Ahmad Nur Fuad
Universitas Islam Negeri (UIN), Sunan Ampel Surabaya, Indonesia
A. Introduction
The issue of Shari‘ah and human rights has long been a subject of debates among Muslim jurists and scholars. They have developed understandings of Shari‘ah as revealed law from God in relation to human rights discourse from different perspectives and proposed different opinions. Although almost all Muslim scholars refer to the same values of Shari‘ah, they, indeed, have come with different interpretations and viewpoints, particularly with regard to the concept of universal or international human rights. In other words, the interpretation of Shari‘ah concerning human rights is not monolithic; on the contrary, the opinions of Muslim scholars vary significantly, ranging from very ‘liberal’ to ‘conservative’ positions. The former fully accepts the universality and universalism of human rights, while the latter totally rejects it. Of course, there is a middle position which attempts to reconcile the discrepancy between the two.
The debates center, particularly, on the compatibility of Shari‘ah and human rights in terms of philosophical basis, historical background and particular provisions. Some jurists and scholars maintain that Shari‘ah, which is revealed by God, has provided fundamental rights for the human being as God’s creation. Modern human rights, in their view, is contradictory to the principles of Shari‘ah in terms of the philosophical ground. They assert that human rights originate from the Western philosophical values and historical experiences. However, some others maintain that both Shari‘ah and human rights are compatible with each other. Both share the same values of humanity and human dignity and respect and protect the rights inherent in being human.
Many scholars have dealt with this issue from different perspectives and emphases. Some analyze the compatibility of Shari‘ah and Islamic law and international human rights, juxtaposing the two in terms of their respective legal norms and provisions. An-Na’im’s works on Islam and human rights, which raised controversies, have been critically reviewed by other scholars. Others focus on specific issues or aspects, such as freedom of religion, including apostasy. Most scholars, however, discuss the issue of Islam and human rights in a broader context, relating both to politics or referring to particular regions. Specifically, there has been an examination of the issue of Islam and human rights in terms of Islamic documents on human rights and some Muslim intellectuals’ views in the face of the international human rights standard.
Considering some of the previous studies as supporting sources, this paper will argue that varying understandings of both Shari‘ah and human rights reveal the prevalence of intersections, harmonies and conflicts between the two, and, to a certain extent, these are related to how the principles of Shari’ah are interpreted, and how the principles of human rights are perceived by Muslim scholars. This paper will begin with a general overview of the idea of human rights in light of its origins in the Western experience and Islamic Shari‘ah. The following section will deal with some crucial issues of human rights from the perspective of Shari‘ah in the broader sense, or Islamic law as the product of Muslim jurists’ formulation in the narrower one, covering their intersections, harmonies and conflicts. This includes discussions on the rights to freedom of religion, the rights of women, and the issue of criminal punishment, which is related to the rights to life and other related rights.
B. Philosophical Foundations and Historical Origins
The concept of human rights emerges in the modern era, although its constituting elements can be traced back to pre-modern period. In the Western tradition, the idea of human dignity has its roots in the Bible and Stoic philosophy in the third century BCE. It also has its roots in the principles of the rule of law found in some medieval documents such as Magna Charta Libertatum of 1215. The relations between these elements, combined with the rule of law and the universal commitment to human dignity and freedom, emerged as recently as two or three centuries ago. The historical breakthrough was achieved at the end of the eighteenth century through the Virginia Declaration of Rights (1776) and Declaration des droits de l’home et du citoyen (1789). The adoption of human rights in international law took place even later, particularly after World War II. It can be maintained, therefore, that human rights are a modern phenomenon.
The supporters of human rights admit that the modern concept of human rights originates from the West. However, from a historical perspective this does not necessarily mean that human rights deal only with the Western culture or apply only for the Western society. Since the underlying values of human rights are universal values of humanity, they also apply for all nations and people all over the world.
Most elements of international or universal human rights are individual rights which emerged from modern European thought and natural law. Western nations and states elevated these rights to the level of legal standards and norms. Through the Universal Declaration of Human Rights (UDHR) issued by the United Nations on December 10,1948 and many international covenants of 1966 which entered into force in 1976, these individual rights became documents of international laws, binding all state parties which signed and ratified them. These documents became legal stipulations as they are institutionalized in the legal context. In this regard, human rights cannot be separated from the notion of democracy, rule of law, and the concept of modern nation state, since they are intrinsically interrelated to each other.
The UDHR has been claimed as universal, although it has been articulated in the historical context of the Western world for the last three centuries and a certain philosophical anthropology of humanism which justifies these rights. The fundamental assumption of the Declaration includes the universal nature of humanity, individual dignity and democratic social order. In this regard it can be stated that the philosophical foundations of universal human rights are humanism, individualism and libertarianism, which flourish in the West.
In an Islamic perspective, Shari‘ah as revealed law, the corpus of which is found in the Qur’an and the hadīth, is believed to have provided teachings on humanity, as well as human rights and obligations. On a more juristic level, Islamic law, formulated by Muslim jurists as their understanding towards Shari‘ah, has developed the concept of human rights which includes what is historically referred to as the five necessities/obligations (al-ḍarūriyyāt al-khams), which are regarded as fundamental rights. They are the protection of religion (ḥifẓ al-dīn), the protection of soul or life (ḥifẓ al-nafs), the protection of reason (ḥifẓ al-‘aql), the protection of offspring (ḥifẓ al-nasl), and the protection of property (ḥifẓ al-māl). These five necessities are fundamental individual rights as well as individual obligations. The right to protection of life also includes the obligation or duty to protect individual integrity, both moral and material. Human beings do not own their own selves, because they are God’s. Therefore, it is prohibited for a human to kill himself or destroy parts of his body, as it is unlawful to kill other people or destroy their bodies.
In an understanding towards Islamic Shari‘ah, a concept called freedom or liberty (ḥurriyyah) forms an instrument used by human beings to protect and develop the five necessities mentioned above and other fundamental rights. This instrument cannot be set aside as it is related with the five necessities, and therefore becomes the necessity in itself. If freedom or liberty is a condition required for protecting human rights and performing human obligations, it is the duty of individuals, society and state to protect the condition.
In the Qur’an, there are many assertions regarding basic rights possessed by human beings, since these rights are strongly rooted in one’s humanity. The denial or violation of these rights means the negation or reduction of rights which make us human. From the Quranic perspective, the rights manifest when human beings act. These rights are created by God in order for humans to actualize their humanity. These rights, created and given by God, cannot be abrogated by any temporal ruler or any human being.
At this point, the distinction between human rights in Western conception and in a certain Islamic perspective is clear. The modern notion of human rights is founded on individualism and humanism, while the Islamic notion of human rights in classical and medieval thought is based on the interest of society. Islamic Shari‘ah does not deny the rights of individuals, but it emphasizes that individual rights should be socially contextualized. Freedom is seen as parallel to justice. Individual freedom which negates the interest of society is regarded as injustice.
Many Muslim scholars, such as Brohi (1982), Hassan (1996), Kamali, and an-Naim have attempted to draw and elaborate on the principles of human rights from Islamic sacred texts (Shari‘ah). There are many fundamental rights endowed in human beings, like the right to life (the Qur’an 6: 151; 5: 32), the right to respect, the right to justice, the right to freedom from slavery, and religious freedom. There is also the right to protection from defamation mocking, the right to obtain knowledge, and the right to have a good life. There are, of course, many more points of intersection and harmony between Shari‘ah or Islamic law and international human rights.
In short, it can be asserted that human rights in Islam is based on the principle of equality between human beings (all human beings are equal before God and come from the same ancestor), that of personal or individual liberty (slavery is prohibited, and freeing slaves is obliged or recommended), and that of protecting life (saving one person is like saving all humankind).
The difference between human rights in the Western concept and in Islam lies in its philosophical foundation. According to Brohi, Western human rights do not have metaphysical grounds. All fundamental rights and freedoms provided in the UDHR and declared in 1948 are the rights obtained from the state authority forcibly by its citizen through petition of rights. All laws on rights are given to people to be acknowledged by the state authorities as control over their despotic will. The content of civil and political rights is negative in nature. It takes the form of prohibition (addressed to the authorities) against the violation or denial of their individual rights.
Therefore, the rights claimed by the West for human beings involve responsibilities and obligations of the state to take these individual rights into account. Article 3 of UDHR, for example, “Everyone has the right to life, liberty and security of person”, implies the obligation of the state to acknowledge its responsibility before its citizen. In addition, Article 4 (No one shall be held in slavery or servitude, slavery and the slave trade shall be prohibited in all their forms) and Article 5 (No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment) remind the state to control itself from taking any action violating the rights of individuals. It is also the case with Article 9 that states: “No one shall be subjected to arbitrary arrest, detention or exile.” In Brohi’s analysis, the emphasis in the Declaration on respecting human rights can be related to historically apparent abuse of power by totalitarian regimes in the West before World War II, as they denied and violated individual rights and liberties.
In addition to this particularistic viewpoint, there have been more ‘universal’ positions with regard to Shari‘ah and human rights. An-Na’im argues that there is no contradiction nor difference between human rights and Shari‘ah. All human rights, as formulated and provided in the UDHR, the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR) and other human rights documents, are in line with the teachings of Shari‘ah. He admits that there are several legal prescriptions regarding punishment for a number of criminal offenses (theft, adultery, accusation of adultery, high way robbery, murder, consuming intoxicants, and apostasy) that contradict international human rights norms. Traditional Islamic law imposes ḥudūd punishment as specified in the Qur’an and the Sunnah. An-Na’im, however, asserts that the types of punishment for these crimes should be reviewed in light of the international human rights law. There is an urgent need for reinterpreting the traditional Islamic corpus juris in accordance with modern circumstances.
Baderin offers what he calls a “complementary approach to achieve the noble objective of enhancing human dignity.” He intends this approach to be a vehicle for harmonization on Islamic law side by adopting ‘enlightened interpretation,’ a sincere attempt at reconciling human rights and Islamic law using maqāṣid and maṣlaḥah approaches. As to the international human rights side, in Baderin’s view, it is necessary to consider accommodating the principle of ‘margin of appreciation’ in respect of Islamic ethical values and appreciating that “human rights are not inherently non-achievable within the scope of Islamic law.”
What follows is a discussion on some controversial issues related to human rights and Sharī‘ah or Islamic law in a narrower sense. We will observe in some issues under review some variations of intersection, harmony, and conflict between the two.
C. Freedom of Religion
With regard to the issue of the right to freedom of religion, there are many controversies or different opinions among Muslim jurists and scholars. Classical and modern Muslim scholars share the view that Shari‘ah guarantees the right to freedom of religion. They refer to a number of Quranic verses related to the issue, such as: ‘lā ikrāha fī al-dīn,’ -There shall be no compulsion in religion (the Qur’an 2: 256), and ‘Say: ‘This is the truth from your Lord. Let him who will, believe in it, and him who will, deny it.’’ (the Qur’an 18: 29). These verses are often used as justification for the right to freedom of religion guaranteed by Shari‘ah as it is provided in article 18 of the UDHR (Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance), and Article 18(1) of the ICCPR (Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or in private, to manifest his religion or belief in worship, observance, practice and teaching).
With regard to the right to change one’s religion, most traditionalist jurists argue that freedom of religion does not include freedom to change religion or belief from Islam to other religions. They base their opinions on textual interpretations of the Quranic verses. Some modern Islamic legal norms also maintain this position, as best represented in the document of Cairo Declaration (CD) on Islamic human rights. The CD does not provide any guarantee for the right to freedom of religion as a fundamental right. It can be understood that the CD is controlled by a theological viewpoint that is based on certain verses of the Qur’an, or a certain interpretation of Islamic Shari‘ah. Article 10 of the CD states that Islam is a pure and immutable religion. It is prohibited to force other people or use the poverty or the ignorance of people to change their religion and call him to atheism. Theoretically, this formulation does not give any room for conversion or apostasy.
Article 18 of the Universal Declaration of Human Rights guarantees every individual the right to choose his religion, observe religious obligations and even change his religion. The right to change religion as stipulated by Article 18 of the UDHR constitutes the most controversial issue with regard to freedom of religion. According to classical and medieval jurists and scholars, those who change their religion or convert from Islam can be regarded as apostates (murtadd), and the act is called apostasy (riddah or irtidād). For many Muslim jurists, the law of apostasy has been clearly prescribed and specified in Shari‘ah. Apostasy constitutes a crime punishable by death. However, for many modern Muslim scholars, freedom of religion includes the right to change one’s religion. Even if desertion or converting from Islam is to be regarded as riddah, it should be classified merely as a sin, the punishment of which lies in the authority of God in hereafter.
In the context of religious freedom, it is important to note that the statement in the Qur’an 2: 256 applies not only for non-Muslims, but also for Muslims. This is because those who convert from Islam and get involved in revolt or warfare against Islam or Muslim polity should be treated as enemies. However, the Qur’an does not specify punishment for those who only convert from Islam. Their status is in the hands of God alone.
There are different viewpoints concerning the right to change religion. According to one interpretation, not only is conversion regarded as treacherous, but also having dissenting opinions from what is believed as orthodoxy will be accused as heretical, subject to severe punishment. In certain Muslim countries this phenomenon coincided with the rise of excommunication (takfīr) of those who are critical of the established political authority and religious orthodoxy. They have been condemned as heretical and apostates. Some of them were put to death, or expelled from their home country, and thus took refuge and lived abroad. An-Na’im is critical towards this practice and tends to adopt the international human rights standard with regard to the right to changing religion. The CD provision of religious freedom is regarded as partial, since it clearly denies the right to change religion.
In the Indonesian context, for example, the right freedom of religion is guaranteed by the Constitution. Article 28E (1) states that everyone has the right to adopt a religion and worship according to his religion; and (2) everyone has the right to freedom of belief, thought and attitude according to his conscience. Although this article does not prescribe the right to change religion, it is legally permitted to change religion, since Indonesia has ratified the ICCPR as the Law 12/2005. However, this issue is still quite sensitive among the majority of Muslim population.
According to a certain interpretation, Shari‘ah prohibits conversion once a person has adopted Islam as his religion. This view is a result of literal interpretation of the Qur’an 2:218: ‘But whoever of you recants and dies an unbeliever, his works shall come to nothing in this world and in the world to come. Such men shall be the tenants of Hell, and there they shall abide forever.’
To establish harmony between Islamic law and human rights, Saeed and Saeed propose “a rereading of the Islamic tradition in light of modern concerns, interests and needs” in order to arrive at the conclusion that many articles of Universal Declaration of Human Rights are compatible with the values and objectives of Shari‘ah, including the right to freedom of religion. In line with other ‘progressive’ scholars, Saeed and Saeed argue that desertion from Islam is not a crime subject to punishment in this world, but merely a sin, the punishment of which will rest on the authority of God alone in the hereafter.
Discussion on the right to freedom of religion in light of international human rights on the one hand, and of Shari‘ah and its legal derivatives or interpretation on the other, clearly reveals their intersection and harmony in certain dimensions as well as contradictions in others. In terms of its non-derogability, freedom of religion is admitted by both Shari‘ah or Islamic law and international law. The conflict between the two legal norms is concerning the issue of changing religion, which is included in human rights. Most jurists and scholars disagree with the right to change religion or desertion from Islam. Nonetheless, there are some scholars who perceive the issue in a different way, thus justifying that the right to change religion is also a human right guaranteed by Shari‘ah. For them, it is the authority of God to decide the punishment.
D. The Rights of Women and Related Issues
The rights of women constitute one of the most important categories of human rights and is usually referred to as gender equality. One of the most salient areas regarding the rights of woman is concerned with the role of women in public or political spheres. In principle, the political rights of women in contemporary Islamic discourse is still controversial, although there have been significant changes in perceptions about the role of women. Some people maintain that women do not have any political rights, while others assert that women should have political rights. However, based on traditional interpretation of Shari‘ah, the primary task of women is dealing with domestic responsibility or household affairs.
In Mayer’s analysis, Shari‘ah, in its textual form as well as in its interpretations by many Muslim scholars and in many Islamic schemes on human rights, seems to not provide the same rights and freedom for women as given to men. There is no equality between men and women, and therefore women are discriminated and treated unequally. Not only in light of some articles in ICCPR, and particularly the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) which entered into force in 1981, Shari‘ah also seems to show contradiction in itself, and this remains an unresolved question, whether women under Shari‘ah rule are granted freedom and equal rights. On the one hand, Shari‘ah grants women freedom to manage their own property and conduct business. On the other hand, women should have their activities controlled by their husbands. Women even must stay at home and only take care of the household, except if they are permitted by their husbands to go out of the house or to work, for example. This ambiguity indicates the prevalence of relative discrimination or the absence of equal treatment between women and men.
The problem of unequal position and rights is usually in conjunction with the textual interpretation of the Qur’an 4: 34, which reads: ‘al-rijāl qawwāmūn ‘alā al-nisā’ bi mā faḍḍala Allāh ba‘ḍahum ‘alā ba‘ḍ wa bi mā anfaqū min amwālihim,’ (Men have authority over women because Allah has made the one superior over the others, and because they spend their wealth to maintain them).
E. Criminal Punishments and Related Rights
The issue of punishment in Shari‘ah or Islamic law in particular is closely related to human rights, such as the right to life (art.6 of the ICCPR) and the freedom from torture or cruel, inhuman or degrading treatment and punishment (art.7). The idea is that human beings should be treated in accordance with human dignity. It is prohibited to treat human beings cruelly or punish them in so far as to degrade their humanity.
In this context, Shari‘ah is in line with this particular spirit and set of values. In principle, Shari‘ah puts a high emphasis on human dignity. It prohibits any cruel, inhuman or degrading treatment to human beings. For example, Shari‘ah prohibits murder or killing, and it is stated that he who kills one person is as if he kills all human beings. This indicates that Shari‘ah upholds the dignity of humanity and the sanctity of life. The Cairo Declaration also prohibits torture or cruel and inhumane punishments (art.20).
However, some types of criminal punishment in Shari‘ah (the Qur’an and hadith) and Islamic law are seen as contradictory to human rights law. For example, penalties like amputations, stoning, crucifixions, and even capital punishment seem to violate article 7 of the ICCPR. The practices of criminal punishments in some Muslim states have also been regarded as violating the principles of human rights.
Indeed, different types of criminal punishments have been examined critically by scholars on human rights. The ḥudūd punishments are generally provided for six types of criminal actions: cutting hand for theft (sariqah); death, crucifixion or cross-amputation of hand and foot or banishment for rebellion or armed robbery (ḥirābah); stoning to death for adultery and one hundred lashes for fornication (zinā); eighty lashes for false accusation of fornication (qadhf); forty or eighty lashes for intoxication (shurb al-khamr); and death for apostasy (riddah). These punishments have been prescribed in the Qur’an and adopted by Muslim jurists into the body of Islamic law. Of course, there is consensus among Muslim jurists and scholars on some points of these types of criminal offences and their punishment, although there are more open and ‘liberal’ interpretations among many other scholars. For the latter, it is necessary to re-interpret the prescribed criminal actions and their punishments in light of international law on human rights. It is only through this endeavor that the fundamental principles and teachings of Shari‘ah can be in line with the international human rights principles and laws.
F. Conclusion
The discussion above reveals some important points. In principle, Shari‘ah embodies values and teachings on humanity, human dignity and human rights which are in line and harmony with the principles and provisions of international human rights documents. Both Shari‘ah and international human rights emphasize the dignity of human beings. Both share the view that it is prohibited to treat or punish human beings so as to degrade their human dignity.
Both Shari‘ah and human rights also guarantee human beings with freedom and rights. For example, as stated in the Qur’an, human beings should be free from slavery. It is also prohibited to enslave human beings. Human beings also have the right to life and to enjoy the protection from any arbitrary treatment that deprives their humanity. In addition, human beings have the right to freedom of religion and expression of their religion or belief in a community or in private. All these are in accordance with the principles and legal provisions of human rights.
However, in many other points, there are conflicts between Shari‘ah or Islamic law and human rights law. With regard to the freedom to change one’s religion, there is contradiction between the two. Shari‘ah prohibits desertion from Islam (apostasy), and threatens the apostates with the death penalty, according to the prescribed punishment in traditional Islamic law. The ICCPR includes the right to change religion in its human rights provisions. This is one of the points of differences between Sharī‘ah and human rights.
Concerning women’s rights, there are some conflicts between Shari‘ah or Islamic law and human rights. Traditionally, it seems that Shari‘ah puts women under the supremacy or domination of men. In theory and practice, women are often said to have been discriminated against. They do not have the same rights as men in the public sphere. However, with the rise of feminist Muslim activists and scholars, gender equality has been promoted, and there has been an endeavor to interpret Shari‘ah or Islamic law in accordance with the spirit of equality between men and women as human beings.
On the issue of criminal punishment, there is a difference between Shari‘ah and human rights. Shari‘ah and Islamic law prescribe some types of criminal punishments which are regarded as conflicting with human rights law. This is regarded as true in so far as punishments like stoning, amputation and death sentence are regarded as severe, cruel and degrading human dignity. However, there is indeed an essential component of Sharī‘ah involving the respect and protection of human life from any cruel treatment or action, like torture, or even killing, as provided in human rights documents.
Finally, it is important to re-read and re-interpret Shari‘ah and Islamic law in their contextual circumstances in order to find a new understandings of their principles and new types of legal provisions which are in line with the spirit of respect of human dignity and human rights. Some Muslim scholars like an-Na’im, Baderin and Saeed have provoked other scholars to consider appropriating the interpretation of Shari‘ah in line with the changing demands of the contemporary world in terms of respect to and protection of human rights.[ ]
Note: The translation of the Quranic verses in this paper is that of N.J. Dawood, The Koran, Fourth Revised Edition (Maryland: Penguin Books, 1974).
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