Basam Tibi Islam and Human Rights

8/13/2019 Basam Tibi Islam and Human Rights

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Islamic Law/Shari'a, Human Rights, Universal Morality and International RelationsAuthor(s): Bassam TibiSource: Human Rights Quarterly, Vol. 16, No. 2 (May, 1994), pp. 277-299Published by: The Johns Hopkins University PressStable URL: http://www.jstor.org/stable/762448Accessed: 17/12/2009 14:57

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Islamic Law/Shari'a,HumanRights,Universal MoralityandInternationalRelationsBassam Tibi

In our age near the end of the 20th century, recently described as an age ofa clash of civilizations,' there is a tremendous need for morality based on acommon set of norms and values shared by the entire internationalcommunity. Ifthe underpinning of this needed internationalmorality is notbasically human rights,what else could unite humanity? During the UnitedNations Human Rights Conference in Vienna, June 1993, those partici-pants-including this author-who are committed to the idea of universalhuman rights as a basis of international morality, felt disturbed by somepresentations by non-Western politicians who contested the universality ofthis morality. In particular,delegations from Muslim countries were amongthe leading contesters of the universalityof human rights.In Vienna, while human rights activists from Muslim countries-likeIran and the Sudan-were drawing attention to the severe violations ofhuman rights in their own countries (acting in the basement of the ViennaCenter, where the NGOs met during the June 1993 UN Conference),Acknowledgment: Pursuant to the invitation by the Norwegian Institute for Human Rights inOslo, a rough version of this article was written at Harvard'sCenter for InternationalAffairsinthe fall term of 1991. Based on this first draft, a further version was completed at my homeuniversity in Gottingen and was presented at the Oslo meeting on Human Rights and Islam,February 1992. This article was developed in the process of rewriting and expanding myradically revised Oslo presentation. This final version was completed at Harvard, fall term1993. I am grateful to the Volkswagen Foundation for the Akadamie grantwhich facilitateda sabbatical, duringwhich the research for this paperwas able to be conducted at HarvardandG6ttingen. I am also grateful to the Harvard University Center for International Affairs, inparticular to Professor Joseph Nye, to the Norwegian Institute for Human Rights, and inparticular to Tore Lindholm, senior fellow at the host institution and chair of the Oslosymposium. This publication is, in its scope, concept, and wording a different one than theOslo publication (see note 47).1. Samuel P. Huntington, TheClash of Civilizations?, ForeignAffairs72:3 (1993): 22-49.Human Rights Quarterly 16 (1994) 277-299 ?1994 by The Johns Hopkins University Press


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HUMANRIGHTSQUARTERLYministers of foreign affairsof the very same states convening in the higherfloors of the Vienna Centerwere emphasizing the specific character of theirculture against the claim of the universalityof human rights.This emphasisseemed to serve as a legitimation of the well-known violations of humanrights in these states. The Saudi Minister of ForeignAffairsspoke for otherMuslim colleagues present when he, in his Vienna presentation, argued thatfor Muslims human rightscan only be derived from the Islamic shari'a. Withreference to this contention, this article will focus on the nature of humanrightswith regardto the emerging conflict between its universalityand thecultural-assertiveclaims of the Islamic shari'a.

1. INTRODUCTIONHuman rights are individual entitlements that evolved from Europeanmodern thought on natural law. Western countries elevated these rightstolegal institutional standards. With the Universal Declaration of HumanRights(UDHR) by the United Nations in 1948 and the covenants of 1966,that went into force in 1976, these rights have now become internationallaw. In this context we are talking about legal rule, domestic and interna-tional alike, because rightscan only be institutionalized in a legal context.Thus, human rights,democracy, and legal rule are intrinsically interrelatedto one another.In the current resurgence of political Islam, however, Muslims relatelegal rule exclusively to Islamicdivine law, the shari'a,even if they endorsethe notion of democracy. Both Muslims and non-Muslims alike whosubscribe to democracy agree with Max Weber's view that democraticsystems are based on legal rule.2This consensus diminishes, however, whenthe substance of the legal notions employed is determined. This verysubstance of international law alienates assertive Muslims from the Westand fromthe internationalcommunity. LayMuslimfundamentalistsand alsothe traditional Ulema believe that the Islamic shari'a or holy law3 is theexclusive basis for a legal rule acceptable to all Muslims. During myresearch trip to the Maghreb in winter 1992 and again in spring 1993,Muslim fundamentalists forwarded the view in the course of my lecturesand interviews with them that Western democracy is permissive and thus

2. Max Weber, Drei Formender Herrschaft n Soziologie, Weltgeschichtliche Analysen,Politik (Stuttgart:Alfred KroenerVerlag, 1964), 151-66.3. On Islamic law, see Joseph Schacht, An Introductionto Islamic Law (Oxford:ClarendonPress, 1964); see also Ann ElizabethMayer, TheShari'ah:A Methodology or a Body ofSubstantive Rules?, in Islamic Law and Jurisprudence, ed. Nicholas Heer (Seattle:University of Washington Press, 1990), 177-98.

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Islamic Law, Human Rights, and Moralityallows its adversaries to undermine it by its own means, whereas the shari'ais superior and pure. No one can assault the shari'a from within, given thatit draws clear fault lines between itself and others. This argument resemblesthe reasoning along the fault lines of conflict between civilizations.4Algeria's Front Islamique du Salut/FISavowedly attacked the Algerianconstitution of February1989 while simultaneously referring o its benefits.5As FIS deputy chief Abdelkader Haschani said after the election ofDecember 26, 1991, We won the elections according to their constitutionwhich is not ours, ours is the Qur'an. 6The FISwanted power, but not theconstitution. Ifthe FIShad come to power, its firstmeasure would have beento professedly abolish the constitution and declare the nizam al-lslami/Islamic system of government based on the shari'a.7 From an enlightenedpoint of view, the liberal Muslim thinkers like the Sudanese legal scholarAbdullahi An-Na'im and the Egyptian judge Muhammed S. al-Ashmawiplainly state that the application of the shari'a is not desirable because thiswould only contribute to establishing totalitarianregimes. The one existingin the Sudan is a case in point.8An-Na'im argues that the shari'a is not theappropriate vehicle for Islamic self-determination in the present context.... Shari'a was in fact constructed by Muslim jurists .... Although derivedfrom . . . the Qur'an and Sunna, Shari'a is not divine because it is theproduct of human interpretationof those sources. 9Where do the fault linesof conflict between the shari'a and the universality of human rights lie?As quoted, An-Na'im speaks of the present context as his frame oftime. By this notion, An-Na'im refers to contemporary conditions in theworld of Islam. These conditions are constrained globally and they createfault lines of conflict. A leading Harvardsociologist, Theda Skocpol, defines

4. See Huntington, note 1 above.5. Bassam Tibi, Algerien-Die Mar von der abgebrochenen Demokratisierung, BaslerZeitung (March4, 1992): 3; see also BassamTibi, Dag die Demokratie ein Unglaube ist.Die algerischen Fundamentalisten, FrankfurterAllgemeine Zeitung 63 (March 14,1992). I have expanded these two newspaper articles in which Isurvey my observationsin Algeria during the election turmoils of 1991-92 in my most recent book, DieVerschwoerung. Das Trauma arabischer Politick (Hamburg: Hoffmann and Campe,1993) (chapter 7 at 161-77 and chapter 11 at 228-41).6. See the report Demokratiefeindliche Toene der Wahlsieger, in Neue Zuercher Zeitung(NZZ),January5/6, 1992 (on file with author).7. See Muhammad Salim al-'Awwa, Fi al-nizam al-siyasi lil-dawla al-lslamiyya, 6th ed.(Cairo:al-Maktab al-Masri, 1983), 33ff.8. On the fundamentalist regime in Sudan see HaidarIbrahim Ali, Azmat al-lslam al-Siyasi.Al-Jabhaal-lslamiyya al-qawmiyya namudhajan (Casablanca: Dar Qurtuba, 1991), andthe chapter on Sudan in Bassam Tibi, Die Verschworung (Hamburg: Hoffmann andCampe, 1993), 191-208.9. Abdullahi Ahmed An-Na'im, Toward an Islamic Reformation: Civil Liberties, HumanRights and InternationalLaw (Syracuse, NY: Syracuse University Press, 1990), 185.

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HUMANRIGHTSQUARTERLYthis time framework as a worldtime. 10We live in an age characterized byglobalization that engenders a structurein which nation-states and civiliza-tions interact with one another. This takes place under conditions in whicha world government, as a central authority, s missing. An international lawexists, but no institutioncapable of enforcing legal norms worldwide exists.Parallel to this overwhelming globalization, is the fact that existing civiliza-tions and cultures differsubstantiallyin their norms, values, and outlooks asrelated to the respective world views. The notion of establishing cross-culturalfoundations for a universal moralityshared by all civilizations in thesystem of internationalrelations becomes more and more a pertinent issue.This article, then, will address human rights issues from the point of view ofthe discipline of International Relations, while being committed to aninterdisciplinary approach which involves international law and culturalanthropology. Itseems that human rightscannot be established internation-ally on the basis of overall universalism but rather on such cross-culturalfoundations for a universal morality.'2This focus is related to the overallcontext addressed above that human rights lie at the center of establishingcross-cultural foundations in the system of internationalrelations. We haveto bear in mind that human rightsare a cultural concept that originated inEurope. While this concept is, on the one hand, becoming related toglobalization, there exists, on the other hand, no world or universal cultureor civilization, despite the need for international morality.

II. INTERNATIONALRELATIONS,CULTURALDIVERSITY, NDHUMAN RIGHTS:SOMEMETHODOLOGICALCONSIDERATIONSFOR STATINGTHEISSUEIndividual human rightsare clearly a cultural concept of morality,Europeanin origin. This concept grew from the notion of natural law and it has beenrelated to real cultural and social processes of individuation that took placein the wake of modernity.13With the adoption of the basic tenets of this

10. Theda Skocpol, States and Social Revolutions (Cambridge: Cambridge University Press,1979), 23.11. See Hedley Bull, The Anarchical Society: A Study of Order in World Politics (New York:Columbia University Press, 1977), 23ff; see also Christopher Chase-Dunn, GlobalFormation Structures of the World-Economy (Cambridge: Basil Blackwell Ltd., 1989),70ff.12. Tore Lindholm, The Cross-CulturalLegitimacy of Human Rights(Oslo: The NorwegianInstitute of Human Rights, 1990); see also F.S.C. Northrop, The Tamingof the Nations:A Study of the Cultural Bases of InternationalPolicy (Woodbridge, CT: Ox Bow Press,1990). This is a reprintof the 1952 edition.13. Modernity has two dimensions: on the one hand, it is a cultural concept, on the otherhand, it has a structural-institutionaldimension. Both are not identical nor reducible to

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concept in the Universal Declaration of Human Rightsin 1948, this conceptbecame an international one sponsored by the foremost internationalinstitution, the United Nations.14 As already stated, human rights are acultural concept parallel to the idea that there is and there can be no worldculture. In this context the question arises: Is there a sense of internationalmorality related to human rights?Clearly, international relations among theexisting nation-states make such morality on internationalgrounds impera-tive.15Nevertheless, the international system of states lacks such morality.In analyzing the different prevailing attitudes in divergent culturestowards war (e.g., negative attitudes in the West and favorable ones in ThirdWorld countries), leading International Relations scholar K.J.Holsti justifi-ably raises the question whether we still have one international system ormany, given that prevailing and rival attitudes divide humanity.16 Statesgrouped during the Cold War as ThirdWorld, were once considered amodel for paving the way for a new and better humanity (e.g., FrantzFanon's romantic tiers-mondisme).'7 Now these states establish pressuregroups within the UN Commission for Human Rightsin Geneva to preventWestern states from enforcing resolutions concerning the condemnation ofviolations of human rights in their territories.During the UN Conference on Human Rights in Vienna in June 1993the confrontation between the ThirdWorld and the West revolved aroundthe claim of the universalityof human rights.Samuel Huntington who, likeHolsti, considers the divergent world views of people coming from differentcultural set-ups to be one of the sources of conflict in internationalpolitics.Given that the three world blocs no longer exist after the end of the ColdWar,one can no longer speak of a ThirdWorld, but ratherof civilizationsin conflict with one another. In his article, The Clash of Civilizations?,

one another.In this context, I refer o culturalmodernity n the sense employed byJuergenHabermas, ThePhilosophical Discourse of Modernity,trans. FrederickLawrence,(Cambridge,MA:MITPress,1989).Ontheotherdimensions, ee AnthonyGiddens,TheConsequencesof Modernity Stanford,CA: StanfordUniversityPress,1990). I relatehumanrights o culturalmodernity.See the informative verviewby JackDonnelly,Universal Human Rights in Theory and Practice (Ithaca, NY: Cornell University Press,1989).14. TomJ. Farer, TheUN andHumanRights:More han a Whimper,Less han a Roar, nUnited Nations, Divided World: The UN's Role in International Relations, ed. AdamRoberts nd BenedictKingsburyOxford:The ClarendonPress,1988),95-138.15. Terry Nardin, Law, Morality, and the Relations of States (Princeton, NJ: PrincetonUniversityPress,1983),27-48.16. See Kalevi J. Holsti, Peace and War: Armed Conflicts and International Order 1648-1989 (Cambridge: ambridgeUniversityPress,1991),304-05.17. Theclassic ideologyof tiers-mondisme,hirdworldism, s FrantzFanon,Lesdamn6sdela terre (Paris:FrancoisMaspero,1968), reprintedand translated n a varietyoflanguages.Aforceful ritique f thisideologycan now be found nAlainFinkielkraut,aDefaitede la Pens6e(Paris:EditionsGallimard, 987).

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HUMAN RIGHTSQUARTERLYSamuel Huntington has broughtthis conflict to the fore. Indeed, the articlearoused a great dispute. Huntington responds to his critics by pointing tothis very confrontationat the Vienna Human RightsConference betweenthe West . . . and a coalition of Islamic and Confucian states rejectingWestern universalism. 18Will this confrontation determine the future para-digm of international relations? This article presents the morality of humanrights as an element of convergence, a bridge between clashing civiliza-tions, so it can be accepted as internationalmorality.Despite the real clash between civilizations, we still live in aninternationalsystem of states creating in partan internationalsociety. To besure, an international system is not identical to internationalsociety. Whenthe primeval system of states emerged as the first international system inhistory,after the Peace of Westphalia in 1648, the then existing communityof states was exclusively Europeanand thus an international society. WithWorld War IIand the overall processes of decolonization, this system wasexpanded to comprise the entire world19and to assume more diversity.Despite this diversity, the system of law that had regulated the earlierEuropean system of states has become in the course of globalization asystem of international law. As the Oxford law scholar H.L.A.Hartnotes, Ithas never been doubted that when a new, independent state emerges intoexistence ... it is bound by the general obligations of international law....Here the attempt to rest the new state's internationalobligations on a 'tacit'or 'inferred' consent seems wholly threadbare. 20This very notion appliesamong others to the tacit consent by the ThirdWorld states regardingthe Universal Declaration of Human Rights.This consent has, in reality,nocorresponding appropriations in most of these non-Western states. In ourage of the revoltagainst the West 21and the clash of civilizations, 22themissing cultural underpinning of this consent comes to the surface. TheIslamic countries, the subject of this article, are at the forefront of thesecontesting states.To develop a firm grasp of the overall context of the issues addressed,we have to relate the realityof the non-Western states not honoring humanrights norms to the other reality of non-existing cross-cultural foundationsfor human rights.To establish the appropriate grounds for investigating theproblems related to it, we must place human rights in our globalized yet

18. Samuel P. Huntington, IfNot Civilizations, What?, ForeignAffairs,72: 3 (1993): 188;see also Samuel P. Huntington, TheClash of Civilizations?, note 1 above.19. The Expansion of InternationalSociety, ed. Hedley Bull and Adam Watson (Oxford:TheClarendon Press, 1984), 117-213.20. H.L.A. Hart, The Concept of Law, 2nd ed. (Oxford:The Clarendon Press, 1961), 221.21. Bull, The Revolt Against the West, in Bull and Watson, note 19 above.22. Huntington, notes 1 and 18 above.

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IslamicLaw,HumanRights,andMoralityculturally fragmented world. To understand this, we must distinguishbetween the international system and internationalsociety.The late Hedley Bull, who thoroughly grappled with the addresseddistinctions, defines the international system of states as a system ofinteraction among units organized as sovereign states, on the one hand. Onthe other hand, however, an internationalsociety only

exists when a group of states,conscious of certaincommon interests andcommonvalues,forma societyinthe sense thattheyconceivethemselves o bebound by a common set of rules in their relations with one another .... Aninternationalociety in this sense presupposesan internationalystem,butaninternationalystem mayexistthat is not an internationalociety.23Do we have such an internationalsociety with regardto human rights?Doesthe lack of a common set of rules related to the acceptance of universalhuman rights mean consequently that there exists no international society?As stated, the prevailing common values and rules in the currentinternational society, to which the Universal Declaration of Human Rights(UDHR) and the covenants of 1966 belong, are European in origin. Thecurrent surge of culturally self-assertive movements in non-Western coun-tries is characterized by the hallmarkfor which Bull once coined the termThe Revolt [of the ThirdWorld] against the West. 24 slamic fundamental-ism25 is the most prolific variety of this phenomenon. In the area ofinternational law, one can observe a great resentment towards the Westdespite the fact that most countries earlier grouped as Third Worldcomply, however not full-heartedly to international law norms. In hisintroduction to international law, Michael Akehurst rightly notes: ThirdWorld states often feel that international law sacrifices their interests to theinterests of Western states. 26To be sure, some Western states, in particular the US, had earlier

exploited international human rights law for Cold War propagandapurposes. 27It is also true that the United States in its raison d'etat-orientedpolicy mostly acts as a source of human rightsviolations, ratherthan as a

23. Bull, note 11 above, 13-14.24. Bull, note 19 above, 217-28.25. See William Montgomery Watt, Islamic Fundamentalism and Modernity (London:Routledge, 1988); Youssef M. Choueiri, Islamic Fundamentalism (Boston: TwaynePublishers, 1990); Bassam Tibi, The World View of Sunni Arab Fundamentalists, inFundamentalisms and Society, ed. Martin E. Marty and R. Scott Appleby (Chicago:University of Chicago Press, 1993), 73-102.26. Michael Akehurst,A Modern Introduction to InternationalLaw,6th ed. (London: UnwinHyman, 1987), 21.27. Richard Falk, Refocusing the Strugglefor Human Rights:The Foreign Policy Illusion,Harvard Human RightsJournal4 (1991): 63.

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HUMAN RIGHTSQUARTERLYworld leader devoted to their elimination. 28 t is, however, utterlywrong toinfer from this accurate observation of Western policies without any otherfurtherreasoning, as Muslim fundamentalistsmostly do, that the concept ofhuman rights itself is questionable. There is a great need to establish cross-cultural foundations for human rights as a basis of international moralitywhile freeing them from policy abuses. For this reason these rightshave tobe discussed on proper methodological grounds within the framework ofthe discipline of International Relations. This work has to be completedaside from the polemics of non-Western states against deplorable Westernpolicies, for example in Bosnia. After the Vienna Human RightsConferencein June 1993, the foreign ministers of the Association of South East AsianNations (ASEAN)convened in Singapore in July 1993 to turn the tables onthe European states by denouncing the European Community's policywhich tolerates human rights violations on its own continent, i.e., inBosnia.29It is a problem for those interested in the study of human rightsto seethat most scholars of InternationalRelations confine their analysis to dealingwith political security issues and global economics. Those, however, whoare concerned with civilizations and thus with establishing cross-culturalfoundations and universally accepted norms and values such as humanrights are aware of the fact that the international system brings people ofculturally different outlooks to interact with one another in a conflictingmanner. The reason for this is the lack of a general substantive (i.e., not tacitin the sense addressed by Hart) consensus on norms and values for theinteraction among nations. Thus, those scholars realize the need for culturalanalysis in InternationalRelations.While there is a need for unity on human rights standards on aninternational level,30 the implementation of these rights takes place inmulticultural contexts that have to be taken into account. Abdullahi AhmedAn-Na'im is a unique Muslim law scholar who equally stresses his Islamicidentity and his adherence to international human rights standards, thushighlighting the interplay between the specifics of the civilization of Islamand the globalization of human rights standards in our current world. An-Na'im is aware of the European origins of the modern concept of individualhuman rights and acknowledges the conflict between the call for animplementation of the Islamic shari'a and the universally accepted human28. Edward S. Herman, The United States Versus Human Rights in the Third World,HarvardHuman RightsJournal,4 (1991): 85.29. Michael Richardson, Asians, TurningTables, Denounce EC on Bosnia, InternationalHerald Tribune,28 July 1993, 2, col. 2.30. See the illuminating chapter, Human rights in internationalsociety in the book by thelate R. J. Vincent, Human Rights and International Relations (Cambridge: CambridgeUniversity Press, 1986), 92-108 (particularly99-105).

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IslamicLaw,HumanRights,and Moralityrights standards. In pointing out the cultural interdependence in ourworld, An-Na'im considers the enforcement of human rights in the Muslimworld to be a legitimateconcern of all humankind, 31hus not merely thebusiness of Muslims themselves, even though they are the prime audienceof his work. It is true that only Muslims could pursue and accomplish theurgently needed task of what An-Na'im calls a drastic reform of Islamiclaw. 32However, violations of human rights in the Muslim world must becondemned and dealt with internationally, for humanity can no longerdisclaim responsibility for the fate of human beings in any part of theworld. 33This article focuses on the global dimension of human rightslaw, and inparticularits incompatibilitywith the Islamic shari'a in our current historicalperiod. The call of Islamic fundamentalists for the implementation of thisvery shari'a law leads to contesting secular international morality and thuscontributes to the clash between civilizations ratherthan to building bridgesbetween them.

III. ISLAMAND HUMAN RIGHTS:CULTURALFRAGMENTATIONVERSUSGLOBALIZATIONAs earlier pointed out, our current world is characterized by globalizationon all structural levels. However, this globalization does not apply to theculturalterrain, i.e. to norms, values, and world views. The globalization ofstructuresdoes not correspond with the respective normative standardiza-tion. It is imperative not to confuse these two different levels of analysis. Itis common sense to argue that shared legal frameworks are required toestablish a stable legal underpinningfor a world order on common groundsthat makes living under conditions of globalization bearable. Yet, legalframeworks are based on specific cultural norms and values. In a situationcharacterized by the simultaneity of structuralglobalization and culturalfragmentationthere is an urgent need for establishing globally shared legalframeworks on cross-cultural foundations. The question is how to reach thisuniversal moralitydespite the existing culturaldiversity, i.e., despite the factthat the international system is not an international society in the sensedetermined earlier.34Globalization did not contribute to the emergence of a

31. An-Na'im, note 9 above, 187.32. Ibid., 185.33. Ibid.34. A broad conceptual elaboration of this approach with a reference to Islam is included inBassam Tibi, Die fundamentalistische Herausforderung. Der Islam und die Weltpolitik(Munich: C.H. Beck Press, 1992), 57-99 (ChapterIII).

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HUMAN RIGHTSQUARTERLYworld civilization. In particular, in the legal domain of human rights it isbecoming more urgentto ponder seriously on these perennial issues. Thus,there is a need to go beyond the well-known rhetorical condemnations ofhuman rightsviolations in non-Western societies and address the substanceof the cultural patterns underlying and supportingthese violations.Given that the human rights concept is Western in origin whileuniversal in its ethical and legal claims, the foremost question then iswhether this concept can be established legally on cross-cultural founda-tions and thus accepted by Muslims. A basic obstacle is that non-Westerncultures are politically hostile to the West. This political drive is oftendisguised as a claim to cultural authenticity. Infact, no discussion of humanrights concerns in the countries of the former Third World can be pursuedwithout placing this question at the forefront. Human rights concernsbecome a delicate issue when the acknowledgement of their secular andethical-universal claims are related to the example of the foremost non-Western civilization, i.e., to Islam and its legal concepts and frameworksdescribed as shari'a.The Muslim reformer An-Na'im does not evade this question. Heoperates on the premise that Islam is in substance compatible with Westernhuman rights legal norms if interpreted accordingly. To support thiscontention he refers,on the general level, to the elasticity of Islam and to itscapability to accommodate various interpretations equally favorable orhostile to human rights.On specific grounds, An-Na'im points to the workof his mentor, the Sudanese legal reformer Mahmoud M. Taha (who wassentenced to death without a trial and executed by the toppled Sudanesedictator al-Numairi in 1985), in which Taha finds an Islamic acceptance ofhuman rights and develops a liberal understandingof Islam.35An-Na'im isaware, however, of the reverse general trend sweeping the world of Islam.This trend runs counter to his professedly normative effort to see thecompatibility of Islamand human rights.Aside from the minorityof Muslimswho accept human rightsin their full substance, it is sad to see the majorityof Muslims divided. Among them are those who openly reject the conceptof human rights as based on alien Western notions or as a conspiracyagainst Islam, and those who take pains to establish a specifically Islamichuman rights scheme within an ideological framework devoid of a legalreform in Islam.Some Western authors avoid any critique of contemporary Islam toescape the fashionable blame related to the invective of Orientalism. 36

35. See generally Mohamed Mahmoud Taha, TheSecond Message of Islam,trans. and intro.by A. A. An-Na'im (Syracuse, NY: Syracuse University Press, 1987).36. The concept of the critique of Orientalism has been introduced by Edward Said in hisbroadly received book on this subject (see note 67 below). Said himself simply wanted

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IslamicLaw,HumanRights,and MoralityHowever, an honest scholar, despite his sympathy for an enlightened Islam,must acknowledge that Islamic efforts conceal serious disparities betweenestablishing Islamic human rights schemes and international human rights.The difference between those Muslims who reject human rights legal normsas Western and those who seek to establish specifically and exclusivelyIslamic human rights schemes is not one between a party hostile to theserights and another that embraces them. At the end, both parties are notfavorable to the substance of human rights. The hostility of political Islamvis-a-vis substantive human rights indicates the politicization of the ad-dressed cultural fragmentation of humanity. In her book on Islam andhuman rights, Ann E. Mayer states that those Islamic authors who are atpains to establish specific Islamic human rights schemes are reluctant tostate openly that following Islamiccriteriaentails departuresfromthe normsof international law. 37As in the case of other non-Western cultures that are confronted withuniversal values and norms of cultural modernity38on the one hand, andwith the global political and economic dominance of the West on the other,it can also be observed in Islam that anti-Western attitudes make theirhallmark. In this context I have coined the term defensive-culturalattitudes. 39To properly understand this overall trend in non-Westernsocieties, foremost the Islamic ones, it is importantto impartthe notion ofculture to both disciplines involved-International Law and InternationalRelations-because human rights concepts are legal as well as culturalconcepts. The linkage between international relations and the claim foruniversal, in the sense of cross-cultural, validity of international humanrights law standards is based on the principles of cosmopolitan justice. AsTerryNardin puts it, these principles have tended to be expressed in termsof the idea of internationally protected human rights. The idea of humanrights follows directly from the ideal of a universal human commu-

to criticize the prejudiced and biased views of the Orient by Westerners to which healludes as orientalization of the Orient. Thus, to Said, the Orient is an intellectualconstruction by the West. Although Said has a real point to make, many of those whoadopted his concept of orientalism distorted his meaning into a cliche or a catchwordwith which they mostly practice a kind of censorship. For instance, the treatment ofhuman rights issues and the critique of their violation by despotic regimes in the MiddleEastentail the riskof being criticized for displaying an attitudeof orientalism. See note67 and the critique on Said by al-Azm and Tibi cited therein.37. Ann Elizabeth Mayer, Islam and Human Rights:Traditionand Politics (Boulder, CO:Westview Press, 1991), 198; see also Bassam Tibi, Universality of Human Rights and

Authenticity of non-Western Cultures, Islam, and the Western Concept of HumanRights, HarvardHuman RightsJournal5 (Spring 1992): 221-26.38. See Habermas, note 13 above.39. Bassam Tibi, The Crisis of Modern Islam, trans. Judith von Sivers (Salt Lake City:University of Utah Press, 1988), 1-8.

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nity.... 40 In order to take this most important insight into account, weneed to go beyond rigidconcepts in the study of internationallaw as well asbeyond the prevailing concern in the study of international relations(focusing exclusively on either political economy, or political and militarysecurity). In this context the concept of culture and civilization-formerlyneglected in InternationalStudies-becomes pivotal41for unravelling theearlier addressed simultaneity of structural globalization and culturalfragmentation in our modern world. Underlying the contested universalclaim of legal norms and values corresponding with globalization (i.e.,international law) is the process for which the late Hedley Bull coined thealready quoted term TheRevoltagainstthe West. 42Only unbiased culturaldialog and inter-cultural communication43 not subjected to policy con-cerns44could contribute to overcoming these cultural fragmentation-relatedobstacles and avoid the politicization of clashes between civilizations.Students of human rights who are not familiar with these debatesacknowledge, however, that the political and cultural power of theprevailing cultural nationalism and related resentment of the dominance ofWestern civilization are obstacles. Indeed, the resentment towards Westernvalues and legal norms cannot simply be confined to the resentment againstthe political dominance of the West. It is also related to substantialdifferences between cultural modernity and pre-modern values and normsof non-Western societies. Inother words, it is related to the politicization ofthe existing cultural fragmentation.These cultural differences may explainthe Muslim hostility to human rights. At this point, it is importantto drawfrom these observations what is requiredfrom Muslims if they were to fullyembrace the valid standards of international human rights law. This is alsoa majoreffort of An-Na'im's inquirycited earlier. Aside from the underlyingneed for legal reformin Islam,Muslims are basically requiredto distinguishbetween the dominance of the West and the universality of internationalhuman rightslaw standards. It is possible to criticize one aspect (hegemonic

40. Nardin, note 15 above, 274.41. See BassamTibi, Islam and the CulturalAccommodation of Social Change, trans. ClareKrojzl (Boulder, CO: Westview Press, 1990). To be sure: I am not using culture andcivilization interchangeably. In my understanding,culture is always locally constrainedsocial production of meaning, while a civilization combines a set of similar and relatedlocal cultures in a civilizing process. There exists a varietyof Islamic cultures, however,only one Islamic civilization. On this see Bassam Tibi, The Interplaybetween Socialand CulturalChange: The Case of Germany and the Middle East, n Arab CivilizationChallenges and Responses, ed. George N. Atiyeh and IbrahimM. Oweiss (Albany, NY:State University of New YorkPress, 1988), 166-82.42. Bull, note 21 above, 217ff.43. See Handbook of International and Intercultural Communication, ed. Molefi KeteAsante and William B. Gudykunst (London:Sage Publications, 1989).44. See Falk, note 27 above, 47-67, and Herman, note 28 above, 85-104.

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IslamicLaw,HumanRights,and Moralityrule) while accepting the other (the achievements of cultural modernity).Confusing both aspects can only contribute to a furtherpoliticization of theclash between Western and Islamic civilizations.Human rights standardsshould be based on universal legal norms andethical values underlying universal morality and ought not to be confusedwith political power and hegemonic rule. This statement cannot bequestioned if one refers to the well-known double standards of Westerngovernments criticized earlier.45 n their often extremely selective applica-tion of human rightsconcepts, Westerngovernments do a greatdisservice tothe human rights they are rhetorically defending.46 That the desireduniversality of human rights is not undergirded by a respective worldcivilization shared by all of humanity supports the need for underpinning auniversal morality on cross-cultural grounds.

IV.CULTURALMODERNITYAND THE CULTURALSYSTEM N ISLAMIN THELIGHTOF HUMAN RIGHTSIf Muslims are to embrace international human rights law standards full-heartedly, they need to achieve cultural-religious reforms in Islam-not asfaith but as a cultural and legal system.47In fact, Islam is a distinct culturalsystem in which the collective, not the individual, lies at the center of therespective world view. The concept of human rights, as Mayer rightfullystresses, is individualistic in the sense that t generally expresses claims ofa part against the whole. 48The partpointed out by Mayer is the individualwho lives in a civil society and the whole is the state as an overall politicalstructure. Islam makes no such distinction. In Islamic doctrine, the indi-vidual is considered a limb of a collectivity, which is the umma/communityof believers. Furthermore,rights are entitlements and are different fromduties. In Islam, Muslims, as believers, have duties/fara'id vis-a-vis thecommunity/umma, but no individual rights in the sense of entitlements.49

45. Ibid.46. See Holly Burkhalter, Bargaining Away Human Rights: The Bush Administration'sHuman RightsPolicy Toward Iraqand China, Harvard Human RightsJournal4 (1991):105-16; see also Estelina Dallett and Seth Rosenthal, Human Rights Issues in UnitedStates Foreign Policy, ibid., 117-27.47. See Islamic Law Reform and Human Rights, ed. Tore Lindholm and KariVogt (Oslo:Nordic Human RightsPublications, 1993); see also Bassam Tibi, note 41 above, 59-75,where Islam is conceptualized as a cultural system of which Islamic law/shari'a isinterpretedas an essential component.48. Mayer, note 37 above, 44.49. See Mohammad 'Imara, Al-lslam wa huquq al-insan. Darurat la huquq (Islam andHuman Rights, Obligations, not Rights)(Cairo: Dar al Shuruq, 1989); see also note 56below in which the most influentialwork of al-Ghazali is referenced. It is ironic that this

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Establishing human rights in Islam as individual rights seems to benecessary to introduce the concept of rights and to shift away from theconcept of duties. To achieve this, drastic religious-cultural reforms arerequired. Infact, it is not simply a reform,but ratherthe accommodation ofcultural modernity50 n Islam. In fact, cultural modernity is an inherent partof the concept of individual human rights, in that it introduces the principleof subjectivity for determining man to be a free individual. This conceptunderpins the processes of individuation in the development of moderncivil society.With adherence to the discussed requirementsfor establishing a humanrights tradition in Islam, this cultural system can become consonant withinternational human rights law as a universal framework. Currently,effortspursued by leading Islamic authorities (such as the late A. Mawdudi),institutions (al-Azhar), and movements (such as the London-based IslamicCouncil responsible for wording the content of The Universal IslamicDeclaration of Human Rights )are viewed as decisive Islamic contributionsto establishing human rightsschemes in Islam.A closer look at these effortsleads to a shattering and disillusioning realization. The Islamization pro-grams supported by these self-professed and alleged exponents of specifi-cally Islamic human rights schemes repudiate rather than embrace thestandardsof international human rights law. The legal scholar, Ann Mayer,provides an analysis of these efforts and concludes that [t]he Islamicschemes do not offer protection for what international law deems funda-mental rights. . . 5' Mayer also finds that Muslim authorities on humanrights have no sure graspof what the concerns of human rightsare. 52Thisconclusion is supported by substantial analysis of the basic Islamic docu-ments on human rights.At issue is the area of conflict between internationalhuman rights law standards and what is conceived to be Islamic humanrights schemes. In my terminology, it is a basic conflict between cultural

fundamentalist sheikh al-Ghazali who is considered to be the Islamic authority onhuman rightsafter the publication of the above referenced book, in June 1993 issued aFetwa (religious decree) in which he authorizes killing every Muslim who publiclysubscribes to suspending the shari'a.This Fetwawas given in a testimony during the trialof the killers of the EgyptianwriterFarajFudawho was assassinated for having publishedbooks supporting secular views. The Fetwa of the EgyptianSheikh al-Ghazali was usedlater also by Algerian fundamentalists to legitimize their killing of intellectuals like thesociologist Mohammed Boukhobza and the essayist Taher Jaout. (In 1993, twelveleading Algerian intellectuals were slain.) These references support the view forwardedin this article pertainingto the crucial conflict between human rights standardsand theshari'a.The al-Ghazali Fetwa described herein was published in partin al-Hayat (Arabicnewspaper published in London) on June 23, 1993 (on file with the author).50. See Habermas, note 13 above; see also Tibi, note 41 above.51. Mayer, note 37 above, 68.52. Ibid., 71.

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IslamicLaw,HumanRights,and Moralitymodernity and pre-modern doctrines.53Among the elements of this conflictis the incompatibility of the restrictions on the individual in Islam with thenotion of individual freedom in cultural modernity. Islamic authors do notsee the relationship of the individual and the state as being an adverse one.They view the individual as a limb of an organic collectivity. Discriminationagainst women and non-Muslims and restrictions on the rightsand freedomof women are utterlyunacceptable by common international human rightslaw standards, but are commonplace in Islam. In addition, Islamizationprograms relegate religious minorities such as dhimmis to a second classstatus.54Islamic human rights schemes are evasive on the question ofprotections for freedom of religion .... They also evince a general lack ofsympathy for the idea of freedom of religion .. . 55Inshort, one cannot be sure whether Islamic rightsschemes, as they arebased on pre-modern doctrines, are addressing universal human rights orare just talking about the rightsof Muslims, yet in the meaning of the dutiesof believers. These schemes are ambivalent about human rights and theybecome apologetic when, contraryto all historical evidence, they claim thatIslam was the very first in establishing human rights,56while contesting theWestern origin of the concept. In their schemes Islamic authors provide aconcept devoid of the substance of individual human rights.

V. ISLAMAND HUMAN RIGHTS:A CONFLICTBETWEENGLOBALCIVILIZATIONAND LOCALCULTURES?ORA CLASHBETWEENCIVILIZATIONS?This section, after outlining the structure and the major concerns of aninquiry into Islam and human rights,discusses some specific questions. Thefirst question is whether it is justified to judge the non-Western cultural

53. See Tibi, notes 39, 41, and 47 above.54. Islamic doctrine, unlike the views expressed by contemporary Islamic fundamentalists,recognizes Christians and Jews as believers, though assigns to them the status ofprotected minorities. The pact of protection and tolerance of jews and Christiansis calleddhimma and those benefittingfrom it are ahl al-dhimma (people of the pact) or dhimmis.As Bernard Lewis explains, By the terms of the dhimma, these communities wereaccorded a certain status, provided that they unequivocally recognized the primacy ofIslam and the supremacy of the Muslims. This recognition was expressed in the paymentof the poll tax and obedience to a series of restrictionsdefined in detail by the holy law.BernardLewis, TheJews of Islam (Princeton, NJ:Princeton University Press, 1974), 21.55. Mayer, note 37 above, 186.56. This is for instance the claim of the well-known Sheikh Muhammad al-Ghazali, Huquqal-insan bain ta'alim al-lslam wa'l'ilan al-umam al-muttahidah (Human Rights betweenthe Teaching of Islam and the UN-Declaration), 3rd printing (Cairo: 1984), 7; see alsonote 49 above.

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system of Islam by standardsemanating from Western civilization, as is thecase in international human rights law. There are many ways to deal withthis question. As quoted earlier, Samuel Huntington views the conflictbetween Islam and internationalhuman rightsstandardsto be an indicationof a clash between civilizations. From the point of view of this article, it israther a conflict between a local culturalworld view and a standardrelatedto civilizational morality and to the globalized civilizing process.57Islamiccivilization unites a variety of local cultures spread throughoutAsia, Africa,and parts of Europe(8 million Muslims in the Balkans). Despite its stretchworldwide, Islamic civilization did not reach the global level that Europeanexpansion has in modern times. The globalization processes that haveaccompanied this expansion resulted in the creation of an internationalstandard of cultural modernity and a world time related to it to which allcivilizations of the world are exposed. Since the Greek legacy and itsadoption by Muslim Hellenism, a tradition has been established whichviews rational knowledge as universal and as a standard for all of humanity.Not until the globalization of the standard of cultural modernity could onesay that this tradition had become a global one. In our time, knowledge ishuman knowledge-which comprises the knowledge about human rightsasentitlements of the individual. This is the background for my proposition inthis article. I propose, therefore, to relate this universal human standard ofknowledge to a standard of morality in which universal human rights areembedded. Ifthis hypothesis applies, then it is correct to judge the culturalsystem of Islam by universal standards.In my view, scholarly knowledge is universally valid and not confinedto a specific culture or a regional civilization. Idisagree with the fashionableapproach of the cultural-anthropologizationof knowledge which disregardsthe notion of universal-scientific knowledge.58Thus, I concur fully with MaxWeber's view that modern Western science is the only universally validstandardhumanity has ever known.59 From this I infer that it is justifiable tojudge Islam in terms emanating from cultural modernity, being a source ofmodern universal knowledge.If the premise that international human rights standards based on

57. See both volumes of The Civilizing Process by Norbert Elias,and translated by EdmundJephcott. The first volume is subtitled The History of Manners (New York: PantheonBooks, 1978) and the second, Power and Civility(New York:Pantheon Books, 1982); seealso Tibi, note 39 above, 23-31; and Tibi, note 41 above. I employ this notion for thestudy of Islam.58. See my forthcoming article Culture and Knowledge: The Notion of Islamization ofKnowledge as a Postmodern Project? in Theory, Culture and Society, Explorations inCritical Social Science (London:Sage Publications, 1994).59. Max Weber, Soziologie, Wetgeschichtliche Analysen, Politik (Stuttgart:Alfred KroenerVerlag, 1964), 340-42.

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IslamicLaw,HumanRights,andMoralityuniversal morality ought to be established in Islam is valid, then the secondquestion is related to the constraints and obstacles in the way of the culturalaccommodation of cultural modernity by Muslims. It has become tradi-tional wisdom to view human rights violations almost exclusively as theresult of oppressive regimes, i.e., as being primarily political in nature. Inother words, cultural constraints are either overlooked or not given dueimportance in analyses. Given that democracy has classical Greek roots andis a political culture that has unfolded in the West, it is correct to note thatthis culture has not yet become universal.60Thinking in Western termscontributes to overlooking contradicting cultural and civilizational stan-dards in non-Western societies in which democratic values are not honored.Last but not least, one must ask what ought to be done to make Muslimsspeak the language of human rights in their own tongue?61The following explores how these impending questions can be ad-dressed in order to discuss the remedy that ought to be prescribed forcoping with the predicament of Islam and international human rights lawstandardsin the present system of international relations. Global civilizationcan be viewed to be a cross-cultural endeavor supportive of transformingthe international system into an international society.62 In embracing theuniversal morality growing from global civilizational standards, barriersinthe way of establishing human rights globally may be overcome by localcultures. Based on the work of Norbert Elias, I have made an effort63 oconceptualize the globalization of the civilizing process 64 or advancingthe argument that humanity could share common standards. Human rightsought to be part and parcel of these standards.The following discussion is determined by the observation that the bulkof authors of Islamic human rights schemes produce rights provisions thatare inadequate by the standards of international human rights related touniversal morality. The failure to meet these standards is not attributablesolely to the human rights author's own failing in the task of interpretingIslamic requirements. For this reason, I strongly disagree with Ann Mayer's

60. Samuel P. Huntington, The ThirdWave, Democratization in the Late Twentieth Century(Norman, OK: University of Oklahoma Press, 1991), argues that a global third wave ofdemocratization is taking place in our present. In his recent article on Clash ofCivilizations, see note 1 above, Huntington is less optimistic.61. In a contribution published in a comparative undertakingI recently suggested inquiringinto this issue and pondering it on a global level. Bassam Tibi, TheEuropeanTraditionof Human Rightsand the Culture of Islam, in Human Rightsin Africa, ed. Abdullahi A.An-Na'im and FrancisDeng (Washington, D.C.: The BrookingsInstitute, 1990), 104-32.62. Bull, note 11 above.63. See Tibi, notes 39 and 41 above.64. See note 57 above.

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HUMAN RIGHTSQUARTERLYview that the stakes in the battleover human rightsstandards are ultimatelypolitical. 65 I want to examine this view on the grounds that there aredefinitely cultural obstacles in the way of establishing human rightsstandards in Muslim countries.To begin with, our world time is related to a process for which NorbertElias-as quoted earlier-coined the term the civilizing process. 66In thiscontext, the question arises whether local cultures and regional civilizationsthat have not yet been globalized can be treated as islands isolated fromtheir global environment. Despite the distinct character of discrete localcultures and regional civilizations, there must be some grounds for univer-sally valid comparisons that facilitate drawing general conclusions. Theneed for generally accepted norms, rules, and procedures for conflictresolution among nations undergirds the necessity to go beyond specificframeworks confined to the study of local cultures. Inthe terrain of humanrights, no one could contest this need while maintaining acceptableuniversal standards of morality and law.Anthropologistsand area studies scholars who are preoccupied with thecultural specificity of their field seem to fail to develop a properunderstand-ing of the issue addressed. Particularly n the study of the world of Islam,thecritique of Orientalism, which seemed to have justifiable grounds at theoutset of that debate, has now become an obscure concept not worthwasting time on. From the point of view of this concept of Orientalism nocriticism, be it of despotic regimes ruling the Middle East,of fundamental-ism, or of the Islamic pre-modern view of the world, can go unscathedwithout being disputed to be an expression of Orientalism.67The field ofhuman rights is no exception. Infact, those who are supposed to subscribeto or are susceptible to Orientalism claim that the Orient s differentfromthe West. Ann Mayer makes the point that the critique of Orientalism in thedomain of human rights runs into the same scheme, i.e., in accepting thequintessentially Orientalist notion that the concepts and categories em-ployed in the West to understand societies and cultures are irrelevant andinapplicable in the East. 68Middle Easternersand Muslims also condemncritical comparisons and believe to see in them sinister political objec-tives. In my view the defaulting of both parties and of the cultural-anthropologist school of cultural relativismis accurate and justified. Inother

65. Mayer, note 37 above, 211.66. See note 57 above.67. See EdwardW. Said, Orientalism (New York: Random House, 1979). On the interna-tional debate on this issue see Bassam Tibi, Orient und Okzident. Anmerkungen zurOrientalismus-Debatte, in Neue Politische Literatur,29 (1984): 267-86; see also thecritique of Sadiq Jalal al-Azm, Dhihniyyat al-tahrim(The Mentality of Taboo) (London:El-RayyisBooks, 1993), 17-85.68. Mayer, note 37 above, 9.

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IslamicLaw,HumanRights,and Moralitywords, comparisons on universal grounds and knowledge, as is the case ininternational human rights law, are acceptable and must be admitted. Therealities of structural globalization in international relations provides asound basis for these comparisons and calls into question all concepts ofcultural relativism,foremost their application in the study of human rights.69

Having argued in this manner, a subtlety in the study of the Islamicculture needs to be honored. The assumption that there exists a monolithicIslamic cultural standard is utterly wrong. In cultural terms, Islam can befound in a diversity of local cultures, however, a sweeping generalization ofthis observation leads to overlooking the basic elements of Islamic civiliza-tion. Muslims, despite their cultural diversity, really share standards of thiscivilization and have in common a world view related to it. Scholars whoexclusively stressthe diversityof Islamoften ignore that Muslims, be they inthe Middle East, South Asia, or sub-Saharan Africa, share a virtuallyconsistent common world view. Without taking this world view intoconsideration, one may fail to understand properly the obstacles ofestablishing the universal concept of human rights in the non-Westernsocieties described as Islamic. It is true that contemporary Islamic funda-mentalists are reviving this exclusive world view for establishing grounds inthe clash between civilizations.70

We cannot simply attribute the emphasis on duties and the rejection ofthe notion of unfettered rightsto undemocratic regimes undertaking Islam-ization programs. The issue is not that simple. In a recent article, anEgyptianauthor states plainly, While Arab elites at least pay lip service todemocracy, democratic ideals seem to be of far less concern to the broaderpublic .... [D]emocracy is not at present a major concern of the Arabmasses. 71While these undemocratic regimes in the Middle East utilize theconcept of duties/fara'id, they did not invent it. It is an Islamic concept, asold as Islam itself and a partand parcel of the Islamic world view shared bythe majority of Muslims. This world view becomes clear when theindividualistic character in the Western concept of human rights is juxta-posed with the pre-modern Islamic heritage. A rejection of these individual-istic values makes it difficultfor Muslims to accept norms and values relatedto individual human rights.

69. To contest cultural relativism is not equal to falling victim of the belief in universalism.There exists no universal morality, hence, universals such as those of human rights, canonly be established on cross-cultural foundations. See Alison Dundes Renteln, Interna-tional Human Rights:Universalism VersusRelativism,vol. 6 of Frontiersof Anthropology(London: Sage Publications, 1990), 138 in which she attempts to reconcile the ap-parently conflicting positions of the universalist and the relativist.70. See Tibi, note 25 above.71. Mustapha K. Al-Sayyid, Slow Thaw in the Arab World, World Policy Journal, VIII:4(1991): 724.

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HUMANRIGHTSQUARTERLYHow could cultures in which the individual is conceived of as a limb ofan organically defined religious-culturalcollectivity admit individual rightswithout undergoing radical changes in their prevailing world view? If onefails to address this question, no adequate graspof the issue can be reached.

Again, to argue in favor of individual human rightsas entitlements does notsuffice for elevating these rights to a universal status in the concept ofmorality. To reach this end, these rights have to be established in a localcultural setting on cross-cultural grounds. Now, however, the absence of acultural concept of these rights in some local cultures explains their utterabsence in societies related to these cultures. The reference to oppressiveregimes and to their undemocratic programs of Islamization, withoutsubjecting the entire cultural system involved to critical scrutiny, cannotexplain the problems at issue in a convincing manner.

VI. CONCLUSIONArguingthat the authorsof Islamic human rightsschemes72lack a consistentconcept of the subject under issue is justifiable. However, an adequatemethodological access to the problems at hand would not be an escapefrom the predicament of Islam with individual human rights addressed inthis article. In fact, the prevailing cosmological world view in the culturalsystem of Islam is the source of the obstacles in the way of establishingIslamic human rights standards acceptable to the criteria of universalmorality. It is the problem of the prevailing culture and the relatedWeltanschauung73as a cultural pattern in which the collectivity, not theindividual, and duties, not rights, rank highest.This inquiryconcludes with the assumption that a debate on Islam andculturally based resistance to human rights

within the earlier outlinedcontext of structuralglobalization and cultural fragmentation must be ourframework for establishing cross-cultural foundations for the norms andvalues of human rightson legally and politically universal grounds. UnlessMuslims change their world view and the cultural patterns and attitudesrelated to it, the conflict between Islamic human rights schemes andinternational human rightsstandardswill continue to prevail as a source ofconflict between civilizations. The reference to the culturally based resist-ance to individual human rightshelps in understandingthe conflict at issue.The recently developed Islamic human rights schemes conceal ratherthan

72. See Muhammad 'Imara,note 49 above; and Ghazali, note 56 above.73. Weltanschauung is the German philosophical concept of worldview also adopted inAnglo-saxon writings.

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Islamic Law, Human Rights, and Moralityreveal the addressed conflict. These schemes obscure the incompatibilitybetween individual and collectivity-oriented concepts in Western andIslamic human rightsschemes, blurringthe boundaries between duties andrights. Again, to understand this we have to deal with the deep-seateddominant cosmological world view among Muslims. I contend that theprevailing Islamic view of the world is the crucial cultural underpinning ofthe Islamic predicament with the modern concept of human rights. Inpassing, Ann E. Mayer addresses the priorities of Muslim human rightsauthors: [T]hey uphold the primacy of Revelation over reason and noneendorse reason as a source of law. 74Here lies the problem. It is the conflictbetween a man(reason)-centered and a cosmological theocentric view ofthe world and also between the related civilizations. I maintain that there isa conflict between the global civilization of cultural modernity and localpre-modern cultures grouped in regional civilizations. In other words, Iconceive the conflict not to be a clash of civilizations but rather as onebetween local cultures (grouped as civilizations) and global civilizationemerging from the civilizing process. 75Modern law, including humanrights law, is a product of the cultural project of modernity 76being thesubstance of the civilizing process.Modern natural law contributed to establishing the principle ofsubjectivity 77 .e., of a man-centered view of the world and of the relatedlegal underpinning which determines human beings as individuals entitledto freedom. Human rightsas individual entitlements are part and parcel ofcultural modernity and its principleof subjectivity. The reformof Islamiclaw, which An-Na'im brightlypresents as the fundamental objective 78ofhis remarkablework, cannot be accomplished without relating this reformto the very basic normative and structuralrequirements of cultural moder-nity and to the world view emanating from it.There exists an incompatibilitybetween Shari'a and modern standardsof international relations and human rights, 79which An-Na'im coura-geously seeks to overcome through his envisaged reform of Islamic law. In

74. Mayer, note 37 above, 58.75. See Elias, note 57 above. Elias himself argues in the last partof the second volume thatthe European civilizing process has been stretching beyond Europeand becoming aninternational standard. In drawing on this, I referto Elias' approach and deal with thecrisis of the Islamic civilization itself in The Crisis of Modern Islam, note 39 above.76. See Habermas, note 13 above.77. Bythis notion of the principleof subjectivity, Habermas in his Philosophical Discourseof CulturalModernity (see note 13 above) underlines the processes of individuation inEuropeanhistorywhich resulted in determining man as a free subject, i.e., free individualwith individual entitlements vis-a-vis state and society. This is the cultural underpinningof the human rightsconcept.78. An-Na'im, note 9 above, 185.79. Ibid., 184.

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fact, this incompatibility is, as earlier emphasized, one between a cosmo-logical-theocentric and a man-centered view of the world.80 The culturalfragmentation in the structurallyglobalized system of international relationsis related to the incompatibility of the respective world views of culturalmodernity and pre-modern cultures. In order to embrace human rights asentitlements, Muslims need to embrace cultural modernity.The current politicization of the described cultural fragmentationcontributes to strengthening all varieties of cultural religious fundamental-ism,81 and it most certainly does not serve the cause of establishingindividual human rights in the civilization of Islam. These rights are aconcern of Muslims in particular,as well as of world politics in general.82The Rushdie affair83ought to illustrate this dual concern. Establishinganindigenous tradition of individual human rights in local cultures is thebottom line of universal morality shared by all of humanity. Efforts owardsthis end may contribute to the resolution of conflict between globalcivilization and local cultures. The universal moralityof human rightsis thetrue alternative to the concept related to the clash of civilizations.Inour age of cultural reassertion,disorder,and political turmoil, there isa great need for establishing commonalities between the conflicting civili-zations. What could be more appropriate for this than an international,cross-culturally based moralityof human rights?Among the civilizations atissue, the West and Islamgenerate the most concern. The increasing role ofIslam in world politics and the increased presence of Muslims in Europeandin North America-a presence that makes for a more intense interactionbetween civilizations than ever before-underlie the need for a commondiscourse about ethics. 84 The conflict between the shari'a claims andsecular individual human rightsthat has been accounted for in this article,is not only a potential for world politics, but it also refers-in our age ofglobal migration-to domestic politics. John Kelsay, a scholar of religion,

80. Bassam Tibi, Im Namen Gottes? Der Islam, die Menschenrechte und die kulturelleModerne, in Der Islam im Aufbruch?,ed. Michael Luders(Munich: Piper Verlag, 1992),144-61.81. See Fundamentalisms Observed, ed. Martin E. Marty and R. Scott Appleby (Chicago:University of Chicago Press, 1991).82. David P. Forsythe, Human Rights and World Politics, 2nd ed., revised (Lincoln, NE:University of Nebraska, 1989), 189-228.83. See The Rushdie File, ed. LisaAppignanesi and Sara Maitland (Syracuse, NY: SyracuseUniversity Press, 1990). Forrelatingthe Rushdie affairto the clash between Islamic andglobal civilization with regardto human rights,see the comprehensive study by BassamTibi, Im Schatten Allahs. Islam und Menschenrechte (Munich: Piper Press, 1994),

forthcoming in Fall 1994.84. John Kelsay, Islam and War:A Study of Comparative Ethics (Louisville, KY:John KnoxPress, 1993), 3-5.

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1994 Islamic Law, Human Rights, and Morality 299

stresses this need for a common ethics (which I propose to be thefoundation for universal human rights)in his awareness that the traditionswe call 'Western' and 'Islamic' can no longer strictly be identified withparticular geographic regions.... [T]he rapidity of Muslim immigration ...suggests that we may soon be forced to speak not simply of Islam and, butof Islam in, the West. 85 tbecomes clear that any dismissal of the ethics ofhuman rights as a basis of international morality through forwardingmulticultural or cultural-relativistarguments is also a dismissal of world anddomestic peace between civilizations.

85. Ibid., 117-18.

Documents

Basam Tibi Islam and Human Rights