Islam and Human Rights
One of the many ways that Islamic governments or those movements that aspire to establish Islamic movements are criticized in the West is that they violate human rights that are purportedly deemed “universal.”
However, before even getting into a discussion of whether Islamic law or Islamic governments violate human rights, let us first engage in a critical discussion of human rights itself.
Here are a set of questions that should be answered first:
1. Is the statement “human rights universal” a descriptive statement or a prescriptive statement?
2. What is the origin of the concept of universal human rights?
3. What rights are universal and more importantly, who decides?
4. Are Muslim societies bound by decisions of diplomats when the governments that made such treaties are legitimate neither democratically or islamically?
5. What is the Islamic conception of human rights and how do they compare with the Western/progressive human rights scheme?
Thoughts?
I”m going to do some mashwarah on this topic before developing a systematic thorough critique of the notion of universal human rights.
Sphere: Related ContentPublished March 27, 2007 . Filed under: Critical Democracy Studies
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whether or not it is a descriptive or proscriptive statement is going to depend on who you ask. if you are hobbesian it is going to be proscriptive b/c one only has rights insofar as a state can defend and protect those rights.
if you are kant or levinas then it is a descriptive statement. there are rights that belong to the very nature of being human and cannot (again a descriptive statement) be violated. the attempt to violate those rights, whether by oneself or another, is violence.
in most liberal discourse i think the latter option is generally presumed. for instance when the u.n. pursues an agenda of human rights it does so because it believes that all people possess these rights and they ought to be respected. thus the possession of rights is something that is already true, and the failure to acknowledge it is a violation of the person.
LoA.
March 27, 2007 @ 3:22 am
I was referring more to the use of international law to enforce sanctions (whether monetary, political, or military) against purported human rights violations while also respecting the sovereignty of a nation.
With regards to the claim that human rights are universal (whether by attaching to the state or to the person), is this proposition truly universal in the sense that all cultures and societies agree to them?
The only adequate argument I’ve seen for enforcing sanctions against violations of human rights is on the grounds that many countries ratified treaties that aimed to promote human rights. Thus, the argument in favor of the universality of human rights shifts from a purported descriptive statement to a prescriptive statement. I don’t feel that there is strong empirical evidence that all cultures have developed a common set of rights which all humans should have.
March 27, 2007 @ 10:34 am
1 whether or not they are recognized and practiced by all cultures would be an anthropological question, a question of fact, but would not truly answer the question of whether or not they are descriptive or prescriptive — at least if i play the liberal. of course it is a factual question to which the answer is no. there are plenty of societies which do not respect what political liberalism would take to be human rights.
2. as for the language of human rights and its development as a philosophical and legal doctrine, i would suspect that it belongs to the emergence of modernity, the middle class and early capitalism. i would also guess you find foreshadowings of it in william of ockham and the franciscan disputes with the papacy, as well as in grotius. but this is certainly beyond my expertise.
3. the point of grounding rights in the structure of the self (in the ego) is to avoid the who gets to decide question. the claim that they are descriptively universal is likewise a claim to their objectivity. the legal and descriptive claim that ‘this is how people ought to act’ is based up the descriptive claim that ‘this is human nature.’
LoA.
March 27, 2007 @ 12:49 pm
I think their main criticism is regarding the practical treatment of human rights by Islamic governments. For example, if there is some abuse in some Muslim country X, most Western intellectuals would not say that there is some theoretical defect in Islam, but that ‘it’s a result of uncivilzed/uneducated/male dominated/poor society. At max, they would say that Islam seems to encourage such mentality. There are lunatics, of course, who would attribute every negative thing to Islam, but I don’t think they are worth addressing or convincing. The party who has power decides (read: advertises) what human rights are or aren’t, so maybe this topic does not need much attention. (?).
Jazak Allah
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March 27, 2007 @ 3:11 pm
LoA, I think you’ve nailed the points I was trying to make.
1. The claim that human rights are universal is a patently theoretical prescriptive statement. I’ve been doing a lot of research on this subject and so far, the only argument put forth that human rights are universal is that human rights declarations were ratified by various countries. In my opinion, this isn’t sufficient to support the claim that human rights are universal.
2. I’m reading a very interesting book called “Islam and Human Rights”, but the author focuses on international law and related documents. If you come accross any authors or books, send them my way bro.
3. See, I still have a problem with the notion that rights attach with humans. Firstly, because of the problem of who is a human (for example, the Constitution originally embraced the concept that African Americans were not fully human and for the purposes of voting, they were 3/5ths a human. Secondly, I think another problem is when these rights attach. (for example, the right to life is a universal human right, but in the case of aborted foetuses, there’s either an exception to this right or their status as humans is denied). Thirdly, what rights attach and who decides, and I think this is a major problem. If human rights are universal and recognized through all societies, then how do new rights arise? It seems to be anachronistic to claim that societies that deemed certain rights to attach to humans automatically agree to subsequent changes in the interpretations of rights. For example, with regards to sexual orientation, which I’m quite sure the original authors of international human rights documents didn’t have in mind. Or, for example, in Europe, where a political party has been established to support pedophilia in the Netherlands and in Germany, where a couple is suing for the recognition of their incestual relationship.
Ultimately, the only argument I can find sufficient to justify the proposition that certain rights are universal is through a sort of social contract theory: humans from all over the world came together and ratified these declarations and no one objected. There are problems with regards to whether the so-called contract itself is valid and their are problems with the ethical justification of such a document since one can posit it in an equally opposite, mutually exclusive set of non-rights. For example, if all the nations in the world came together and stated that the following rights are universal: (1) the right to die, (2) the right to be tortured, (3) the right to be molested as a child, (4) the right ot be raped, etc. In other words, if the only support for the authority of the universal human rights scheme is the mere fact that its been approved by multiple states, then this shows that the true source of its universality is not that these societies have inherently or implicitly recognized such rights, but merely because a select group of elites who were sent by non-democratic governments or illiberal democracries to construct a document.
I’ll be working on a more thorough critique of the book over the summer, inshAllah.
March 28, 2007 @ 9:58 am
you know this should be over at eteraz. ali would be much more critical of your critique than i would be and he has the background in human rights and international law to go with it.
as for point 3, let’s take husserl since he is someone i know well. now husserl does not use the language of human rights explicitly, but what husserl does say is that there is a fundamental privacy to being human that cannot be violated. when he says it cannot be violated he means cannot, not that it ought not. attempts to violate the essential hiddenness of what it is to be human is violence.
now this privacy would include, for instance freedom of religion since religion is an interior matter and cannot be coerced.
the point here is that things like the ‘right to die’ is not a human right in any strong (philosophical) sense, since the absence of that ‘right’ does not violate the very humanity of the person: i.e., it does not contradict the essence of what it is to be human. (and arguably one can deduce a mandate against self-violence from husserl’s account of the human).
LoA.
March 28, 2007 @ 2:58 pm
I was tempted to post the diary up there, but I didn’t want to derail from the focus of the website, which seemed to be more about activism than theoretical discussions.
Anyhoow, with regards to Husserl’s conception of the human being, I’m not disagreeing with him, but my point was that he was one among many voices who have articulated varying visions for what it means to be human. There is no authoritative coherent self-sufficient view on a lot of these issues. At the end of the day, each thinker has their own pressuppositions upon which their argument rests upon. If each argument is reduced to set of unprovable or unsubstantiated or self-evident truths or tautological statements, then it can’t really be said that other arguments for/against rights schemes are wrong.
My biggest grievance against this mindset is that it is used to justify violence against Muslim states or movements that aspire to develop their own indigenous rights schemes. What human rights violations did the Somali UIC commit? Compared to the human rights violations being committed by the US at home and abroad, what did the Taliban do that was grossly violative of the human spirit? I’m not denying that human rights violations occurred, but there is a clear inconsistency in this criticism; it is largely one-directional. Somehow, the Shari’ah has become synonymous with terrorism, when the two are distinct. Terrorism is just as unlawful under the Shari’ah as it is under any legal system.
With regards to using Western models of human rights schemes, whether developed by Kant, Mill, Jefferson, Pain, Husserl, or any other person, I have no problem with their schemes per se, but when such a system of schemes is imposed upon other societies that don’t agree with the logic or reasoning behind them.
March 28, 2007 @ 7:48 pm
especially someone like husserl would deny that there are any presuppositions involved. he is simply describing things as they appear. or to put it more generally, kant, husserl, levinas, derrida (the phenomenological tradition — which also includes heidegger, but he is not a liberal) are not going to accept that what they describe as transcendental (or quasi-transcendental in the case of derrida) is historically contingent. you can argue with them over how to interpret the-world-as-it-appears.
now in the case of a mill or a rorty, its a different matter. they simply accept rights as a matter of expedience. they believe its the most workable way of organizing a society, but they are no strong philosophical claims about universality underlying that.
i realize that you are primarily interested in this from a legal standpoint. but…political liberalism and islam are BOTH making universal claims about what it is to be human and what a good society looks like, what promotes human flourishing, etc. as such they are going, by necessity, to be engaged in mutual critique of one another. such criticisms do not by themselves justify war. in fact someone like kant rules it out from the start. but the mutual critique and the universal nature of the claims cannot be avoided on either side. the meaning of terms like liberty, equality, justice are under dispute.
now this doesnt mean that liberal states live up to their own ideals. but what society does? you cannot reasonably expect liberal states to think that the ideals they take to be universal end at the borders drawn on a map. on the other hand of course, islam still maintains the all those liberals were born muslim, are muslim by nature, even if liberal societies have lost sight of that.
i am totally sympathetic with your complaint that power has been abused by liberal states in the name of human rights. i think a good number liberals are pretty disillusioned with the actions of their home nations. and there is a clear contradiction in the idea of imposing liberal values by force.
i think im rambling, so i will stop.
LoA.
March 28, 2007 @ 9:10 pm
p.s. as for putting this in a reader diary on eteraz, i would still suggest it.
1. ali asked me to write front page pieces and i am SO not an activist of any type. its theory coming out of this keyboard. (i.e., i am working on a piece on shariati that is neither activist nor legal in scope).
2. this is actually closer to what ali is about than anything i will ever write. this about legal issues and how it affects the muslim world. (e.g., is egypt heading in the right direction?; and the taliban…seriously??!?)
LoA.
March 28, 2007 @ 9:23 pm
An apposite quote from a short bio on Imam al-Haramayn, rahimahullah:
“Al-Juwayni was a staunch defender of the Ash’arite view of the basis of value judgments, which is entirely scriptural. What is good is what is said to be good in scripture, and what is bad is what scripture condemns, and there is no other basis to such judgments. Any attempt at finding a rational foundation is flawed, and it can be assumed that here he had the Mu’tazilites in mind. He suggests that the Mu’tazilites are wrong in thinking that there are basic rational moral truths, since if this were the case there would be no possibility of widespread moral disagreement, something which quite clearly does arise. Similarly, the idea that particular forms of behaviour are absolutely right or wrong is difficult to establish, given that we often base our judgments here on the context surrounding those actions and the precise nature of the agent.â€
March 29, 2007 @ 1:58 pm
Lawrence,
meh, i took phenomenology in college and it sounded really spaced out to me. isn’t husserl still subject to the same criticism that rationalism is built upon, namely, that one’s sensory perceptions are subjective? just out of curiosity, which work of husserl dealt with the subject of rights? even if we observed an object, such as a human, for a long time, i don’t think the concept of rights would become visibly apparent since it is, after all, a matter of social convention and not being. i’d be interested in reading up on this.
if you wouldn’t mind, i’d like to start compiling sources of information for this discussion, here:
http://z14.invisionfree.com/Shield_of_Islam/index.php?showtopic=1550
Also, let me restate two points that were previously made:
(1) There isn’t a universal consensus amongst Western philosophers over the source, nature, and types of rights concerning humans.
(2) Western nations don’t live up to their own values.
I think these two statements illustrate that one cannot impose a Eurocentric conception of human rights upon Muslim countries, especially since when, at the end of the day, they are still subjective.
Ultimately, I think the only basis for human rights schemes to be authoritative universally is through a sort of social contract theory argument, which Ann Elizabeth Mayer essentially makes in her book “Islam and Human Rights.”
Her basic argument is that Muslims are bound by universal proclamations of human rights because they agreed to them. She shuns delving into a lengthy philosophical discussion on the origin of such rights and focuses on the legal aspect, since she is a lawyer and not a philosopher. However, the basic problem I have with her claims are as follows:
(1) the people who participated in the signing of these treaties were not legitimate governments, either Islamically or democratically
(2) the people who participated in the siging of the treaties from Muslim countries were not experts in Islamic law. They did not adequately represent their indigenous cultures or religions.
(3) even if it could be posited that such a document is authoritative, it is not because human rights have intrinsic value, but because the document was agreed upon by many nations. As such, an equally opposite document could be approved by international consensus that would deprive humans of such rights. I don’t know why, but if this is what her argument ultimately breaks down to, I think this is an extremely dangerous and shaky conception for rights.
March 29, 2007 @ 3:20 pm
1. husserl certainly wouldn’t accept that the perception of objects is simply subjective. there have to be some sort of ideas that allow us to have shared meanings (with each other, and even with respect to ourselves insofar as we share meanings over time through memory). yes this has echoes of neoplatonism. pure subjectivity is another word for chaos. experience would be impossible.
2. while the idea of human rights never directly arises in husserl, i would start in two places to begin an analysis of what we are referring to as rights. the cartesian meditations, particularly meditation #5, and then the crisis of the european sciences.
the latter is particularly interesting because in the works during the crisis period he is pushed into responding to heidegger (being and time had been recently published), so he is providing an account of the historicity of being human. but that historicity becomes an excuse for barbarism if humanity loses touch with its pursuit of the universal.
3. if rights don’t arise out of an analysis of the human being they are essentially meaningless in any robust sense. this is your fear, at root, with mayer. mayer fails to ask what is the human good, and instead replaces the good with consensus — which ain’t the same thing. no more than 2+2=4 because everyone agrees it does.
4. as for the point that there is no consensus with regards to the “source, nature and type”: it is certainly no more true to say that about the political liberalism than it is to say that there is no universal agreement in xty with regards to anthropology, or islam for that matter. in each case one can say at least two things. no two thinkers that are genuinely important say exactly the same thing. but also, there are nonetheless traditions within which there is a kind of shared and common vision. for all their differences liberal phenomenologists (which is almost all of phenomenology except for heidegger) share a lot of themes when it comes to their analysis the the self. this is true even across the divide between modern and postmodern that would supposedly separate a husserl from a derrida. or a social contract position that would unite rawls and habermas for instance.
5. you cannot avoid that islam, liberalism, xty, marxism, etc. are making universal claims about the nature of being human. in this husserl and islam, for instance, are on the same side against utilitarianism, pragmatism, and many forms of historicism. they share a desire for truth and they believe that truth is universal. this will unavoidably bring them into conversation with one another, and with any luck that conversation will be to the betterment of both. that does not mean that if i am a liberal phenomenologist for instance that i am going to refrain from criticizing islam on human rights or a host of other topics. nor would i expect various islamic thinkers to refrain from criticizing back. at the very least, the criticisms are going to be implicit in everything i write.
6. i agree, as i stated in my previous comment, that i agree that liberal govts do not live up to their own ideals. what govt does? i think they have been especially poor lately. because of this they are losing or have lost their credibility to speak to other countries about the growth of liberal rights. i mean the position the white house took on the recent ammendments to the egyptian constitution is a joke.
7. i agree, as i also said in the previous comment, that liberal rights cannot be imposed on a group of people. i think the failure of such a crusade is evident in iraq and elsewhere.
8. the question is then, at what point does one govt interfere in actions of another govt which it perceives to be engaging in a gross and massive violation of what it is to be human? i certainly do not have an easy answer to that one.
LoA.
p.s. i will post the references at the link you gave.
March 30, 2007 @ 2:10 am
http://lgst.wharton.upenn.edu/mayera/writings.htm
April 20, 2007 @ 5:18 am
Also-
http://people.law.emory.edu/~abduh46/phfiles.htm
April 20, 2007 @ 5:25 am