Reviewed by Dr. Niaz A. Shah*

Islam & The Challenge of Human RightsAbdulaziz Sachedina has set himself the noble but challenging task of searching for a human rights system in the Islamic tradition, a system that would guarantee human dignity and which would not conflict with the 1948 United Nations Universal Declaration of Human Rights. Sachedina endeavors to go to the foundational sources of Islamic doctrines in the Quran and the Tradition [the Sunnah or the exemplary behavior of the Prophet Muhammad] to demonstrate to its own membership [the Muslim community] as well as the international community that it shares the universal language of morality and human agency, including human dignity, to enhance its commitment to the protection of human rights’ (pp. 14, 15). Sachedina aims to show that ‘Islamic doctrines share the universalism of human rights’ and thus open ‘a real conversation between the secularist and the Islamic notions of human agency and human dignity for the protection of abused individuals’ (p. 15). Sachedina wants to critically analyze the Muslim theological sources in order to propose ‘a fresh understanding of Muslim theology to support universal human rights’ based on the ‘principle of inherency and inalienability of the rights that accrue to all humans as humans’ (p. 15). The goal of his research is ‘to identify and articulate Islamic foundational sources that could establish a legitimate correspondence with secularly derived human rights’ (p. 35).

To achieve his goal, Sachedina has been successful in finding evidence in the Quran of the notions of human dignity and plurality. He ably cites relevant verses of the Quran to support his argument that human beings are born free and are capable of understanding good and bad before committing themselves to any doctrine, religious or secular. The Quran has bestowed dignity on humans because of their ‘human-ness’ rather than their belief in Islam. Sachedina convincingly establishes that every human being has dignity because of his/her human personhood rather than believing in Islam. This is a foundational point for building an Islamic human rights system that would protect everyone because of one’s humanity and would correspond with the secularly derived human rights idea. This position also paves the way for the protection of the human rights of non-Muslims in Muslim states because the Quran recognizes the principle of plurality.

Sachedina makes several valid points in his book, such as arguing for the re-examination of the position of traditional scholars (Ulema) on gender equality, the treatment of non-Muslims in Muslim states and in developing the Islamic concept of citizenship, but it is his emphasis on the revaluation of fiqh that deserves special appreciation. The Quran and Sunnah are the two primary or divine sources of Islamic law and Sharia generally. Fiqh is the human understanding of these sources contained in scholarly writings. Therefore, fiqh by its very nature is human and is not binding in nature. Fiqh is also not infallible. Classical jurists understood and interpreted the divine sources in their own contexts but their understanding and interpretation do not block the way of current scholars and jurists to reinterpret the divine sources in the present context. It is mainly the fiqh rules and statutory laws of various Muslim states based on the classical fiqh that discriminate against women and non-Muslims. A very convincing case could be made for human equality by penetrating the body of traditional fiqh, taking whatever wisdom one can to reach to the primary source—the Quran and the Sunnah—and re-examine them in the present context. Chapter 4 of Islam and the Challenge for Human Rights on the dignity and treatment of women as equal bearers of human rights and the argument made therein for gender equality is not totally new but his attempt is laudable.

Sachedina proposes to engage with and, at the same time, to challenge the traditional Sunni scholars by relying on the methodology of Shia and Mutazilite. Sachedina is entitled to choose whatever methodology he wants to use but his inclination towards the methodology used might become a major weakness of his book for two reasons. First, because the traditional Sunni scholars have historically opposed the Mutazilite and Shia doctrines and currently there is no evidence suggesting an easing of their hostility towards these two groups. In fact, as Sachedina has indicated in the case of Iraq (and I can add the case of Pakistan where Sunni and Shia militant groups kill each other) the hostility between Sunnis and Shias has become fiercer. Second, the utility of following the Shia methodology might be seriously questioned as the human rights record of Shia Iran is no better than the hard line Sunni Saudi Arabia. Both have some of the worst human rights records. When I was reading Sachedina’s book in August 2010, the cases of stoning to death in Sunni Afghanistan and Shia Iran were reported in the media. But in a neighboring state—Sunni Pakistan—the Federal Sharia Court has delivered three landmark judgments since 2009, dealing with gender equality,[1] the rights of prisoners[2] and the rule of law.[3] Sachedina’s emphasis on engaging the traditional scholars deserves appreciation, but these days public awareness is more important than relying on the support of traditional scholars. In most Muslim states, publicly elected parliaments make laws, not religious scholars. Generally speaking, parliaments in Muslim states are not dominated by religious parties or scholars. Religious scholars agitate against laws that they think are against Islamic standards but, crucially, they rely on the public to put pressure on governments and parliaments. This is precisely why the ultimate focus should now be on public awareness. Traditional scholars should be used as only one of several channels for influencing public opinion and raising awareness. In Pakistan, the parliament amended the notorious hudud laws despite some opposition from the traditional Islamic scholars. In 2010, President Karzai of Afghanistan revoked a presidential decree related to the law of personal status of the Shia after international and some national public pressure, despite some support from traditional Sunni scholars.

Sachedina touches on some contentious and difficult areas in Islamic tradition, such as gender equality and the treatment of non-Muslims but what is conspicuously missing is the treatment of hadd (fixed penalty) punishment for certain offences, such as stoning to death for adultery and apostasy and the chopping off of hands for theft. He discusses freedom of religion but only in the context of the rights of non-Muslims in a Muslim state. Apostasy is an offence related to Muslims, i.e., whether a Muslim who renounces the faith of Islam should be stoned to death. One would expect some discussion of these punishments similar to discussion of contested issues like gender equality. The views of an eminent scholar like Sachedina would have been helpful.

Sachedina points time and again, and rightly so, to human rights violations in Muslim states. Two points need to be noted in this regard. First, a distinction must be made between the actions of Muslims and Islamic law. Laws are violated in all states. In the case of Muslim states, it must be borne in mind whether Islamic law allows an action that might conflict with human rights. For instance, there is gender discrimination in Muslim states but we need to see how the law of a given Muslim state treats the issue of gender discrimination. Gender discrimination is common in Pakistani society but Article 25 of the 1973 Constitution of Pakistan prohibits such discrimination. This means that gender discrimination exists in society but it is against the law. The Federal Sharia Court of Pakistan, as stated above, held that gender discrimination is against the Quran and the Sunnah. Second, human rights are frequently violated in non-Muslim states as well and therefore attributing human rights violations to Islam in Muslim states is a mistake. The human rights record of secular Turkey and India is no better than their neighbors. The record of the so-called ‘big democracies’ is not much better either. Let us take as an example, the illegal invasion of Iraq in 2003 by the United States and her allies. The number of human rights violations that have taken place in Iraq since 2003, during the presence of US and other forces, is far greater than the number of human rights violations for decades under Saddam Hussein or under repressive regimes elsewhere. It is very significant to keep in mind that Islam or Islamic law is not the only reason for every human rights violation in Muslim states. There are other factors that explain them as well. Establishing an Islamic human rights system would be very helpful but not the only thing to do in order to improve the state of human rights in Muslim states. My two favorite proposed steps, of many other possibilities, are those of economic development and education. Ultimately, this logic would be helpful in the promotion and protection of human rights in Muslim states.

To sum up, despite my comments above, Sachedina’s book is an excellent and stimulating contribution to the scholarship on the relationship between Islam and human rights and on developing an Islamic human rights system. It would be of interest to all scholars of human rights and Islam.

 

Footnotes:

[1] All Pakistan Legal Decisions 2008 Federal Sharia Court 1.

[2] All Pakistan Legal Decisions 2010 Federal Sharia Court 1.

[3] All Pakistan Legal Decisions 2010 Federal Sharia Court 229.

 

(*) Dr. Niaz Shah is a Reader in Law at the University of Hull specializing in human rights law and asylum law. He has worked for the UN High Commissioner for Refugees dealing with asylum cases. He has remained legal adviser of UNDP, EU and several other international organisations on their projects dealing with human rights and rule of law. Niaz Shah has also worked at the UN Division for the Advancement of Women, New York dealing with the first batch of cases before the UN Committee on the Elimination of Discrimination against Women (CEDAW). Niaz Shah is a recognized expert on Pakistan and Afghanistan and regularly appears as expert witness in asylum and human rights cases before courts in the UK.

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