Islam, Ethics and Human Rights - An Alternative Perspective1

Dr. Ali A. Allawi
2nd Seminar at the Carr Center, Kennedy School, Harvard University
November 18, 2009
Introduction
  • Islamic law and practice seems to offer a qualified acceptance— or partial rejection from another perspective— of the universalist doctrines of human rights principles, as enunciated in  various world forums after WWII.
  • In particular, diverse injunctions of the commonly acknowledged tenets of the Muslim laws of the Sharia appear to restrict, modify and dilute the significance of the modern notion of human rights.
  • While in practice, the public law of the land in the vast majority of Muslim countries has drifted far from any anchoring in the Sharia, personal law continues to be informed by Sharia principles. At the same time, the increasing Islamization of societies has led to a growing demand to make the Sharia a far more significant force in the life of ordinary people and the organization of Muslim societies.
  • The situation now is one where a complex, and unsatisfactory mix of laws, policies, conventions, attitudes, and fears drive the debate on human rights and Islam. These have sharply divided Muslim societies between secularists and Islamists; reformers and revivalists; and Muslim countries from an evolving international consensus on human rights.
  • At the heart of the debate is the issue whether a system of principles that is ultimately rooted in the sense of the sacred can accommodate to the demands of the modern world and can continue to claim the allegiance of hundreds of millions of people.
  • At another level, the vast majority of Muslims are unlikely to abandon the idea that a religious foundation should continue to provide the scaffolding for their world and act as the governing ethical paradigm for their lives. The Sharia continues to provide this ideal for most Muslims even as it is ignored, marginalised or its precepts flaunted in practice.
  • In this respect, therefore, the principles of human rights must be, to some extent, situated inside a legitimating Islamic perspective, if they are to enter into the consciousness of Muslims.

The Derivation of Sharia Rulings
  • Sharia law gradually emerged in its main forms during the first three centuries of Islam, in response to a variety of factors.
  • Upon the Prophet's death, Muslims were left with the text of the Qur'an, and the sayings and example of the Prophet, as reported by his Companions. [Those who subsequently became the Shia, followed designated Imams from the household of Ali, and only acknowledged the validity of their reporting. The significance of this would appear later.]
  • The sayings of the Prophet (hadith) were systematically collected and verified in the second century of Islam. The sayings and conduct of the Prophet (collectively known as the Sunna) became established as an authoritative source of the Sharia.
  • By the second and third centuries of Islam, the actions and sayings of the Companions of the Prophet were also sifted and categorised and became an ancillary source for the Sharia.
  • At this point, the basis of Islamic jurisprudence became established as Kitab wa Sunna (or the Book and the Way of the Prophet). [The Shia did not fundamentally veer from this formula, adding the sayings of their Imams as another source of their jurisprudence.]
  • Individual jurists coalesced over time into the four main schools of Sunni jurisprudence, built around master teachers (Abu Hanifa; Malik; Shafi'i; ibn Hanbal) and their main students.
  • With the establishment of the bases of Islamic jurisprudence around the Qur'an and the way of the Prophet (accredited mainly to Shafi'i), a great deal of work subsequently ensued to develop the legal basis and to generate detailed rulings for Islamic life and society. The genesis of the exoteric forms of the Sharia proper can be traced to this period.
  • For the majority of Muslims who adhered to the four schools of law, the main sources for deriving jurisprudential rulings crystallized around the following:
    1. The Qur'an.
    2. The Sunna of the Prophet.
    3. Ijma (or consensus).
    4. Qiyas ( or analogical reasoning).
    5. Ijtihad ( independent reasoning to arrive towards jurisprudentially correct rulings).
      [The Shia do not acknowledge Qiyas, and add the sayings of the Imams as well as aql or reason, as a  source of the Sharia. In practice, the rulings thus derived vary only insubstantially from the Sunni schools of law. However, the differences between the Sunni and the Shia revolve around the doctrine of the Imamate and not jurisprudential rulings.]
  • The Qur'an, of course, is believed by Muslims to be the unaltered text of the word of God. Although the Qur'an is not a code of law, it nevertheless is immensely significant in the formulation of Islam's legal system.
  • The few verses that deal specifically with legally binding matters  (about 80 out of a total of over 6,000 verses) are exceptionally important precisely because they are viewed by Muslims as being the direct commands of God.
  • Qur'anic hermeneutics (or tafsir) become thus a critical factor in determining the intent of the verse.
  • Of special significance here is the principle of naskh, whereby the import of certain verses is abrogated by a later, more defining verse.
  • The Sunna assumed its central role in the formulation of Sharia rulings after the compilation of 6 authoritative canons that reported the Prophetic traditions on all aspects of life. [The Shia have their own canon of traditions, which often overlap with the Sunni canons]. Strict criteria of reporting and verifying the oral transmissions were employed and an entire science of hadith narration and verification developed to authenticate the sayings.
  • 'Ijma or consensus of both the Companions of the Prophet and the common wisdom of the jurists, rather than the community as a whole, became a further source for establishing the elements of Sharia rulings.
  • Qiyas or analogical reasoning was used when the other sources of legislative inquiry were silent on a matter.
  • [There are other subsidiary sources of Sharia rulings, such as maslaha (the public interest, but not in the secular sense of the term); and urf, or customary rulings.]
  • Finally, ijtihad, or independent reasoning to achieve valid jurisprudential rulings, has been greatly restricted in the Sunni tradition, once the main pillars of the Sharia were established. In this respect, "the gates" of ijtihad have been closed since the middle period of Islam.
  • [The Shias continue to practice ijtihad, but its ambit is circumscribed by the topics which the jurists allow for innovation.]
  • The evolution of detailed Sharia rulings over time necessarily resulted in a system of laws that were to a large extent unique to the Islamic world and its circumstances. But these did not follow the pattern of western societies with detailed canons of public law, covering criminal justice, constitutional and administrative law, international law and commercial law, and of course human rights.
  • The Sharia remained, in conflict, seemingly anachronistic, vague or silent on a number of critical issues that confront societies and individuals in modern times.
  • At the same time, the ideals of the Sharia were often at variance with the political, social and cultural realities of the time. A variety of practices, customs and rulers were tolerated that did not fit with the Sharia-sanctioned mould.
  • With the advent of the European powers and the dismantling of the last vestiges of Muslim states, the hollowing out of the Sharia in the public sphere became almost complete, accentuated by colonialism, modernisation and globalisation.

Sharia and Contemporary  Standards and Practices.
  • Rulings of the Sharia vary considerably from a number of contemporary legal and human rights standards, including:
    1. Crime and punishment
    2. Constitutional Theory
    3. International law
    4. Basic Human Rights
  • This line of reasoning presupposes that the modern definitions should be the standard by which the Sharia should be gauged, even though classical jurists did not distinguish between these aspects of law; nor consciously differentiate between the Sharia's religious, ethical and legal aspects. They were all part of a seamless whole that collectively covered all aspects of the ideal Islamic society.
  • It must be made clear that the subsequent discussion is not based on situating Sharia rulings in historical context or in the theological disputes of the classical period. It is only an attempt to classify the areas where the classical Sharia is at variance with modern standards and definitions.
  • In criminal cases, Sharia has legislated under a variety of formulae, but especially under so-called hudud laws. The word hudud derives from the root word, had, which means, edge.  Hudud laws have generally been treated as essentially invariable, in that an offence under these laws must carry the prescribed punishment. There is no discretion afforded either the judge or victim. Hudud laws are derived directly from the Qur'anic text or a clear Prophetic sanction. Examples of these laws are punishment for theft; rebellion; fornication; slander; and apostasy.
  • The principal of reciprocity or blood money is generally applied for other crimes. In all cases, there are problems of definition and scope, and the need for specific evidence before the punishments are carried out.
  • In constitutional and administrative law, the classical Sharia did not generally acknowledge the idea of the nation state, nor that the powers of the legitimate ruler should be constrained and ordered according to a constitutional document. Sovereignty did not reside in the people but in God, and popular representation implied the exercise of shura, a Qur'anic term, which means consultation.
  • The state was built to ensure the primacy of Muslims and not equality of citizenship between various religious groups. The toleration of non-Muslims according to classical Sharia was limited essentially to Christians and Jews, who nevertheless were treated in a discriminatory fashion in disputes with Muslims or the state.
  • In the area of international law, the Sharia provided detailed rulings as to the nature of legitimate and proscribed warfare, jihad, which can be undertaken for self-defence and in certain instances, to extend the propagation of Islam. The Sharia also dealt with the treatment of prisoners of war, and civilians during war time, especially women, children and the enfeebled; as well as the rules for entry into peace treaties or truces.
  • In only a few instances do Sharia rulings approximate the internationally-sanctioned definition of legitimate warfare or follow the same patterns of delineation as the international conventions on the conduct of war. Classical Sharia also provided ground rules for migration into non-Muslim lands; for staying in territories that have been lost to Muslim rule; and the conditions under which Muslims can stay and participate in predominantly non-Muslim lands.
  • In the realm of human rights, the rulings of the classical Sharia are in conflict with international standards in two fundamental areas; women's rights and the discriminatory treatment of non-Muslims. [A third area might be the issue of slavery, an institution whose outlines in Islam are fundamentally different from the experience of other civilizations, especially slavery in the western world. But in as much as the institution has practically disappeared from Muslim countries, its theoretical justifiability under Sharia is no longer an issue. It should be noted that the institution was abolished as a result of secular law and not through a re-reading of the Sharia.]
  • Under contemporary human rights standards, the Sharia is seen to discriminate against women in matters of inheritance, initiation of divorce proceedings, an allowance for polygamy for men, evidential equality in courts, and limitations on holding certain public and judicial offices.
  • For non-Muslims, the Sharia's treatment of the rights of non-Muslim subjects of a Muslim state are seen to be at variance with international standards of equality of rights and citizenship. In private law, non-Muslims cannot inherit from Muslims (neither can Muslims inherit from non-Muslims), while there is a legal ban on marriage of any Muslim women to non-Muslims; and a restriction of Muslim men right to marry non-Muslims to Christians and Jews.
The Sharia in Muslim Consciousness
  • In a number of international surveys of opinion (Pew 2005 and 2007) a large majority of Muslims state that they want to live under a  Sharia-ruled state. Unusually, this includes a majority of Muslims in countries that have undergone a profoundly secular (even irreligious) experience in the 20th century (such as Turkey).
  • Most Muslims of course do not understand the legal complexities of deriving Sharia rules, nor are they particularly aware of the possibility of Sharia conflicts with a number of social, legal and cultural norms that derive from the secularisation of the state and its law-making functions, a process that has continued for well over 150 years.
  • Nevertheless, with the exception of completely secularised and nominal Muslims, there is increasing evidence that the majority of Muslims wish to live in an Islamically-ordered state, but not necessarily an Islamist state or one which derives its structures, laws and institutions from the ideology of political Islam. At the same time, most Muslims exhibit a positive view of modern ideals of human rights as well as the virtues of representative government and the rule of law.
  • It is this conundrum that needs to be addressed: namely how to reconcile the demands and rigours of classical Sharia, most of whose public aspects have disappeared in practice, with those freedoms and rights that are generally associated with a representative, accountable and tolerant political and social order.
  • If the classical forms of the Sharia are given a sacrosanct status in modern Islam, then it is very difficult, if not impossible, to reconcile classical Sharia rulings, and their underlying methodologies, with the principles of human rights, and most modern precepts of constitutional rule, representative and accountable government, definition of criminality and acceptable punishments, and international law.
  • At the same time, if the latter are seen to be desirable public goods for Muslims, then the process of inducing them out of the Sharia as an outcome of ijtihad, using the classical methodologies of the Sharia, is an inappropriate interpolation of 21st century concepts onto an altogether different framework.
  • This issue becomes even more complex when the restitution of a form of Sharia rule becomes a political slogan of Islamists, tapping into the widespread belief that the modern, partly secularised states that prevail in the Islamic world have been failures. This notion is most evident in the Arab countries.
  • This is of course not a new problem. In one way or another it has bedeviled the Muslim mind for over two centuries; but its lack of resolution is a testimony to the difficulties in reconciling what could be incompatible notions.
  • But the persistence of the desire of most Muslims to continue to envisage the possibility of their societies governed by Sharia, is a testament to the depth to which the idea of Sharia has penetrated Muslims' consciousness. The legal and moral theorist Abdullahi an-Naim (of Emory University) has justified this drive in terms of the right of self-determination (even though he remains critical of such a  possibility under the forms of the classical Sharia).
One Sharia or Many Sharias?
  • The idea that the classical forms of the Sharia should or could be reformed or reformulated is not new; but the efforts of the modernisers of the late 19th and early 20th century has been to effectively accelerate the process of secularization, and even the abandonment of the Sharia in its entirety as significant to the development of  Muslim societies. The cutting and pasting (or talfiq) of various Sharia rulings from different schools by the early modernisers (viz. Abduh) to accommodate the introduction of new institutions and policies by a modernising state (e.g. the payment of bank interest) undermined the rigour of the old Sharia methodologies. A reaction set in (viz. Rashid Ridha) which re-emphasized the literalness of the classical Sharia and the need for its scrupulous adherence.
  • The Islamic resurgence which broke out in the 1970's (and which I call the Counter Revolt of Islam in the book The Crisis of Islamic Civilization) is a now permanent feature of the political and social scene in the Islamic world and new forces have emerged which are now grappling with the issue of the Sharia and modern institutions, doctrines and relations, especially in the area of human rights.
  • [I have excluded from this discussion the views of secularists who insist on the total withdrawal of Islam from the public arena; as well as those Muslim liberals who perceive Islam in primarily post-modernist categories of cultural theory and the like. The former are unlikely to regain the upper hand in Muslim societies except through coercion; the latter are affectations of a small elite.]
  • There are several currents at work that seek in one way or another to formulate a relationship between the idea of a Sharia and its manifestations in the public arena. These currents operate at different levels and countries, and are expounded by governments as a matter of public policy, by reformers and revolutionaries, and by various thinkers seeking to influence public opinion or governmental action.
  • The official spectrum of such opinion covers the actions of various governments in the Muslim world that are trying to balance the calls for Islamising state and society through the Sharia and the imperatives of maintaining power and control.
  • The policies of countries such as Egypt and Morocco can best described as reactive drift. Traditional institutions that act as the guardians of the classical Sharia (such as al-Azhar) are given an enhanced status but are used by the government to propagate particular aspects of the classical Sharia that coincides with or buttresses government policy. In human rights for example, the state recognizes the theoretical nature of human rights but qualifies its applicability with an exceptionalism based on the classical Sharia.
  • It is improbable that the innate conservatism of the orthodox establishment under these circumstances will ever generate a reformulation of the classical Sharia— even where it is possible— to accommodate the demands for greater political freedoms and basic human rights.
  • In fact the opposite seems to be taking place in a departure from the ambiguity (and thus flexibility) of various classical Sharia positions on matters of some sensitivity, such as inter-sectarian accommodation within Islam.
  • It is far more common nowadays for official religious institutions in countries to be intolerant of the freedoms traditionally allowed to different Islamic sects. This situation has gone furthest in countries such as Saudi Arabia, which has greatly extended its restrictions on Muslim groups such as the Ismailis. A similar pattern is playing out in Yemen with the war against the Zaydis by a weak government partly dependent on a radicalised and fundamentalist Islamic constituency. Reactive drift as a governmental policy on the overall aspects of the Sharia and political, civil and human rights has a corollary to it which is an increasing insistence on a a particular school of law as the dominant orthodoxy (Malikism in Morocco for example, or Shafi'ism in Malaysia.)
  • The function of the Sharia in countries such as Sudan, and the Afghanistan of the Taliban, is fundamentally different. The purpose of the revivalist or Salafist Islam in these countries, and in movements which espouse the same or similar perspectives on the classical Sharia, is to consider the tenets of the classical Sharia to be effectively sacrosanct. The state becomes the vehicle through which the Sharia is implemented in ways that are indifferent to, or even hostile to the parameters of modern human rights.
  • In such instances, the application of the classical Sharia becomes a matter of religious duty and is an essential part of the process of reconstructing an Islamic state and society. None of the arguments previously raised about the basic lack of fit between the classical Sharia and the modern notions of rights and freedoms carries any weight in these circumstances. The underlying premise is that the forms of the classical Sharia is what the mass of people recognise and demand as the meaning of re-Islamising state and society.
  • The demand for re-establishing the primacy of the Sharia in state and society is of course an important aspect of revolutionary Shia Islam. But the forms in which this was expressed in the Iranian revolution of 1979 involved a radical departure from the principles of the Shia version of Sharia. While a number of republican and constitutional forms of government were introduced into Iran, thereby appearing to enhance the rights and freedoms of the citizenry, the elevation of the ulema class into a hierocracy that is involved in all aspects of the executive, legislative and judicial authorities of the state, cancelled and often reversed these very same freedoms and rights.
  • The Shia acknowledgement of reason ('aql) and the greater reliance on the processes of ijtihad, had, in the past, opened the gateways to acceptance within the Shia Muslim world, of significant aspects of modern political and constitutional notions. But the degree of tolerated deviation from traditional norms of the classical Sharia (in its Shia variety) in matters of social and personal rights has been much less. There has been an inconsistent and complex pattern of rulings which appear to point in different directions. In women's rights for example, Iranian women are active in the workplace and in higher education; but continue to be subject to discriminatory practices in matters of dress, conjugal rights and inheritance.
  • It is also very improbable that the current forms in which the Sharia is expounded in revolutionary Shia Islam, will ever gravitate towards a generalised acknowledgement of the universality of human rights.
  • Traditional Shia Islam is also a significant factor in the new order in Iraq. The calls to introduce the Sharia in Iraq has been more muted as the country is divided into the major sects of Islam, but the constitution has a clause that effectively bans the introduction of laws that counter the forms of the Sharia. The traditional Shia ayatollahs in Iraq have been supportive of the idea of widespread political and civil rights, but have stopped well short of accepting that these rights should spread into areas such as gender and sexual rights. As a collective body, the Shia ayatollahs of Iraq have proved resistant to any significant change in the methodologies and processes by which Sharia rulings can be derived.
Human Rights and the Reformulation of Sharia Principles
  • Outside of official efforts to reconcile the modern ideals of human rights with the classical Sharia (which were discussed in the previous lecture) many notable thinkers of contemporary times have carried the debate in different directions. These attempts to re-interpret the idea of the Sharia have fallen into a number of often contradictory categories. They all suffer from a potentially fatal flaw in that they are, to a large extent, the product of "lay" thinkers and intellectuals, whose influence does not extend into the traditional bastions of the classical Sharia, in both its Sunni and Shia variants. Nearly all of them have been met with hostility and often violence from the religious establishment. Some have been physically assaulted; one was assassinated; and another was executed by the authorities.
  • One of the most contentious ideas from those who have sought to reformulate the bases of textual interpretation came from the Sudanese, Mahmoud Muhammad Taha. His reform theses revolved around the principle of abrogation (naskh), and the distinction that he sought to make between the "Meccan" period of the revelation and the "Medinese" period. Taha asserted that the Qur'an must be divided into two aspects: an invariant one related to the Meccan period where the Qur'an addressed mankind through a profoundly egalitarian and ethical framework; and a Medinese period where the revelation dealt with the founding of a political community. The injunctions and ordinances of the Medinese were specifically made for the time and place and thus cease to prevail once the conditions of the period have been superceded.
  • In this way, the apparent contradictions between some Meccan verses and Medinese verses, whose resolution can have significant consequences for the idea of human rights, should not be seen as such. The principle of abrogation, which was enunciated to explain these ambiguities, need not operate therefore. In this way, for example the affirmation of equality of humankind in the Meccan verses cannot be abrogated by limiting conditions of certain Medinan verses that seem to discriminate between men and women. Similarly, the absolute statement of no compunction in matters of faith which appears in the Meccan verses cannot be abrogated by later Medinan verses that call for differential treatment for non-Muslims.
  • Key concepts that underpin the evolution of the classical Sharia, such as jihad against non-Muslims, the relationships between men and women, the nature of political authority and so on are all aspects of the Medinese period and cannot form the basis for invariant Sharia rulings. According to Taha, therefore, a true reading of the Qur'an to generate the principles of an invariant set of governing rules must be based on the Meccan verses which address mankind and humanity, and not specifically the Muslim community of the Medina period.
  • The ideas of Taha were extremely controversial as they threatened to undermine the entire foundation of the classical Sharia. Taha himself was tried and executed for apostasy. His followers regrouped around the world in leading universities and centers where they continue to develop and propagate his views. His most celebrated follower is Abdullahi an-Naim, now of Emory University, who has done considerable work in developing the foundation for a new understanding of the Sharia that privileges human rights.
  • A second avenue of inquiry as to the pathways for reformulating the Sharia revolves around the idea of a new Qur'anic hermeneutics. The Syrian Muhammad Shahrour focussed on a linguistic reading of key terms and passages in the Qur'an, out of which he developed a new approach to the sacred text. Shahrour's thesis is that the Qur'an has multiple layers with different purposes, some dealing with invariant commands (mainly ethical and pluralistic); others that deal with temporal aspects, while a very few deal with specific commands and obligations. The latter in turn have to be read with a linguistic turn, deriving thereby new and often startling conclusions. The hudud punishments for example are not commands but only an outline of the outer limits to which punishments can go. Thus cutting a thief's hand is not mandatory but only operative in rare and exceptional cases. Sharour's work in this regards is part of the boundaries and limitations school that seek to severely restrict the mandatory aspects of Qur'anic rulings through an alternative reading of the Qur'an.
  • The Egyptian writer and scholar Nasr Hamid Abu Zayd has called for a new humanistic reading of the Qur'an as a way by which believing Muslims can re-engage with the modern world's concerns with human rights, freedom of speech and minority and gender rights. Abu Zayd's main thesis is that the Qur'an, though divine in origin, should be seen as a literary creation that calls for dialogue and discourse. Both conservatives and liberals according to Abu Zayd have treated the Qur'an as an invariant text and thus lost sight of the sacred book as an on-going dialogue between believers and the Divine. Abu zayd was influenced by the Andalusina mystic Ibn 'Arabi and his esoteric readings of the Qur'an in his theory of an on-going discourse between humanity and the Divine. Abu Zayd set himself up against the authority of the medieval scholar al-Shafi'I and in the process found himself accused of apostasy. He finally left Egypt for the Netherlands where he is now a professor at a Dutch university.
  • A number of the uniquely Iranian class of "religious intellectuals" have emerged since the revolution to question not only its premises but the broader issue of freedom, democracy and human rights in Islam. The most prominent of these writers is the philosopher Abdol Karim Soroush. Soroush was one of the stalwarts of the Iranian revolution of 1979. For a while he was responsible for the revamping of the Iranian higher education system, the vetting of academics and the reconstitution of the curriculum, as a member of the Cultural Revolution Committee. He later fell out with the new clerical establishment and became a well-known dissident Islamic thinker. Enthusiastic western commentators have called him the 'Islamic Luther', seeing in his work the possibility of Islam's supposedly long-delayed reformation.
  • Soroush's principal contention is that there is a distinction between religion per se, and religious knowledge. Religion he asserts is divine, revealed by God but human beings are left to realise the purposes and precepts of religion. Soroush reformulates the old adage of the metaphysical Sufis that while the Haqiqa (i.e. Reality or God) is absolute, the Sharia is relative, but he does so within the terms of his own philosophy of religion. Thus Sharia becomes not ordained by God, immutable and fixed, but rather one that allows for change and refinement within Man's own interpretations of religious knowledge. Religious beliefs, no matter how intensely held, are no more than one's own understanding of religion. Religious knowledge forms part of any number of humanistic sciences and philosophies, and is no different in essence from say, sociology or metaphysic.
  • He places his theory within the Islamic sciences of kalam (theological speculation), usul (applied logic in jurisprudence) and irfan (or metaphysical Sufism or gnosis). Soroush also claims that his theory allows for a middle way between religious obscurantism and religious license.
  • Soroush's thesis is based on religion— a divine effulgence— creating a sacred space in which the explorations of religious knowledge can take place. It is not a secular construct as the purpose of religious knowledge-seekers presumably is to seek the divine principle behind mankind's condition and endeavours.
  • It has been depicted as a theory designed to undermine the intellectual and religious foundations of the Islamic Republic by denying the legitimacy that the mujtahids give themselves as the final arbiters of religious law and doctrine. If religious knowledge is changeable and is dependent on the state of human knowledge outside the religious context then it follows that the ulemas cannot make such astounding claims. A premium is placed on philosophers of religion and religious knowledge-seekers who not only know the tradition but are also intimately aware of the other branches of human knowledge.
  • The entire body of the Sharia has to be recast in this context, in addition to a regular questioning of the received body of doctrines and practices relating to worship, transactions and personal relations, albeit guided by a religious sensibility and a deep understanding of the sacred text. Modern notions of freedoms, rights and democratic governance become reconciled to religious knowledge— in fact become a recognised and integral part of it— rather than be tested against some invariant standard of reference drawn from traditional theology or jurisprudence.
  • Sorush's ideal is not so much the secular or even the democratic society, but a religious society where the sense of sacred hovers over humanity but the knowledge of the sacred is derived from the collective human experience in all the sciences and disciplines.
  • Soroush's reconstruction of Islamic knowledge opened the way for including all manner of constructs into the body of 'religious knowledge' as defined by him, from the culture of rights to the issues of secularism, freedom and democracy. Soroush does not quite acknowledge that western liberal values become automatically part of the religious knowledge of our time, but he comes close to it.
  • The Soroushian world view is basically targeted at the Sharia foundations— or the Man to Man relationship— of Islamic civilisation. By denying their immutability and by inference the validity of the systems that limit independent reasoning in religious rulings to either a privileged class of ulema, or to a very narrowly circumscribed ambit of acceptable topics, the Sharia loses its innate conservatism. In fact it may well not be necessary for an Islamic society at least in its inherited form. Secular law and the notions of liberal democracy can be a valid substitute as long as society as a whole retains its commitment to religious faith and uses religiously-derived morality to supervise and monitor those who exercise power. One assumes that Soroush's religious society would automatically confirm the Man to God relationship, through belief in the sacred and in its absolute transcendence.
  • Soroush has been constantly hounded by the forces of reaction in Iran, and frequently assaulted. He has been spending an increasing amount of time abroad (with a stint at Harvard!), but seemed to have reached a  breaking point with the authorities when he was formally accused of apostasy by Iran' leader, Ayatollah Khamanei.
  • Another figure in Iran's intellectual ferment regarding Islam and human rights is the cleric, Mohsin Kadivar, presently at Duke University. Kadivar recognises the difficulty— even impossibility— of reconciling the tenets of classical Sharia rulings with the modern notions of human rights. But he builds on the precepts of Islamic rationalism (what he calls "intellectual Islam"), to which the Shia appear more receptive, to distinguish between historically sanctioned Sharia positions and those that are subject to rational proofs. Where these are in conflict, he privileges the rational over the narrated, reflecting in some ways the Mutazzalite position of the middle periods, which insisted that the standard of acceptability of any narration must be the idea of the just act. Any narration or interpretation that contravenes the principle of justice, must, a priori, be suspect.
  • Finally, there is a line of thought amongst political Islamists— especially former stalwarts of the Muslim Brotherhood— that the intrinsic virtues of modern human rights and freedoms are such that their source must exist in the Qur'an and the Sharia, and if not obviously evident, must be induced from them. The best representative of this school is the Tunisian Rashid Ghannoushi, who has been driven into exile in London by the Tunisian authorities.
  • Ghannoushi has evolved a form of "democratic revivalism" that emphasises the rule of law, freedoms and human rights, while preserving a strong social and egalitarian orientation. His ire is directed mainly at secular governments in the Arab world— especially his native Tunisia— whom he accuses of deliberately fanning the fears about political Islam to cement their authoritarian and corrupt regimes.
  • Nevertheless Ghannoushi has found it difficult to realise the idea of a Muslim state within the terms of both the classical Sharia and modern notions of rights. For example, his resolution for the problem of equality of citizenship in an Islamic state is awkwardly handled by creating two classes of citizenship— theoretically equal but different. Muslims have a general citizenship while non-Muslims have a specialised citizenship. The argument advanced is that the majority can specify who can occupy high offices of state. [Many states of course have obvious restrictions on those who can hold high office, while maintaining their democratic credentials.]
  • Ghannoushi also expects that though the Sharia will provide the broad framework of society, legislators (and others) must exercise a continuous process of ijtihad to ensure the appropriateness and validity of Sharia rulings. While bemoaning the demise of civil society in secular Arab states with an authoritarian bent, Ghannoushi nevertheless expects that civil society organisations in Muslim states will be informed by the ideals of Islam and not necessarily by those of a secular liberalism.
An Ethical Perspective of Islam and Human Rights
  • The ethical perspectives of Islam, broadly understood, can also be explored as a significant new dimension in the on-going debates on Islam and human rights. These would not only be drawn from metaphysics, but also from the realm of tassawuf (sufism) and 'irfan (metaphysical gnosis).
  • Ethics in Islam or the science of akhlaq go beyond systematic moral philosophy and include the ethics of the Qur'an, the Traditions, philosophical ethics proper, theology and ethics, as well as metaphysical Sufism  (primarily the system of ibn 'Arabi), the classical doctrines of Sufism, and hikma or transcendental philosophy. But their legitimacy in Islam must also be related to their spiritual content and their function as pathways into understanding the deeper commands and injunctions of God.
  • These notions will be developed in subsequent lectures on the subject, but in substance they are based on the following considerations:
  • Reason and received wisdom (or 'aql and naql) are in themselves insufficient to understand the unfolding of the divine commands. These have to be augmented as a matter of absolute necessity by the development of a third faculty— that of insight and unveiling. The process of locating the reality and appropriateness of any action is an iterative process (or a feedback loop between the three). This is islam's tripod of knowledge.
  • The third leg of the tripod—- the spiritual or ethical dimension— is manifested in its external form by the cultivation of the virtues (fadha'il). These in turn are rooted in archetypes ('ayan), which are in turn manifestations of the self-disclosure of God (through the Names or Attributes— asma'a and sifat).
  • The identification of the meritorious virtues in the Names anchor them in the absolutes which must, both by reason, tradition and Qur'anic sanction, give them precedence over all other manifestations. Thus the divine attribute of 'Adl or Justice precludes the possibility that injustice can be a virtue; similarly the attribute of Salam or Peace takes precedence over the attribute of al-Qahir or the Dominator. These attributes are in turn arranged hierarchically so that one attribute precedes the other in order of significance. Knowledge precedes Will which precedes Power which precedes Action and so on.
  • The entire edifice is then held in dynamic tension so that it is in a constant process of change, re-evaluation and augmentation, while maintaining strict fealty to their roots in the Absolute virtues. Verses in the Qur'an that speak of creation emanating from a single Soul then prevail over the differences in human beings and between male and female, preserving the reality of diversity but transcending them in a higher principle.
  • Of course this understanding of Islam has not only to be rigorously presented and defended but must also cascade down into specific policies, laws, institutions and perspectives.
Towards a Synthesis of Alternative Views on Islam and Human Rights
  • It should be clear that the one-dimensional perspectives on Islam and human rights are seriously deficient and mask the ferment of thought and activity that has preoccupied a large number of eminent scholars, thinkers— and even policy-makers!
  • At the same time, the ferment does not necessarily change the realities on the ground in that the upper hand continues to lie with governments and the official religious establishment and orthodoxies. New orthodoxies are also emerging which seem to tilt the balance back in favour of the invariance of the classical Sharia.
  • The system that was originally proposed by the medieval scholar al-Shafi'I as a way of bringing order and discipline to Islamic jurisprudence has been elevated to a sacrosanct status. This legacy has proven very difficult to budge and has informed all the official orthodoxies. Those that have tilted against it in modern times have faced what seems to be an insurmountable obstacle—- which continues to enjoy legitimacy and support from the public.
  • In the Shia world, a similar system also operates which seems to invest the official interpreters of Islam (the mujtahids) with an equally powerful role as guardians and expositors.
  • For any alternative system to enter into the public consciousness, it must contend with this reality and must be prepared for lengthy and possibly acrimonious, even dangerous, disputes with the establishment. Nevertheless, the process is continuing apace and will, I believe, prevail in the final analysis, for two fundamental reasons. Firstly, the virtues of human freedoms and rights, and the need to establish accountable, representative and effective government are increasingly self-evident. Secondly, the classical Sharia and its interpreters cannot reconcile their claims with the first point in ways that are consistent.

1st Seminar ► Evolution of the Idea of Human Rights and Duties in Islam

1This article is based on a PowerPoint presentation. This is why the paragraphs are presented in bullets.