أحمد محمد لبن Ahmad.M.Lbn مؤسس ومدير المنتدى
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عدد المساهمات : 51137 العمر : 72
![For example, Article 24 says: Empty](https://2img.net/i/empty.gif) | موضوع: For example, Article 24 says: الثلاثاء 15 يناير 2019, 10:39 pm | |
| For example, Article 24 says: “All the rights and freedoms stipulated in this Declaration are subject to the Islamic shari’a.” Imposing such Islamic conditions is an exercise in vacuity so long as specific definitions of what these Islamic conditions entail are not forthcoming. The authors obviously have no wish to be explicit as to how they intend to circumscribe rights, preferring to equivocate and thereby accord governments the freedom to interpret Islamic limits as broadly as they please. Since modem civil and political rights are typically designed to protect the rights of the individual against the state. Allowing the state complete discretion to define the scope of rights and freedoms renders them illusory.
In sum, it can be argued that what Muslim writers speak about as “human rights” are very different from what is proposed by the contemporary human rights embodied in proponents such as Mayer and numerous others. One can actually conclude that there is a complete disjoint between the “Islamic” discussions of these “apologists” and the demands and understandings of the human rights movement.
This has led Mayer to make the following conclusion concerning “Islamic human rights” documents: After examining the vague and confused concepts that the authors of Islamic human rights include in their agendas, one sees that they have no sure grasp of what the concerns of human rights really are. They include provisions that would be totally out of place in a scheme that shared common philosophical premises with those of international human rights.
Although many Muslim authors may not be pleased with the harsh critique that Mayer gives of the “Islamic human rights schemes,” there is no question that, when viewed in the light of the understanding of numerous contemporary human rights proponents, there is much validity to what she is saying.
One is actually left with quite an impasse here. In the same way that the approach of Abou El Fadhl and Naim will not resonate with the masses of the Muslims, the apologetic approach does not resonate with the Western human rights scholars.
Mashood Baderin is one author who has gone beyond others in trying to bridge this obvious impasse. His work has some unique features to it, in that he explicitly tries to incorporate specific aspects of “Western” human rights legal theory with particular aspects of Islamic legal theory. Hence, his book, which stems from his Ph.D. dissertation, deserves some attention here. Baderin is perhaps the best example of the second approachof this category, described above as recognizing room for maneuvering within both human rights law and Islamic law.
Baderin himself explains how his approach differs from that of others: The approach in most previous works has been generally monological, and reflects what Watson has described as the presumption that the current interpretations of international human rights law are impeccable with everything else being adjusted to maintain that assumption. The argument has often been that when Muslim States ratify international human rights treaties they are bound by the international law rule that a State Party to a treaty ‘may not invoke the provisions of its internal law as justification for its failure to perform a treaty’. In practice however, Muslim States… often argue not against the letter of the law but against some interpretation of international human rights law which, they contend, does not take Islamic values into consideration… [T] here is need for a synthesis between two extremes and provision of an alternative perspective to the relationship between international human rights law and Islamic law. Using evidence from Islamic jurisprudence and international human rights practice, this book challenges the argument that the observance of international human rights law is impossible within an Islamic legal dispensation. It theoretically engages international human rights practice in dialogue with Islamic jurisprudence. It develops a dialogical perspective to the issues. A dialogical approach demands a culture of tolerance and persuasion and the abandonment of a culture of parochialism, violence and rivalry. It requires capacity to listen, respect, accommodate and exchange.
Baderin admits that there are “differences of scope” between the Shareeah and international human rights law. He argues that there is room for discussion rather than opposition. However, again, he states that there has to be adjustments on both sides of the issue.
Here is his explanation of what he is calling for: Applying the justificatory principle, a paradigm shift is sought from traditional hardline interpretations of the Shari’ah and also from exclusionist interpretations of international human rights law. The Islamic legal doctrine of maslahah (welfare) and the European human rights ‘margin of appreciation’ doctrine are explored in establishing the arguments herein.
This is not merely a theoretical stance on his part but is the result of his comparison with human rights documents—both secular and Islamic. As he states towards the end of his work,
The detailed examination of both the ICCPR and the ICESCR in the light of Islamic law demonstrates the possibility of constructive harmonization of international human rights norms with Islamic law. This however requires good faith and the abandonment of prejudice between Islamic law and international human rights scholars and advocates.
He concludes that seeing Islam as being compatible with human rights is the most appropriate approach. He argues that this is not via an apologetic approach but by recognizing certain aspects of Islamic Law, such as principles of good government, respect for justice and human welfare and so on. In particular, Baderin argues that human rights is first and foremost about the dignity of human rights which is what Islamic law is all about. (However, as shall be noted later, the concept of “human dignity” is much too vague to lead to any type of concordance except in the most general of concepts.)
The genesis of his argument with respect to how Islamic law should change in reaction to human rights has been explained by Baderin himself: The scope of international human rights can be positively enhanced in the Muslim world through moderate, dynamic, and constructive interpretations of the Shari’ah rather than through hardline and static interpretations of it. This is particularly so in respect of women’s rights, minority rights, and the application of Islamic criminal punishments. We have shown by reference to the different schools of Islamic jurisprudence and classical juristic views that even the early Islamic jurists and scholars emphasized the importance of moderation and had adopted constructive views that can be relied upon today greatly to enhance the realization of international human rights norms within the dispensation of Islamic law. The Qur’an described the Muslim Ummah as ‘justly balanced’, a description signifying moderation.
This Islamic legal analysis of the two international human rights Covenants establishes the need for review of some traditional interpretations of the Shari’ah, in the light of equally valid moderate opinions that had existed even from the time of the earliest Islamic jurists, for the full realization of the rights contained in them within the application of Islamic law. The rules of Islamic jurisprudence do actually encourage interpretations of the Shari’ah that promote the benevolent nature of Islam, especially where the reasoning for such interpretations is commensurate with prevalent needs of social justice and human well-being.
In many cases, one can argue that Baderin’s conclusions are within the scope of generally accepted fiqh conclusions. For example, with respect to the woman’s dress, he states that it would be best if the state were to leave the choice open to the woman as to whether she would cover herself completely or display her face and hands. At the same time, though, it would be hard to imagine that human rights proponents like Mayer would accept the idea that there is a special dress code for women only. In fact, Baderin himself quotes the Committee’s comments on human rights conventions as saying,
Inequality in the enjoyment of rights by women throughout the world is deeply embedded in tradition, history and culture, including religious attitudes… States parties should ensure that traditional, historical, religious or cultural attitudes are not used to justify violations of women’s right to equality before the law and to equal enjoyment of all Covenant rights. States parties should furnish appropriate information on those aspects of tradition, history, cultural practices and religious attitudes which jeopardize, or may jeopardize, compliance with article 3, and indicate what measures they have taken or intend to take to overcome such factors.
Baderin seems to be missing the point that what he supports as part of Islamic law cannot be considered equality and hence some will have the right to argue that it does violate international law. |
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