How the Sharia Law Is Undoubtedly Not Compatible with the Western Notion of Human Rights - Essay Example

THERE CAN BE NO RECONCILIATION BETWEEN ISLAMIC LAW AND THE ‘WESTERN’ NOTION OF HUMAN RIGHTS By Name Course Instructor Institution City/State Date There can be no reconciliation between Islamic Law and the ‘Western’ notion of human rights Introduction Islamic law, commonly referred to as sharia law, is considered to be the most multifaceted and complex, yet by far misinterpreted areas of law. Scholars consider it multifaceted due to its subjects such as politics, human rights, economics, and religion. On the other hand, Sharia law is misinterpreted because it is abhorrently over-generalised and enormously understudied. Regretfully, this has resulted in circumstances where sharia law is repeatedly typified as discriminatory and inhumane set of laws that does not respect human rights. Although human rights are not considered as a universal concept, Sundaramoorthy (2016) posits that their formation as a type of Western cultural imperialism symbolises inaccurate and unfounded civilisation reading. Although its principles are inapplicable in all state behaviours and priorities and is not exclusively limited to the Western society. Akin to other believers, Muslims normally practice their faith based on collective and individual agreement with sharia, which governs their day-to-day lives. Even though sharia is considered as divine attribution, Petersen (2016) posit that the actual law construction is a human-related activity whose outcomes symbolise God’s law as humanly comprehended. Given that the law does not come ready-made from heaven, it is the human knowledge about the law that has to be normative for society. Numerous advocates of human rights are extremely cynical of Islam. They believe that human rights and Islamic law cannot be inherently compatible. Furthermore, they argue that Islamic law has legalised human rights violations; for instance, Islam countries like Saudi Arabia utilise inhuman punishments such as whipping. There are also some laws that promote gender discrimination in some Islam countries. Still, Islamic law does not prevent human rights, only that people wrongly interpret and misunderstand it. This piece will demonstrate how the sharia law is undoubtedly not compatible with the western notion of human rights. In the present day, sharia has become an injustice source profaning Islam. The objective of this piece is to critically demonstrate that there can be no reconciliation between Islamic Law and the ‘Western’ notion of human rights. Human Rights Definitions In Saeed (2013) study, he defines human rights from Western and Islamic point of views. Human rights according to the Western scholars are the social life conditions without which no person can generally seek to become his/her best self. Oxford English Dictionary defines human rights as the right belonging to all and sundry. Furthermore, Black Law Dictionary as cited by Saeed (2013) defines human right as ethical correctness, justice, or agreement with the moral principles or rules. The Westerners view human right as the opposite of illegitimate, unjust and wrong. It is the immunity, power, or privilege pledged under the decisional law, the statute, or constitution. Human rights are universal norms which facilitate the protection of every person far and wide from severe social, legal, and political abuses. Besides that, the United Nations Organisation (UNO) consider human rights as those rights that people cannot live without since they are inherent in their nature. From an Islamic perspective, human rights are described as the legal bond through which the approved individual monopolises his exclusive command on something. Islamic scholars such as Dr. Tahirul-Qadiri as cited by Saeed (2013), define human rights as the rights offered by Allah (Creator) through his messengers. Such rights are binding but their relationship to the duties is reciprocal. Human rights according to Islamic law are rights offered to people for their respect and dignity. Apparently, human rights set forth by the Islamic law are more universal and deeper, more secured as well as more guaranteed than those laid down by the Western’s Universal Declaration of Human Rights (UDHR), since such rights lack strong guarantee and moral principles. Instruments of Islamic and International Human Rights Given that there are documents for Islamic human rights that can be compared to those of the international human rights; Moosa (1998) posits that this supports the notion that there is ethic in Islamic human rights. Such views could be examined after finding out whether there exists a similar human rights ethic in Islam and whether they are compatible with conform to the principles of human rights adopted in international instruments. Although the majority of Muslim countries are signatories to UN documents, Moosa (1998) posit that most of these Muslim governments do not understand what rights are contained in such documents. For instance, the Muslim countries often interpret the religious rights differently from the Western perception, particularly in so far as the women rights are concerned. Furthermore, there is a clear gap that exists between Muslim states’ declaration of abiding by the international human rights law and their real behaviour with regard to religious freedom (Dalacoura, 1998). Although most countries legally recognise human rights in their constitutions, these rights are normally limited by provisions or abolished by laws or arbitrarily treated. The principle of human rights that the international documents set out does not require religion to be separated from the state. The international documents have simply mentioned the human rights basis by claiming that they are rooted in the human being inherent dignity. In view of this, the Muslim countries have accepted the international instruments in view of the fact that the 20th century human rights are based on Western individualism traditions. Still, Islamic human rights according to Moosa (1998) are static; therefore, they cannot be likened to the rights as fathomed in the international law. More importantly, the human rights language espoused in the international documents are different from those contained in Qur'an and other major religions scriptures. Muslims scholars strongly advocate that Islam protects and entrenches human rights. They also believe that there exists no contradiction between universal human rights and Islam with the exception of some equality rights accorded to women. They also argue that the Islamic concepts of human-rights were developed after international and Western human-rights models were formed and that documents of Islamic human rights are patterned in substance and form on international instruments. Conflicts between Islamic Law and Human Rights According to Bielefeldt (2000), religion includes just one part in a wide range of economic, cultural, political, as well as social factors which foster or inhibit human rights implementation. In the Islamic countries, this truism appears worth remembering since Islamic culture and religion are normally exhibited as being the main barrier in improving the human rights situation. This is merely a misleading argument since most of the human rights violations do not demonstrate Islamic features. Still, it is hard to deny that the Islamic law and human rights relationship is a complicated one that leads to numerous problems. Such problems are not sourced from Islam per se, but are associated with sharia. Since the basic features of Islamic law developed in the first centuries of Islamic history, Bielefeldt (2000) posit that the human rights historical breakthrough happened almost a millennium later; therefore, conflicts and differences between Islamic law and human rights are not a big surprise. The main conflicts are attributed to the religious liberty as well as gender equality. Even though the traditional sharia acknowledges the legal personality of the women, it does not contain the equality principle in rights for both women and men. When evaluated against the contemporary human rights’ benchmark, sharia law is considered to discriminate women. Moreover, in spite of the religious tolerance in Islamic tradition, religious minorities are still discriminated; for instance, most Muslim countries have outlawed interreligious marriages. An additional violation on religious liberty is attributed to the sharia prohibition of ‘apostasy’. Some Islamic countries like Saudi Arabia, Sudan, and Iran threaten people who apostates from Islam with capital punishment. As mentioned by Bielefeldt (2000), some Islamic countries use corporal punishments like limbs amputation and flogging, which in Western human rights standpoint is considered as degrading and cruel. According to Ahmari-Moghaddam (2012), the Islamic human rights documents have not adequately accommodated human rights given that scores of provisions that are crucial for their adherence to standards of international human rights have been omitted. The Islamic documents have sparked controversy because of their intolerable discrimination on non-Muslims and women. These documents have collectively failed to recognise some key fundamental freedoms and rights, which includes freedom of expression, religion and thought. However, the sharia based rights depicted in such documents do not represent the beliefs of every Muslims. Many Muslim scholars such as Shirin Ebadi as cited by Ahmari-Moghaddam (2012) have repeatedly and openly questioned as well as challenged the Islamic law principles. As currently practiced, the sharia law is in disagreement with western notion of human rights, but still, this does not connote that Islam is in conflict with the universal standards of human rights. As pointed out by An-Na'im (1987), Islam itself could be conducive to and consistent with the realisation of the current universal standards and human rights, specifically the attainment of individuality as well as originality of all people. Balance of Rights Reed (2003) argues that the challenge in marrying Western notions and Islamic ideals of egalitarianism is that Islamic and Western societies have rather conflicting notions of what makes up the core human rights. Human rights according to Reed (2003) can be grouped into two categories: group rights and individual rights. The former are rights protecting a group of people, like the rights of minority groups as well as right to self-determination while the latter are rights protecting a person’s individual freedom and autonomy, like freedom of conscience and expression. Even though these rights seem to be inextricably connected to one another, wide-ranging governmental trends materialise founded on the type of right a certain society put emphasis on. The Western democratic paradigms, for example, strongly believe on the individual rights which they consider as crucial for existence of human beings. A number of Western commentators argue that a society could justly achieve human rights by means of a liberal democracy which place emphasis on the individual’s rights. The traditional Islamic model, on the other hand, considers human rights’ purpose as collective; that is, benefiting all people. Therefore, the rights of the people are inextricably connected to the individual social duties altogether. Even though individual rights could be fundamental to the Westerners, it is clearly known that people could simply exercise their individual rights so far as exercising those rights does not invade other people’s rights. In addition, realising individual rights both in Islamic and Western culture depend on how people associate with their surroundings and society. Clearly, justice cannot be achieved in the society by failing to consider the human rights models (group rights and individual rights). Given that both models cannot be mixed perfectly, there is a need to find a balance between group and individual interests. A country cannot successfully protect human rights unless it considers its own unique culture and values. Western Perception and Islamic Concept of Human Rights Human rights as pointed out by An-Naim (1990) are rights inherent to every person, irrespective of his/her sex, nationality, ethnicity, language, religion or race. All people are equally entitled to human rights devoid of bias and favouritism. Human rights according to Western scholars are interrelated, indivisible, as well as interdependent. According to Mubarak (2013), human rights in Western countries are universal and are normally guaranteed and expressed by law. The governments of these countries often act in ways that protect and promote human rights as well as the groups or individuals’ fundamental freedoms. Islam has not restricted human privileges or rights; instead, it provides numerous universal fundamental rights for the people. These rights are respected and observed by all people. Sharia law does not allow old people, the sick, children, and women to be oppressed. The Islamic human rights concept stems from Allah Almighty commandments, which Holy Prophet communicated to people. As mentioned by Mubarak (2013), the human rights that Allah has given to the people are in blessings form and the humans have not played any role in acquiring them. In contrast to the Western notion that human rights are naturally violable, provided by the mortal law-makers, the rights offered by Allah are sacred, inviolable, unchangeable, and permanent. Given that divine intention underlines these rights, Mubarak (2013) posits that they cannot be changed, amended or suspended. These rights must be enjoyed by all people in all Islamic courtiers. The Islamic concept of human rights is considered unique because it considers these tights to be interdependent and complement one another. Islam teaches balance and self-control in life and the Holy Prophet’s teachings guarantees life balance. Clearly the Islamic human rights concept is not the same as the philosophies of the Western culture. Islam does not demand of rights, but instead it teaches how to fulfil these rights. Therefore, the Islamic human rights concept is compact and comprehensive since it has balance and proportion between duties and rights. While human rights according to sharia are a gift from Allah, the Westerners had to undertake long-drawn-out struggles to achieve them. The Western human rights theory according to Ahmed (1994) is an outcome of an atypical set of economic, religious and political factors associated with the Western civilisation history. Temporal and spiritual realms were used to mark the advent of Christianity and Jesus is not considered as the founder of the state. For this reason, Jesus did not provide a law system that would help Christians regulate the state affairs. For decades, the western civilisation were ill-treated and lived on by combining clandestine activity and dissimulation. In theory, the Islamic political view does not recognise the legitimacy as well as validity of separating the secular and religious life spheres. Hallaq (2009) assert that Islamic state was at first seen as a universal social order and political intended for the good of everyone. The attempt to align democracy with Islamic law principle has time and again connoted rueful way of thinking on the part of the modernists. The majority of human rights documented in the modern human right theory are present in the Islamic system, such as right to protection, to property, and to life. The fundamentalist Muslims according to Ahmed (1994) do not undervalue the human rights significance, but they insist that human rights protection is well represented in Islam than other religions. Critical analysis Delling (2004) observed that numerous Islamic countries are somehow secularised; therefore, the Islamic interpretations could be extremely miscellaneous. In these countries, there are many causes of violations of rights of religious minorities and women, but this cannot be related to the Islam religion. Interpreting sharia law strictly according to Delling (2004) leave no restrictions room in many of the rights considered universal. Sundaramoorthy (2016) utilises overlapping consensus to demonstrate how Islamic law and western notion of human rights can hardly be reconciled. The overlapping consensus according to Sundaramoorthy (2016) illustrates how followers of incompatible normative doctrines could in some way agree on certain arguments or ideas. The values commonality does not mean universality but instead an overlap that is very coincidental. Therefore, the overlapping consensus concept offers a platform through which the competing claims of cultural relativism and universalism could be reconciled. When this theory is applied to the concept of human rights it discloses the observable discrepancies and the similarities between Western as well as Islamic notions of human rights. The human rights’ universal standard, on one hand, is impossible since numerous countries will certainly espouse different moral systems. The human rights interpretation as the Western imperialism product, on the other hand, is far-fetched since the idea did not exclusively stem from the Western cultural roots. In the UDHR’s first article expresses dignity and justice, which are the human rights elementary values and ideals. This is also emphasised in the Islamic human rights theory. According to Saleh (2012), justice is integrated into the Islamic teachings with the objective of ensuring fairness to ever person. The sharia law also focuses on human happiness, prosperity and welfare. While the Western society seek to secure dignity and justice physically at the material level and only at the present life, the Islamic society focus on securing them at every level, through all accessible means, now and the henceforward. Still, this deviation certainly does not annul the human rights commonality in both Western and Islamic traditions. As mentioned by Saleh (2012), Quran view of justice clearly demonstrates that justice is fundamental to the philosophy and indispensable view of Islam, beyond and within the sharia and without gender equality there is no justice. The dignity of all people is protected by the Cairo Declaration on Human Rights in Islam (CDHRI) as well as Universal Islamic Declaration of Human Rights (UIDHR). In Islamic society, Quran affirms the notion that all every person regardless of gender is completely one and the same in dignity through God’s creation act. This adequately confirms that all people are entitled to human rights. Rehan (2013) defines religion is a major spiritual system and maintains that all world’s religions have some general values or principles that they share across the globe for the society’s welfare. As emphasised by Rehan (2013), all the prophets’ teachings are the same both in matters of belief and regarding the human being’s dignity and honour. The Ten Commandments are somehow associated with dignity of people. Both Christianity and Judaism provide uneven and multifaceted history concerning the protection and notion of human rights. Rehan (2013) mention that position that women have been placed by Christianity and Judaism is not only humiliating but also degrading since men are favoured in nearly all respects. Before Islam came about, women were seen as pawns and inequality was prevalent. Therefore, pre-Islamic cultures and religions made little contributions towards human rights. On the other hand, Islam offers a more balanced, comprehensive and complete concept of human rights. Still, many believe that Western notions of human rights are not compatible with the Islamic culture (Muedini, 2010). Even though some Muslims perceive the international standards of human rights differently, Ernada (2007) asserts that there is similar trend on how Islamic society participates in the human rights discourse. Specifically, the participation of Muslims in the human rights discourse depends on the dynamic tensions between three interconnected poles. Conservative Islam is the first pole and holds that the universal claims of Islam contain the human rights realm. Reformist or liberal is the second pole, which claims that the secular and modern-based universal human rights concept is compatible with Islamic religion. The last pole, which according to Ernada (2007) is the most complex pole, is the state’s human rights principles interpretation in line with real or imagined national interests. Therefore, Islam undoubtedly contains universal principles that are compatible or incompatible with the Western universal human rights principles. For this reason, there exist some tensions between the first and second poles attributed to the ways through which Islamic leaders and groups interpret these universal principles. Furthermore, they are as well impacted by the reactions of proponents of Westernised human rights principles to particular principles of Islam. The Qur'an according to Hassan (1982) is the human rights’ Magna Carta to many Muslims since it tries to free the people from the burden of slavery, authoritarianism, traditionalism, racism, tribalism, chauvinism, and other factors that inhibits or prohibits people from actualising the human destiny. The absolute value associated with human right, as mentioned by Hassan (1982), is upheld by the Qur'an and also indicates that the life of a person is similar to that of the whole community; hence, people should treated with respect and care. According to Qur'an, as cited by Hassan (1982), every person has the rational faculty, which differentiates people from other creatures; therefore, they can exercise the freedom of the will. The Qur'an further maintains that justice is requirement for peace and human development can only be achieved when there is peace. According to An-Na'im (1987), some of the human rights under sharia law, are in danger. If the Muslims had not abandoned public sharia temporarily at the time of secular rule, An-Na'im (1987) posits that the basic human rights could have been violated massively. Reintroduction of public sharia in Pakistan and Iran offers horrifying instances of individual civil liberties violations and religious minorities’ persecution. Most of these atrocities are performed by some Islamic governments in contravention of sharia law itself. An-Na'im (1987) indicates that this contravention is attributed to non-existence of institutionalised safeguards that ensures observance of sharia. Human rights as mentioned by Ellis et al. (2012) are entitlements to human beings that progressed from European contemporary thinking on natural law. Such rights were elevated by the Western countries to legal institutional standards. Ellis et al. (2012) posit that the democracy, human rights, as well as legal rule are inherently interconnected to each other. With the view to the present political Islam resurgence, Muslims exclusively associate legal rule with sharia. Both Westerners and Muslims that value the essence of democracy concur with the view of Max Weber that a democracy should be anchored in the legal rule. Still, Muslim fundamentalists consider sharia as the foundation of the legal rule adequate to every Muslim (Mir-Hosseini, 2006). Western democracies as indicated by Tibi (1994) are accommodating; therefore, adversaries are allowed to undermine democracy in their own way, while sharia law is not only pure but superior. Nobody can undermine sharia law from within, since it has drawn fault lines. The majority of Muslims across the globe are satisfied with the level of their freedom of belief and religion. Most of the European states as mentioned by Kayaoglu (2014) have clear domestic provisions that prevent religious discrimination and their international mechanism for protecting religious freedom is very strong. Most of the Western countries have advanced and robust international mechanism used to protect human rights. According to Hallaq (2009) the Prophetic traditions and the Quran have an ethical code that all Muslims have to obey as well as a legal system that should strictly be followed. On the other hand, Western system relies depends on man-made laws and the divine sources have been disregarded completely (Oba, 2012). As a result, this generates a big gap between Western and Islamic notions of human rights and lead to many normative differences in how they construct human rights and the difficulties. A number of feminists argue that the international law has overlooked women discrimination than racial discrimination (Ahmed, 1992). Still, the UDHR provides clear provisions for women protection; for instance, Article 2 of The UDHR sets out the right of freedom for every person irrespective of their gender, sex, colour, religion, and others (Downes, 2004). For man Muslim women, especially in India they are confined in multiple subordination layers (Ahmed, 2007). As mentioned by Ahmed (2007), many sexual minorities and Muslim women are trapped inside the inescapable subordination cycle. More importantly, the existing Islamic statements as well as declarations maintain that human rights are gifts of God, but Westerners believe they are an outcome of struggles (Morris, 2003). Conclusion In conclusion, this piece has critically demonstrated why Islamic Law and the ‘Western’ notion of human rights cannot be reconciled. Even though human rights have become a crucial factor in modern history in the Western as well as Muslim perspectives, there is a basic deference in their concept of human rights. While the Muslims believe that human rights is a gift from Allah to human beings because of their dignity and honour the western consider human rights as an outcome of human major struggle. The Islamic law highlights that human rights are sourced from divine revelation but the Westerners believe it is sourced from human experience and mind. It is difficult to reconcile the two aspects especially in terms of morality and equality. The human rights concept as a right of all people is rather unachievable as differences in justice conceptions cannot be avoided. Still, the contention that the West imposed human rights and cannot hold resonance in Islamic societies, exaggerates the human rights exclusivity to Western culture. As it has been evidenced in this piece, there exists an overlapping consensus that recognising and accepting human rights is partial rather than complete. References Ahmari-Moghaddam, A., 2012. Towards International Islamic Human Rights: A comparative study of Islamic Law, Shari’ah, with universal human rights as defined in the International Bill of Human Rights. Thesis. Toronto: University of Toronto. Ahmed, L., 1992. 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Islamic Law/Shari'a, Human Rights, Universal Morality and International Relations. Human Rights Quarterly, vol. 16, no. 2, pp.277-99. Read More