Book Critique| Human Rights and Islam: An Introduction to Key Debates between Islamic Law and International Human Rights Law by Abdullah Saeed

From the outset, Saeed is clear to establish for his readers that in order to implement human rights in the Muslim segment of the world, a connection must be made between them and Islamic values[1], which are based on the recognized sources in Islamic law. Elaborating on what those sources are, Saeed recognizes that it is of great importance to contextualize the same so as to stay true to the core values that they propagate.[2] It is commendable that, while making reference to hadith literature as a source of law, Saeed does not shy away from discussing a very questionable point in Islamic history; that is, the fabricated traditions attributed to the Prophet. Such a fact is used by many, such as Ignac Goldziher and Joseph Schacht, to discredit hadith literature as a source of Islamic law, and therefore, to discredit all such principles and values Muslim-majority states extract from the same and so strongly attest to.[3] In outlining the process whereby ‘reliable’ hadith were sifted out of those that were not[4], Saeed does well to establish for his reader the authority such hadith literature holds as being a legitimate source of law for Muslims. Another point that must be commended, and one of crucial importance, is the differentiation established between shari’ah and fiqh. It is an interchanging use of both terms that one finds the reader misinformed about the Divine and static nature of the former, and the human and variable nature of the latter; and it is this misinformation that has led to much of the condemnation attributed to Islamic law as being archaic and at odds with modern times.

Saeed then goes on to illustrate the different stages whereby Islamic law and the shari’a developed, illustrating to the reader the impact of time, place and form of rule on the development of Islamic law[5] leading up to the emergence of the different legal schools. What would have illustrated his point even further, while opening the reader up to the vastness, intricacy and variability of Islamic law, was if Saeed had made use of examples from within the different schools of law to showcase the impact factors such as time and place had upon diverging opinions from each school. For instance, the Hanafi school, originating from the more cosmopolitan Iraqi locality, was relatively more inclined to give women higher status as compared to the Maliki school, which originated from the more patriarchal Arabian culture of Medina. This led to the difference of opinion between the two concerning a woman’s right to contract her own marriage; the Hanafi’s allowing the same, while the Maliki’s requiring a guardian to do so on her behalf.[6]

Saeed goes on to briefly mention, although it is the view of the writer of this paper that more detail would have sufficed, the different approaches and legal concepts that can be adopted in the modern context when it comes to Islamic law and international human rights law. His approach, however, seems apologetic when he suggests that relevant Quranic texts be contextualized where ‘they appear to conflict with international human rights standards’[7]. This seems to give the impression that international human rights is the mold that Islamic law must adapt itself to fit in, in order to seem more favorable to its critics. Furthermore, he does not acknowledge other concepts within Islamic law that can legitimately be used to curb the very practical problems Muslims themselves wish to correct, for instance through maslahā or istislāh[8], in order to achieve the purpose of Islamic law; the promotion of human welfare and prevention of harm[9].

Perhaps the most interesting debate that continues to be had among scholars is that concerning the universality of human rights. Although Saeed presents arguments from both camps, that is, the universalists and the cultural relativists, it is, however, apparent that he seems to support the former as opposed to the latter.  Much of what Saeed argues is true; that is, Muslim countries were involved in the drafting of the UDHR[10]; an overwhelming majority of Muslim countries have signed and ratified human rights treaties[11]; and Islamic human rights instruments do mirror their international counterparts thereby illustrating a recognition of some core values[12]. However, what Saeed seems to confuse in his arguments are two different ideas; that is, the ideas of ‘universality’ and ‘universalism’. Mashood Baderin explains the two as such: “the universality of human rights refers to the universal quality or global acceptance of the human rights idea, while universalism in human rights relates to the interpretation and application of the human rights idea, thereby establishing its universality.”[13] What is most interesting, therefore, is that a strict promotion of a Western understanding of International human rights is in fact culturally relative in it and of itself, thereby demonstrating a paradox.[14] Saeed quotes Abdullahi An-Na’im in support of his argument, however, An-Naim can also be quoted to have said that human rights ought to be universal in concept, scope and content, but that is not possible unless there is substantial agreement on the same.[15] Saeed, likewise, can be seen to contradict himself when he makes reference to research indicating that Muslim states and the West do in fact hold different ideas of gender and women’s rights, which are two key components of International human rights. Universalism of human rights, and its resultant universality, therefore, has not yet been achieved, although one may argue the world is closer to it than it was when the UDHR was drafted.

Saeed moves on to elucidate the reader on another argument that asserts that the differences between International human rights law and Islamic law are irreconcilable given that human rights were entirely western and not universal, and given also that International human rights law emphasizes ‘rights’ whereas Islamic law emphasizes ‘duties’. In making reference to the ‘right versus duty’ debate, Saeed is clear from the outset that he believes the difference between the two has been overemphasized[16]. It is, however, disappointing that he presents only one side of the debate and not the other, for it leaves the reader ill-informed, while also taking away from the otherwise all-encompassing and comprehensive approach seen throughout his book. Saeed, in presenting his readers exclusively with his own stance, disallows them from formulating their own opinion. He takes away from them the opposing perspective which holds that human rightsare considered positive legal rights that can be claimed under positive law[17], and are different from duties, particularly ‘Islamic’ duties, in that there are no moral norms attached to them; that is, rights are inherent entitlements that are claimable. Such is the argument put forth by those such as Jack Donnelly[18] who claims that the Western notion of human rights law promotes rights whereas Islamic law promotes duties, thereby making the two systems of law entirely different, and the concept of International human rights entirely Western. However, in illustrating the concept of haqq[19], or rights,within Islamic jurisprudence Saeed does well to establish the harmony between international concepts of human rights and those of the Islamic perspective.

Saeed proceeds by presenting his readers with two foundational and interrelated questions. Highlighting the different models of government, Saeed asks whether a corollary exists between such and the promotion and protection of human rights. In doing so, Saeed suggests it is ‘state religious exclusivity’, that is, ‘state support for some religions or one religion over others’ that has a significant impact on human rights, regardless of regime type.[20] He does, however, believe a democratic model would best promote human rights, and that, given Islam does not necessarily promote a specific form of governance, Muslim states should adopt the same. Saeed then goes on to put forth his second question: Should the state stay outside the domain of religion?[21] He answers the question in the negative, stating that, in the context of Islam in particular, human rights must be promoted through religion for it to find the most abundant acceptance.

Although Saeed is consistent in his view that in order for human rights to find any meaningful impact in Muslim states, it must be promoted with the help of Islam itself, it is, however, unfortunate that Saeed does not present a conceptualization of how that may in fact be achieved. He may have, for example, presented two complimentary approaches to achieve effective realization of human rights within Muslim states; that is, by way of the i) the socio-cultural approach; and ii) political-legal approach[22]. The socio-cultural approach, being a bottom-up approach, relates to education, information, orientation and empowerment of the populace[23] so that the community accepts human rights as adhering to their values, and not being in opposition to the same and Islam. The political-legal approach on the other hand is a top-to-bottom approach that can achieve its end goal only when it is coupled with the socio-cultural approach; for the society would oppose any legislation that seems ‘foreign’ to them. Thus, an elaboration of the means whereby such effective realization may be possible would have served the author well.

By this point, Saeed turns to specific areas of rights within Islamic law and International human rights law, in attempt to decipher whether or not a harmonization between the two is possible. Starting with women’s rights under both systems of law, Saeed first briefly traces the history of women’s rights development within the Prophetic period, in which he states they were granted rights that Western societies accepted only centuries later; as well as the regression of those rights in the post-Prophetic period, which saw a male-centric interpretation and application of Islamic law. It is a point requiring brief criticism that Saeed, in making such claims, presents little to no evidence for the same, while also failing to delineate whether the Islamic law he refers to is that which received consensus and, therefore, acceptance by all schools of Islamic law or whether it was only one opinion out of many. For instance, when Saeed states that over time women, who previously could marry without a guardian, could now be given away without their consent if their guardian so wished[24], fails to mention that this view does not belong to all schools of Islamic law who produce different views on the same issue. The difference between the four schools of law on this particular topic for example, as made reference to previously in this paper[25], illustrates the divergence seen within Islamic law itself in the post-Prophetic period whereby, within some geographical localities, women were granted greater rights and freedoms as opposed to others. Saeed, in such a way, appears to have taken a reductionist approach to forward his view over the matter. Although the process of formulating law itself was a dynamic one whereby Islamic principles interacted with endogenous norms and practices[26], however, it could have been more holistically illustrated. Resultantly, it would have also furthered another view of his regarding the malleability of Islamic law.

Saeed moves on to briefly mention International human rights instruments and standards with reference to women’s rights, focusing on specific articles that are particularly important when analyzing Islamic standard of the same. In doing such, he asserts, before attempting to harmonize the two, that in order for such International standards to hold any meaning for Muslim women, Islamic legitimacy must be attached to them.[27] Saeed then illustrates, by citing particular state reservations to International treaties on women, that Muslim states reserved the right to apply provisions of the same if they did not conflict with Islamic law. It is, however, very important to note that some of the specific reservations to CEDAW by some Muslim states, such as to Article 7 relating to the elimination of discrimination against women in political and public life, and so forth, were on grounds of national law and not on Islamic law per se.[28] Reservations made particularly with regard to Islamic law pertain to articles referring to marriage and family matters; that is, Articles 2 and 16.

He then goes on to illustrate the views of numerous contemporary Muslim scholars who are challenging traditional views over women in Islam, by revisiting what they find to be discriminatory interpretations of key Quranic verses. Saeed does, however, recognize that although Islamic law recognizes that men and women are ontologically equal, it ‘does not advocate absolute equality of roles between them’[29] and that is perhaps ‘the greatest tension between Islamic law and international human rights law’[30]. In light of such, Saeed tries to achieve greater compatibility between the two systems of laws by presenting contemporary views over issues such as polygamy, consent within marriage, divorce, veiling and so forth by analyzing Quranic verses in light of the context within which they were revealed and what they looked to achieve. There were, however, more areas of Islamic law that Saeed could have touched upon in his attempt to find such harmony. For instance, the clear discrimination evidenced in holding the testimony of one man to the equivalence of two women is an issue contemporary scholars have given much thought to. Although Saeed mentions this briefly in the beginning of the same chapter[31], the writer of this paper believes that this particular issue deserved greater emphasis and would have done better in the section that was specifically afforded to reconciliatory methods. Continuing from the brief argument Saeed already made, it could have been stressed that the Quranic provision pertaining to evidence in divorce cases is that two persons are to be taken; for evidence in bequest matters, the Quranic provision is also to take two just persons. In evidence for fornication/adultery, the Quran provides that four witnessesare to be produced.[32] It is clear, therefore, that in all such examples, there is no differentiation on gender. One, therefore, concludes that ‘transposing of the provision concerning commercial transactions upon all other types of testamentary evidence arose from the traditional position of women in society, not from direct Quranic text’[33].

Furthermore, when discussing the issue of marriage and divorce, Saeed could have elaborated further on a point of criticism extended toward Islamic law concerning the same. The general perception that exists over the matter within classical Islamic law is that men are superior to women; an idea inferred from the Quranic verse 2:228, which states that men have a ‘degree’ over women. Saeed could have elucidated his readers to the point for it is one often used by Western writers to illustrate Islamic laws’ clear ‘discriminatory’ ideals. In doing such, Saeed would have had an opportunity to demonstrate how there is no consensus over the meaning of the term ‘degree’ in classical or contemporary scholarship; that perhaps Islamic scholars choosing to define ‘degree’ so as to mean ‘degree of superiority’ as opposed to ‘degree of responsibility’, proves only that such preferences are a ‘reflection of certain psychological dispositions’.[34] Likewise, on the matter of polygamy, Saeed could have also argued for the use of maslahā (public welfare) as a means to control the practice given its abuse in contemporary times.[35]

Saeed takes a similar approach as he moves forward to discuss the rights of the child, touching upon all points of conflict arising between Islamic law and international human rights law pertaining to it. What is, however, a point requiring brief criticism, is the fact that Saeed touches upon each issue only briefly, not going into the intricacies of the same, which may resultantly portray his arguments as illustrative of the reductionist approach.

Perhaps the most important area of discussion is that of freedom of expression and religion, for it relates and extends to the rights of women and children, and is evidently an area in international human rights law that has received the most reservations by Muslim states in the name of Islamic law. Before moving into a critique of Saeed’s illustration, the writer of this paper believes that it may have been wiser for Saeed to have discussed freedom of religion, which is inadvertently accompanied by thought and conscience, before moving to freedom of expression, for the latter comes into existence only after the former, and thus may have produced a more cohesive argument. Nonetheless, Saeed builds on from the Human Rights Council’s (HRC) stance on the freedom of expression not extending to freedom to defame religion[36], showcasing how Islamic law, particularly contemporary scholarly work, can be in harmony with its international counterpart. Expounding upon, perhaps, one of the most controversial issues in Islamic law, that is, of blasphemy, Saeed argues that there is room to retain the notion of blasphemy, however, without its traditional punishment of death.[37] Given that the Quran commands Muslims not to revile other religions, Saeed could have also argued that Islamic law, although limiting freedom of expression so as to protect the sensibilities of Muslims, extends the same limitation to other faiths as well. It may perhaps resultantly be argued that Muslim states, in acknowledging the same, may be more open to altering the punishment that does not invoke the death penalty, for if they were to keep it, the punishment would (read: should) inadvertently also be applied to Muslims. Furthermore, in light of the recent Pakistani judgment of the Asia Bibi case, one may find solace in the fact that it is one example of state practice that showcases hesitancy in the application of the death penalty, thus producing optimism in the penalties eventual removal.

On the subject of freedom of religion, Saeed illustrates the main contentions between Islamic law and its international counterpart; that is, while the latter includes the freedom to change ones religion and to proselytize it as being a part of freedom of religion, the former has, traditionally, restricted the same in the shape of, for instance, blasphemy and apostasy laws. Saeed, in arguing against the law of apostasy, argues against the claim that there was ever consensus amongst the traditional jurists to apply the death penalty for the crime.[38]He also demonstrates the lack of reliability upon the hadith used to justify the law itself, and goes on to provide ample support in the Quran for the freedom of religion, resulting in his view that the Quran does not force Muslims to remain Muslims if they wish to convert[39] illustrating the standpoint of contemporary scholars like Rashid Rida who states that having faith (iman) implies willful submission of the self.[40] It may have strengthened Saeed’s argument had he showcased Muslim state practice, which exhibits an existence of not only a non-uniformity over apostasy laws between different Muslim states, but also non-uniformity within one state, for instance in Malaysia.[41]  Likewise, it would have benefited his readers had there been a further elaboration on the view that the purpose behind sanctioning apostasy in medieval times was “when citizenship was religion-based, and where those who left Islam were announcing a religious non-alignment that suggested hostilities or accompanied military escalation against Muslims”[42]. It was thus a form of apostasy that threatened individual and public safety, and not apostasy simplicter, that was sanctioned by the death penalty; the penalty also seemingly being appropriate for a time in which warfare and violence was a typical event. This only proves that the law of apostasy and its subsequent penalty has no place within Islam.

The last and final chapter touches upon armed conflict through the lens of Islamic law and international human rights and humanitarian law. It is to be commended that Saeed chose to elaborate on the topic given the socio-political atmosphere the world currently finds itself, with terrorist organizations such as the ‘Islamic State (ISIS)’ waging war in the name of Islam. In elaborating on both areas of law with ample detail, Saeed establishes for his reader the view that in the early periods of Islam, armed conflict (jihad) was assorted to as both a defensive and an offensive technique, because, as An-Naim points out, force was the basic method of conducting what we now know as international relations.[43] Although the limitations within Islamic warfare were significantly similar to the international standard we find today, Saeed puts forth the view that, given the contemporary ways of conducting international relations, and given also that peaceful coexistence has become vital, offensive jihad must cease to be justified.[44] Although the writer of this paper finds little fault in this conclusive chapter, what can, however, be stated to be absent is an elaboration on how such ceasing of offensive jihad is to be legitimately established. Relying on the accepted sources of Islamic law to achieve the grounding for the same is an obvious statement, but what must be emphasized is the doctrine of ijmā whereby a consensus between the different mujtahid would establish an unquestionable legitimacy, which would resultantly mirror the majority of contemporary Muslim state practice. 

Concluding remarks

It is to be commended that the authors’ choice to elaborate on some of the most debated on topics within Islamic law and its international counterpart, was a brave and much needed endeavor. However, doing so attracted its own drawbacks in that the discussion lacked the depth and detail that it deserved, and likewise, the all-embracing thoroughness the readers too deserved. It may be stated that Saeed, thus, chose to take a reductionist approach by not always presenting all sides of the argument. A general observation that was also made while reading the book was of Saeed’s use of gender-neutral terminology when, for instance, he referred to ‘ruler’ as ‘they’[45] or when referring to Muslims as ‘his or her’. It can, perhaps, be said that he is very mindful of the times he is writing in, and cautious of the very modern audience that might be engaged with his work. In conclusion, however, Saeed’s book is a fine introduction to the key debates within both areas of the law.

[1] Abdullah Saeed, Human Rights and Islam: An introduction to Key Debates between Islamic Law and International Human Rights law (first published in 2018 Edwar Elgar Publishing) 288, 1

[2] ibid

[3] John Burton, An Introduction to the Hadith (first published in 1994 EUP) 210, 9-25

[4] Saeed (n 1)

[5] ibid

[6] Noel Coulson, Conflicts and Tensions in Islamic Jurisprudence (first published in 1969 University of Chicago Press) 118, 25

[7] Saeed (n 1) 19

[8] Mashood A. Baderin, International human rights law and Islamic law (first published in 2003 OUP) 279, 37

[9] ibid 40

[10] Saeed (n 1) 39

[11] ibid 40

[12] ibid

[13] Baderin (n 8) 23

[14] ibid 28

[15] Abdullahi An-Na’im, Islam and Human Rights: Selected Essays of Abdullahi An-Na’im  (Mashood A. Baderin ed, routledge 2010)

[16] Saeed (n 1) 66

[17] Mashood A. Baderin, ‘Human Rights and Islamic Law: The Myth of Discord’ (2005) 2 EHRLR 165, 171

[18] Jack Donnelly, ‘Human Rights and Human Dignity: An Analytic Critique of Non-Western Conceptions of Human Rights’ 76 APSR 303

[19]Saeed (n 1) 69

[20] ibid 82

[21] ibid 98

[22] Mashood A. Baderin, ‘Islam and the Realization of Human Right in the Muslim World: A reflection on Two Essential Approaches and Two Divergent Perspectives’ (2007) 4 MWJHR 1, 2

[23] ibid 6

[24] Saeed (n 1) 115

[25] Coulson (n 6)

[26] Abdullahi An-Naim, ‘ The Rights of Women and International Law in the Muslim Context’ (1987) 9 WLR 491, 494

[27] Saeed (n 1) 122

[28] Baderin (n 8) 62

[29] Saeed (n 1) 132

[30] ibid

[31] ibid 115

[32] Baderin (n 8) 101

[33] ibid 102

[34] ibid 135

[35] ibid 141

[36] Saeed (n 1) 176

[37] ibid 185

[38] ibid 199

[39] ibid 206

[40] Mohammad Hashim Kamali, ‘Freedom of religion in Islamic law’ (1992) 21 CULR 63, 76

[41] Mohamed Azam Mohamed Adil, ‘Restrictions in Freedom of Religion in Malaysia: A Conceptual Analysis with Special Reference to the Law of Apostasy’ (2007) 4 MWJHR 1, 20

[42] Intisar A Rabb, ‘Negotiating Speech in Islamic Law and Politics: Flipped Traditions of Expression’ in Anver M. Emon, Mark Ellis, and Benjamin Glahn (eds), Islamic Law and International Human Rights Law (OUP)

[43] Saeed (n 1) 220

[44] ibid 227

[45] ibid 84