WORK IN PROGRESS

COMMENTS INVITED

Sociology of RightsInviolability of the Other in Islam

Recep Senturk

To be presented at

Islam and Human Rights Workshop

Organized by Emory University Law School Islam and Human Rights Program

May 16-21, 2004

ISAM, Istanbul

CONTENTS

Introduction........................................................................................................................................................1

I. Human and Human Rights in Islam: A Contested Relationship..................................................................10

a. The Universalistic View: Basic rights are accorded by virtue of being a human........................................11

b. The Communal View: Basic rights are accorded by virtue of Islamic faith or a treaty..............................16

c. Eclectic Thinkers and Reconciliation between the Two Paradigms............................................................19

II. The Genealogy of the Human....................................................................................................................19

The Genesis of Human in the West.................................................................................................................20

The Genesis of the Human in Islam.................................................................................................................25

III. The Practical Implications of the Contest between Universal and Communal Doctrines.........................31

IV. Why did Jurists Differ on the Universality of Rights?..............................................................................36

The ‘Ulama and the State.................................................................................................................................36

Two Root Paradigms in Islamic Jurisprudence...............................................................................................40

V. Sanctity as the Foundation of Universal Law and World Order.................................................................49

VI. Muslims and Modern Human Rights.........................................................................................................56

The 19th Century Ottoman Reforms: from Divan to Parliament......................................................................60

Constitutional Movements during the Ottoman Period...................................................................................63

Human Rights Dependency.............................................................................................................................67

VII. What is Sociology of Rights For?............................................................................................................71

Conclusion: I am therefore I have Rights........................................................................................................78

Selected Bibliography......................................................................................................................................82

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Introduction

I think therefore I am. This is the answer I give to the puzzling question: how can we

justify that we really have human rights? More plainly put, my very existence suffices as a

substantiation of my rights, irrespective of my innate, inherited, gained or ascribed qualities.

I argue that all universal cultures, be they religious or secular, ancient or modern,

commonly agree on the inviolability of all human beings. Yet they do so in their own terms,

which is an inevitable sociological diversity. Acknowledging such diversity in ways human

sanctity is justified brings more strength to human rights cause, instead of undermining it.

There is not only a single way to justify and talk about human rights, or any other matter in

the world. There may be in the world multiple discourses to talk about human rights and

multiple grounds to justify human rights, reflecting the diversity of cultures on the globe.

However, currently, some of the representatives of these cultures compete with each

other to monopolize the cause of human rights. Each one claims that only my culture grants

and protects human rights. Or they say, my culture is the father of human rights. This rivalry

is unnecessary, counterproductive and inconsistent with the universalism each ideology

claims to represent. In this book I challenge this exclusivist position, regardless of which

culture it stems from, and offer an inclusive alternative from a sociological perspective which

takes into account the diversity of cultures in the world and their right to produce and

maintain their distinct discourse on human inviolability.

We, as humanity, had the discourse on human inviolability all along, yet in diverse

conceptual and institutional forms. Based on this assumption, a truly universalistic position

on human rights is characterized by three features: accepting the inviolability of all human

beings; to do so by virtue of their humanity; acknowledging that other universal cultures also

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respect the inviolability of all humanity. The claim that only we, as a group, nation or

civilization, respect human rights inadvertently defies itself and turns into an exclusive

ideology with a claim for superiority.

With the purpose of proving my claim, I chose a universal religious culture, namely

Islam, which is currently seen by some as the remotest one to the universal human rights and

to the respect for the inviolability of the other. Using the example of Islamic legal tradition,

this book demonstrates how both religious (divinely inspired, deriving from scriptures) and

secular (rationally inspired, deriving from human mind) worldviews may justify human rights

in their own terms, yet arriving at parallel conclusions. These two discourses are, however,

different in content, scope and implementation. It would also be an open anachronism to treat

Islamic and modern discourses on human rights as the same because they reflect the different

historical circumstances in which they emerged and put in use. Consequently, rather than

subscribing to the current blanket generalizations in the academic and popular literature, this

study explores similarities and differences between them.

Furthermore, I also explore the ways we can relate Islamic and modern secular

discourse on human rights to each other in the present world. From this perspective, the

classical Islamic discourse on human rights may serve as an antecedent or a significant

source, for Muslims and others, to develop a new human rights discourse which would more

effectively respond to the needs of the modern world in the age of globalization. I think

Islamic legacy is important to take into account while re-thinking about human rights at the

beginning of the 21st century. Muslims ruled the most troubled areas of the present world for

so many centuries in peace under cosmopolitan empires from India to the Middle East and to

Balkans.

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There is a gap between two approaches on the universal human rights: legal

perspective with an emphasis on universalism and social scientific perspective with an

emphasis on relativism. The gap became manifest during the preparation of the UN

Declaration in 1948. The American Anthropological Association (AAA) publicly opposed

the entire project of the universal human rights declaration. In contrast, the legal approach

has triumphantly claimed that the universal human rights can be codified and justified, yet

they did so within the parameters of a particular culture, namely secular and Western. The

anthropological approach has claimed that the universal human rights are impossible to define

because of the irreconcilable social and cultural diversity of the people in the world; hence the

Western and secular definition and justification is ethnocentric. I argue that, combining the

legal and social scientific approaches will allow us to reconcile the tension between these two

contesting paradigms. The global cultural diversity does not preclude the possibility of a

number of common denominators or universal values; cultures with diverse languages and

dialects may justify and interpret human rights differently but can still meet at a common

ground.

There is also another gap among scholars concerning whether human rights are

exclusively modern, Western and secular; in other words, whether universal human rights

exist in religious and particularly non-Western cultures. Some argue that religious and non-

Western cultures also promote human rights while some argue that these cultures are

incompatible with human rights.

Before any attempt to answer this question, we should ask what makes human rights

possible? I argue that the existence of an inclusive concept of the universal human, detached

from innate, acquired and ascribed qualities, makes the existence of universal human rights

likely while its absence makes it impossible. The universal human is a decontextualized

conceptualization of the human being, which is constructed by methodologically discarding

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the inherited, gained and ascribed physical, cultural, racial, geographical, national and

religious qualities an individual may have.

The existence of a concept of the universal human is the first prerequisite for the

universal human rights to be possible because it is the subject to which rights are accorded. If

the subject is absent, the rights will also be absent. Therefore, prior to posing the question on

whether there are universal human rights inherent within a culture, we should first ask

whether there is a concept of universal human in the this particular culture. The lack of the

latter (abstract concept of a universal human) is the cause for the absence of the former

(universal human rights). In the absence of universal recognition of a human within a society,

the legal and political culture relies on the religiously, culturally, racially or geographically

determined exclusive categories, which forestalls the rise or appropriation of universal human

rights within a culture.

The second prerequisite for the existence of human rights in a culture is the existence

of due process. If there is a due process in a society, it is very much likely that human rights

will emerge in this culture. Existence of due process is usually a reflection of the rule of law

and formally defined principles of justice. If there is no due process, we cannot expect

human rights to exist effectively on the ground.

All universal cultures have fostered a concept of human being at the universal level

and the due process to achieve justice in society. Here lies the common ground universal

cultures share. The examples include Buddhism, Judaism, Christianity, Islam and modern

secular ideologies such as liberalism and socialism. It is possible that some did so more

forcefully in some aspects or in some periods. Secular approaches to human rights tend to

neglect the metaphysical dimension in their justification of human rights. The lack of

metaphysical foundation in the secular discourses may be seen as a weakness in advocating

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human rights. Religious discourses, on the other hand, tend to focus exclusively on the co-

believers. The emphasis on the religious community based on brotherhood in the true faith

may also be seen as a source of weakness of religious discourses.

Approaching the puzzle from such a fresh theoretical perspective, this book aims to

explore the case of Islam and to contribute to this broad discussion by providing a balanced

and historically well-grounded answer to the following question: Is there a concept of

universal human rights in Islam? Following the above perspective, the answer is that such a

concept is contingent on the existence of the basis for the universal human in Islamic law: If

the basic conceptual groundwork exists, then it is likely that Islamic law does feature

universal human rights. Otherwise, without such a framework, it would be impossible to

justify universal human rights. Therefore, we should first ask: Do the fundamental elements

of a universal human already exist in Islamic law?

The answer to this much-debated puzzle is not plainly positive or negative, unlike the

monolithic arguments found in the majority of the current literature based on sweeping

generalizations. As the survey of the relevant classical and modern literature demonstrates,

this is a long and widely debated issue in the juridical and theological discourse since the

early history of Islam. Briefly put, there are rival universal and communal views represented

by a network of Sunni and Shiite scholars, both supported by a rich literature and

sophisticated arguments and counterarguments. The universal perspective advocates equal

human rights for all. In contrast, the communal perspective advocates equal rights only for

the citizens of the Islamic state, be they Muslims or non-Muslims. Yet this contest in the

Islamic legal tradition is not currently known to most scholars in the field of human rights.

The lack of modern literature and research underscores this void in the current discourse.

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I argue that the latent tension in Islamic law between the advocates of universalistic

and communal perspectives, which has so far been circumvented by the researchers, is

analogous to the tension between the advocates of the civil rights and human rights paradigms

in modern Western legal thought. The recent political debates in the US testify that the

advocates of civil rights, concentrated exclusively on the rights of the citizenry, still hold,

despite the declaration and ratification of the UN declarations since 1948. This may be

attributed to the fact that the European constitutions incorporate the human rights paradigm

while the US constitution incorporates the civil rights paradigm. Hence emerges occasional

tensions between the UN and the European perspectives, on the one hand, and US policies, on

the other. The recent debates on the International Criminal Court (ICC) may be viewed as a

manifestation of this tension. The current US policy concerning the ICC has been to

forcefully call for exemption of US citizens.

The two rival paradigms in Islamic law have been advocated by two separate networks

of scholars. I will briefly present the views of the two schools of thought to highlight the

existence of the universal approach to human rights—initially formulated by Abu Hanifa, the

founder of Hanafite School. Abu Hanifa’s universalistic paradigm had been adopted by a

wide network of scholars affiliated with different schools of law. However, Abu Hanifa’s

ideas have yet to be fully explored by modern researchers in the West and the Islamic world.

Most of the concerns and theological arguments of the Muslim jurists who lived during the

middle ages no longer have a ground in the present world, characterized as it is with radically

different and secular national and international legal concepts and structures.

Yet this research will, first, rectify the view of some Muslims and non-Muslims on

universal human rights as a principle foreign to Islamic civilization, and will demonstrate the

basic consistency between one line of Islamic legal thinking and the modern secular Western

perspective1. Second, it will provide a solid conceptual foundation in the lengthy tradition of

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Islamic jurisprudence for Muslim and non-Muslim human rights activists, advocates and

researchers to build upon and improve. Third, it will demonstrate that the sweeping claims in

the current literature about the existence or absence of universal human rights in Islam must

be qualified because these claims cannot stand against the background of a literature with

conflicting views. Fourth, it will suggest a theory of universal human rights by building upon

the classical legal legacy of Islam and modern secular notions.

I combine the recent discourse and social network analysis methods in my research. I

subscribe to the view that law is a common yet contested discourse, evolving out of the

interaction between global and local processes, an approach derived from Rawls, Habermas

and Dworkin, among others. Therefore law avails itself to the methods of discourse analysis.

In analyzing the human rights discourse, I apply the dialogic or interactive approach of

Bakhtin to law, instead of the concept of law as a one-way speech act envisioned by Austin. I

combine this approach with Saussure’s structural method to explore the interaction between

the general rules of language use (langue) and their actual implementation in the field within a

given time and place by concrete individuals (parole).

This methodological approach allows me to explore the interaction between universal

and local processes in the human rights discourse and the constant interaction between them,

analogous to language. Like linguistic principles, human rights are also framed universally

but they are locally used, legitimized, interpreted and implemented through diverse social

mechanisms. The methods Silverstein proposed to analyze the self-reflexivity of language

will also be applied to explore how legal language acts upon itself, particularly during times

of major transformations. I also apply the most recent social network analysis methods to

uncover “invisible colleges” and latent cleavages among Muslim jurists to demonstrate that

they are divided into two strands on the universality of human rights, although on first glance

they belong to a myriad of opposing schools.

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This is an exercise in what I call the “sociology of rights,” a new perspective I aim to

develop. The present approach to rights usually offers only a thin description of rights as a

consequence of its exclusive reliance on legal and formal perspective. Alternatively, I suggest

a thick description of rights by exploring their cultural, historical, theological and particularly

religious roots. These roots can only be found through a study of cultures within their

particular historical, sociological, cultural and geographical contexts. It helps us to improve

the interaction between, what Saussure called, langue (language in abstract) and parole

(language in use in a particular setting) of human rights discourse. It thus serves to explore

how the same rights are variably justified by different cultures, both religious and secular,

through a myriad of ways. It also helps establish a bridge between the inclusive and exclusive

social forces, or the communal “we” and the global “We,” the human family.

The interdisciplinary nature of this research requires me to mobilize conceptual tools

from a variety of disciplines and a diverse literature in Arabic, Turkish and English, to which

I will in turn contribute. Abdullahi An-Na’im’s works on the issue of human rights and Islam

provides me the theoretical framework to build upon and expand further in producing an

Islamic discourse on Human rights, responding to the needs of Muslims living in today’s

global village. Baber Johansen is the only scholar I know of who touched, although in a very

brief article, on the concept of ‘ismah (inviolability, sanctity or basic human rights) as used in

the Hanafi School alone, without comparing how it was understood and employed by other

schools2. The current literature does not even touch upon the relationship between adamiyyah

(personhood or humanity) and ‘ismah. Consequently, I have to rely on the scattered

information in the classical literature and painstakingly piece them together. For the first

time, I will comparatively expose the core place the concept ‘ismah occupies in Islamic law,

and explore its potential usage today in enhancing human rights in the contemporary world.

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Literature is also devoid of mentioning the enactment of universal human rights and

their justification by Ulama in Islamic terms during the 19th century Ottoman Reforms, such

as abolishing the category of dhimmi, establishing equality between Muslim and non-Muslim

citizens, requiring them to pay the same amount of taxes, allowing all citizens to occupy

political and administrative office, and to join the army. Therefore, the Declaration of

Regulations (Tanzimat Fermani, 1839) may be seen as the first Islamic human rights

declaration in the modern sense. Analysis of these earlier efforts will demonstrate the

discontinuity and the lack of accumulation in Muslim efforts to promote universal human

rights since the 19th century.

I will also introduce and analyze the modern Turkish literature on human rights in

Islam, which is an extension of the classical Hanafi doctrine and the work of the 19 th century

Ottoman Ulama. After the UN declaration was made in 1948, Turkish scholars of Islamic

law, such as Hüseyin Kazim Kadri and Ali Fuat Basgil, produced works advocating that it

was consistent with Islamic law and thus deserved the support of Muslims.

Unlike anthropologists, the majority of sociologists curiously neglected the interaction

between universal human rights and society; the way they are variably interpreted, justified

and implemented by each culture and community. Among the exceptions is the Egyptian

sociologist al-Wafi, whose precedence was not followed by later generations. Therefore,

sociological literature on law, in general, and human rights, in particular, is underdeveloped.

Besides its considerable advantages to a purely legal approach to the relationship between

society, culture and rights, the interpretive framework I suggest will promote and facilitate

sociologists to relate their discipline to, and engage themselves in, the cause of human rights.

Below, I will first look at how the concept of the universal human emerged within the

Islamic and Western legal traditions. Second, I will comparatively analyze the inclusive

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universalistic, exclusive communal and eclectic paradigms on human rights in classical

Islamic law. Third, I will briefly demonstrate the practical implications of the traditional

contest between human rights and civil rights paradigms in Islamic law. Fourth, I will explore

why the dichotomy we now face emerged, by comparing the opposing methodological

postulates of the rational and traditional schools of jurisprudence. Fifth, I will explore the

usage of the concept of ‘ismah (sanctity, basic human rights) in the classical Islamic

jurisprudence as a foundation of a universal legal philosophy, capable of practically

facilitating pluralism during the middle ages. Sixth, I will look at the key role the concept of

‘ismah played in the human rights declarations and regulations (1808, 1839) by the Ottomans

during the 19th century reforms in Islamic law. Finally, I will discuss how incorporating a

sociological approach may contribute to a better understanding of the relationship between

diverse cultures and the human rights cause.

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I. Human and Human Rights in Islam: A Contested Relationship

All Muslims jurists in the classical era agreed on what rights should be protected under

the coverage of ‘ismah, but there was a question that divided them: Who has the right to

‘ismah? Is it the entirety of humanity or a segment of it? Can Islamic law legislate for non-

citizens to grant them human rights? Does all of humanity or the citizenry of the Islamic state

alone, composed of Muslims and non-Muslims, fall under the jurisdiction of Islamic law? To

what extent are Muslims allowed to intervene on legal traditions under their rule and on what

grounds?

There emerged two positions in Islamic law as to the relationship between ‘ismah and

âdamiyyah or, more plainly put, as to who possesses the five basic rights covered under the

title of ‘ismah. Abu Hanifa and his followers from Hanafite and other schools attached ‘ismah

with âdamiyyah, while al-Shâfii and his followers from his own and other schools attached it

to iman (declaration of Islamic faith) or amân (making a treaty of security).

a. The Universalistic View: Basic rights are accorded by virtue of being a human

Abu Hanifa and his followers advanced the cause of universal human rights –

universally and unconditionally granted to all by birth, on a permanent and equal basis, by

virtue of being a human - which cannot be taken away by any authority. Abu Hanifa

identified the concept of âdamiyyah (personhood) with the concept of ‘ismah (protection) and

argued that being a child of Adam or a human, whether Muslim or not, serves as the legal

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ground for possessing basic rights (al-’ismah bi al-âdamiyyah). Although the concepts of

‘ismah and “âdamiyyah” require a more thorough explanation, we can phrase this principle in

plain English as follows: Basic human rights are granted to all human beings. The Hanafites

such as Sarakhsi, Zaylai, Dabusi, Marghinani, Ibn Humam, Bâbartî, Kâsânî and Timurtâshi, to

name a few, are of this opinion.

The universalistic jurists used mainly the following arguments while defending their

doctrine: (1) God’s purpose in creating humanity, the trial (ibtila) and holding them

responsible (taklif) for their actions, cannot be achieved unless all human beings are granted

sanctity and enjoy freedom. (2) The human must be protected because God does not want his

creation to be destroyed, which is possible only by granting sanctity to each one of them. (3)

God in the Koran and Prophet Muhammad in his sayings strictly prohibited assaulting and

slaying any human being3. They even ordered protecting non-Muslim women, children and

clergy during war. (4) Disbelief (kufr) is not normally harmful to Muslims unless the

disbelievers engage in a war against Muslims. So it must be tolerated. (5) Jihad is a defensive,

but not an offensive, war. Therefore, when non-Muslims do not assault other people they

should enjoy sanctity. (6) The objective of war is not to exterminate the enemies but to force

them to make peace and, if required, pay tax. (7) The justifying reason for war is protecting

sanctity against those who assault it. The disbelief of the enemies is not a valid reason to

make war against them. Therefore when peace prevails everyone must enjoy sanctity. (8)

The non-Muslims must be given chance to learn about Islam which they cannot do unless they

are granted sanctity. (9) Compulsion in religion is forbidden in the Koran4.

These arguments are all based on the notion of a universal human and his place in the

network of social relations with other people worldwide. It also aims to establish peaceful

relations not only between Muslims and non-Muslims but also among non-Muslims from

different religions.

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The protection of five basic rights is also considered the common ground of all

religions, which provides a juridical ground for religious pluralism. For this reason they are

called “the objectives of the law” (maqasid al-shariah). It is apparent that Islamic law

assumes that people would always belong to a religion, which is not the case today.

According to Islamic theology and jurisprudence, these five principles constitute the

unchangeable core of all religions and the legal systems in the world. It is agreed by all

Muslims that the creed (‘aqidah) does not accept alteration but law (shariah) accepts it

because societies evolve and undergo change. Therefore the faiths taught by all the Prophets

have been the same but the laws issued by them changed over time. Yet the main purpose of

all religious legal systems across history--formulated as the protection of five basic rights--

remained unchanged. One consequence of this approach is that Muslims allowed the non-

Muslim populations they ruled to practice their laws unless it harmed one of the protected

basic rights. For instance, narrative has it that when Egypt was conquered, ‘Amr ibn ‘Âs

allowed the Egyptians to practice their conventional laws except the custom of sacrificing a

girl to the Nile for more water. Likewise, it is also reported that, in India, the Hindus were

allowed to practice their law except the custom of burning the widow with the body of her late

husband. These two customs in Egypt and India were outlawed by Muslim rulers of the time

because they contradicted the right to life. It was argued that these customs could not

originate from the practice of the founders of these religions because they normally would

respect the five protected basic rights. Similarly, the marriage between brothers and sisters

were outlawed among Zoroastrians in Iran because it was seen as violating the protection of

the family.

The above named scholars considered the protection of the five basic rights necessary

based on the argument that the purpose of God in creating the human family on this earth is

“trial” (taklif), which cannot be achieved unless the human is free and protected. Otherwise, if

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human beings were not granted basic freedoms and protections, their purpose on earth would

be unrealizable. A human’s religious choice must be honored even if it is in contradiction

with the Islamic teaching. His life must be protected because this is the only way he can

respond to the divine call. His reason must also be honored since reason is the mechanism by

which moral choices of right and wrong are made. Reason is also the only way through which

humans understand the divine message and implement it. The mind of everyone must be

honored and protected even if they oppose the way we think. The classical doctors of Islamic

law used these theological arguments to justify the five basic rights.

To illustrate this issue further, we may also briefly look at the Hanafite view on war.

From the Hanafite perspective, denial of Islam (kufr) does not justify war and deprivation

from the five basic rights (‘ismah). For Abu Hanifa, war, not disbelief, is the cause of war. In

other words, non-Muslims are protected during peaceful times since they are human beings

(âdamî), and difference of faith is not a cause for war. Even in the case of war, the enemy

side must be granted certain rights because âdamiyyah never ceases to exist; however, certain

constraints emerging from the conflict situation apply.

Yet violating the ‘ismah of others result in the termination of one’s own ‘ismah, but

neither as a whole nor forever. An official court, but not individuals, determines the

consequential punishment based on objective rules. Yet, if the public authorities fail to protect

the ‘ismah of the citizenry, or if they are the ones who violate the ‘ismah of their own citizens,

then the individual is entitled and obliged to protect his or her ‘ismah. If people die during the

struggle to protect their ‘ismah, they are revered as martyrs. In other words, the struggle to

protect basic human rights, such as protecting religion, reason, life, family and property,

which are necessary for a free and just society, is considered to be equally important as the

struggle in the battle to protect the abode of Islam against outside enemies.

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This is because the ‘ismah is indivisible and cannot be suspended under any condition

for all humans who are in principle granted the same basic rights on the equal and permanent

basis. However, as far as the criminals who deserve a punishment are concerned, the ‘ismah

becomes divisible according to the Hanafites and thus during the punishment, it is suspended

only in part and for a limited period of time. The Hanafites claim that only the relevant part

(mahall al-jaza) from the ‘ismah of the criminals, which is legally determined, is suspended

during punishment while the rest remains intact. For instance, the property of a burglar

should still be protected even if he is punished for burglary.

The Hanafite School has been strongly influential in the Indian Subcontinent, Central

Asia, Asia Minor and the Balkans, particularly during the life of the Ottoman State. The

discourse of the Ottoman scholars of law confirms the Hanafite perspective, briefly outlined

above. Yet, presently, the research is lacking to determine the extent to which the Ottoman

State actually followed the Hanafite principles in their seven-centuries-long history. At this

moment, the only observation we can make for sure is that they gave primacy, at least in the

official discourse of the Millet System, to the Hanafite law in their effort to rule a multi-

national and multi-religious state on a vast geography for an exceptionally longer period of

time. The Ottoman legal discourse on the Millet System and the debated rights of non-

Muslims under Ottoman rule can be followed in the writings of the Ottoman Shaikhulislams

and Ulema on Fiqh. The Ottoman example is one among many parallel examples from

Andalusia to India. Therefore, although it may not be seen as the only or the authentic

practice of Islam, Ottoman experience provides a significant and relatively recent Islamic

example for a noticeably plural society under Islamic rule.

The present concepts of citizenship and rights are based on different philosophical

grounds than the way they were viewed by classical scholars of Islamic law. Yet despite the

manifest differences between the premodern universalist approach in Islamic law and the

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modern secular legal systems, which I do not need to point out here one by one, a similarity is

striking concerning the concept of a universal human, which serves in both legal cultures as

the philosophical foundation of universal human rights.

Abu Hanifa’s influence continued until the beginning of the 20th century. For

instance, Al-Miydani (d. 1881), a Syrian scholar from Damascus, wrote at the end of the 19 th

century that the person has sanctity by virtue of his existence (al-Hurr ma‘sum bi nafsihi). By

the fall of the Ottoman State, the Hanafi view suffered from an eclipse until today. The so-

called contemporary “Islamic” states disinherited the Ottoman legacy and disowned the

universalistic view in Islamic law in favor of the exclusive doctrine on human rights, which

will be outlined below.

b. The Communal View: Basic rights are accorded by virtue of Islamic faith or a treaty

The competing discourse network, emanating from al-Shâfii and crossing the

conventional school borders, also gained followers from other schools of thought. This

discourse lacks the abstract concept of human qua human as a possessor of rights. Instead, it

relies on the religiously defined categories, such as disbeliever (kafir) and believer (mu’min).

Non-Shâfi‘ite scholars such as Imam Mâlik (712-795), Ahmad ibn Hanbal (780-855),

and the majority of their followers (e.g. Dawud al-Zahiri, Ibn Hajar al-Haytami, Shirbini,

Kurtubi, Karafi, Bujayrimi, Ibn Arabi, Khallaf) also defend the same perspective. Although

its first renowned advocate was al-Shâfii, an inter-school network of scholars defends this

perspective. The majority of the classical Shiite scholars also adopted the same approach (e.g.

Tûsî, and Hilli).

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These scholars generally use the following arguments: (1) The injunction on fighting

against infidels in the Koran (Tawba 9/5, 12; Anfal 8/39) is a general commandment. (2) The

Prophet said: “I am ordered to fight against people until they say: there is no deity but Allah.”

(3) Disbelief (kufr), they argue, is the worst sin and cannot be allowed.

Based on my initial research, the category of a universal human, comparable to the

Hanafite concept of âdamiyyah, does not exist in the Shâfi‘ite doctrine. Instead, Shâfi‘ite legal

thought relies on the religiously defined categories of “Muslims” and “non-Muslims.”

Muslims are qualified for the ‘ismah by virtue of their faith (iman). However, non-Muslims

are not qualified for the ‘ismah unless they make a treaty with the Muslim state and secure

their protection in exchange for the taxes they pay. This treaty is called dhimmah and the tax

paid for it is called kharaj. According to Hanafites, the treaty of dhimmah is not a reason for

‘ismah (which is already universally present), rather it is an alliance against the third parties.

Likewise, according to the Shâfi‘ites, being a non-Muslim, with the exception of dhimmis, is a

cause for war. From the communal perspective, since non-Muslims do not have ‘ismah, the

relationship between Muslims and non-Muslims is considered to be a continuous state of war

unless there is a treaty of peace. Yet, according to the Hanafites, non-Muslims who are not the

citizens of the Islamic state are also protected because they have ‘ismah as humans. Likewise,

the apostate (murtadd) is punishable because of his apostasy (kufr), according to the

Shâfi‘ites. For Hanafites, apostasy is punishable, not because it is a denial of Islam as a true

religion, but because of its danger to the community and the confusion of faith it causes.

These points can be seen as just some implications of the lack of a concept of the universal

human and his rights in the Shâfi‘ite doctrine.

The Shâfi‘ite view, which is also shared by a significant number of scholars from the

Mâlikite, the Hanbalite and Shiite schools, has been influential in Hijaz, Egypt, North Africa,

Spain and Iran in varying degrees until the Ottoman rule took over. The Jews and Christians

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residing in these regions maintained their life as dhimmis who possessed ‘ismah due to their

treaty with the Islamic rulers who followed the Shâfi‘ite doctrine.

I will adopt a method of historical and contextual interpretation of the legal evidence

used by al-Shâfii and his followers to reach a consolidation between the communal (Shâfi‘ite)

and the universal (Hanafite) positions in the Islamic legal doctrine. This approach has already

been used by the scholars who adopted the universal approach to basic human rights in their

counterarguments against those who called for a communal view. The communal arguments,

which I summarized above, are criticized as follows: Regarding the first and second

arguments, it is claimed that the various orders in the Koran and Hadith to fight against non-

Muslims apply to the times of war or a particular group of Arab polytheists living in Hijaz.

Therefore, these orders cannot be generalized. Against the third communal argument

mentioned above, it is argued that the non-Muslims must be given chance to learn about

Islam. Besides, Islamic law does not punishes all sins against God unless they harm other

members of the society. Furthermore, the compulsion to accept Islam is forbidden. On a more

philosophical level, the prominent Hanafi scholar Marghinani (d. 1197) criticized the Shâfi‘ite

view as follows:

With respect to the arguments of al-Shâfii, we reply that his assertion, that the “sin-creating protection

(al-’ismah al-mu’thimah) is attached to Islam” is not admitted; for, the sin-creating protection is

attached, not to Islam, but to the person; because man is created with an intent that he should bear the

burdens imposed by the LAW, which men would be unable to do unless the molestation or slaying of

them were prohibited, since if the slaying of a person were not illegal, he would be incapable of

performing the duties required of him. The person therefore is the original subject of protection, and

property follows as the dependant thereof, since property is, in its original state, neutral, and created

for the use of mankind, and is protected only on account of the right of the proprietor, to the end that

each may be enabled to enjoy that which is his own… (The Hedaya, II, 201-2).

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c. Eclectic Thinkers and Reconciliation between the Two Paradigms

The universal approach crossed the boundaries of the Hanafite school and gained

followers from other schools of thought (madhhab) in Islam, which gave rise to an inter-

school discourse network. A brief survey of other like-minded scholars and their intellectual

affiliation will demonstrate this structure. Non-Hanafite scholars such as Ghazzali from the

Shâfi‘ite school, Ibn Taymiyya and Ibn al-Qayyim al-Jawziyya from the Hanbali school, Ibn

Rushd, Shâtibî and Ibn al-‘Âshûr from the Mâlikite school, and Maghniyya from the Jafari

Shiite School also share the Hanafite opinion. Therefore, it would be misleading to take the

universal view on human rights as an exclusively Hanafite perspective—despite the fact that

its originator was Abu Hanifa.

II. The Genealogy of the Human

We tend to take the concept of the human for granted. Gaining recognition as a human

before the law is no longer considered a great achievement in the world today. However,

historically, it was not always so. This was true particularly for the minority groups of men,

and, in particular, women. It was only through a prolonged evolution in belief systems, social

structures and legal concepts that all men and women came to be considered human and

person on an egalitarian bases. The definition of the concept has been forcefully expanded by

the struggles of segregated groups5. Rarely, however, did a group fight for the rights of other

groups6. Though I have no claim on the Western legal tradition, I would like to begin with it

because it is the familiar story. The purpose here is to set the ground for the future

comparisons I intend to undertake for a better illustration of the tensions in the Islamic legal

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tradition. I believe the tension in Islamic law between inclusive and exclusive paradigms is a

phenomenon that can be commonly observed in the Western legal culture as well. Therefore,

without going into detail, I will rely on the common narrative about the history of the concept

of human and human rights.

The Genesis of Human in the West

Currently human rights have been accorded to an object called human. It is a recent

innovation and a legal construction. Its meaning has also gone through semantic shifts,

contractions and expansions. The word human was first used in English in 15337, as a

synonym for the word “man.” The word person, which emerged in English during the 13th

century, is also used synonymously8. Both terms have been variably constructed and used in

the political and legal discourse during the subsequent centuries. Person, used more as a

technical legal term, is defined as the bearer of rights and duties, whereas human, used more

as a philosophical concept, refers to any member of the human family. Usually, in the

common discourse, they are used interchangeably.

Historically, a human or a man has not always been considered a person, the bearer of

rights and duties. Even if they were considered so, they have not been considered equal

regarding rights and duties. Certain law dictionaries reflect the recent manner the concept

was used as such:

Every full citizen is a person; other human beings, namely subjects who are not citizens, may

be persons. But not every human being is necessarily a person, for a person is capable of rights

and duties, and there may well be human beings having no legal rights, as was the case with

slaves in English law… A person is such, not because he is human, but because rights and

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duties are ascribed to him. The person is the legal subject or substance of which the rights and

duties are attributes. An individual human being considered as having such attributes is what

lawyers call a natural person9.

Recognition of all human beings as equal persons on the global level is a new concept

in the Western history. The communication revolutions in the past century, especially the

internet, resulted in the Death of Distance10 and brought about close interaction of foreign

cultures, religions and societies on the global level, which eradicated some of the traditional

symbolic borders between different communities.

The terms human and person gradually expanded until they encompassed all human

beings, regardless of sex, color and religion. Consequently, when we read historical

documents where the terms person and human occur, we need to determine who are meant by

them. For instance, in the historical declarations of human rights, these terms do not denote

every one in the concerned society. Instead, they usually include the parties at the bargaining

table. For instance, the concept usually does not embrace women. Therefore attributing

contemporary meanings to the terms used in the historical documents, such as the Magna

Carta, would inescapably lead to anachronism.

What are the social, political, legal and cultural dynamics that triggered and sustained

this sluggish expansion in the egalitarian definitions of human and person? The process of the

evolutionary semantic expansion has been characterized by bloody conflicts. During the

middle ages, men and women, the clergy and laity were not equal. Nor were the nobility and

lower classes.

Every excluded group, it appears, had to forcefully fight to gain the right to inclusion

and to be treated as equal humans. Women, African-Americans and Jews are just some

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examples of such groups who were normally excluded from the concept. The definition of

human rights bearers initially included West European white males. Even English speaking

residents of the American colonies were not treated as full persons by the British Empire.

Through the American Independence war, American white males gained the status of being

considered equal human beings with the right to self-determination. The civil war, the civil

rights movement and the feminist movement caused the concept to further expand to embrace

all US citizens. Yet, the individuals in the US who are categorized as “permanent residents”

or “aliens” are still not granted equal rights as citizens.

With the UN Declaration in 1948, for the first time in history, the terms human and

person have been used in a truly inclusive manner on the universal level. Later, the

constitutions of some member countries, e.g. most European countries, have also incorporated

the concept of universal human and the ensuing rights while some have not. Although it

played the leading role in the preparation of the UN Declaration, the US has not incorporated

the concept of the universal human rights in its own constitution, which relies on the concept

of civil rights.

The above survey demonstrates how the changing constellation of relations among

nations and groups transformed the concept of exclusive concepts of human and person into

inclusive and universal ones. Excluded groups were not welcomed out of mercy. Instead,

each group had to pave its way forcefully. The birth of the concept of human and its

definition, as history documents, has been contentious, painful and bloody. The concept of

the universal human is a great achievement for humanity with the due cost paid by the lives

and blood of an enormous number of people all over the world.

Historians usually credit the philosophers of the Enlightenment for the initial

formulation of a concept of the universal human. Why did they construct such a concept and

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what did Europeans do with it? We need to look more closely to the conflicts at that time

between the secular intellectuals and the ecclesiastical thinkers. The Enlightenment

philosophers undermined the religiously defined, and thus non-universal, concept of a human

to set the philosophical ground for a secular definition. They were trying to draw a new line

against the Christian Church doctrine of the time, by speaking on behalf of humanity, but not

on behalf of Christendom. From this perspective, the construction of the universal human can

bee seen as a secular achievement, which took place after emancipation from religious

categories imposed on human groups based on their faith.

1 One should bear in mind that the historians of religion consider Islam also a Western religion. It is commonly known that Islam, as a religion, has more things in common with Judaism and Christianity than Buddhism, Hinduism and Taoism. 2 Baber Johansen, “Der ‘ismah-Begriff im hanafitischen Rect,” in Contingency in a Sacred Law: Legal and Ethical Norms in the Muslim Fiqh, Leiden: Brill 1999, pp. 238-263. 3 “ Nor take life - which Allah has made sacred - except for just cause. And if anyone is slain wrongfully, we have given his heir authority (to demand retaliation or to forgive): but let him not exceed bounds in the matter of taking life; for he is helped (by the Law) (The Koran 17/33). "O believers, be you securers of justice, witness for God. Let not detestation for a people move you not to be equitable; be equitable - that is nearer to God-fearing" (The Koran 5 :8). "...Whoso slays a soul not to retaliate for a soul slain, nor for corruption done in the land, should be as if he had slain humankind altogether" (The Koran 5:32). In the address which the Prophet delivered on the occasion of the Farewell Hajj, he said: "Your lives and properties are forbidden to one another till you meet your Lord on the Day of Resurrection." The Prophet has also said about the dhimmis (the non-Muslim citizens of the Muslim state): "One who kills a man under covenant (i.e., dhimmi) will not even smell the fragrance of Paradise."4 “Let there be no compulsion in religion: Truth stands out clear from Error: whoever rejects evil and believes in Allah hath grasped the most trustworthy hand-hold, that never breaks. And Allah heareth and knoweth all things” (The Koran 2/256).5 In 1964, less than forty years ago, Malcom X (1925-1965), in a speech made in New York, explained the goal of his political movement as follows: “We are not fighting for integration; nor are we fighting for separation. We are fighting for recognition as human beings.” 6 The American Civil War and the Civil Rights Movement are two such examples. In the former, the free people fought for the rights of the slaves. In the latter, a segment of the white community supported the rights of the African Americans which was crucial for the success of the Civil Rights Movement. 7 The dates of first usage are from Webster’s Collegete Dictionary. 8 And less so is the concept of individual. 9 John Bouvier, Bouviers’s Law Dictionary: A Concise Encyclopedia of the Law, Kansas City, MO: Vernon Law Book Company, 1914, p. 2575. Also See Henry Campbell Black, Black’s Law Dictionary (Third Edition), St. Paul Minn.: West Publishing Co. 1933, p. 1356.10 See, Cairncross, Frances, The Death of Distance: How the Communications Revolution is Changing our Lives, Boston : Harvard Business School Press, 2001.

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The history of the human rights can be extended retrospectively to the past by exploring not

only its immediate fathers but also remote ancestors. For instance, the work of ancient

prophets and philosophers can be seen as achievements toward a universal concept of

human11. These efforts, which must be understood within their own context, cannot be

compared in organization and implementation to the UN declaration, although its objective

still remains as a remote ideal for the majority of the people in the world. The article 6 in the

UN Declaration stipulates that “Everyone has the right to recognition everywhere as a person

before the law.” This may be seen as the culmination of a long process in the Western history

from segregation to civil rights and to universal human rights. Through this article, the

universal bearer of human rights was reaffirmed and rights were accorded to every human.

Religious and conservative traditions in the world, which initially opposed the

universal human rights, eventually came to internalize them and unearth the roots of the idea

in their tradition. These traditions may be seen as the ancestors of the idea, but not the

immediate sources because, as history documents, it belongs to a coalition of secular efforts,

both socialist and capitalist and Eastern and Western combined. Each tradition has justified

human rights in their own terms. The states agreed on the rights but disagreed on their source.

Therefore, UN documents strategically and persistently evaded the reference to the source of

rights. The silence of the documents on the source of rights allows each community to

variably justify them while still remaining within the universal paradigm of human rights.

Thus, even if the socialist ideology, which championed human rights more forcefully than

others during the last century, found itself in crises by the collapse of the USSR, the UN and

the universal human rights paradigm remained unaffected. Internalization of the human rights

paradigm by various secular and religious worldviews and activation of their resources to

justify them in their own dialects strengthens both sides.

11 See, Micheline R. Ishay, The Human Rights Reader: Major Political Essays, Speeches, and Documents from the Bible to the Present, New York: Routledge 1997.

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The Western human rights discourse has a dynamic history with many dialects. It has

already become the lingua franca of politics and law in our age. The present challenge for

Western advocates, especially Americans, is to make the human rights paradigm work for all,

especially globally beyond the Western world. Since its legitimacy heavily derives from its

claim to universality, the survival of the human rights paradigm in the West depends on

whether it will work for non-Western people as it does for Western people. Otherwise, if the

“New World Order” fails to make it work for all at the global level, its legitimacy and

credibility will be undermined, and consequently the inevitable recess back to the exclusive

civil rights paradigm will ensue in the West.

The Genesis of the Human in Islam

After the familiar story about the development of the inclusive concept of human and

the universal human rights in the Western history, now we can turn to Islamic history to see if

there is a concept of a universal human in Islamic legal tradition. If so how and when did it

emerge? How did it evolve? And what did Muslims do with it?

The concept of the universal human was born with the teachings of the Prophet

Muhammad (571-632). The Qur’anic message is addressed to the entire humanity (al-nas pl.

of insan) and the children of Adam (Benuu Adam). The terms used in the Koran and the

sayings of Prophet Muhammad (the Hadith) to indicate human are insan, ibn adam (child of

Adam) and nafs (soul or individual). Yet our focus here is not on the scriptures of Islam (the

Koran and the Hadith) but on the Islamic law, which is extrapolated from them as well as

other resources such as custom and analogy. Previous studies have already explored the way

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the Koran and the Hadith approach the definition of a human and human rights. Thus I will

not reproduce those here.

My research in the classical Islamic literature on jurisprudence demonstrates that there

is such a concept in the legal discourse network emanating from Abu Hanifa (699-767), but it

is absent in the competing legal discourse network emanating from al-Shâfii (767-820). The

Shiite scholars are also divided on this issue. Abu Hanifa and his followers use the term

âdamiyyah (lit. being a child of Adam, humanness, or personhood) to indicate the abstract

concept of a universal human. Having ascertained the existence of a universal concept of

human in Islamic legal tradition, we know now that it is likely for Islamic law to produce

human rights. Since the basic concept exists, it is possible to analyze and evolve it.

Who is, then, a human in Islamic thought? She is created in the image of God, not

physically, but spiritually, in the sense that her attributes are similar to those of God regarding

mercy, knowledge, love, justice and the like. God bestowed His attributes such as knowledge

to humans yet in a limited form. Infinity belongs only to God. Human soul is a divine breath.

A human is a vicegerent of God on earth; she is charged to represent His will and implement

justice. God’s love and providence for humanity are universal, for believers and infidels, for

pious and sinful. A believer is also required to love God and His entire creation and treat

them accordingly.

All human beings are created perfectly. They are born with perfect souls. By nature,

everyone is a Muslim, in the sense that they all obey God’s will, peaceful and free of sins.

Yet later they are misled by the corrupt traditions, customs and cultures. Islam is seen as the

natural state of mind and heart; the natural religion, law and morality. The word Islam is used

as a generic name for all religions sent by God to humanity, not only the religion preached by

Prophet Muhammad. Thus, for a non-Muslim to embrace Islam is a reversion to her nature,

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not a conversion. Rational theologians believe that even if God had not send Prophets, people

can, and must, discover what is good and bad by using their minds and conscience.

God sent Prophets to help people in easily learning what they can also discover by

themselves but in a longer time. Divinely inspired teachings of the Prophets reaffirm what is

inherent in human nature concerning good and bad conduct. God does not punish a people

without sending them a Prophet to warn and teach them; otherwise it would be unjust.

Therefore, hundreds of thousands of Prophet were sent to all peoples of the world. Prophet

Muhammad is the last ring in the chain of Prophets; he inherited the legacy of all Prophets

who came before him, integrated and perfected them.

No human being is god. Nor can one speak with the voice of God. All are vicegerents

of God on earth and have direct personal access to God. No mediator is allowed between God

and human. The ruler is the vicegerent of Prophet Muhammad, this is what the word Caliph

stands for (khalifat rasul Allah), but not representative of God, which is a title common to all.

A human occupies the highest ontological category, higher even than the angels.

Therefore, God ordered them to prostrate before Adam. Angels are not blessed with the free

will and rational knowledge. Yet, corruption may cause humans to descend to the lowest

levels of creation. Woman is not blamed for the fall from Heaven. Devil deceived both

Adam and Eve in Paradise at the same time; it was a jointly committed sin, which was

forgiven by God after they repented. Those who commit a sin must repent by themselves and

revert back to their pure state. Publicizing a sin one has committed by telling it to others is

blameworthy.

The heart of a believer is the House of God, more sacred than the Kaaba in Mecca.

The Kaaba is a stone building and will perish as the entire world will collapse in the last hour,

yet a human heart is made of divine light and will not perish. The seat of reason is heart.

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Thinking is an activity of heart. Oppressing others and corruption may cause heart die and

loose touch with moral reality. God looks only at hearts and actions, not at the appearance of

the individuals.

Diversity among humans is intended by God because it reflects His power and art.

God created humans in different sexes, races, nations and cultures without giving superiority

to one over other. The diversity allows them to know each other, a knowledge through which

they discover God’s greatness. The Koran states:

O humankind! Lo! We have created you male and female, and have made you nations and

tribes that ye may know one another. Lo! the noblest of you, in the sight of Allah, is the best in

conduct. Lo! Allah is Knower, Aware (The Koran 49/13).

God uses the relations with fellow humans to try them. The trials are passed if all the

rights are paid. Man and woman are tried in their relations. Same is true for family members,

neighbors, sellers and customers, teachers and students, and rulers and subjects. Religion is

for humans but not vice versa; humans are not for religion; it is sent to improve love, morality

and justice in social relations. Prophet Muhammad said: “I am sent to perfect morality.” He

also said: “The best among you in the sight of God are those who are best in their conduct to

others.”

Rights and duties bind people to each other in constructing a society. God created

humans in such a way that they cannot maintain their life alone; needs brings them close to

each other. Satisfaction of needs must be through lawful and moral ways. Humans are thus

social and moral beings.

All human beings share fundamental rights equally. Basic human rights in Islamic law

fall under the heading of ‘ismah, which literally means legal protection, sanctity and

infallibility12. Occasionally, the concept hurmah, which literally means sanctity, is also used

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with the same meaning. The ‘ismah covers five basic values: life (nafs), property (mâl),

religion (dîn), mind (‘aql), family (nasl). The latter is also called honor (‘ird) by the majority.

However, some jurists consider honor separately as the sixth universally protected value. In

other words, ‘ismah provides the following basic rights: right to life, property, freedom of

religion, expression, family and honor. In the current language of human rights discourse in

the West, these are called “basic” or “irreducible” rights. One has to bear in mind that the

political system under which these terms were used was different than the national state

structure we are living in today. Therefore, one should not equate them with their

contemporary counterparts without further exploration and deliberation.

The protection of these five values are considered “the five founding principles of

law” (al-usul al-khamsah), “the indispensible or axiomatic rights of the human” (darûrat or

daruriyyat), “the expected functions of law” (masalih al-mursalah) and the “objectives of the

law” (maqâsid al-shari‘ah). Islamic law also recognizes other needs and rights for humans,

but they are less strongly emphasized: the fundamental needs (haciyyat) and accessories

(tahsiniyyat). These terms will be discussed later in greater detail.

Muslim jurists employed the term ‘ismah to develop a universal legal philosophy,

regarding the needs fulfilled by law, its governing principles, objectives and functions. They

considered the protection of the basic human rights, covered by the concept of ‘ismah, not

only as the foundation of Islamic law, but also all legal systems. These jurists expected all

legal systems to conform to this basic criterion, grounded on the concept of ‘ismah, to be

qualified as legitimate under Islamic rule.

The classical jurists set the goal of the political system as the “world order” (nizam

al-‘alam), embracing not only Muslims but also the followers of other belief systems.

12 The latter is the meaning the ‘ismah is commonly used in the Islamic theology. For instance, the ‘ismah of the prophets indicates their infallibility.

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Consequently, Islamic societies in history from Andalusia (756-1031) to the Middle East and

India (1526-1857) had usually been characterized by a cosmopolitan society and culture. The

Islamic political system allowed concurrent jurisdiction by different religious communities as

well as by different Islamic schools of law (madhahib). It was called the Millets13 system and

was implemented by all Muslim states from the beginning of Islamic history. Therefore, it

would be a grave mistake to associate Millets system exclusively with the Ottomans, who

inherited it from previous Islamic states and improved it. Under Islamic rule, each

community enjoyed the status of Millet: the Jews, various Christian denominations such as

Copt, Armenians and Orthodox, along with Zoroastrians, Hindus and Buddhists.

This pluralist system required a universal legal philosophy that would grant legitimacy

to different legal systems, irrespective of the religion or tradition behind it. A Muslim jurist

was therefore required to produce a legal framework under the umbrella of which various

legal systems could concurrently operate without conflict. This universal legal philosophy,

which I will briefly present below, may be characterized as a meta-jurisprudence, the

jurisprudence about jurisprudences.

13 The term was introduced in the West by the Ottoman historians who described the Ottoman society as the Millet(s) System. Millet is the Turkish spelling for the Arabic millah, which means a politically organized community, brought together by a secular or religious belief system. The study of Millets and their subgroups was a special interest for Muslim scholars in the classical era, who created the genre of al-Milal wa an-Nihal. The famous Farabi also wrote a book titled al-Millah al-Fadilah, the Virtuous Society.

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III. The Practical Implications of the Contest between Universal and Communal

Doctrines

The preceding contest shaped many issues in the Islamic legal tradition as the

advocates of the contesting paradigms systematically and persistently took their view to its

logical ends. They shadowed all the relevant practical issues in social and international

relations. Therefore, there are numerous political and legal issues emanating from it. Fully

recovering all the implications is not our purpose here, which may require a painstaking

survey of all classical literature. The purpose here is to demonstrate the wide ranging impact

of the contest on the relationship between the human and human rights. Five examples will

be presented below, which will suffice for our purpose here.

1. What is the de facto state of international relations?

Peace, the universalistic approach argues, is the de facto state of international relations

between Muslims and non-Muslims, unless otherwise proven. By default, non-Muslims are

friends. If there are indications proving the contrary, then they are considered enemies. For

them “the cause of war is war.” In other words, if non-Muslims initiate war, Muslims also

engage a defensive war against them. The universalistic scholars carefully distinguished

between adversity (harb) and infidelity (kufr): all enemies may be infidels but not all the

infidels are enemies.

War, argues the communalist perspective, is the de facto state of relations between

Muslims and non-Muslims, unless otherwise proven, on the grounds that the cause of war is

infidelity (kufr). Consequently, non-Muslims are by default enemies (harbi); if there is an

indication to the contrary, then, they are considered friends. Therefore, non-Muslims, with no

treaty of peace, have no sanctity.

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2. Whose ‘ismah are we required to protect?

We are required to protect the sanctity of all humanity, argue the universalistic jurists.

For them, all human beings fall under the jurisdiction of Islam. Therefore, Muslims must

stand even for the human rights of non-Muslims. Each individual, community and state is

responsible for the entirety of humanity. Failing to act makes each one of them accountable,

legally and religiously.

In contrast, the communalist jurists claim that we are responsible only to protect the

sanctity of the citizenry. Disbelief disqualifies non-Muslims who did not make a treaty with

the Islamic state to have human rights. Consequently, Muslims are not responsible for the

rights of non-Muslims. Also, they argue, only citizenry fall under the jurisdiction of Islamic

state.

3. Is apostasy a crime?

The universalistic perspective argues that apostasy alone is not a punishable crime

unless it is accompanied by a conspiracy to harm the sanctity of the religion of Islam. This

may happen through discrediting Islamic religion with propaganda14. The verse in the Koran

on apostasy was revealed after a group of conspirators decided to enter Islam as a group and

14 “A section of the People of the Book say: "Believe in the morning what is revealed to the believers [Muslims], but reject it at the end of the day; perchance they may (themselves) turn back; and believe no one unless he follows your religion." Say: "True guidance is the Guidance of God. (Fear ye) Lest a revelation be sent to someone (else) Like unto that which was sent unto you? or that those (Receiving such revelation) should engage you in argument before your Lord?" Say: "All bounties are in the hand of God. He granteth them to whom He pleaseth: And God careth for all, and He knoweth all things." For His Mercy He specially chooseth whom He pleaseth; for God is the Lord of bounties unbounded. Among the People of the Book are some who, if entrusted with a hoard of gold, will (readily) pay it back; others, who, if entrusted with a single silver coin, will not repay it unless thou constantly stoodest demanding, because, they say, "there is no call on us (to keep faith) with these ignorant (Pagans)." but they tell a lie against God, and (well) they know it. Nay.- Those that keep their plighted faith and act aright,-verily God loves those who act aright. As for those who sell the faith they owe to God and their own plighted word for a small price, they shall have no portion in the Hereafter: Nor will God (Deign to) speak to them or look at them on the Day of Judgment, nor will He cleans them (of sin): They shall have a grievous penalty. There is among them a section who distort the Book with their tongues: (As they read) you would think it is a part of the Book, but it is no part of the Book; and they say, "That is from God," but it is not from God. It is they who tell a lie against God, and (well) they know it!” (The Koran, 3/73-78).

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leave it after a short while to persuade others that they could not find what they looked for in

Islam. Therefore, for the stipulation about the punishment to be applicable to a particular case

of apostasy, it must be carried on with the purpose of conspiracy against Islam, but not out of

mere conviction. From this perspective, a non-Muslim, even if he is an apostate, is not by

default an enemy.

The communalist perspective, however, argues that apostasy in itself is a punishable

crime. This argument is based on the verse from the Koran15; it does not take into account the

historical circumstances in which the stipulation was made. The apostate looses his

citizenship by loosing his religion because, for the communalist jurists, citizenship is granted

by virtue of faith. Consequently, he also looses his sanctity. From this perspective, since the

apostate is a non-Muslim who is not a citizen, by default he is considered an enemy.

I should also note that none of the schools requires punishment of a woman who

leaves Islam. They also unanimously agree that non-Muslim women must not be killed

during war because of the utter prohibition by the Prophet Muhammad. Hanafi scholars used

this unanimously accepted practice to support their claim concerning the reason why the

apostate is punishable. They argued that had the apostasy was the ground for the punishment

of apostasy, she would also be punished the same way as the male apostate. Therefore, they

conclude, it is not apostasy, but engaging in a war against Muslims is the reason why the

apostate is punished.

15 “Those who believe, then reject faith, then believe (again) and (again) reject faith, and go on increasing in unbelief,- Allah will not forgive them nor guide them nor guide them on the way. To the Hypocrites give the glad tidings that there is for them (but) a grievous penalty” (The Koran 4/137). They swear by Allah that they said nothing (evil), but indeed they uttered blasphemy, and they did it after accepting Islam; and they meditated a plot which they were unable to carry out: this revenge of theirs was (their) only return for the bounty with which Allah and His Messenger had enriched them! If they repent, it will be best for them; but if they turn back (to their evil ways), Allah will punish them with a grievous penalty in this life and in the Hereafter: They shall have none on earth to protect or help them” (The Koran 9/74). “And there are those who put up a mosque by way of mischief and infidelity - to disunite the Believers - and in preparation for one who warred against Allah and His Messenger aforetime. They will indeed swear that their intention is nothing but good; But Allah doth declare that they are certainly liars” (The Koran 9/107).

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4. Are there any implications on woman’s rights?

Since the protection of family is a human right, some disagreements in family law may

be traced back to the contesting position on the human rights. The universalistic perspective

does not make a distinction in principle between man and woman; both are considered human,

adami, and are entitled to the same human rights. However, outside the basic human rights,

one can discern, looking from a modern perspective, that women are treated differently than

men in such areas as inheritance and family law. These practices were not traditionally

considered unequal treatment. Yet, the notion of equality and the gender roles have

undergone a great change during modernization. These changes may be attributed to the

prevailing customs that influence law. Islamic jurisprudence states that custom always

changes; so are the rules grounded on them. There is a heated debate currently going on in

this area, which falls beyond the interest of this book.

According to Hanafi scholars, a woman, be she a virgin or a widow, can marry herself

independently. In an arranged marriage, a marriage contract is invalid without the consent of

woman. The communal perspective gives greater authority to the family over a woman’s

marriage; a marriage contract is invalid without the consent of a guardian from the family of

the woman. A virgin cannot conduct the marriage act by herself without the presence of a

guardian; only a widow can marry herself independently. Communalists argue that this

serves better to the interest of the women because the guardians are more experienced in the

intricacies of marriage than the inexperienced young woman.

Islamic law has produced a complicated system of ending marriage, involving

methods and concepts that may have no parallels in modern law. Marriage may be conducted

and dissolved independently, by the consent of the parties involved, without authorization

from state officials or religious authorities. Without going into details, it suffices us to say that

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the Hanafi law grants equal rights to a unilateral dissolution of marriage (talaq); both parties

are entitled to negotiate on the three rights of unilateral divorce without the court’s decision.

According to the Shaffi School, however, a woman is not entitled to the unilateral dissolution

of marriage (talaq). Both schools accept that she is entitled to file a divorce with the court, in

which case the dissolution is produced by a court decision.

5. Does indictment cause ‘ismah to fall entirely or in part?

This issue is related to the rights of the criminal and prisoners. Indictment does not

cause the ‘ismah to fall completely in any school of law; all agree that an indicted person still

enjoys basic human rights. However, the Hanafi jurists are more attentive to keep it as intact

as possible. Consequently, they refuse coupling reparation with punishment. For instance,

from the Hanafi perspective, either punishment or reparation is required to punish theft

(sirqat). However, the Shafii scholars argue that both punishment and reparation apply in the

case of theft.

These examples are sufficient to observe how the different positions on the issue of

‘ismah led to different legislations. A wide array of judgments emanated from the contest

between rival paradigms on human rights. Exploring the tension between universal and

communal perspectives thus allows us better understand the divergence of Islamic law and

appreciate the logic behind it.

IV. Why did Jurists Differ on the Universality of Rights?

The above survey demonstrates that all Muslim jurists emphasized rights but some

gave them greater emphasis and scope. At this point, we are faced by two explanatory

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questions: Why was there such a great emphasis on rights in the classical Islamic law by all

jurists? Why did Muslim jurists defer on the issue of universality? Or, why did Abu Hanifa

emphasize human rights more than other jurists and accord them to all human beings, instead

of citizenry alone? I argue that the answer for the first question lies in the ambigious relation

between ‘Ulama and the state. I also argue that the answer for the second question lies in the

different methodological postulates adopted by different jurists. In my explanation, I combine

political and cultural factors.

The ‘Ulama and the State

All schools of law resisted enaction of their rulings by the state. Muslims had been

free to follow any school of law or scholarly opinion. ‘Ulama knew that enaction would bring

about monopolization to the interpretation of religion and law; it would also allow state to

insert more influence on society. Consequently, Islamic law was never the positive or official

law of the state during the Islamic history. Now was it the canonical law of Muslims,

represented by a Church like structure. Islamic law was loosely codified in the legal literature

according to different schools of law, but not enacted by a state until recently. For the first

time in Islamic history, Ottomans enacted Islamic law towards the end of the 19th century.

The ‘Ulama made it clear that their voice was not the voice of God. Therefore, they

argued, no human doctrine can be imposed on all believers as God’s absolute will. A

scholarly opinion (ijtihad) is God’s will according to a particular mind. Other minds are also

entitled and obliged to strive to discover God’s will. Scholars presented their opinions as an

outcome of their mind, but not divinely inspired views. As Baber Johansen also points out

Islamic epistemology was characterized by contingency, which served as a foundation of

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freedom of religion and expression. Some scholars are reported saying, “I know I am right,

but I may be wrong. And I know that my opponent is wrong, but he may be right.”

Scholars had thus imposed limitations on their own authority, despite the temptations

by the state. It is unanimously accepted by all schools that “imitation” of scholars ( taqlid) is

not acceptable in Theology; every Muslim is required to rationally ground her faith (taqlid) by

using her mind. Blind faith is rejected. Consequently, if one is asked, “why are you a

Muslim?” one is not allowed to say “because scholars say it is the right path.” Instead, she

has to produce her own reason(s), which are convincing for her, not necessarily convincing

for all. Yet, in legal and moral matters one is allowed to follow a scholar she chooses,

because they are not as fundemantal as matters of faith and also it is impossible for everyone

to specialize in law and morality.

None of the founders of the four schools of law in Islam accepted offers by the rulers

to the highest offices in the government. Therefore, one wonders whether the ambiguous

relationship between the ‘Ulama and the state had an impact on the rise of the theory of

‘ismah. Abu Hanifa did not accept the request by the Abbasid ruler to serve as the chief

judge, even though he was tortured at an old age16. His attitude may be seen as civil

disobedience. Whether it would be possible to attribute Abu Hanifa’s greater emphasis on

universal human rights and individual freedoms to his personal experience with the state is a

question yet to be explored. Malik was asked by the Abbasid caliph whether he would allow

his book, al-Muwatta’, to be enacted all over the Islamic state17. He also refused such a great

prestige on the grounds that he did not want to limit the understanding of law by an individual

16 See Dhahabi, Tadhkirat al-Huffaz, I, p. 127. “ He [Abu Hanifa] did not accept rewards from the ruler but worked to make a living and earn money for himself… Yazid bin ‘Umar bin Hubayra tortured him physically (daraba) to make him accept the office of judge but he resisted.” 17 Enacting a standard law for the entire Abbasid Caliphate came from Ibn al-Muqaffa’, an Iranian convert and advisor to the Caliph. Yet the project failed as it faced resistance from the ‘Ulama. The first enactment of Islamic law took place by the Mejelle, during the 19th century Ottoman legal reforms, which was prepared and implemented by the Ottoman ‘Ulama.

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interpretation. Ahmad ibn Hanbal was tortured by the Abbasid rule for his refusal of the

official theology of the state. Shafii, who studied under Ahmad ibn Hanbal and Muhammad

al-Shaibani (one of the students of Abu Hanifa) also refused employment by the state and

relied exclusively on his own financial resources.

Some observes see this as an Islamic form of separation between state and religion18.

It might also be seen as the Islamic form of secularism. Had the ‘Ulama accepted cooptation

by the state and allowed the sanctification of their legal opinions by the enactment of the state,

a corporate religious authority with an exclusive claim to define what is right and wrong

would have emerged in Islam. The pious scholars considered employment by state a disgrace.

The famous saying goes, “the worst scholar is the one at the door of a ruler and the best ruler

is the one at the door of a scholar.” Refusing cooptation by the state ensured greater autonomy

and self-determination for Islamic law and jurists. Rejecting what everyone desired also

increased their legitimacy and authority in the eyes of the general public as they remained

untainted by governmental corruption and oppression. It seems that by refusing the power

over bodies with the state enforcement, they aimed to gain more power over minds and hearts.

Governments usually cooperated with less pious ‘Ulama who had less influence on the

public, but even then the relationship was not always smooth. These scholars accepted

government employment to better promote implementation of the Islamic law through state

enforcement. Yet resistance still continued. For instance, the Madrasa or university became

integrated in the government system but the Tekke, or the Sufi lodge, did not. The ascetic Sufi

scholars preferred to remain independent of the temporal powers. Even then, the scholars in

the Madrasa received their payments, not from the state, but from private foundations

established to support education. In the Ottoman hierarchy, the Shaikh al-Islam came even

18 See, Ira M. Lapidus, A History of Islamic Societies, Berkeley, CA: California University Press, 1988.

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before the Grand Vizier, and was second only to the Ottoman Sultan. He was the only person

in the Sublime Port, Istanbul, with the power to revoke government decisions, which they

freely used on many occasions.

However, the ‘Ulama did not tightly organize themselves under one structure. Their

organization was rather informal and fluid; it was different than the way Christian clergy was

organized as one big Church. Instead, the scholars acted as individual authorities who were

connected to each other through informal scholarly networks, shaped by their affiliations to

various schools of thought. The state, however, was well-organized from the very beginning

of Islamic history, with the exception of its civil wars. Consequently, the representation of

religion was left to the authority of the individual scholars. The scholar was a powerful

person; she carried the power to ordain a student as a scholar (‘alim). Actually, she was the

sole authority to do so. Even the state could not issue a diploma to assign one as a scholar. In

the same way, the individual scholar, but not an organization, was the only authority capable

of issuing a religious ruling based on her informed opinion (ijtihad).

Intellectuals need protection from the state to express and implement their views. The

‘Ulama, who were the intellectuals of their time, developed a theory of human rights that

ensured everyone, including themselves, protection against the powerful actors in the society,

particularly the state.

Specifically, the strikingly broader views of Abu Hanifa on the rights and freedoms of

the individual at the universal level might have been influenced from his relationship with the

powerful actors, as a businessman, intellectual and immigrant. Abu Hanifa was both a

businessman, especially in his youth, and a scholar. He was also a second generation convert

and immigrant. The founders of the other three schools shared with Abu Hanifa only the

pressure he faced as an intellectual, although not to the same extent, but they did not share at

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all the pressures he faced as a businessman, as a convert and as an immigrant. These

biographical differences, whether knowingly or unknowingly, might have had an impact on

the greater emphasis and wider scope Abu Hanifa assigned to human rights.

Two Root Paradigms in Islamic Jurisprudence

We may expand our search for the possible causes behind the scholarly conflict I have

described above by comparatively analyzing the methodological and juridical postulates used

by different jurists. What led to the rise of the two rival perspectives on human rights in

Islamic law? What prevented the communalist scholars like al-Shafii from developing, or

adopting the existing universalistic view on human rights? This question can only be

answered by exploring the philosophical and methodological differences between the two

rival root paradigms in Islamic jurisprudence: The Rational School (Ahl al-Ra’y) and the

Traditional School (Ahl al-Hadith). Below, I will highlight their development and

demonstrate how the Rational School facilitated production of universal concepts and legal

maxims while the Traditional School inhibited or hindered such activity.

The earliest among the founders of legal schools, Abu Hanifa’s emphasis on the

individual, her rights and autonomy may seem excessive to some even today. He defined

Fiqh (Islamic Jurisprudence and Law) as the knowledge of the individual about her rights and

duties (ma’rifah al-nafs ma laha wa ma alayha). There are several striking elements reflected

in this definition, which can be used to highlight Abu Hanifa’s approach to law and rights.

In the production of laws, the sole agency is attributed to the individual, but not to a

corporate body or state. The individual is charged to discover her rights and duties. No

authority beyond the individual to tell her about her rights and duties is mentioned in the

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definition. The individual is the only unit of analysis and the only actor. Nor did he put any

conditions on the individual to do Fiqh. Regardless to her merits, every one can, in fact is

required to, make Fiqh.

Although originally derived from the Koran and Hadith, Abu Hanifa’s greater

emphasis on the individual might have also been promoted by a concern that the development

of law would be taken over by the state. At that time the discussion was going on about

enacting Islamic law in the Abbasid Palace. His emphasis on the autonomy of the individual

and the scholar might have also played a role in Abu Hanifa’s refusal of the government

office.

Abu Hanifa, like many scholars in the classical era, promoted and appreciated

scholarly debate (al-khilaf). He had three prominent students and the way he allowed them to

disagree with him demonstrates the great autonomy he assigned to human agency. Rarely did

his leading students and successors Muhammad, Abu Yusuf and Zufar, altogether agree with

him. He himself stood against the authorities from the previous generation by saying, “They

are humans; we are also humans” (Hum al-rijal Nahnu al-rijal). This statement also

highlights the limits of human agency vis-à-vis the agency of others: “a scholarly opinion

cannot override another” (al-Ijtihad la yangud bi al-ijtihad). For Abu Hanifa, an opinion is

judged by its own merits but not by the number of people who share and support it.

In addition, Abu Hanifa was an advocate of the sanctity of the mind (‘ismah al-‘aql)

for everyone, which requires freedom of expression. Abu Hanifa emphasized the relationship

between reason and conscience. He, therefore, founded two types of Legal-Normative Science

(Fiqh). The first (the reason) is the principle of the Applied Jurisprudence (al-Fiqh al-‘Amali),

while the second (conscience) is the principle of the Jurisprudence of Conscience (al-Fiqh al-

Wijdani). He also emphasized the relationship between philosophy and law. He called

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philosophy and theology the “Greatest Science” (al-Fiqh al-Akbar). Abu Hanifa authored

personally only on philosophy and theology thereby grounding law on its metaphysical

postulates. Like Socrates, his views on law were recorded by his students who organized and

disseminated them as books.

In Abu Hanifa’s definition of Jurisprudence, the emphasis on rights and duties is

striking. The individual is entitled to rights and is charged with duties. One should

also note the absence of reciprocity between rights and duties, as Abu Hanifa

discarded the traditional reciprocity between the two. For him, rights are not

contingent upon the fulfillment of duties. One can fail in fulfilling her duties but her

shortcomings do not constitute a ground to deny her basic rights.

Abu Hanifa emphasized on individual’s autonomy but he can hardly be characterized

as an individualist. He perceived the individual as a part of a network of social

relations in which rights and duties are determined. Rights and duties, according to

Abu Hanifa, become possible only if one is a part of a society; otherwise, it is

impossible for the solitary individual to have rights or duties. He also charged the

individual to defend her community and all of humanity.

Abu Hanifa is credited with founding the Rational School (Ahl al-Ra’y).

Methodologically, the Rational School relied extensively on scholarly opinion, reasoning on

the scriptures and judicial analogy. From this perspective, like cases are judged the same way

by extending the original ruling to similar cases. This method is also called the “method of

jurists” (al-Fuqaha) or the “method of the Hanafis” (Ahnaf).

In contrast, followers of the other dominant schools (Maliki, Hanbali and Shafii) are

commonly known as the School of Tradition (Ahl al-Hadith) because of their greater

emphasis on strictly following the teachings of Prophet Muhammad. They opposed the

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Rational School and criticized it for not strictly following the legacy of the Prophet and earlier

generations. Yet the majority of the scholars who authored works in this tradition were at the

same time theologians. Hence their school was also known as the School of the Theologians

(al-Mutakallimun). Yet, paradoxically, unlike the methodology they employed in theology,

they refrained from fully analyzing law and jurisprudence and chose to remain concerned with

existing legal traditions and custom. Therefore, the reason why they adopted a traditional

approach to law cannot be attributed to the lack of rational thinking on their part.

Traditionalism was a choice they made on rational grounds. For instance, the great champion

of rationalism, Averroes, Ibn al-Rushd, followed the Maliki School during his service as a

judge, although he deviated from that school on the issue of human rights.

Al-Shafii is credited for writing the first systematic treaties on the methodology of

Islamic jurisprudence from the perspective of the Traditional School19. He defined Fiqh (the

Science of Law) as “deriving normative rules from the detailed legal evidences” (istinbat al-

ahkam al-shar’iyya min al-adillah al-tafsiliyya). Shafii’s definition puts the emphasis on the

process followed in the production of norms. It is a process of derivation from the preexisting

evidence. The term “evidence” symbolizes the verses of the Koran and the sayings of Prophet

Muhammad. A jurist is required to build his ruling on a concrete verse from the Koran or a

saying of the Prophet, without relying on such human (secular) methods as logic and analysis.

The methodology of Islamic jurisprudence, particularly from the

perspective of the Rational School (Ahl al-Ra’y), made it possible for

Muslims to combine various religious (divinely inspired, deriving from

scriptures) and secular (rationally inspired, deriving from human mind)

sources of law. There are two commonly known religious source of Islamic

19 His book is titled as al-Risalah and is currently available in English thanks to a translation made by Khadduri.

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law: the Koran and the Hadith, the two scriptures of Islam. Among the

secular sources are consensus of scholars, judicial analogy, custom,

necessity, utility and forestalling harm. Islamic law is not sacred, divine or

canonical in the Christian sense; it shares features of both religious and

secular law. Revelation and reason concurrently serve its production.

This integrative legal methodology is grounded on the Islamic

approach to knowledge, which is also very comprehensive, combining both

religious and secular sources. Muslim theologians agreed in the classical

era that there are three sources of objective knowledge: revalation (al-

khabar al-sadiq), reason (al-‘aql al-salimah) and sense perception (al-

hawass al-salimah). From a Western perspective, the first one of these

sources is religious, the latter two are secular. The source of subjective

knowledge is inner exprience (hal), which is the interest of the Sufis.

Lawyers must rely exclusively on the aforementioned objective sources

when serving as judges. The Islamic epistemology had thus integrated

various types of knowledge: divine, rational, emprical and experiential. Yet,

in the Western philosophical, legal and religious tradition, they are usually

perceived as mutally exclusive as a line was drawn between religious and

secular spheres.

We may say that the Hanafi Method is deductive and the Shafii method is inductive.

The Hanafis explored the common rationale behind the scattered verses of the Koran and the

sayings of the Prophet Muhammad and stipulated the outcome in the form a legal maxim.

These legal maxims are called the foundational principles (al-asl pl. al-usul). A Hanafi jurist

may rely on these legal maxims rather than the Koran and Hadith. The above statement by

Abu Hanifa concerning the relationship between ‘ismah and adamiyyah is a legal maxim. It

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is not a verse from the Koran. Nor was it uttered by the Prophet. Yet it is founded on a

number of statements from the Koran and Hadith. The later generations of jurists deduced

rulings from this general principle, without having to refer to its sources in the Koran and

Hadith. Yet a traditionalist jurist is not allowed to do so; instead, he is always required to

revisit the Koran and Hadith each time he needs to derive a normative judgment.

Similarly, limiting the basic rights (daruriyyat) to five (right to life, property,

freedom of expression, freedom of religion, honor and family) is also a result of

applying mind to the traditions. These rights are extrapolated by surveying the

common rationale behind the teachings of the Koran and Hadith. They are not listed

as such at one place in the scriptures of Islam. Therefore, some scholars contested

them, trying to expand or contract their sphere, though their views did not gain

prominence. However, these efforts demonstrate that the list of basic rights or the

rights emanating from them are subject to scholarly judicial discretion, which leaves

the gate open for reform.

The rights covered by the doctrine of ‘ismah may be seen as analogous to the “first

generation of human rights” in the West. Succeeding evolution and expansion of the

concept in the West brought about the so-called “second” and “third” generation of

rights. The concept of basic or axiomatic rights (daruriyyat) in Islamic jurisprudence

should also be thought in relation to two other accompanying concepts: the

fundamental needs (al-hawaij al-asliyya) and the accessories (tahsiniyyat). The

rights covered by these latter concepts resemble the second and third generation of

human rights in the West. Among the fundamental needs are shelter, food,

transportation, education, employment and the like. The means (e.g. a house, a car,

books, tools, sustenance for a period of time) one owns to fulfill these needs are

exempted from the annual alms tax, zakat.

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From the Hanafi perspective, these legal maxims are as binding for a Muslim as the

commands of God in the Koran or the commands of the Prophet expressed in the form of

Hadith. The fact that they are human constructions does not undermine their authority because

they reflect the outcome of scholarly opinion (ijtihad). The first Ottoman codified law, the

Mejelle, enacted a hundred of these legal maxims, testifying to their place and role in Islamic

law.

The Hanafi method reflects the attitude of simplifying law by reducing it to ever

smaller numbers of rules in the form of legal maxims. Yet the School of Tradition

perceives it as a distortion and breaking away from the tradition of the Koran and

Hadith. This tension between greater authenticity and greater simplicity may also be

observed in other legal systems, as Crotty writes:

On the view taken here, law is a selection or winnowing of the profuse and inconsistent

meanings that confront us: it is a simplification, for social purposes, of what I shall call our

“ethical complexity.” This simplification makes possible a stable order by providing a

common set of understandings that sideline, for public purposes, the commitments and values

that constitute people’s deepest sense of their identity. These commitments and values,

however, continue to press on law, and call for it to incorporate more aspects of citizen’s

deeper sense of identity. Law, on this view, is caught in a bind between two imperatives: to

simplify (in the interests of efficiency, clarity and order), and to make more complex (in the

interests of fairness, equity). The tension between these two imperatives is a force for change

in law, and, more deeply, for change in our sense of what law is and its role in a democratic

society20.

Connected to this is the difference on the emphasis on the letter and the spirit of

laws. The Rational Method gives primacy to the spirit of law while the Traditional

20 Kevin M. Crotty, Law’s Interior: Legal and Literary Constructions of the Self, Itaca: Cornell University Press 2001, p. 28.

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Method gives primacy to the letter of the law. Consequently, the former promotes

the extrapolation of legal maxims, based on the common rationale and the common

objective, while the latter requires direct usage of the verses from the Koran and the

sayings of the Prophet.

This brief outline about the contrast between the two root paradigms in Islamic

jurisprudence demonstrates why the Traditional School failed to incorporate a

universal concept of human to serve as the philosophical ground of universal human

rights. The construction of the concept of a universal human requires a shift forward

from the traditional law by rigorously applying mind.

Abu Hanifa was a contemporary of Malik, whom he visited in Medina while on a

pilgrimage to Mecca. Yet Ahmad ibn Hanbal and al-Shafii came after him.

However, these scholars differed fromAbu Hanifa on universal human rights and

insisted on civil rights. This may be seen as a recess in the development of Islamic

legal tradition and lack of accumulative progress and evolution.

Some of the later scholars, however, attempted to reconcile the two methods. They

tried to integrate an emphasis on reason with an emphasis on tradition; as well as an

emphasis on the spirit of law with an emphasis on the letter of law; and an emphasis

on simplifying law with an emphasis on greater authenticity. Their works

demonstrate how opposite methodological perspectives could be reconciled, giving

rise to a new approach to the methodology in Islamic jurisprudence. This new root

paradigm took its place next to the two older paradigms, rather than replacing them,

because the synthesis had its own distinct identity.

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V. Sanctity as the Foundation of Universal Law and World Order

Using the rational methodology of jurisprudence, the universalistic jurists in the

classical era made the concept ‘ismah the foundation of a universal law, applicable in the

cosmopolitan Millets system. It is based on a meta-jurisprudence, a legal philosophy intended

to embrace all legal systems globally. It is a self-reflexive activity by the jurists about their

own profession worldwide. What do jurists from all nations and religiouns stand for? What

do all legal systems stand for? What is the common ground among divergent legal systems?

Why should all legal systems be granted legitimacy? Where does legitimacy come from? Is

there a limitation to the right to legal self-determination? These are some of the questions the

universalistic jurists from the classical period tackled.

Therefore, ‘ismah is a key concept not only to understand Islamic Law per se, but also

the way Muslims looked at the legal systems of the world and the way they incorporated them

within their own social order. Then, what is law for Muslims? This question cannot be

answered without reference to the theory of ‘ismah. The paradigm of ‘ismah plays a role in

the way one looks at himself and relates to others. This is true on the individual, communal

and global levels: the I, the we and the We, as well as their interrelationships, are defined

based on the concept of ‘ismah.

All legal systems serve the purpose of protecting human sanctity, the classical jurists

observed. Therefore, they concluded, every legal system is legitimate so long as they serve

this objective. Hence, the legal tradition of each community should be protected and those

who adhere to it should continue practicing it. Islamic law was not imposed on the conquered

lands and communities during the Middle Ages. Instead, each society was allowed to

maintain its laws. Yet if there was a practice in contradiction with the sanctity of human

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beings it was to be abolished forcefully. For this reason, practices like sati in India or virgin

sacrifice to the Nile in Egypt were not allowed under Islamic rule. Each community was

allowed to enjoy legal autonomy but not to the detriment of human sanctity21.

For the lack of a better term I translate ‘ismah as “sanctity” or “basic human

rights.” It is a powerful and central concept in Islamic jurisprudence and meta-

jurisprudence and is a theory constructed by Muslim jurists during the 8th century.

The inspiration for it came from the teachings of the Prophet Muhammad, reflected

in the Koran and Hadith. Yet it took a reworking of the Prophet’s legacy to produce

such a universal theory, following the classical rational jurisprudence.

One should bear in mind that the concept of ‘ismah emerged in an political

structure which was not characterized by nation states. Nor was it characterized by

positive law or a monolithic system of law. In contrast, the term human rights

emerged in the West at the age of nation states and positive law. The difference in

the circumstances in which these two theories emerged must be taken into account

when comparing them.

‘Ismah is not only a legal concept in classical Islamic thought; it is at the

same time a moral and religious concept. One is not allowed to violate her own

‘ismah and the ‘ismah of others. One should protect her own ‘ismah and the ‘ismah

of everyone else on the earth. But why? Not only because one may suffer legal

consequences, but more importantly, for moral and religious reasons. Violating

‘ismah or failing to protect it is a major sin; God will punish for it in the Hereafter.

21 Turkey, which allowed several legal systems concurrently operate during the Ottoman period, is the first Muslim nation to switch to Western laws, which had been eclectically collected from different European countries. A scholar like Ebulula Mardin, who was a prominent professor of Islamic law teaching at Istanbul University Law School, switched to teaching the new European laws. So did many scholars. How they could legitimize the transition in their minds still remains a question for most researchers. I believe that their legal philosophy deriving from the universalistic approach and the Ottoman tradition of legal pluralism must have played a significant role on shaping their attitude toward the secular and Western laws.

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Protecting ‘ismah, however, is a moral and religious virtue; it will be rewarded by

God in the Hereafter.

According to Islamic theology, God may forgive sins committed against

Himself, but not against other human beings. If a sin involves violation of a person’s

‘ismah, the victim is the only one who is entitled to forgive it. God does not forgive

the violation of human rights (huquq al-‘ibad) because these rights belong to their

bearers. Consequently, if one commits a sin by violating the right of another person,

he is required to compensate the damage before repenting for his sin. Repenting

without compensating the harm is not acceptable. A robber must return the stolen

property or pay reparation before standing in the presence of God to apologize for his

sin. Likewise, the person who damaged the honor of another must repair the damage

and make the victim content prior to turning to God for forgiveness.

Some of the rights covered by ‘ismah are considered “the rights of the

persons” (huquq al-‘ibad) while some are considered “the rights of law” (huquq al-

shar’) or “the rights of God” (huquq Allah). The reasoning behind the latter category

is that their violators cannot be forgiven by the victim since it involves causing

damage to the public, not only an individual victim. If the crime involves violation

of a personal right, the victim is entitled to reach a settlement, accept reparation or

forgive unconditionally. Rights of the person comprise right to life and property.

Rights of the law include protection of religion, mind, honor and family.

Reparation is acceptable if the crime involves the violation of one of the

rights of a person and can be monetarily assessed and compensated. Otherwise, if

the crime involves the violation of one of the rights of law, which cannot be

monetarily assessed and compensated, reparation is impossible. Punishment must be

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applied in these cases. Injury or theft may be forgiven by the victim. Murder can

also be forgiven by the family of the victim. But a raped or slandered woman cannot

uplift the punishment from the rapist or the slanderer by forgiving him. The latter is

considered a violation of public order, not only the violation of individual sanctity.

From the perspective of universalistic jurists, the rights ‘ismah embraces are

universally granted, indivisible, non-contingent, non-reciprocal and inalienable.

They reflect the most basic needs of a human being to lead a decent life. These needs

are called the “axiomatic needs” (daruriyyat). The concept “daruri” means

inevitable, beyond discussion, absolutely necessary. Classical jurisprudence

recognizes three types of need: axiomatic needs (daruriyyat), required needs

(haciyyat)22, and the accessories or embellishments (tahsiniyat). The first category

alone is protected universally as human rights. The others are also emphasized on

varying degrees.

The objective of all political and legal systems (maqasid al-shari‘ah) is to

ensure the protection of human sanctity and provide the needs for a decent life for

each human being. This is how the classical jurists defined it. Therefore, they

stipulated, the implementation of a particular law in a particular setting may be

revoked, suspended or even reversed, if it is going to be counterproductive. The

“axiomatic needs” have the power to override all laws. A legal maxim stipulates:

“the axiomatic needs turns the unlawful into lawful” (al-darurat tubih al-mahzurat).

For instance, drinking alcoholic beverages is prohibited but in the absence of any

other drink one must drink them to maintain his life; in that case, it is no longer a sin

22 The required needs (hawaij or al-hawaij al-asliyya) include social and economic necessities for decent life. The means that serve to the satisfaction of these needs are granted exemption from the annual % 2.5 alms tax, zakat. Housing, nourishment, clothing, employment, transportation, daily security, and the like are considered basic human needs. Consequently, one’s house, car, workshop, weapon, sufficient amount of food for a period of time are exempted from zakat.

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but an obligation. They tried to determine the borders of the axiomatic needs clearly

and strictly, to prevent misuse of the permissions emanating from them.

Although they have the power to override all the laws, the axiomatic needs of

a person do not have the power to override the rights of others. For instance, if one

consumes the food owned by another, out of dire necessity to maintain his life, he

must compensate for it, because his need does not negate the sanctity of another’s

property. The needy person has the right to take this property, but he is at the same

time obliged to compensate for it at a later time.

The above example can be used to explore the hierarchy among rights and

needs. Right to life is considered prominent above all other rights. In the case of a

conflict, priority is always given to it. For instance, if the circumstances dictate so,

one has to take the property of another person to protect his life because right to life

overrides the right to property. In a similar way, if the axiomatic need of a person

conflicts with the required need or an accessory of another, the priority is given to

the first one.

The legitimacy of a political and legal system, universalistic jurists argued,

depends on whether it effectively fulfills the functions expected from it (al-Masalih

al-Mursalah), which is the protection of ‘ismah by providing the most basic needs of

humans. These are the most fundemantal benefits that are expected from a political

system, or it otherwise looses its legitimacy. “The legitimacy of political authority is

contingent upon providing basic human rights” (al-Mulk manut ‘ala al-maslaha)23.

The theory of maslaha (function, utility) in classical Islamic jurisprudence features

prominently. A law can be based solely on that principle. Furthermore, existing

23 (al-Mulk Manut ‘ala al-Maslaha) The legitimacy of political authority is contingent upon protecting human sanctity (Mejelle, Article 58).

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laws can be suspended on that principle in some circumstances if their

implementation is going to function counterproductively by causing harm, rather

than protection to human sanctity.

Each of the five basic human rights constitutes a source of law, al-asl, on

which laws can be built. For this reason, they are called the five governing principles

or sources of law (al-usul al-khamsah). Again, this goes back to the methodology of

Islamic jurisprudence. The root principles of law or the legal maxims, al-usul, which

had been produced through induction from scattered teachings in the Koran and

Hadith, summarize the common rationale in the laws and, in turn, serve as grounds

for new legislation.

The ‘ismah of a person remains intact under all conditions. No authority has

the right to usurp it from a person. Nor does the individual have the right and power

to voluntarily abandon them. The only reason that causes the ‘ismah of an individual

to fall is her violation of the ‘ismah of others. As explained above, violating sanctity

brings about punishment or reparation, according to the Hanafi jurists, while the

Shafii jurists claimed both are required. Inflicting a punishment, which is a harm, is

impossible before one’s ‘ismah falls.

This is how the ‘ismah is legally enforced through punishment and

reparation. The violator looses her ‘ismah, but not completely. Hanafi scholars are

stricter on the extent to which a criminal’s sanctity falls. They advocate that only the

segment where the punishment is going to be implemented (mahall al-jaza) looses its

sanctity. On this ground, they refuse coupling punishment with reparation.

However, the Shafii jurists extend the fall of ‘ismah in such a way that it includes

both punishment and reparation at the same time.

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Islamic law charges every individual, community and state to protect their own ‘ismah

and the ‘ismah of others. One is responsible for the entire world. This is a moral, religious and

legal duty. Dying for the sanctity of one’s own or others is considered martyrdom, to be

rewarded by Paradise. If a state fails in protecting the ‘ismah of a citizen, it is required to pay

reparation to the victim’s family. For instance if a prisoner is murdered in a state prison, the

state has to pay blood money to her family. The family of the victim is not even required to

prove that there was negligence on the part of the state. Since it is the responsibility of the

state to protect the sanctity of life in prison, it has to compensate for its failure. Likewise, if a

person is murdered in a neighborhood the entire neighborhood is required to pay blood money

if the criminal is not found.

The theory of ‘ismah had thus served as the foundation of a cosmopolitan legal system

during the Middle ages up until the collapse of the Ottoman State, peacefully embracing the

diverse and contradictory laws of Jews, Christians, Zoroastrains, Buddhists and Hindus, along

with different schools of Islamic law. The universalistic Muslim jurists stipulated the

principles regarding the protection of human sanctity to be applicable worldwide, across all

legal systems, irrespective of the faith behind it. The legitimacy Muslims granted to non-

Islamic legal systems can also be observed in the way they remained open to receiving laws

from them. The Methodology of Islamic Jurisprudence (Usul al-Fiqh) lists among the sources

of Islamic law “the laws of the previous peoples” (shar’ man qablana). If the Islamic law is

silent on an issue, this rule stipulates, Muslims are allowed to adopt the laws from other

cultures. It may be seen as yet another sign that the openness of classical Islamic law is for

universal cooperation and exchange24.

24 Human rights culture is rooted in a pluralist science culture, allowing coexistence of truth claims. On the concept of “open science,” which serves as the scientific culture of an open society, seen my article, ““Toward an Open Science and Society: Multiplex Relations in Language, Religion and Society,” Turkish Journal of Islamic Studies, No 5, Forthcoming. Also see “Towards an Open Science: Causality and Beyond—Learning from Ottoman Experience”, The Humanities on the Birth of the Third Millennium, Fatih University and Binghamton University, New York, Forthcoming.

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VI. Muslims and Modern Human Rights

Our exploration has so far remained on the conceptual level, building on the analysis

of the legal discourse. Now we can explore the role, if any, the above described theories

played in history. Did the justification of universal human rights from an Islamic perspective

remain on the rhetorical level or play a role in shaping social relations? I will briefly explore

how the universalistic perspective produced a positive approach towards the modern human

rights discourse during the 19th century, which found its way to legislation by the last and the

longest-lived Islamic state, the Ottomans. The Ottoman State (1299-1920) is one among

many analogous pluralist Islamic states in history. Other paramount examples are the Rightly

Guided Caliphs in Medina (632-661), Umayyads in Syria (661-749), Abbasids in Iraq (749-

1258), Umayyads in Andalusia (756-1031) and Mughals in India (1526-1857). The Ottoman

experience is important for our concerns here because they encountered modernity during the

late 18th and 19th centuries with a positive attitude and tried to synthesize Islamic and

European approaches regarding human rights and democracy.

Yet later Muslim generations have not built upon this progressive and reformative

legacy; instead they began from scratch, the point where the Ottomans began at the end of the

18th century, discarding the experience of “the longest century” in Islamic history.

Consequently, the universalistic doctrine is not currently represented in the Muslim world on

both intellectual and practical levels. The states with a claim to implement Shari‘a follow the

communal perspective and do not build on the previous experience. Recently, a greater

appreciation of the Ottoman experience of reform and modernization arose in the Muslim

world from the Balkans, to the Middle East to Pakistan and Malaysia25. The Ottoman

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orthodoxy, represented by the Caliph and Shaikh al-Islam in Istanbul, had already authorized

universal human rights and democracy two centuries ago. Yet, owing to the interruption in

the social memory of Muslim society and the ensuing confusion on human rights, some

Western and Muslim intellectuals still debate the relationship between Islam, democracy and

human rights. I argue that a greater clarity can be achieved concerning these pressing

questions by exploring the 19th century Islamic response toward universal human rights, as

embodied in the Ottoman efforts for structural and cultural reforms.

Despite the commitment of Ottomans to the universalistic perspective in Islamic law,

the history testifies that occasional violations of human rights occurred in the Ottoman

history: some higher level state officials were executed for their corruption when the Sultan

had to bow to the demands from Janissaries; the brother of the Sultan was sometimes killed if

he was involved in a political conspiracy to replace the current Sultan (siyaseten katil). These

practices cannot be justified by Islamic law. Therefore, they were justified either by raison

d’état or customary law, which Turks brought from Central Asia or inherited from previous

states. The practice of slavery continued until recently although Ottomans tried to reduce it

and improve the life conditions of the slaves. Non-Muslim citizens, who enjoyed freedom in

other areas such as commerce, law and education, had been barred from political office and

joining army. The non-Muslim citizens were expected to pay additional taxes in exchange of

the security provided by the Muslims. All these treatments were abolished by the 19 th

century reforms, which I will explore further below, as a result of the new egalitarian concept

of citizenship which Ottomans appropriated during transition to a modern democratic state

structure.

25 Only recently, the Ottoman civil code, which is the first in its kind in Islamic history (1877-1926), drew the attention of the Malaysian and Pakistani Muslims, who are trying to codify Islamic civil law. They republished the 1901 English edition of the Mejelle. See, The Mejelle, Being an English Translation of Majallah el-Ahkam-i-Adliya and a Complete Code of Islamic Civil Law (with a foreword by Mr Justice S. A. Rahman, H. Pk, Judge, Supreme Court of Pakistan), Kuala Lumpur, Malaysia: The Other Press 2001.

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Emergence of a modern concept of citizenship and human rights discourse in the West

took place during the 19th century. At that time, Ottomans ruled the majority of the Muslim

lands from Algeria to Yemen, and from the Balkans to Caucasians. Consequently, with the

purpose of exploring what Muslims did for the advancement of human rights during the 19 th

century, we have to revisit Ottoman history. The Ottomans represent not only the historical

roots of the modern Turkey but also more than 30 succeeding Muslim and non-Muslim nation

states. Most of these states emerged after the Ottomans collapsed in 1920 as the region was

divided by the colonial powers. Since Istanbul was the seat of the government, the reforms

took place in Istanbul and gradually disseminated to the periphery.

The 19th century corresponds to the reformative period in Islamic history. Since

Ottomans ruled the majority of the Muslim world, the Muslim contribution to human rights

was through their efforts, which combined diverse Muslim communities from East to West.

Most views on the Ottoman State retrospectively impose the modern images on it in an

anachronistic manner. A more accurate understanding of Ottoman history must be based on a

deeper understanding of the Ottoman Weltanschauung.

The primary source of the Ottoman worldview was the universalistic view of the

Hanafi Fiqh, combining rational philosophy, theology, Sufism and formal law26. They also

inherited the legacy of Eastern Rome, the Byzantium, and previous Islamic states. Suleyman

the Magnificent symbolically expressed how Ottomans inherited the legacy of the major past

civilizations and built upon them with the four pillars of the Suleymaniye Mosque, which

were brought from the relics of different civilizations around the world: Rome, Byzantium,

Babylon, Egypt. The Ottoman objective was to maintain the World Order (nizam-i ‘alem), a

concept they derived from Islamic legal philosophy. For this purpose, they pragmatically

26 For a comparative analysis of the philosophical traditions (Philosophy, Theology and Sufism) in the Ottoman intellectual milieu, see, Nicholas L. Heer (tr.) The Precious Pearl: Al-Jami's Al-Durrah Al-Fakhirah, Albany, NY: SUNY Press 1979.

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reconciled the opposites from an imperial perspective: past and present; non-Islamic and the

Islamic; secular and religious; Western and Eastern. With the rise of the Western civilization,

the official Ottoman ideology also adopted a policy of reconciling modern and traditional

elements.

The Millets System served as the institutional mechanism for the World Order,

bringing together diverse religious, ethnic, linguistic and cultural communities in a vast

geography. The Chief Rabbi served as the head of the Jewish Millet. The Patriarch led the

Orthodox community. The Armenian Patriarch ruled the Armenian community. The Copt

Patriarch in Egypt was in charge of the Coptic Christians. Later, Catholics and Protestants

were also granted the status of the Millet, which allowed them self-governance and autonomy

in their internal affairs27. These communal leaders reported to the Caliph. Following the

spirit of the age, Ottomans abolished the Millets System towards the end of the 19 th century as

they granted equal citizenship to all subjects, irrespective of their religion. They also enacted

positive laws to replace the traditional diverse legal system with standard laws for all, which

is further discussed below. The modern secular form of pluralism was adopted to replace the

traditional Islamic form of pluralism.

The traditional Ottoman legal system was derived from two sources: classical Islamic

law (Shari’ah) and customary law (‘Urf or Kanun). Some Shari’ah rules, especially those

pertaining to criminal law, were replaced by the customary punishments. The ‘Ulama

produced and implemented both laws in an integrated system. The Cadis belonged to the

‘Ulama class. The traditional methodology of Islamic jurisprudence recognizes social custom

(‘urf, ‘adah) as a source of law, which was used extensively by the Ottomans. Some

historians interpret this as a form of secularism.

27 The Zeroastrians in Iran enjoyed the status of Millet since the time of Caliph Umar in the 7 th

century. Likewise, the Mughal treated Hindus in India as a separate Millet.

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The 19th Century Ottoman Reforms: from Divan to Parliament

The reaction of the Muslims to the rise and spread of universal human rights in the era

of modernization is also characterized by their earlier familiarity with the abstract concept of

the universal human. The contemporary impact of the time-honored conflicting views on who

has the ‘ismah, is also observable in a survey of the varying Muslim responses to the

evolution of human rights in the West and their penetration in the Islamic world. The first

concrete reaction on the state level begins with the Declaration of the Tanzimat (Charter of

Regulations) in 1839 in the Ottoman State by Sultan Mahmud II. The latest significant

example may be “the Cairo Declaration on Human Rights in Islam” by the Organization of

the Islamic Conference (OIC) in 1990.

The Ottoman Caliph, advised mostly by Hanafite Ulema, granted equal rights to non-

Muslims for the protection of life, property, honor and religion in the 1839 declaration of

Tanzimat. Later, other declarations concerning human rights had also been issued in the

reforming Ottoman State, which, in some aspects, resembled the decrees by earlier sultans

known as Adalatname or Kanunname. Faced with Western ideological and cultural influence,

the Ottomans had to compete with the European powers in extending rights to their citizens

on equal basis. They had Hanafite law at their disposal to achieve this objective. The

universalistic approach to human rights made it possible for them to reform Islamic law,

parallel to changing custom.

The major debate, carried by the Ottoman bureaucrats, Ulama and the intellectuals,

during the second half of the nineteenth century, did not only revolve around whether rights

should be given to citizens but also involved limiting the power of the Ottoman sultan. The

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Charter of Allaince in 1808, between the Sultan and the Dignitaries, examplifies this trend.

The Ottomans framed the declaration of Tanzimat as a public reiteration of the rights already

granted by Shari’ah. The execution of the reformist Pertev Pasha in 1837 prompted

bureaucrats like Rifat Pasha to take measures for their own protection, which is also viewed

as another major reason behind the declaration of the first human rights charter by a Muslim

state.

When Europe was shaken by the French Revolution in 1789, Selim III (1789-1807)

ascended the Ottoman throne as the Sultan-Caliph. Ruling from 1789 until 1807, Selim III

also initiated a highly radical reform project. With the purpose of getting feedback from the

public, he issued a decree to civil, military and religious dignitaries resquesting them to

submit their views on the possible causes of the weakness of the Ottoman society and state as

well as their proposals for their reform. Following the Ottoman tradition, the dignitaries, from

a wide ranging social spectrum, presented their ideas in the form of memorials. Three distinct

perspectives emerged from these reform proposals: (1) Conservative: recover the glories of

the Ottoman golden age by reverting to its traditional methods. (2) Eclectic: reconcile the

European system with the existing order. (2) Radical: replace the traditional system with a

modern one.

The Sultan adopted the third and the most radical of the perspectives, which was also

maintained by his successors persistently until the collapse of the Sublime State. He

promulgated, in 1792 and 1793, a whole series of new instructions and regulations which

came to be known collectively as the New Order (Nizam-i Cedid). He established a new corps

of regular infantry, trained and equipped on the modern European model, and a special new

treasury to fund it. He also took some disciplinary measures to reform the administration. He

improved diplomatic relations with the European states. For this purpose, he established

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regular and permanent Ottoman embassies in major European capitals such as London, Paris,

Vienna and Berlin.

Mahmud II, who ascended the Ottoman throne in 1808, rigorously maintained the

reform program of Selim III. The first outcome was the Charter of Alliance (Sened-i Ittifak),

which was an agreement between the Sultan and the dignitaries (Ayan). With this document,

the Sultan's sovereign power was limited for the first time in the Ottoman history; therefore

historians consider it an important document28, signaling the move toward more political

representation of people’s will, broader political inclusion, democratic reforms, limits to the

power of the state and the Sultan, and more rights for citizens. This document is also seen as

the first step towards a constitution.

Constitutional Movements during the Ottoman Period

Constitutional movements during the Ottoman period commenced toward the end of

the 18th century. Sultan Selim III (1789-1808) set up the Advisory Assembly (Meclis-i

Meshveret), within the context of the New System (Nizam-i Cedid), initiating the march

towards a constitutional government system. His successor Mahmud II, who was also a

radical reformer, signed the Charter of Alliance (Sened-i Ittifak) in 1808, which is seen as the

28 For this period see Stanford Shaw, Between Old and New, The Ottoman State Under Sultan Selim 1789-1807, Cambridge,1971. For Sened-i Ittifak see; Inalcik,"Sened-i Ittifak and Gulhane Hatt-i Humayunu", Belleten, XXVlll/12(Ank.,1964), pp. 630-662. Rifat Onsoy,"Sened-i Ittifak ve Turk Demokrasi Tarihindeki Yeri,” Turkiye'de demokrasi Hareketleri Konferansi 6-8 Kasim 1985 H.U.Edb. Fakultesi Dergisi,c.4,no:1(Ank.,1985). For Mahmud's reforms see; Sertoglu,"Tanzimata Dogru", Sultan ll.Mahmud ve Reformlari Semineri 28-30 Haziran 1989, Bildiriler,Istanbul,1990,pp.1- 10. Seyitdanlioglu, "Tanzimatin on hazirliklari ve Meclis-i Vala-yi Ahkam-i Adliye'nin Kurulusu 1838-1840", Sultan ll.Mahmud ve Reformlari Semineri 28-30 Haziran 1989, Bildiriler, Istanbul,1990, pp.107-112. Also see, Halil Inalcik, "The Nature of Traditional Society: Turkey, " Robert E. Ward ve Dankward A. Rustow, Political Modernization in Japan and Turkey (Princeton, N.J.: Princeton University Press, 1964), pp. 13-14.

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first important document from the point of view of a constitutional order. It restricted the

Sultan's exercise of power and delegated some authority to the senate body, called the Ayan.

The Royal Decree of the Rose Garden (Gulhane Hatt-i Humayunu) was launched in

1839, during the Tanzimat Reforms29. This declaration, which may be seen as the first

declaration of human rights by a Muslim state, assured all citizens their basic rights: right to

life, property, freedom of religion, protection of honor, education, employment and due

process. The Tanzimat declaration was grounded on the doctrine of ‘ismah in Islamic law.

The document is especially significant for its recognition of equal rights in education and in

government administration for those of Christian persuasion, exemplifying egalitarian

principles. The Ferman declared: “All Muslim or non-Muslim subjects shall benefit from

these rights. Everyone's life, chastity, honor and property is under the guarantee of the state

according to the Shari‘ah laws.” Representatives of all religious groups and the ambassadors

of European states were present in the declaration ceremony, which was closed by the prayer

of Shaikh al-Islam. In 1875, the Imperial Edict on Justice (Ferman-i Adalet) provided for

independence of the judicial courts and ensured the safety of judges.

The 1876 Constitution marks the most important step along the road to the rule of law,

initiating the First Constitutional Period, which continued for only a year under the rule of

Abdulhamid II. The first Ottoman constitution is seen somewhat restrictive in the exercise of

powers, but nevertheless for the first time it recognized a parliamentary system. This

constitution has provisions covering basic rights and privileges and the independence of

29 Tanzimat (tän´zemät) , [Turk., reorganization], the name referring to a period of modernizing reforms instituted under the Ottoman State from 1839 to 1876. In 1839, under the rule of Sultan Abd al-Majid , the edict entitled Hatti-i Sharif of Gulhane laid out the fundamental principles of Tanzimat reform. Foremost among the laws was the security of honor, life, and property for all Ottoman subjects, regardless of race or religion. Other reforms, which sought to reduce theological dominance, included the lifting of monopolies, fairer taxation, secularized schools, a changed judicial system, and new rules regarding military service. Tanzimat ended (1876) under Abd al-Hamid II 's reign, when the ideas for a Turkish constitution and parliament were first implemented and rejected by the sultan. The constitution and parliament were reintroduced after Abd al-Hamid II was dethroned by the Young Turks.

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courts and the safety of judges, among other aspects. In 1908, the Young Turks who

dethroned Abdulhamid II launched the Second Constitutional Period and laid the foundations

of a parliamentary system, which continued until the fall of the Ottoman State.

Briefly, this is how the Ottomans reformed their system from Divan, the traditional

decision making body composed of the dignitaries, to the Ottoman Parliament, composed of

the elected representatives of the people, both Muslims and non-Muslims, from a vast

geography extending from North Africa to the Balkans and the Middle East. Through

structural and cultural reforms, the Ottomans demonstrated how an Islamic system of

government can adapt itself to modern developments. Expectedly, major problems remained

to be solved over time. The Ottoman ‘Ulama, under the Shaikh al-Islam, was among the

reformative ruling elite during this time. Successful and enduring reforms were the outcome

of an alliance of the existing powers, the Palace (Caliph, Sultan), the People of Knowledge

(Ilmiyye), the People of Sword (Army, Seyfiyye) and the People of Pen (Bureaucrats,

Kalemiyye).

In this period, Fiqh, the legal-normative science of Muslims, also went through

transformation. The prominent Ottoman sociologist Ziya Gokalp initiated an intellectual

movement, centered at Istanbul University, to combine traditional methods of Fiqh with those

of modern sociology. He called his new eclectic methodology the Social Methodology of

Jurisprudence (Ijtimai Usul al-Fiqh). For him, the success of the Ottomans relied on the East-

West synthesis. He said, “I belong to the Islamic religion, Western civilization and the

Turkish race.” The three elements of his ideology (religion, civilization and nationalism)

were reflected in the title of one of his books: Turkification, Islamization and Modernization

(Turklesmek, Islamlasmak, Muasirlasmak)30. The Young Turks adopted his ideology and

30 I explored the encounter between the traditional Islamic Fiqh and Western social sciences, including Legal Science, in a book: Recep Senturk, Islam Dunyasinda Modernlesme ve Toplumbilim: Turkiye ve Misir Ornegi [Modernization and Social Science in the Muslim World: the Cases of Egypt and Turkey], Istanbul: Iz 1996.

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implemented it at the turn of the 20th century until 1920. Afterwards, the modern Turkish

Republic dropped the ideology of reconciliation and followed a policy of modernization and

secularization. At that time, Ziya Gokalp, having changed his mind, wrote The Principles of

Turkish Nationalism (Turkculugun Esaslari) to serve as the ideology of the new state. Secular

and modern notions of justice and human rights were to be adopted slowly.

The British invasion of Istanbul after World War I brought the Ottoman experience

with democracy to an end, as all the members of parliament were exiled. After four years of

successful resistance in several fronts (North Africa, Egypt, Yemen, the Balkans, Dardanelles,

Caucasians) against an alliance of colonial European states, the fall of the Ottomans was

effected by the disparity of power between the parties involved in the World War I. The

Ottoman experience with democracy was crucial for the rise of the modern Turkish Republic

as the first secular democracy in a Muslim country.

With the fall of Ottomans, humanity lost a major bridge between Islamic and Western

Civilizations31. The Ottoman legacy has been dispossessed by later Muslim rulers and

intellectuals. Consequently, the link Ottoman built between the Islamic and modern human

rights discourse also disappeared. The new champions of Islam, e.g. Saudia Arabia, discarded

the developments in Islamic law, started everything over and reverted back to the pre-

Ottoman period by calling to a return to the Koran and the Hadith, and to policies of non-

cooperation between Islam and the Western civilization. Yet some of them are still amenable

to the unending discussion about whether Islam is compatible with democracy and human

rights. The disinherited legacy of the Islamic reforms under the Ottomans during the 19 th

century unfortunately did not register in the Muslim mind due to the propaganda by the

colonialists and nationalists against Ottomans.

31 I am using these terms for the purpose of convience. We should bear in mind that the Ottoman considered themselves part of the Western civilization and Europe. They saw Islam, Christianity and Judaism as one family, the People of the Book.

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As Victoria R. Holbrook points out, the Ottoman legacy was stigmatized and

unclaimed32. The Salafis (Islamic puritans), modernists, colonialists, nationalists and the

orientalists allied themselves against the Ottoman legacy, throwing the baby out with the bath

water. Ironically, the Salafis refused the Ottoman legacy on the grounds that it was un-Islamic

while the secular modernists refused it on the grounds that it was Islamic. The nationalists

refused it because it was not nationalist while the orientalists refused it because it was

nationalist.

A revisit to the Ottoman reform era is needed by critically examining the presently

dominant discourse. The aforementioned ideologies, in their narrative on the Islamic and

Ottoman history, commonly share the simplistic “regress paradigm” without offering a

scholarly explanation. Their narrative is usually based on blaming the victim: Islamic

civilization fell because it decayed; the Muslims caused their own fall and deserved the

horrible consequences. Even the rejection of the social evolutionary schemes of history in

Western social theory could not bring about a substantial critique of this orthodox view on the

fall of the Ottomans. What would have happened if the Ottoman State had not collapsed

under military pressure from the Western colonialists? This is a question for those who refuse

a deterministic view of history. Perhaps the Muslim world would remain as part of Western

civilization and would not have lagged behind modernization and democracy. Yet the

32 Victoria R. Holbrook observes that the successor nation-states did not claim the Ottoman legacy. “[no] state has instituted Ottoman culture as its past, though Turkey may now be in the process of recuperating it. Each emerging nation constructed a literary institution requisite to the modern state—a literary cannon narrating the national myth, inculcated in school—by rhetorically suppressing parts of Ottoman culture. The Turkish republican case would be unique among them insofar a continuity of identity exists between modern Turkish and Ottoman culture. While Balkan states, for example, could reject Ottoman literature as “foreign” and fit the nationalist discourse of the day, for Turkey to do so required invention of a discourse representing its “own” literature as foreign. Most interesting today, in view of present multiculturalist challenges, would be an understanding of Ottoman literary culture as the sum of practices subsequently broken down along nation-state lines, but the Ottoman has served all its disinheritors as “other,” and knowledge of the discursive universe of Ottoman literature consists largely of hypothesis carrying a high degree of polemical charge” (1994: 2).

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parliament that, for the first time, brought together in Istanbul the elected representatives of

people from Algeria to Sudan, to Bosnia and Yemen was short lived. So was their legacy.

The current discussions among the Muslim intellectuals worldwide explore the kind of

questions the Ottoman ‘Ulama tackled long ago, during the Selim III at the turn of the 19 th

century, about the compatibility of Islam with democracy and human rights. For the present

oppressive rulers and the exclusivist thinkers, Islam is not compatible with democracy and

human rights. Yet, no response could be more ensuring for the devout Muslims and the non-

Muslim observers than the answer and practice of the Caliphs and the Shaikh al-Islams under

the longest lived Islamic political structure. Had the Ottoman State survived or had the

successive Islamic states maintained its reformative legacy, we would not have to tackle most

of the theoretical questions and policy problems we are facing today. Yet the chain of

memory is broken. To me, what went wrong lies here.

Human Rights Dependency

As the theory of ‘ismah went into an eclipse, the period after the fall of the Ottoman

State may be described as “human rights dependency,” during which human rights came to

Muslim world through the efforts of international organizations, but not through indigenous

efforts. Muslims became recipients of human rights but they were no longer contributors to

the human rights cause.

The contemporary Turkish Muslim scholars have displayed a favorable reception

towards the universal human rights during the twentieth century. In 1949, Yakup Kadri, a

renowned author on Islam, wrote an Islamic commentary on the UN Charter where he

concluded that it is in complete conformity with Islamic law. After the declaration of the UN

Charter, Ali Fuad Basgil, a religiously oriented professor of law from Istanbul University,

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strongly supported the concept of universal human rights in his public lectures. But the state

followed an anti-religious approach to human rights, completely banning religious education

in the country for decades. Ali Fuad Basgil could barely save his life from the military rule

and was not allowed to participate in politics to implement his views on human rights. He was

accused for being a “reactionary” because of his belief in the freedom of religion.

The first school of theology was opened in Ankara, the capital of Turkey, under

pressure from NATO during the early sixties and it remained the only one until 1982. The

religious life and education has been under strict control of the state. The irony is that this

secular Tsarian (or Caesarianist) system, which had no parallel in the Western world, except

the USSR, was introduced as a part of Westernization and modernization. Consequently, it

poses a great problem for the integration of Turkey in the EU. The recent efforts of integration

with the EU unmasked this phenomenon. The authoritarian Turkish ruling elite claims

defending Western values but there is a great divergence between the European democracy

and Turkish system, which was instituted allegedly as Western.

The EU pressures Turkey, though mostly in vain, as did NATO, for more freedom of

religion and the separation of religion and state. The Turkish government is also under

pressure from major human rights organizations for its negative record. Ironically, the

conservative Islamist wing rigorously supports integration with the EU, for gaining better

human rights and particularly freedom of religion. Whether they will use more freedom of

religion, if they ever get it, to undermine and abolish the democratic system which provides it

remains unknown. This is the worry their opponents highlight to discredit them.

Another favorable voice for universal human rights emerged in Sudan, Mahmoud

Mohamed Taha. He was also silenced but this time, the pretext was not a secular one. He was

executed because he was accused for going against Islamic teaching. Yet his message was

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carried on by Abdullahi A. An-Na’im who could publicize his ideas in America, but not in his

homeland, Sudan. An-Na’im calls for a reform of Shari’ah to make it better respond to the

needs of the changing times by incorporating universal human rights.

Juxtaposing the cases of Ali Fuad Basgil and Mahmoud M. Taha demonstrates how

the authoritarian governments, be they secular or religious, tend to misuse both religion and

secularism to silence voices for better human rights, which they expediently frame as political

opposition. The absence of a viable middle class, civil society and public sphere cripples all

the efforts in the struggle for better human rights. The Muslim population, who sees no

internal solution after exhausting all the potential strategies, eventually turns to international

organizations to bring more pressure on their own governments, which signed international

documents on human rights. I used these two examples to illustrate how the Muslim world

still remains dependent on the Western organizations for the advancement of human rights.

Analogous examples are abundantly available.

During the preparation of universal human rights documents, the delegations from

Muslim countries confused the world by displaying inconsistent attitudes, particularly on the

rights of workers and women. Some Muslim states expressed objections against some of the

provisions of the UN Declaration in 1948. Yet, some voted for it without any objection.

Those who signed have not taken them as seriously as their Western counterparts have done;

it has usually remained as a lip service.

However, there are some efforts worthy of mentioning. Muslims produced two

international human rights declarations after the UN declaration: UNESCO Declaration

(1981) and the ICO Declaration (1990), known as the “Cairo Declaration on Human Rights in

Islam.”33 All Muslim states signed the latter document, which took around two decades to

33 Adopted and issued at the Nineteenth Islamic Conference of Foreign Ministries in Cairo on August 5, 1990.

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prepare. The Islamic Conference Organization (ICO) seems to be the most significant

platform and vehicle for the advancement of human rights in the Muslim world. Yet its voice

is hardly heard as Muslim societies face great challenges.

Without putting the issue into an historical perspective, the Islamic confusion on

human rights cannot be understood and solved. Nor can the human rights dependency, on the

part of Muslims who believe in human rights, be overcome without linking the chain of

memory to past cultural reservoir. Human rights discourse in the Muslim world needs

philosophical, moral and historical roots to grow on, gain strength and bear fruits. Otherwise,

its defenders will remain dependent on the Western discourse and consequently will get easily

dismissed by the conservative population, patriarchy and authoritarian rules. The power of

precedence, on the theoretical and historical levels, must be put in use in justifying human

rights in Islam today.

The irony in the phenomenon, which I have conveniently labeled as human rights

dependency, following Abdullahi A. An-Na’im, is that the support for both the oppressive

regimes and the human rights advocacy comes from the West. The conflict of the

humanitarian and the colonialist urges, emanating from the West, is reflected in this

phenomenon. Alas, the former is usually overpowered by the latter. The politicians and the

interest groups from East and West, with exclusive reliance on “instrumental rationality” in

their approach to human rights, establish international coalitions among themselves.

So must do the civil communities and intellectuals from around the globe, acting with

the “value rationality,” to cure the human rights dependency of the non-Western world.

Reinvigorating the universal approach in Islamic law and combining it with the modern

notions will provide a remedy to human rights dependency for the benefit of all around the

globe. But how can we do that? This is the question I will address in the next section.

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VII. What is Sociology of Rights For?

In the above discussion, I have simultaneously utilized sociological and legal

approaches. The concurrent usage of the concepts and methods derived from sociology and

law helped me in exploring some aspects of human rights which I could not possibly see if I

had remained only within the boundaries of either discipline. Yet, currently there is a gap

between legal and sociological approaches to human rights. I believe that a sociological

approach to rights—with its emphasis on relativism—must be coupled with the currently

dominant formal legal approach—with its emphasis on the universality of laws. This way, we

can utilize the advantages afforded by both perspectives in exploring the tensions and

weaknesses in the universal human rights discourse and offer better remedies. Below, I will

provide a brief account of my attempt towards integrating these approaches and highlight the

benefits we may attain by implementing it.

A relational approach to society, law and rights, as opposed to the traditional

essentialist one, would allow us identify the mutable and immutable elements and the constant

reconfiguration of relations among them over time. The continuity lies in the persistently

reoccurring relations among humans within a society, which we commonly call structure,

organization, institution or system. The synergy between discursive and social action

produces them. Yet some sociologists and lawyers tend to conflate discourse to what they

distortedly term social structure or social reality. However, discourse is not less real than

society. In fact, no social structure is possible without discourse or vice versa. Discourse is

the interconnected talk which interconnects people and brings about what we commonly call

society. Interconnections in discourse and society make each other possible and from their

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interaction emerges what is called “social reality.” Talk and the reflexive talk about previous

talks, be they our own or for others, interactively constitute social relations and bind people in

social networks, bestowing on them an identity and a role. Whether religious or secular,

narrative brings and keeps us together.

Law is one such social institution, grounded in competing narratives. A sociological

approach may be applied to law by approaching it the way Saussure, the Swiss linguist who is

seen as the father of structuralism, approached language as a social institution. Language is

social; it is above the individuals; its rules constrain them. An individual cannot make a

language for herself or disregard its rules at wish. In his book, S/Z, Barthes demonstrated how

powerless we are vis-à-vis language because we cannot even replace one letter with another

letter with a close voice: we cannot use the letter “z” instead of letter “s.” Language is thus

inherited from the previous generations and is internalized through socialization. However,

Saussure observes that language changes over time. The change emanates from its usage on

the ground by people. For Saussure, change in language emerges from the interaction

between the universal linguistic rules (langue) and their pragmatic application in particular

settings (parole).

Extending Saussure’s approach to law may allow us to explore the tension and the

interaction between the individual and law or human agency and social structure. Similar to

language, law is also social. It also has universal rules which are implemented on the ground

by concrete individuals. Its rules also constrain individual action which cannot be disregarded

at wish. Furthermore, the interaction between the discourse and practice of law is the locus

where the fermentation for change begins.

The relationship between discourse and society is problematic. The positivist

perspective conflates discourse to society, which is what is “real” for them. In contrast, the

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post-modernist perspective reduces social structure to discourse to deconstruct the

conventional images of reality. Yet for Saussure, conflating the two is detrimental; they

should be kept separate and the tension between them should be explored and exploited. Law

is not merely a discourse, yet it cannot exist without a discourse. The practice and discourse

mutually influence each other and their relationship is constantly reconfigured.

Austin, Rorthy, Dworkin and Habermas have come to variably acknowledge the

relationship between law and discourse. For Austin, law was a one-way speech from the

superior to the inferior in the form of a command. Yet some jurists from the succeeding

generations are inclined towards a circular model on the relationship between law and its

subjects because it allows exploring the two-way interaction. I believe this problem can be

better solved if we apply a dialogical approach, originating from Bakhtin, a prominent

Russian linguist. The tensions and dynamics influencing law can be better explored if

approached as a dialogue between, or better put a polylogue among, the producers,

practitioners and subjects of law. In fact, all are producers, practitioners and subjects of law

at all times, but in differing and sometimes less visible and highly indirect ways.

Furthermore, the change in law is not always effected by external dynamics. On the

contrary, the legal discourse is one of the most self-reflexive genres. Motivated by internal

dynamics, it constantly acts upon itself. Legal discourse is multiplex: there is law, the talk

about laws, and the talk on the talk about laws. The second is usually called jurisprudence

while the third may be called “reflexive jurisprudence” or “meta-jurisprudence.” Silverstein’s

concept of “reflexive speech” applies to legal discourse as well. Most talk in and on law and

jurisprudence falls in the category of reflexive speech.

A sociological approach to legal discourse should not solely focus on “what law

means,” but also “what law does” in society in concrete settings. The rules of pragmatics are

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at constant play in legal discourse. Words do things. Things come to being first in discourse

before they become facts on the ground. People do things with words. The seed for action

first grows in mind and heart, then in langue, before it falls on the ground to grow and bear

fruits.

Shared discourse, which in my usage frequently replaces the amorphous term

“culture,” is also an expression of shared meanings in a society. Therefore, an authentic

understanding of human rights discourse requires, what Clifford Geertz calls, a thick

description. A thick description of rights may compliment the currently used formal approach

by linking rights to the shared notions of justice, equity and freedom. Some of the notions are

universal while some are local. Also, there may be difference in the way universal notions are

locally understood within each culture.

Consequently, even if all or some cultures share a number of universal notions about

human rights and justice, the way they justify them may be diverse. Cultural variation in the

justification of rights was a major issue during the preparation of the UN Declaration during

the 1940s. The drafters choose to strategically remain silent on the issue of justification since

ideologies and religions, which agreed on the universal human rights, terrifyingly disagreed

on their justification. Each group answered the question “where do rights come form?’ with

distinct and usually opposing and irreconcilable terms. Deists, atheists, capitalists,

communists, Buddhists, Confucians, Jews, Christians and Muslims all have their own distinct

way of justifying rights. Furthermore, each camp differs within itself. Sometimes internal

conflicts are more tense than the external ones. Worse was the exclusivist claim by ideologies

to patronize or monopolize the human rights discourse. An ideological stand must expectedly

be exclusive.

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However, I believe that a common ground is possible to discover through thickly

describing each method of justification and identifying the commonly shared elements. This

way the contradictions of the “absolute relativism,”34 voiced by the American Anthropological

Association (AAA), during the preparation of the UN Declaration, can be avoided. From the

perspective of absolutist relativists, universal law is impossible. In contrast, I claim that each

culture may justify human rights in its own terms and meet in the common ground with other

cultures. Also, no ideology, acting self-appointedly on behalf of a religion, culture or

civilization, has the right to exclusively patronize or monopolize universal values of justice,

freedom, equality and freedom. Such an attempt for monopolization contradicts by the claim

itself. The pitfalls emanating from the absolutist claims of relativism and exclusivist claims to

ideological supremacy may be overcome by coupling the formal approach of jurists,

emphasizing universality, with a sociological approach, highlighting social difference and

change.

From this perspective, we may establish a synergy between competing paradigms and

tackle the question the drafters of the UN Declaration pragmatically preferred to evade. Since

then, different ways of justification have been seen as mutually exclusive and incompatible,

which has a weakening impact on human rights cause. The currently prevailing paradigm

tends to justify rights on secular and Western terms alone. Consequently, non-secular and

non-Western people may easily be disturbed and alienated by the exclusive claims of secular,

materialist or atheist ideologies for the justification of universal human rights. Yet, if a

common ground is discovered then all religions and secular ideologies may join forces to

34 I use this term to demonstrate the inner contradiction in the relativist approach to human rights. There is an inbuilt logical fallacy with which is inflicted. Let us suppose that “everything is relative.” Is this sentence absolute or relative? If you say it is absolute you accept the existence of an absolute fact, which invalidates your claim. But if you say, it is also relative; you relativize your claim, which invalidates it again. In the classical logic, the example about a Spartian who said “all Spartians are liars” is used to illusrate this type of logical fallacy. Since he is also a Spartian, if he is right, then the sentence is wrong. If he is also a liar, then the sentence is lie.

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stand on it while advocating for human rights in their own terms. This would allow us to

establish a synergic triad among religions, secularisms and human rights discourses.

One of the most important ways sociological approach may compliment the formal

legal approach is though underlying the interaction between personal relations and social

structures. Currently, human rights paradigm relies on the formal legal approach. The logic of

personal relations is not the same as the logic of formal relations. According to Tonnies, the

former produces “community” (Gemeinschaft) while the latter produces “society”

(Gesselschaft). According to Durkheim, the former is integral for “mechanic society” while

the latter is integral for “organic society.” Furthermore, the former primarily appeals to

conscience and morality while the latter appeals primarily to reason and legal code. If the

former relies on love, sacrifice and trust, the latter relies on reciprocity and contract.

Secular approaches are better equipped to promote the universal law while religious

approaches are better prepared to promote the universal love. Their cooperation is needed to

mobilize both formal and personal relations in globally promoting respect and compliance

with human dignity and sanctity. Law and love are not mutually exclusive, rather they must

be brought to bear upon, and reinforce, each other.

Universal human rights cause cannot succeed without integrating both logics. In the

human rights scholarship, the unit of analysis cannot be states and their relations alone. The

individual, the community and their interrelations must also be fully incorporated. Appeal to

reason must go with the appeal to conscience. Appeal to individual must go with the appeal to

community and the state. Same way, appeal to universal law must go with the appeal to

universal love. Otherwise rights will stand on a slim foundation. This is what sociology of

rights is for. In sum, “value-rationality” must compliment “instrumental-rationality” on the

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individual, communal, state and international levels. Otherwise, we will be the prisoners of

the “iron cage” Weber prophesized a century ago.

Conclusion: I am therefore I have Rights

I conclude by reiterating my claim that I am therefore I have rights. Voicing this

claim, I believe I stand on the common ground of all religious and secular approaches to

universal human rights. Above, I have demonstrated only the roots of this claim in the secular

modern and traditional Islamic legal notions. Further research may be conducted regarding

other secular and religious traditions. In fact, there is an increasing volume of literature

unearthing the roots of human rights within diverse cultures of the world. They are all well-

justified in their efforts while there is no justification for the ideological claims to monopolize

human rights.

My very existence justifies my rights. They are indivisible and inalienable. I am

charged to stand for my own rights and for the rights of the entire humanity. It is a duty for

me to recognize all my fellow human beings as equal persons and protect their rights the same

way I do for my own rights. My community and state must also do the same.

Protecting basic human rights must be the objective of all legal systems, if it is already

not. The legitimacy of the political authority and the law should be judged by their

conformation with basic human rights. Individuals should not defer their moral capacity to

their superiors and therefore always judge the judgments and the judges from the perspective

of human rights.

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Universal love must be accompanied by universal law, in order for both to succeed.

Conscience and reason must join forces for a better life on the globe for everyone. Those who

act on universal values should coalesce their powers against those who are motivated by

instrumental rationality alone, for the benefit of all depends on that.

These are some of the principles one may also derive from the classical Islamic law.

They are ancient yet still speak to us. Nevertheless, the universal view, represented by a

branch of the classical Islamic law, is curiously neglected in the Modern Islamic discourse on

human rights. Today, the Turkish and Arabic discourse on human rights occasionally utilize

the term ‘ismah (sanctity) but rarely do they utilize the category âdemiyyah (humanity), the

absence of which cripples any attempt to philosophically ground human rights on the

universal level.

Unfortunately, with the break in the chain of memory, the modern Islamic legal

discourse has lost the universal dimension that characterized the discourse of some jurists in

the classical era. Most of the modern Islamic discourse on human rights revolves around

religiously defined social categories such as muslim and kafir (non-Muslim), rather than a

universally inclusive concept of human society (adamiyyah). Unearthing and reintroducing

the classical Islamic concept of universal human can transcend this communal approach,

which is the objective of this research.

Even though the traditional-Islamic and modern-Western approaches to universal

human rights cannot be expected to completely converge due to the historical and religious

reasons, the segments of Muslim society who have welcomed the rise of universal human

rights in the West, culminating in the UN declaration, have been those who have already

found in their cultural repository some of the abstract constructions on which the Declaration

was based, the most important one being the abstract concept of a universal human. This

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concept exists in one strand of Islamic law and needs to be unearthed to provide a solid

philosophical foundation for universal human rights in Islam, which this research aimed to

provide. The theory of âdamiyyah and ‘ismah needs to be researched further and explained in

modern human rights language to both Muslims and non-Muslims. Deriving from this

theoretical ground, we can extend this venue until a full-fledged theory of universal human

rights is developed and expressed in modern language to meet the present needs of the

Muslim society in its internal relations with other fellow Muslims and external relations with

other fellow humans—a pressing need in the present globalized world.

Muslims lagged behind the modern world regarding the universal human rights despite

the classical universalistic tradition in Islamic law and the rigorous reforms by the Ottomans

during the 19th century to bring traditional Islamic polity in line with its modern counterparts.

Yet the chain of memory has been broken in the Islamic civilization. Presently, some Muslim

states and intellectuals try to start over in producing and justifying rights. I offer an alternative

strategy which exploits the authority of precedence, on theory and practice.

I also recognize the need for each culture and religion to do so. This approach contradicts

with the dominant ideological approaches characterized by an exclusivist claim for the

justification of human rights. Diverse ways of justifying human rights by different cultures in

their own terms will empower human rights cause and increase compliance globally. A

historical precedence for this claim comes from the Islamic tradition.

Another strategy may be, as I did above, to indiscriminately combine the ideas and

notions from different cultures, past and present, East and West, on the meaning, prerequisites

and implications of human existence in society. There is a room in this perspective for the

universality and relativity. Universality cannot be monopolized or patronized by a particular

ideology. Nor can it be precluded because of the social and cultural diversity on the globe.

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Globalization helps us increasingly discover the commonality of human experience from

different cultures, times and places. Yet we need to make an effort to discover the links, and

to fill the gaps, among them to demonstrate how they bear upon each other. Such an

integrative view makes human rights paradigm multi-potential and plastic, rather than

exclusivist and fixed. Diverse cultures may thus variably reaffirm universality of human

rights in their own terms, adding to the power of the paradigm.

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