The Enforcement of Human Rights Through Implementing of The Sharia (original) (raw)
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Undoubtedly, the international human rights movements is one of numerous human advancements and achievements of the modern period that have challenged Muslims and the Islamic world. Almost too much has been said and written as to whether the classical tools of traditional islamic jurisprudence has sufficient potential to come to terms with contemporary human rights norms. When discussing the traditional islamic legal discourse on human rights and its relationship with modern legal philosophy, a perennial problem re- enters the field of discussion, that I characterise as non-complementary paradigms. Similar to the non-complementarity between Newtonian Physics and Quantum Mechanics (both using a different language to depict the world and working at a certain level), modern judicial interpretation and legal philosophy on the one side and traditional Islam on the other make use of different languages based on different underlying presumptions, propositions,underpinnings,principles,theoretical bases and ontological and epistemological frameworks. While taking this fact into consideration, I still believe a harmonisation between the two is possible. The paradox between strict universalism and cultural relativism - the former running the danger of imposing a western-centred notion of human rights that is often perceived by former colonies as a new form of cultural colonialism and the latter being susceptible for being abused and rationalised for obvious human rights violations and repressive policies - needs to be overcome by acknowledging cultural diversity and embracing an inclusive multicultural interpretation of human rights principles and a distribution of normative and interpretative authority among different cultures and civilisations. Islam, as one of the major civilisations of the modern world, can therefore as a matter of fact not be excluded from - even needs to be welcomed into - this process of interpretation, as is the case for all other cultures and civilisations world-wide. Contrary to the reformist approaches of thinkers such as Kadivar or Khaled Abou el Fadl, I advocate an approach that is more grounded in traditional jurisprudence. While I genuinely appreciate reformist works and sincerely believe that they inspire and offer new frameworks for heated theoretical discussion, I believe that any attempt to reconcile or harmonise Islamic Law with modern human rights norms will be in need of an Islamic jurisprudential legitimacy and textual support in order to be to be heard and acknowledged by traditional mainstream circles, and to be a stimulator for change and transformation instead of limiting its impact to the bookshelf. All tools available in fiqh that have the potential to overcome possible clashes should be utilised and exhausted. Utilising the the traditional doctrines and tools of maqasid and maslahah (the commonweal of the community or society) effectively on the side of Islamic Law and the tool of ‘margin of appreciation’ on the side of human rights will therefore help to establish a more harmonist approach towards the issue. I will try to demonstrate through a critical evaluation of different theoretical perspectives why I adopt this position. For this, I have selected two provisions of the ICCPR: Article 7 (Prohibition of torture or cruel, in- human or degrading treatment or punishment) and Article 18 (Freedom of Thought, Conscience and Religion). Due to the breathtaking amount of literature on these two particular rights, I will only highlight those contributions that to my assessment need to be contemplated on more intensely, instead of merely repeating what has already been said.
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