Communicatie, Informatie, Educatie

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The implementation of international human rights norms in any society requires thoughtful and well-informed engagement of religion (broadly defined) because of its strong influence on human belief systems and behavior, regardless of the formal characterization of the relationship between religion and the state in any society. While it is true that the behavior of believers is not always motivated by total fidelity to their faith, religious considerations are too important for the majority of people for human rights scholars and advocates to continue to dismiss them simply as irrelevant, insignificant or problematic.

In emphasizing the need for advocates of human rights to seriously engage religion, I do not assume that there is either immediate compatibility or permanent contradiction between human rights and any religion. On the contrary, my suggestion is premised on the paradox of the reality of tension between the two, on the one hand, and the importance of reconciliation, on the other. This paradox is often depicted in terms of the polar extremes posed by the universality of human rights and the relativity of religion. In my view, to posit such a dichotomy is misleading because of the interdependence between the two. While the universality of human rights cannot be realized among believers unless they accept it as consistent with their religious beliefs, the integrity of religious faith and its relevance to the lives of its adherents is dependent on the effective protection of human rights. Accordingly, it is more useful to see this relationship in terms of synergy and mutual influence, than to envision it as one of permanent antagonism.

In this essay, I use the case of Islam and Islamic societies for illustration, while emphasizing that similar issues arise in relation to other religions and societies. My argument is that the terms of this debate should be expanded, to include the role of local and global social, economic and political factors, instead of focused on purely theological analyses of the relationship between religion and human rights. In my view, this approach is more conducive to mediating between the polar extremes of universality and relativity by emphasizing common features of human experience over differences in abstract theological terms. This mediation is more likely to be effective when the focus is on the actual perception and practice of Muslims and other believers in their specific context. In other words, I am advocating that religious factors be understood in their proper perspective or context, instead of disregarded altogether or granted exaggerated impact as theological ideals.

For the purpose of this essay, it is necessary to distinguish between the two senses in which the term human rights is often used. In one sense, the term human rights refers to historical struggles for freedom and social justice in general. While prevalent in popular discourse, this general sense of the term is not useful for an analysis of the compatibility of human rights with any specific religious, political or ideological tradition, as each of these paradigms would claim its own understanding of human rights. As used here, the term human rights refers to the particular conception of freedom and social justice that was articulated in the Universal Declaration of Human Rights (UDHR) of 1948, and more specifically defined in subsequent treaties and effectuated through a variety of implementation mechanisms.

The key feature of human rights as defined in the UDHR is that these rights are due to all human beings by virtue of their humanity, without distinction on such grounds as race, sex (gender), religion, language or national origin. There is no doubt that the most immediate antecedents and articulation of this concept of human rights have emerged from Western (European and American) experiences since the late eighteenth century. As commonly acknowledged, however, those experiences were premised on the Enlightenment, rather than Christian or Jewish theologies, though the latter have tended to reconcile themselves with the former over time. In particular, the concept of human rights as defined in the UDHR is essentially a "universalization" of the idea of fundamental constitutional rights as developed by Western countries, although the actual set of rights provided for in the Declaration surpasses what can be found under the constitutional system of any country, Western or non-Western.

It is important to note here that while it is not binding as such under international law, the UDHR is clearly the enabling document for efforts to define human rights and devise mechanisms and strategies for their implementation. Given the realities of national sovereignty and international relations, it was imperative to strike a balance between the need for international supervision and respect for the domestic jurisdiction. Thus, in universalizing certain notions of fundamental rights, international human rights systems seek to make these rights binding under international law, while leaving application on the ground to the agency of the nation-state. The mitigation of this paradox of self-regulation by states of their own human rights performance requires a clear understanding of domestic and international factors and processes, including religion and the role of religious institutions, which influence the actual conduct of states in this regard.

Since there is no reliable international mechanism for "enforcing" human rights standards against the will of national governments, ^(2). the crucial question is how to encourage governments to ratify human rights treaties, and motivate them to comply with the obligation to protect these rights within their respective territories. An effective and sustainable way of doing this is to generate a local constituency to advocate for the ratification and implementation of human rights within the national context. Even if the elite in control of government want to respect some human rights, it is unlikely to do so against the wishes of its own population. For such a local constituency to emerge and be effective in its advocacy of human rights, these rights must be seen by the general public as consistent with its own religious beliefs. In other words, international human rights norms are unlikely to be accepted by governments as legally binding, and respected in practice, without strong legitimation within national politics. Popular perceptions of human rights as consistent with the religious beliefs of the population are essential for these rights' legitimation in each country. Even in so-called secular states, such as the United States and France, a clear understanding and appreciation of the political and sociological importance of religion is essential to efforts to influence the human rights policies and practices of the state.

As noted earlier, I am not suggesting that consistency between religion and human rights can be assumed, or taken for granted, in any part of the world. On the contrary, one can easily identify some fundamental tensions, if not open conflict, between religious precepts and human rights norms. Therefore, a key question in the universality debate is whether the secular Western origins of human rights, as defined by the UDHR, necessarily mean that these rights are not (or cannot be) truly universal.

The response I am proposing to this question is based on the following interrelated propositions:

1. The moral or philosophical foundation and political justification of the conception of human rights as defined by the UDHR can be found in different religious and cultural traditions. However, since the traditional theology of the major religions of the world, including Christianity, is not readily consistent with this specific conception of human rights, reconciliation will require a reinterpretation of some of the precepts of those religions.

2. Reconciliation is necessary because of the fundamental value of international protection of human rights in checking the abuse of the powers of the state. Since the European model of the nation-state has been universalized through colonialism, there is need for effective protection against excessive or abusive state power. The corresponding universalization of fundamental constitutional rights through the UDHR is the best available means of providing that protection. 

3. While there will necessarily be a theological dimension to the reinterpretation of religious precepts, the process itself must be understood in the specific political, social and economic context of the community of believers. The concrete historical context in which believers live is integral to all human understandings of religion, explained below in terms of an anthropological approach to religion. This context is also the framework within which the reinterpretation of religious precepts can emerge and be accepted in practice.

To develop these propositions in relation to Islam and Islamic societies, I will first attempt to briefly explain what I believe to be the key issue in current Islamic discourse, and explain its relevance to the subject of this essay. The framework I propose for addressing this issue in particular societies consists of an internal discourse and a cross-cultural dialogue with other societies. ^(3). To illustrate the application of this proposal, I will briefly outline how it might work in relation to Islamic societies. Drawing on a recent experience in Mauritius, I will examine some of the factors and conditions that affect the prospects of internal discourse and cross-cultural dialogue.

Islam, Sharia and Human Rights

Like other believers, Muslims have always sought to experience their faith in terms of individual and collective conformity with its normative system, commonly known as sharia, which is supposed to regulate their daily lives as Muslims. While Muslims tend to ascribe divine authority to historical formulations of sharia by jurists of the eighth and ninth centuries, it is clear that the precise content of that normative system has always been, and will continue to be, the product of human understanding in specific historical context. ^(4). As a scholar of Islamic studies recently explained, "Although the law [sharia] is of divine provenance, the actual construction of the law is a human activity, and its results represent the law of God as humanly understood. Since the law does not descend from heaven ready-made, it is the human understanding of the law--the human fiqh [literally, understanding] -- that must be normative for society."⁽⁵⁾

While readily understandable, the common confusion between sharia as divinely ordained, on the one hand, and human efforts to discover what it means, on the other, needs to be clarified if Islam itself is to play a positive role in the lives of Muslims today. Given drastic changes in the social, economic and political circumstances of Islamic societies throughout the world, an understanding of sharia that was developed more than a thousand years ago is bound to face some practical difficulties today. Yet, significant reform of any problematic aspect of sharia cannot occur as long as preexisting human formulations of it are taken to be divine. As a result of this "man-made" deadlock, Muslims everywhere continue to subscribe to a conception of sharia that none of them are willing or able to live by. For example, religious condemnation of ribba (usury) is understood to mean that the payment of any interest on loans is totally prohibited. Similarly, religious objections to gharar (uncertainty and speculation in commercial dealings) is taken to invalidate contracts of insurance where the obligations of the parties are contingent on whether or not something happens in the future. In practice, however, Muslim individuals and their governments routinely charge and pay interest on loans, and conclude and enforce contracts of insurance because it is impossible to have viable economic systems today without these practices. This discrepancy between theory and practice can be bridged through an appreciation of the fact that all specific definitions of concepts such asribba and gharar are necessarily the product of human understanding in specific historical context, not direct divine decree.

Failing to distinguish between the two meanings of human rights noted earlier, some Muslims claim that historical formulations of sharia have always secured human rights in theory, though such a situation may not have materialized in practice. In my view, by securing a relatively advanced degree of protection for the rights of women and non-Muslims, historical formulations of sharia did provide for better protection of human rights than other normative systems in the past. For example, from the very beginning, sharia was understood to require an independent legal personality for women, and the protection of certain minimum rights for them in inheritance and family relations, beyond what was possible under other major normative systems until the nineteenth century. Similarly, sharia guarantees specific rights for the so-called People of the Book (mainly Christians and Jews) more than what had been provided for under other major normative systems in the past. However, since the rights of women and non-Muslims under sharia are not equal to those of men and Muslims, respectively, the level of protection of rights under sharia is not sufficient when judged by the standards set by the UDHR, which require equal rights for all human beings, without distinction on such grounds as sex, religion or belief. ⁽⁶⁾

A possible response to this criticism of sharia is the argument that Muslims (and other believers) should strive to live by the dictates of their religion, not according to some fallible, humanly devised set of human rights norms. However, since divine commands are always understood and applied by human beings, the contrast between orthodox perceptions of "the dictates of religion" and new or unorthodox views on the matter is really between two human understandings of what the religion requires of its adherents. Accordingly, a reinterpretation of Islamic sources that demonstrates agreement with human rights norms should be considered on its own terms, rather than dismissed as un-Islamic because it is inconsistent with previously established human understandings of sharia. For Muslims, a reinterpretation should be accepted or rejected in terms of its own foundation in Islamic sources, instead of being rejected simply because it is new or unorthodox. Space does not permit a detailed discussion of possible Islamic reform methodologies that can achieve consistency between human rights and modern understandings of sharia.^(7). What I wish to emphasize here is the possibility of establishing the religious legitimacy of such an interpretation through what might be called an anthropological approach to Islam.

As I have explained elsewhere, ^(8). this approach is premised on an organic and dynamic relationship between the sacred texts of a religion, the Qur'an and Sunna (traditions of the Prophet) in the case of Islam, on the one hand, and the comprehension, imagination, judgment, behavior and practical experience of human beings, on the other. Such an approach is not only justified, but in fact required by the terms of the Qur'an, which in numerous verses invites individuals, or the community, to reflect and reason independently. Indeed, verse 12 of chapter 2 and verse 43 of chapter 3 proclaim that human reflection and understanding is the whole purpose of revealing the Qur'an. The rich diversity of opinion among Muslim jurists over almost every significant legal principle or issue of public policy clearly indicates a dynamic relationship between the Qur'an and Sunna, on the one hand, and human comprehension, imagination and experience, on the other.

Since the historical context of the community and the personal experiences of individual believers substantially influence human perception and behavior, drastic changes in the conditions of individual and communal life should lead to reconsideration of the meaning and implications of the divine message. By the same token, one must appreciate the differential impact of these factors on the perception and orientation of each community of Muslims today. To emphasize the importance of the specific historical context within which Islamic principles are understood and practiced is to call for clear understanding of the nature of these factors and careful consideration of their consequences for each society. In other words, one should address these issues for each Islamic society in its own context, instead of treating all such societies in the same way.

This contextualization is particularly important because of the role of the state as the framework for the articulation and implementation of public policy for Islamic societies today. Whatever role sharia may play in the lives of contemporary Muslims, that role will necessarily be mediated through the agency of their respective national states, rather than by the autonomous action of the global Muslim community as such. As an essentially political institution, any state has to balance a variety of competing claims and interests. It is true that some of those claims and interests will probably reflect the religious sentiments of the population. But in view of the religious and political diversity of the population of Islamic countries today, and the complexity of their regional and global economic and security concerns, it is totally unrealistic to expect any state to be solely motivated by the religious sentiments of even the vast majority of its population.

In addition to the above-mentioned elements of internal discourse and its processes, consideration must be also be give to factors and processes of cross-cultural dialogue. First, the realities of global interaction and interdependence mean that cross-cultural dialogue is already taking place in different ways among various participants, and around a variety of national and international concerns. The question here is to what extent these processes can be used to promote acceptance of international human rights norms within different religious communities. Second, as is the case with all forms of human communication, the nature and outcomes of such dialogue are conditioned by the perspectives or agendas of different participants, their perceptions of historical and current power relations, levels of trust or misapprehension, and other features of both the immediate and the broader contexts. Moreover, these factors tend to interact over time not only in the context of experience but in that of shifting perceptions of self-interest, mounting or diminishing solidarity and other variable factors. Third, with regard to the relationship between religion and human rights in particular, it is important to understand the synergy between internal discourse and cross-cultural dialogue, as these two aspects of the process can reinforce or undermine each other, depending on the interaction of the contextual factors indicated above. While the preceding remarks may indicate the sort of factors and considerations that I believe should be taken into account, I can only conclude by calling for further exploration of local and global conditions that are likely either to facilitate or to hinder the legitimation of human rights within different religious traditions in general.

Possibilities of Reconciliation in the Modern Context: The View from Mauritius

During a visit to Mauritius in November 1999, I gave a lecture on Islamic family law (also known as Muslim personal law, or MPL) from a human rights perspective. In that lecture, I made the obvious point that historical formulations of sharia discriminate against women, and called for the reinterpretation of Islamic sources to secure equality between men and women in all aspects of MPL. I was speaking in the context of a debate over the enforcement of the MPL by the state, an issue that has been simmering in Mauritius since the constitutional conference of 1965. ^(9). After the lecture, I was denounced as a "heretic" in the press of some Islamic groups, and by imams and other speakers at local mosques, because I said that those formulations of sharia should not be enacted by the state since sharia discriminates against women. Some activists who claimed to speak in the name of the Muslim community in the country also called for me to be declared persona non grata in the country, citing financial support by the Ford Foundation for my work on Islamic family law as conclusive evidence that I was an agent of American imperialism seeking to undermine the stability of Islamic societies from within.

The intense and hostile Muslim reaction to my remarks clearly indicated that the issue of MPL has become proxy for broader cultural and political concerns in the historical tensions between the Muslim minority and other segments of the population. As the managing editor of Impact News, the weekly newspaper that led the attack, told me on the telephone, "You should understand how important it is for us to have MPL enacted as the law for our community in this country. If we fail in doing that, all of our freedom of religion will be lost, including the right to hold Friday prayers in our mosques." I find that claim unjustified by any independent criteria, but also appreciate the fact that this view is firmly held by many Muslims in the country, who tend to understand their local and regional situations against the background of a long and bitter history of interreligious strife in India, the land of origin of both the Hindu majority and the Muslim minority in Mauritius.

There was also a clear awareness among the Mauritians that the international legitimacy of their island country requires a good human rights record. This was true among Muslims who supported the move to enforce MPL through the official legal system. Otherwise, they would not have been as concerned with my saying that sharia violates human rights by discriminating against women. It is probably true that Muslim activists were more concerned about the government's rejection of the idea of a MPL code on human rights grounds than they were about upholding the fundamental human rights principle of nondiscrimination on the grounds of sex. Nevertheless, an awareness of the relevance of human rights norms to domestic policies is precisely the sort of influence the international system is supposed to exert.

This dialectic between the global and the local, which is commonly appreciated now, is part of the cross-cultural dialogue mentioned earlier in this essay. The point I wish to emphasize here is the need for a variety of strategies to enhance the influence of human rights standards in both the domestic and the global context of each society. In relation to the role of religion in particular, it is imperative to engage in an internal discourse within the framework of the religious community in question, in order to overcome objections to human rights norms. Whether such a discourse is conducted through the reform methodology suggested in this essay, or by some other means, an internal discourse about the religious validity of human rights is essential if these rights are indeed to be universal at the global level.
 

The term human rights is popularly used to refer to a variety of systems for negotiating competing claims and interests in regard to how a society should be organized to achieve the best possible degree of freedom and justice. As used in this essay, however, this term means the particular normative and institutional system for realizing those objectives in the context of the state throughout the world today. Despite their clearly secular Western origins, human rights must also be legitimated in the context of different religious traditions because of the importance of those perspectives for the vast majority of people around the world. This process of religious legitimation requires creative approaches to theological questions in the specific socioeconomic and political context of each society. The universality of human rights must be realized through the implementation of deliberate strategies that are likely to attract popular support, instead of on the basis of assumptions that such universality already exists, or can be achieved by proclamation in international documents.

The proposed approach to the relationship between religion and human rights strongly emphasizes commonalities as well as differences in the experience of societies. These commonalities are easier to appreciate in light of a clear understanding of the dynamics of local struggles over power and resources, than by exclusively focusing on abstract theological precepts. This approach will enable human rights scholars and advocates to address the role of Islam (or any other religion) as a source of motivation and mobilization for particular political and social agendas, without appearing to challenge its legitimacy as the faith of a significant segment of the population of any country.

The experience I had in Mauritius clearly demonstrates that a more realistic and contextualized appreciation of the practical difficulties facing the universal acknowledgment of human rights in each society is essential to devising the best strategies for influencing the processes of cultural transformation in favor of better protection of those rights. The way out of the vicious cycle of the "universality-relativity debate" is to go deeper into the local context of each issue in order to find sustainable points of mediation. As with other public policy issues, the legitimacy and efficacy of the protection of human rights must be promoted through deliberate strategies that combine visionary belief in the possibilities of social and political change with a realistic appreciation of the difficulties.

In closing, I wish to express my personal appreciation of the fact that Professor Louis Henkin is the commentator on this presentation. With profound respect, I take the liberty of noting that both of us strive to combine adherence to our respective religious traditions with a strong commitment to the universality of human rights. While gladly accepting the possibility of disagreement between the two of us about how to reconcile religious adherence with a commitment to the universality of human rights, I still believe that our collaboration somehow resonates with the argument I have attempted to make in this lecture.

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ENDNOTES:

1. Charles Howard Candler Professor of Law, Emory University, Atlanta, Ga. Formerly Associate Professor of Law, University of Khartoum, Sudan. 

2. While "humanitarian interventions" and actions by the UN Security Council can be cited as examples of coercive measures for the protection of human rights against the will of national governments, these mechanisms apply only in extreme cases and are too dependent on the political calculations of the major powers to qualify as part of a reliable system for the regular international enforcement of human rights norms.

3. 

4. On the origins and development of that historical understanding of sharia, see Abdullahi Ahmed An-Na'im, Toward an Islamic Reformation: Civil Liberties, Human Rights and International Law (1990), ch. 2.

5. Bernard Weiss, The Spirit of Islamic Law (1998), 116. Emphasis in original.

6. For a detailed discussion of discrepancies between historical formulations of sharia and modern international standards, see An-Na'im, supra note 3, at 4-7.

7. An-Na'im, 

8. Abdullahi Ahmed An-Na'im, Toward an Islamic Hermeneutics for Human Rights, in Human Rights and Religious Values: An Uneasy Relationship ch. 16 (Abdullahi A. An-Na'im et. al., eds., 1995).

9. Bhewa and Alladeen v. Government of Mauritius and DPP, 1990 Mauritius Reports, pp. 79-90.