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HUMAN RIGHTS. The term “human rights,” or huquq al-insan in Arabic, has only recently come into common use, as have the analogous terms huquq-i insan in Persian and insan hukuklart in Turkish.

Early Reception. Concepts analogous to human rights have certain precursors in the Islamic heritage of philosophy and theology, but human rights lack precise equivalents in medieval figh (jurisprudence). In figh the category hagq al-`abd, the right of the individual Muslim, was used to distinguish cases in which legal actions against a wrongdoer were left to the discretion of the injured party or parties from other cases belonging to the category of the right of God, haqq Allah, in which prosecution was mandatory and was to be undertaken by the government. One settled fiqh principle corresponding to a modern right was the right of the owners of property to seek legal relief against interference with their property.

Rather than constructing doctrines or proposing institutions designed to curb the powers of the ruler or to protect the individual from the ruler’s oppression, Islamic legal thought long concentrated on defining the theoretical duties of believers, including rulers, vis-a-vis God. According to the prevailing perspective, rulers had the obligation to rule according to shari `ah law; their subjects were to obey them unless ordered to do something constituting a sin. The development of institutions that could place real curbs on rulers’ despotism or make them accountable to those they ruled was neglected; rebellion was commonly proposed as the remedy for tyranny.

To deal with the practical problems of protecting rights and freedoms, Muslim intellectuals and statesmen began to adopt the principles of European constitutionalism in the nineteenth century. In the latter half of the twentieth century, after the common acceptance of the principles of constitutionalism, the related question of the compatibility of international human-rights principles with Islamic doctrine was raised.

The strongest influences on Muslims’ ideas came from French concepts and legal principles developed during the Enlightenment and the French Revolution. These included the first great statement of modern human rights, the 1789 Declaration des Droits de l’Homme etdu Citoyen, and the 1 791 French Constitution, as well as concepts of public liberties. In the areas of the Muslim world ruled byBritain, which lacked a written constitution expressly guaranteeing specified rights, the models were democratic freedoms as developed in the common law tradition andBritain’s system of parliamentary government.

Many nineteenth-century officials, diplomats, and writers from Muslim countries played roles in disseminating European ideas of constitutionalism and public liberties. They included the Egyptian Shaykh Rifa’ah Rafi` al-Tahtawi (1801-187I), an al-Azhar scholar who studied French legal and political institutions inParisfrom 1826 to 1831. He prepared a report on concepts of political rights, the rule of law, liberty, equality, and the ideas of the Enlightenment, and translated the French constitution into Arabic; in 1839 his report was translated into Turkish. The Persian diplomat Mirza Malkom Khan (1833-1908), who was educated inParisand had lived inTurkey, later becoming Persian ambassador toGreat Britain, wrote extensively on European concepts of government, the rule of law, and liberty, claiming that these could be reconciled with Islam. In the Ottoman realm the literary figure Namik Kemal (18401888) was prominent in disseminating ideas of rights and freedoms and the notion of their compatibility with Islam. [See the biographies of Malkom Khan and Kemal. ]

Constitutionalism and Rights. In the nineteenth century early clashes between inherited Islamic doctrines and modern norms regarding rights came on the question of the equality of Muslims and non-Muslims before the law. The issue was joined as European powers pressed for the elimination of the disabilities traditionally placed on non-Muslims.

A fundamental pact announced in Tunisia in 1857 under European pressure guaranteed equality for all before the law and in taxation as well as complete security for all inhabitants irrespective of religion, nationality, or race.Tunisiawas the first Muslim country to promulgate a constitution, doing so in 1861 and affirming the rights established in the pact; however, the constitution was suspended by the French Protectorate (iMI-1956). InTunisiaas in many other Muslim countries, the independence struggle against European domination accentuated people’s consciousness of the importance of rights and democratic freedoms. After independence the 1956 Tunisian Constitution stated that the republican form of government was the best guarantee of “human rights.”

The most important early reforms in the direction of realizing rights were undertaken in theOttoman Empire, which had many non-Muslim subjects and which, owing to its military and economic vulnerability, was also exposed to pressures from European powers. The hatt-i serif of 1839, reinforced by the hatt-i humayun of 1856, was part of a series of modernizing reforms in the Tanzimat period that aimed to establish the security of life, honor, and property, fair and public trials, and equality before the law for all Ottoman subjects irrespective of religion. The principle of nondiscrimination based on language and race was added by the hatt-i humayun. In 1840 the new penal code affirmed the equality of all Ottoman subjects before the law. [See Tanzimat.]

By mid-century reformist pressures prompted the adoption of the 1876 Ottoman Constitution, which contained a section on hukuk-i umumiye, or public liberties, of Ottoman subjects, providing for equality regardless of religion, free exercise of religions other than Islam and freedom of worship, inviolability of personal freedom, and guarantees against arbitrary intrusions, extortion, arrest, or other unlawful violations of person, residence, or property. There were also provisions for freedom of the press, association, and education. This constitution was suspended in practice and not revived until after the Young Turk Revolution in 1908, a central goal of which was reviving the constitution and establishing the equality of all Ottoman citizens. The Young Turks’ reforms expanded constitutional rights protections, prohibited arrests and searches except by established legal procedures, abolished special or extraordinary courts, and guaranteed press freedom.Turkey’s second republic saw in 1961 the promulgation of a constitution that undertook in its preamble to ensure and guarantee “human rights and liberties” and made men and women equal (Article 12). In the area of free exercise of religion, conditions were imposed to safeguard the policy of secularism adopted by Mustafa Kemal Ataturk (1881-1938), the first president of theTurkishRepublic. Article 2 of the 1982 Turkish Constitution proclaimedTurkeyto be a law-state that respects human rights.

In Republican Turkey the energetic pursuit of Kemalist secularism, beginning in 1925, led to the repression of various Islamic groups, especially dervish orders. In Soviet Central Asia the atheistic policies of theSoviet Unioncurbed the religious freedoms of the Muslim population until the collapse of the Soviet state in 1991. Suppression of Islam and denials of religious freedom also occurred under the Marxist regimes that ruledAlbaniafrom 1945 to 1 99 1 andAfghanistanfrom 1978 to 1992. Elsewhere in the twentieth century regimes with secular orientations often indulged in harsh persecutions of Islamic fundamentalists.

Popular agitation against the despotism of the Qajar shahs culminated inPersia’s first constitution in 19061907.Persia’s Shi`i clerics were divided about the religious legitimacy of constitutionalism and its attendant rights provisions. The Supplementary Constitutional Law of 1907 included Islamic qualifications of two rights provisions: publications were said to be free except where heretical or harmful to Islam (Article 20); and the study and teaching of science, education, and art were to be free except as prohibited by religious law (Article 18). Moreover, ministers in the government were required to be Persian Muslims (Article 58). However, the country’s inhabitants were to enjoy equal rights before the law (Article 8).

After the 1978-1979 Islamic Revolution inIran, official spokesmen invoked Islam as the reason for the clerical regime’s hostility to international human rights, which they often dismissed as products of an alien, Western cultural tradition; however,Irandid not repudiate its ratification of the International Covenant on Civil and Political Rights. The 1979 Iranian Constitution in Article 2o expressly provided that all citizens enjoyed human, political, economic, social, and cultural rights according to Islamic standards; Article 4 provided that Islamic principles prevailed over those in the constitution. Notwithstanding the reference in Article 20 to economic, social, and cultural rights, the concern seemed to be with using Islamic criteria to curb civil and political rights-many of the latter being expressly limited by Islamic criteria (see Articles 21, 24, 26, 27, 28, and 168). The limitations placed on human rights correlated with the policies ofIran’s clerical leadership after 1979. The principle of equality and equal protection for women and religious minorities was breached in many ways. In the name of implementing Islamic criminal justice, the regime ignored principles of criminal procedure designed to protect the rights of the accused both before and during trial, as well as prohibitions of cruel and inhuman punishment. Religious minorities and individuals and groups opposed to clerical rule or the regime’s religious ideology were excluded from the political process and were often subjected to harsh persecution.

Islamic and Western concepts were combined in the Afghan Constitution produced between 1921 and 1924. For example, all inhabitants were to be equal before the government without distinction of religion and sect, and it was provided that all Afghans would be equal before the shari`ah and the laws of the state. Nonetheless, Hindus and Jews (the only recognized non-Muslim communities) were required to pay the jizyah, the poll-tax traditionally imposed on dhimmis (protected non-Muslims), and to wear distinctive emblems. [See Dhimmi; Jizyah.]

By the end of the twentieth century all Muslim countries had adopted constitutions containing some or all of the rights principles set forth in international humanrights law. The 1989 Algerian Constitution was noteworthy for its guarantee of equality before the law regardless of gender (Article 28), fundamental liberties and human rights (Article 31), and human-rights advocacy (Article 32). Like most Muslim countries, however,Algeriaretained Islamic personal-status rules and constitutional provisions according Islam a privileged status, perpetuating the ambiguous relationship between religious and constitutional norms.

Fiqh survived longest as the official law of the land inSaudi Arabia. However, changes inaugurated in 1992 suggested that the country might be moving gradually toward a governmental system that would accord at least limited recognition to rights and constitutionalism-albeit subject to Islamic criteria. The principle that Islam entails limits on human rights was adopted in the Basic Law of Government promulgated by the Saudi Arabian regime in 1992; Article 26 provided that “the state protects human rights in accordance with the Islamic shari’ah.” What the shari’ah limits on rights would entail was not defined. The basic law provided for many citizen entitlements in the area of social welfare, but only a few rights in the political or civil area were recognized. These included the provision that no one should be arrested, imprisoned, or have his actions restricted except as provided by law (Article 36); that homes should not be entered or searched save in cases specified by statutes (Article 37); that communications should not be confiscated, delayed, read, or listened to except in cases defined by statutes (Article 40); and that private property must be protected and could only be taken for the public interest and with fair compensation (Article 17).

Women’s Rights. One of the areas where the clash between inherited Islamic principles and international human-rights norms was most acute was that of women’s rights. Although conservatives propounded the notion that full equality for women violated Islamic precepts, feminists argued that it was patriarchal attitudes and inadequate study of the Islamic sources that led to the notion that Islam required keeping women in a subordinate position.

Already in the late nineteenth century liberal writers like the Egyptian Qasin Amin (1865-1908) had propounded the thesis that certain problems facing Middle Eastern societies-despotism, moral degeneration, and the degraded status of women-were not intrinsic to Islam but were the products of corrupting influences and social customs. While not advocating full equality for women, Amin demanded that women’s rights should be enhanced. He also linked the cause of women’s freedom to the realization of freedom and rights for citizens in general. Feminists such as the Egyptian Huda Sha’rawi (1882-1947) became prominent advocates of women’s rights and emancipation. One of the boldest attempts to reconcile Islam with full equality for women was offered by al-Tahir al-Haddad, a Tunisian graduate of alZaytunah, who in 1930 published Imra’atund fi alshari’ah wa al-mujtama` (Our Woman in the Shari ah and Society), which propounded the idea that Islam had envisaged a progressive emancipation of women; he advocated the reform of Islamic laws to eliminate obstacles to male-female equality in the domestic as well as the public sphere. For the boldness of its thesis the book was condemned with particular vehemence by conservatives and its author denounced as a heretic.

Unequivocal support for full equality for women came from Kemal Ataturk, who in the wake of the Turkish war of independence proclaimed that women had the right to be equal; he subsequently took measures to remove the disabilities imposed by Turkish custom and Islamic law-without attempting to reconcile his reforms with Islamic precepts. In the Arab world, the most dramatic reform was embodied in the Tunisian Law of Personal Status of 1956 promulgated by President Habib Bourguiba. Presented as an Islamic law, the code undertook bold reforms improving women’s status, such as abolishing polygamy and establishing equal rights for men and women in divorce.

Into the late twentieth century Muslim countries preserved laws that discriminated against women and denied them full civil and political rights, often in the face of constitutional provisions mandating the equality of all citizens. In general, laws afforded women considerable equality outside the family; it was in the area of personal status that discriminatory features taken from fiqh were retained.Saudi Arabiawas notable for its reliance on Islam to justify its refusal to grant women rights and freedoms widely enjoyed elsewhere in the Muslim world.

Few Muslim countries ratified the 1979 Convention on the Elimination of All Forms of Discrimination Against Women, and those that chose to ratify did so subject to reservations regarding various central provisions. The reservations made byBangladesh,Egypt,Libya, andTunisiawere specifically justified by their need to adhere to Islamic law. [See also Feminism; Women’s Movements.]

Human Rights Movements. Independent, nongovernmental organizations founded for the defense of human rights have spearheaded campaigns to improve respect for human rights in Muslim countries. One of the earliest Muslim human-rights organizations was established by Moroccans in December 1933 in the Spanishcontrolled enclave of Tetouan as an affiliate of a Spanish human-rights organization. A human-rights group with Islamic affiliations, the Iranian Committee for the Defense of Freedom and Human Rights, was formed with the participation of several religious figures; it aimed primarily at achieving democratization and the elimination of torture and in camera political trials. A central participant was Mehdi Bazargan (b. 1907), a proponent of Islamic liberalism who went on to becomeIran’s first prime minister immediately after the Islamic Revolution. He and his associates later suffered persecution when their stance on human rights put them at odds with the clerical regime. Human-rights organizations in which educated professionals were prominent proliferated throughout the Muslim world in the 1980s in the face of daunting obstacles and dangers. One of the most important was the Arab Organization for Human Rights, which, like the overwhelming majority of independent human-rights organizations, espoused the human-rights standards set forth in international law. These organizations collaborated with international human-rights organizations.

Muslim States and International Human-rights Law. It was in the aftermath of World War 11 that the modern international formulations of human rights were produced, setting standards that became incorporated in public international law. Muslim countries were among the founding members of the United Nations, whose 1945 Charter called for respect for human rights and fundamental freedoms; all Muslim countries eventually joined the UN. Aspects of the Universal Declaration of Human Rights passed by the General Assembly in 1948 provoked criticism from representatives of Muslim countries, although in the end onlySaudi Arabia failed to support its passage. Muslim nations differed greatly in their willingness to ratify the human-rights conventions subsequently drafted under UN auspices. Muslims sometimes charged that international rights norms had a Western or Judeo-Christian bias that precluded their acceptance in Muslim milieus. In terms of the compatibility of international rights norms and Islamic law, the alleged conflicts centered around civil and political rights; problems of the compatibility of Islam with economic, social, and cultural rights were rarely raised. The principles of freedom of religion-notably the right to convert from Islam to another faith-and the full equality of persons regardless of sex or religion seemed to pose particular problems.

The Charter of the Organization of the Islamic Conference (OIC), an international organization founded in 1973 to which all Muslim countries belong, indicated in its preamble that the members were “reaffirming their commitment to the UN Charter and fundamental human rights.” In 1990, however, the OIC issued the Cairo Declaration on Human Rights in Islam, which diverged significantly from international human-rights standards; it was not made clear how this declaration was to be reconciled with the conflicting obligations undertaken by OIC members in ratifying international human-rights covenants or in their individual constitutional rights provisions, which in many cases corresponded to the international norms.

Like the many other self-proclaimed “Islamic” human-rights schemes that proliferated from the 1960s onward, the OIC declaration extensively borrowed terms and concepts from the International Bill of Human Rights, presenting a hybrid mixture of elements taken from Islamic and international law. The OIC Declaration asserted that “fundamental rights and universal freedoms in Islam are an integral part of the Islamic religion,” but then proceeded to insert “Islamic” qualifications and conditions on the rights and freedoms guaranteed under international law-in conflict with international human-rights theory, which does not permit religious criteria to override rights. Representative provisions included the rule in Article 24 that all the rights and freedoms stipulated in the declaration were subject to the sharri `ah, without defining what limits this would entail.

There was no provision for equal rights for all persons regardless of sex or religion. Instead, Article i stated that “all human beings are equal in terms of basic human dignity and basic obligations and responsibilities [not “rights”], without any discrimination on the grounds of race, color, language, sex, religious belief, political affiliation, social status or other considerations.” Article 6 further provided that “woman is equal to man in human dignity” [not “rights”], but it imposed on the husband the responsibility for the support and welfare of the family. In contrast, Article 13 provided that men and women were entitled to fair wages “without discrimination.” Article 5 provided that on the right to marry there should be “no restrictions stemming from race, color or nationality,” but did not prohibit restrictions based on religion.

The provisions regarding religion did not aim at neutrality: Article io stated that Islam was the religion of unspoiled nature and prohibited “any form of compulsion on man or to exploit his poverty or ignorance in order to convert him to another religion or to atheism.” Article 9 called for the state to ensure the means to acquire education “so as to enable man to be acquainted with the religion of Islam.” The favored treatment of Islam carried over to freedom of speech, with Article 22(a) stating that expressing opinion freely was allowed “in such manner as would not be contrary to the principles of the shari`ah.” Article 22(c) barred the exploitation or misuse of information “in such a way as may violate sanctities and the dignity of Prophets, undermine moral and ethical values or disintegrate, corrupt or harm society or Weaken its faith.” Article 18 stipulated a right to privacy in the conduct of private affairs, in the home, in the family, and regarding property and relationships. Article 15 set forth “rights of ownership” to “property acquired in a legitimate way, barring expropriation except for the public interest and upon payment of immediate and fair compensation.”

Noteworthy by their absence were provisions calling for the observance of democratic principles in political systems and guarantees of freedom of religion, freedom of association, freedom of the press, and equality and equal protection of the law. Although torture was prohibited in Article 20, there were no provisions explicitly endorsing international rights norms in the area of criminal procedure-only the vague assurance in Article 19 that the defendant would be entitled to “a fair trial in which he shall be given all the guarantees of defense.” Since Article 25 stated that the shari `ah “is the only source of reference or the explanation or clarification of any of the articles of this Declaration,” the possibility was left open that a trial would be deemed “fair” as long as it was conducted in conformity with shari`ah norms, which were historically underdeveloped in the area of criminal procedure. There was no principle of legality per se; the provision in Article i9 that there should be no crime or punishment except as provided for in the shari `ah seemed to open the door to the application of ta`zir (discretionary) penalties, as well as rules regarding hadd crimes. Article 2 prohibited taking away life except for a reason prescribed by the shari`ah. Reflecting the third-world setting in which Muslim nations elaborate their positions on rights, Article I I prohibited colonialism and stated that “peoples suffering from colonialism have the full right to freedom and self-determination.” In sum, the OIC Declaration suggested that the official approach of Muslim countries to civil and political rights was distinguishable from that of non-Muslim countries by reason of their reliance on shari`ah rules. [See Organization of the Islamic Conference.]

Governments and individuals throughout the Muslim world continue to take many positions on human rights that are by self-designation “Islamic.” Given the variety of approaches and principles involved, it is evident that Muslim opinion remains divided on the relationship between international human-rights principles and the Islamic legal heritage, and on the compatibility of the two.

[See also International Law; Law, article on Modern Legal Reform; Modernism; and Women and Social Reform.]

BIBLIOGRAPHY

Blaustein, A. P., and G. H. Flanz, eds. Constitutions of the Countries of the World.Dobbs Ferry,N.Y., 1971-. Regularly updated collection, often with valuable historical essays, that includes constitutions from all Muslim countries.

Coulson, Noel J. “The State and the Individual in Islamic Law.” International and Comparative Law Quarterly 6 (1957): 49-6o. Examination of the relevant premodern jurisprudence.

Dwyer, Kevin. Arab Voices: The Human Rights Debate in theMiddle East.Berkeley, 1991. Interviews and accounts of differing points of view.

Hairi, Abdul-Hadi. Shi’ism and Constitutionalism inIran.Leiden, 1977. Scholarly examination of the early response of Iranian intellectuals and clerics to constitutionalism and related rights concepts.

Hourani, Albert. Arabic Thought in the Liberal Age, 1798-1939.London, 1962. Sensitive, thoughtful survey of early liberal currents in Arab thought.

Lewis, Bernard, et al. “Duster.” In Encyclopaedia of Islam, new ed., Vol. 2, pp. 638-677.Leiden, 1960-. Scholarly surveys of the history of constitutionalism in several Muslim countries.

Lewis, Bernard. The Emergence of ModernTurkey. 2d ed.LondonandNew York, 1968. Classic history that examines the spread of modern political ideas in the lateOttoman Empireand early Turkish republic.

Mayer, Ann. Islam and Human Rights: Tradition and Politics.Boulder, 1991. Critical comparison of selected Islamic versions of civil and political rights with their international counterparts.

An-Na’im, Abdullahi Ahmed. Toward an Islamic Reformation: Civil Liberties, Human Rights, and International Law.Syracuse,N.Y., 1990. Original perspectives from a Sudanese specialist in public and international law.

Nashat, Guity, ed. Women and Revolution inIran.Boulder, 1983. Essays written from a variety of perspectives on the status of women in postrevolutionaryIran.

Rosenthal, Franz. The Muslim Concept of Freedom Prior to the Nineteenth Century.Leiden, 196o. Learned exposition of relevant texts.

Relevant articles may be found in journals such as Human Rights Quarterly and Index on Censorship, and information is regularly compiled, analyzed, and published by human rights groups such as Amnesty International, the Lawyers Committee for Human Rights, Africa Watch, Asia Watch, and Middle East Watch.

ANN ELIZABETH MAYER

Azhar Niaz Article's Source: http://islamicus.org/human-rights/
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