In fact, his own words perhaps demonstrate more than anything else how his approach to rapprochement is not bound to be accepted:
Although males and females are regarded as equal, that may not imply equivalence or a total identity in roles, especially within the family. Muhammad Qutb has observed that while the demand for equality between man and woman as human beings is both natural and reasonable, this should not extend to a transformation of roles and functions. This creates instances of differentiation in gender roles under Islamic law that may amount to discrimination by the threshold of international human rights law. Although the UN annotations on the draft of Article 3 on equal rights of men and women recorded an appreciation of the drafters that ‘[i]t was difficult to share the assumption that legal systems and traditions could be overridden, that conditions which were inherent in the nature and growth of families and organized societies could be immediately changed, or that articles of faith and religion could be altered, merely by treaty legislations’, the HRC now seems convinced that ‘in the light of the experience it has gathered in its activities over the last 20 years’, it intends to push through a universal standard of complete gender equality under the Covenant aimed at changing traditional, cultural, and religious attitudes that subordinate women universally.

On other occasions, Baderin’s proposes the acceptance of what must be considered more minority opinions among scholars through the ages. Before giving examples from Baderin, it is important to mention a very important point related to Islamic law that Baderin fails to take into consideration in his exuberance to try to reconcile Islam with contemporary human rights law. Simply because an opinion is stated by a Muslim scholar, this does not mean that it is to be given weight from a Shariah perspective. The ultimate question is whether something can be justified from the point of the view of the Shariah and not simply whether any Muslim had ever held a certain opinion. What is obligatory upon a Muslim scholar (or, in reality, any Muslim for that matter) is to follow the “truth,” which is defined as that which is supported by the Quran and Sunnah. Choosing an opinion simply because it is more “politically correct” even if it seemingly or clearly contradicts the Quran or Sunnah cannot be considered justifiable. Furthermore, there seems to be something very troubling to lean toward particular views simply because they are in accord with the world’s dominant paradigm today.


On the question of apostasy, Baderin wrote,
The interpretation of the right to freedom of thought, conscience, and religion to include freedom to change one’s religion or even to adopt atheistic views has not been without controversy among Islamic scholars in relation to the question of apostasy under Islamic law. The different views will be analysed below. However, the trend among contemporary Islamic scholars on the issue of religious freedom under Islamic law has mostly been towards emphasizing the Qur’anic provision which states that: There is no compulsion in religion: truth stands out clear from error…

He then goes on to quote Ismail al-Faruqi’s and Fathi Uthman’s opinions on this issue. Invoking classical scholars, Baderin then goes into a rather irrelevant discussion of how non-Muslim wives of Muslim may not be compelled to embrace Islam.

With respect to a husband’s right to divorce, while discussing the HRC comment that states that “grounds for divorce and annulment should be the same for men and women,” Baderin argues that “the judicial control of marriage dissolution by the State can as well be justified under the doctrine of public welfare (maslahah).”  He further argues that such a control over divorce could also be considered part of the doctrine of hisbah, wherein the state is required to order the good and eradicate evil. To further support this innovative approach, Baderin argues, “Since dissolution by Judicial Order (faskh) is a method sanctioned already by Islamic law, this will not amount to making any new law but the removal of a procedural advantage which has been generally subjected to abuse.” Baderin then notes that this will obviously face great opposition.


He writes,
However, Khallaf considered such abrogation of men’s right of Unilateral Repudiation and vesting dissolution of marriages entirely in the courts as dubious and non-genuine welfare (that is, maslahah wahmiyyah).One could disagree with this view of Khallaf, on the grounds that the approach does not violate or come in conflict with any direct Qur’anic verse on Unilateral Repudiation (talaq). The approach is consistent with the Prophet’s Tradition which states that: “There should be no harming nor should any harm be remedied with another harm.” That approach will remove genuine hardship from women without placing any consequential hardship on men, since it does not totally block every avenue to divorce for men, but only ensures that they divorce for justifiable reasons.

If Baderin’s argument here is taken to its logical conclusion, it would mean that if the Islamic state felt that men were not going to abuse the right of divorce (talaq), this right would be returned to them. However, this would be a violation of the human rights mandate, as it would give unequal rights to divorce between men and women. Hence, Baderin’s argument here is fallacious. He cannot claim that the “Law” can be made consistent with human rights demands except under exceptional circumstances of men abusing this right. Once that no longer occurs, one once again has the conflict between Islamic Law and “human rights” demands.

Furthermore, there are some cases in which Baderin states that Muslims cannot be “flexible” and, as such, it becomes incumbent to invoke the margin of appreciation concept in international law and accept the special circumstances of Muslims due to their religious faith. Thus, for example, he argues against the acceptance of abortion simply upon the grounds that the pregnancy was unwanted.  Similarly, concerning “illegitimate children” he writes,

The problem areas concern mainly the issues of women in employment and the concepts of the family and of children out of wedlock. While the issue of women in employment in most Muslim States has been circumscribed by custom rather than Islamic law per se, the issue of the family and children out of wedlock is strictly dictated by the Islamic religion and regulated by Islamic law… the question of the family and children out of wedlock involves an Islamic religio-moral principle and requires the recognition of some margin of appreciation for Muslim States as is further elaborated in Chapter 5.

In sum, the first part of Baderin’s thesis has to do with tweaking the international approach to human rights. The second part of his thesis has to do with taking a fresh look at Islamic Law. One part of his thesis relies greatly on the concept of “margin of appreciation.” Another part of his thesis has to do with the Islamic concepts of public welfare (maslahah) and the goals of Islamic Law (maqaasid al-shareeah). Both of these points are definitely open to criticism, at least in the manner that he presented them.

With respect to the margin of appreciation, it is important to note that it has not been a widely accepted concept in the human rights movement. In fact, Baderin himself noted: “In practice, the UN Human Rights Committee has not formally adopted the margin of appreciation doctrine but has alluded to it only on one occasion in Hertzberg and Others v. Finland.”  In fact, as Baderin himself notes, on other occasions the HRC explicitly rejected the concept of “margin of appreciation” and stated that the individual state was bound to the conditions of the relevant article of the international convention.  There is a fear that the margin of appreciation approach will lead to cultural relativism and the denial of human rights on that basis. Hence, this means that Baderin is basing his theory of reconciliation on a theory that is not yet respected as part of the law or interpretation of international human rights law, even given the prominent status of Europe when it comes to understanding human rights.

Baderin’s approach to Islamic Law also needs to be questioned. It is interesting to note that Baderin agrees with Mayer that some bygone approaches to Islam need to be revived in order for Islam and human rights to be made more compatible. After quoting a passage from Mayer in which she refers to “many philosophical concepts, humanistic values, and moral principles” found in the “premodern Islamic intellectual heritage,” Baderin writes, “It is those Islamic humanistic concepts and values of the Shari’ah that need to be fully revived for the realization of international human rights within the application of Islamic law in Muslim States.”  Unfortunately, Baderin does not elaborate on this point. One can only hope that he, like Mayer, does not offer praise for the Mutazilah and Khawarij or hopes to revive their methodologies.

With respect to Islamic Law, Baderin argues against a “static” interpretation of Islamic Law and, as noted above,he emphasizes the importance of maslahah and maqaasid al-shareeah.