Though often misrepresented and misunderstood in the West, Islamic law has always contained elements of human rights. The very concept of essential rights for all members of the community can be traced back to the origins of Islamic law, Tamara Sonn, the College's Kenan Professor of Humanities in the department of religious studies, said in a recent lecture at the Marshall-Wythe School of Law.
"The reality remains that those Muslims who are joining with people of all traditions in the search for justice and universal human rights have a fertile source for supporting arguments in their own classical legal traditions," Sonn said.
Diversity of opinion complicates interpretations of Islamic law within the Muslim community, Sonn said, and its application to all facets of life adds to the challenge. Often overlooked is the division between what Muslims consider the revealed divine will and specific legal codes devised by humans in the effort to implement the divine will. Shari'ah, or law that reflects the divine will, is eternal and changeless and serves to guide Muslims in their daily lives to gain eternal reward by creating a just society.
"You can't get to heaven by ignoring earth, and you can't live successfully by ignoring heaven," Sonn explained. "What's ultimately good for you is what's good for other people."
Legal codes derived by people, however, are distinguished from the divine will. Fiqh is the effort of human beings to understand and implement divine will through legal codes-jurisprudence-not the divine will itself. Unlike shari'ah, which is eternal and changeless, legal codes can be adapted. Built into the roots that guide Islamic law is a method, called ijtihad, or intellectual jihad, to rethink and change these legal codes as circumstances demand.
"The world is changing rapidly and legislation needs to keep up with it," Sonn said. "The goal of legislation is to guide human life, so legislation has to keep up with human life."
Despite their varying opinions on issues, Islamic legal scholars agree that the ability to legislate properly-in order to undertake ijtihad-hinges on people's clear understanding of the overall goals of Islamic law for success in this world and the next. In this world, Islamic law requires protection of human rights.
Islamic legal discourse divides rights into two types: those accorded to God, such as prayer, worshipping, fasting, pilgrimage, and the rights of human beings or individuals, Sonn said. The five necessities, or essential rights for people described by Islamic law, are religion, life, family, mind or intellect, and property or wealth. Establishing and protecting these rights are considered among the primary purposes of Islamic law.
Islamic texts detail "highly nuanced" discussions of these essential rights, Sonn said, but the fact remains that protection of these basic rights traditionally has been-and is still-the measure of the legitimacy of a government in terms of Islamic thought.
"It is not enough to apply only certain aspects of the codes. For a government to be judged truly Islamic-despite what it calls itself-it must fulfill the purposes of Islamic law, and that includes protecting these necessities, these basic rights," Sonn said. "I think that is one of the most misunderstood aspects of Islam today."
Societies worldwide, particularly those in the post-colonial world that have endured debilitating struggles for independence, are attempting to establish effective political structures, many of which required military effort. Often, military leaders remain in power even after foreign occupiers leave. "As it turns out, military dictators rarely want to abdicate in favor of popular governments," Sonn said. "So the challenge for these non-popular leaders becomes how to establish some form of legitimacy."
Often efforts to meet that challenge lead to misunderstanding. Some military leaders attempt to "finesse legitimacy" by suddenly implementing some highly symbolic aspect of Islamic law, such as the hudud punishments-six traditional punishments, including amputation for theft and stoning for adultery. Though this "finesse" rarely fools Muslims into thinking a government is legitimate, particularly if it does not protect all essential human rights, such attempts at legitimacy mislead outside observers into thinking Islamic law is devoid of human rights and is essentially inhumane, Sonn said.
Implementation of hudud punishments, however, requires a fully Islamic society in which individual lives and families are secure and free from want. If someone steals "out of need," Sonn said, then according to firmly established precedent, strict application of hudud punishment must be suspended. Furthermore, hudud punishments must meet very strict rules of evidence, such as four eyewitnesses in the case of adultery. "[That is] obviously very difficult to obtain," Sonn said.
As Muslim countries have gained and continue to gain independence, the entire dynamic within the Muslim community also has begun to shift, Sonn said. Instead of focusing on the past and agonizing over who is to blame for the difficulties they face, scholars are beginning to look forward. "What scholars are saying is, ‘Get over it. Yes, our problems do stem from colonial domination, but now it is up to us. Now we understand where the problems are, and now we have to get serious about fixing them,'" Sonn said.
Within the framework of essential human rights and Islamic law as a whole, contemporary thinkers extend essential rights to cover the right to a participatory government, an argument traced clearly to the Koran. Many scholars, including European scholar Tariq Ramadan, argue for freedom of conscience and freedom of expression. Basing his argument on his reading of the Koran's well-known verse, "There is no compulsion in the matters of religion," Ramadan says that people must have the right to choose their leaders, express their opinions and live-male and female, Muslim and non-Muslim-under equal protection of the law, Sonn explained.
Others, including Law Professor Khalid Abou El Fadl of the University of California, Los Angeles, extend rights further to include concepts comparable to those found in modern democracies, Sonn said. A society grounded in mercy and justice-two preeminent principles of Islam-should protect equal rights of free speech, association and suffrage, according to Abou El Fadl.
To whom human rights apply, according to the Islamic tradition, is still under debate. Some have claimed that rights should be afforded to all people by virtue of their being human, whereas others have asserted that rights apply only to believers-Jews, Muslims, Christians and members of other religions protected under Islamic law. But now, in the modern global village, the question of how Muslims should interact with non-Muslims has become more essential, and the tone has begun to change.
"The traditional focus on religious exclusivity is giving way to the overarching value of social justice for all human beings," Sonn said.