COMPARING CONCEPTIONS OF HUMAN RIGHTS

Towards an understanding of human rights in Islam
The world, through the nation-state paradigm, has reached consensus on many issues, but a significant number remain points of contention, and in those continuing debates, human rights sits as a reigning champion of disunity. Secular notions of human rights are themselves in disagreement on many philosophical points, and are to varying degrees in contention with one another and with Christian conceptualizations of human rights, but in the global context-on a variety of 'sub-issues' such as abortion, women's rights, etc.-the clash between East and West on human rights is often characterized as the enlightened West struggling against the ignorance and stubbornness of Islam. This paper serves as an inquiry into that particular (Middle) East vs. West debate, striving to understand Islamic notions of human rights in relation to Christian, Marxist, Classical and post-modern secular ideas of human rights.

Human rights as an idea-although certainly a contemporary debate in the West-is central to the historical socio-political development of the West, and finds its roots as a philosophical debate in the medieval European discussions on morality. Human rights as at is currently debated is fundamentally a Western idea–a significant reason for its lack of progress is its historical rejection of non-Western conceptions-grounded perhaps most solidly in the philosophical writings of 17th century Englishman John Locke. The idea of human rights arising out of Locke's social contract theories have been subsequently challenged and expanded by Western philosophers, theologians and politicians, and have been codified in documents such as the United States Declaration of Independence (1776), the United States Bill of Rights (1789), the French Declaration of the Rights of Man (1789), and the United Nations Declaration of Human Rights (1948). All of these documents are attempts to put into writing "universal laws" which pertain to the rights of humans. But the question begged by these documents is the origin of the rights proclaimed therein-and the relevance of that claim of origin to disparate religious traditions-and it is here that the clash with Islam begins. To reach a point of understanding in a discussion of human rights debates in modern times, a brief overview of human rights in the West must be undertaken, and then viewed in relation to Islamic notions of humanity and its rights, with the understanding that the basic Western point of view is prevalent, and is inescapable in the contemporary debate.

The West long ago agreed on the "preferability of life in a society with human rights", because in such a society "you would never be without the status and protection of those rights."1 In order to achieve such a society, the society as a whole must agree on exactly what rights humans have simply by virtue of being human. Ethical theories thus are constructed to supply the basis for these rights, and the basis of these theories was Christianity and Christianity-derived ethics, and remains so for many today. Moral philosophers since the 18th century have tried to remove the Christian element from the theories to put forth secular notions of human rights on the grounds that such formulations are inherently more universal, but here we have our first problem, which is "To whom are these more acceptable in their universality?" Even Christians, although they may accept that the rights as they are written are universal, will still disagree with the basis for them, and Muslims for the most part will simply reject them in toto for not having been framed in Islamic terms, by Islamic theologians, or more correctly, Islamic legal theorists. Thus we in the West are confronted with the necessity of performing an act of bricolage, of bringing together our own Western philosophical perspectives-with our secular yet Christian derived traditions of human rights-with the perspective on Islam gained through religious studies. Obviously, our concern is not with the historical record of how adherents of various traditions have acted with regard to their beliefs on human rights, but with the traditions themselves; in trying to frame a human rights dialogue among religions and socio-cultural traditions, the concern is with the constantly developing framework given to believers to shape their actions, and the resulting multi-national agreements based on those frameworks which arise in modernity.

To further the discussion and strive for global agreement on human rights, we must determine what an acceptable theory of rights should contain, formulate that theory, and then attempt to justify the elements of the theory within various ideologies, including secular, Christian, Muslim, and even Marxist. This is obviously a nigh-impossible task, but we can at least postulate what (from a Western perspective) these ethical theories of human rights must contain.

Hugo Bedau has put forth a useful summary of the elements a theory of human rights must contain at an absolute minimum. Bedau states that no current theory of human rights can meet the criteria he lays down2, but in a sense this is wrong. By making that judgment on current human rights theories, Bedau shows his bias in relation to religious concepts of the rights of man. The essence of a religious doctrine of human rights is that it is inherently universal by virtue of its basis in God, and thus automatically meets these criteria. The problem for the religious human rights activist in any tradition is convincing the rest of humanity of the universality of the religion itself, be it Christian or Muslim or other. Bedau is certainly correct in his assessment of the current theories within the secular context, but doesn't admit to that context within his essay. It is along these same lines that such documents as the United Nations Declaration fails, and the United States Bill of Rights is also beginning to fail, incapable of addressing the belief systems of an increasingly diverse population, all clamoring for 'equal rights', both human and otherwise.

We must also realize that the issue of human rights has come to the forefront of the international scene after the revelation of the shocking abuse of human rights epitomized by the acts of genocide carried out against primarily the Jewish population of Europe by the Nazis-which puts the issue into a religious context for at least one group of people from the outset-and also from the still being revealed abuse of its citizens by the former Soviet Union. Thus the contemporary West is responding to a Western event, and is of course framing a Western response. The difficulty in then applying that response globally is obvious, so some other course must be taken.

We can however-drawing on Hugo Bedau's work-look at any theory of human rights and ask of it the following questions: a) What is its concept of human rights? This presupposes that the theory has an understanding of the uniqueness of human rights, distinct from other kinds of rights; b) Can it provide a fairly conclusive list of specific human rights or a set method for determining the validity of a claim to a right specified as human? This is essential to eventual codification of these rights worldwide; c) What are the categories into which human rights can be sorted? This is absolutely necessary in addressing changing situations; d) What is the understanding of the origin of human rights? A question which is crucial in the context of religion and politics, (somewhat ignored by Bedau even though he posits the necessity of its inclusion in a general theory); e) What is the role played by human rights within the framework of an overarching moral theory? Again, a question that must be answered for varying religious traditions; f) Can it give an accounting of the priorities of human rights? For instance, in situations where violation of one person's or one group's rights affect the rights of another, as in hostage situations; and finally, g) How does the theory address the enforceability of these rights? This presupposes an agreement of institutions capable of enforcing them, and agreement on the method of enforcement.3

We can ask these questions of the major Western traditions, based on J. Bryan Hehir's assessment of the four main sources of human rights claims in the West: the Classical, formulated by Cicero; Christian, as put forth by Pope John XXIII; The Liberal or Lockean idea of human rights, based on John Locke's philosophy; and the Marxist conception, (e.g., Marx)4, and ask these same questions of Islam in comparative perspective, in order to reach a more conclusive point for dialogue with Islam on human rights issues. We in the West often assume that each of these ideologies has a conception of human rights. This in fact is a bit disingenuous, as of course in all traditions people have asked the question what is my or my community's concept of human rights, and having posed the question, have sought to justify a position taken by themselves as normative by drawing analogies within their respective traditions to their ideas of a human right. We are not concerned here however, with posing each of these questions, but only with those that lead to an understanding of ethical frameworks, and thus possibly to what Henry Rosemont has called similarities in "concept clusters",5 namely, the question dealing with the concept of human rights in disparate traditions. Obviously this involves some decontextualizing of these concepts, with the attempt to recontextualize them in modernity and globalization, rather than limiting them to only their respective cultural milieus.

For both Classical theorists and Christians, human rights presupposes a recognition of the intrinsic worth of the human being, and views the dignity of the human as the over-riding concern in matters of rights. In the debate between Classical and Christian rights theorists, the basic assumption is that natural law is the governing ideology, and rights can be extracted from that position. As Hehir points out however, the question of transcendence divides the two camps rather decisively, and it is here the conception of human rights in the two sources begins to be delineated, where Classical rights exist for a human being in a closed universe, and rights for humans from a Christian perspective are rooted in a transcendent source.6 Richard Harries puts human rights in theological perspective for Christians by taking as a beginning point that "rights are grounded...in the value of the created order,"7 and furthermore those rights are recognized by God himself, in that he has created man in his own image, and therefore "respects the worth and dignity of what he has created."8 It is this perspective on human rights which Pope John XXIII put forth in Pacem in Terris, where human rights is placed within the framework of redemption and grace9 while simultaneously allowing that philosophical inquiry into the actualization of human rights is both acceptable and desirable.

Here we have a key distinction in process from Islam: whereas Christian sources since World War II for inquiry and comment on human matters have been institutional-in the form of the Vatican and the World Council of Churches10-Islam is not constructed around a central authority, and thus has no similar mechanism for pronouncement on such issues. Prior to the events of WWII and historically, individual theologians played a much larger role in Christian theology, much as individual scholars (ulama) and jurists (fuquha) practiced ijtihad (independent reasoning-Qur'an and Hadith sanctioned method of reaching decisions) to formulate Islamic responses to changing times up until the gates of ijtihad were closed under the Abbasid Dynasty, thus adding to the difficulty of formulating an Islamic conception of human rights.

Islam does agree with Christianity in one essential fact, in that Islam also holds mankind to be unique, and worthy of dignity, with that dignity affirmed by Allah: "We have called noble (karramuna) the sons of Adam."11 But Islam does not grant man rights simply by that uniqueness, as does Christian and Jewish theology. All rights of man in Islam derive only as a version of claim-rights, in that Allah has promised certain things to those who totally submit (who become a Muslim) to his will. In fact, in its references to the duties (farud) of men, Islam is more in line with Hindu notions of dharma than it is with Christian ideas of human rights. The Hindu sees himself as having been born into a specific set of circumstances, with a set of duties which must be performed in order to progress spiritually. Obviously Islam differs here with Hinduism in that the same duties are given to all men, regardless of the circumstances of their birth, and there perhaps lies some hope for a specifically Islamic human rights ethic.

John Locke also took issue with part of the Christian framework, and while agreeing with natural law doctrine, questioned the social position of man. The Christian point of view states that man is inherently social, and therefore the development of humanity only takes place within a community. In Locke's social contract idea, human beings are intrinsically self-sufficient, and thus join a community only because life is easier in a community setting.12 Here we see similarities between Christianity and Islam, in that the essential ingredient of an Islamic world-view is the establishment of the umma, the world-wide community of Muslims. Questions as to whether this community is more spiritual in nature and thus each person who converts to Islam is entering the umma or whether the realization of the umma does in fact require complete conversion to Islam on the part of all humans is a point of dissension within Islam itself, but need not be solved in order for human rights to be addressed. Here Locke's social contract ideas are useful, as they can be seen to be reflected in Islam to some extent, in the strict obligations of each member of the community to act in a certain way which helps to preserve the community. The centrality of communitas to both Christianity and Islam may also provide a starting point for dialogue on the rights of humans within those communities, although how rights are addressed for members of Christian (or Jewish or Buddhist for that matter) communities who find themselves within an Islamic community or vice-versa is an issue of great concern in the modern context. Islam itself has provided for such situations in its concept of dhimmi, whereby minority members of the community pay a tax (jizya) to avoid duties incumbent on Muslim members of the community, but this itself is contrary to Western ideals of human rights. Scholars such as James Piscatori, Majid Khadduri and others have concluded that non-Muslims (dhimmis) are second-class citizens under such a system, citing the various restrictions placed upon them by the Islamic government.

Again, preservation of the greater community, the physical community of an ever-shrinking world, can perhaps provide the basis for dialogue between the two traditions. Obviously, the problem is that the assertion of individual rights eventually runs counter to the needs of the community. Philosophers have been agonizing over solving this problem, and politicians have proposed list after list of rights, but the problem is that no agreement on process has yet been reached. Agreement on concept clusters and agreement on a process can at least provide some hope at dialogue on this issue, but final resolution is simply not attainable in the context of universal legislation such as the United Nations Declaration.

Marxist doctrine offers an interesting perspective on the concept of human rights when discussing them in the context of communities. The Marxist tradition comes from the standpoint of challenging the Liberal Case for endowing humans with certain inalienable rights which protect them from the possibility of abuse by the state.13 Marxist human rights are instead claim-rights, in the sense that they are rights which a person may demand that the state provides, thus protecting the state's status as the best of all possible structures, in that the state provides assurance that each person lives 'decently'. The danger in the Marxist doctrine is obviously that it can lead to communism and totalitarianism, but it can also lead to liberation theology, as Gustavo Gutiérrez has eloquently formulated in his essays. But Marxism has deeper problems; as Wesley Hohfield14 has pointed out, claim-rights have correlating duties, and as we have seen, the concept of duties plays an important role in Islam. Marxism fails to provide an adequate framework for human rights because if fails to clearly outline these duties, leaving a vacuum in the fabric of morality. Marxist doctrine also seems to claim that there are no other types of rights, a rather unlikely basis for constructing a successful human rights framework for multiple cultures.

In attempting to lay down international rules by which nations must abide regarding human rights or face consequences, we in the West are forcing some Muslims to cite the Qur'an as a source for moral statements on human rights. Although there are examples in the Muslim holy text of direct concern with rights-for example, the verses dealing with the place of woman, and those condemning the practice of infanticide-for the most part, Muslims are responding to the West through acontextual exegesis. Islamic rights activists are attributing human rights morality theories to the Qur'an without really considering the ways by which the meaning of its moral concepts were developed in the context of the sixth century Arabian peninsula. The simple fact is that Islam's development of a combined spiritual and temporal government does not lead to a concept of individual human rights in relation to the state, either in Marxist dependency terms or in Lockean social contract terms, and any attempt to legislate across national boundaries will therefore be doomed to failure.

We in the West are moving ahead on human rights laws for the international community without attempting to understand the cultures upon which we are trying place behavioral restrictions. An attempt must be made to interpret the moral vocabulary of Islam before Western philosophers continue to put forth theories. Obviously, that attempt should involve what this essay involved, that is, a comparison to our own Western traditions. Once that has been done however, perhaps Western, Muslim and Eastern scholars as well can agree on a process by which to continue the dialogue, given an awareness of their biases and perhaps formulate a new way of framing ethical attitudes with an expanded global awareness. There is not a tradition of human rights per se in Islam, any more than there is in Christian or Western viewpoints. What is there is a tradition of developing moral attitudes, which can find agreement on process and agreement on the necessity of protecting people from evil. Whether that process can result in a meaningful international declaration remains to be seen, but it is doubtful that such a declaration would succeed in a world of nation-states and sovereignty issues.

WORKS CONSULTED

Ally, Muhammed Mashuq Ibn, "Theology of Islamic Liberation", in World Religions and Human Liberation, ed. Dan Cohn-Sherbock. Maryknoll, New York: Orbis Books, 1992.

Becker, Lawrence C. "Individual Rights", in And Justice For All, eds. Tom Regan and Donald VanDeVeer. Totawa, New Jersey: Rowman and Littlefield, 1982.

Bedau, Hugo Adam, "International Human Rights", in And Justice For All, eds. Tom Regan and Donald VanDeVeer. Totowa, New Jersey: Rowman and Littlefield, 1982.

Gutiérrez, Gustavo. "Option for the poor: review and challenges" in The Month, January 1995, 5-10.

Harries, Richard. "Human rights in theological perspective," in Human Rights for the 1990s: legal, political and ethical issues, eds. Robert Blackburn and John Taylor. London: Mansell Publishing Limited, 1991, 1-13.

Hehir, J. Bryan. "Human Rights From a Theological Perspective", in The Moral Imperatives of Human Rights: A World Survey, ed. Kenneth W. Thompson. Washington, DC: University Press of America, 1980, 1-21.

Mayer, Ann. Islam and Human Rights: Traditions and Politics. Boulder, CO: Westview Press, 1991.

Piscatori, James. "Human Rights in Islamic Political Culture", in The Moral Imperatives of Human Rights: A World Survey, ed. Kenneth W. Thompson. Washington, DC: University Press of America, 1980, 139-167.

Rouner, Leroy S. ed. Human Rights and the World's Religions. Notre Dame: University of Notre Dame Press, 1988.

1 Hugo Adam Bedau, "International Human Rights", in Tom Regan and Donald VanDeVeer, eds. And Justice For All (Totowa: New Jersey, 1982), 289.

2 Hugo Adam Bedau, "International Human Rights", in Tom Regan and Donald VanDeVeer, eds. And Justice For All (Totowa: New Jersey, 1982), 291.

3 These are the main points of Bedau's statement on the necessary elements of a theory of human rights, extrapolated from his section 'The Elements of Human Rights', in Hugo Adam Bedau, "International Human Rights", in Tom Regan and Donald VanDeVeer, eds. And Justice For All (Totowa: New Jersey, 1982), 289. Bedau provides this statement as an foreword to his attempt to dissect the notion of a human right in the international context down to a point where agreement can be reached. He fails in this, however, by concluding his essay with a statement of how nations ignore violations of human rights, without ever clarifying in his essay an initial point of agreement for nation-states based on differing ideologies.

4 J. Bryan Hehir, "Human Rights From a Theological Perspective", in The Moral Imperatives of Human Rights: A World Survey, ed. Kenneth W. Thompson. (Washington, DC: University Press of America, 1980), 4.

5 Henry Rosemont puts forth his ideas of concept clusters in his essay "Why Take Rights Seriously? A Confucian Critique", in Human Rights in the World's Religions, Leroy Rouner, ed. (Notre Dame: University of Notre Dame Press, 1988), 167-183.

6 J. Bryan Hehir, "Human Rights From a Theological Perspective", in The Moral Imperatives of Human Rights: A World Survey, ed. Kenneth W. Thompson. (Washington, DC: University Press of America, 1980), 5.

7 Richard Harries, "Human Rights in theological perspective", in Human Rights for the 1990s: legal, political and ethical issues, eds. Robert Blackburn and John Taylor (London: Mansell Publishing Limited, 1991), 1.

8 Richard Harries, "Human Rights in theological perspective", in Human Rights for the 1990s: legal, political and ethical issues, eds. Robert Blackburn and John Taylor (London: Mansell Publishing Limited, 1991), 3.

9 J. Bryan Hehir, "Human Rights From a Theological Perspective", in The Moral Imperatives of Human Rights: A World Survey, ed. Kenneth W. Thompson. (Washington, DC: University Press of America, 1980), 5.

10 Richard Harries, "Human Rights in theological perspective", in Human Rights for the 1990s: legal, political and ethical issues, eds. Robert Blackburn and John Taylor (London: Mansell Publishing Limited, 1991), 9.

11 Quran, as cited by James P. Piscatori, "Human rights in Islamic Political Culture", in The Moral Imperatives of Human Rights: A World Survey, ed. Kenneth W. Thompson. (Washington, DC: University Press of America, 1980), 139.

12 J. Bryan Hehir, "Human Rights From a Theological Perspective", in The Moral Imperatives of Human Rights: A World Survey, ed. Kenneth W. Thompson. (Washington, DC: University Press of America, 1980), 8.

13 J. Bryan Hehir, "Human Rights From a Theological Perspective", in The Moral Imperatives of Human Rights: A World Survey, ed. Kenneth W. Thompson. (Washington, DC: University Press of America, 1980), 9.

14 Wesley Hohfield was an American legal theorist of the early 20th century. For a brief discussion of Hohfields four types of rights, see Lawrence C. Becker, "Individual Rights", in Tom Regan and Donald VanDeVeer, eds. And Justice For All (Totowa: New Jersey, 1982), 201.