The Pessimistic Approach

The Pessimistic Approach
The pessimistic approach, in essence, sees Islam (perhaps, religion as a whole) as more of a hindrance than a help when it comes to implementing human rights throughout the world. In particular, this approach has no patience for what has been termed here “orthodox” Islam—although they will more likely use the term “fundamentalist Islam.”

This view revolves around three major points:
(1)    The contemporary human rights scheme is proper and must be applied. Thus, there is no room for any religion to violate human rights.

(2)    Muslim states must abide by the documents that they have signed. If Muslim states make reservations to the documents, their reservations are to be rejected and, in essence, ignored, if those reservations virtually negate the spirit and intent of the document.

(3)    Human rights have become part of international norms and laws today. Thus, even if Muslim states have not signed onto certain documents, they are obligated by law to abide by such international standards. Indeed, some authors clearly argue that it is high time that the international community uses all of the means available to it to force Muslim states to abide by such international norms.

Although a number of authors may be placed in this category, due to space limitations, a limited number will be discussed in detail here.

One work that deserves some special attention is Ann Elizabeth Mayer’s Islam and Human Rights: Tradition and Politics. Its fourth edition has just been published. It is used as a textbook in many university courses throughout the United States. Additionally, in a number of anthologies about human rights, it is Mayer who is chosen to write about the relationship between Islam and human rights, not to speak of the numerous conferences that she has attended while representing the authority on Islam and human rights.

Mayer is a strong proponent of the universality of human rights. This belief means that every human is deserving of the same set of human rights and, as such, no religious or cultural practice may interfere with the acceptance of such human rights. In fact, she refutes the concept of cultural relativism at length and on numerous occasions makes it clear that Muslims should be free to have the right to practice their religion as long as it does not violate said human rights. Thus, she wrote, “Believing that international human rights law is universally applicable, I naturally also believe that Muslims are entitled to the full measure of human rights protections offered under international law.”  This rather innocuous statement—and here this author is using the type of language that Mayer uses when commenting on Islamic human rights schemes—implies a great deal more than what first may come to the mind of the reader. More than anything else, she is actually speaking about Muslim having the human right to follow laws that violate the religion of Islam.

Mayer is one of those many who argue that Islam is not a out, Muslims throughout the world have varying views on the relationship between Islam and human rights—some outwardly rejecting the concept while others completely embracing it. Here, she is correct, as no one can doubt the existence of these viewpoints among contemporary Muslims. However, one cannot jump from this fact and the claim that Islam is not a “monolith” to the conclusion that there are numerous acceptable versions of “Islam.” In the following passage, Mayer admits that she is an outsider writing about Islam and cannot truly tell Muslims what version of Islam they should ultimately accept. She states,

I welcome the emergence of principled human rights advocacy in Middle Eastern countries and the growing tendency to interpret Islamic sources in ways that harmonize Islamic law and international human rights. However, I recognize at all times that I am an outside observer commenting on developments in another tradition, one in which my views can have no normative or prescriptive value. Therefore, I do not endorse any particular reading of Islamic doctrine, nor do I presume to signal which interpretations Muslims should deem authoritative.

It is possible to accept her statement, “nor do I presume to signal which interpretations Muslims should deem authoritative,” yet at the same time her book is mostly dedicated to showing how the “orthodox” understanding of Islam undercuts human rights and therefore cannot be accepted from an international perspective.  Seen in an international law perspective, she may not be “signaling” to Muslims what they may believe in but she certainly does seem to be demanding that those views of Islam incompatible with contemporary human rights schemes not be tolerated.

Mayer claims that she believes in freedom of religion, as all good human rights proponents would also claim. However, it is very clear that Mayer’s understanding of what it means to be believing in and practicing a religion is a secular or very restricted understanding of the term. She makes it very clear that religion only has to do with private beliefs and is not allowed to interfere with politics or law. Thus, she writes,

Muslims may have the sincere conviction that their religious tradition requires deviations from international law, and such private beliefs must be respected. However, the situation becomes different when beliefs that Islamic rules should supersede human rights are marshaled to promote campaigns or measures for stripping others of rights to which they are entitled under international law or when such beliefs are cited to buttress governmental policies and laws that violate the International Bill of Rights. The resulting curbs on rights and freedoms go well beyond the realm of protected private beliefs and enter the domains of politics and law.

In this passage, Mayer has clearly gone from declaring freedom of religion to declaring what types of religion will be free to exist and put into practice. Her statement is reminiscent of Henry Ford’s famous statement, “You can have the Model-T in any color you like as long as it is black.”

On more than one occasion, Mayer overtly does try to demonstrate what “versions” of Islam should be encouraged and supported and this leads her to some very strange conclusions. She actually sings the praises the Khawarij and Mutazilah, due to a bias that runs throughout the human rights paradigm: a stress on individualism and rationalism (which shall be discussed in more detail later). After supposedly critiquing the “orthodox view” on rights, Mayer then turns her attention to the Khawarij.

She writes,
These characteristics of Islamic thought inhibited the growth of concepts of individual rights that could be asserted against infringements by governments but never totally eclipsed other currents in Islamic thought that were hospitable to rights ideals. One can identify humanistic currents beginning in the early stages of Islamic thought and continuing to the present. In addition, early Islamic thought includes precursors of the idea of political freedom. Concepts of democracy very much like those in modern political systems can be found in the earliest period in Islamic history in the ideas of the Kharijite sect, which broke off from mainstream Islam in the seventh century over the latter’s refusal to agree to the Kharijite tenet that the successors to the Prophet Muhammad must be elected by the community. Kharijites have been castigated for their unorthodox views, and their literature is not familiar to most other Muslims; but it still might be said that the Islamic tradition from the outset has included ideas that anticipated some of the democratic principles that underlie modern human rights norms.

It is nothing short of amazing that this proponent of human rights feels no shame to extol the virtues of the Kharijites. Of course, she does not mention that the Kharijites were probably the most violent of all of the sects known to Islam and are virtually unanimously looked upon as true extremists. In fact, their “democratic” view of life led them to declare virtually all Muslims outside of their fold as disbelievers and it was considered permissible to spill the blood of those non-Kharijite Muslims.  In this day and age of extremism, terrorism and violence, one cannot seriously argue that Muslims should look back to the Kharijites for inspiration.

As for the Mutazilah, she fails to mention that when they actually held sway in the Muslim world, they tried to force their beliefs upon the Muslim scholars and masses, thereby not demonstrating much respect for freedom of belief. More than one Muslim scholar was imprisoned when they refused to bow down to their pressure. The famous story of Ahmad ibn Hanbal need not be recounted here. Yet, curiously enough, this is whom the contemporary Muslims should be looking up to concerning freedom and human rights. In reality, perhaps this is not so curious. In the name of freedom, human rights and rationality, Mayer is actually calling for, in not so obvious terms, the end of “traditional, orthodox” Islam, at least on a public level.

Mayer’s attitude is made even clearer in an article she wrote in a work entitled Women’s Rights Human Rights: International Feminist Perspectives.  In this article, Meyer delineated some of what she objects to concerning the traditional understanding of Islam. The reader who is familiar with Islam will readily note how many of objections deal with laws that are clearly and unequivocally stated in the Quran or Sunnah,

Laws [in the Muslim Middle East] commonly provide that the wife must obey her husband, that wives are not allowed to work outside the home without their husbands’ permission, that men may take up to four wives, that a Muslim woman may not marry outside the faith, and that women are entitled to only one-half the inheritance share that men inherit in the same capacity. Depending on the country involved, one may find that women are compelled to wear concealing garments in public… that their testimony in court is excluded or valued at one-half the weight of a man’s, that they are not allowed to travel without the permission of a male relative or unless accompanied by a male relative… Obviously it would be hard to justify the retention of such laws if one took seriously international norms such as Article 2 of CEDAW [Convention on the Elimination of all Forms of Discrimination Against Women, in force since 1918], requiring all states “to pursue all appropriate means and without delay a policy of eliminating discrimination against women.”

It should be noted that few Muslim countries have ratified the CEDAW and among those that have, they entered reservations on some of its points. Mayer, however, argues that such reservations are not valid because they are “incompatible with the object and purpose of the treaty or convention involved.”

Actually, Mayer believes that human rights law has to be obeyed regardless of whether or not a country has accepted or ratified such laws. Thus, this proponent of “rights and freedoms,”

has written,
Although the patterns of ratification of international human rights conventions have been uneven and there is much that remains controversial about international human rights law, there is sufficient consensus to justify the claim that many human rights have come to be part of customary international law and are therefore binding on all countries regardless of the status of their ratifications.

This is a curious statement to say the least. It starts with admitting that not all human rights conventions have been ratified to then mention that there is a difference of opinion over international human rights law to then concluding that nonetheless all nations must abide by such laws regardless of whether they assent to them or not.

This last point is deserving of further comment here, as it has far-reaching implications. It means that once something becomes part of accepted human rights norms, such as the possible future acceptance of homosexual marriage or the unlimited right to abortion, they will then become part of international law. Although there is some debate as to how much “binding” is international law , the goal that they are working towards is very clear. Once these are signed off on, every government is expected to comply completely. As D’Amato wrote,

International law doctrine now goes beyond the state duty not to interfere with international human rights, to hold states accountable for not acting positively to ensure rights. Moreover,… international law now obligates states to use due diligence to prevent, investigate, and punish systematic and egregious human rights violations between private actors.

Not just governments are effected, but they want to stretch their hands into non-governmental bodies.  Henry J. Steiner and Philip Alston wrote,

The rights declared in the [International] Covenant [on Civil and Political Rights] are not by their terms restricted to rights against governmental interference. That is, interference by non-governmental, private actors (the rapist, say) could as destructively impair the right to “security of person” (Article 9). The state’s duty to provide effective remedies can than be read to attach to conduct (rape) that was initially non-governmental.

Most importantly, this means that no religion or tradition can stand in its way and they plan on making those who ratify such things live up to it—even if it were under a former government as Mayer noted,

Countries are not permitted to opt out of their international legal obligations at will or on pretexts of their own devising… [D]erogation from international human rights standards is permitted only under specific, narrow conditions, which do not include denying people human rights by appeal to the standards of any particular religion.

The danger or threat of this reality can be very great. Once something is part of international law, international organizations and human rights bodies can use their pressure, boycott and maybe even intervene in the name of violating human rights. Even if the government should change, they will still be held responsible for these international law agreements.

There are a couple of more points that need to be made with respect to Mayer such that these leanings or (perhaps) biases of this expert on human rights and Islam are well understood, as these leanings obviously influence her comments on Islam. In a world in which “Islamicists” and “fundamentalists” are too often criticized for being “extreme,” the extremists of other movements’ platforms should also be pointed out.

In what can be called an extreme view and seemingly utopian vision of human rights, Mayer makes some rather outlandish claims on behalf of the human rights platform. Mayer continually criticizes Muslim scholars for claiming specific human rights as being accepted by Islam and then noting when Islamic Law has some reservations to the overall right. This is, in reality, rather disingenuous on her part. At some places, she notes that international human rights laws allows for some exceptions but at the same time, especially when critiquing Islamic approaches, she makes it appear as if the rights granted by international agreements are absolute and not open to any form of restriction. For example, while critiquing Islamic laws on marriage that restrict who a Muslim man or woman who marry, Mayer states, “In international law the freedom to marry is unqualified.” This is recognized by all states not to be true. Thus, each state lays down numerous conditions on marriage, including same-sex restrictions and age restrictions.  What Mayer meant to say is that the freedom to marry is unqualified when it comes to religion, race and nationality but she chose not to state it in that fashion. 

The following example is even more illustrative and important. Mayer writes,
International human rights law allows no constraints on a person’s religious beliefs: Freedom of religion is an unqualified freedom. One of the most influential statements of this freedom is in Article 18 of the Universal Declaration of Human Rights (UDHR). Article 18 states: “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.”

Elsewhere, Mayer speaks about religious persecution of minorities in Iran and once states, “Iran’s religious persecutions clash with the principle of freedom of religion, which in international law is a freedom not subject to any constraints.”

Is it possibly true, as she claims and as is stated in Article 18 of the UDHR, that human rights law “allows no constraints on a person’s religious beliefs” or the “freedom of religion”? In fact, this is a remarkable claim in the midst of a book whose ultimate claim is that some “versions” of Islam violate international human rights law and, as such, their implementation in the real world cannot be tolerated. What has happened to that unqualified freedom “either alone or in community with others and in public or private”? The stark reality is that the above passage itself points to one of the fundamental flaws of contemporary international human rights law. One cannot have things both ways: One cannot say that some practices should not be tolerated while at the same time claiming that everyone is free to believe and practice as they wish.

Another writer of this category who has touched upon the subject of Islam and human rights (in particular women’s rights) is Courtney Howland. Although Mayer speaks mostly about Islam, Howland spreads her critique more generally over any brand of “fundamentalist” religion.

Howland continues in the same vein as Mayer but is arguably more explicit in her conclusions. She concludes that the laws of Islam concerning the internal structure of the family, woman’s dress, marriage laws, inheritance and so on are all violations of women’s human rights as recognized by the UN. For example, she writes, “[M]any religious fundamentalist systems of marriage and divorce require women to submit to their husbands, and even obey their husbands. These laws conflict with two areas of protection in the Universal Declaration: liberty rights and equality rights.”  She then shows that there is no legitimate argument to defend such religious practices. She further argues that states have a responsibility, therefore, to work against any such laws and against any such parties that may try to impose such laws. She states, for example, “A state would be permitted, and indeed may have a duty, to outlaw religious practices that are systematically violative of women's liberty and equal rights. Under this approach, it is arguable that states with strong religious fundamentalist movements, including, for example, Japan, Italy, Sri Lanka, and the United States, may have a duty to pass laws prohibiting the practice of requiring wives to be obedient.”  Finally, she argues that the other member states of the UN must take punitive actions against those countries that have allowed religious-fundamentalist laws to be part of their corpus of laws. As she states it, “All enforcement mechanisms at the community's disposal should be used to coerce these pariah states to cease violating articles 55 and 56. It is time for the international community to live up to the standards of the Charter and the Universal Declaration.” 

It is very difficult to imagine how an approach like this is supposed to resonate with the Muslim masses—indeed, it is even difficult to imagine how human rights activists claim to have the right to insist upon this approach. First they make the claim that they are representing an absolute freedom of religion. In reality, though, among Muslims they are actually saying that they are bringing the rights to women, non-Muslims and even apostates. Everyone, that is, except for those who believe in fundamentalist, traditional, orthodox Islam are free to practice their “form” of Islam. Thus, in the name of freedom of religion and human rights, the human rights platforms are going to decide what form of religion people are “free” to choose.

Perhaps most importantly for many Muslims who believe that the Quran and Sunnah have truly been revealed from God is that this human rights approach strips God of aspects of His Divinity, or what is known as al-Haakimiyyah. They are literally saying that God does not have the right to lay down laws for humanity. Certainly, or even more so, He does not have that exclusive right. In other words, their approach to Islam is “offensive” to many Muslims concerning a vital aspect of Muslim belief, not simply some trivial matter that one could or may expect Muslims to overlook.

This approach of theirs demonstrates a fundamental flaw and logical inconsistency when it comes to rights and freedoms. There is no such thing as absolute rights and freedoms because eventually those rights and freedoms will trample upon the rights and freedoms of others. Thus, there is inevitably going to be some trade-off. The ultimate question will eventually boil down to who has the right to determine what trade-offs are going to be accepted. Mayer explicitly understands this reality, however she argues that at no time may religion be the reason for such an exception to the general rights and freedoms. Again, as quoted earlier,

she stated,
Countries are not permitted to opt out of their international legal obligations at will or on pretexts of their own devising… [D]erogation from international human rights standards is permitted only under specific, narrow conditions, which do not include denying people human rights by appeal to the standards of any particular religion.

It is true that there are numerous human rights advocates that seem to have a more balanced approach to human rights than those discussed above. To some extent, Jack Donnelly may be considered more moderate.


There is also the approach of McGoldrick who has observed that:
The presence of experts from different legal systems can assist the HRC in its consideration of reports under article 40. For example, during consideration of the report of Morocco it was useful to have members of the HRC who were conversant with Islamic laws. The provision in article 31(2) can give States parties the confidence that their approach will at least be understood even if disagreed with…

However, there are plenty examples of the more demanding view, such as Mayer and Howland above.


Note the following explicit and eye-opening comment:
For example, one advocate of the unilateral approach, while answering the question ‘How should international law respond to the incompatibility of claims based on Shari’a with international human rights norms?’, submitted that: ‘international law norms must not be compromised, and that it may be desirable for Muslim scholars to explore alternative interpretations of Islamic sources under which Shari’a can be reconciled with developments in international human rights law’.

One is reminded of the feminist human rights proponent Simone de Beauvoir who once stated about women being allowed to stay at home as housewives or mothers,

No, we don’t believe that any woman should have this choice. No woman should be authorized to stay at home to raise children. Society should be totally different. Women should not have that choice, precisely because if there is such a choice, too many women will make that one.

When one reads these kinds of statements coming from the proponents of human rights, one readily recognizes that they are, in fact, just as dogmatic and zealous as any religious extremist or fundamentalist. Of course, they would probably argue that their position, though, is not simply a matter of blind faith  but a well-thought out, reasonable view of the world. The question of what this view is truly founded upon shall be left for later chapters.