The author applies different legal theories to understand the tension between human rights and Islamic law, and how this tension can be alleviated for greater convergence between the two.
By Shafeea Riza, 22nd September 2013
The globalization of human rights through international human rights law systems has received a varying response from the Islamic states. The international human rights law norms, which is provided in the International Bill of Human Rights is contended to entail a universal concept which exemplify the position of public international law on human rights1. In contrast, Islamic law constitutes its very own concept of human rights and related duties2. The tension, therefore, between a universal concept of human rights and Islamic traditions is apparent. Despite the tension, it appears that Islamic states remain receptive to international human rights law instruments3.
In this paper, I focus on this tension between the universal concept of human rights and Islamic traditions. I claim that this tension has left the transmission efforts by Islamic states flawed and accordingly produce a result that frustrates the very purpose of transmission of the international law standards. In demonstrating this claim, I seek to explore legal theories that may accommodate the differences in both value systems. The objective here is to inquire to find solutions that may enable Islamic states to localize the international law standards in a manner that retains the foreign value within the local value-system. The argument in this paper is developed in four sections. In the section following this introductory section, I will discuss the tension between universal concept of human rights and Islamic traditions. In section 3, I will consider some competing considerations that may determine the course of the localisation effort of international human rights law instruments in the Islamic states. In my conclusion in section 4, I will explore two legal theory perspectives that helps to accommodate both value-systems and possibly offer a solution to mitigate the effects of tension on the transmitted end-product.
As a preliminary point, I note the space limitations entailed with this paper. All theoretical analysis inquired in this paper can only be given proper justice in a wider forum. Having said that, in the limited space available, I have endeavored to best present the issue that befits the purposes of this paper.
The process of transmission of laws from, what John Gillespie calls as, global scripts to domestic legal systems has been termed by scholars as legal globalisation4. In relation to legal globalisation, I agree with the observation Gillespie makes in that the outcomes produced by legal globalisation may take the form of either creating a converging or a diverging effect5. When international human rights law instruments are localised in Islamic states, the effect has been usually diverging which creates results such as resistance or indifference. Broadly speaking, transmission of international human rights law takes place at cross-level in Islamic states. There are two possible methods of such cross-level transmission.
The most recent method is the direct incorporation of international human rights law through a bill of rights into the constitution6. The second method consists of a two-tier process of cross-level transmission. Certain Islamic states have come together and interpreted international human rights law instruments based on Islamic traditions in order to create a set of guiding principles specific for the Muslim world. These guiding principles are then incorporated into local systems of individual states. Here, incorporation undergoes a further transformation depending on the Islamic school of law that is predominant in each state. An example of such a two-tier transmission process is seen in Pakistan, which refers to the Universal Islamic Declaration of Human Rights (UIDHR) as the set of guiding principles for the domestic law7. The problem in the transmission process lies in that under both manners of transmission, the international standards are Islamisized which results in giving a predominantly Islamic value to these rights. For example, equality rights; equal protection of law and equality before the law, under international law standards are free from discriminations based on any qualification.
The transmitted equality right in this context would be defined by Shari’ah with the discriminations Shari’ah allows for8. In analyzing this paradox, I can comprehend why one may ask the rhetorical question: why Islamic states endeavor to incorporate international standards of human rights when the result is to give effect to these rights in Islamic law sense which itself defeats the purpose of the transmission? I argue that such a result is the natural consequence of two competing ideologies that is at play in the transmission process. The following analysis highlights the competing considerations that one might have to consider in formulating a plausible solution to the present problem.
In this part of the analysis, I begin by making the following inquiry – what is it about the international human rights law standard which has resulted in a divergence in the transmitted end-product in the Islamic states? I make this inquiry for the following reason. I believe that the observations made in practice may help illuminate useful insights for the purposes of this analysis which goes beyond creating a mere artificial construct of what is actually in practice9. I contend that it is the universal claim made by the international human rights law instruments that has forcefully diverged the international law standards in Islamic states. Here, what lies is a deep moral argument which questions the universality claims whilst human rights remains as a concept that is ethnocentrically unaware of values in other traditions10. This contention is central to understanding why, despite the appeal to international human rights law standards, there remains the prevalence of Islamic values or the need to Islamisize human rights. The scepticism disseminated by Muslim thinkers that international human rights law instruments are constructs of western thought which disregards the Islamic values embedded in Islamic law have found resonance in cultural relativism arguments promulgated by other human rights thinkers that are critical of the universal claim11. The crux of the moral argument lies in that the universal concept of human rights cannot be accepted and implemented globally unless peoples of the other parts of the world see them as being valid and legitimate from their perspectives12.
When one scrutinises the effect of these strong moral considerations what surfaces is the fact these considerations are deeply intertwined with the political ideologies of Islamic states. To put it simply, the tension here is one between transmitted international law, which takes the form of positive law, and Islamic law as the prevailing law of the state. The political ideologies of most constitutional Islamic states are based on a non-secular concept where Islam is the state religion by constitutional mandate. I contend that the formulations in international human rights law instruments, for example in the UDHR, are quite secular in nature in that the freedoms and rights stipulated therein are fully realisable only under a secular ideology. Here, I accept that UDHR is not binding on states as positive international law but I cite it because it is the single document that manifests the philosophical foundations of what is to be considered as a universal human right13. Where the state ideology is based on Islamic law, I argue that opposing considerations will work against positive laws that enact international human rights law norms. The problem therefore lies in the state-centred regulation of international human rights law. In the following section, I seek to find a solution to this problem by exploring legal theory in which non-state actors in a democratic Islamic state may determine forces of regulation.
Conclusions: A final analysis using legal theory
In this last section, I explore two different perspectives of legal theory to inquire whether a solution can be achieved through any of the respective theoretical discourse.
4.1 International human rights law regime as a cosmopolitan legal order
Twining contends that as the discipline of law becomes more cosmopolitan, it must be backed by a truly cosmopolitan general jurisprudence. By analogy, I argue that the concept of universal human rights entail the idea of achieving cosmopolitan perspectives such as instituting political and legal consensus over the concept at a world level. Accordingly, I argue that the international human rights law regime that constitutes a universal concept of human rights institute a political and legal framework at world level and therefore, as Patrick Glenn calls it, forms a ‘cosmopolitan legal order’14. To achieve cosmopolitan objectives Glenn furthers the idea of a cosmopolitan legal order, which he facilitates in practice through cosmopolitan legal thought. The cosmopolitan legal order, according to Glenn, holds a relative openness which allows it to work with multiple sources of law and beliefs.
The cosmopolitan legal order, however functions with state consent, whereby the state may give implicit support to non-state normative orders. Here, to support this proposition, Glenn gives example of a situation where a court may give effect to a non-implemented ratified treaty. The point being made here is that the judges would no longer judge in national isolation from the international community. Such a contention remains true, speaking in the context of the present problem, if judges are deciding between a statute giving effect to national law and an un-implemented international law. However, if the law in question concerns the state law, such as Shari’ah, and if the constitution provides that no law of the country shall contravene Shari’ah, I fail to comprehend how a presiding judge can give effect to the international law unless it complies with the state law. Having said that, furthering Glenn’s theory of cosmopolitan legal order, he considers the notion of cosmopolitan legal thought. Cosmopolitan legal thought, however, may serve the purposes of the analysis in this paper, due to the inherent openness in its key features. Because the cosmopolitan legal thought looks at the past, present and future, it remains open to multiple sources of law and works “without prejudice to the ongoing relevance of different laws” to achieve the cosmopolitan future15. Based on this analysis, the contention I make here is that the cosmopolitan legal thought appear to possess the ability to take into account the different values given to human rights in different cultures and to work to achieve a law that is inclusive of or in harmony with these different values. Glenn then puts forward a number of dimensions which promote the cosmopolitan legal thought. Here, I explore the first dimension which helps to facilitate this analysis. The conversational character of the first dimension helps to achieve harmony within Islamic traditions so that Islamic traditions conform to universal standards of human rights. Such a position is advocated by An-Naim, who calls for reform within Islamic law. He believes that the Islamic principles need to be revisited so that they may be reformulated based on the modern context16. In the language of Glenn, this task involves the conversational character of the cosmopolitan legal thought which involves taking into account of the past Islamic tradition so that its history and normative belief enables to engage reforms within modern context.
4.2 Achieving ‘preference convergence’ as a potential solution
John Gillespie provides another useful theoretical discourse17. His theory is useful in that it explores the possibility where the state is not the only actor in the localising effort of the global script. Gillespie’s proposition goes further than accepting the typical contemporary result where transmission is expected to achieve universalisation. Gillespie counts the divergence of transmitted end-product as a legitimate result which enables to achieve a result between convergence and divergence – one of a ‘preference convergence’.
Here, I argue that in democratic Islamic states, states are not the only actors in the process of regulation. Non-state actors such as civil society, political parties and trans-national actors such as international Non-Governmental Organisations (NGOs) already assume active roles in governance related issues. I take the benefit of the roles played by these non-state actors and the theory put forward by Gillespie to argue that these non-state actors can play a wider role in localising international human rights law instruments in Islamic states. My objective here is to demonstrate an outcome that is more favourable than the present outcome achieved by cross-level transmission of the international human rights law instruments. I argue here that the participation of non-state actors may help to achieve what Gillespie calls a “preference convergence” of the values, which results in a fair accommodation between the local and foreign values. I argue that achieving preference convergence is necessary in Islamic states because it is the only result that will lead to a legitimacy of the foreign values in the local realm. I will now inquire deeper into Gillespie’s theory and use the tools in his theory that are strongest for furthering the present analysis.
Gillespie begins by asserting in polycentric regulatory systems, the dispersal of power is based on myriad institutions, norms and processes through which the state, nonstate and hybrid state/non-state actors participate in the regulatory process. Gillespie firstly maps the regulatory space to demonstrate the three regulatory modes in which these state, non-state or hybrid actors participate. The first regulatory regime concerns constitutional regulation in which Gillespie argues contains mechanisms that allow non-state actors to participate in the governance of global scripts. Here, I use the example of the court actions, where non-state actors may challenge the adoption or interpretation given to global scripts. Gillespie suggests that much depends on the jurisdiction and the readiness of the courts to hear disputes regarding the imported ideas and practice. I agree that this is a powerful mechanism that gives power to nonstate actors in a constitutional democracy to challenge a state law that curbs the rights and freedoms in a constitution, which gives effect to international law standards. Under such a mechanism one of the grounds of challenge can be that state laws violate the ‘settled expectations’ of the people, which is what ultimately determines the legitimacy of any law in a democracy.
The second regime encompasses self-regulation by non-state or hybrid state/non-state collaborations. Here, I focus on the roles played by trans-national actors such as international NGOs that monitor, advise and influence the regulation of human rights within the domestic realm. These actors in their undertakings give reference to the international standards and practices, which may help to influence the way the state, engage with the international law instruments. One plausibility that immediately appears is that if a constitution constitutes a bill of rights that gives reference to international law standards, international NGOs acting with the state, may help state enact secondary legislation that curb the restrictive effects of state law and move towards furthering the international law standard.
The third regime concerns deliberative regulation and involves the utility of two specific domestic actors for present purposes which are particularly vibrant in the democratising Islamic states. The civil society and the political parties play a huge role in the regulatory space of the democratic Islamic state. A recent demonstration of this was seen in the constitution drafting process of Egypt where we witnessed the heavy engagement of the civil society, political parties and religious groups in the dialogue.
In the second part of Gillespie’s theory he uses ‘epistemic communities’ to facilitate the localisation process of the global script18. Here, he stipulates that the members of the epistemic communities look to others within the group to share the common interest which enable them to guide their responses to the global script. The key feature of Gillespie’s epistemic communities lies in the interconnectivity of such communities. It is this interconnectivity that promotes the learning and preference convergence which as Gillespie notes is a pre-requisite to bring about change in the regulatory behaviour. Gillespie emphasizes that the epistemic communities must converse in a mutually cognisable language in a forum which remains relatively open and discursive. I agree that it is such a discursive environment that will facilitate the epistemic communities to arrive at preference convergence whereby they enter into a dialogue on the consensus they have on the state laws that curb the rights and freedoms in the adopted international law instrument.
4.3 Concluding remarks
As a concluding statement, I note for the problem that I have portrayed in the foregoing account, the legal theory discussed above suggests solutions in two different approaches. Glenn’s cosmopolitan theory approaches from outwards to the problem in a way that allows the concept of universal human rights to be more accommodating of the cultural differences. The cosmopolitan legal thought, however, approaches to the problem inwards, in that it tries to attain harmony within cultures. In contrast, Gillespie’s theory helps to find a solution by taking account of both foreign and local values and converging them together to achieve a middle way between convergence and divergence of the global script. As Islamic traditions and human rights is an extensive subject, further analysis is required to in respect of global theory to fully ascertain a coherent solution to this problem.
- 1. Ann Elizabeth Mayer, Islam and Human Rights (2007), pg 27, Abdullahi An-Na’im (2000)
- 2. Abu al-‘A’la Mawdudi, Human Rights in Islam
- 3. Mayer, Islam and Human Rights, pg 95-97
- 4. See, John Gillespie, Developing a Framework for Understanding the Localisation of Global Scripts in East Asia, in Theorising The Global Legal Order (2009) pp. 209 – 231
- 5. Ibid.
- 6. For example constitutions of countries such as Afghanistan and Iraq give direct reference to human rights law standards in the Universal Declaration of Human Rights. See, Mayer, Islam and Human Rights, for analysis of these constitutions.
- 7. See, for application Ansar Burney v. Federation of Pakistan (1983)
- 8. See, eg., discussion of Article 3 of UIDHR in Mayer, Islam and Human Rights, pp. 105-111
- 9. Andrew Halpin (2006)
- 10. William Twining, General Jurisprudence (2009), pg 376
- 11. See, Muslim thinkers: Riffat Hassan, Are Human Rights Compatible with Islam?; Mawdudi, Human
- Rights in Islam; for cultural relativism arguments see Yash Ghai (2000).
- 12. An-Naim (1994)
- 13. An-Na’im (2000)
- 14. Patrick Glenn, Cosmopolitan Legal Orders, in Theorising The Global Legal Order (2009) pp. 25-37
- 15. Ibid., pg 34
- 16. An-Naim (2000)
- 17. Supra., n. 518. See, eg., Clark B. Lombardi (2010), for a discussion of the ‘settled expectation’ argument in relation to constitutional Islamisation.
- 18. Supra., n. 5, at pg 229
Shafeea Riza is a legal associate and an adjunct lecturer at the Maldives National University. She has received her LLB from King’s College London, and her LLM from the National University of Singapore.