A western question to the Middle East: 'Is there a human rights discourse in Islam?'
As Palestinian society enters into the world community through the difficult re-birth of the Oslo process, it begins to feel the glare of the human rights monitors. In the two-and-a-half years since the creation of the Palestinian National Authority, Palestine has been subject to intense human rights interest. In this time Amnesty International has published four reports(2) and the country has been visited by many 'human rights missions.' In the same period Western aid organizations have launched projects to promote human rights and democracy usually staffed by Europeans and North Americans. From all this one might conclude that Palestine needs to be taught about democracy and human rights.
In its latest report Amnesty International "urges that the Palestinian Basic Law should be approved by the Palestinian Authority and passed as soon as possible by the Legislative Council and that human rights guarantees will be respected."(3) This demand is addressed to a legislature which had been established barely eleven months previously and which has a mountain of work before it - establishing the legislative framework for every area of Palestinian life. It also has to deal with the continuing realities of Israeli occupation, including the restrictions on travel for citizens and officials between areas controlled by the Palestinian Authority. Amnesty International demands that the Palestinians adopt a basic law in months whereas the address of the letterhead, the United Kingdom, has failed to adopt any similar instrument some 350 years after the English revolution.
In the debate about the development of civil society and human rights, it becomes clear the West retains its right to review and to comment upon the Middle East in colonial terms. The premise remains that due to the essential characteristics of the Islamic Middle East, despotism is inevitable without the intervention of Western ideas.
Amnesty International is not alone in its unreasonable demands placed on the Middle East. British lawyers on an earlier expedition revealed their attitudes toward the Middle East while inspecting Gaza and Jericho.(4) At the time the Palestine National Authority was merely six weeks old, yet they expected a basic law. The lawyers complained that although they were told about the existence of a 1962 Constitution for Gaza, they had "not been able to obtain a copy in English."(5) In Jericho, "the town contains a dusty square, with money changers and some small shops." They were "greeted by Brigadier Haj Ismail, a veteran of the Lebanese conflict, who is a tall man with penetrating eyes and brusque, perhaps overbearing, military manner, as was well as by another, more rotund and affable Palestinian commander, Brigadier Sa'adi Najj."(6) These passages, written not in 1894 but in 1994. It is curious that these British lawyers might think that their report would have any real engagement with either of the 'overbearing' or 'affable' Palestinian officials. It is also odd that the English legal profession should entrust such a mission to people who are so unfamiliar with the area that they expect legal documents to be English.(7)
The West has seized the grand-stand seat of international order and from its position surveys the world with an imperial eye. In fixing its gaze on human rights, the West divides the world into the viewed and viewers, the monitored and the monitors. The cause of international human rights has spawned numerous investigative organisms, some sponsored by the United Nations, many semi-official, which draw up reports on the human rights records of other countries. These are the mechanism through which the target is viewed. At the same time the human rights movement has been appropriated by the West as its own. In looking outward at the world, the West has honed human rights into a particular tool for vision. The Islamic Middle East is frequently in its sights. This essay argues that a review of the literature of this area reveals the persistence of Orientalism which obscures and frustrates any discussion of human rights.
The end of the Cold War has created considerable discussion on the direction of international and national societies. The end of bipolarism has been met with a series of responses which include a celebration of the end of ideology(8) and a search for new conflicts.(9) Within Western liberal circles there has also been a trend to use the situation to declare a victory over communism and to project a generalization of liberal democratic models.(10) In each case Western evaluations of the outcome of the Cold War reveal the dominant postcolonial world order. In the projection of a New World Order the supervising role of Western ideas and institutions appears strongly rooted in a belief that ready made truths can merely be conveyed to the ignorant and wayward. The rise of Islam as a political movement has convinced the West that its mission is not yet over, seeing Islam as inevitably opposed to democracy, pluralism and human rights. This response replicates colonial relationships and misses the opportunity of a historical juncture which offers the possibility of a new, universalist, engagement between human cultures. The construction of new models of human societies with the human being at the center requires us all to appreciate our location in order to begin that process.(11) The opportunity for a new phase of discourse in international relations, political science and cultural studies requires that we reach beyond the referential 'colonial other.' An engagement with the Islamic discourse on human rights can enrich the human rights discussion.
Western discourses on human rights have become increasingly bold during the last two decades in claiming an exclusive Western heritage for human rights, which, it is argued, is located in 'Western civilization.' According to this outlook the 'West' was born in classical Greece, progressed through ancient Rome, bypassed the Catholic Church but linked with Kant, the European Enlightenment, the French and American Revolutions, all of which produced the United Nations and the Universal Declaration of Human Rights.(12) In this account, Hegel, Marx, Engels and Lenin are optional extras depending on your political outlook. Within this perspective the Crusades, the inquisition, colonialism, slavery, fascism, Stalinism and the holocaust are absent.
Non-western societies are constructed as backward in that they are portrayed as traditional, rural and static. Within this framework the West's image of Islam as an unchanging and unchangeable religion fits well. While some leading Western scholars accept that human rights concepts have not existed "even in the western tradition until rather recently,"(13) most, nevertheless, argue that their origins are contained within the European discourse. Nearly all are united on the proposition that there is little basis for an understanding that such concepts could lie in the intellectual lineages beyond the West.
Islamic societies have long been characterized by Western scholars as held under the thrall of oriental despotism.(14) As a result, it appears to them as an obvious fact that rights cannot exist in such a society. Some current writers concerned with the issue of Islam and human rights, (Jack Donnelly, Bassam Tibi and Ann Mayer) base their work within this perspective. They have developed a series of detailed objections to Islam possessing a human rights discourse on four grounds: (1) Islamic law, as it is divine is static; (2) there is an anti-individualism in Islam which is contrary to the idea of human rights; (3) Islam thinks in terms of duties and not rights; and (4) human rights can only exist in a positive and modernist legal system. In constructing these arguments they stand in a tradition of legal Orientalism which grew out of the Eighteenth Century experience of colonialism.(15) Edward Said argues that Orientalism is built through European intellectual judgment taking a 'superior location'(16) made available by European power.
During the high point of colonialism, Europeans saw Islamic law as flawed due its connection with a false religion, today it remains flawed due to its alleged rejection of human rights. What remains consistent is the right of Europeans (and the West in general) to take the authoritative view. Since the Eighteenth Century, Islamic law has become the subject of a positivistic construction by European scholarship and colonial administrations, some of the results of which have entered into Islamic scholarship itself. Legal Orientalism has developed through a process of the selection of elements of Islamic law. This process of selection has defined the scope of Islamic law and has influenced the development of a normative system. The strength of legal Orientalism, and indeed its utility during the period of colonialism, lies in the fact that only genuine sources of Islamic law were drawn on. Modern western scholars follow this approach which adds authenticity to their work in both the West and the Islamic world. The reason this has been successful is due to the character of Islamic law itself and its scriptural heritage.
Ann Mayer in her book, Islam and Human Rights,(17) rightly points out that it has a title which people "tend to consult when looking for material on human rights in Muslim countries."(18) Since its first edition in 1991, it has come to occupy an authoritative place in the field. The methodology of the work reflects the process that I have described above in which a combination of silence and selectivity of Islamic sources serves to build an argument that there is a culture-based resistance to human rights in Islam.(19) In setting out her approach, Mayer explains:
Western specialists in the Muslim world and Islam are predisposed to attack scholarly projects that appear inspired by neo-colonialist attitudes and designed further in an effort to rehabilitate the imperialist enterprise retroactively. Their sensibilities in this regard have been exacerbated by the pervasive influence of Edward Said's seminal book, Orientalism. In this book Said argued that much of Western Scholarship on the Orient, meaning the Islamic Middle East, is not conducted in a spirit of scientific research but is based on a racist assumption of fundamental Western superiority and Oriental inferiority. By positing ineradicable distinctions between the West and the Orient, Orientalist scholarship, in Said's view, obscures the common humanity of people in the West and the Orient and thereby dehumanizes Orientals in a way that serves the goals of Western imperialism.(20)
This presentation of Said's views reduces a sophisticated analysis of two hundred years of European scholarship into a slogan. Said is at pains to explain to his readers that Orientalism is no mere trick of colonial power but a persuasive constructivist discourse(21) It is not purely a discourse which consciously aims at shoring-up imperialism. The other implication is that the methodology of Orientalists produces polemical work unlike the scholarly products of those who oppose it. Turning to legal issues, Mayer continues:
Although Said is not a lawyer and did not analyze legal scholarship, people influenced by his arguments tend to expand them to include legal scholarship, and although Said did not assert that all critical examination of Islamic institutions is infected by Orientalist biases, his disciples seem inclined to draw this inference from his book. In consequence, they may perceive projects for comparative legal analysis of Islamic law and international law - the latter being identified by the West - as Orientalist in a pejorative sense, particularly in cases where they anticipate that the analysis will expose disparities between Islamic and international law. This perception is unjustified.(22)
In this perspective all things legal are seen as beyond cultural analysis, as something special, as such legal texts and discussions about them have managed to escape the limitations of other forms of discourse. The idea of law has become unproblematical and it is not an arena for contest. Within Western legal theory there is a challenge to this static perception of law which can be seen most clearly in the critical legal studies movement. The subjecting of legal texts to cultural analysis, like any other text, reveals not fixity of norms but ambiguities which can open new readings.(23) Legal discourses, from whatever source, contain cultural codes often stronger than the normative one.
AN OVERVIEW OF ISLAMIC LEGAL TRADITIONS
Islamic jurisprudence, usul al-fiqh, is the main contribution of Islam to world civilization. As Sobhi Mahmassani points out, about three-quarters of any Islamic Library comprises jurisprudence.(24) This vast literature compiled over 1400 years is characterized by a wide degree of pluralism as revealed in various schools of law, currents within them and by political movements. Islamic law, is constructed through plural sources and juristic techniques which have been the subject of interpretation and debate over the centuries. There is some evidence to suggest that this plurality irritated the colonial authorities in Nineteenth Century India, for example, who wanted to 'apply' a cut and dried Islamic law in the courts. It also poses a daunting problem for anyone who sets out to study Islamic law. It is thus no accident that courses in Islamic law, for those seeking to become experts, in the ancient universities of Al-Azhar in Egypt and Najaf in Iraq take upwards of one decade. What is being studied during these lengthy periods is not a rote learning of an Islamic code, but the command of Islamic legal discourse.
Islamic legal discourse rests on two primary sources 1) the Qur'an and sunna and 2) a series of juristic techniques. The Qur'an is regarded by Muslims as the word of God revealed by the Angel Gabriel to Muhammad, between the years 610 and 632 A.D. A Qur'anic text was not compiled until after the death of Muhammad. The Hadith comprise a collection of traditions of Muhammad which supplements the Qur'an. The traditions were committed in writing after a process of attempting to establish the authenticity of reports. These reports were published in the Ninth Century, one hundred and fifty years after the events. There is no one authoritative collection of reports but no less than six for the Sunnis and two more for the Shi'ites.(25) Thus after the time of Muhammad, Islam transformed itself from an oral into a textual traditional. In the Eighth Century, the four main Sunni schools of jurisprudence established themselves, and all produced texts of exposition, commentary and interpretation of the Qur'an and the sunna. The art of interpretation became known as tafsir which can be translated from Arabic as interpretation or exegesis. In addition specific juristic techniques came to be accepted as secondary sources of law: ijma (consensus [amongst the scholar-jurists - opinio juris]), qias (analogical argument) and ijtihad (independent legal reasoning: literally effort by the jurists).
Islamic legal cultures developed through argument and debate amongst the scholar-jurists about the scope of interpretation and their role in interpretation and application of norms. As Mahmassani points out through these debates within both Sunni and Shi'a jurisprudence, currents tended to be formed within each school around one of two positions, known as ahl al-sunna (People of Tradition) and ahl al-ra'i (People of Opinion). At the heart of the debate was the role of reason ('aql) in determining God's will.(26) The fourteen hundred years of Islamic jurisprudence has thus not been a continuous echo of the divine revelation but has been an investigation about what that divine revelation might mean. A theme of these debates has been the scope which human beings have in understanding Divine justice. It is in the motion of these debates that we have to appreciate the intricate development of Islamic jurisprudence.
The pluralism within Islamic law led to the doctrine of talfiq(27) which not only gives Muslims the right to choose which school of law to rely on, but to piece together one legal argument using a variety of schools. Thus the competing interpretations have more than scholarly interest. This passes enormous legal initiative into the hands of the Muslim litigant.
In Islamic law the discourse which deals with areas that Western jurists would identity as public law and public international law is known in Arabic as al-siyar.(28) In the West it has been from these categories of jurisprudence that human rights concepts have been developed, particularly in constitutional law and international humanitarian law. Al-siyar developed against the background of the rapid expansion of Islamic power from the Arabian peninsular into large multi-ethnic empires, which for centuries constituted the dominant polities for much of North Africa, the Middle East, Central Asia and parts of Europe. In the turmoil of wars of conquest and occupation of vast tracks of territory, jurists struggled to transform relevant surat(29) of the Qur'an and reports (sunna) of the diplomacy of Muhammad, into a systematic jurisprudence. Topics included the use of force, the conduct of war, occupation, treaties, religious and political minorities, rebellions, relations with non-Muslim powers, and taxation.
The result of this process can be seen in al-Shaybani's Siyar published at the end of the Eighth Century. It is a comprehensive text written after the Socratic fashion. Al-Shaybani in common with other Abbasid jurists divided the world into two spheres Dar al-Islam [territory of Islam] and Dar al-Harb [territory of War]. Al-Siyar then deals with three issues within this framework; 1) relations within the Muslim community, 2) relations with non-Muslim states and the problems associated with Muslims traveling or living in non-Muslim states and 3) non-Muslims traveling or living in the Muslim community. This framework of international society has much in common with Soviet theories of international law in the Twentieth Century (1917-1991).(30)
Amongst other topics Al-Shaybani discusses al-jihad which is nearly always translated into English as 'holy war.' This particular use of al-jihad is at the root of many Western claims about the essentially violent character of Islam which imprint both domestic and international practices. However, the references to jihad, as always meaning war or violence, is a significant example of special cultural translation. War is only one possible translation of jihad. The most accurate is 'effort.' The specialist use of jihad in the siyar works is lost on most commentators who also fail to notice that major restraints are placed on the use of force, which is regarded as undesirable in principle and to be resorted to in self-defense, for the protection of the Muslim community and only when other means have failed. The attempt to limit the occasion for legitimate use of force is in some ways comparable to the relevant provisions of the United Nations Charter.(31)
This broader understanding of jihad is inconvenient for those who reinforce the Orientalist construction of Islamic societies as based on irrational violence, which the prefix 'holy,' plucked from the air, conveys. Indeed the specialist use of al-jihad within the Siyar is often referred to as the lesser jihad. The greater jihad is the desire for a just society. Thus the term al-jihad can become an instrument for the development of the potential of human beings including their human rights. Yet a glance at the slim body of work in the West on Islamic international law reveals a rather narrow and conservative reading which would have bemused many Islamic scholars who contributed to works on Siyar from the time of al-Shaybani onwards.(32)
This is not to say that there is no Islamic conservative reading of Islamic legal texts, including the use of al-jihad such as the approach of the ahl al-sunna current in most schools which interpret tradition in a conservative and static way. Until recently this current has been dominant amongst most Sunni Islamist activist groups. Indeed the use of the term al-jihad, by Hamas(33) in Palestine, Gama'at al-Islamiya(34) in Egypt and the armed wing of the F.I.S. in Algeria(35) almost has the same meaning as those in West who adopt the conservative reading of the texts. The significance here is the exclusive choice by Western scholarship of these conservative readings and interpretations which undoubtedly conforms to an essentialist view of Islam, and obscures the rich debate around these terms within Islamic discourse.
The works of the siyar are mainly passed over by Western international law and human rights scholars. On the whole it is only those working at the margins of political science, law, history or cultural studies who even refer to it. This nourishes the belief that Islam has nothing to offer on the subject of international order. Most Western international law texts see international law and human rights as a product of the European enlightenment.(36)
The grand narratives of the West have thus pushed all things Islamic to the sidelines. In turning to Islamic discourses on human rights, the mainstream scholar is confronted with exclusions and silences, or is forced to take a turn into 'Oriental studies.' Within this broad and unsatisfactory area, Islamic studies become marginalized and segmented from the main scholarly trends. Thus Western scholarship's relative silence on the ahl al-ra'i, results in the removal from intellectual history of the grand narrative of many leading Islamic figures, among them Ibn Khaldun(37) and Ibn Rushd(38) whose contribution to philosophy and jurisprudence often foreshadowed those of the European enlightenment.
In Ibn Khaldun the contours of what the contemporary West would call the theory of civil society and the modern concept of sovereignty emerge.(39) This important heritage is omitted by most Western accounts of the development of jurisprudence and political theory. Ibn Rushd followed Al-Farabi(40) and Ibn Sina(41) in an engagement between Islamic philosophy and Plato and Aristotle, and his work contains many themes on the relationship between virtues and ethics in governance which are to be found in the neo-Platonism of Seventeenth Century Europe.(42) Unfortunately, even Gellner follows this path in his otherwise stimulating book, Conditions of Liberty.(43)
One of the consequences of the narrow way in which Islamic jurisprudence is dealt with by Western scholarship, is that there is a tendency to return to Seventh Century Arabia as the context for the 'real' Islam. This essentialist position has much in common with the modern Islamist currents who see any entanglement of Islamic jurisprudence with classical Greek philosophy, for example, as corrupting. In this narrow historical determinism, both Western scholars and Islamists are supported by the arguments of the Twelfth Century Islamic thinker, al-Ghazali. He asserted that if Islam only exists in its 'real' form in the Seventh Century, then engagement with the real course of Islamic political history need never take place. While there is much reference to the various periods - Ummayyid, Abbasid, Fatimid, Sassanid, Mogul, Ottoman - they are framed by modern Islamists as examples of oriental despotism.(44) Indeed it is significant that in building his version of the theory of oriental despotism, Kedourie relies very much on al-Ghazali, whose authoritarian views are presented as the authentic arguments of Muslim scholars.(45)
Al-Ghazali is a great Muslim scholar, especially his contributions to Islamic jurisprudence. His conservative ordering of Islamic history through a selection of narrative has had immense consequences for the way in which the West perceives Islamic jurisprudence. This especially has been the case since the European enlightenment when post-Eighteenth Century Islamic movements have been misunderstood as simply reactions to the West's modernism. These movements, the usulis amongst the Shi'ites(46) (which became dominant at the end of the Eighteenth Century), and those movements associated with Sayyid Ahmad Khan,(47) al-Afgani,(48) Mohammed Abduh,(49) Qasim Amin,(50) Mohammed Iqbal(51) and Taha Husayn,(52) are thus seen as evidence of resistance to pressure of European thought on backward Seventh Century Islamic theory.(53)
Similarly, the case of the tanzimat-i khayriye (the benevolent reforms) of the Ottoman empire, which led to the development of the Land Code (1858) and the mejelle (Ottoman Civil Code, 1877), have simplistically been framed as the result of European power and intellectual strength.(54) I do not argue that European ideas played no part in these movements. Rather, I take offense that they should simply be seen as a reaction to Europe. I also argue that the engagement between Islamic and non-Islamic jurisprudence is a constant discourse within Islamic theory and is one of its most intriguing characteristics. It is in the broad, pluralistic and rich Islamic history that an important resource for a world grappling with globalism lies.
BLENDING OF LEGAL CULTURES
The hybridity of cultures, including legal cultures, is seriously underestimated by Western scholars working in the human rights field. The literature reveals fixity of legal lineages, which raises important issues for comparative methodology. When Mayer turns to a discussion of comparative law, she also adopts a rigidly positivist framework. She states that her work will compare Islamic law with international law and as a result she will be able to tell us whether Islamic law has 'disparities' with international law. This positivist methodology indicates that for Mayer there is a clear and absolute identity of Islamic law separate from 'international law.' She does not consider that the Statute of the International Court of Justice, article 38(c) of Islamic Law is regarded as a source of international law itself.(55) Nor does she appear sensitive to issues of comparative methodology. Mayer should have considered Peirre Legrand's observation:
Scholars who engage in comparative work about law face an exigent challenge. First, having been prepared to intervene as interpreters for another legal culture, they need to amplify their appreciation for different structures of meaning, to the point where they will ultimately be in a position to report on discrepant cognitive processes in an appreciative mode. Secondly, compartists, acting as cultural intermediaries, must determine how to convey their acquired understanding of another legal culture within the inconsonant parameters of their own.(56)
Mayer, however, adopts a different approach by informing the reader at the outset of her discussion that:
Concepts of human rights are just one part of a cluster of institutions transplanted [to the Islamic Middle East] since the Nineteenth Century from the West, the foremost of which was the model of the nation-state. This institution with its great centralized power over society and its monopoly of control over resources, had never existed before in Islamic history and has not been contemplated by Islamic jurisprudence. The nation-state is ubiquitous in the Muslim world, and it was inevitable that the legal institutions associated with it should also be transplanted. These legal institutions included constitutionalism and the scheme for the protection of human rights - actually legal constraints on the power of the modern nation-state.(57)
As if to underline her point she adds that in investigating Muslim views on human rights, she will be "examining reactions to imported legal concepts."(58)
The starting point of her work therefore is the assertion that the entire political and constitutional structure of the current Muslim world had to be transplanted from the West, as Islamic jurisprudence had never encountered the question of the 'modern nation-state' and thus had been unable to produce the idea of protection of citizens against this power.(59) This is a curious idea of history, and not just of Islamic history for it implies that the nation-state is essentially a particular formation of the Western experience in the Eighteenth or Nineteenth centuries. This conceptualization is a convenient excuse for colonial occupation but hardly a convincing historical analysis.(60) Colonial powers built new states in the Americas, Africa and Asia apparently quite unencumbered by this theory. The United States and Canada hardly conform to the nation-state discovery. Even in Europe very few states, even today, are based on a single nation, as most are multi-national.
As we have observed, Islamic jurists were considering issues of state power, governance and concepts such as sovereignty from the Ninth Century onwards. The idea that Nineteenth Century European states or the United States had a 'scheme for the protection of citizens', flies in the face of the realities of slavery, racial and religious discrimination, discrimination of women, and limited male franchise where it existed. For Mayer, however, Islamic law is rooted in pre-modern Seventh Century Arabia untouched by the idea of the state.
Although entitled Islam and Human Rights, by chapter two we have been told that the text will actually compare three United Nations instruments with a selection of Islamic writings. The 'International Bill of Rights' consists of three United Nations instruments: the Universal Declaration of Human Rights, 1948; the International Covenant on Economic, Social and Cultural Rights 1966, and the International Covenant on Civil and Political Rights, 1966 (and its optional protocol).(61) These UN instruments are then compared to her_selection of texts which include a document by a Sufi leader, Sultanhussain Tabandeh, A Muslim Commentary on the Universal Declaration of Human Rights; a paper by Abul A'la Mawdudi, Human Rights in Islam; a publication by a private organization, the London based Muslim Council, The Universal Islamic Declaration of Human Rights; al-Azhar's Draft Islamic Constitution; the Iranian Constitution; the Basic Law of Saudi Arabia; and the Cairo Declaration of Human Rights, issued by the Organization of the Islamic Conference.(62) Much of her presentation of Islamic thought is based on the arguments of Sultanhussain Tabandeh's document and Mawdudi's pamphlet. Tabandeh's work, contained in an English edition by Charles Goulding,(63) is a commentary on the Universal Declaration of Human Rights, and is far from an impressive text. In the pages of these rather dire texts, fourteen hundred years of jurisprudence is summed up. Similarly, although Mawdudi was a major figure of the Islamic revival and his work is of much of interest, the thirty-four pages of his pamphlet(64) can hardly be said to be representative of all Islamic thought on this subject.(65)
While Mayer accepts that she has selected only conservative interpretations of Islamic law, she claims this is inevitable as these forces have been dominant within Islamic jurisprudence.(66) She provides no arguments for these assertions. In her analysis of Tabandeh and Mawdudi, Mayer seems certain that what the former (the more conservative of the two), said in print was what Mawdudi really thought, but for political reasons would not write.(67) Thus having made her selection, Mayer still seems dissatisfied that the texts she chose do not measure up to her Islam, and therefore she imputes even more conservative meanings to them.
Other textual evidence of Islamic law falls into two types. On one hand there are the three Declarations which all have a rather different status. The first: the Universal Islamic Declaration of Human Rights, is the product of an informal organization. Secondly, the al-Azhar Draft Islamic Constitution is an academic exercise. Thirdly, the Cairo Declaration approved by the Organization of the Islamic Conference, was a diplomatic offensive in advance of the United Nations Human Rights Conference (Vienna 1992). The most interesting of the three is al-Azhar's Draft Constitution as it is accompanied by commentary and explanations.(68) Mayer concentrates on an exposition of the text itself and does not attempt to grapple with the underlying methodology. As with the other Declarations she compares them article for article with the United Nations instruments.
The other source materials comprise the Basic Law of Saudi Arabia and the Iranian Constitution 1980.(69) The choice of Iran is quite understandable and apposite, given the significance of the Islamic Revolution. However, she squanders the opportunity to investigate the methodological origins of the Iranian Constitution. Saudi Arabia is more difficult to justify given its particular history and extremely conservative lineage. If Mayer has selected Tunisia (a country with a written constitution for more than 130 years), the results of her survey could have been rather different.
The Iranian regime is often described in the West as 'fundamentalist', meaning that it is rooted in the Seventh Century fundamentals of Islam. However, in reality, the idea of an Islamic Republic created by the constitution has nothing in common with the Caliphate system. (The Caliphate system was created after the death of Muhammad and continued in various forms- sometimes competing, until it was abolished by Ataturk in 1924). Rather, as Chibli Mallat argues, the origins of the Iranian Constitution lie primarily in Shiite jurisprudence and the Najaf School of Law in Iraq.(70) Shiite jurisprudence has developed along distinctive lines, and generally authority in the hands of the mujtahids (jurist-scholars). This juristic methodology was developed in particular by Mohammed Baqer al-Sadr(71) and its overall conservative stance is best understood by examining the roots of Shiite tradition.
Shi'ism developed over the split within the Muslim community as to the succession after Muhammad's death. The Shi'ites emerged as the followers of Ali, and demanded that he should succeed to the leadership. It was not until 656 A.D. that Ali became Caliph, only to have a rival, Mu'awiya, militarily challenging his leadership. Ali was assassinated in 660 and was succeeded by his son Hasan. The final Shi'ite split came when his second son Husain was killed during the battle of Karbala. Shi'ites then established a separate Caliphate. Later on, the occultation of the Twelfth Imam further introduced a new aspect into Shi'ite philosophy which is the idea of the ever present Twelfth Imam who will eventually emerge publicly (the Mahdi, the expected one). As a result of these key historical developments, Shi'a jurisprudence has on the whole been particularly marked by intense debates about the character of the will of God. Divine will is seen as constant and timeless. Therefore it is argued that there is no reason why human interpretations of Divine will, from one period, should take precedence over another period. Furthermore, the possibility that such will could at any time be revealed by the emergence of the Mahdi, further underlines this position.
This history informs the methodology that led to the Iranian Constitution of 1980. As Mallat demonstrates, the debates in Najaf in the 1960s and 1970s were marked by a determination to renew Islamic law in the face of competing political forces in the Islamic world, in particular Marxism and Pan-Arabism. Mayer omits any discussion of this and as a consequence overlooks one of the methodological challenges that the Iranian constitution(72) poses to the West. The constitution does have sections guaranteeing individual human rights(73) which are set amongst a system of competing institutions which bear many resemblances to other constitutions. One such critical institution is the Council of Guardians (Article 91) which has the purpose of ensuring that all legislation is in accordance with 'Islam and the Constitution.' Under the ensuing provisions of the Constitution, the Council which is composed of two groups of jurists, investigates all legislation and either issues certificates of approval or requests a review of the legislation by the Majlis. From a methodological point of view, this is very similar to other models of constitutionalism, for example in the Fifth French Republic's constitution or indeed in the Constitution of the United States.(74) The idea of subjecting political power to the rule of law is part of the West's discourse of constitutional law and raises critical issues about the idea of fundamental rights and the scope of the popular will. Mallat suggests that there are fruitful overlaps in the debates on this issue in the Federalist Papers (1787-8) and in lbn Khaldun's Muqaddima (1377).(75)
The use of the Iranian Constitution by an authoritarian regime means the possibilities it contains have been destroyed along with thousands of human beings.(76) However, this raises a separate question about constitutionalism, one with which Western scholars are well aware given the frequent contradictions between political practice and constitutional textual interpretations. In the United States, for example, the majority of the population was excluded from political participation and subject to legal discrimination on grounds of race, gender, and social status for much of the period of its existence. Very few words of the text have changed, despite dramatic changes in constitutional practice.(77) Mayer, however, wishes to make the point that Islam is at the root of the failures of Iranian constitutionalism. Unfortunately the human rights situation in Iraq is no better despite its being a secular regime and one, arguably, influenced by European political thought.(78) Current developments in Iran indicate that, vilayet faqih, (government by jurists) turns on trends of thought amongst the jurists. They are by no means one voice, as the work of Abdel-Karim Souroush demonstrates. Souroush (a former leader of the Iranian revolution), believes that the very act of reading Divine text necessarily subjects it to human reason and that human beings are responsible for using reason wisely. As a result of his research he concludes that human rights abuses are un-Islamic.(79) In Mayer, however, the dynamism of Islamic jurisprudence is put to death by a combination of cultural essentialism and Western positivism.
Mayer's work, as I have noted, is part of a tradition within Western scholarship. The discussion of human rights and Islam is, however, comparatively new, just as any consideration of human rights is of fairly recent origin. It appears that this issue was only seriously discussed in the period following the Second World War and its jurisprudence was developed in response to the United Nations Charter and its references to "promoting and encouraging respect for human rights and fundamental freedom for all without distinction as to race, sex, language or religion."(80) One of the first scholarly discussions of this new concept appeared in the Annals of the American Academy for Political and Social Sciences which devoted an entire edition to the topic in January 1946, under the title 'Essential Human Rights.'(81) The journal edited by William Draper Lewis and John R. Ellington revolved around a discussion of the American Law Institute's Statement on Essential Human Rights. The volume's contents appear to have been motivated by a desire to establish universal support for the idea of human rights and contributions include essays on Islam, China and Latin and Spanish America. The editors of the journal are careful to establish the contribution of various social and religious systems to the concept of human rights. They are also aware that the West has not achieved the goals that the United Nations has set, particularly in the field of race.(82) The editors of the journal are at pains to point out the partial character of Western concepts of rights:
The Western peoples have groped their way towards this goal over the centuries both by revolution and evolution, with an emphasis on the civil and political rights essential to the freedom of the individual. Unfortunately in their emphasis on individualism, they have tended to forget that freedom is incomplete (and in an interdependent society impossible) without community.(83)
This emphasis on attempting to establish a solid basis for universalism in human rights appears to have been a victim of the Cold War and continuing European colonialism.
The importance that the editors of the Annals placed on the relationship between the individual and the community in order to create human rights is significant given contemporary arguments that Islam is deficient in the area of rights for individuals. As we will see, this concerns the very concept of the individual within Islamic societies. According to this view Islamic law lacks any concept of the individual by subjecting the 'individual' to the requirements of the 'community.' Bassam Tibi eloquently explains this position:
If Muslims are to embrace international human rights law standards full-heatedly, they need to achieve cultural-religious reforms in Islam - not as faith but as a cultural and legal system. In fact, Islam is a distinct cultural system in which the collective, not the individual, lies at the center of the respective world view. The concept of human rights, as Mayer rightfully stresses is "individualistic" in the sense "that it generally expresses the claims of the part against the whole." The part pointed out by Mayer is the individual who lives in civil society and the whole is the state as an overall political structure. Islam makes no such distinction. In Islamic doctrine, the individual is considered a limb of the collectively, which is the umma/community of believers. Furthermore, rights are entitlements and are different from duties. In Islam, Muslims, as believers have duties/fara'id vis-a-vis the community/ umma, but no individual rights in the sense of entitlements.(84)
It is interesting that Tibi relies on Islamist authorities who are known for their strong authoritarian political agenda, Mohammed 'Imara and Sheikh Mohammed al-Ghazali.(85) However, Tibi is reflecting a prevalent view that would be found time and again in the literature on this question. Jack Donnelly is also insistent that, "Human rights are inherently 'individualistic;' they are rights held by individuals in relation to, even against, the state and society."(86) He thinks that such a view of human rights is foreign to Islam.(87) Vincent also claims that "the religious community of Muslims, comes before the individual."(88) This position is repeated time and again in nearly all contemporary accounts of Islamic law and Human Rights. Donna Arzt uses the same formulas as she comments:
The individual's lack of rights is not seen by Islam in a negative light. This condition reflects the rejection of individualism in favor of communalism. The individual is placed in the context of the community of believers, which it itself has rights as a unit as a whole.(89)
A similar position was taken by Noel Coulson in the 1950s, when he said;
. . . to represent, in actual fact, a real guarantee of individual liberties, the idea of the rule of law must carry with it certain essential implications. The first of these is, obviously enough, the recognition of certain individual liberties by the law itself. No such recognition is to be found in the shari'a; and the formulation of a list of specific liberties of the individual as against the State, in the manner, for example of the American Constitution, would in fact be entirely foreign to its whole spirit.(90)
Coulson's view was challenged by Joseph Schacht who argued that to the contrary, Islamic law is characterized by individualism in its entire structure, citing in particular the law of inheritance and the law relating to waqf (religious endowments) as examples.(91) Schacht also makes the point that one of the leading scholars of the Hanafi school of law outlined the dictum, "The Imam [i.e. head of state] cannot be a judge in his own case," indicating that Islamic jurisprudence had developed the essential basis for the rule of law, certainly by the Fourteenth Century.(92) Schacht sees no necessary counter position between the individualist and collectivist elements of Islamic law, "The formal structure of Islamic law is individualist, and that one of its material aims has been social improvement ought not to obscure this important fact."(93)
The argument, that the individual has a rather low status in Oriental and other colonial countries is something which is commonly encountered in the literature of the past two hundred years. Perhaps the implication is that if by claiming that in their 'own' cultures the individual has less worth, this could justify their treatment as inferiors by the colonial powers. If we return to the discussion of human rights in Annals, we find that contributions on both Islam and Confucius insist that both Arab and Chinese cultures are highly individualistic. Majid Khadduri argues the position that in pre-Islamic times:
The Bedouin was essentially an individualist. The harsh and depressing climate of the desert accentuated his individualistic tendencies. This trait forced him to live in isolation and created in him an appreciation of freedom. Love of freedom became a tradition in Arabian society. Though this essential human right was much restricted in later periods, it remained a cherished ideal in the more developed and vast Arab empire.(94)
Khadduri then outlined how the prophet Muhammad had to struggle with the people of the Seventh Century in order to correct this over-individualistic society through the creation of a settled legal system. In the process, however, the positive features of the pre-Islamic society were incorporated into Islam and associated with religious values.(95) Indeed this contribution holds the clue as to why some of the punishments contained in shari'a, and known as hudud may have been so harsh. What is clear, however, is that the Islamic legal system is involved in regulating the activities of individuals as individuals. While the punishments might have been harsh, the rules of evidence are extremely strict to protect the individual from easy conviction. In this there is some comparison with English law in the Eighteenth Century from which experiences some writers see the origins of the contemporary variant of the theory of the rule of law.(96) Within Islam individuals are held responsible for their actions in a religious sense, and the tradition of martyrology in some currents would not make sense unless it were individualistic.
Individuals appear as legal persons in the international arena (al-siyar), where legal obligations are placed on commanders in the field and rights accorded to individual travelers in the Muslim realm (known as aman, or safe passage).(97) In addition non-Muslim communities in Islamic societies have been granted extensive autonomy to run their own communities, including their own legal systems. While the Dhimmi system is reliant on the payment of a poll tax, which could be said to have been discriminatory in a society where no others paid it, however, in a society were taxes are equally levied this objection can be overcome and is quite consistent with Islamic law. Most Western accounts of this system make it appear as oppressive, whereas it can be seen as pluralistic and offering an interesting model of autonomy and self-determination.(98) In these cases it can be seen that al-siyar dealt with the individual as a legal person in many critical areas, an issue which within public international law in the Twentieth Century is still a matter of debate.
An associated argument is that the Qur'an does not contain rights at all. Indeed some writers tell us that when we see Arabic word haq (a right) or huquq (rights) this should be understood not as a right, but as claim. Indeed some go so far as to say that the notion of a right 'is unknown in Islam.(99) There is no linguistic justification for transforming the meaning of this term. This case is argued clearly by the Islamist current who constantly contrast huquq (rights) with darurat (obligations)(100) and who are in no position to revise the actual words of the Qur'an given their religious and political positions. Certainly within Arabic there has been a stable meaning attached to huquq, which explains why the term huquq al-insan (human rights) is in such currency in debates within the Arab World.
The idea that a lack of individualism and oppressive community obligations abound within Islamic societies is attached to a broader Western image of what these societies actually look like, now and throughout history. Donnelly in his work refers frequently to non-Western societies in terms which imply that they are all rural and certainly 'traditional'. He says that in "the pre-colonial African village, [amongst] Native American Tribes and traditional Islamic social systems... I have argued that human rights - rights/titles held against society equally by all persons simply because they are human beings are foreign to such communities."101 It is highly significant that Donnelly uses the term human rights as rights or claims against societies, and yet within the Western discourse I think that we would refer to rights against the state rather than against society. His replacement of 'state' with 'society' reflects his view of the stage of development of these societies, it was also seen in Mayer's argument that the state was transplanted to Muslim societies from Europe. Donnelly uses the adjective 'traditional' before 'Islamic social systems' to convey backwardness. As an adjective it is confusing, but as a code it is instilled with cultural significance. He projects Islamic societies as static, small scale, rural and communal. He is prepared to admit that while not possessing a concept of human rights, they may have developed "quite sophisticated mechanism for protecting and realizing defensible conceptions of human dignity."(102) These "communitarian defenses of traditional practices cannot be extended to modern nation states and contemporary nationalist regimes."(103)
The view of Islamic societies is particularly flawed given the rise of the city within the Islamic world as the center of civilization, as the ancient cities of Baghdad, Alexandria, Damascus and Cairo testify. Islamic societies were not dominated by the countryside, but quite the reverse, by the city. It was in these cities that universities, public libraries, theaters and municipal authorities were established long before they were developed in Christian Europe. Cities by their nature are more open societies than the countryside. As far as jurisprudence and the judicial system were concerned, the cities were crucial in the development of the schools of law and the court structure. Orientalist scholarship reconstructs time and again the image of the backward Islamic society. In terms of Arabic history this often means that the Arab is pitted against the desert often in the most romantic terms but endlessly static.(104)
Mayer, Donnelly and Tibi proceed as if there is no human rights discourse within the Middle East. All appear to exclude from their purview actual human rights organizations or regional actions on the question of human rights. I think this may be connected to the loyalty that the international human rights current owes to doctrine and positivism, an approach which see all law as precise and definable data.(105) This methodology has been a failure in much of the world. The studied refusal to engage with the human rights activities in the region is noticeable. Mayer, for example, does not mention major human rights conferences or initiatives but commends us to read Tabandeh and Mawdudi's thirty-four pages. There is no mention of the Permanent Arab Commission on Human Rights (1969),(106) the Draft Declaration for an Arab Charter of Human Rights (1971),(107) or of the Draft Covenant on Human Rights produced by the Baghdad Conference of the Union of Arab Jurists in 1979.(108) In all of these instruments there are references to Islamic sources on human rights. Some of these issues have been explored by other scholars. For example Dwyer has compiled a series of interviews with human rights activists in the Arab World which makes an interesting book but it tends to lack context or methodological reflection.(109) Adbullahi Ahmed An-Na'im offers some very stimulating ideas,(110) but they are entirely dependent on a particular Islamic methodology that has developed around a small religious/political current in Sudan.(111) An additional problem with An-Na'im's work is that it is highly doctrinal and positivist in its approach to international human rights law.(112) While Mayer and others refer to An-Na'im's work they do not engage with it. Such an engagement would seriously affect the methodology which they have constructed which tends to rely upon an essentialist and Orientalist view of Islamic societies and the West which means that scholarship involves the comparison of one-dimensional binary opposites.
This essay is not presented as a defense of Islamic law against the West; nor is it an attempt to prettify authoritarian regimes which claim legitimacy from Islam. The first issue cannot be approached until we have grasped the constructive character of Islamic law contained within the western textual narrative. The second issue is connected to the first in that the narratives are based on an essentialism which sees authoritarianism as the necessary consequence of Islam. I am suggesting that part of engaging in this process would involve a re-ordering of the history of Islamic jurisprudence to include currents other than the conservative interpretations. This is not just an argument for justice for the case of Islamic jurisprudence or for a reclamation of an important part of our own jurisprudential heritage. It is an argument in favor of reconstructing legal theory beyond the postcolonial. It is also an opportunity to engage with exciting scholarship which has schematically been excluded in modernist and post-modernist concerns, neither of which seem able to deal with the ambivalence of their origins. An example of neglected scholarship is that of Professor Nasr Hamed Abu Zeid of Cairo University. Abu Zeid has become a cause celebre in Egypt after Islamists successfully persuaded a court to end his marriage against the wishes of his wife on the spurious grounds of apostasy revealed in his academic work. That work, as Stefan Wild emphasizes, postulates a linguistic theory of reading the Qur'an with the help of Toshihiko Izutsu and Yuri Lotman which constitutes the kind of research fitting for a globalizing society concerned developing a new ethic.(113) Wild also regards it as significant that Abu Zeid goes about this by linking his work to that of Ibn Rushd and rejecting that of Al-Ghazali, regarding the former as a part of an Islamic enlightenment.
Orientalist essentialism obscures the discussion of human rights and civil society in the Middle East as it constructs fixed images of Islam and the West. This deflects attention from the specific impact of colonial occupation on the region. In seeking explanations for the lack of democratic regimes in the Middle East, Western scholars(114) need to come to grips with this recent colonial past. The struggle against colonialism which has dominated these societies in the Twentieth Century demanded a high degree of common political unity which often meant that individualism was sacrificed to the goal of national independence. Where these struggles led to wars of national liberation this lead to a high degree of respect for discipline within the armed forces themselves and much public prestige for the 'army of liberation' in the public at large. The attainment of freedom from colonialism was therefore materially linked to collectivist and communitarian values.
In Egypt and Iraq from the 1920s onwards, even liberal movements proposing independence were met with harassment and repression by the colonial authorities. This lead to the formation of clandestine organizations which emphasized secrecy, intensified clan relationships and led to a restricted political culture. The models of the state that the colonial regimes created were a far cry from Mayer's image of transplanted enlightened polities. These models were extremely centralized, reliant on the armed forces and the police, and the executive used emergency powers freely. Above all they built with mechanisms for resistance to the popular will. Colonialism did not arrive with a Bill of Rights. In many ways the newly independent states internalized forms of political organization which were based on a colonial trained bureaucracy. This political and constitutional history was interlaced with the rise of the Soviet Union, European fascism and the Second World War. Despite these difficult circumstances, some societies in the region have developed pluralist political cultures. The Palestinian polity is a good example of this where there is a lively debate about the type of legal system, human rights and the basic law.(115)
Western scholars need to look at their own political and jurisprudential history. It is only since 1990 that European societies really opted for democratic political models with the collapse the Soviet Union and the East European regimes. The history of the Twentieth Century West has been dominated by struggles and wars within itself over the question of democracy. Mass political movements with state power reflecting fascism and Stalinism have been internal to the West.(116)
It is against this background that I am arguing for a new engagement with Islamic jurisprudence. A partial view of Islam inevitable leads to a partial view of Western lineages. Mayer believes that she is arguing for a universal human rights perspective, when in fact her outlook could be said to be parochial. As Abdul Aziz Said has commented:
In the modern, global system westerners have concentrated on discovering common denominators rooted in the Judeo-Christian traditions from which a calculus of human rights would emerge. This emphasis on Western common denominators projects a parochial view of human rights exclusive of the cultural realities and present existential condition of Third World societies.(117)
In reconstructing the human rights debate, both Western and Middle Eastern scholars need to escape the Orientalist methodology which Timothy Mitchell typifies as containing three features, essentialism, otherness, and absence.(118) In entering into a new engagement with each other, scholars cannot merely loose essentialism, reverse otherness and fill in absence.(119) Such an approach, however well intentioned, merely sustains Orientalism by constructing images of Islam but from wider sources. Homi Bhabha is helpful as he explores the opportunities of the period he calls the 'in between':
If the jargon of our times - postmodernity, postcoloniality, postfeminism - has any meaning at all, it does lie in the popular use of the 'post' to indicate sequentiality - after-feminism; or polarity - anti-modernism. These terms that insistently gesture to the beyond, only embody its restlessness and revisionary energy if they transform the present into an expanded and ex-centric site of experience and empowerment. For instance, if the interest in postmodernism is limited to a celebration of the 'grand narratives' of post-enlightenment rationalism then, for all its intellectual excitement, it remains a profoundly parochial experience.(120)
In this period there is bound be a period of intellectual dissonance in the wake of the deconstruction of entire textual genre. The new points of departure will inevitably become arbitrary and difficult, but the necessity of using the restlessness of the period to reach beyond also releases a great deal of energy to over-come the colonial heritage.(121)
The building of a human rights current which can draw on the experiences and contributions of all cultures without privileging any is an important intellectual and practical investment in the current period. Already there are signs that the fixed character of the East and the West, so loved of the Orientalists, has already begun to dissolve. Adonis calls the persistence of the divide a 'false dualism,' and that this is:
because it is conceived on the basis of superficial criteria - the criteria of the mechanical and the technical - whereas there no longer exists a 'West' and an 'East' each forming a self-contained conceptual unity. The West contains many 'Wests' more decadent than any Arab decadence and the Arab East has many 'Easts' more advanced than the most advanced of these 'Wests'.(122)
1. Elie Kedourie, Politics in the Middle East (Oxford: Oxford University Press, 1992), 12.
2. See Israel and Occupied Territories including areas under the jurisdiction of the Palestinian Authority: Human Rights: A year of shattered hopes (AI Index: MDE 15/07/95); Palestinian Authority: Death in Custody of Mahmud Jumayel (AI Index: MDE 15/62/96), September 1996; Israel and the Occupied Territories including areas under the jurisdiction of the Palestinian Authority: Trial at Midnight: Secret summary, unfair trials in Gaza (AI Index: MDE 15/15/95), July 1995; Palestinian Authority: Prolonged political detention, torture and unfair trials (AI Index: MDE 15/68/96), December 1996.
3. Amnesty International, Palestinian Authority: Prolonged Political Detention, Torture and Unfair Trials, (AI MDE 15/68/96), London, 1996, 35.
4. Geoffrey Bindman and Bill Bowring, Human Rights in Transition: The Case of the Occupied Territories, Jericho and the Gaza Strip. "A joint Mission on Behalf of the Law Society of England and Wales and the Human Rights Committee of the Bar of England and Wales," (London: The Law Society and the Bar of England and Wales Human Rights Committee, 1994).
5. Ibid, 21.
7. There are others who are trying to wrestle with the issues in a less prejudicial manner. See, for example, Heiner Bielefeldt, "Muslim Voices in the Human Rights Debate," Human Rights Quarterly, Vol. 17 (1995) 587-617.
8. See Francis Fukuyama, The End of History and the Last Man, (New York: The Free Press, 1992).
9. Patrick P Huntington, "The Class of Civilizations?", Foreign Affairs, Vol 72, No. 3 (Summer 1993), 22-49.
10. Thomas Franck, "The Emerging Right to Democratic Governance," American Journal of International Law, Vol. 86, No. 1 (January 1992), 46 - 91.
11. See Homi Bhabha, The Location of Culture, (London and New York: Routledge, 1994.).
12. See for example: R.J. Vincent, Human Rights and International Relations, (Cambridge: Cambridge University Press, 1986); Jack Donnelly, The Concept of Human Rights, (London & New York: Routledge, 1989); Rolando Gaete, Human Rights and the Limits of Critical Reason, (Aldershot/Brookfield/Hong Kong/Singapore/Sydney: Dartmouth, 1993).
13. Jack Donnelly, "Cultural Relativism and Universal Human Rights," Human Rights Quarterly, Vol. 6 (1984), 400-119, at 414.
14. This is a regular theme in the work of Montesquieu, Marx, Weber. For an eloquent exposition of the theory in contemporary terms see: Elie Kedourie, Politics in the Middle East, (Oxford: Oxford University Press, 1992), pp. 1-21. The work which epitomizes this theory is Karl August Wittfogel, Oriental Despotism (New Haven: Yale University Press, 1957).
15. See John Strawson, "Islamic Law and English Texts," Law and Critique, Vol. VI, no. 1 (1995) 21-38.
16. See Edward Said, Orientalism, (Harmondsworth: Penguin, 1978). For a discussion on the current issues of the Orientalism debate see: John M. McKenzie, Orientalism: History, Theory and the Arts, (Manchester & New York: Manchester University Press, 1995), 1-19.
17. Ann Elizabeth Mayer, Islam and Human Rights: Tradition and Politics, Second Edition, (Boulder and San Francisco: Westview Press, 1995).
18. Ibid., xi.
19. Ibid., 179-183.
20. Ibid., 7.
21. Said, Orientalism, 1-28.
22. Mayer, Islam and Human Rights at 7. Mayer does not identify who Said's disciples are, however, this marks a change from her position in the first edition where she remarked, "Said's Orientalism is not a concept developed for application to the field of law." [Ann Elizabeth Mayer, Islam and Human Rights, (Boulder: Westview Press, 1991), 10].
23. The critical legal studies movement exists on both sides of the Atlantic, see for example: Costas Douzinas and Ronnie Warrington with Shaun McVeigh, Postmodern Jurisprudence: The Law of Text and the Texts of the Law, (London & New York: Routledge, 1991), Costas Douzinas, Peter Goodrich and Yifat Hachamovitch, Politics, Postmodernity and Critical Legal Studies, (London & New York, 1994), Peter Fitzpatrick, The Mythology of Modern Law, (London & New York: Routledge, 1992).
24. Sobhi Mahmassani, Falsafat Al-Tashri fi al-lslam, [The Philosophy of Law in Islam], translated by Farhat J. Ziadeh (Leiden: E. J. Brill, 1961), 2.
25. The six are: Sahib al-Bukhari, Sahih al-Muslim, Sunan al-lbn Majah, Sunan al-Abu-Da'ud, Jami al-Tirmindhi and Sunan al-Nasa'i.
26. Mahmassani, Falsafat at 17.
27. Literally to piece together. For an interesting application of this methodology see: Justin Leites, "Modernist Jurisprudence as a Vehicle for Gender Reform in the Islamic World," Columbia Human Rights Law Journal, Vol. 22 (1992) 251-330.
28. I am grateful to David Powers for pointing out the danger of using al-siyar and public international law interchangeably as it could convey the wrong cultural metaphor, and be construed as Orientalist. In any event the Islamic use of the term pre-dates the concept of public international law by several centuries. The word comes from the plural siyrat which is best conveyed as 'epic' as in the famous literary work, Siyrat al-'Antar, although sometimes it means life as in the phrase siyrat al-nabi, life of the Prophet. Majid Khadduri does, however, use the term 'law of nations' as a translation. For works of al-Siyar in English see: Majid Khadduri, The Islamic Law of Nations: Shaybani's Siyar, (Baltimore: The Johns Hopkins Press, 1966), Ibn Rushd, Bidayat al-Mujtihid: The Distinguished Jurist's Primer, Volume I, translated by Imran Ahsan Khan Nyazee (Reading: Garnet, 1994), 454 - 487.
29. Arabic for verses, plural of sura.
30. See: G.I. Tunkin, Theory of International Law, translated by William E. Butler, (London: George Allen & Unwin, 1974).
31. See United Nations Charter, articles 2(4), 33 and 51.
32. See for example: Ahmed Rechid, "L'Islam et Droit des Gens," Recueil, 1937, II, 375-505; Majid Khadduri, "Islam and the Modern Law of Nations," American Journal of International Law, Vol. 50 (1956), 383-372; A.H.A. Reisman, "Islamic Fundamentalism and Its Impact on International Law and Politics", in Mark W. Janis (ed.), The Influence of Religion on the Development of Public International Law, (The Hague: Kluwer, 1991), 107-134. Some similar material is also contained in sources from the Arab World, see: Mohamed Abdallah Draz, "Le Droit International Public et L'Islam," Revue Egyptienne de Droit International, Vol. 5 (1949), 17-27.
33. On Islamist movements in Palestine see: Ziad Abu-Amr, Islamic Fundamentalism in the West Bank and Gaza, (Bloomington and Indianapolis: Indiana University Press, 1994).
34. On Islamist movements in Egypt, see: Barry Rubin, Islamic Fundamentalism in Egyptian Politics, (London: Macmillan, 1990).
35. See Amine Touati, Algerie, les islamistes a l'assaut du pourvoir, (Paris: L'Hamattan, 1995).
36. There are too many references to name but a current leading book contains one small paragraph which refers to Islam, and then not its contribution to international law, see: Rosalyn Higgins, Problems & Process: International Law and How We Use It, (Oxford: Clarendon Press, 1994).
37. Ibn Khaldun, 1332-1406 A.D., his most noted work is Al-Muqaddima. See: Aziz Al-Azmeh, Ibn Khaldun, (Cairo: The American University in Cairo Press, 1993).
38. Ibn Rushd, known in the West as Averoes, 1126-1198 A.D., is often seen as a modernist in the field of Islamic law, see: Bidayat al-Mujtahid, supra n. 23.
39. It should be emphasised that the use of these very concepts in describing the theories is dubious as they lend an Orientalist tinge to them. The point that I am trying to make here is that the exclusion is particularly inexcusable because of the intellectual connections between Ibn Khaldun and the development of Western social science.
40. Al-Farabi, 870-950 A.D..
41. Ibn Sina, also known in the West as Avicenna, 980-1037. For a good outline of Ibn Sina's work see, Sleim Ammar, lbn Sina: La vie et L'oeuvre, (Tunis: L'Or du Temps, 1992).
42. See John Smith, Selected Discourses, (London: J. Flesher for W. Morder, 1660). For a discussion of Ibn Rushd's views on Plato, see: Charles E. Butterworth, Philosophy, Ethics and Virtuous Rule: A Study of Averroes' Commentary on Plato's "Republic," (Cairo: American University in Cairo Press, 1986).
43. Ernest Gellner, Conditions of Liberty: Civil Society and its Rivals, (London: Hamish Hamilton, 1994).
44. For an alternative and brilliant reading of Islamic political history see; Patricia Springborg, Western Republicanism and the Oriental Prince, (Cambridge: Polity Press, 1992).
45. Supra n.9.
46. See Chibli Mallat, The Renewal of Islamic Law, (Cambridge: Cambridge University Press, 1993) 26-32.
47. Sayyid Ahmad Khan, 1817-1898.
48. Al-Afgani, 1838-1897.
49. Mohammed Abduh, 1849-1905.
50. Qasim Amin, 1863-1908.
51. Mohammed Iqbal, 1875-1938.
52. Taha Husayn, 1889-1973.
53. See John L. Esposito, The Islamic Threat: Myth or Reality? (New York & Oxford: Oxford University Press, 1992), 53-70.
54. See: Joseph Schacht, Introduction to Islamic Law, (Oxford Clarendon Press, 1964), 100-111.
55. The provision reads that among the sources of international law shall be "the general principles of law recognised by civilised nations." Note the Resolution on Islamic Law adopted by the 65th Conference of the International Law Association, which clarified this point beyond doubt, Cairo Conference Report, 1992, 5.
56. Pierre Legrand, "Comparative Legal Studies and Commitment to Theory," Modern Law Review, Vol. 58 No. 2 (1995), 262-272, at 262.
57. Mayer, Islam and Human Rights at 10.
59. The idea of transplanting an emancipationary jurisprudence is odd for many reasons, and there is some evidence to suggest that as European modernism took root in Egypt in the Nineteenth Century, women's legal status actually declined as is revealed in the sharp drop in the number of women initiating legal action in the courts for divorce and property actions when comparing the Seventeenth and the Nineteenth Centuries. See: Fayza Hassan, Golden Cages, Al-Ahram Weekly, 31 August - 6 September 1995.
60. There are some interesting intellectual contortions on this point as some writers do appreciate that there are earlier such formations. Thomas Franck, for example, tells us that, "The aspiration that underpins the principle of self-determination is of an antiquity traceable, in the West, at least to the Hebrews' exodus from Egypt." Supra n.5 at 53.
61. Mayer, Islam and Human Rights at 19.
62. Ibid, 20-25.
63. Sultanhussein Tabandeh, A Muslim Commentary on the Universal Declaration of Human Rights, translated by Charles Goulding, (London: Charles Goulding, 1970).
64. Abdul A'La Mawdudi, Human Rights in Islam, (Leicester: The Islamic Foundation, 1976).
65. Mawdudi, Indian and subsequently Pakistani intellectual and politician, 1903 - 1979. See Seyyed Vali Reza Nasr, "Mawdudi and the Jam'at-i Islami: The Origins, Theory and Practice of Islamic Revivalism," in Ali Rehnema (ed.), Pioneers of Islamic Revival, (London and New Jersey: Zed Books, 1994) 98-124.
66. Mayer, Islam and Human Rights at 40-43.
67. Ibid, 100.
68. A discussion of the Al-Azhar draft can be found in Rubin: Supra, note 22.
69. Mayer refers to the Constitution that emerged after the Islamic Revolution as dated 1979, in fact it was adopted in May 1980.
70. Mallat, Renewal of Islamic Law at 41.
71. Mohammed Baqer as-Sadr, 1935-1980. He was murdered by the Iraqi Ba'thist regime together with his sister, Bint al-Huda, also a renowned scholar.
72. The Constitution of Iran. Translated by Hamid Algar, (Berkeley: Mizan Press, 1980).
73. Chapter III.
74. See Mallat, Renewal of Islamic Law at 79-89.
75. Ibid, 85-6
76. See Raza Afshari, "An Essay on Islamic Cultural Relativism in the Discourse on Human Rights," Human Rights Quarterly, Vol. 16 (1994) 235-276.
77. Unfortunately, Mayer does not deal with current 'realist' and 'policy oriented' schools within western public and international law. In North America there has been an influential realist movement in constitutional law which has gone through many phases and has offered a systematic alternative to positivist and doctrinal approaches since the 1930s. See: Karl N. Llewellyn, "The Constitution as an Institution," Columbia Law Review, Vol. 34 (1934), 140.
78. See: Samir Al-Khalil, Republic of Fear, (Berkeley: University of California Press, 1989). Ba'thism has its origins in European fascism, influenced by the work of Sati' al-Husri and Michel Aflaq (a founder of the Ba'thist Party in 1940). See Kedourie, Politics in the Middle East (Oxford and New York: Oxford University Press, 1992), 295-299.
79. See: Eric Rouleau, "Republic in Mutation," Al-Ahram Weekly, Cairo, 8-14 June 1995; Fariba Adelkhah, "L'offensive des intellectuels en Iran," Le Monde Diplornatique, Paris, January 1995
80. United Nations Charter, Article 1(3).
81. Annals, Vol. 243 (January 1946).
82. In fact the next edition of Annals is devoted to the issue of Controlling Group Prejudice. The modest tone is set by Louis Writh, "The Unfinished Business of American Democracy," Annals, Vol. 243 (March 1946) 1-9.
83. Annals, Vol. 243 at viii.
84. Bassam Tibi, "Islamic Law/Shari'a, Human Rights, Universal Morality and International Relations", Human Rights Quarterly 16 (1994) 277-299, at 289
85. His note cites the works as "Mohammed 'Imara, Al-Islam wa Huquq al-insan. Darurat la huquq, [Islam and Human Rights: Obligations not Rights], (Cairo: Dar al Shuruq, 1989) and Sheikh Mohammed al-Ghazali, Huquq al-Insan bain ta'alim al-Islam wa al-'ilan al-umam al-Muttahidah, [Human Rights between the teaching of Islam and the United Nations Declaration] (Cairo: 1984)."
86. Jack Donnelly, "Cultural Relativism and Universal Human Rights", Human Rights Quarterly, 6 (1984) 400-419, at 411.
87. Ibid, but so also Jack Donnelly, "Human Rights and Human Dignity: An Analytic Critique of Non-Western Conceptions of Human Rights," In Frederick E. Snyder and Surakiat Sathirathai (eds.), Third Worm Attitudes to International Law, (Dordrecht, Boston, Lancaster: Martinus Nijhoff, 1987), 341357.
88. R. J. Vincent, Human Rights and International Relations (Cambridge: Cambridge University Press, 1986), 42.
89. Donna E. Arzt, "The Application of International Human Rights Law in Islamic States", Human Rights Quarterly 12 (1990), 202-230, at 206.
90. N.J. Coulson, "The State and the Individual in Islamic Law," International & Comparative Law Quarterly, Vol. 6 (1957), 49-60 at 50
91. Joseph Schacht, "Islamic Law in Contemporary States", American Journal of Comparative Law, Vol. 8 (1959), 133-147.
92. Ibid, 145.
93. Ibid, 138.
94. Annals, Vol. 243 at 77.
95. The contribution on China made the point that "Confucius taught that the individual is the unit of society and of civilization and that only as the individual improves cam families and nations improve." Chun-Mai Carsun Chang, "Political Structure in the Chinese Draft Constitution", Annals, 243, 6776, at 67.
96. See: E.P. Thompson, Whigs and Hunters, (Harmondsworth: Penguin, 1975), 219-269.
97. See Majid Khadduri, The Islamic Law of Nations: Shaybani's Siyar, (Baltimore: The John Hopkins Press, 1966) from 75.
98. See in particular S.D. Goitein, A Mediterranean Society: (Berkeley: University of California Press, 1983), Vol. 2, The Community and Vol. 4, Daily Life. See also: Ira M. Lapidus, Muslim Cities in the Later Middle Ages. (Cambridge: Harvard University Press, 1967).
99. See Urfan Khaliq, "Beyond the Veil?: An Analysis of the Provisions of the Women's Convention and the Law as Stipulated in Shari'ah", forthcoming in the Buffalo Journal of International Law.
100. This is demonstrated by the titles of the works cited by Tibi, see: Supra n. 71.
101. Supra n. 8, at 410.
103. Ibid., 411.
104. This is not to say that the Arab city is never considered, but when it is it is framed with a perceived traditionalism in which city life resembles rural backwardness. See: E.W. Lane, Manners and Customs of the Modern Egyptians (The Hague and London: East-West Publications, 1989), first published in 1836.
105. This approach underestimates the indeterminate character of international law, the debate between Koskenniemi and Georgiev is instructive see: M. Koskenniemi, "The Politics of International Law," European Journal of International Law Vol. 1 (1990), 4-32; Dencho Georgiev, "Politics or Rule of Law: Deconstruction and Legitimacy in International Law," European Journal of International Law, Vol. 4 (1993), 1-14.
106. See Stephen P. Marks, "La Commission Permanente Arabe De Droit De L'Homme," Revue des Droit De L'Homme, Vol. 3 (1970), 101-108.
107. This is an instrument drawn up by the League of Arab States, see: Boutros Boutros-Ghali, "The League of Arab States," in Karel Vasak, The International Dimensions of Human Rights, (Westport Con: Greenwood Press, 1982), 575-581.
108. See; "Final Communique of the Symposium on Human Rights and Fundamental Freedoms in the Arab Homeland," UNGA A/C3/34/11 (November 1979).
109. Kevin Dwyer, Arab Voices: The Human Rights Debate in the Middle East, (London and New York: Routledge, 1991)
110. See Abdullahi Ahmed An-Na'im, Towards an Islamic Reformation: Civil Liberties, Human Rights, and International Law, (Cairo: American University in Cairo Press, 1992).
111. This current is known as the Republican Brotherhood, founded by Mahmoud Mohamed Taha, whose work argues for an Islamic reformation through a new approach to resolving contradictions within the Qur'an. He was executed by the Sudanese regime lead by Ja'far Numayry in 1985. See: Mahmoud Mohamed Taha, The Second Message of Islam, translated by Abdullahai Ahmed An-Na'im, (Syracuse: Syracuse University Press, 1987). AnNa'im has been associated with the Republican Brotherhood since 1968.
112. For a discussion on this aspect of An-Na'im's work see: Karen Engle, "International Human Rights and Feminism: Where Discourses Meet," Michigan Journal of International Law, Vol. 13 (1992), 517-610.
113. See Stefan Wild, "Making Claims for Rationality," Al-Ahram Weekly, Cairo, August 10-16 1995.
114. Some Arab intellectuals are doing this from their own perspective see: Kanan Makiya, Cruelty and Silence: War, Tyranny, Uprising and the Arab World, (London: Jonathan Cape, 1993).
115. See Ay Nizam Qanuni li-Falastin? [Which Legal System for Palestine?] (Birzeit: Law Center, Birzeit University, 1996), in Arabic; First International Conference on Human Rights in Jerusalem (Jerusalem: Land and Water Establishment for Studies and Legal Services, 1994); Khalil Shikaki, "The Peace Process, National Reconstruction, and the Transition to Democracy in Palestine," Journal of Palestine Studies, Vol.XXV, No. 2 (1996), 5-20.
116. This continued into the 1990s in Bosnia where Serbia developed war crimes into a policy of the state. See: Stjepan G. Mestrovic, The Balkanization of the West: The Confluence of Postmodernism and Post-Communism, (London & New York: Routledge, 1994).
117. Abdul Aziz Said, "Pursuing Human Dignity," in Abdul Aziz Said (ed.) Human Rights and World Order, (New York: Praeger, 1978), 1-21, at p. 1.
118. Timothy Mitchell, "Orientalism and Exhibitionary Order," in Nicholas B. Dirks, ed., Colonialism and Culture (Ann Arbor: University of Michigan Press, 1992), 289-317, at 289.
119. See: Peter Fitzpatrick, "Passions out of Place: Law, Incommensurability and Resistance," Law and Critique, vol. Vl. No. 1 (1995) 95-112.
120. Homi Bhabha, "Cultures In Between," in Stuart Hall and Paul du Gay (Eds.), Questions of Cultural Identity, (London: Sage, 1996), 53-60 at 4.
121. An excellent example of taking the issue of Islam and democracy beyond this point is to be found in: Ahmad S, Moussalli, "Modern Islamic Fundamentalist Discourses on Civil Society, Pluralism and Democracy," in (Ed.) Augustus Richard Norton, Civil Society in the Middle East, (Leiden, New York & Koln: E.J. Brill, 1995), Vol. 1 79-119.
122. Adonis, Introduction to Arab Poetics, translated by Catherine Cobham, (London: Saqi Books, 1990), 91.
John Strawson teaches at the School of Law, University of East London, Essex. This essay is based on a paper he presented to the Critical Legal Conference, University of Edinburgh, September 1995.
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|Publication:||Arab Studies Quarterly (ASQ)|
|Date:||Jan 1, 1997|
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