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Human Rights
The term “human rights,” or ḥuqūq al-insān in Arabic, has only recently come into common use, as have the analogous terms ḥuqūq-i insān in Persian, insan haklari in Turkish, and hak asasi anusia in Bahasa Indonesian.
Early Reception
Concepts analogous to human rights have certain precursors in the Islamic heritage of philosophy and theology, but human rights lack precise equivalents in medieval fiqh (jurisprudence). In fiqh the category ḥaqq al-ʿabd, the right of the individual Muslim, was used to distinguish cases in which legal action against a wrongdoer was left to the discretion of the injured party from cases belonging to the category of the right of God, ḥaqq Allah, in which prosecution was mandatory and to be undertaken by the state. One non-controversial fiqh principle corresponding to a modern human right was the right of the owners of property to seek legal relief against interference with their property.
Rather than constructing doctrines or proposing institutions designed to curb the powers of a ruler or to protect the individual from a ruler’s oppression, Islamic legal thought long concentrated on defining the theoretical duties of believers, including rulers, vis-à-vis God. According to the prevailing perspective, rulers had the obligation to rule according to Sharīʿa; their subjects were to obey them unless the order constituted a sin. The development of institutions that could place real curbs on political despotism or make them accountable to those they ruled was neglected; rebellion was commonly proposed as the remedy for tyranny.
To deal with the practical problems of protecting rights and freedoms, Muslim intellectuals and statesmen began to adopt the principles of European constitutionalism in the nineteenth century. In the latter half of the twentieth century, after the common acceptance of the principles of constitutionalism, the related question of the compatibility of international human rights principles with Islamic doctrine was raised. But it is important to note that this debate was highly politicized due to the legacy of colonialism and imperialism. During the latter half of the twentieth century, Western support for Israel and many authoritarian Arab/Muslim regimes brought charges of double standards and hypocrisy to the human rights debate.
Constitutionalism And Rights
In the nineteenth century, early clashes between inherited Islamic doctrines and emerging human rights norms revolved around the question of the equality of Muslims and non-Muslims before the law. The issue was complicated as European powers pressed for the elimination of discriminatory laws against non-Muslims. This was to foreshadow future debates about the status of women in Muslim societies.
A fundamental pact announced in Tunisia in 1857 under European pressure guaranteed equality for all before the law and in taxation, as well as complete security for all inhabitants irrespective of religion, nationality, or race. Tunisia was the first Muslim country to promulgate a constitution, doing so in 1861 and affirming the rights established in the pact; however, the constitution was suspended by the French Protectorate (1881–1956). In Tunisia, as in many other Muslim countries, the independence struggle against European domination accentuated people’s consciousness of the importance of rights and democratic freedoms. After independence, the 1956 Tunisian Constitution stated that the republican form of government was the best guarantee of “human rights.”
The most important early reforms in the direction of modern human rights were undertaken in the Ottoman Empire, which had many non-Muslim subjects and which, owing to its military and economic vulnerability, was also exposed to pressures from European powers. The hatt-i şerif of 1839, reinforced by the hatt-i hümayun of 1856, was part of a series of modernizing reforms in the Tanzimat period that aimed to establish the security of life, honor, and property, fair and public trials, and equality before the law for all Ottoman subjects irrespective of religion. The principle of nondiscrimination based on language and race was added by the hatt-i hümayun. In 1840 the new penal code affirmed the equality of all Ottoman subjects before the law.
By mid-century reformist pressures prompted the adoption of the 1876 Ottoman Constitution, which contained a section on hukuk-i umumiye, or public liberties, of Ottoman subjects, providing for equality regardless of religion, free exercise of religions other than Islam and freedom of worship, inviolability of personal freedom, and guarantees against arbitrary intrusions, extortion, arrest, or other unlawful violations of person, residence, or property. There were also provisions for freedom of the press, association, and education. This constitution was suspended in practice and not revived until after the Young Turk Revolution in 1908. The Young Turks’ reforms expanded constitutional rights or protections, prohibited arrests and searches except by established legal procedures, abolished special or extraordinary courts, and guaranteed press freedom. Turkey’s second republic saw in 1961 the promulgation of a constitution that undertook in its preamble to ensure and guarantee “human rights and liberties” and made men and women equal (Article 12). In the area of free exercise of religion, conditions were imposed to safeguard the policy of secularism adopted by Mustafa Kemal Atatürk (1881–1938), the first president of the Turkish Republic. Article 2 of the 1982 Turkish Constitution proclaimed Turkey to be a state governed by the rule of law that respects human rights.
Elsewhere in the Islamic world, popular agitation against the despotism of the Qājār dynasty culminated in Iran’s first constitution in 1906. Iran’s Shī’ī clerics were divided about the religious legitimacy of constitutionalism and its attendant rights provisions. One group of pro-constitutionalist clerics, whose most articulate champion was Ayatollah Muḥammad Ḥusayn Nāʾīnī (1860–1936), argued that a democratic constitution was compatible with the core values of Islam and should be supported because it placed limits on monarchial tyranny. Another group led by Ayatollah Faẓlullāh Nūrī (1842–1909) opposed the constitution, citing opposition to the equality in law between Muslims and non-Muslims, freedom of the press and speech, and the supremacy of human-made law over divine law.
After the 1979 Islamic Revolution in Iran, official spokesmen invoked Islam as the reason for the clerical regime’s hostility to international human rights, which they often dismissed as products of an alien, Western cultural tradition. Iran, however, did not repudiate its ratification of the International Covenant on Civil and Political Rights. The 1979 Iranian Constitution in Article 20 states that all citizens shall be protected by the law and enjoy “human, political, economic, social, and cultural rights” but then qualifies them by stating they must be “in conformity with Islamic criteria.” Other articles in the constitution (Articles 21–42) that refer to basic rights and freedoms: are similarly qualified by reference to religion and, in case there is any doubt, Article 4 states that Islamic principles shall prevail over the entire constitution and that Islamic jurists of the non-elected Guardian Council are the interpreters of what constitutes Islamic criteria.
By the end of the twentieth century, all Muslim countries had adopted constitutions containing some or all of the rights or principles set forth in international human rights law. The 1989 Algerian Constitution was noteworthy for its guarantee of equality before the law regardless of gender (Article 28), fundamental liberties and human rights (Article 31), and human rights advocacy (Article 32). Like most Muslim countries, however, Algeria retained Islamic personal-status rules and constitutional provisions that accorded Islam a privileged status, perpetuating the ambiguous relationship between religious and constitutional norms.
Fiqh survived longest as the official law of the land in Saudi Arabia. However, changes inaugurated in 1992 suggested that the country might be moving gradually toward a governmental system that would accord at least limited recognition to rights and constitutionalism —albeit subject to Islamic criteria. The principle that Islam entails limits on human rights was adopted in the 1992 Saudi Basic Law of Government; Article 26 provided that “the state protects human rights in accordance with the Islamic Sharīʿa.” What the Sharīʿa limits on rights would entail was not defined. The basic law provided for many citizen entitlements in the area of social welfare, but only a few rights in the political or civil area were recognized. These included the provision that no one should be arrested, imprisoned, or have his or her actions restricted except as provided by law (Article 36); that homes should not be entered or searched save in cases specified by statutes (Article 37); that communications should not be confiscated, delayed, read, or listened to except in cases defined by statutes (Article 40); and that private property must be protected and could only be taken for the public interest and with fair compensation (Article 17).
Muslim States And International Human Rights Law
It was in the aftermath of World War II that the modern international formulations of human rights were established, setting standards that became incorporated in international law. Muslim states were among the founding members of the United Nations, whose 1945 Charter called for respect for human rights and fundamental freedoms; all Muslim countries eventually joined the UN.
Recent scholarship has shown that Muslim countries and their representatives actively participated in the formulation and negotiation of the Universal Declaration of Human Rights and two legally binding covenants (International Covenant on Civil and Political Rights/ICCPR and International Covenant on Economic, Social and Cultural Rights/ICESCR). Some were supportive and others were not. There was no voice of Muslim unanimity, but instead a diversity of opinions reflecting national and individual interests.
Aspects of the Universal Declaration of Human Rights passed by the General Assembly in 1948 provoked criticism from representatives of Muslim countries, although in the end only Saudi Arabia failed to support its passage. Muslim nations differed greatly in their willingness to ratify the human rights conventions subsequently drafted under UN auspices. Muslims sometimes charged that international rights norms had a Western or Judeo-Christian bias that precluded their acceptance in Muslim milieus. In terms of the compatibility of international rights norms and Islamic law, the alleged conflicts centered on civil and political rights; problems related to the compatibility of Islam with economic, social, and cultural rights were rarely raised. The principles of freedom of religion — notably the right to convert from Islam to another faith — and the full equality of persons, regardless of sex or religion, seemed to pose particular problems.
The Charter of the Organization of the Islamic Cooperation (OIC), an international organization founded in 1969 to which all Muslim countries belong, indicated in its preamble that members were “reaffirming their commitment to the UN Charter and fundamental human rights.” The OIC Charter came into force in 1973. In 1990, however, the OIC issued the Cairo Declaration on Human Rights in Islam, which diverged significantly from international human rights standards; it was not made clear how this declaration was to be reconciled with the conflicting obligations undertaken by OIC members in ratifying international human rights covenants or in their individual constitutional rights provisions, which, in many cases, corresponded to the international norms.
Like the many other self-proclaimed “Islamic” human rights schemes that proliferated from the 1960s onward, the OIC Declaration extensively borrowed terms and concepts from the International Bill of Human Rights, presenting a hybrid mixture of elements taken from Islamic and international law. The OIC Declaration asserted that “fundamental rights and universal freedoms in Islam are an integral part of the Islamic religion,” but then proceeded to insert “Islamic” qualifications and conditions on the rights and freedoms guaranteed under international law — in conflict with international human rights theory, which does not permit religious criteria to override rights. Representative provisions included the rule in Article 24 that all the rights and freedoms stipulated in the Declaration were subject to the Sharīʿa, without defining what limits this would entail.
There was no provision for equal rights for all persons regardless of sex or religion. Instead, Article 1 stated that “all human beings are equal in terms of basic human dignity and basic obligations and responsibilities [not “rights”], without any discrimination on the grounds of race, color, language, sex, religious belief, political affiliation, social status or other considerations.” Article 6 further provided that “woman is equal to man in human dignity” [not “rights”], but it imposed on the husband the responsibility for the support and welfare of the family. In contrast, Article 13 provided that men and women were entitled to fair wages “without discrimination.” Article 5 provided that, on the right to marry, there should be “no restrictions stemming from race, color or nationality,” but did not prohibit restrictions based on religion.
The provisions regarding religion did not aim for neutrality: Article 10 stated that Islam was the religion of unspoiled nature and prohibited “any form of compulsion on man or to exploit his poverty or ignorance in order to convert him to another religion or to atheism.” Article 9 called for the state to ensure the means to acquire education “so as to enable man to be acquainted with the religion of Islam.” The favored treatment of Islam carried over to freedom of speech, with Article 22(a) stating that expressing opinion freely was allowed “in such manner as would not be contrary to the principles of the Sharīʿa.” Article 22(c) barred the exploitation or misuse of information “in such a way as may violate sanctities and the dignity of Prophets, undermine moral and ethical values or disintegrate, corrupt or harm society or weaken its faith.” Article 18 stipulated a right to privacy in the conduct of private affairs, in the home, in the family, and regarding property and relationships. Article 15 set forth “rights of ownership” to “property acquired in a legitimate way, barring expropriation except for the public interest and upon payment of immediate and fair compensation.”
Noteworthy by their absence were provisions calling for the observance of democratic principles in political systems and guarantees of freedom of religion, freedom of association, freedom of the press, and equality and equal protection of the law. Although torture was prohibited in Article 20, there were no provisions explicitly endorsing international rights norms in the area of criminal procedure — only the vague assurance in Article 19 that the defendant would be entitled to “a fair trial in which he shall be given all the guarantees of defense.” Since Article 25 stated that the Sharīʿa “is the only source of reference or the explanation or clarification of any of the articles of this Declaration,” the possibility was left open that a trial would be deemed “fair” as long as it was conducted in conformity with Sharīʿa norms, which were historically underdeveloped in the area of criminal procedure. There was no principle of legality per se; the provision in Article 19 that there should be no crime or punishment except as provided for in the Sharīʿa seemed to open the door to the application of taʿzīr (discretionary) penalties, as well as rules regarding ḥadd crimes. Article 2 prohibited taking life except for a reason prescribed by the Sharīʿa. Reflecting the third-world setting in which Muslim nations elaborate their positions on rights, Article 11 prohibited colonialism and stated that “peoples suffering from colonialism have the full right to freedom and self-determination.” In sum, the OIC Declaration suggested that the official approach of Muslim countries to civil and political rights was distinguishable from that of non-Muslim countries by reason of their reliance on Sharīʿa rules.
In the early twenty-first century, due in part to the legacy of colonialism and the failures of the postcolonial state, “secular” discourses in the Muslim world are widely discredited and viewed as inauthentic. Thus, contemporary Muslim human rights scholars have attempted to anchor human rights discourses within an Islamic paradigm; that is, the universal is particularized within the dominant idiom of Muslim societies.
The most visible proponent of such an approach is the human rights activist Shirin Ebadi, who won the 2003 Nobel Peace Prize on behalf of her struggle for the rights of children and women in her native Iran. Other intellectual voices include Khaled Abou El Fadl and Abdullahi An-Na’im. El Fadl has offered critiques of modern-day fundamentalists and articulated a reading that emphasizes a rights-based discourse that is premised on Islamic values and the legal debates of Islamic jurists from the medieval era. An-Na’im has argued that Islamic law and understandings of Sharīʿa must be contested and not treated as incapable of reinterpretation — that is, Sharīʿa is not divine writ itself, but rather is based on inherently fallible human interpretation and subject to change. He also believes that the state should not enforce Sharīʿa on society.
In a post–September 11, 2001, world, the ubiquitous authoritarian state is the most significant human rights abuser in the Muslim world where torture, illegal detention, and the absence of judicial process are common. As well, human rights abuses at Abu Ghraib prison in Iraq and the Guantānamo Bay detention camp have tarnished the reputation of the West as the standard bearer of universal human rights.
Governments, organizations, and individuals throughout the Muslim world continue to take a variety of opposing positions on human rights. There is a divide between those using “Islamic” discourses to legitimate human rights and those who interpret sacred text to obtain the opposite meaning. It remains unclear as to which forces are ascendant, though polling data firmly and consistently reveal that Muslims do admire and support human rights and democracy. With respect to gender equality, constitutional debates in the Arab World after the Arab Spring have revolved around the Islamist suggestion that women are “complementary” to men. Secular and liberal groups have protested this language, arguing that this erodes full equality for women and have demanded language that is more strict and avoids any ambiguity.
Human Rights
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Last Updated: 11/2021
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