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A Comparative Analysis: Islamic Law and Human Rights

Research Questions
By the means of this project, I hope to explore and try to answer these questions:
  1. Whether Islamic Law recognize the concept of Human Rights?
  2. What is the concept of Legal Equality in Islamic Countries?

Muslim countries are the bete noire of the Human Rights Movement. These countries face a variety of issues, including denial of democratic rights and limits on speech, movement, and education. In Afghanistan, for example, the Taliban have excluded women from public life in their pursuit of the perfect Islamic state.

The Taliban also inflicts harm on Afghan men, which is less well-known. Recently, a man was detained for not growing a beard, an eyewitness reports from Kabul, capturing the texture of human rights breaches and the miseries that result:
Recently, a man was arrested for not growing a beard. His young child and wife were left alone at home. The lady had no choice but to leave her house with the baby in her arms in order to buy a loaf of bread. Because her flowery skirt protruded from beneath her chador, she was discovered by the Taliban and brutally tortured. The woman had lost her mind. She dashed home, where she was cooking meat, and sprayed her assailants with boiling water. They murdered her right there in front of her child.[1]

Many in the West have asked, Why is Islam so violent, so different, and so oppressive? as a result of incidents like this one, as well as the rape laws in Pakistan that punish the victim, the Algerian civil war that continues to claim the lives of thousands of men and women, and personal status codes (family laws) that reduce the woman to award. Indeed, it is this fear of Islam that underpins much of the contemporary conversations in the West about "the clash of civilizations" and encourages the West to employ force in Muslim nations.

Western non-governmental organisations (NGOs) have backed attempts in Muslim nations to secularise laws, notably personal status codes, and construct Western-style democracies, citing the same issue.

So long as an action for change is not based on basic knowledge of the nature of the problems and the people involved, these attempts will be hindered, and improvements in the human rights situation in Muslim nations will be postponed. It's vital to remember that all three Abrahamic religions were revealed in the East, as were most other religions. Muslims value spirituality highly and would be willing to endure considerable pain and suffering rather than renounce this essential tendency.[2]

Furthermore, many Muslims intuitively believe that it is those in authority, not Islam, who are to blame. As a result, they keep looking for a spiritually acceptable solution. Meanwhile, Western non-governmental organisations (NGOs) offer little more than lightly modified Western secular answers, sometimes thinly veiled with religious rhetoric.

Roots of the Crisis
The human rights situation in the Muslim world has deep roots. They're also linked to questions of democracy and political legitimacy. Soon after the Prophet Muhammad and the four rightly-guided khalifahs died, the Muslim state lost its political legitimacy (caliphs). The Umayyad Dynasty rose to power at that time not by free bay'ah (a sort of vote used at the time), but through a combination of force and deception. They soon after established a hereditary monarchy, further marginalising the people's will.[3]

Throughout history, Muslim thinkers who contended that such a system was incompatible with basic Islamic values have faced harsh retaliation. Most scholars, tired of the oppressive state apparatus and committed to the stability of Muslim society, eventually decided to leave politics behind and focus on other issues.

Authoritarianism grew more entrenched and patriarchal thinking flourished as Islamic democracy based on the twin concepts of bay'ah and shura (consultation) declined. Women, who had played a significant part in early Muslim society, were gradually separated from, and then excluded from, the centers of power.
  1. Subjugation of Women
    For example, following the Prophet's death, 'Aisha, the Prophet's learned wife, interfered in a battle that divided Muslims. Her intervention was unsuccessful, formally signaling the end of her political influence. Zainab, the Prophet's brave granddaughter, witnessed the Umayyad's slaughtering her family. Despite her challenging circumstances, Zainab was able to deliver a heartfelt public statement in the Umayyad caliph's palace, condemning him. Other, less prominent cases abound. While many women rose to prominence as intellectuals, as demonstrated by significant male scholars who trained under them, their numbers dropped over time, and their voices were eventually drowned out.[4]

    Eventually, legal interpretations of family laws were so restricted that they effectively reduced women to wards, denying them the right to marry, work outside the home, and travel without a male companion. Given that Khadija, the Prophet's first wife, was a busy businesswoman who employed the Prophet and eventually proposed marriage to him, the denial of the freedom to work seemed particularly unjust. These legal interpretations were more influenced by patriarchal social custom than by Qur'anic principles. Indeed, the jurists' comprehension of Qur'anic principles was influenced by their social environment at times.

Human Rights in Arab and Muslim countries

In terms of human rights and civil liberties, Arab countries have a long way to go to catch up with the rest of the world. The survival of Arab regimes is their common goal. What happens to an individual's rights under such regimes is irrelevant, and if the individual is a member of a minority group or religion, so it's very bad for her or him.[5]
Let's take a look at some of the most egregious examples of human rights breaches in Muslim countries.
  1. Sudan
    Sudan's record of persecution is awful since it is highly vengeful against its minority populations. For decades, the Arab north has fostered the kidnapping of black African women and children in the country's south and their subsequent sale as slaves. Slavery is certainly the most serious charge that can be leveled against this Arab-African government, and it should be the focus of a concerted campaign by human rights organisations from all over the world to put a stop to this scandal. Villages have been destroyed, women have been raped, and men have been tortured and slain as the people of southern Sudan (many of whom are Christians) fight for their freedom. Hundreds of thousands of people have been forced to flee their homes. Human rights activists, students, and lawyers who have tried to preserve these people's rights have been assassinated.[6]
  2. Pakistan
    Pakistan's administration is officially democratic, but elected officials have imposed an autocratic style of the rule on the country. Human and civil rights are respected in Pakistan more in the breach than in the observance, despite some press freedom. There have been tales of torture and executions, religious minorities are not protected, and women and children are subjected to a great deal of violence. All political opposition has been outlawed, and regime critics have been imprisoned. The administration has been elevated above the law, and the judiciary has been severely hampered. The police force is crooked, and the people it is intended to protect are terrorised. In Pakistan, jail conditions are horrible, and prisoners have no rights.[7]
  3. Iran
    Iran, which calls itself the Islamic Republic, is chastised every year by the United Nations Commission on Human Rights in Geneva for its numerous human rights breaches. With numerous journalists imprisoned, journalistic freedom is a thing of the past. The administration has closed down about 40 newspapers. The regime's political opponents have been assassinated, and religious minorities (Christians, Baha'is, Sunnis, and Jews) have been oppressed. Azeris, Arabs, Kurds, Turkomans, and Baluchis are ethnic minorities who are treated as second-class citizens. Iranian women are fighting for their rights, hoping that their fate would not be the same as that of their Afghan sisters.
  4. Saudi Arabia
    Saudi Arabia is a conservative Islamic kingdom that adheres to the orthodox Sunni faith of Wahhabism. All political opposition is prohibited in the kingdom. The freedom of speech and the press are severely restricted, and the legal system is Sharia-based. Amputation, lashing, and execution are all possible punishments under this legal law. Christians do not have religious freedom, and the Shia minority is closely monitored. Discrimination against women is undeniable.[8]
  5. Afghanistan
    International organizations are constantly monitoring Afghanistan's human rights situation. The Taliban party dominates Afghanistan and enforces its authority via force and brutality. According to information obtained by Amnesty International and other organisations, executions, limb amputations, and flogging are carried out - sometimes without trial. Men, women, and children are among the victims. Furthermore, the Islamic militia persecutes Hindus on religious grounds, destroying Buddha statues, requiring women to wear veils, and requiring them to wear identification tags, among other things. The Taliban uphold Islam's most stringent standards, barring women from most professions and fields of study and demanding men to grow beards and pray five times a day. Any type of entertainment is prohibited, including watching television and listening to music.

Re-evaluating Islamic law

Our "global village," on the other hand, has become more supportive of democratic government changes, and patriarchy has been exposed and discredited. As a result, the time has come for Muslims to finally achieve what centuries of internal persecution and subsequent colonialism have stopped them from doing. The fact that there is no central religious authority in Islam charged with interpreting holy texts aids this attempt.

Every Muslim, male or female, has the right to such an interpretation if they meet two criteria: piety and knowledge.[9]
The incident of the old woman in the mosque who challenged a proposed law by Caliph Omar because it was in opposition with the Qur'an exemplifies this point. She was asked to elaborate by the Caliph. In support of her position, she gave unambiguous Qur'anic proof.

"The woman is correct, and the Caliph is wrong," Omar proclaimed to those in the mosque. As a result, not even the rightly led Caliph Omar was the final judge on religious affairs. "If you dispute on an issue, refer it to God and his Prophet," the Qur'an says. The final arbiter is thus not a jurist or a ruler, but the Qur'an and the Prophet's Sunnah (example).[10]

As a result, a new generation of Muslims who are well-versed in their faith is required to re-examine prior juristic interpretations in light of Qur'anic verses is required for Islamic jurisprudential reform.

Other sources of change can be found within the legal tradition itself. For example, a fundamental Islamic legal principle is that laws change as time and place pass. Clearly, this notion has significant restrictions, as the fundamental beliefs of Islam are unchangeable. This notion is represented by the historical precedent of the great Imam al-Shafi'i, who altered his jurisprudence to one more fit for Egyptian society when he moved from Iraq to Egypt.

We are hundreds of years removed from the time when al-Shafi'i lived. We are also thousands of miles away from both Iraq and Egypt in the West. Modern-day jurists would be shocked to learn that Imam al-Shafi'i and other Imams who have been deceased for centuries are still held in high regard for their views.
  1. Development of Rigidity
    It is critical to recognize that some of the current legal inflexibility has its roots in the colonial era. Colonialists made a concentrated attempt to erode the colonial people's ties to the Qur'anic language. Algeria, where entire generations grew up speaking French, is the most prominent example of such measures. As a result, many people's attachment to Islam has become emotive rather than rational.

    They couldn't understand or read the Qur'an or related books any longer. As a result, they could only imitate their parents and grandparents. This was the case in many Arab and non-Arab countries, where mastery of complex religious texts was limited to a select few. As a result, rigidity developed, and medieval jurisprudence flourished at the expense of Muslims in the twentieth century. As a result, for women and men interested in re-examining current laws to establish their applicability to our time and location, a good theological education is required today.
  2. Changed circumstances
    Maslaha, or the public interest, is another fundamental traditional idea that is a potent agent for change. The main idea is that the Supreme Lawgiver gave us laws that promote the common good. When extraordinary circumstances emerge that prevent a law from serving or even harming, the public interest, jurists may suspend the legislation until the situation returns to its previous position. Caliph Omar provides us with another historical precedence for applying this guideline. During a year of hunger, he deferred theft penalties. Of course, in his opinion, shortage and necessity had sufficiently altered circumstances to render punishment unjustifiable.[11]
  3. Denial of Education to women
    This notion of Maslaha, on the other hand, has been employed by some Muslim academics in the past to restrict women's education. These academics believed that, because education may lead to a deterioration of women's morality, it is preferable to avoid such societal harm. This situation is particularly concerning because the Qur'an encourages learning and the Prophet emphasised emphatically that "education is the duty of every Muslim, whether male or female." Those who want to be like the Prophet should keep in mind that he employed a teacher to educate his wife. How can the Taliban dismiss such strong religious evidence in support of women's education?
  4. Ignorance is no longer a bliss
    Clearly, more educated Muslims are required, as ignorance is no longer bliss, especially under authoritarian government. These are just a few examples of Islamic jurisprudence's shifting principles and precedents. They abound in the literature. They can be a very strong weapon against oppression and ignorance, as well as for the advancement of human rights, if properly understood and unleashed. The Taliban's insistence on males wearing beards and women wearing drab clothing will then be exposed as arbitrary. Pakistani rape laws will be exposed as being incompatible with Islamic law, and gender-based personal status rules will be rendered unjustifiable.[12]

A Muslim state, in reality, lacks the theological authority to establish a personal status code. Muslims are directly answerable to God for their own choices because there is no central religious authority. Ijtihad (using one's intellect to arrive at the correct religiously-based solution or interpretation) was also advocated by the Prophet.

As a result, in the first few centuries of Islam, hundreds of schools of thought arose. Individually answerable to God, Muslims choose the school of thought that they deemed most suited or convincing in their particular lives. As a result, a man may choose the Maliki School of thinking while his wife chooses the Shafi'i school. These schools of thought disagreed quite a little at times.

It was consequently crucial to establish the jurisprudence controlling the contract in marriage contracts, for example. This decision of law frequently determined a woman's rights in terms of executing the marriage, maintaining a monogamous marriage, and leaving the marriage at any time.

With the advent of Western influence in the Muslim world, modern Muslim states have decided to codify family law, following the lead of several Western countries. They frequently specified a formal school of thought before adopting the takhayur principle. Under this approach, the state granted itself the authority to ignore certain of the adopted school's laws in favour of those borrowed from other schools.[13]

Generally, the clauses that were chosen were more patriarchal than those that were dismissed. As a result, many of these codes have become more repressive over time. It's past time to reconsider this deviation from tradition. Because marriage contracts are a type of civil contract in Islam, prospective couples should be able to choose the legislation that best matches their values and the familial relationship they wish in their contract. Except to the extent that it is absolutely required, the state should quit regulating family life. Instead, it should resurrect the earlier tradition of religious and contracting freedom.

Change-Catalysts and Conclusion
Western Muslims have the potential to be the catalyst for change in the Muslim world. Muslim policymakers in the East have used Islam to legitimize harsh cultural decisions thus far. Islam, on the other hand, does not belong to any one region. It is a global religion dedicated to tolerance and diversity. In fact, according to the Qur'an, God created men and women, nations and tribes so that we could get to know one another.

Thus Islam's approach to variety is a welcoming one that opens the door for all cultural differences to bloom, so long as they do not contradict the essential foundations of the religion. As a result, scholars in the past were able to augment their theological laws with culturally derived customs. People came to regard outmoded customs as part of religious heritage as the boundary between the two eroded over time. As a result, people are now unwilling to question these conventions, no matter how oppressive they may have grown.

Muslims in the United States and Europe are not bound by the traditions of other countries. Immigrants among them have a once-in-a-lifetime opportunity to sort through the many practices and traditions they brought with them from their homelands. The indigenous people have a distinct edge in that they can see things from a different perspective. They can get rid of the customs and traditions associated with custom and culture if they work together.

They can then review the remaining ones' jurisprudence from a new perspective. This new approach, which is more favourable to Western civilization, technology, and constitutional liberties, will help to improve Islamic jurisprudence, which has been suppressed by tyrants and tyrannical kings for a long time. Finally, the first Muslim society's democratic principles and practises will be permitted to flourish in American and European Muslim thought and communities.

However, impunity for those who violate human rights is the fundamental reason for the absence of long-term improvement. The International Criminal Court's jurisdiction is confined to its member countries. As a result, new techniques of punishing criminals must be sought. In circumstances where local courts are not able to administer justice, the countries committed to human rights must come to the help of the victims of human rights violations and provide them the opportunity to file complaints against their abusers.

To put it another way, it is past time to discuss the globalisation of justice, so that those who violate human rights can be prosecuted even in other countries. Only if we succeed in globalising the court will globalisation be regarded a success.

  1. Azizah Y. al-Hibri, Legal Reform: Reviewing Human Rights in the Muslim World, 20 Harvard International Review 50 (summer, 1998)
  2. Supra Note 1.
  3. Ann E. Mayer, Universal versus Islamic Human Rights: A Clash of Cultures or a Clash with a Construct, 15 MICH. J. INT'L L. 307 (1994).
  4. (, D., 2021. Women's rights in the Islamic world | DW | 27.09.2017.
  5. M. K. Nawaz, 'The Concept of Human Rights in Islamic Law' (1965) 11 Howard LJ 325.
  6. 2021. Human Rights in Arab and Muslim Countries.
  7. Id.
  8. Supra Note 5.
  9. M. K. Nawaz, 'The Concept of Human Rights in Islamic Law' (1965) 11 Howard LJ 325.
  10. Azizah Y. al-Hibri, Legal Reform: Reviewing Human Rights in the Muslim World, 20 Harvard International Review 50 (summer, 1998).
  11. Id.
  12. Supra Note 8.
  13. Aldeeb Abu-Sahlieh, Sami A. (1990) "Human Rights Conflicts Between Islam and the West," Third World Legal Studies: Vol. 9, Article 11.

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