How compatible are the normative commitments of Islam with the Universal Declaration of Human Rights?

Content

1. The Universal Declaration

2. Special characteristics of Islam

3. The UDHR and ‘Islam’- a comparison
3.1. Level One: The Koran and Shari’ah
3.2. Level Two: The Cairo Declaration on Human Rights in Islam
3.3. Reflection.

4. Muslim opinions on human rights
4.1. Conservative ‘Rejectionists’ and ‘Apologists’
4.2. Conservative ‘Alternativists’
4.3. Conservative ‘Islamizationists’
4.4. Liberal ‘Re-interpretators’ and ‘Reformers’
4.5. Liberal ‘Secularists’

5. Conclusion

Appendix A

Appendix B

Bibliography

During the last few decades, growing attention has been paid to the enforcement (and the prevention of the abuse) of fundamental human rights, mainly facilitated by the International Human Rights Regime. Moreover, human rights-issues are increasingly subject to a controversial international debate, especially in the light of continuous globalisation, events such as 9/11 and rising cross-cultural communication. One specific discussion-point concerns ‘Islam and Human Rights’, the crux of the matter being the compatibility of Islamic normative values with the Universal Declaration of Human Rights (UDHR).

Every scholar who approaches this debate more profoundly automatically comes across with the Universalist/Cultural-Relativist-debate. These academics go a step further. They are concerned with the evaluation of the compatibility-analysis and discuss the validity and consequences of such an analysis.^[1]

However, the following paper operates independently of the Universalist/Relativist debate. The aim is to explore the compatibility of the Islamic tradition with the Universal Declaration, and the author believes that the most appropriate approach is an objective comparison, without judging the result of the analysis in any way.^[2]

The first and second section sketch the basic characteristics of the UDHR and Islam. An understanding of both doctrines is a necessary tool for the purpose of this essay. The third part analyses the compatibility of both doctrines on two levels. The essay then outlines the diverse Muslim positions regarding human rights in Islam. This is essential to be able to draw a sound conclusion concerning the compatibility of Islam with the UDHR, in the last section.

1. The Universal Declaration

The Universal Declaration of Human Rights is one of the major documents that constitute the International Bill of Human Rights^[3]. The UDHR establishes the essential principles of a substantive theory of human rights, according to which the practices of individual member states can be measured. However, the normative commitments of the Declaration are not binding under international law and no full consensus exists regarding the International Bill of Human Rights. Nonetheless, most states recognize the validity of the Declaration in their state practice and many provisions have achieved a status of customary international law.^[4]

According to Donelly (2003: 23-37), the UDHR outlines four basic elements of human rights.

First, human rights are universal; human beings have these rights simply in virtue of being human. Human rights, based on a moral vision of human nature, are rooted in human dignity. The UDHR defines the minimal conditions for a life of dignity in granting equal rights of freedom to every human being.^[5] Thus, human rights are inalienable and not the result of an action.^[6] Second, human rights are entitlements and guarantees for the implementation of certain values. They constitute international political and legal standards, which set up some normative basic principles. However, neither do these standards grant absolute individual freedom nor do they claim an all encompassing philosophy of life- their scope is limited.^[7] Third, human rights form an interdependent and indivisible whole. And fourth, human rights are rights of individuals^[8] but they are implemented and enjoyed in relation to society. From this follows that states have the responsibility to implement human rights.^[9] Human rights, on the other hand, also set the limits and requirements of state action since states are often the major violators of these rights. Therefore, rights are a response to injustices, which are only claimed “(…) when their enjoyment is questioned, threatened or denied.” (Donelly, 2003:8)^[10] Donelly (2003:12) argues that human rights will always challenge and change the existing institutional order^[11] and ideally the need for human rights claims would be eliminated in the future.

2. Special characteristics of Islam

Islam is not only one of the major religions in the contemporary world^[12], it also symbolises the complex culture and multi-ethnical diversity of Muslim countries worldwide.

The primary and, according to Muslims, most authoritative source of normative Islam is the Koran.^[13] But the Islamic tradition is also deeply rooted in the Sunnah, the Hadith, Fiqu or Madahib and the Shari’ah.^[14] In prescribing an all-encompassing philosophy of life, these sources are the basis for following fundamental Islamic principles.

The main feature of Islam is the non-separation of religion and state. In Islamic theocracy God is the absolute ruler and his word must be obeyed and accepted unconditionally.^[15]

A second characteristic derives from the first one: In Islam, the emphasis is on duties rather than on individual rights, human beings have duties and obligations towards God. These obligations correspond to the values generally associated with human rights but this conception does not include the inalienable and equal rights for all human beings. The Islamic model seeks to realise human dignity independent from human rights. The concept of dignity entails an understanding of rights as a consequence of people’s status or actions (fulfilling the duties and obligations towards God and the community).^[16] This leads to the third feature of Islam, the supremacy of society/community over the individual. But this does not mean that Islam rejects a notion of individuality. Rather, it protects the individual by emphasising the collective need to maintain a well-functioning society.^[17]

3. The UDHR and ‘Islam’- a comparison

Provided with a general knowledge regarding the characteristics of Islam and the UDHR, one particular difficulty seems to arise at this point.^[18] The UDHR prescribes a specific theory of human rights and forms a major part of the internationally recognised Bill of Human Rights. Islam, on the other hand, stands for a world religion and diverse culture, which draws its particular human rights conception from a variety of sources. It appears that there is no such thing as “Islam” which could be subject to a comparison.^[19] This now raises the question how a comparison could be carried out to come to a relatively sound conclusion.

Since ‘Islam’ cannot be treated as monolithic, some elements that represent the Islamic tradition have to be detached and individually compared with the UDHR. This makes it possible to examine whether a conflict (-potential) between these features and the UDHR exists.^[20]

This section operates on two levels: the UDHR- human rights theory will be compared with the normative commitments of the traditional Islamic sources –the Koran and Shari’ah- on the first level. The second level discusses the ‘Cairo Declaration on Human Rights in Islam’ in the light of the UDHR.

3.1. Level One: The Koran and Shari’ah

According to Köylu^[21], no Bill of Islamic Human Rights is generally accepted by all Muslim countries. Therefore it is often argued that the Shari’ah is a sufficient basis for the legal and constitutional framework of Islamic societies.^[22] Since the Shari’ah is primarily derived from the Koran^[23] it seems necessary to examine both sources here, with regard to the UDHR.^[24]

UDHR-Article 1 states the equality among human beings in dignity and rights. The Koran, although deeming all human beings to be worthy of respect^[25], treats Non-Muslims as inferior (4/144, 9/28, 4/101, 2/178). This is also emphasised by the Shari’ah.

UDHR-Article 2 articulates the principle of non-discrimination. The Koran states religious tolerance in 2/256. But this does not include atheists and polytheists (2/178, 9/29, 9/5, 9/123).^[26] Furthermore verse 4/34 prescribes the authority of men over women.^[27] The Shari’ah assigns only Muslims the full membership of the community. Religious minorities and especially atheists are discriminated.^[28]

UDHR-Article 3 guarantees the right to life. Verses 5/32 and 6/151 of the Koran grant the protection of life^[29]. However, verse 9/5 permits the killing of ‘idolaters’. Moreover, the Shari’ah does not grant a right to life to Non-Muslims^[30] and imposes the death penalty for apostates.^[31]

UDHR-Article 4 prohibits slavery. The Koran considers slavery as a normal institution^[32] and the Shari’ah permits Muslim men concubines and female slaves.

UDHR-Article 5 prohibits torture. Hadd-punishments are allowed with regard to Koran-verses 5/38 and 24/02 (for adultery)^[33]. Moreover, the Shari’ah imposes corporal punishments (sometimes to death) and executions for adultery and homosexuality.^[34]

UDHR-Article 6 is concerned with the recognition of all human beings as persons before the law. The Koran-verse 2/282 conflicts with this Article.

UDHR-Article 7 emphasises equality before the law. Verse 2/282 of the Koran states that two women equal one man as a witness in court. According to Koran and Shari’ah, Non-Muslims count less than a Muslim as a legal person.

UDHR-Articles 8, 9, 10 and 11 are concerned with the rights of an accused person and a fair trial. However, Schacht points out that the Shari’ah simply lacks the idea of criminal guilt.^[35]

UDHR-Article 13 grants the right of free movement and residence. The Shari’ah restricts women with regard to this Article since a woman cannot travel without permission of her husband. Also, according to Shari’ah, women cannot choose their place of residence.^[36]

UDHR-Articles 14 and 15 guarantee the right to asylum and nationality. Shari’ah discriminates Non-Muslims in this respect.^[37]

UDHR-Article 16 (1) states equal rights concerning marriage and divorce for every human being of full age.^[38] The Koran-verses 4/3 (permission of polygamy) and 2/223 (wife has to obey husband in sexual matters) conflict with this Article. Also, child marriage is quite common in Islam, based on Hadith-provisions.^[39] Regarding divorce, the Shari’ah allows the husband to repudiate his wife unilaterally.

UDHR-Article 16 (2) states that free and full consent is required for marriage. According to Koran and Shari’ah, women cannot choose their husband and they rely on a male representative to conclude a marriage contract.

UDHR-Article 17 assigns every human being the right to property. In verse 2/108 and 3/190, the Koran articulates that absolute ownership of everything belongs to God. The notion of ownership for human beings only derives from the fact that they are the vicegerents of God on earth (45/14 and 35/40).

UDHR-Article 18 grants the right to freedom of thought, conscience and religion.

The Shari’ah- and Koran-provisions for corporal punishment or death penalty regarding

apostasy, conflict with this Article.^[40]

UDHR- Article 19 guarantees the right to freedom of opinion and expression. According to verse 33/60-61 of the Koran, blasphemy is punishable by death.^[41] Moreover, the Shari’ah is completely opposed to the freedom of women to choose their clothing and denies Muslims certain pleasures, such as alcohol or the opportunity of fully expressing their sexuality.^[42]

UDHR-Article 23 is concerned with the right to work. However, Non-Muslims and women are not free to choose their work under Shari’ah law.

UDHR-Article 26 deals with the right of education. Verse 5/51 and 5/55 of the Koran violate this right and certain fields of learning are restricted to men.

It can be concluded from this analysis that both, the Koran and Shari’ah, do not realise human rights as defined by the UDHR and many principles of the Shari’ah are even opposed to the Universal Declaration. However, the Koran generally stresses certain values, such as justice (5/8), respect (2/30, 17/70 and 49/13) and human dignity, which are similar to the UDHR-conception. But these moral commitments are duty- and not rights-(if understood as entitlements) orientated.^[43] The traditional Islamic sources do not articulate human rights that human beings have simply in virtue of being human, although the Koran provides for more moral commitments than Shari’ah. But even with this duty-focused conception of human rights, the Koran and Shari’ah severely restrict and discriminate women, Non-Muslims and apostates, in particular. The rights and duties laid down by the traditional sources principally depend on community-membership.

3.2. Level Two: The Cairo Declaration on Human Rights in Islam

Although most Muslim countries signed the UDHR in 1948, many have modified their position afterwards.^[44] One example for a modification is the Cairo Declaration^[45], which mainly relies on traditional Islamic principles.^[46] This implies, that the human rights-conception of this Declaration differs from the UDHR. Even though equal dignity of all human beings is affirmed in Article 1, an equal right is not mentioned and dignity is connected with the Divine.^[47] Also, the Cairo Declaration mainly relies on the Shari’ah. Thus, although ‘safety from bodily harm’ and the right to life are stated in Article 2, the same Article permits exceptions to these rules on a ‘Shari’ah prescribed reason’. Similarly, several other rights are restricted by Shari’ah principles, for example Article 19 (prohibition of punishments) or Article 22 (freedom of expression).^[48] Especially Article 12 discriminates women regarding their freedom of movement.^[49] Also, Articles 24 and 25 state that the Shari’ah is the only source of reference for the Cairo Declaration. Moreover, the Declaration does not include some rights explicitly defined by the UDHR. For example, the right to marriage in Article 5 does not contain a clause concerning non-discrimination on the basis of religion; neither does Article 5 mention the requirement of full age, an equal right regarding divorce, or free and full consensus. Article 6 presupposes the traditional gender-roles and articulates the role of the man as head of the family. Also, this Article does not explicitly articulate the equal rights of the sexes. Rather, it states equal dignity. Mayer (1999: 121) argues that Article 13 of the Cairo Declaration conflicts with UDHR-Article 23(1), because it could be used to justify the exclusion of women from work on certain grounds. Article 10 prescribes the superior status of Islam, and the Cairo Declaration, in this context, does not include a right to religious freedom and belief.^[50]

[...]

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^[1] Universalists maintain the validity of the UDHR-doctrine and often criticise the Islamic- or other traditions on grounds of their non-conformity with the International Bill of Human Rights. Cultural Relativists, on the other hand, argue that the doctrine of universal human rights is challenged by different moral claims derived from different cultural contexts. Compare Jones (2001:51-76), Brown (1999:103-127), Pollis (2000:9-30), Schmale (1993:3-27), Rüsen (1993:28-46), Donelly (1998: 1-23) and Huntington (1997).

^[2] Also, the term ‘compatibility’ does not imply a notion of superiority (of one over the other doctrine) in this context.

^[3] The International Bill of Human Rights also consists of the International Covenant on Economic, Social, and Cultural Rights (ICESCR), the International Covenant on Civil and Political Rights (ICCPR) and the Optional Protocol of the ICCPR. The UDHR, adopted in 1948 by the UN- General Assembly, has given rise to the International Human Rights Regime.

^[4] Mayer (1999: 18). The UDHR was adopted by a vote of 48-0 with eight abstentions. (Donelly, 2003: 22)

^[5] Bielefeldt (2000:101) argues that the moral concept of freedom has its ethical roots in human dignity.

^[6] Individuals have duties to the society but these are not the condition for the possession/ enjoyment of human rights.

^[7] Bielefeldt (1995).

^[8] This is valid except for the right of self-determination of peoples.

^[9] Donelly (1982:305) suggests that the implementation-action itself can be regarded as the source of human rights.

^[10] However, not every kind of violation leads to recognition of particular human rights.

^[11] Examples would be the establishment of the UDHR itself and the attention paid to genocide after the Holocaust.

^[12] Today 20% of the world population is Islamic. (http://www.unhchr.ch/huricane.nsf/(Symbol)/HR.98.85.En?Opendocument.) and (Ali, 2003).

^[13] Muslims believe that the Koran is God’s Word transmitted through the Angel Gabriel to the Prophet Muhammad.

^[14] Sunna defines the practical patterns of behaviour of the Prophet Muhammad. Hadith prescribes the oral sayings of the Prophet. Fiqu stands for jurisprudence whereas the Madahib defines the Schools of Law. Shari’ah is the code of law that regulates the features of Islamic life. For all compare Hassan (2004).

^[15] http://www.secularism.org/humanrights/compatible.htm.

^[16] Compare Donelly (2003:71-74) and http://www.ii-pt.com/web/papers/islam&h.htm. Mawdudi sees human rights as granted by God to every believer. (http://www.islam101.com/rights/hrM1.htm.)

^[17] Khan (2002). Also compare Vincent (1986:42).

^[18] Again, it has to be emphasised that the arguments of the Universalist/Relativist-debate will not be considered here.

^[19] Speaking of an ‘Islamist perspective’ reflects just one understanding among many. (Al-Jamri, 2004)

^[20] It has to be pointed out, that this paper mainly operates on theoretical level, considerations regarding the human rights implementation in reality (in Muslim countries), cannot be taken into account, due to lack of space.

^[21] http://www.crvp.org/conf/Instabul/abstracts/Mustafa%20Koylu.htm

^[22] Halliday (1995:160). For example, since Saudi Arabia does not have a formal written code of criminal law, it relies heavily on the Shari’ah in this respect. Shari’ah mainly regulates criminal-, family-, inheritance law and matters of property rights.

^[23] But since the Koran only prescribes general ethical guidelines, the Shari’ah also relies on the Hadith and Sunna, as well as the consensus of Islamic scholars (Ijma). http://www.twf.org/Library/Sharia.html.

^[24] For a detailed outline of the UDHR see Appendix A. Also compare http://www.geocities.com/koraninfo/rights.htm, http://www.secularism.org/humanrights/compatible.htm and Bielefeldt (1995).

^[25] Hassan (2004).

^[26] According to Koran-verses 2/221, 5/5 and 9/10, Muslims cannot marry atheists.

^[27] For example, the laws of inheritance entitle male heirs to twice the share of female heirs.

^[28] Both, Koran and Shari’ah only tolerate, to a certain extent, Jews and Christians. Although they enjoy some autonomy concerning self-administration, religious- and family law, they are considerably restricted (i.e. exclusion from military service, payment of special tax etc.) Compare Bielefeldt (1995). Furthermore, a Muslim man can marry a Christian or Jew but the latter cannot marry a Muslim Woman. Atheists cannot reside in Muslim countries, are punished harder for crimes and carry less weight in court than Muslims. (htttp://www.ntpi.org/html/nonmuslims.html).

^[29] http://www.islam101.com/rights/hrM1.htm

^[30] http://www.secularism.org/humanrights/compatible.htm

^[31] Compare Hadith, volume 9, book 83, number 17. Accordingly, men who wish to convert from Islam to another religion are to be killed. Female apostates receive other corporal punishments. This also violates Article 2, 5 and 18 of the UDHR.

^[32] Compare Koran verse 2/178, 16/75 and 4/24. On slavery and the Koran compare Arat (2000: 85).

^[33] Regarding adultery, the Koran especially focuses on women (verse 24/04), which conflicts with Article 2 of the UDHR.

^[34] This clearly violates UDHR-Article 3. Compare Parekh (1999:153) and Abu-Sahlieh (1993:245).

^[35] Compare http://www.secularism.org/humanrights/compatible.htm and http://www.islam101.com/rights/hrM1.htm.

^[36] http://www.ntpi.org/html/womensrights.html

^[37] Abu-Sahlieh (1993:245).

^[38] Also compare analysis for Article 2.

^[39] Hadith, volume 7, book 62, number 67 states that silence of the woman indicates permission to a marriage-contract.

^[40] See analysis of Article 3. Muslims apply ‘double standards’ here since they welcome people who convert to Islam. Furthermore, Muslims who convert to Christianity and choose to stay in a Muslim country face great personal dangers. (http://www.secularism.org/humanrights/compatible.htm)

^[41] Hadith, book 38, number 4348 and number 4349 states that the killer of a critic of the Prophet is not to be punished.

^[42] http://ntpi.org/html/expression.html

^[43] Engineer (2003).

^[44] http://www.ntpi.org/html/humanrights1.html.

^[45] Another example is given by Bielefeldt (1995). He states that “several Islamic states have entered substantial reservations to the 1979 Convention on the Elimination of All Forms of Discrimination against Women, in particular to Article 16(…)”. Furthermore, the ‘Universal Islamic Declaration of Human Rights’ (UIDHR), issued by the Islamic Council for Europe in 1981, has to be mentioned in this context. For a complete outline of the Cairo Declaration see Appendix B.

^[46] Compare section 2.

^[47] Article 1(a) states: “The true religion is the guarantee for enhancing such dignity (…)”. Article 1(b): “All human beings are Allah’s subjects, and the most loved by Him are those who are most beneficial to His subjects (…).”Another example for the absence of the right -notion is Article 9, which treats education as obligation. See Appendix B.

^[48] Other examples include Article 7 (education of children), Article 12 (asylum), Article 23 (right to assume public office) and Article 16, which also conflicts with Article 27 of the UDHR. See Appendix A and B.

^[49] Compare analysis of UDHR-Article 13 under section 3.1.

^[50] Compare Mayer (1999: 147). Also, the Cairo Declaration does not state equivalent rights to Article 6 and Article 15 of the UDHR.