Sociology of rights: "I am therefore I have rights": Human rights in Islam between Universalistic and Communalistic perspectives

Muslim World Journal of Human Rights

Volumn 2, Issue 1, 2006, Pages

  Senturk, Recep ^a  

^a EMORY UNIVERSITY   (United States)

Author keywords

Culture; Globalization; Human Rights; Islam

Indexed keywords

EID: 33646382094     PISSN: 15544419     EISSN: 15544419     Source Type: Journal    
DOI: None     Document Type: Article

References (89)

1. A recent declaration by the American Anthropological Association reflects this tension: "Thus, the AAA founds its approach on anthropological principles of respect for concrete human differences, both collective and individual, rather than the abstract legal uniformity of Western tradition." Declaration on Anthropology and Human Rights, Committee for Human Rights, American Anthropological Association, Adopted by the AAA membership June 1999.
2. See An-Na'im, Abdullahi A. and Francis M. Deng (eds.), Human Rights in Africa: Cross-Cultural Perspectives, Washington, D.C. 1990.
3. See Abu Hamid al-Ghazzali, al-Mustasfa fi 'Ilm al-Usul, Beirut: Dar al-Arqam 1414/1994, vol. I, p. 633-637.
4. For instance, Ten Commandments played this role for many centuries. For similar rules in the Quran, see Surah Isra, 17: 22-39. The UN Declaration of Human Rights also emerged from a need to regulate global relations after WW II in accordance with universally accepted rules.
5. Although it is not our subject here, I should add here that all universal cultures also agree on due process and reciprocity.
6. Donnelly, Jack, Universal Human Rights in Theory and Practice, Ithaca, N.Y.: Cornell University Press, 1989.
7. An-Na'im, Abdullahi A., Toward an Islamic Reformation: Civil Liberties, Human Rights, and International Law, Syracuse: SUNY Press 1990.
8. For the contrast between "human rights" and "civil rights" see Rex Martin, A System of Rights, Oxford: Oxford University Press 1997, pp. 73-126.
9. John Dickinson summarized it as follows: "The term "civil rights" is sometimes used by the courts in the broad sense of rights enjoyed and protected under positive municipal law in contrast with so-called "inherent rights" vesting in the individual by virtue of a supposed "natural law"; more frequently it is used in the United States in a narrower technical sense acquired in constitutional discussion concerning the legal rights of free Negroes in the years before and immediately following the Civil War. It was often coupled by way of contrast with the term "political rights"..." John Dickinson, "Civil Rights" in Encyclopedia of Social Sciences, New York: Macmillan Company [1930] 1935, vol. 2, p. 513.
10. See Donnelly, ibid, pp. 37-45.
11. Rorty, Richard, Truth and Progress: Philosophical Books, vol. 3, Cambridge: Cambridge University Press 1998. In one of his essays Rorty describes how the Bosnians were dehumanized by the Serbs before the war against them.
12. See the works of Michael Perry, in particular his recent book, Under God? Religious Faith and Liberal Democracy, Cambridge University Press, 2003.
13. On the relationship between religion, morality and law, contrast the works of H.L. Hart (The Concept of Law, Oxford, [1961] 1997)
14. and his American critics such as Lon Fuller (Morality of Law, 1964)
15. and R. M. Dworkin (Law's Empire, 1986).
16. The recent edition of Hart's The Concept of Law has a Postscript where he responds to the critiques leveled by Fuller and Dworkin, pp. 238-276.
17. Also see, Berman, Harold, Faith and Law: the Reconciliation of Law and Religion, Atlanta, Ga.: Scholars Press, 1993;
18. Berman, Harold, Law and Revolution: the Formation of Western Legal Tradition, Cambridge, Mass.: Harvard University Press, 1983;
19. Witte, John, Jr. and Johan D. van der Vyver (eds.), Religious Human Rights in Global Perspective I-II, The Hague /Boston/London: Martinus Nijhoff Publishers 1996;
20. An-Na'im, Abdullahi A., Jerald D. Gort, Henry Jansen, Hendrik M. Vroom (eds.), Human Rights and Religious Values: An Uneasy Relationship?, Grand Rapids, Michigan 1995;
21. Audi, Robert and Nicholas Wolterstorff, Religion in the Public Square: The Place of Religious Convictions in Political Debate, Rowan and Littlefield, 1997;
22. Eberle, Christopher, Religious Convictions in Liberal Politics, Cambridge University Press 2002;
23. Stout, Jeffrey, Democracy and Tradition, Princeton Univerity Press 2004.
24. Rawls, John, A Theory of Justice, Cambridge: Harvard University Press 1971;
25. Political Liberalism, New York: Columbia University Press 1993.
26. Ann Elizabeth Mayer draws attention the inconsistency between Islamic law in theory and its actual practice today. See her works, "Universal Versus Islamic Human Rights: A Class of Cultures or a Clash with a Construct?", Michigan Journal of International Law, vol. 15, no 2, Winter 1994, pp. 304-404;
27. also by the same author, Islam and Human Rights: Tradition and Politics, London 1991.
28. Richard Bulliet draws attention to the contribution of the Western countries to the oppression in the Muslim world - which means diversion from both Islamic and universal ideals - by supporting authoritarian governments. See Richard Bulliet, The Case for Islamo-Christian Civilization, Columbia University Press 2004, p. 120. He writes, "The people we supported as agents of modernity became tyrants."
29. For the concept of right (haq pl. huqûq) in Islamic law, see 'Abd al-Razzaq al-Sanhuri, Masadir al-Haq fi al-Fiqh al-Islami, Beirut: al-Majma' al-'ilmi al-'Arabi al-'Islami, 1953-1954, I, 13-99.
30. Geertz, Clifford, The Interpretation of Cultures, New York: Basic 1973, p. 14;
31. Shankman, P., "The Thick and the Thin: On the interpretive Theoretical Program of Clifford Geertz", Current Anthropology, 25 (1984), p. 69;
32. Wuthnow, Robert, Meaning and Moral Order: Explorations in Cultural Analysis. University of California Press 1987.
33. Hendrickson, Robert, QBP Encyclopedia of Word and Phrase Origins, 2004, p. 7.
34. In Arabic: 'ismah al-nafs or 'ismah al-dam, 'ismah al-mal, 'ismah at-din, 'ismah al-'aql 'ismah al-nasl, and 'ismah al-'ird.
35. In the lexicon, the verb 'asama means "he protected" which is considered synonymous to waqâ and mana'a. For instance, 'asamahu al-ta'am as a sentence means "the food protected him from hunger." The infinitive al-'ismah means protection. See, al-Fayruzabadi, al-Qamus al-Muhit, Beirut: Muessese al-Risala 1419/1998, p. 1198;
36. Ibn al-Manzur, Lisan al-'Arab, Beirut: Dar al-Ihya al-Turath al-'Arabi 1419/1999, pp. 244-247.
37. In Islamic theology, the term 'ismah corresponds to "infallibility" which does not concern us in this article. For the legal concept al-'ismah, see Muhammad Rawwas Qal'aji, al-Mawsu'ah al-Fiqhiyya al-Muyassara, Beirut: Dar al-Nafais, 2000/1421, vol. I, p. 1401;
38. for the equivalent term hurmah, see ibid, vol. I, p. 745-747;
39. For the usage of 'ismah in Islamic law, see Recep Şentürk, "İsmet" TDV İslam Ansiklopedisi, vol. 23, p. 137-138;
40. "ismah," in al-Mawsu'ah al-Fiqhiyye, vol. 30, pp. 137-140.
41. On the concept of 'ismah, see Johansen, Baber, Contingency in a Sacred Law: Legal and Ethical Norms in the Muslim Fiqh, Leiden: Brill 1999.
42. For the emergence and evolution of these concepts, see Recep Senturk, "Adamiyyah and 'Ismah: The Contested Relationship between Humanity and Human Rights in the Classical Islamic Law", Turkish Journal of Islamic Studies, 2002 (8), pp. 39-70.
43. On the history of the Hanafi School of Law, see "Hanefi Mezhebi" in TDV İslam Ansiklopedisi, XVI, 1-12.
44. For the concept of 'ismah in the Hanafi tradition, see "Der 'isma-Begriff im hanafitischen Recht" in Johansen, Baber, Contingency in a Sacred Law: Legal and Ethical Norms in the Muslim Fiqh, Leiden: Brill 1999, pp. 238-262.
45. See for instance, al-Marghinani, Burhanaddin 'Ali ibn Abi Bakr (d. 593 H), al-Hidayah Sharh Bidayah al-Mubtadi, (eds. Muhammad Muhammad Tamir, Hafiz 'Ashur Hafiz), Cairo: Dar al-Salam, 1420/2000, H, 852. The author states that "al-'ismah al-muaththimah bi aladamiyyah." This will be discussed below in greater detail.
46. See for instance, al-Marghinani, al-Hidaya, II, 852;
47. Abu Muhammed Badraddin Mahmud ibn Ahmad ibn Musa al-Hanafi al-'Ayni (855/ 1451) al-Binaya fi Sharh al-Hidaya; (ed. Muhammad 'Umar). n.p.: Dar al-Fikr, 1980/1400, vol. V, p. 830-831,
48. al-Kâsânî, Alâ' al-Din Abi Bakr ibn Mustafa, Bedâi' al-Sanâi'fi Tartîb al-Sharâi', Beirut 1406/1986, vol. VII, p. 233-241.
49. Nor take life - which Allah has made sacred - except for just cause. And if anyone is slain wrongfully, we have given his heir authority (to demand retaliation or to forgive): but let him not exceed bounds in the matter of taking life; for he is helped (by the Law)" (The Quran 17:33). "O believers, be you securers of justice, witness for God. Let not detestation for a people move you not to be equitable; be equitable - that is nearer to God-fearing" (The Quran 5:8). "...Whoso slays a soul not to retaliate for a soul slain, nor for corruption done in the land, should be as if he had slain humankind altogether" (The Quran 5:32). In the address which the Prophet delivered on the occasion of the Farewell Hajj, he said: "Your lives and properties are forbidden to one another till you meet your Lord on the Day of Resurrection." The Prophet has also said about the dhimmis (the non-Muslim citizens of the Muslim state): "One who kills a man under covenant (i.e., dhimmi) will not even smell the fragrance of Paradise."
50. "Let there be no compulsion in religion: Truth stands out clear from Error: whoever rejects evil and believes in Allah hath grasped the most trustworthy hand-hold that never breaks. And Allah heareth and knoweth all things" (The Quran 2:256).
51. The Mogul rulers of India outlawed the sati practice although they could not completely exterminate it. See Sri Ram Sharma, The Religious Policy of the Mughal Emperors, Bombay: Asia Publishing House 1972, p. 42-44;
52. Zulfaqar Mubed (d. approx. 1670 AD), Hinduism During the Mughal India of the 17th Century, (tr. David Shea and Antony Troyer), Patna: Khuda Bakhsh Oriental Public Library [1843] 1993, p. 77.
53. It is stated in the best-known Hanafi handbook on Islamic Jurisprudence, al-Manar by Ibn Habib al-Halabi, that "al-Kuffar Mukhatabun" (Non-Muslims are addressed and held responsible by God.) See for a commentary on al-Manar, Ibn Qutlubugha (802-879 AH) Sharh Mukhtasar al-Manar, (ed. Zuhair ibn Nasir al-Nasir), Dimashq: Dar Ibn al-Kathir 1413/1993, p. 66-67.
54. The author explains that the jurists disagreed on whether God required non-Muslims to fulfill all His commands or to accept the Islamic faith first as a prerequisite for the rest of the requirements. The Hanafi jurists from Iraq advocated the first view, while scholars from Central Asia defended the second. See also 'Ala al-Din Abu Bakr Muhammad b. Ahmad al-Samarqandi (d. 539/1144), Mizan al-Usul fi Nataij al-'Uqui (ed. Muhammad Zaki 'Abd al-Barr), Qatar 1404/1984, p. 194;
55. Abu al-Barakat Hafizuddin Abdullah ibn Ahmad ibn Mahmud al-Nasafi (710/ 1310), Kashf al-Asrar Sharh al-Musannif 'ala al-Manar, Beirut: Dar al-Kutub al-'Ilmiyye 1986.
56. Abi Bakr Muhammnad b. Ahmad b. Abi Sahl al-Sarakhsi (d. 490 AH), Usul al-Sarakhsi, (ed. Abu al-Wafa al-Afghani), Istanbul: Kahraman yay. 1984, p. 86-88.
57. Sarakhsi, Usul, p. 333-334. "Li anna Allah ta'ala lemma khalaqa al-insan li haml amanatih akramahu bi al-'aql wa al-dhimmah li yakuna biha ahlan li wujub huquqillah ta'alah alayhi. Thumma athbata lahu al-'ismah wa al-hurriyyah wa al-malikiyyah li yabqa fa yatamakkana min ada'i ma hummila min al-amanati. Thumma hazihi al-amanah wa al-hurriyyah wa al-malikiyyah thabitah li al-mar'i min hinin yuladu, al-mumayyiz wa ghayr al-mumajyiz fihi sawaun. Fakazalika al-dhimmah al-saliha li wujub al-huquq fiha thabit lahu min hinin yulad yastawi fihi al-mumayyiz wa ghayr al-mumayyiz."
58. The Prophet Muhammad repeatedly stated that the one who is killed in the struggle to protect his or her life, property and family or to recover a loan, or to defend himself against any kind of aggression is a martyr" (Man qutila dûne malihi/ahlihi/damihi/daynihi /maziamatin fa huwa shahîd). For numerous narrations on this issue, see Bukhari, Mazalim 33; Muslim, Iman 226; Abu Dawud, Sunnah 29; Tirmidhi, Diyat 21; Nasai, Tahrim 22-24; Ibn Majah, Hudud 21; Ahmad b. Hanbal, 1, 79, 187, 188, 189, 190, 305 and II, 163, 193, 194, 205, 206, 210, 215, 217, 221, 324.
59. Al-Miydani, al-Lubab fi al-Sharh al-Kitab, (ed. Muhammad Muhyiddin Abdulhamid), Cairo 1383/1963, vol. IV, p. 128.
60. Tawba 9:5, 12; Anfal 8:39.
61. Ebü'l-Hasan Burhaneddin Ali b. Ebi Bekr Merghinani, The Hedaya or Guide: a Commentary on the Mussulmah Laws, (tr. Charles Hamilton), Karachi: Daru'l-Ishaat, 1989, II, pp. 201-2.
62. Ömer Nasuhi Bilmen, Hukuk-i İslamiyye Kamusu, İstanbul: Bilmen Yaymevi, nd, III, p. 356.
63. Muhammad al-Shaibani authored two important books on the international law, which he termed al-Siyar, to help regulate international and inter-communal relations between Muslims and non-Muslims. Al-Shaibani's book on international relations, al-Siyar al-Kabir, was among the first books translated into Turkish and published after the Ottomans opened a printing house in Istanbul. (see Ebu Bekr Şemsüleimme Muhammed b. Ahmed b. Sehl Serahsi (483/1090), Tercüme-i Şerh-i Siyeri'l-Kebir (trans. Mehmed Münib Ayintabi) İstanbul: Matbaa-i Amire, 1825.)
64. This evidence demonstrates the significant role of al-Shaibani's legacy in shaping the Ottoman practice. For English translation of al-Shaibani's work, see Muhammad Hasan al-Shaibani, The Islamic Law of Nations: Shaybani's Siyar, (tr. Majid Khadduri) Baltimore: John Hopkins University Press 1966.
65. Shaibani's work was also translated to French by Muhammad Hamidullah (Le Grand Livre de la Conduite de l'Etat = Siyerü'l-kebir, Ankara: Türkiye Diyanet Vakfi, 1990).
66. For the views of Muslim jurists on other legal systems, see Fakhr al-Islam Bazdawi (d. 482/1089), Kanz al-Wusul ila Ma'rifat al-Usul, Karachi: Mir Muhammad Kutuphana Markaz 'Ilm wa Adab n.d. For a commentary on it,
67. see 'Alauddin 'Abdulaziz ibn Ahmad al-Bukhari (d. 730), Kashf al-Asrar 'an Usul Fakhr al-Islam al-Bazdawi (ed. Muhammad al-Mu'tasim Billah al-Baghdadi), Beirut: Dar al-Kitab al-Arabi 1418/1997, pp. 397-405.
68. Hence comes the principle that "a human being is honored, even if he is a non-Muslim." (al-Adamiy mukarram wa law kafiran.) Ibn 'Abidin, Hashiya, V, 58. Ibn 'Abidin also notes that slavery contradicts with this principle.
69. Ahmet Özel, İslam Hukukunda Ülke Kavramι: Darulislam, Darulharb, İstanbul: İz Yayιncιlιk, 1998, p. 57.
70. "A section of the People of the Book say: "Believe in the morning what is revealed to the believers [Muslims], but reject it at the end of the day; perchance they may (themselves) turn back; and believe no one unless he follows your religion." Say: "True guidance is the Guidance of God. (Fear ye) Lest a revelation be sent to someone (else) Like unto that which was sent unto you? or that those (Receiving such revelation) should engage you in argument before your Lord?" Say: "All bounties are in the hand of God. He granteth them to whom He pleaseth: And God careth for all, and He knoweth all things." For His Mercy He specially chooseth whom He pleaseth; for God is the Lord of bounties unbounded. Among the People of the Book are some who, if entrusted with a hoard of gold, will (readily) pay it back; others, who, if entrusted with a single silver coin, will not repay it unless thou constantly stoodest demanding, because, they say, "there is no call on us (to keep faith) with these ignorant (Pagans)." but they tell a lie against God, and (well) they know it. Nay.- Those that keep their plighted faith and act aright,-verily God loves those who act aright. As for those who sell the faith they owe to God and their own plighted word for a small price, they shall have no portion in the Hereafter: Nor will God (Deign to) speak to them or look at them on the Day of Judgment, nor will He cleans them (of sin): They shall have a grievous penalty. There is among them a section who distort the Book with their tongues: (As they read) you would think it is a part of the Book, but it is no part of the Book; and they say, "That is from God," but it is not from God. It is they who tell a lie against God, and (well) they know it!" (The Quran, 3:73-78).
71. "Those who believe, then reject faith, then believe (again) and (again) reject faith, and go on increasing in unbelief,- Allah will not forgive them nor guide them nor guide them on the way. To the Hypocrites give the glad tidings that there is for them (but) a grievous penalty" (The Quran 4:137). "They swear by Allah that they said nothing (evil), but indeed they uttered blasphemy, and they did it after accepting Islam; and they meditated a plot which they were unable to carry out: this revenge of theirs was (their) only return for the bounty with which Allah and His Messenger had enriched them! If they repent, it will be best for them; but if they turn back (to their evil ways), Allah will punish them with a grievous penalty in this life and.in the Hereafter: They shall have none on earth to protect or help them" (The Quran 9:74). "And there are those who put up a mosque by way of mischief and infidelity - to disunite the Believers - and in preparation for one who warred against Allah and His Messenger aforetime. They will indeed swear that their intention is nothing but good; But Allah doth declare that they are certainly liars" (The Quran 9:107).
72. See, Abdullahi A. an-Na'im (ed.), Islamic Family Law in a Changing World: a Global Resource Book, London: Zed Books, 2002.
73. For the rights of non-Muslims under Islamic rule, see Senturk, Recep, "Minority Rights in Islam: From Dhimmi to Citizen" in Islam and Human Rights: Advancing a U.S.-Muslim Dialogue (Shireen T. Hunter, with Huma Malik, ed., Washington, D.C.: CSIS, forthcoming 2005);
74. Zaydan, 'Abd al-Karim, Ahkam al-Dhimmiyyin wa al-Müsta'manin fi Dar al-Islam, Baghdad: Maktabat al-Quds, 1982.
75. On this discussion see, Ibn Qayyim. al-Jawziyya, Ahkam Ahl al-Dhimmah, (ed. By Subhi Salih), Beirut: Dar al-'Ilm li al-Malayin [1961] 1983, pp. 18-25. Ibn Qayyim refutes the Shafii view.
76. Mehmet Yildiz, "1856 Islahat Fermanina Giden Yolda Meşruiyet Arayιşlarι: Uluslararasι Baskιlar ve Cizye Sorununa Bulunan Çözümün İslami Temelleri," Türk Kültürü İncelemeleri Dergisi 7, İstanbul 2002, 75-117.
77. Inalcik, Halil, "Adâletnâmeler", Belgeler, vol. III, no 3-4, 1965, Ankara 1967.
78. The history of Ottoman reforms in Islamic law during the 19th century has yet to fully documented in English. For a general history of this period, see Stanford Shaw, Between Old and New, The Ottoman State Under Sultan Selim 1789-1807, Cambridge, 1971.
79. For "Sened-i İttifak" see; Akyildiz, Ali, "Sened-i İttifak'ιn İlk Tam Metni" İslam Araştιrmalarι Dergisi, 1998 (2), pp. 209-222;
80. Also see, Inalcik, Halil, "The Nature of Traditional Society: Turkey," in Robert E. Ward ve Dankward A. Rustow, Political Modernization in Japan and Turkey (Princeton, N.J.: Princeton University Press, 1904), pp. 13-14.
81. Tanzimat (tän'zemät), [Turkish, reorganization], the name referring to a period of modernizing reforms instituted under the Ottoman State from 1839 to 1876. In 1839, under the rule of Sultan Abdulmecid, the edict entitled Hatti-i Sharif of Gülhane laid out the fundamental principles of Tanzimat reform. Foremost among the laws was the equal citizenship, security of honor, life, and property for all Ottoman subjects, regardless of race or religion. Other reforms, which sought to reduce theological dominance, included the lifting of monopolies, fairer taxation, secularized schools, a changed judicial system, and new rules regarding military service. Tanzimat is commonly considered to have ended in 1876 during the reign Abdulhamid II, when the ideas for a Turkish constitution and, parliament were first implemented and then rejected by the same sultan. The constitution and parliament were reintroduced after Abdulhamid II was dethroned by the Young Turks in 1908.
82. For the intellectual and political history of this period, see for istance, Mardin, Şerif, The Genesis of Young Ottoman Thought, Princeton: Princeton University Press, 1962;
83. Hanioǧlu, M. Şükrü, The Young Turks in Opposition, New York: Oxford University Press, 1995.
84. For a survey of the Islamic discourse on human rights discourse in Arabic see, Silmi al-Khadra al-Jayusi (ed.) Huquq al-Insan fi al-Fikr al-'Arabi, Beirut: Markaz al-Dirasat al-Wahdah al-'Arabiyya 2002.
85. Kadri, Hüseyin Kazim, İnsan Haklarι Beyannamesi'nin İslâm Hukukuna Göre İzahι, (Yay. Osman Ergin) İstanbul 1949.
86. Başgil, Ali Fuat, Cihan Sulhu ve İnsan Haklarι, İstanbul n.d.; Vatandaş Hak ve Hürriyetlerinin Korunmasι Meselesi ve Anayasamιz, İstanbul 1956;
87. Vatandaş Hürriyeti ve Bunun Teminatι, İstanbul 1948.
88. Juxtaposing the cases of Ali Fuad Basgil in Turkey and Mahmoud M. Taha in Sudan demonstrates how.
89. Adopted and issued at the Nineteenth Islamic Conference of Foreign Ministries in Cairo on August 5, 1990.