SHARI'A AND BASIC HUMAN RIGHTS CONCERNS

 

Some of the issues discussed in Chapter 4 dan 5 in relation to constitutionalism dan criminal justice can be seen as issues of human right in teh domestic context of the modern nation-state. In that context, however, they are commonly known as fundamental constitutuibak right. As used in this chapter, the term human right refers to those rights recognized by and promoted through international law dan institutions. Thus, although fundamental constitutional rights and international human rights are both concerned with the same type of claim or entitlement, the former deals with these claims and/or entitlements in the context of a domestic legal system while the latter deals with them in the context of the international legal system.

In accordance with the fundamental purpose of this book to enable muslim to exercise thier right to self determination without violating the rights of others to the same this chapter will attempt to identify areas of conflict between Shari'a and universal standards of human right and seek a reconciliation and positive relationship between the two system. The hypothesis of this chapter, like that of preceding chapters, is that if they implement historical Shari'a, Muslim cannot exercise thier right to self determination without violating the right of others. It is posible, however, to achieve a balance within the framework of islam as a whole by developing appropriate principles of modern Islamic public law.

Stating the objectives of the chapter in this way raises the initial question of the relevance of so-called universal human rights of Shari'a, or for that matter to Islam itself. Why should universal human rights be a criterion for judging Shari'a and an objective of modern Islamic public law?

 

 

 

 

 

 

 

 

UNIVERSALITY OF HUMAN RIGHTS

Article 1.3 of the Charter of the United Nations, qoute in chapter 6 above, imposes on all members of the United Nations the obligation to cooperate in promoting and ancouraging respect for human right and fundamental freedoms for all without distinction as to rase, sex (gender), language, or religion. But the charter did not define the term human rights dan fundamental freedoms. That task was undertaken by the United Nations in a series of declarations, conventions, and covenants drafted and adopted since 1948. The U.N. human rights documents and regional documents of Europe, the Americas, and Africa all have teh same premise - that there shall be universal standards of human right which must be observed by all countries of the world, or countries of the region in the case of regional documents.

There is some debate as to the genuine universality of same of these standards, and there are some serious problem of enforcement. This does not mean, however, that there are no universal and binding standards or that enforcement efforts should be abandoned. The position adopted here is that there are certain universal standards of human rights which are binding under international law and that every effort should ba made to enforce them in practice. Thus the principle of respect for and protection of human rigth has been described as jus cogens, that ism such a fundamental principle of international law that states may not repudiate by their agreement. This would, of course, be true of respect for and protection of human rights in principle. It is easier to give examples of human right of this stature, such as the prohibition of genocide ans slavery, than to define the concept in a categorical fashion. Nevertheless, such a definition, or at least a critetion by which human rights may be identified, will be attempted below.

The main difficulty with working to establis universal standards across cultural, and particularly religious, boundaries is that each tradition has its own internal frame of reference because each tradition derives the validity of its precepts and norms form its own sources. If a cultural, especially religious, tradition relates to other traditions at all, it is likely to do so in a negative and perhaps even hostile way. To claim the loyalty and conformity of its members, a cultural or relegious tradition would normally assert its own superiority over other traditions.

Nevertheless, there is a common normative principle shared by all the major cultural traditions which, if construed in a enlinghtened manner, is capable of sustaining universal standards of human rights. That is the principle that one should treat other people as he or she wishes to be treated by them. This golden rule, referred to earlier as the principle of reciprocity, is shared by all the major religious traditions of the world. Moreover, the moral and logical force of this simple proposition can easily be appreciated by all human beings of whatever cultueal tradition or philosophical persuasion.

It is not easy to place oneself in the exact position of another person especially if that orther person is of a different gender or relegious belief. The purpose of the principle of reciprocity, as applied to the present argument, is that one should try to achieve the closest possible approximation to placing oneself in the position of the other person. Assuming that one is in the exact position of the other person in all material respects, including gender and religious belief or other convictions, what basic human right would one deman?

It should be amphasized that reciprocity is mutual so that when one identifies with another person, one would ascribe equavalent reciprocity to the belief system of the other person. Thus, when person X accepts the status or belief of person Y would demand for himself, X would assume that Y accepts the same principle of reciprocity toward X by conceding to X the same right he would demand for himself. In other word, X should not be entitled to deny Y's right on the grounds that Y is unlikely to afford X the same right because Y's belief system does not impose that obligation upon Y. If Y's belief system in fact fails to accord X the same right, the answer would be for X to insist on reciprocity from Y rather than abdicate his obligatiob to afford Y the same rigth he would claim for himself.

The problem with using the principle of reciprocity in this context is the tendency of cultural, and particularly relegious, traditions to restrict the application of the principle to other members of its cultural or religioys tradition, if not to a certain group within the given tradition. The historical conception of the principle of reciprocity under Shari'a did not apply to women and non-Muslim to the same extent that it applied to Muslim men. In other words, by granting women and non-Muslims a lower status and sanctioning discriminatory treatment against them, Shari'a denies women dan non-Muslim the same degree of honor and human dignity it guarantees to Muslim men.

This general problem will have to be addressed within each cultural tradition. It the case of Islam, for example, one must be able to establis a technique for reinterpreting the basic source, the Qur'an dan Sunna, in a way would enable us to remove the basis discrimination against women and Non-Muslim. The technique I find most promising has already been explained in Chapter 3 and applied to questions of constitutionalism, criminal justice, and international relations. In the remainder of this chapter, I hope to explain the inadequacy of Shari'a as a basis for human right in the Muslim context and propose an alternative Islamic foundation for universal human rights.

Without going into the details of arguments that may be too closely identified with a particular cultural tradition, one can make the following basic transcultural justification for universal standards of human right. The criteria I would adopt for identifying universal human rights is that they are rights to which human beings are entitled by virtuae of being human. In other words, universal standards of human rights are, by definition, appreciated by a wide variety of cultural traditions because they pertain to the inherent dignity and well-being of human being, regardless of race, gener, language, or religion. It follows that the practical test by which these right should be identified is whether the right in question is claimed by the particular cultural tradition for its own members. Applying the principle of reciprocity among all human beings rather than just among the members of a particular group, I would argue that universal human rights are those which a cultural tradition would claim for its own members and must therefore concede to members of other traditions if it to expect reciprocal treatment from those others.

In content dan substance, I submint that universal human rights are based on the two primary forces that motivate all human behavior, the will to live and the will to be free. Through the will to live, human beings have always striven to secure their food, shelter, health, and all other means for the preservation of life. Moreover, people have always striven to improve the quality of their lives through the development and manupulastion of available distribution of wealth and power aming the members of the particular community. At one level, the will to ber free overlaps and to be secure in food, shelter, health, and other necessities of a good life. At another lever, the will to ber freee exceed the will to live in that it is the driving force behind the pursuit of spiritual, moral, dan artistic well-being and excellence.

The right to seek the satisfaction of the legitimate claims of these two forces is granted by every cultural tradition to its own members and must therefore, in accordance with the principle of refiprocity, be granted to the members of other traditions. This is, in my view, the basis of the universality of certain minimum human right. By Applying this simple criterion, we can identify those right, claims, and entitlements that ought to be protected as human right even if they are not identified as such by any formal document.

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