’ approach in their interpretations of the Sharî‘ah and a contextual application of classical Islamic jurisprudence. The scope of harmonization between Islamic law and international human rights law depends largely upon whether a hardline or moderate approach is adopted in the interpretation of the Sharî‘ah and the application of classical Islamic jurisprudence. The expediency of each approach will be discerned in our comparative analyses of the ICCPR and ICESCR with Islamic law in the following chapters.
2.5 The Justificatory Principle
Despite the fact that human rights is now viewed more in the context of legal positivism due to the embodiment of its contents in Bills and Treaties for specificity, this does not displace morality and substantive justice as very important factors of human rights philosophy. The strongest arguments for the universality of human rights are still hinged on moral arguments and the (p.45) need for substantive justice in human relationships. This involves the question of values and beliefs, which do change over time and space. Unlike most of the previous works on this subject, this book will thus examine relevant justificatory or jurisprudential arguments in relation to the values attached to specific human rights from both the international human rights and Islamic law perspectives. This will facilitate an in-depth understanding of the areas of differences and provide a basis for the practical harmonization of the conceptual differences between international human rights and Islamic law principles.
Generally, human rights is viewed in Western nations as a product of Western liberalism, which advocates values such as freedom, liberty, individualism, and tolerance. In many Muslim nations however, Western liberalism is considered as very permissive and capable of corrupting the moral values of society as prescribed by the Sharî‘ah. Conceiving liberalism and human rights as notions of total liberty and freedom of the individual to do whatever he pleases is however wrong because that will contradict the basic foundations of political and legal authority. By their nature, both law and political authority constitute some limitation upon the freedom and liberties of individuals. Perhaps, the correct perception is as stated by Locke that ‘…Liberty is to be free from restraint and violence from others, which cannot be, where there is no law:… Freedom is not, as we are told, A Liberty for every Man to do what he lists’.163 Under what has been described as the ‘fundamental liberal principle’ there only exists a kind of presumption in favour of liberty, which places the burden of proof on anyone who contends for any restriction on it.164 Thus the power of the State to interfere in the actions of individuals is not completely ousted under liberal theory or within human rights but only curtailed to its legitimate necessity. The necessity of control by the political authority through law is recognized, but any limitations they impose upon individual liberties and freedoms must be justifiable in accordance with the law and not be arbitrary. The justificatory principle thus establishes that restrictions upon the rights of individuals must be clearly determinable and justifiable under the law in order not to violate their freedom, liberties and fundamental human rights.
Under Islamic law the political authority owes a duty not only to the people but to God not to violate the freedom and liberties of the ruled without justification. The justificatory principle finds support from the fact that even in the Qur’an, a justifying clause usually accompanies nearly every prohibition concerning human relations (Mu‘âmalât). The parameter of justification within Islamic law is thus often found within the Qur’an itself. While the text of the (p.46) Qur’an is not subject to amendment, its provisions may thus be interpreted in the light of societal changes and the relevant justificatory principle within the holistic values of the Sharî’ah in a manner that ensures that there is no deviation from its divine basis. It is with respect to this that an Islamic legal maxim states that ‘tatagayyar al-ahkâm bi tagayur al-zamâri meaning that legal rulings may change with the change in time.165 This applies mostly to matters concerning human interactions. Examples of this can be found in the practices of Muslim jurists of all ages. It is this approach that Islamic evolutionists tend to adopt in their interpretations of Islamic legal texts. This facilitates the interpretation of the Islamic legal texts to accommodate the dynamic changes in human life. When the justifications attaching to certain legal provisions change then the legal rule may also change. The same principle applies to the documented juristic views of the early Islamic jurists, which must be considered in the light of their justifications. An example may be cited on the Northern Nigerian166 case of Tela Rijiyan Dorawa v. Hassan Daudu 167 which involved a land dispute between one Dorawa, a Christian and one Daudu, a Muslim. The parties appeared before an Upper Area Court in Sokoto, each calling a witness in evidence. Dorawa called another Christian, John, as his witness while Daudu called another Muslim, Hausa, as his own witness. The Upper Area Court after reviewing the evidence before it, rejected the testimony of John because he was a Christian on grounds that the evidence of a non-Muslim was not acceptable under Islamic law. Judgment was thus entered in favour of Hassan Daudu. Dorawa appealed to the Sokoto High Court. The learned High Court judge, himself a Muslim, in consultation with the then Grand Kadi of Sokoto State,168 allowed the appeal and overturned the ruling of the Upper Area Court. The High Court relied on the Islamic legal principle of takhayyur (eclectic choice) which allows reliance on the opinions of other Islamic schools of jurisprudence, and also cited Islamic legal literature to illustrate that the traditional reason for the disqualification of the testimony of non-Muslims by classical Islamic jurists was the fear of their being unjust due to their lack of Islamic belief, and that their evidence was acceptable when there is no such fear or in case of necessity. The Court was said to have ‘regarded the condition of Nigeria today being a country with large Muslims, Christian and animist communities, living side by side and transacting business with each other, as (p.47) satisfying the necessity’ making the evidence of a non-Muslim admissible in Islamic law.169
In our comparative analysis of the ICCPR and ICESCR in the light of Islamic law in the next two chapters, the justificatory principle will be utilized, where necessary, in arguing a paradigm shift from traditional hardline interpretations of Islamic law and also from exclusionist interpretations of international human rights law that do not consider Islamic normative values at all.
(1) For detailed analysis of the theory of human rights, see, inter alia, Cranston, M., What Are Human Rights? (1973); Rosenbaum, A. (ed.), The Philosophy of Human Rights, International Perspectives (1980); Shestack, J. J., ‘The Jurisprudence of Human Rights’ in Meron, T, (ed.). Human Rights in International Law: Legal and Policy Issues (1984) Vol.1, pp.69–113; Donnelly, J., The Concept of Human Rights (1985); Vincent, R.J., Human Rights and International Relations (1986); Donnelly, J., Universal Human Rights in Theory and Practice (1989); Winston, M.E. (ed.), The Philosophy of Human Rights (1989); Nino, C.S., The Ethics of Human Rights (1991); and Douzinas, C, The End of Human Rights (2000).
(2) For English language analysis of Islamic law and jurisprudence, see, inter alia, Ramadan, S., Islamic Law: Its Scope and Equity (1970); Qadri, A.A., Islamic Jurisprudence in the Modern World (1986); Philips, A.A.B., The Evolution ofFiqh (1988); Kamali, M.H., Principles of Islamic Jurisprudence (1991); Hallaq, W.B., A History of Islamic Legal Theories (1997); Nyazee, I.A.K., Theories of Islamic Law (n.d); and Nyazee, I.A.K., Outlines of Islamic Jurisprudence (2000).
(3) See e.g. Mayer, A.E., ‘Current Muslim Thinking on Human Rights’ in An-Na’im, A.A. and Deng, F.M. (eds.), Human Rights In Africa, Cultural Perspectives (1990) p.133 at p.148 (asserts that human rights ‘are principles that were developed in Western culture’ and suggests that Western culture should serve as the universal normative model for the content of international human rights law) and Tibi, B., ‘The European Tradition of Human Rights and the Culture of Islam’ in ibid., p. 104 at p. 105. For opposing views see e.g. Said, M.E., ‘Islam and Human Rights’ (1997) Rowaq Arabi, January, p.11 at p.13; Manglapus, R, ‘Human Rights are not a Western Discovery’ (1978) 4 Worldview, pp.4–6; and Kushalani, Y., ‘Human Rights in Asia and Africa’ (1983) 4 Human Rights Law Journal, No.4, p.404.
(5) See Bannerman, P., Islam in Perspective, A Guide to Islamic Society, Politics and Law (1988) p.25. See also Robertson, B.A., ‘Islam and Europe: An Enigma or a Myth?’ (1994) 48 Middle East Journal, No.2, pp.288–307.
(6) See e.g. Tash, A.Q., ‘Islamophobia in the West’ (1996) Washington Report on Middle East Affairs, November/December p.28; and ‘Islamophobia’ in BULLETIN, University of Sussex Newsletter, 1November 1997, p. 16: http://www.sussex.ac.uk/ press_office/bulletin/07nov97/item 12. html [1/3/03].
(7) See generally Strawson, J., ‘Encountering Islamic Law’, University of East London Law Department Research Publications Series, No. 1, p. 1.
(8) Strawson, for instance, refers to Schacht’s very well-known work, Introduction to Islamic Law, which omits the discussion of Islamic international law because of what Schacht described as ‘its essentially theoretical and fictitious character and the intimate connection of the relevant institutions with the history of Islamic states…’ (see Schacht, J., Introduction to Islamic Law (1964) p. 112). It is difficult to imagine how international law can stand without an ‘intimate connection of the relevant institutions’ of the State. As to the excuse of ‘its essentially theoretical and fictitious character’, this was in 1964 when, even in Western discourses, public international law had its own cynics as to whether it was really law or not, but this never ostracized public international law from the law books. Such approaches to Islamic law were some of the barriers, inter alia, which shut out Islamic law from contemporary international law discourses. See also generally Said, E.W., Orientalism, Western Conceptions of the Orient (1978).
(9) See Piscatori, J.P., ‘Human Rights in Islamic Political Culture’ in Thompson, K., (ed.), The Moral Imperatives of Human Rights: A World Survey (1980) p. 139 at pp. 152–162; see also Manzoor, P., ‘Humanity Rights as Human Duties’ Inquiry, July 1987, p.34 at pp.37–38.
(10) See e.g. AbuSulayman, A.A., Towards an Islamic Theory of International Relations: New Directions for Islamic Methodology and Thought (1993).
(11) See International Commission of Jurisits, Human Rights in Islam: Report of a Seminar held in Kuwait in December 1980 (1982) p.7.
(13) See Mayer, A.E., Islam and Human Rights, Tradition and Politics, (3rd Ed., 1999) p.41.
(14) See Yamani, A.Z., ‘The Eternal Shari’a’ (1979) 12 New York University Journal of International Law and Politics, p.205.
(15) Halliday, F., ‘Relativism and Universalism in Human Rights: The Case of the Islamic Middle East’ in Beetham, D. (ed.), Politics and Human Rights (1995) p.152 at pp.154–155.
(16) See e.g. Mortimer, E., ‘Islam and Human Rights’ Index on Censorship, October, 1983, No.12, p.5.
(17) Q16:90. See Baderin, M. A., ‘Establishing Areas of Common Ground between Islamic Law and International Human Rights’ (2001) 5 The International Journal of Human Rights, No.2, pp.72–113, for further analysis of the compatibility between human rights and Islamic law.
(18) See e.g. Q5:5 ‘… Co-operate with one another in good deeds and piety but not in sin and enmity’.
(19) The abbreviation PBUH which means ‘Peace be Upon Him’, will not be repeated in writing after this first occurrence but shall be implied as repeated after every occurrence of the Prophet’s name throughout this book.
(22) See e.g. Rajaee, E., Islamic Values and Worldview: Khomeyni on Man, the State and International Politics (1983) pp.42−45.
(23) See e.g. Ramadan (above n.2) at p.68. See also al-Shâtibî, A.I., al-Muwâfaqât (Arabic) (1997) Vol.2; Ibn al-Qayyim, I’lâm al-Muwaqqi ‘în An Rabb al- Alamîn (Arabic) (1996) Vol.1, pp.71–72; and Nyazee, I.A.K., Theories of Islamic Law (n.d) pp.47–50, for a brief discussion of this principle of permissibility under Islamic law, as well as the opposing Hanafi view of the principle of illegality.
(24) See para.2.4.5 below.
(25) For example, in nearly all human rights communiqués or resolutions adopted at every Islamic conference, the question of Palestine comes up as an issue of double standards in international relations and law.
(26) See Sayf al-Dawla, I., ‘Islam and Human Rights: Controversy and Agreement’ (1988) 9 Minbar al-Hiwar pp.33–39, cited in al-Sayyid, R., ‘Contemporary Muslim Thought and Human Rights’ (1995) 21 Islamochristiana, p.27 at p.28.
(28) Huntington, S.R, The Clash of Civilizations and the Remaking of World Order, (1996),p.84.
(29) See Bielefeldt, H., ‘Muslim Voices in the Human Rights Debate’ (1995) 17 Human Rights Quarterly, p.587 at p.616.
(30) See e.g. 2nd Preambular paragraphs of the ICESCR (1966) and ICCPR (1966) and 1st Preambular paragraph of the UDHR (1948).
(31) Dowrick, EE. (ed.), Human Rights: Problems, Perspectives and Texts (1979) p.8.
(32) Umozurike, U.O., The African Charter on Human and Peoples’ Rights (1997) p.5.
(33) See e.g. Cleveland, H., ‘Introduction: the Chain Reaction of Human Rights’ in Henkin, A.H. (ed.), Human Dignity: The Internationalization of Human Rights (1979) p.ix.
(34) Lauren, P.G., The Evolution of International Human Rights, Visions Seen (1998) p.5. See also generally Ishay, M.R. (ed.), The Human Rights Reader: Major Political Essays, Speeches and Documents from the Bible to the Present (1997).
(35) See e.g. Sohn, L.B., ‘The New International Law: Protection of the Rights of Individuals Rather than States’ (1982) 32 American University Law Journal, pp. 1–64.
(36) See e.g. Weston, B., ‘Human Rights’ in New Encyclopaedia Britannica, 15th Ed.,Vol.20, p.713; Douzinas, C, The End of Human Rights (2000); Szabo, I., ‘Historical Foundations of Human Rights and Subsequent Developments’ in Vasak, K. (ed.), The International Dimensions of Human Rights (1982) Vol.1, p.l; Cassese, A., Human Rights in a Changing World (1990) pp.1–23.
(38) See e.g. Art. 12 of The Polish Minorities Treaty (1920). See also Cassese (above n.36) at pp. 17–21; Weston (above n.36) at p.717; and Ezejiofor, G., Protection of Human Rights Under Law (1964) pp.38–50.
(39) See (1941) 35 American Journal of International Law, pp.662–665.
(40) See (1930) 24 American Journal of International Law, p. 127.
(41) The UN Charter was adopted on 26 June 1945 and is regarded as ‘the constitution of the organized world community after World War IF and is binding between all the Member States of the UN. See Ermacora, F., Nowak, M., and Tretter, H. (eds.), International Human Rights: Documents and Introductory Notes (1993) p.3.
(42) See Preamble to the UN Charter (1945) 1 UNTS, p.xvi.
(43) See Chapter X of the UN Charter.
(44) See Henkin, L. (ed.), The International Bill of Rights: The Covenant on Civil and Political Rights (1981) p.6.
(45) The rights covered by the UDHR are Life, liberty and security of person (Art. 3), Recognition as a person (Art. 6), Equality before the law (Art. 7), Effective legal remedies (Art. 8), Due process of law (Arts 9, 10 & 11), Freedom of movement (Art. 13), Asylum (Art. 14), Nationality (Art. 15), Marriage and family (Art. 16), Property (Art. 17), Freedom of thought, conscience and religion (Art. 18), Freedom of opinion and expression (Art. 19), Peace- ful assembly and association (Art. 20), Participation in government (Art. 21), Social security (Art. 22), Work and equal pay for equal work (Art. 23), Rest and leisure (Art. 24), Adequate standard of living (Art. 25), Education (Art. 26), Cultural life (Art. 27), Prohibition of slavery or servitude (Art. 4), Prohibition of torture or cruel, inhuman or degrading treatment (Art. 5), Prohibition of arbitrary interference with privacy (Art. 12).
(46) 10 December 1948, GAOR, 3rd Sess., Res.217A.
(47) See Lillich, R.B., ‘The Growing Importance of Customary International Human Rights Law’ (1995–96) 25 Georgia Journal of International and Comparative Law, Nos. 1 & 2, pp. 1–30.
(48) See Hannum, H., ‘The Status of the Universal Declaration of Human Rights in National and International Law’ (1995–96) 25 Georgia Journal of International and Comparative Law, Nos. 1 & 2, pp.287–396.
(49) 999 UNTS, p. 171.
(50) 993 UNTS, p.3.
(51) For the drafting history and long-standing contentious debate on the nature of civil and political rights and economic social and cultural rights, see e.g. Sohn, L.B., ‘A Short History of United Nations Documents on Human Rights’ in United Nations and Human Rights (1968); Szabo, I., ‘Historical Foundations of Human Rights and Subsequent Developments’ in Vasak, K., (ed.), The International Dimensions of Human Rights (1982) Vol.1.
(54) The OAU has now been replaced by the African Union (AU); see Art. 28 of the Constitutive Act of the African Union which came into force on 26 May 2001.
(55) Adopted on 4 November 1950. E.T.S. No.005.
(56) Adopted on 18 October 1961. E.T.S. No.035.
(57) Adopted on 22 November 1969. O.A.S.T.S. No.36 at p.l.
(58) Adopted on 27 June 1981. OAU Doc.CAB/LEG/67/3 rev. 5; (1982) 21 ILM 58.
(59) Adopted 15 September 1994, but not yet in force. Reprinted in (1997) 18 Human Rights Law Journal, p. 151. See Rishmawi, M., ‘The Arab Charter on Human Rights: A Comment’ (1996) 10 Interights Bulletin, No.l, pp. 8–10 for an overview of the Arab Charter.
(60) Adopted on 5 August 1990. The Declaration was submitted by the OIC to the UN prior to the 2nd World Conference on Human Rights in Vienna as representing the view of the Muslim States on human rights in Islam. See UN Doc. A/CONF.157/PC/62/Add.l8 (1993).
(63) See e.g. US position in UN Doc. A/40/C3/36, p.5 (1985) that economic, social, and cultural rights were ‘societal goals’ rather than human rights.
(64) See e.g. Optional Protocol 1 to the ICCPR (1966); 999 UNTS, p. 171.
(66) See e.g. Cranston, M., What Are Human Rights? (1973) pp.9–17.
(67) See generally, Shue, H., Basic Rights: Subsistence, Affluence and US Foreign Policy (2nd Ed., 1996).
(68) See e.g. Eide, A. and Rosas, A., ‘Economic, Social and Cultural Rights; A Universal Challenge’, in Eide, A., et al., (eds.), Economic, Social and Cultural Rights: A Textbook (1995) p.27.
(69) See Van Hoof, G.J.H., ‘The Legal Nature of Economic, Social and Cultural Rights: A Rebuttal of Some Traditional Views’ in Alston, R, and Tomasevski, K., (eds.), The Right to Food (1984) pp.97–110 (argues that it is wrong to construe a strict dichotomy of the two groups of rights, and suggests a more integrated approach that covers both sets of rights). For analyses of the long-standing and contentious debate on the relationship between civil and political rights, and economic, social, and cultural rights, see e.g. Vierdag, E.W., ‘The Legal Nature of the Rights granted by the International Covenant on Economic, Social and Cultural Rights ’(1978) 9 Netherlands Yearbook of International Law, p.69; Craven, M.C.R., The International Covenant on Economic, Social and Cultural Rights: A Perspective on its Development (1995) pp.8–16 and footnotes thereof; Vincent, R.J., Human Rights and International Relations (1986) pp. 11–13; Donnelly, J., Universal Human Rights in Theory and Practice (1989) pp.28−45.
(70) See Vasak, K., ‘For the Third Generation of Human Rights: The Rights of Solidarity’, Inaugural Lecture to the 10th Study Session of the International Institute of Human Rights, Strasbourg, 2–27 July, 1979.
(71) The UN General Assembly has however adopted the Declaration on the Right to Development at its 97th plenary meeting on 4 December 1986, and recognized in its preamble that ‘development is a comprehensive economic, social, cultural and political process, which aims at the constant improvement of the well-being of the entire population and of all individuals on the basis of their active, free and meaningful participation in development and in the fair distribution of benefits resulting therefrom’. The right to development also continues to be a subject of discussion within the activities of the UN Commission for Human Rights. See e.g. the UN Secretary General’s Report on Right to Development to the 55th Session of the UN General Assembly UN Doc. A/55/283 of 8 August 2000.
(72) See e.g. idGA Res. 32/130 of 16 December 1977, and also paragraph 5 of the Declaration of the World Conference on Human Rights, Vienna 1993, UN Doc. A/CONF. 157/23.
(73) See e.g. Symposium on ‘Universalism and Cultural Relativism: Perspectives on the Human Rights Debate’ (1997) Human Rights at Harvard, 5 April 1997, pp.9–38. See also Steiner, H.J. and Alston, P., International Human Rights in Context, Law Politics Morals (2nd Ed., 2000) p.366.
(74) Linguistically the suffix ‘-ity’ denotes the quality, condition or degree of a phenomenon while the suffix ‘-ism’ denotes its system, principle, result or practice. See e.g. Pearsall, J., and Trumble, B., (eds), The Oxford English Reference Dictionary (Oxford: Oxford University Press, 2nd Ed., 1996) p.746 and p.749.
(75) See e.g. Ghai, Y., ‘Human Rights and Governance: The Asia Debate’ (1994) 15 Australian Yearbook of International Law, p. 11. See also generally Renteln, A.D., International Human Rights: Universalism Versus Relativism (1990); Bauer, J.R., and Bell, D.A., (eds.), The East Asian Challenge for Human Rights (1999); and also Smith, J., (ed.), Human Rights: Chinese and Dutch Perspectives (1996).
(76) See ‘Report of the Regional Meeting for Asia of the World Conference on Human Rights’ (Bangkok, 29 March-2 April 1993), UN Doc. A/Conf.l57/ASRM/8, Preambular paragraph 2.
(77) See 1st paragraph under Challenges in the Bangkok NGO Declaration on Human Rights. Reproduced in (1993) 14 Human Rights Law Journal, p.352.
(78) See e.g. the 1st Principle in the Rome Declaration on Human Rights in Islam (2000) and generally Baderin, M.A., ‘A Macroscopic Analysis of the Practice of Muslim State Parties to International Human Rights Treaties: Conflict or Congruence?’ (2001) 1 Human Rights Law Review, No. 2, pp.265–303.
(79) See paragraph 8 of the Preamble of the UDHR.
(80) Afghanistan, Argentina, Australia, Belgium, Bolivia, Brazil, Belarus, Canada, Chile, China, Colombia, Costa Rica, Cuba, Czechoslovakia, Denmark, Dominican Republic, Ecuador, Egypt, El Salvador, Ethiopia, France, Greece, Guatemala, Haiti, Honduras, Iceland, India, Iran, Iraq, Lebanon, Liberia, Luxembourg, Mexico, Myanmar, Netherlands, New Zealand, Nicaragua, Norway, Pakistan, Panama, Paraguay, Peru, Philippines, Poland, Russian Federation, Saudi Arabia, South Africa, Sweden, Syrian Arab Republic, Thailand, Turkey, Ukraine, United Kingdom of Great Britain and Northern Ireland, United States of America, Uruguay, Venezuela, Yemen, Yugoslavia.
(81) In particular, Saudi Arabia had objected, inter alia, to the interpretation of the article on religious liberty (Art. 18) and the provision on equal rights in marriage (Art. 16). See UN Official Records, 3rd Committee, 3rd Session, 1948–49, Pt.120, cited in Little, D., Kelsay, J. and Sachedina, A., Human Rights and the Conflict of Cultures (1988) pp.33–52.
(84) See American Anthropological Association, ‘Statement on Human Rights’ (1947) 49 American nthropologist, pp.539–543. See also the 1999 AAA Declaration on Anthropology and Human Rights available at: http://www.aaanet.org/committees/cfhr/ar95.htm [1/3/03] and Engle, K., ‘From Skepticism to Embrace: Human Rights and the American Anthropological Association from 1947–1999’ (2001) 23 Human Rights Quarterly, No.3, pp.536–559, for an analysis of the two statements.
(85) See e.g. An-Na’im, A.A., ‘Universality of Human Rights: An Islamic Perspective’ in Ando, N., (ed.), Japan and International Law: Past, Present and Future (1999) p.311 at pp.318–319.
(86) See e.g. D’Amato, A.A., Collected Papers, International Law Studies (1997) Vol.2, pp. 139–40; and Mayer, E.A., ‘Current Muslim Thinking on Human Rights’ in An-Na’im, A.A., and Deng, KM., (eds.), Human Rights in Africa, Cultural Perspectives (1990) p. 131 at pp. 147–148.
(88) The same provision can be found in Art. 8 of the International Convention on the Elimination of All Forms of Racial Discrimination (1965) on the election of the members of CERD. Also Art. 9 of the Statute of the International Court of Justice (1945) provides for ‘the representation of the main forms of civilization and of the principal legal systems of the world’ in the election of its judges.
(89) See Steiner, H.J. and Alston, P., International Human Rights in Context, Law Politics Morals (2nd Ed., 2000) p.366.
(90) See Herskovits, M., Man and His Works (1950) p.76.
(91) See e.g. Mutua, M., ‘The Ideology of Human Rights’ (1996) 36 Virginia Journal of International Law, p.586 at pp.592–593.
(93) For e.g. see Obilade, OA., The Nigerian Legal System (1979) and Park, A.E.W., The Sources of Nigerian Law (1963) for analyses of the application of the repugnancy principle in the Nigerian legal system. See also Allot, A.N., New Essays in African Law (1970).
(94) See Higgins, R., ‘The Continuing Universality of the Universal Declaration’ in Baehr, P., et al. (eds.) Innovation and Inspiration: Fifty Years of the Universal Declaration of Human Rights (1999) p. 17 at p. 19.
(96) An-Na’im, A.A., ‘What Do We Mean By Universal?’ (1994) Index on Censorship, September/October, p. 120. See also An-Na’im, A.A., ‘Universality of Human Rights: An Islamic Perspective’ in Ando, N., Japan and International Law: Past, Present and Future (1999) p.311 at pp.314–319.
(99) See Mayer, A.E., Islam and Human Rights, Traditions and Politics (3rd Ed., 1999) p.41.
(101) UN General Assembly, 39th Sess., Third Committee, 65th Mtg, 7 December 1984, A/C.3/39/SR.65. Note however that the Deputy Permanent Representative of Iran to the UN, Mr Ziaran, declared at the Third Committee of the 53rd Session of the General Assembly in November 1998 that: ‘(t)he government of the Islamic Republic of Iran is fully committed to the promotion of human rights’. This commitment, he further observed, ‘is not out of political expediency rather it stems from the supreme teachings of Islam’ and that ‘the government of the Islamic Republic of Iran would extend its full co-operation to the human rights mechanisms’ of the UN. See statement by H.E. Mr Bozorgmehr Ziaran at the Permanent Mission of the Islamic Republic of Iran to the UN Website: http://www.un.int/iran/statements/3ga/3ga53008.html [12/12/2000].
(102) See Shari’a Court of Appeal Law of Zamfara State of the Federal Republic of Nigeria; Zamfara State of Nigeria Law No.6 of 8 October 1999.
(103) Similar fears were raised in 1979 and 1989 during the debates on provisions for a Shari’ah Court of Appeal in the Nigerian Constitution. See generally Basri, G., Nigeria and Shari’ah: Aspirations and Apprehensions (1994).
(104) Constitution (15th Amendment) Act 1998. The Bill was passed by the National Assembly on 9 October 1998. But the Senate had not voted on it before it was suspended by the Musharraf regime that took power in October 1999. However, there is an Enforcement of Sharî‘ah Act of 1991 already in force, Art. 3(1) of which provides that, ‘The Shari’ah, that is to say the Injunctions of Islam as laid down in the Holy Qur’an and Sunnah, shall be the supreme law of Pakistan’.
(105) Tibi, B., ‘Islamic Law/Shari’a and Human Rights: International Law and International Relations’ in Lindholm, T, and Vogt, K., (eds.), Islamic Law Reform and Human Rights: Challenges and Rejoinders (1993) p.75 at p.76.
(107) See Weeramantry, C.G., Justice Without Frontiers: Furthering Human Rights (1997) Vol.1, pp.139–140.
(108) See generally, Watson, J.S., Theory & Reality in the International Protection of Human Rights (1999) for a critical analysis of this.
(109) See Sachedina, A., ‘Review of Abdullahi Ahmed An-Na’im, Toward an Islamic Reformation: Civil Liberties, Human Rights and International Law’ (1993) 25 International Journal of Middle East Studies, pp. 155–157.
(110) Afshari, R., ‘An Essay on Islamic Cultural Relativism in the Discourse of Human Rights’ (1994) 16 Human Rights Quarterly, p.235 at p.271; See also Lawyers Committee on Human Rights, Islam and Justice (1997) p. 18 where Azziman also stated that when people talk about Sharî‘ah or Islamic law he really does not know what is meant.
(112) Breiner, B., ‘A Christian View of Human Rights in Islam’ in Breiner, B., (ed.), Two Papers on Sharî‘ah (1992) p.3.
(114) The maxim says: ‘Rahmah al-Ummah fi Ikhtilâf al-A’immah’. This indicates that the jurists’ differences of opinion in the interpretation of legal sources on certain matters offer a broad and equally legal scope from which judges may appropriately choose the most compassionate and beneficial opinion from time to time in cases before them. It was on the basis of this that the Islamic legal principle of ‘takhayyur’ or ‘takhyir’ (eclectic choice) was evolved and advocated to allow for unification or movement within the different schools of Islamic jurisprudence. See e.g. Coulson, N.J., Conflicts and Tensions in Islamic Jurisprudence (1969) pp.20-39 and Hallaq (above n.2) at p.210. A 15th century Islamic jurist, Abû Abdullah al-Dimashqî, wrote a jurisprudential book entitled ‘Rahmah al-Ummah ji Ikhtilâf al-A’immah 9 in which he listed the legal consensus and dissension of the classical Islamic jurists (republished by Dâr al-Kutub al-Ilmiyyah, Beirut, Lebanon (1995)).
(115) See e.g. Kamali, M.H., ‘Law and Society: The Interplay of Revelation and Reason in the Shariaht’ in Esposito, J.L., The Oxford History of Islam (1999) p.107.
(116) See e.g. Doi, A.R., Sharî‘ah: The Islamic Law (1984) p.2.
(117) In Q45:18 the word Sharî‘ah is used as ‘straight path’ or ‘right way’—’Then We put you on a right way (Sharî‘ah) of the affairs, so follow it…’ and the Prophet Muhammad used Fiqh in one of his sayings to mean ‘understanding’—‘To whomsoever God wishes good, He gives the understanding (fiqh) of the faith’. Fiqh is also used in the Qur’an to mean understanding. See e.g. Q9:87. See also Qadri (above n.2) at pp. 15–17.
(119) Note however as pointed out by Kamali that ‘There is often… a relationship between strict compliance to a legal duty and the Islamic concept of moral excellence’. See Kamali, M.H., Freedom of Expression in Islam, (Revised Ed., 1997) p.27; and Kamali (above n.115) at p.109.
(120) ‘Abd al ‘Atî, H., The Family Structure in Islam (1977) p.14.
(121) The approach adopted here deviates from the traditional classification of the Qur’an, Sunnah, Ijmâ’ and Qiyâs as main sources of Islamic law, a classification which Ramadan has rightly observed, ‘is by no means a decisive or authoritative one’. See Ramadan (above n.2) at p.33. The approach here distinguishes the sources of the law (i.e. Qur’an and Sunnah) from the methods of the law (i.e. Ijmâ’ Qiyâs, Ijtihâd, etc.) to avoid the confusion of the traditional misconception of the whole of Islamic law as being strictly divine and immutable.
(122) See e.g. Q26:192 which says: ‘Verily this is a Revelation from the Lord of the Worlds’ and Q45:2 which says: ‘The revelation of The Book is from God, The Exalted in Power, Full of Wisdom’.
(123) See e.g. Q2:2 which says: ‘This is the Book; In it is guidance sure, without doubt, to those who fear God’.
(125) Coulson, N.J., A History of Islamic Law (1964) p.12.
(126) Although law and morals are not fully merged in Islamic law, they are also not strictly separated as understood in the theory of positivism in Western legal philosophy. See Kamali (above n. 119) at p.27.
(128) The development of the Schools of Islamic Jurisprudence is explained below. See para.2.4.3 below.
(129) Shâfi‘î, M., al-Risdlah (1983) pp.52−53. English translation cited in Kamali (above n.2) atp.63.
(130) See e.g. Q3:31 and Q33:21.
(132) See e.g. Abû Dâwûd, Sunan Abû Ddwûd, Trans. A. Hasan, (1984), Vol. Ill, p. 1019, Hadith No.3585. Mu’âdh is reported in this Tradition to have used the words ‘ajtahidu râ’îy’ meaning T will exert my own reasoning’. The noun ijtihâd’ meaning exertion was later adopted to indicate ‘legal reasoning’ as a legal method of Islamic law.
(133) Kamali (above n.2) at p.59.
(135) The six authentic Sunni books of the collections of the Prophet’s Traditions are those by al-Bukhâri (d. 870AD), Muslim (d. 875AD), Abû Dâwûd (d. 888AD), al-Tirmidhî (d. 892AD), al-Nasâ’i (d. 915AD) and Ibn Majah (d. 886AD). Muslims are divided into the two main groups of Sunnî and Shî‘ah. The Sunnî are the majority while the Shî‘ah constitute about 10 per cent of the world Muslim population. The Shî‘ah group developed from a schism among the Muslims during the Caliphate of Ali. The Shî‘ah also have their own different collections of the Prophet’s Traditions, such as al-Kâfi by Abû Ja‘far al-Kulaynî al-Râzî (d. 939AD) and al-Istibsâr by Abû Ja‘far al-Tûsî (d. 971 AD).
(139) See generally Daura, A., ‘A Brief Account of the Development of the Four Sunni Schools of Law and Some Recent Developments’ (1968) 2 Journal of Islamic and Comparative Law, p.l.
(141) Iqbal, M., The Reconstruction of Religious Thought in Islam (1951) p. 148.
(142) See e.g. Hallaq, W., ‘Was the Gate of Ijtihad Closed?’ in Hallaq, W., (ed.), Law and Legal Theory in Classical and Medieval Islam (1995) pp.3–41.
(144) Nyazee, I.A.K., (Trans.), The Distinguished Jurist’s Primer, Bidâyat al-Mujtahid wa Nihâyat al-Muqtasid by Ibn Rushd (2000) Vol. 1, p.xxxv.
(147) See e.g. Kerr, M., Islamic Reform: The Political and Legal Theories of Muhammad ‘Abduh and Rashîd Ridâ (1966); Donohue, J.J., and Esposito, J.L. (eds.), Islam in Transition: Muslim Perspectives (1982); Hallaq (above n.2) at pp.207–254; Kamali (above n. 115) at pp. 116-118.
(149) See e.g. al-Shatibi, A.I., al-Muwâfaqât (Arabic) (1997), Vol. 2; and Masud, M.K., Shatibi s Philosophy of Islamic law (1995) p. 151.
(152) See Ramadan (above n.2) at pp.64–73. See also al-Shâtibî (above n.149); Ibn al-Qayyim, I‘lâm al-Muwaqq în An Rabb al-’Alamîn (Arabic) (1996), Vol.1, pp.71–72; Ridâ, R., Yusr al-Islam Wa Usûi al-Tashrî al-Amm (1956) pp.24–28; and Khallâf, A.W., Masâdir al-Tashrî’ al-IslâmiFimâ lâ Nass Fîh (1955) p.l31ff.
(158) See e.g. Kamali, M.H., ‘Fundamental Rights of the Individual: An Analysis of Haqq (Rights) in Islamic Law’ (1993) 10 American Journal of Islamic Social Sciences. No.3, p.340 at p.362.
(159) See Hallaq (above n.2) at p.l68ff; and History of Islamic Legal Theories (1997); Nyazee (above n.2) at p.212ff for discussions of al-Ghazâlî and al-Shâtibî’s approaches to maslahah and maqâsid al-sharî’ah in detail. See also Kamali (above n.2) at pp.267–282; Masud (above n.149) at pp. 127–164; and al-Shtibî (above n.149).
(160) See text to n.29 above.
(162) (Also Takhyîr), seeaboven.il4.
(163) Locke, J., Two Treatises of Government, ed. P. Laslett (1967) p.324.
(164) See e.g. Gaus, G.F., Justificatory Liberalism: An Essay on Epistemology and Political Theory (1996) pp.162–166; mdgenerally Gaus, G.F., Value and Justification: The Foundations of Liberal Theory (1990).
(165) See e.g. Al-Ghunaimi, M.TDurûs fi Usûi al-Qânûn al-Wada ‘î (Arabic) (1961) p.150, cited in Al-Ghunaimi, M.T, The Muslim Conception of International Law and the Western Approach (1968) p. 101.
(166) Nigerja has a multi-religious population with Muslims in the majority, and it operates a pluralized legal system consisting of English common law, Islamic law, and customary law.
(167)  Northern Nigerian Law Report, 87.
(168) The Grand Kadi of a State in Nigeria is the most senior Islamic law judge within the state’s judiciary. He is the head of the Shari’ah Court of Appeal of the State.
(169) See Hon. Justice Mohammed, U., ‘Shariah and the Western Common Law: A Comparative Analysis’, in Abdul-Rahmon, M.O., Thoughts in Islamic Law and Ethics (1992) p. 16 at p.25.