Does Regional Unenforcement of Human Rights in the Middle East Mean They Are Ineffective Without Force?

Kenneth Waltz is well known for describing inter-state relations as existing in “international anarchy.” Because of absence of any international enforcement mechanisms, states are constantly occupied with issues of security and territorial integrity. As such, Waltz’s world would never permit a regime of human rights which would offer external pressures that would require the sacrifice of realist ambitions. Nevertheless, what Waltz could never fathom is that human rights can have meaning in the world despite having no international enforcement. The history of human rights for the past 50 years has demonstrated the resilience of the human rights regime in providing safeguards against abuses. Henry Steiner demonstrated this cause by illustrating the growth of human rights in the conduct of warfare. As Steiner indicated, the modern world has seen a genuine concern of conducting warfare in line with internationally accepted rules of conduct compared to 50 years ago when such rules either were not in existence or simply regarded with little to no weight. Ultimately, however, the concept of human rights as an enforceable doctrine depends on the willingness of states to implement their ideals. Thus without a standard of enforcement for human rights, regional differences can serve as loopholes for human rights implementation as illustrated by the enforcement of specific human rights guarantees in the Middle East.

The human rights regime has meaning despite the lack of international enforcement because it develops a guideline by which states and constituents know how to act by. Despite the variety of reservations offered by states to human rights doctrines or the complete lack of respect offered to their provisions, the concept of human rights is enforced because the idea of which rights ought to be protected becomes developed into the social conscious. The development of the human rights regime depends in large part to its integration in societies and the mindset of peoples. In many parts of the world, the concept of rights are still absent in that they have not been articulated. Therefore, in the sense that rights have been documented and accepted, there is a standard of rights which states have taken upon themselves to protect. While states may not protect those rights initially, the concept of rights has steadily grown in the minds of individuals and has resulted in them demanding for the protection of those rights. Moreover, it has resulted in the integration of the human rights regime into cultural practices and philosophies. Thus, as Heiner Bielefeldt states, “an understanding of human rights that refers primarily to the Universal Declaration of Human Rights…is potentially open to a variety of different cultural interpretations” (Bielefeldt, p. 588).

Bielefeldt’s argument that Middle Eastern and Islamic culture are compatible to universal notions of human rights rests on the assumption that human rights, while Western in origin, are the product of rights found in all communities. The comment is in line with the International Court of Justice’s Chief Higgin’s belief that human rights are rights vested in all of us. Both viewpoints contend that cultural attributed must be protected with respect to human rights, not vice versa. Bielefeldt articulates the notion further:

“…universality of human rights does not mean the global imposition of a particular set of Western values, but instead, aims at the universal recognition of pluralism and difference--different religions, cultures, political convictions, ways of life--insofar as such difference expresses the unfathomable potential of human existence and the dignity of the person” (Bielefeldt, p. 594).

With respect to the Middle East, an analysis is best taken with respect to rights where divergences have been taken between the international rights regime and Middle Eastern states, namely on the status and rights of women.

While Islamic culture has done a great deal to reform the treatment of women, current practice by states subjects women in Islamic and Middle Eastern states to a variety of discriminatory practices. For example, inheritance laws, laws on public dress and morality, as well as social stigma surrounding women has overall led women to be subjected to restrictions on freedom, equality, freedom from personal harm and the right to health amongst others. Civil and political rights have also been denied to women whom find suffrage unavailable to them in states like Saudi Arabia. As a result of “cultural practices” many Middle Eastern states attach reservations to article and treaties on the rights of women. Most of these reservations take the form of Islamic conditions. That is reserving the right to deny any articles if they are considered incompatible with Shari’ah, however without defining what the scope of Islamic law is.

Nevertheless, one can trace reforms with respect to women’s rights to conclude that the status of women is gradually changing and progressing. Splits amongst Islamic and Middle Eastern thinkers demonstrate that there is no uniform method of analysis in Islamic thought. More importantly these splits illustrate how Islamic thought can be compatible with the international human rights regime. As Bielefedt articulates, “liberal Muslim reformers admit that in modern circumstances a normative consensus across cultural and religious boundaries is imperative to promote international peace and cooperation” (Bielefeldt, p. 606). The systemic growth of this thought is evidenced by the works of Abdullahi An-Na’im who develops a methodology based on the teaching of Mohamed Taha. Taha argued that because shari’ah was conditioned by the specific historical context of their interpretations, it was not immutable, unlike the Qur'an, which is immutable. Thus Taha established an “evolutionary principle”, where the Meccan portions of the Qur'an embody universal principles that emphasize human solidarity and the principle of justice for all whereas the Medinan sections of the Qur'an place solidarity of make Muslims above others. As such Taha believed that inherent contradictions can be rectified with the invalidation of Medinan sections whenever they contradict with Meccan verses.

More importantly, Taha and An-Na’ims demonstrate that reconciliation between shari’ah and human rights is conceivable. Improvements can be seen in Islamic states where, for example, “women's rights concerning divorce have improved, partly because the clauses and conditions included in marriage contracts can provide new criteria for suing the husband for judicial divorce” (Bielefeldt, p. 611). However, the example of Egypt reveals the regional norm in that liberal Islamic thought and activism is stifled by an authoritarian government. Neil Hicks argues:

“With the growth in public awareness of human rights in Egypt n the late eighties and early nineties, the political Islamic movement, in common with others in society, increasingly presented its demands and its criticisms of government policy in human rights terms.” (Hicks, p. 372)

However, in the pursuit of developing a common cause between Islamists and the human rights movement, the government began an aggressive campaign to hinder the movements which threatened the government’s monopoly over political power. What the Egyptian example importantly demonstrates though is not just how states react but more importantly how cultural institutions have adopted the human rights rhetoric. If anything, the example demonstrates the strength of human rights despite the lack of international enforcement. While the Egyptian government may be stifling the movement altogether, the movement exists and provides backing for human rights. In such cases, major reforms can and have been taken by the Egyptian government to come into line with human rights norms.

What this analysis demonstrates is that regional enforcement can be acceptable, as long as cultural attributes are progressive towards the protection of fundamental freedoms. Clearly there is a potential that exists within the Middle East that allows for international discourse on human rights with cross-cultural implications. This would also be the most desirable outcome in that it protects international human rights norms while encouraging religious and cultural integrity. Nevertheless, one cannot deny that an enforcement of human rights will necessitate substantial reforms to be taken on certain cultural practices not only in the Middle East but everywhere round the world. All the same, the most important thing is that dialogue exists. As Bielefeldt himself agrees, “We have to listen to the voices of the victims of human rights abuses and cultural imperialism” (Bielefeldt, p. 616). In a world where human rights have no international police force and international politics are dictated by Waltzian principles of realism, the human rights regime maintains the power of an idea and grows everyday as their principles are evoked across the globe. In the end it is that strength which will allow for a regime compatible with human rights norms but sensitive to cultural perceptions.

Comments

[Patrick S. O'Donnell]

This is a very interesting treatment and analysis, but I want to focus on one small but extremely important part, namely, the understanding of shari`ah as explicated by Mahmoud Mohamed Taha, at least according to the summary here. In so doing, I do not want to be understood as taking anything away from his exemplary religious commitments, personal courage and political activity. And I’m not going to say anything about his controversial Qur’anic exegesis, much of which I’m quite sympathetic to. Nor do I want to detract from the significance of Abdullah Ahmed An Na`im’s work on Islamic law, human rights and democratic principles.

What I would like to contend with is found in the following: ‘Taha argued that because shari`ah was conditioned by the specific historical context of their interpretations, it was not immutable, unlike the Qur'an, which is immutable.’ This way of talking about shari`ah strikes me as logically, conceptually, and theologically mistaken, in the first instance because, as Bernard Weiss says, ‘it is incorrect to equate Shari`a and law simpliciter as is often done,’ and to say that shari`ah is not immutable, is to conflate divine law with human law, the latter being properly characterized as ‘not immutable,’ while the former is, by definition, ‘immutable.’ As divine law or God’s will, shari`ah by definition may inform and inspire law, and is in fact indissolubly linked to law in Muslim thinking, but it is logically and conceptually distinct from law (fiqh), and this distinction is extremely crucial to a proper characterization of Islamic jurisprudence, let alone the meaning of God’s will in Islam.

First, consider the meaning of shari`ah in a general sense, inspired by its etymological meaning, which is ‘path to the water hole.’ Here, shari`ah ‘constitutes,’ in the words of Weiss, ‘an entire way of life. It embraces right ways of worshiping God, of interacting with fellow human beings, of conducting one’s personal life, even of thinking and believing.’ [See his book, The Spirit of Islamic Law, 1998] It is clear that this meaning of shari`ah cannot be wholly captured in propositional form, any more, say, than the meaning of ‘the Good’ in Plato’s work can be definitively expressed in propositional form, however much names, propositions and images may aid us in coming to understand what shari`ah in fact is for us. [For how this might compare to Platonic philosophy, see Francisco J. Gonzalez’s Dialectic and Dialogue: Plato’s Practice of Philosophical Inquiry, 1998] Given its divine origin and immutable character, human thought and language cannot definitively capture and articulate what sharia`ah once and for all is, for its essence, being God’s law, is eternal and perfect, while our endeavors to understand the divine law are necessarily fallible because human, and thus necessarily historically and socially conditioned. Hence it is fiqh, as human law inspired by the imperative to understand divine law that is not ‘immutable.’ Thus explained, we can preserve the logical, conceptual and theological distinction between shari`ah, as God’s law, and fiqh, as human law, in this case, Islamic jurisprudence. This is in keeping with the history of Islam as well for, ‘despite its centrality, the term shari`a is seldom defined in the classical literature of Islam, which otherwise defines key terms carefully.’ Reticence in this regard is therefore properly motivated insofar as we cannot provide an exhaustive definition that propositionally captures the truth of shari`ah. We might further appreciate this fact when we realize that adult Muslims are under a personal obligation to understand and implement or instantiate or embody the shari`ah, an obligation that reveals an implicit appreciation of the different levels of understanding that exists among individual Muslims.

Our argument finds further support in the recent work of Khaled Abou El Fadl:

‘The conceptual distinction between Shari`ah and fiqh was the product of recognition of the inevitable failures of human efforts at understanding the purposes or intentions of God. Human beings, the jurists insisted, simply do not possess the ability to encompass the wisdom of God. Consequently, every understanding or implementation of God’s Will is necessarily imperfect because, as the dogma went, perfection belongs only to God. Muslim jurists had a particularly humble way of acknowledging this assertion. They would often write at the conclusion of their legal discussions the phrase, “And, God knows best” (wa Allahu a`lam). Symbolically, this meant that while the jurist was submitting his or her efforts for consideration, ultimately, only God knows what is right and wrong. This invocation was much more than a rhetorical device—it was an articulation of the very epistemological foundation of Islamic law. It ultimately justified the practice of juristic diversity and the culture of juristic disputations.’ [See his Speaking in God’s Name: Islamic Law, Authority and Women, 2001]

So, it is the efforts of individual Muslims and pious persons in particular to understand and implement the divine will that results in fiqh, which is socially and historically conditioned, while the divine law as such, the shari`ah, is unconditioned, perfect, immutable. There’s a distinction with a difference here between divine and human law, and the conflation of the two invariably leads to disastrous consequences at once theological, ethical and political.

There is much more that might be said here, but this will have to suffice for now.

[Patrick S. O'Donnell]

A book in support of the analysis here insofar as it shows how the propagation and protection of international human rights norms can be perfectly compatible with respect for religious and cultural integrity (in this case, with regard to Islam ) is Mashood A. Baderin's International Human Rights and Islamic Law (Oxford, UK: Oxford University Press, 2003).

[Nema]

Patrick,

Thank you for your comments and I apologize for not responding to you earlier (blame it on my law school experience). Your interpretation and distinction of shari'ah and fiqh is interesting. In my mind, though, it would lead to the conclusion then that it is not only impossible for humans to apply let alone comprehend shari'ah. Subsequently, any attempts to create a "Islamic state" characterized by adherence to divine law would ultimately fall short of those objectives, and in fact pervert those objectives, given our inherent fallacies in understanding God's will. If this be the case, we are left with the inevitable conclusion that shari'ah has no value in our lives. If we cannot understand it, let alone apply it, then really what use does it have? For as you interpret it (and please tell me if I've gone this wrong), any interpretation of sharia'ah is itself a rationale explanation of God's will and not God's will instead. And by essence, the notion of rationality is a human instrument itself, thus such interpretation would be better classified as fiqh.

You know, quite ironically if you were to argue this point to Muslims in prior centuries, they would not only agree with you but would honestly believe that that is probably the prevalent belief. People keep forgetting that the early eras of Islamic thinking was characterized by ijtihad, personal reasoning, logic and understanding. Like all things though, independent reasoning gave way to strict adherence. Another way of thinking about it, is that as Islamic history progressed, the notions of independent reasoning and progressivism that highlighted Islam gave way to adherence to culture, prior practice, and the intent and act of Islam's early founders. In many ways, it symbolizes the current Constitutional debates in America. From the independent logic and understanding utilized by our framers and their predecessors, we now have judges who wish to apply the intent and beliefs of those 200 years ago to define our society today. Its amazing how a unbiased analysis of history in the West, reflects the same habits of those in Islam.

[Patrick S. O'Donnell]

Nema,

It was kind of you to thoughtfully reply to my comment.

Re: 'it is not only impossible for humans to apply let alone comprehend shari'ah.'

Quite the contrary, as I say, Muslims are under an obligation to comprehend shari`ah, but such comprehension can never claim the infallibility that is God's alone. One can certainly discriminate between better and lesser comprehension, between well-reasoned and well-supported interpretations and those not so well-supported and well-reasoned. There are various putatively Islamic states today: how does one account for the variety? On the very grounds I (and others, like Abou El Fadl) have elaborated here. Are they all equally correct in their interpretation and implementation of Islamic law? On pain of contradiction they cannot be. This in no way detracts from their efforts: nothing I've said entails or implies Muslims should abandon Islamic jurisprudence (see Baderin here). It does suggest that one can develop a NORMATIVE position from *within* Islamic jurisprudence so as to critique various understandings and implementations (as both Abou El Fadl and Baderin have done). I simply can't see how you would come to the conclusion that what I wrote means 'shari`ah has no value in our lives.' Again, hardly, it's a presupposition or assumption of my argument that shari`ah IS extremely important and central for Muslims (why would I call it 'divine law,' claim that it is 'perfect,' 'immutable,' etc., if I did not think it important? I do not take or use these attributes lightly or casually). I've argued this before non-Muslims who tend to dismiss Islamic jurisprudence as antiquated, irrelevant, antithetical to the Enlightenment, inimical to human rights, and so forth and so on. I've tried to elaborate a position from within the tradition that explains how such conclusions are not inevitable, indeed, may be deeply mistaken, betraying as they do an appalling ignorance of all-things-Islamic. There are many degrees of knowledge and understanding between 'perfect' and 'fallacious' (incidentally, 'fallible' is not equivalent to 'fallacious,' the former simply meaning something short of perfect, hence it is not a pejorative adjective).

Fiqh, by definition, IS the understanding and implementation of shari`ah, but for one to say it is a perfect understanding and perfect implementation of God's will is to abrogate the perfection that belongs to God alone, is to infringe upon the tawhid of God, to whom alone belongs perfect understanding or comprehension of his will. Our understanding and comprehension cannot be equivalent to God's! It will always, therefore, be less than perfect, its fidelity to God's will enshrined in the sincere effort, using our God-given faculties and sensibilities, to understand and implement that will. God expects no more, nor no less from us.

I'm pasting here the entry for shari`ah from my glossary guide for Islam in case it helps by way of clarification:

Sharī‘ah: literally, something like ‘the way,’ or ‘the path to the watering hole (or spring),’ and refers to divine law or God’s will in Islam. Historically, the term Sharī‘ah refers to all the elements of a proper, i.e. righteous life; this includes moral behavior, proper respect towards Allāh, correct belief, personal piety, and so on. In other words, it means the right way to live one's life as a Muslim in conformity to God’s will. In more recent times, the scope of its reference has narrowed to that which falls under the rubric of Islamic law (fiqh), but there is a logical, conceptual and practical difference between Sharī‘ah and fiqh. The latter involves the human process of understanding and implementing the divine law. It is a serious (religious, epistemological, ontological, ethical…) mistake to conflate Sharī‘ah and fiqh, or to use these terms, as often happens today, as synonyms. The Sharī‘ah, writes Khaled Abou El Fadl, ‘is God’s Will in an ideal and abstract fashion, but the fiqh is the product of the human attempt to understand God’s Will. In this sense, the Sharī‘ah is always fair, just and equitable, but the fiqh is only an attempt at reaching the ideals and purposes of Sharī‘ah (maqāsid al-Sharī‘ah). [….] The conceptual distinction between Sharī‘ah and fiqh was the product of a recognition of the inevitable failures of human efforts at understanding the purposes or intentions of God.’ The function of Sharī’ah is here analogous or similar to that of Natural Law among the Stoics. Recently, Abdullahi An-Na‘im has made the provocative argument that ‘precisely because sharī‘a is supposed to be binding on Muslims out of religious conviction, a believer cannot be religiously bound except by what he or she personally believes to be a valid interpretation of the relevant texts of the Qur’ān and Sunnah. Yet, given the diversity of opinions among Muslim jurists, whatever the state elects to enforce as positive law is bound to be deemed an invalid interpretation of Islamic sources by some of the Muslim citizens of the state.’ Moreover, such ‘objections to the enforcement of sharī‘a through positive law and the notion of an Islamic state do not, of course, preclude Muslims from personally conforming with every aspect of sharī‘a.’ We might describe the function of Sharī‘ah along the order of a Platonic Form, at least in its ‘bedrock version’ as outlined by T.K. Seung in Intuition and Construction: The Foundation of Normative Theory (1993). In this account, intuition and construction are two integral processes intrinsic to the functional role of Platonic Forms (or ‘Ideas,’ ‘Archetypes,’ etc.). Platonic Forms—like the Sharī‘ah—are (is) indeterminate, while nonetheless serving as normative, intuitive, and nonpropositional foundations for constructing (propositional) models as guides for determinate social realities, thus, for example, (the Form) Justice is only the normative foundation for constructing models of determinate social orders, none of which fully realizes Justice, and all of which endeavor to approach Justice, succeeding by degrees. What is more, the attempt to instantiate or embody the model is never wholly successful, given the nature of the human condition and the model’s idealized qualities in reference to the Form itself: ‘The indeterminacy of Platonic Forms makes them flexible standards, and their flexibility assures their eternal durability.’ Sharī‘ah is like the Platonic Form in being universal, abstract, indeterminate, and nonpropositional, and thus cannot directly serve as a normative standard. This is perhaps one reason Norman Calder writes that, ‘in modern academic analysis of Islamic law, the word Sharī‘ah is of little use: what we can study and describe is always fiqh.’ Fiqh represents a Platonic-like endeavor to translate Sharī‘ah into direct, concrete, and normative models for particular contexts. As with Platonic intuitionism in which all human beings have access to Platonic Forms, all Muslims, as noted by An-‘Naim above, have access to Sharī‘ah, indeed, they are under a spiritual obligation to attempt to understand (and live by that understanding) the divine law. Such understanding is necessarily partial and fallible and may vary according to the individual (every Muslim is different): ‘Indeterminacy and relativity are inseparable in the domain of realization.’ The divine nature of Sharī‘ah means it retains a normatively transcendent and evaluative function whatever the extent of its positivization as fiqh. In other words, law as such cannot exhaust the evaluative function of divine law as one’s understanding of same can always deepen, one’s intuitive discernment can always be keener. As a transcendent (nonpropositional) guide for action, and despite its integral relation to Islamic law, Sharī‘ah should not be confused or conflated with any of its propositional constructions by way of fiqh, or any political proposal for a putatively Islamic state. Nonetheless, fiqh can serve as an aid in coming to understand divine law insofar as it enables us to obtain further, dialectical insight into that which transcends positive law; discursive reasoning and rational understanding, in other words, and in this case intrinsic to the Islamic science of jurisprudence, are part and parcel of the process of acquiring nonpropositional insight into divine law. That is to say, there is a dialectical relation between divine and human law that represents, in epistemic terms, a dialectic between propositional knowledge and ‘knowledge by acquaintance’ in a Platonic sense or ‘knowledge by presence’ after Shihāb al-Dīn Suhrawardī: ‘The insight that transcends words cannot be attained except by means of words; what cannot be spoken of becomes manifest in the very act of speaking. Thus Platonic dialectic entails the wedding of discursive and nondiscursive thought. Only through the process of examining and refuting propositions—a thoroughly discursive process—can we just barely obtain knowledge that is nonpropositional’ (Francisco J. Gonzalez, Dialectic and Dialogue: Plato's Practice of Philosophical Inquiry, 1998). The jurist’s understanding of Sharī‘ah, in other words, is evidenced by his facility with ’usūl al-fiqh: how he has arrived at the determination of law, rather than simply the result, that is, the legal determination or ruling itself, or, in the case of furū‘ al-fiqh, the persuasiveness of the arguments explicating the concepts and rules that relate to religious rituals and ethico-religious conduct in the widest sense.

I don't have time right now to comment on your last paragraph: perhaps another time or in private correspondence.