Islam and human rights: the problem of compatibility and the theory of open exchange

Autor: Čustović, Ajla
Přispěvatelé: Kulenović, Enes, Špehar, Hrvoje
Jazyk: chorvatština
Rok vydání: 2020
Předmět:
Popis: Doktorska disertacija pod naslovom Islam i ljudska prava: Problem kompatibilnosti i teorija otvorene razmjene kritički preispituje tri dominantna diskursa, u kojima se danas raspravlja o islamu i ideji univerzalnih ljudskih prava: nekompatibilistički, kompatibilistički i revivalistički diskurs. Problematika disertacije sagledava se kroz tri točke napetosti između islamskoga i liberalnoga razumijevanja ljudskih prava: slobodu vjerovanja (uključujući i pravo da se od vjere otpadne), slobodu izražavanja (na primjeru prikaza karikature proroka Muhameda) i (ne)ravnopravnosti žena. U disertaciji se univerzalnost ljudskih prava definira na način da ta prava počivaju na ideji jednakosti svih, pa se kroz prizmu takva poimanja univerzalnosti i primjenjujući metodologiju Bohmova razlikovanja dijaloga i rasprave kao svojevrsnog uvoda u Feyerabendovu teoriju otvorene razmjene diskursi odbacuju kao nekonstruktivni i neproduktivni za dijalog. Kritički preispitujući diskurse kroz metodološke okvire rada, ustanovljuje se kako se takvi apsolutistički diskursi, namećući normativni standard drugima, sami isključuju iz dijaloga, a otvorenu razmjenu svode na vođenu. U disertaciji se kroz kritiku triju navedenih diskursa postupno uvode progresivni islamski akteri, koji se nalaze u fokusu rada kao produktivniji i konstruktivniji dio islamske moralne tradicije. Disertacija se većim dijelom fokusira na progresivnu islamsku misao i interpretacijski proces kontekstualnog čitanja Kur'ana i hadisa te metodu idžtihada kojom se ukazuje na važnu ulogu ljudskoga posredništva. Krećući od pretpostavke da šerijat nije Bogom dan, nego nastaje ljudskim interpretacijskim procesom, u disertaciji se odbacuje nepromjenjivost šerijata, njegovo provođenje kao zakona države i ukazuje se na problematičnost pozivanja islamskih deklaracija ljudskih prava na šerijat kao na glavni izvor tih istih prava. Kako je progresivna islamska misao u fokusu disertacije, oslanjajući se na An-Na'imov pristup, u radu se ustraje na unutarnjem diskursu među muslimanima i kritički se odbacuju interpretacije Kur'ana kojima se zagovara prednost jednih ljudi nad drugima: muškaraca nad ženama, muslimana nad nemuslimanima. S obzirom na to da islamski teoretičari drže kako ljudska prava u islamu počivaju na ideji jednakosti svih, pa su ona stoga univerzalna, kritički se sagledavaju pristupi u islamskoj moralnoj tradiciji kojima se takva univerzalnost poništava.
In 1948, the United Nations General Assembly proclaimed the Universal Declaration of Human Rights (UDHR), which affirms individual, equal and inalienable rights to all human beings. Although UDHR guarantees equal rights to all human beings regardless of sex, nation, race, and religion, Saudi Arabia abstained while forty-eight counties voted in favor of the Declaration. Saudi Arabia’s abstention was primarily because of UDHR’s Article 18 that refers to the freedom of religion, and that states how has all have the right to change one’s religion or belief (including the right to abandon the religion). It must be noted, that although most of the Islamic countries voted in favor of the Declaration leaving Saudi Arabia’s claim that the Declaration opposes Islamic Shariah as a lonesome complaint – most of the Islamic signatory countries have Shariah as the only or main source of their constitutions. Also, it is important to bear in mind that all Islamic drafts and declarations on human rights in Islam, have Shariah as the only source of all human rights and that Shariah law is regarded as transnational law by which the rights claimed by the Shariah surpass the rights claimed by any declaration, law or international treaty. There is no consent within Islamic moral tradition on the unique concept of human rights, nor is there the central religious authority that would acknowledge one interpretation as valid for Muslims as a whole. Despite the lack of central religious authority, several attempts were made to provide, “Islamic” answer to the UDHR, from which the Cairo Declaration on Human Rights in Islam (1990) is agreed on and accepted by most Islamic countries as an alternative to UDHR. Therefore, in this dissertation, the Cairo Declaration of Human Rights in Islam (CDHRI) is regarded as a representation of Islamic perspective on human rights, and it is being compared to the UDHR on three tension points that are the focus of this dissertation: the freedom of religion (in opposition to the death penalty for apostasy in Shariah), the freedom of speech (in opposition to Shariah penalties for blasphemy and prohibition of portraying Prophet Mohammed) and the (in)equality of women. The stated liberties represent liberal legal values, which are perceived as an international standard one should strive for. In most cases, because of its different views on those values, Islamic moral tradition is asked to change, reform, and become compatible, only to get dismissed as an anomaly in case it fails to succeed in doing so or due to its inability to change. Today, the question of Islam and the liberal concept of human rights is often simplified and shaped into the counterproductive question of whether Islam is (in)compatible with the idea of universal human rights or not. However, shaping this issue into the question of (in)compatibility suggests the moral superiority of the normative system of one tradition, which needs to be reached through the changes and reforms of other traditions. The (in)compatibility question is discussed within three dominant public and academic discourses: the incompatibility, the compatibility, and the revivalistic discourse. In the first three chapters of this dissertation, the discourses are critically approached, examined, and dismissed as unproductive and unfruitful for the dialogue. A critical examination of the three discourses is conducted through the above-stated focus points and it is guided by the definition of universal human rights, which are defined as rights based on the postulate that all people are equal. It is shown that the actors of all thee discourses expect to form the adherends of other traditions to change and achieve compatibility with what they perceive as universal human rights. The adherends of incompatibility discourse observe Islam and the idea of universal human rights as two opposed, incompatible terms. Within this discourse, as the main premise, the discourse on human rights is intertwined with Samuel Huntington’s Clash of civilization hypothesis. The actors of this discourse perceive Islam as a monolithic entity, which in numerous ways differs from the liberal understanding of human rights as rights based on the idea of all people being equal. In the incompatibility discourse, liberal human rights theorists, such as Jack Donnelly, dismiss human rights in Islam as obligations and not rights, and it is believed that with human rights in Islam the majority of world’s population (women, non-Muslims, homosexuals) are left ”outside of the pale of humanity”(Donnelly, 2013: 80). The incompatibility discourse is critically examined and dismissed because of the following reasons: 1. It treats Islam as a monolithic entity; 2. It claims that Islam is unable to reform and in case it does reform it is only to become more Islamic and, therefore, more hostile towards what are considered to be liberal values (especially human rights); 3. It demonizes Islam by characterizing it as a religion of violence, intolerance, and Holy war, which is equally dangerous for both Muslims and non-Muslims. The adherends of the compatibility discourse observe the UDHR as a) universal in a way that it is based on the idea that all people are equal and b) universal in a way that it is culturally neutral, which makes it universally applicable in all societies and cultures. For compatibility actors, human rights stated in the UDHR have a normative character and Islamic complaints to the UDHR and efforts to give an Islamic response are perceived as an attempt to justify a violation of human rights by referring to religious regulations and cultural differences. It is important to stress that, although there are similarities between the incompatibility and the compatibility discourse, differences are that the compatibility discourse recognizes the plurality of Islam and perceives Islam’s ability to change and reform, even though it is only to become compatible with a normative standard set out by the UDHR. These two premises of the compatibility discourse hold the reasons for its critical examination and dismissal: the first reason is that the claims of the UDHR being culturally neutral and thus having normative character, set liberal understanding of human rights as standard, which needs to be achieved by Islamic moral tradition. So, according to the compatibility discourse, the Islamic moral tradition could possibly go through changes and reform, but it is undergone only to become compatible. The second reason is that, in that kind of relationship, the compatibility adherends perceive their tradition as more advanced, more modern and superior to other traditions, which are then expected to change, and adjust themselves to a standard set by one tradition. In the context of this dissertation, the compatibility discourse disables a dialogue, because a dialogue signifies all participants being equal, what cannot be achieved when only one tradition sets the “rules” or assumes the role of a teacher or a guide. While dealing with the compatibility discourse, the dissertation mostly relies on the works of liberal human rights theorists Ann E. Mayer and Michael Ignatieff. When the two discourses within the liberal moral tradition get critically examined and subsequently dismissed as unproductive for the dialogue (as for the open exchange), the dissertation engages in the critical examination of the revivalistic discourse within the Islamic moral tradition. Since the focus of this dissertation is on the Islamic moral tradition and on what Abdullahi an-Na’im describes as the “internal discourse among Muslims”, it is important to distinguish and highlight premises of this discourse. Distinguishing premises of the revivalistic discourse by leaning on the arguments of the Islamic progressive thought, presents the reader with a pluralistic tradition in which Muslims only agree on Qur’an being the word of God and disagree on everything else – as Reza Aslan puts it: “God may be One, but Islam most definitely is not” (Aslan, 2011: 272). The advocates of this position hold that God’s word hands them the Truth, and as the holders of the Truth they expect from other participants to convert to Islam or they get dismissed as lost or strayed. Revivalists see Islam as a perfect and complete system that contains everything necessary (including human rights) for the life of an individual, a society, and a (theocratic) state, claiming that it applies to all people in the world, and not just Muslims. Revivalists try to monopolize the Islamic moral tradition, and by minimizing the role of human agency in the interpretation of God’s world, they impose their interpretation of the true essence of Islam and dismiss all others as incorrect, untruthful and un-Islamic. They perceive Shariah as a fixed, God-given law, which unlike human-made laws cannot be changed or complemented, and unlike man-made laws cannot be exposed to unpredictable wishes, desires, and changeable nature of human will. The revivalistic discourse is characterized by four main premises: 1. Universal human rights are given to humans in the Qur’an long before it was done with declarations and conventions in the West. 2. The only just and morally right society is the society of the Prophet Mohammed – Medina ideal. The Medina ideal is glorified, and revivalists are calling for its revival. Hence, the name of this discourse. 3. The Islamic moral tradition is superior to morally degraded liberal moral tradition (which is equated with the West), 4. Shariah is a God-given transnational law, and its advantage relies on the fact that it is the law of God, while other laws are man-made laws and, therefore, deficient and imperfect. All three focus points are discussed within this discourse and it is shown that universality claims are valid only for Muslims (men) who think and practice the version of Islam accepted by the dominant stream in the Islamic jurisprudence. The revivalistic discourse is critically examined and dismissed for all the reasons stated above as well as are its main premises, including revivalistic insistence on installing Shariah as the state law and the only source of human rights. Furthermore, it is necessary to highlight that revivalists, same as advocates of the incompatibility and the compatibility discourses, view their tradition as superior to other traditions by setting a standard that other participants in the dialogue need to reach through the changes and reform. While dealing with the revivalistic discourse, the dissertation mostly relies on the works of Islamic theorists Sayyid Abul Al'a Mawdudi, Ayatollah Khomeini, Sayyid Qutb, and Yusuf al-Qaradawi. The arguments for the progressive Islamic discourse are gradually presented in the dissertation as a critique of the main premises of the incompatibility, the compatibility, and the revivalistic discourse. The reason for it was to introduce the reader from the beginning with a current in the Islamic moral tradition, which is an intermediary discourse. It means that both the progressive Islamic thinkers and the Islamic theorists of human rights, do not impose Islam on other participants in the dialogue, nor do they expect from others to change to become compatible with their standard. Unlike revivalists, they do not perceive liberal societies as morally degraded and dangerous for Muslims. They do not fully reject the UDHR, but they call for its complementation. They also insist on the need for a reform of Islam, the new interpretations of the Qur’an, and the reassessment of Shariah as a part of the internal discourse among Muslims The main premises of the progressive Islamic discourse are 1. The UDHR is not culturally neutral. It is based on the values of certain societies that colonized others when the Declaration was drafted. Since it has a specific historical and social context, it does not have a normative character and is not universal. For the progressive Islamic thinkers, the imposition of the UDHR is cultural imperialism. 2. Shariah is not a result of God’s providence, but human interpretation. That makes Shariah flexible, open to new interpretations, changes and complements. 3. Shariah was never intended to be, and it cannot be, the law of the state. Shariah is a moral instruction that Muslims if they want to, can adhere to in a religiously neutral state. Progressive arguments against Shariah as the state law are important within both the internal discourse among Muslims and in the dialogue between two understandings of universal human rights. The key element of the progressive approach is the legal term of ijtihad (independent reasoning - as one of the sources of Shariah) and contextual reading of the Qur’an. Unlike revivalists, progressive Islamic thinkers emphasize important and inevitable human mediation in interpreting the word of God. According to the progressive Islamic discourse, Shariah was developed within a certain historical and social context of the 9th century. When approaching the Qur’an in the interpreting process, Islamic jurists were/are not a tabula rasa, but they were/are influenced by different economic, social, and political factors. Ijtihad, as one of the sources of the Shariah, needs to be used again today as it was used in the 9th century, and jurists from the present time and the context need to re-approach the Qur’an and the Prophet’s tradition, in order to find solutions and answers on the needs of Muslims in modern times. One of punishment for theft in the Shariah is to cut off the hand of the thief. In the social and historical context of the revelation of the Qur’an, al-Jabiri explains that what we mean by “prison” today, did not exist in that time and that nomadic life of tribes would have made it hard and unpractical to have prisons. But today, when prisons do exist, and nomadic life is mostly replaced with a sedentary lifestyle, punishment for theft in Shariah needs to be reassessed and changed. By doing so, progressive Islamic thinkers by no means have an easy task. On the one hand, because of the secularist views of religion and the fact that they do not reject the liberal concept of human rights, they are often seen as apostates. On the other, because of their adherence to what is prescribed by the Qur'an, they are often seen as incapable of breaking off with the religious ties and as being unable to fully participate in the human rights dialogue. Consequently, the progressive Islamic thought is rarely taken seriously and every attempt made to find a solution is either characterized as anti-Islamic or as apologetic in the name of Islam. Using Paul Fayerabend’s term of open exchange as a methodological framework, the incompatibility, the compatibility, and the revivalistic discourses are being critically examined and dismissed along with their rhetoric of better, more advanced, or more morally prosperous tradition. Relying on David Bohm’s definition of dialogue as a kind of precondition of open exchange, it is stated in the dissertation that every attempt to establish a dialogue between Islam and the liberal concept of human rights, has been a discussion with limited reach. This dissertation advocates a dialogue, and it dismisses absolutist discourses as unproductive and unfruitful. Absolutist discourses as the incompatibility, the compatibility, and the revivalistic discourse tend to set rules and standards that other participants need to follow and adjust to, which abolishes dialogue and open exchange. The concept of Shariah as being the only source of universal human rights is questioned because of the following reasons: 1. Shariah is a product of human interpretations and reasoning in the 9th century and it cannot be compared to the modern idea of freedom. Comparing Shariah (which remained unchanged since the 9th century) with rights and freedoms set forward in the UDHR displays how Shariah violates human rights: it prescribes the death penalty for apostasy, it requires imprisonment and deprivation of civil rights for blasphemy and it does not treat men and women equally. 2. Shariah has two main sources: the Qur’an, which is regarded by Muslims as a direct word of God, and the Prophet’s tradition, which contains verbally transmitted and later collected sayings and doings of the Prophet Mohammed. The Prophet’s tradition is mostly used to clarify ambiguous parts of the Qur’an and it has religious authority, although it was collected hundreds of years after the death of the Prophet Mohammed. In some cases, the two main sources of Shariah give contrary answers to the same question. In the framework of this dissertation, the Qur’an does not prescribe the death penalty or any other penalty for apostasy, while the death penalty can be found in the Prophet’s tradition. While the Qur’an prescribes “hellfire” for apostates, it does not require Muslims to punish apostates on God’s behalf in this life, but it directs them to leave apostates to God on Hereafter. Leaning on the arguments of the Islamic progressive thought, it is insisted in the dissertation that the Prophet’s tradition cannot override the authority of God’s word. 3. Acknowledging Shariah as the only source of universal human rights gives religious justification for their violation as it is best displayed by the mistreatment of women and the patriarchal interpretation of the Quranic verse 4:34, which is elaborated in the last chapter of this dissertation. The CDHRI invokes Shariah as the only source of the rights in question, but Shariah is also invoked as the restriction of those rights too. In the concluding 25th Article of the CDHRI, it is unequivocally stated that Shariah is the “only source of reference for the explanation or clarification of any of the articles of this Declaration”. For instance, while 22nd Article1 of the CDHRI guarantees the freedom of expression, it also ambiguously states that the practice of that right should not oppose the principles of Shariah. And since there is no unique version of Shariah accepted by all Muslims, human rights guaranteed by the Declaration are left to ideological and religious preferences of those in power in Islamic countries. The dissertation is divided into seven main chapters. In the first chapter, titled Introduction, methodological frame and thesis are defined, three focus points between two understandings of universal human rights are pointed out. In the second chapter, titled Incompatibility discourse, the main premises of the incompatibility discourse are critically examined. In the third chapter, titled Compatibility discourse, the main premises of the compatibility discourse are critically examined and the compatibility discourse is differentiated from the incompatibility discourse. Also, within this chapter, the dissertation shows a position that uses both the incompatibility and the compatibility rhetoric. The fourth chapter, titled Critique of incompatibility and compatibility discourse, has a goal to dismiss the premises of both discourses by leaning on arguments from the progressive Islamic thinkers. The fifth chapter, titled Revivalistic discourse, deals with the main premises of this discourse through five subsections. The goal of this chapter is to critically examine the revivalistic premises while questioning universality claims of the revivalistic concept of universal human rights. The sixth chapter, titled Progressive Islamic thought, is a pivotal chapter of this dissertation and it aims to show the advantage of its premises over premises of the revivalistic discourse. Since this dissertation stresses the importance of the internal discourse among Muslims, this chapter shows why the progressive Islamic discourse is productive and fruitful for the dialogue and open exchange. The seventh chapter, titled Conclusion, summarizes what has been stated through previous chapters, especially within the internal discourse among Muslims, which is essential if Muslims want to establish a dialogue with others.
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