Human Rights and Islamic Law
Are They Compatible?

By Dina Ibrahim

Interview with Ann Elizabeth Mayer, Associate Professor of Legal Studies at the Wharton School at the University of Pennsylvania. Professor Mayer is an expert on both Islamic and Human Rights Law and is the author of Islam and Human Rights, published by Westview Press, 1998. The interview is in edited form.

1. How compatible do you think Islamic Law, or Shariah, is with the Western interpretation of "human rights’?

In speaking of human rights, the most appropriate starting point is international human rights law. This is a law made at the United Nations with international participation and with universalist aspirations. It challenges ingrained traditions and local particularisms at variance with human rights standards whether these are Western or non-Western. For example, it is against racism and racial discrimination, which would not be what one would expect if it were strongly influenced by the culture of the United States. After all, in 1948, when the Universal Declaration of Human Rights was formulated, the US was still a society pervaded by racism and living under laws imposing racial discrimination and segregation.

International human rights law is not tied to peculiar Western values. People from various parts of the world had input into the Universal Declaration of Human Rights and in the formulation of subsequent treaties and conventions dealing with human rights. Obviously, this law has many antecedents in Western intellectual history, but accepting its principles does not mean an endorsement of Western civilization.

As a non-Muslim, I do not pretend to know what should be deemed as the ‘purest’ version of shari‘a or what constitute the definitive Islamic doctrines in the area of human rights. I look at what Muslims say, and on matters relating to human rights I observe that there is nothing like an Islamic consensus. There is no one authoritative version of Islamic law that can be said to qualify in all Muslims’ eyes as the correct form of shari‘a, only competing interpretations of Islamic requirements. Some are compatible with human rights and some are not. Of course, in Islam, the foundation of everything must lie in the Qur’an. However, we know that from the death of the Prophet Muhammad onward, Muslims have disagreed over the implications of the Qur’an. So, even this foundational document is contested.

2. What about modern interpretations of Islamic Law? Are they any more compatible with the notion of human rights?

They vary enormously, as current developments show. At one extreme, we see the Taleban in Afghanistan telling us that Islamic law requires the most repressive and cruel abuses: stoning adulterers, flogging any woman caught without being swathed in a concealing burqa, depriving girls of all education, and precluding women from obtaining health care or working outside the home, etc. At the other extreme, we have Muslim human rights activists who see human rights as natural outflowings of the teachings of the Qur’an and who support human rights as complementary to their Islamic faith.

The most important developments recently have consisted of challenges to the authority of the medieval jurists, combined with a return to the text of the Qur’an and the example of the Prophet as the true sources of Islamic law, and the growth of new interpretations of Islamic requirements by Muslim women and enlightened scholars. Much of what seems reactionary in Islamic law can be attributed to the monopoly that the medieval jurists formerly exercised over the interpretation of the sources.

Now that we have Muslims with new perspectives contributing to the understanding of Islam, new dimensions of the Islamic heritage are being highlighted, many of which point to compatibility between Islamic law and human rights. In particular, feminist interpretations are showing that there is much in the sources that supports the notion that Muslim women were intended to be equal with their male coreligionists. These feminists have tended to argue that the medieval jurists were strongly influenced by patriarchal traditions when they interpreted the Islamic sources and that they thereby corrupted the original egalitarian message of Islam.

3. How would you compare forms of laws that deal with human rights, like the American Constitution, for example, with Islamic Law’s interpretation?

International human rights law is at odds with all local particularisms, which means that conservative legal traditions like that of the United States have great difficulties coming to terms with international human rights law. This is why the US often winds up in the same group as Muslim countries who oppose aspects of international human rights law. Like many conservative Muslim countries, the US hesitates to ratify human rights conventions, and, when it does, it imposes many reservations.

The US treats the US Constitution as superior to international human rights law and does not accept that it needs to adjust its law to meet international standards. That is why the US makes so many constitutionally-based reservations to the human rights treaties that it has ratified, so its law will stay the same even after ratification.

Moreover, one reason why the US has never been able to come to terms with the Women’s Convention is that the Equal Rights Amendment to the Constitution was defeated in 1982. The Women’s Convention would have required the US to accept the principle of women’s equality and to adopt a constitutional principle upholding equality for women, something that the US is still unprepared to do. This is how the US winds up in the company of a group of conservative Muslim countries that have likewise rejected the Women’s Convention. These Muslim countries, which include Afghanistan, Iran, and Saudi Arabia, would say that, in refusing to accept women’s equality as provided in international law, they are upholding the supremacy of Islamic law. One can see how saying that Islamic law overrides international human rights law can have the same consequences as upholding constitutional supremacy at the expense of human rights.

4. When speaking of human rights in the Middle East and North Africa, two issues tend to be the most pertinent, and often most controversial: women and minorities. What are some of the main points Islamic Law stipulates about these issues?

Muslims differ widely in their interpretations of Islamic law and on the question of whether women and minorities can be afforded equality under Islamic law. That is, here, as elsewhere, there is no consensus among contemporary Muslims about what Islamic law requires. By and large, Muslims seem to be coming to terms with the idea that women should enjoy at least approximate equality with men in areas like employment, government service, and education, but there is resistance to accepting the idea that the traditional rules of Islamic family law should be reformed. There are Muslims who believe that women are meant to be equal partners in the family and others who think they have been assigned different, complementary roles, so that it is natural that men have superior rights within the family. According to the latter position, men are the masters and women the dependents, being subject to male authority and discipline.

Some Muslims see the introduction of the nation-state (now ubiquitous in the Muslim world but unknown in traditional Islamic jurisprudence) as entailing the adoption of modern notions of citizenship, in which religious distinctions should become immaterial. Others remain convinced that non-Muslims in Muslim countries must be excluded from high governmental positions and the military and that rules discriminating against them in matters like marriage, court testimony, and taxation remain valid.

5. How have recent governments in the Middle East and/or North Africa dealt with implementing laws protecting human rights for minorities and women?

The countries that have moved farthest in the direction of accommodating human rights for women are Turkey and Tunisia. Unfortunately, both of these have problematic human rights records. Turkey, although in a large measure democratic, has a poor human rights record in many respects. Among other things, the Kurdish minority is harshly repressed, and supporters of the Islamist movement find themselves targets of prosecution. Tunisia, currently ruled by the Ben Ali dictatorship, is a repressive police state, where torture and imprisonment of opponents or critics of the regime are common. Islamist groups are especially targeted. In neither country can Islamic law be blamed for the human rights violations.

In contrast, one can see the example of Iran, where the official Islamic ideology mandates discrimination against both women and minorities. (Interestingly, Iran is extremely embarrassed when this is pointed out and now tries to convince the international community that its Islamic ideology accords good treatment for women and minorities.) Iranian women are subject to various forms of discrimination and are denied equality with men under the rubric of applying Islamic law. Iran tries to rationalize requirements like wearing the veil by pretending that this is exclusively voluntary, when in reality women are harshly punished under its criminal law if they fail to conform to Islamic dress rules. Religious minorities suffer discrimination and even persecution - again, under the rubric of applying Islamic law.

6. Are there misunderstandings about the way Islamic Law interprets human rights that should be clarified?

The single greatest misconception is that Islam is a monolith and that there exists one authoritative version of Islamic law that dictates how Muslims respond to human rights issues. Another tendency is to take government statements about Islam at face value instead of evaluating them critically. Thus, for example, when Iran said that Rushdie was to be executed for writing The Satanic Verses, this was often taken as representing an Islamic position, when, in reality, it was only the position of the government of Iran at a certain moment in time.

7. And finally, what is your vision of the future of human rights activity in the Middle East and North Africa?

Human rights NGOs [Non-governmental organizations] in Muslim countries are struggling valiantly to advance the cause of human rights, and they should be able to make more progress, since human rights law addresses precisely the kinds of repression, abuses, deprivations, and discrimination from which people in Muslim countries are suffering. However, the really blatant double standards that have been employed by powerful Western countries, notably the United States, in applying human rights standards to countries in the region have tended to discredit human rights. These double standards make it possible for opponents of human rights to charge that human rights are nothing more than tools of the hegemonic agendas of countries like the US.

It will be ironic if a country like the US, which so loudly professes its commitment to human rights, succeeds by virtue of its inconsistent and uneven policies on human rights matters in discrediting human rights in the Middle East and North Africa.