Islamic Law and Human Rights
Abstract and Keywords
This article explores the question of whether Islamic law and universal human rights are compatible. It begins with an overview of human rights discourse after the Second World War before discussing Islamic human rights declarations and the claims of Muslim apologists regarding human rights, along with challenges to Muslim apologetics in human rights discourse. It then considers the issues of gender and gender equality, feminism, and freedom of religion in relation to human rights. It also examines four basic scholarly orientations to the topic of Islam and human rights since the end of the Second World War: a model that privileges a secular (non-religious) paradigm for rights; a Muslim apologist model, which privileges a purely “Islamic” conception of rights over secular models; a Marxist/postcolonial critique of rights as a western imposition of power; and a Muslim reformist paradigm of rights that highlights points of continuity between western legal and Muslim legal traditions.
The question of whether Islam and universal human rights are compatible has been posed frequently by scholars in the late twentieth and early twenty-first centuries.1 Some scholars and political activists view these traditions as fundamentally incompatible, arguing that Islam represents a premodern legal framework, on the one hand, and universal human rights represents a modern legal framework, on the other. Other skeptics view “human rights” as a western colonial invention used to oppress Muslims by making them conform to certain western norms. Yet others esteem the Islamic tradition as the highest manifestation of human rights, and engage in apologetic explanations of the human rights components of the classical tradition.
In order to better comprehend the genesis and diversity of scholarship associated with this topic, this chapter examines post-Second World War human rights discourse and Muslim responses in a way that contextualizes the specific areas of conflict and agreement. Historically, many Muslims have adopted the human rights discourse of inviolability to advocate for religious freedom and gender equality, while others, particularly Muslim religious and political elites, have used the human rights discourse of dignity to argue for religious exclusivism and respect for patriarchal norms. These disagreements have illumined the legacy of the modern western rights tradition (p. 820) for universal human rights discourse, and highlighted unresolved questions about western power and political influence in a postcolonial context. These tensions are reflected in particular declarations and treatises that address human rights from an Islamic perspective, and in scholarship that deals with this topic.
Throughout the chapter, I identify four basic paradigms in scholarship on Islam and human rights: (1) a model that privileges a secular (non-religious) paradigm for rights; (2) a Muslim apologist model, which privileges a purely “Islamic” conception of rights over secular models; (3) a Marxist/postcolonial critique of rights as a western imposition of power; and (4) a Muslim reformist paradigm of rights that highlights points of continuity between western legal and Muslim legal traditions. These four descriptions are not exhaustive, and some thinkers and groups may fit more than one description. Overall, these categories are useful ways of thinking about persistent trends in the discourse of human rights and Islam.
I. Human Rights
The economic and political international turmoil that culminated in two world wars led to the founding in 1945 of the United Nations (UN) in San Francisco and the ensuing Charter of the United Nations. The adoption of the Universal Declaration of Human Rights (UDHR) in 1948 responded to the need to articulate a set of moral and legal criteria that could affirm the dignity and inviolability of the human person. The atrocities of fascism and Nazism, specifically the Holocaust, provided the immediate context for such a document. Johannes Morsink explained how various articles of the Declaration were drafted specifically in reaction to Nazi practices and legal policies. For example, Articles 6 through 12 of the UDHR treated legal human rights, which recognized that leading up to and during the war, German law had been thoroughly Nazified. Some of the representatives, notably the delegate from Lebanon, worried that “law” could be distorted to justify any practice of the state.2 The idea that law could be exploited as a legitimizing vehicle for power would continue to be a concern especially for postcolonial critics of western hegemony into the twenty-first century.
The need to protect individuals from racist discrimination, whether it was directly enforced or tacitly supported by the state, extended beyond the European context. Legalized racial segregation proliferated in both mid-twentieth-century (p. 821) Southern United States and South Africa, for example. Member parties of the United Nations shared a commitment to enumerating an individual’s rights both within and, if necessary, against the state. The drafting process of the Declaration (1946–48) coincided with the breakup of colonial empires, and representatives from former colonies raised questions about how best to apply human rights to members of then-present or former colonial territories.
The creation of the UDHR stands out as a watershed moment in western conceptions of rights, mainly because of its international character as a response to atrocities carried out on a massive scale. The Declaration represents a departure from a European model of political rights held by persons by virtue of their citizenship in a specific territory or country. Anthony Pagden argued that this understanding of the rights of man, popular during European colonial expansion, “became increasingly useless as a notion in international or intercultural relations.”3 Thus, Pagden argued, John Stuart Mill could only speak with confidence of “rights” within a “civilization.” The events of the Second World War, as well as the disintegration of European empires, led to the discrediting of this view of rights. A distinguishing feature of the UDHR was its emphasis on, and appeal to, individual agency independent from the individual’s political community.
The political organization of the modern state has remained central to the protection of international human rights. The norm of state sovereignty meant that the state was not obligated to protect the same human rights of foreigners, for example. Donnelly explained that this view of human rights has strong roots in liberal social contract theory, and that the modern sovereign state paradoxically poses both the greatest threat to human rights as well as the greatest potential for the effective implementation of rights.4 The question of how strongly to identify the UDHR as a product of the western rights tradition, and the implications of this identification for the inclusion of non-European and non-secular nations and other groups, is in many ways an unresolved one.
Prior to 1948, there were seven drafting stages to the document. The process of achieving an international consensus was important for the legitimacy of the UDHR. Scholars in the early twenty-first century have made an effort to better understand Islamic voices in the drafting of the Declaration. Delegates from Muslim majority states participated in, and actively supported the creation of the UDHR. As Irene Oh observed, however, this does not mean that the language of human rights in this document and in other related international treatises represented accurately the views of all Muslims.5 The presence and geopolitical power of some (p. 822) states over others undoubtedly had an influence on the drafting of the document. Representatives from Muslim majority states faced the difficult task of reconciling the idea that their former colonizers were now the “vanguards of an ideological revolution purporting to assert the equal dignity of all humans.”6
Susan Waltz documented the participation of Muslim states in the creation of not only the UDHR, but all three entities comprising the International Bill of Human Rights.7 (As a declaration, the UDHR does not have legally binding power, as opposed to a signed covenant.) In 1966, two covenants were adopted: the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR). In her survey of UN records during the period from 1946–66, Waltz identified five central issues of focus for delegates who identified themselves and their countries with the Islamic tradition: religious freedom and the right to change religion; gender equality in marriage; social justice and the indivisibility of rights; the right to self-determination; and measures of implementation. Saudi Arabia’s abstention from the UN General Assembly’s vote to approve the UDHR is well-known. The Saudi delegate to the UN, Jamil Baroody, was actively involved in the twenty-year process which culminated in the passing of the two covenants. His refusal to vote in favor of the UDHR had more to do with disagreement on issues involving gender equality in marriage and religious freedom (the subjects of Articles 16 and 18, respectively) than with any disagreement about the project of human rights per se.
Article 16 of the Declaration states that marriage must be entered into with the full consent of both parties; that men and women must be of “full age”; and that men and women are entitled to equal rights during marriage and at its dissolution. Baroody submitted an amendment that had two concerns, related to the full age requirement and to the requirement of equal rights during marriage and at its end. In the end, however, “both elements of the Saudi amendment failed by a large majority, that necessarily included several delegations from Muslim states.”8 Regarding Article 18, which states that all persons have the right to freedom of thought, conscience, and religion, Baroody also raised an objection. Specifically, he did not accept the language regarding the right of persons to change religion or belief and wanted to omit it from the article.
The question of universal human rights and their relationship to Islamic principles and legal and moral traditions did not disappear after the adoption of the UDHR and the two covenants. Political leaders and visionaries from Muslim majority countries and from within minority contexts continued to think about the distinctive contributions of the Islamic tradition to human rights discourse. As (p. 823) geopolitical conflicts unfolded in a postcolonial and globalized world, such leaders and visionaries had ample opportunity to articulate them.
II. Islamic Human Rights Declarations and Muslim Apologetics
The drafting and reception of international human rights documents should be placed in their respective geopolitical contexts. Ann Elizabeth Mayer argued that many majority Muslim countries viewed western legal systems and the enterprise of universal human rights with more skepticism after the Arab–Israeli war of 1967.9 Prior to the war, many Muslim leaders were keenly aware of power imbalances between western countries and the Muslim majority. This event served as a major catalyst not only because it consolidated a critique of western military hegemony, but also insofar as it occasioned an internal critique of secular pan-Arab movements.
In the period following 1948, external human rights organizations such as Amnesty International were critical of the ways that some Muslim majority countries were not in compliance with certain provisions of the UDHR. As a declaration, the UDHR was not intended to have legally binding force, and many of its goals were understood as aspirational. This factor was significant for the appropriation and adaptation of human rights discourse in Muslim contexts for two reasons. First, non-compliance with certain provisions of the Declaration could not be legally punished. Second, the format of the Declaration provided room for Muslim states to engage in their own formulations of human rights—both as a form of resistance to western hegemony and as a constructive assertion of Islamic values. Thus it is useful to examine specific Islamic political bodies and human rights documents and their relation to the broader international human rights sphere, as well as some critical assessments of them.
The 1972 Charter of the Organization of the Islamic Conference (OIC) affirmed the legitimacy of international law and human rights. The OIC is comprised of fifty-seven member states, and in 1990 the organization signed the Cairo Declaration of Human Rights (CDHR). The Cairo Declaration bears some resemblance, in form and content, to the UDHR. The central difference is that it draws upon specific Islamic teachings and sources—for example, Qur’an, hadith—in its formulation of human rights. In contrast to the UDHR, the opening paragraph of the document (p. 824) stipulates a different foundation for human rights: the narrative of the Islamic Umma as having a “civilizing and historical role” as a model for all of humanity. The document goes on to state that Islam is the basis for fundamental human rights and freedoms, because it is based upon teachings of justice and freedom found in the Qur’an and in the shari‘a.
The Cairo Declaration reiterated some of the dissenting arguments given by some delegates of Muslim majority countries in the drafting of the UDHR. Specifically, the document expressed notable disagreements with the UDHR in articles dealing with gender, the family, religious freedom, and importantly, self-determination. Regarding gender and the family, Article 5 of the Cairo Declaration maintains that men and women have a right to marriage “with no restrictions stemming from race, color, or nationality.” Absent from these categories is religion, which is included in UDHR Article 16. In Article 6 of the Cairo Declaration, it is stated that although women and men are equal in human dignity, each gender has distinct rights and duties to perform (consonant with the classical Islamic legal tradition).
The authors of the Cairo Declaration grounded their conception of human rights in the shari‘a: shari‘a is mentioned throughout the entire document as the most authoritative source of law, and Article 24 maintains that all enumerated rights and freedoms are subject to the shari‘a. Article 25 states, “The Islamic Shari‘a is the only source of reference for the explanation of clarification of any of the articles of this Declaration.” This statement is interesting for several reasons. First, it presupposes agreement on what shari‘a entails, as if it referred to a self-contained and coherent body of law that could be consulted and applied by anyone anywhere, without the help of a jurist or other legal specialist. Second, there is an assumption of legal relativism: every culture is allowed their own declaration of rights according to their traditions and sacred sources. Third, the framing of the document in this way serves as a cogent reminder that human rights frameworks, whether Islamic or secular, are hardly devoid of philosophical or theological arguments about the human person, her purpose, and her relationship with her community. This last point is not to suggest, however, that international consensus on rights is useless or meaningless. Rather it means that particular human rights documents come into being in different geopolitical conditions, drawing upon distinct theological and/or philosophical sources. The Cairo Declaration also addressed slavery in relation to colonialism, which the UDHR does not do. Both documents forbid slavery; but the Cairo Declaration, Article 11, elaborates: “Colonialism of all types being one of the worst forms of enslavement is totally prohibited.” This matter comes under the umbrella of the right to self-determination, which was a part of the International Bill of Rights.10 It is interesting, however, that under the influence of Islamist arguments, (p. 825) self-determination also became about the identification of Islam with a certain kind of political project involving the revival of a conservative and even reactionary form of Islamic governance.
The London-based Islamic Council issued the Universal Islamic Declaration of Human Rights in 1981. Islamist groups largely represented those at the Council, and many of the representatives were engaged in political opposition to repressive Muslim regimes. The document stressed the political rights of Islamic dissidents vis-à-vis the state, and it posited the shari‘a as an alternative to the UDHR. Muhammad Khalid Masud argued that the Cairo Declaration was drafted in part as a response to the UDHR, although both documents differed substantially with the UDHR on matters of religious freedom, penal laws, marriage, and holding public office.11
The formulation of Islamic human rights documents, modeled on the design of the UDHR in the latter half of the twentieth century indicates a desire of Islamist leaders to participate in international human rights discourse, but to do so in a distinctive way that could give voice to what Falk (1997) called “serious grievances” within the global Islamic community. The areas of grievance pertain to European colonization of traditionally Muslim lands, and the ensuing imposition of European legal structures; the impact of European law on Muslim family law; and the European Christian missionaries who converted, or attempted to convert, Muslims. In the postcolonial period, the disenfranchisement of Muslims related to participation in the development of international human rights—a disenfranchisement resulting from western political and economic hegemony, combined with negative media portrayals of Islam in western countries. Falk argued that statist identity has failed many Muslims, and that an acceptable alternative would be a human rights discourse that recognized “civilizational identity,” although it is not clear how this model would operate.
Both the Cairo Declaration and the UIDHR employed apologetic language, insofar as “Islam” was portrayed as the pinnacle of human civilization and as the originator of universal human rights discourse. Among exponents of the idea that Islam invented human rights is the twentieth-century Islamist thinker Abul A’la Mawdudi. Mawdudi was the founder of Jama’at-i-Islami and an influential voice in the articulation of twentieth-century political Islam. He conceived of the Islamic state’s legitimacy as resting on the sovereignty of God instead of the will of the people, and this conception has been adapted by Islamist political ideologues ranging from Sayyid Qutb to Ayatollah Khomeini.
In his discussion of “Basic Human Rights,” he asserted that Islam alone gave equal rights to all human beings, regardless of race or nation. The only basis for difference among human beings, Mawdudi argued, was piety or “God-consciousness.”12 (p. 826) Mawdudi saw fit to list contradictions that inhere in the western human rights tradition, such as the legality of the Atlantic slave trade that went on for several hundred years. He also discussed the difference between general international human rights, and the rights of citizens in an Islamic state, which he claimed were more extensive. In the chapter, “Human Rights in the Islamic State,” Mawdudi advanced claims for the superiority of Islamic conceptions of certain rights, such as freedom of expression, over conceptions in the western tradition. Mawdudi argued that the qualitative difference lies in the refusal of Islam to “propagate evil and wickedness,” which he ties to the Islamic duty of commanding right and forbidding wrong.13 The government must not prevent people from performing this duty, which is distinct from the right to freedom of expression found in UDHR Article 19, for example. Mawdudi maintained, however, that in an Islamic state people should abide by the Qur’anic injunction in 2:256: “There should be no coercion in the matter of faith.” Individual religious choices are to be respected, and Islam does not sanction abusive language toward people of other faiths. This claim for tolerance is important to consider, as Mawdudi made an interpretive choice with this verse over other Qur’anic verses that would limit the rights of non-Muslims in the area of religious freedom.14
III. Critics of Muslim Apologetics in Human Rights Discourse
Several scholars have found wanting the claims of Mawdudi and other Muslim apologists in the area of Islamic human rights. Mayer’s Islam and Human Rights: Tradition and Politics addressed the way in which Islamic human rights schemes have been used to defend a particular conception of “Islam” against the corrupt and hegemonic “West.” Islamist ideology that espouses this binary tends to contribute to the erasure of human rights rather than their maintenance. Mayer contended that the major difference between the two is that Islamic human rights schemes are formulated on the basis of revealed texts, the Qur’an and Prophetic hadith, while western human rights schemes are based on rationalism and individualism. Her normative claim was that Western Enlightenment philosophy is more coherent in terms of providing a foundation for human rights.
(p. 827) Mayer identified as a key issue the rights of the individual vis-à-vis the state. The ideal of an Islamic state, in which leaders govern by Islamic law and order public life to reflect that system, gained some popularity in the twentieth century among political Islamists and in a relative few cases, it led to the founding of religious states (the Islamic Republic of Iran serves as a prominent example). Much of the rhetoric around the conception of an Islamic state reflected a kind of utopian idealism, premised on a seamless harmony between the individual’s rights and the community’s rights, as characteristic of an Islamic system of governance. According to Mayer, most apologetic Muslim rights theorists who were invested in a conception of the Islamic state, such as Mawdudi, failed to grasp the potential of the state to violate individual human rights. Mayer attributed this failure to an inability to be critical of the deficiencies of religious belief.
On the one hand, Mayer’s critique has been validated by the failure of many Muslim majority countries to protect their citizens equally, due to an unrealistic view of an Islamic system as a panacea to all types of political corruption and oppression. On the other hand, Mayer’s account should be placed within the context of secular rights theories that dismiss “religion” as a source for ideas about human rights. Her targeting of religion as opposed to human rights may be misplaced, insofar as the issue is not the inherent deficiency of religious legal systems and ideas, but rather the dangers of political and religious authoritarianism.
Other criticisms of Islamist human rights schemes come from voices within the Islamic tradition. Some accounts focus on the way that apologists have used a separate scheme of Islamic human rights to disguise or perpetuate abuses. Regarding the implementation of the Cairo Declaration in Muslim majority countries, Abdullah al-Ahsan argues that some leaders using “Shari‘a law” have ignored the high human rights standards that he thinks the shari‘a imposes upon Muslim rulers, such as refraining from torturing political enemies.15
In order to address this problem, some Islamic legal scholars make a sharp distinction between shari‘a as an ideal versus shari‘a as a codified system of law. Abdullahi An-Naʾim’s work distinguishes between shari‘a as (1) the basis for religious identity and spirituality and (2) as a program for social and moral reform enforced by the state. In Islam and the Secular State (2008), he maintained that the codification of shari‘a by the modern state has often historically resulted in human rights violations. Muslims are bound by religious obligation to observe the shari‘a, and they are best able to do so when the state remains neutral regarding religious doctrine. “The diversity of Shari‘a principles means that whatever is enacted and enforced by the state is the political will of the ruling elite, not the normative system of Islam as such. Yet such policies and legislation are difficult to resist or (p. 828) even debate when presented as the will of God.”16 In order to support this argument, An-Naʾim cites an example from early Islamic history of the failure of al-Mihna (the Inquisition), in which political leaders attempted to force a particular religious doctrine about the createdness of the Qur’an on the ulema and ultimately failed. This example provides a warning against the totalitarian aspirations of some Islamists for the complete unity of state power and Islamic belief.
Significantly, An-Naʾim argued that there was no fundamental difference between western traditions of separation of church and state, on the one hand, and the separation of politics and shari‘a, on the other. This idea might strike many Islamists, who understand the secular West’s moral depravity to originate precisely from its marginalization of religion from politics and other aspects of public life, as “un-Islamic.” His argument does not advocate for the privatization of religion as such, but rather for Muslims to understand their religious convictions in ways that are not automatically adversarial toward, or intolerant of other’s beliefs and traditions. This argument carries important implications for the protection of religious minorities’ human rights, a point about which these Islamic human rights documents are largely silent.
Some Muslim scholars attribute the underlying reasons for discord between human rights and Islam to specific historical dynamics involving western dominance and the destruction of traditional Muslim authorities in the colonial and postcolonial period. Khaled Abou El Fadl has argued that this has resulted in the “systematic undermining and devaluing of the humanistic tradition in Islam.”17 In an attempt to chart a different path for Islamic human rights discourse, Abou El Fadl encouraged the reform of Islamic doctrines and the rethinking of certain theological traditions, particularly theological–political traditions that place a conception of God’s sovereignty as prior to human rights. He argued that the interpretive component in Islamic theological and legal traditions offered a way for Muslims to transition from adhering to premodern views that privilege God’s rights to a modern paradigm that privileges human rights.
A. Maslaha and Maqasid al-Shari‘a
Other Muslim legal scholars have charged scholars like Abou El Fadl and An-Naʾim as being too conciliatory toward western normative legal traditions in their constructions of human rights. Mashood Baderin, in International Human Rights and Islamic Law, argued for the necessity of the Islamic principle of maslaha for (p. 829) realizing human rights in the Islamic world. In this work he maintained that the sources and methods of Islamic law can be fruitfully employed in contemporary human rights discourse. As an interpretive strategy, maslaha refers to the idea of public interest in relation to the law (shari‘a): divine law should be understood as benefitting humanity. In relation to human rights, some Islamic scholars have invoked the principle of maslaha in the context of maqasid al-Shari‘a (goals and purposes of the law) in order to talk about human rights as a tradition that has strong compatibility with the Islamic tradition.
Baderin criticized scholars like Mayer and An-Naʾim of being too uncritical of international law as a western construct, and yet he also expressed skepticism of human rights violations in Muslim majority states that have been justified, however weakly, in the name of Islamic law. Baderin views the interpretive principle of maslaha as a way to avoid the pitfalls associated with each approach: “Through mutuality and accommodation, the legitimizing force of Islamic law in many Muslim States can be positively utilized for the enforcement of international human rights law in the Muslim world.”18
In making the case for a maslaha approach to human rights, Baderin did not attempt to resolve long-standing disagreements between western and Islamic countries on matters concerning either gender and the family or the treatment of religious minorities. Regarding gender and the family, Baderin restated certain modern Islamic arguments by asserting ontological equality between women and men, found in the Qur’an, but differed in emphasizing their complementary roles in the family and wider society. As for the treatment of minorities, Baderin cited the Qur’anic injunction not to discriminate based on race or ethnicity, but not necessarily on religion. In Baderin’s work, we can discern traces of Mawdudi’s arguments, as well as the technique of turning to the Qur’an directly for guidance. Importantly, Baderin does not seem to share Mawdudi’s conviction that the Islamic state is the best vehicle for the implementation of shari‘a principles. Rather, Baderin has endorsed a kind of legal pluralism wherein Muslims can draw from religious principles in shaping their legal and social arrangements.
Anver Emon offered important criticisms of the recourse to maqasid al-Shari‘a as a strategy employed by modern reformists. In Islamic Natural Law Theories, Emon showed that in the context of debates about the relationship between revelation and human reason, premodern jurists used the principle of maqasid al-Shari‘a to argue for restricting the use of human reason.19 Moreover, Emon has maintained that modern Muslim reformers should take into account the original context of maqasid al-Shari‘a, which includes metaphysical presumptions about Islamic natural law theory. He argued, “To cover up and perpetuate those presumptions may (p. 830) inadvertently limit the effective use of that model in a new historical moment when such presumptions are vulnerable to critique in light of prevailing theories of knowledge, philosophies of law, and theories of government.”20 It is thus important for Muslim reformers to consider the historical context in which maqasid al-Shari‘a developed and the historically specific (premodern) problems to which the theory responded. Emon’s critique implies that any modern appropriation of maqasid al-Shari‘a must account for substantial differences in modern epistemology and politics.
IV. Freedom of Religion
As mentioned previously, the Saudi delegate Baroody contested the right to freedom of religion during the drafting and adoption of the UDHR, as did later Islamic organizations that drafted human rights treaties. An enduring question for many scholars in the Muslim world was whether freedom of religion meant the right to change belief. In the context of Islamic human rights discourse where the shari‘a is assumed to be a complete basis for human rights, a conception of freedom of religion is construed as freedom to follow Islam. Article 9 of the Cairo Declaration stipulates that the state is required to allow for education (enumerated, albeit differently, in UDHR Article 26), specifically education in becoming acquainted with the religion of Islam. Article 10 of the Cairo Declaration states that: “It is prohibited to exercise any form of pressure on man or to exploit his poverty or ignorance in order to force him to change his religion to another religion or to atheism.” The combined language from Articles 9 and 10 addresses the concern about missionary conversions of Muslims, but also shows the influence of Islamist arguments, initiated by thinkers like Sayyid Qutb, that people should have the freedom to follow Islam.21
Just as there is no one Islamic perspective on human rights, there is no singular Islamic perspective on religious freedom. In an essay on Islam, freedom of religion, and the UDHR, John Kelsay noted the pervasive influence of Wahhabism on Baroody’s arguments as the Saudi delegate. Twentieth-century Wahhabi doctrinal beliefs assert the primacy of God’s revelation and the state’s role in propagating the (p. 831) truth of Islam.22 Kelsay demonstrated that the association of true religious belief with state power made it difficult, if not impossible, for Baroody to assent to Article 18 as it had been drafted. (Baroody’s objection may also have stemmed from a concern about the historical reality of colonial Christian missionaries in traditional Muslim lands.)23 For other Muslim delegates, there were concerns about apostasy from Islam. There was diversity among Muslims on this point, however: another Pakistani delegate, Khan, argued that Islamic sources could support Article 18 as drafted.
Some scholars have identified a Protestant bias in American practices of church–state separation, which they argue has framed in normative and hegemonic terms the way that we understand rights as involving freedom of religion. Critical theorist Talal Asad argued that human rights discourse is emblematic of the modern western state’s massive power. He maintains that because rights are, as a category, subject to conflicting interpretations, all discourse about them is “a matter of domination rather than negotiation.”24
Following Asad, Peter Danchin questioned the neutrality of the modern democratic state vis-à-vis religion and criticized the conception of individual moral rights upon which practices of establishment and disestablishment rest.25 The state promotes a normative view of freedom that, in Danchin’s argument, is too bound up with bifurcating the secular public sphere and private religious sphere. Danchin, like other critics of secular human rights discourse, disagreed with argument that the current human rights framework is “neutral” enough to accommodate diverse expressions of religion.
Thus, the matter of religious freedom both in the Muslim world and elsewhere continues to be the subject of debate. Asad’s and Danchin’s respective works reflect a postcolonial critique of western hegemony in international human rights concepts, both in terms of the genesis of the discourse and what they perceive to be the thinly disguised interests of the modern state. But historical evidence demonstrates that not all Muslims are suspicious of a concept of religious freedom, and in fact, many support it as a human right. To return to An-Naʾim’s argument, the right to freedom of religion is not a trivial matter, insofar as ideally it protects the individual from the (p. 832) imposition of the state’s religious or non-religious ideology and from the imposition of religious norms and practices of dominant groups within a society. A central focus of the UDHR and international covenants is the protection of the individual. Although the ideal of state neutrality vis-à-vis an individual’s religious beliefs and practices may never be perfectly realized—as the state has an interest in creating a certain kind of subject—the constitutional separation of state power from institutional religious authority has historical credibility.
V. Gender, Human Rights, and Islamic Feminisms
The equality of women and men has been an important and also a contentious component of scholarly debate on Islam and human rights. As previously noted, this topic has served as a central point of departure for Islamist human rights frameworks. Although the focus of this section is primarily Muslim arguments about gender equality, several non-Muslim majority countries have expressed strong reservations about international treaties involving gender equality as well. For example, the United States has not ratified the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW).26 This section will address briefly the scholarship concerning: (1) the postcolonial critique of the rights discourse on gender equality; (2) Muslim women’s engagement with feminist ideas and theories in arguments about human rights; and (3) formal international commitments to gender equality.
A. Critiques of Gender Equality Discourse
Authors writing from a postcolonial perspective have frequently been critical of western frameworks of universal rights that ignore the substantial differences in economic, political, and social power that characterize groups of people. Postcolonial critics have observed that colonial empires were content to violate human rights when it served their economic and political interests. Not all postcolonial critics have argued against the possibility of universally recognizable human rights, but (p. 833) they have consistently expressed a deep skepticism about how groups in power seek to preserve that power at the expense of other less powerful groups. Thus, despite the language of equal rights in the UDHR, the economic and social marginalization of Muslim-majority countries by western countries, as well as the social marginalization of Muslim minorities in some western countries, has indicated a persistent failure to recognize the equal rights of Muslims.
In terms of a postcolonial feminist critique, Chandra Mohanty questioned western feminist discourse around the subject of so-called “third world” women. She charged western feminists with defining their third world sisters in ways that make them “victims” of a “backward” civilization.27 This argument built on Edward Said’s work Orientalism, which was critical of the way that western scholarship on the East and Islam has reinforced a dichotomy of western superiority and Islamic inferiority.28 Mohanty challenged western feminist claims to universality on the grounds that they often falsely assimilated the experiences of all women, in the process failing to acknowledge key differences in race, class, and religion. With regard to religion generally and Islam specifically, Mohanty asserted that feminist scholars who study other religious and cultural traditions should recognize a plurality of interpretations within a tradition.
Fatima Mernissi also examined gender, human rights, and Islamic culture through the lens of postcolonial politics. She observed that by signing the UDHR, Muslims were redefining themselves in “the eyes of their former colonizers” and in doing so, they undermined sexual hierarchy and the scale of values that constituted male identity.29 In contrast to Mohanty, however, Mernissi examined patriarchal practices within the Islamic tradition, noting that the contradictions between Arab patriarchies in particular and gender equality politics of human rights discourse generated tensions for Muslims, especially Muslim men. While the concept of western individualism was a foreign cultural construct, the idea of the individual rights of women deeply unsettled cultural norms and practices.
Leila Ahmed’s Women, Gender, and Islam addressed historically the complex treatment of women within the Islamic tradition, and how European colonialism shaped the trajectory of gender reform in Egypt. Ahmed argued that the “Muslim woman” as a social construct came to occupy an important symbol in the western colonial imagination after the eighteenth century. There is great irony in the Victorian colonizer who rejected the feminist movement in Europe, but who turned around and used “feminism” to make the case for rescuing the victimized Muslim woman from her backward culture. Ahmed explained, “Colonial feminism, or feminism as (p. 834) used against other cultures in the service of colonialism, was shaped into a variety of similar constructs, each tailored to fit the particular culture that was the immediate target of domination.”30
The idea that Islam was inherently inimical to women gained currency during the colonial period, but its effects have been far-reaching into the twentieth and twenty-first centuries. Feminist Islamic legal scholar Ziba Mir Hosseini maintained that this idea has influenced attitudes of westerners, and particularly Americans, in offering justification for the “war on terror” following the terrorist attacks of September 11, 2001.31 But for Mir Hosseini and Ahmed, feminism as a set of tools for the liberation of women was not merely synonymous with the exercise of hegemonic power. In her 2006 article, Mir Hosseini traced the development of an indigenous Islamic feminism in post-revolutionary Iran, noting that the feminism embraced by a strong contingent of Iranians was not the same as the colonial feminism described above. This feminism came about as the result of women’s oppression in the area of Islamist restrictions on women’s marital rights and child custody rights, to name a few examples. Mir Hosseini was extremely critical of Islamist pretensions to an ahistorical and de-contextualized “Shari‘a law” as a viable human rights framework, and her work has promoted human rights in Islamic contexts.
The respective works of Mohanty, Mernissi, Ahmed, and Mir Hosseini suggest that the idea of a fundamental Islamic hostility to women’s rights was originally a product of colonialism. Mir Hosseini’s work also shows that Islamist political and militant activists have employed this construct to undermine the rights of Muslim women, in the name of defending an “authentic” Islam. Islamists who argue against gender equality, both in public and in the home, often rely on a premodern vision of Islam. Mir Hosseini observed that as a result, the gap between notions of gender justice and rights in the Islamic legal tradition and international declarations addressing gender justice widened in the twentieth century.32
B. Engaging Feminist Ideas: Islamic Family Law
The relationship between western feminism and Muslim women’s human rights is complicated by the history of colonialism, as well as the so-called “war on terror,” but these factors do not ultimately limit the ways that Muslim women use feminist critique to argue for women’s human rights within Islamic contexts. These women (p. 835) have rejected the idea that women’s human rights are a strictly secular construct. While some Muslim women have embraced apologetic strategies—such as claiming that in the Qur’an and hadith, Islam granted human rights to women33—others have taken a more nuanced approach by examining the historical contexts and norms that influence ideas about gender and religion.
For example, Lynn Welchman examined women’s rights and family law in Arab states, noting shifts in the codification of Muslim personal status law (family law).34 The focus on such laws and debates surrounding them sheds light on the particular regional issues at stake. Ethnographic studies that take into account the lived experience of Muslim women and their interaction with Islamic law, cultural customs, and secular law, are important contributions to scholarship in the area of women’s studies and Islam. Samia Bano’s study of shari‘a councils in Britain examined Muslim women’s agency in their use of such councils in obtaining a divorce.35 Bano’s study dealt with Muslim women in a minority context, showing how Pakistani British Muslim women conceptualize rights within marriage, and how they understand “Islam” to grant them human rights, such as the right to divorce an abusive husband (based on some rudimentary knowledge of Islamic personal law). Bano concluded that the British shari‘a courts had little effect on the promotion of rights of Muslim women within family law. However, her study reveals the significance of situating the analysis contextually. As Bano pointed out, Islamic jurisprudence is not the guiding framework for these shari‘a councils. Rather the framework reflects a complex intersection of Islamic “law” as interpreted by council members (who are sometimes, but not always, religious scholars), agentive pious Muslim women, and members of ethnic/kin groups.
While this contextualized scholarship offers considerable insights into the operation of Islamic law in highly contested spaces of life, it nonetheless raises a moral general question about the relation between civil law and Muslim communities in countries where Muslims live as religious minorities. The state, while still the formal guarantor of rights, is not always in the position to enforce them (particularly when it gives latitude to religious groups to determine the content and enforcement of family law through alternative dispute resolution mechanisms). This can lead to problems when religious teachings—and in particular the practical effects of such teachings—conflict with civil law.
(p. 836) C. Muslim Feminist Interaction with Human Rights Discourses
One way to approach these interrelated questions and bring the conversation back to universal human rights discourse is to inquire about the effect of international human rights treaties on women’s rights. The United Nations ratified the Convention for the Elimination of Discrimination against Women (CEDAW), in 1979. The signatories to CEDAW committed to eradicating discrimination against women in both public and private spheres, although some of the countries that agreed to the convention continued to discriminate against women. Several Muslim majority countries issued reservations to CEDAW based on a perceived conflict with the shari‘a. Egypt’s representative issued a reservation to CEDAW, for example, arguing that Islamic law had “already liberated women.”36 This argument is consonant with the Cairo Declaration’s understanding of shari‘a law as providing the ultimate reference point for human rights.
In terms of bridging the gap between statements of international human rights for women and the failure to guarantee such rights in practice, non-governmental organizations have played an important role. Musawah (Arabic for “equality”) was founded in 2009 by Muslim women. An international organization, Musawah has drawn on the work of activists—both male and female—to reinterpret Islamic scriptures and reform legal practices so that they support the rights of women. Women’s organizations like Musawah have worked to encourage Muslim majority countries to adopt international women’s rights conventions like CEDAW. Welchman has observed the impact of Musawah’s advocacy work in promoting gender justice in the area of family law reform. Musawah has notably influenced legal discussions of gender roles in marriage in several Arab states; one observable trend is the move from gender-complementary roles (stressing a husband’s fairness and wifely obedience) to roles that involve more equality and mutuality.37
Musawah provides an example of how Muslim feminists have appropriated feminist ideas and adapted them specifically to fit the needs of their various contexts, in the forms of critical scholarship and activist bodies. Their work has demonstrated that “feminist” is not a monolithic term, but rather a fluid category that can encompass considerable variance in its cultural meanings and applications.
(p. 837) D. Critiques of the State: Islamists, Secularists, and Muslim Feminists
Since the ratification of the UDHR in 1948, a pattern of disagreement has manifested around religious freedom (and how to treat religious minorities) and gender equality between Muslim governments and Islamists, on the one hand, and western states, on the other. We may attribute this persistent tension in part to the political, religious, and economic realities occasioned by colonialism and its aftermath. In many respects, however, the modern state itself remains an important object of focus and inquiry in this disagreement. It is necessary to recognize the tremendous power of the modern state over the lives of its citizens and non-citizens (inclusive of persons that reside within its borders and those that do not). Given the reality of the state’s power to confer or deny rights, any kind of international rights declaration or convention risks impotence if it runs counter to the political aims of the state’s elite members.
By examining meta-critiques of the state, we may identify the various stakes involved for Islamists, Muslim feminists, and western secularists. In Muslim-majority contexts, Islamists have sought to bring the secular state into greater alignment with Islamic principles and values (often based on their interpretation of shari‘a) in order to confer legitimacy.38 From this perspective, state or international law, if devoid of an Islamic foundation, is not a legitimate ground for human rights. Therefore a topic like religious freedom, vexed already as it is based on historical memory of unfavorable colonial encounters with missionaries, remains in tension with the Islamist belief that the only correct framework for governance is an Islamic system. For male elites within this system, gender equality as a measure imposed externally by an international system of law symbolized another attempt at colonial control. Lisa Hajjar identified this problem when she explained, “Women’s rights, and the issue of gender relations more generally, have become the primary redoubts of anxieties about cultural and legal imperialism.”39
Western secularists—and others who endorse some measure of separation of religion and government—have tended to avoid meta-critiques of the state insofar as they have imbued secular leaders and governmental processes with legitimacy and have trusted in the ability of state elites to either check their power or to respect the constitutional limits (where provided) on their power. An-Naʾim endorsed a conception of secular government in order to emphasize the separation of religious authority from state authority and the right of people to make collective decisions about governance. Critical to secularism is a concept of freedom of religion—but (p. 838) whether that means protecting the freedom of religious actors to practice in public spaces or prohibiting establishment or dominance of a religion is an American debate that has continued into the twenty-first century.40 Sometimes, secular ideology has entailed the outright rejection of religious frameworks for law and governance. Regarding gender, many western secular critiques, such as Mayer’s, focussed on the way that the state ought to protect women’s rights against inherently oppressive religious systems.41 As Leila Ahmed has noted, however, the view that Islam in particular is oppressive to women is a colonial trope. And yet this view has had remarkable endurance due to the ideological war (in addition to the military conflicts of the twentieth and twenty-first centuries) between Islamism and secular nationalism.
Modern Muslim feminists have faced the challenge of negotiating their political and religious participation in light of the ideological dialectic of “secularism” and “Islam” in the context of the modern state. Their activism—which takes place within but also across national borders—proves the instability of the secular/religious dichotomy insofar as they work dynamically within spheres of religious and secular systems to achieve greater rights for women. Muslim feminists like Ziba Mir Hosseini have highlighted the way that powerful state ideologies—whether Islamist or secular—have functioned to oppress women. Her work has also demonstrated the way that Muslim feminist practitioners grant authority to, or resist, practices and social norms. Whereas antireligious secularist and Islamist discourses have tended to imperil Muslim women’s agency, Muslim feminists have demonstrated that the modern political climate created novel opportunities for Muslim women to engage politically—and in ways that have criticized excessive state power and religious ideology that have both caused harm to women.42
This chapter has identified four basic scholarly orientations to the topic of Islam and human rights since the end of the Second World War. First, some scholars rooted in the western rights tradition have privileged the secular and rational underpinnings (p. 839) of human rights and eschew any religious foundation for rights. To some extent, Mayer’s work fits into this category. The obvious bias in this view is that religious actors are understood as acting less rationally than secular actors, and that secular systems of law are perceived as more stable and conducive to human rights than religious ones. Such scholarship may be more likely to identify the whole of the Islamic position of human rights with Islamist political rhetoric and apology, failing to account for different positions among Muslim intellectuals and activists. This position, if asserted uncritically, may overlook the geopolitical context of colonialism and postcolonialism and the way that this history shapes human rights discourse.
Second, Muslim apologists like Mawdudi argued for the primacy of the shari‘a in their human rights frameworks, but neglected to distinguish between premodern systems of governance and law, on the one hand, and contemporary systems of governance and law, on the other. In doing so, they elided necessary questions of textual interpretation and application and relied on idealized conceptions of Islamic law. This seems to be at least in part a response to the modern bureaucratic separation of value spheres, and involves nostalgia for the integration of religion and law, a relationship which had been severed during the colonial period (with the exception of family law).
Third, there are postcolonial critics who, by way of Marxist or other ideological critique, argue that human rights have too often been defined and enforced by those with global privilege. This critique is not particular to the issue of Islam and human rights, although a number of scholars, like Falk and Mohanty, have applied the critique to Islamic cases. These critics are not invested, theologically or legally, in a revival of shari‘a, but instead are interested in allowing Muslim communities more freedom in defining their human rights commitments. They might endorse a kind of legal and/or moral pluralism.
Fourth, there are Muslim scholars who take up the task of universal human rights but who reject the ahistorical approach associated with both the first and the second camps, as well as the strict limitations that the first camp places on religious participants in human rights discourse. As a group, they tend to be more critical of the way that Islamic programs of legal reform, often at the state level, have led to human rights abuses (placing them in disagreement with the second and third camps). This group consists generally of reformist scholars, including Muslim feminists, who seek to bring into more harmony a conception of universal rights and Islamic thought, usually through the revision of Islamic teachings (although they approach this task in various ways—ranging as they do from scholars of law to historians and theologians). We may also include maslaha approaches to human rights in this category, insofar as such approaches involve making changes to Islamic teachings based on public interest.
In accounting for the diversity of views regarding Islam and human rights, recognizing these four views may help to identify and comprehend persistent areas of disagreement. Yet these classifications are limited. For example, some participants (p. 840) in this discussion, like members of Musawah, share the commitment of Muslim reformers to bring into harmony international human rights discourse with Islamic legal traditions, but also may sympathize more with Muslim apologetics than secular human rights advocates. Another example is that of Baderin, whose revival of maqasid al-Shari‘a places him within the category of Muslim reformers who seek harmony with international rights concepts and Islam, but whose method of retrieval ignores some fundamental differences in context between premodern and modern epistemology and politics. There are also scholarly works that bring into direct comparison international law and Muslim law on the topic of rights, which affords an important opportunity for cross-cultural conversation without staking an ideological claim.43
As the relationship between Islam and human rights continues to be a topic of political discourse, it is important to be able to assess the relative strengths and shortcomings of these various positions, and to identify the areas for most productive consensus and progress toward implementing human rights commitments. While genuine moral disagreements continue about the content of particular rights, often issues of political ideology exert a significant influence on the way that rights claims are imagined. Moreover, while conceptions of international human rights rely on abstraction from specific contexts, their efficacy relies on the ability of participants to find legal, moral, and political relevance in applying them.
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Ahsan, Abdullah, “Law, Religion, and Human Dignity in the Muslim World Today: An Examination of OIC’s Cairo Declaration of Human Rights.” Journal of Law and Religion 24, no. 2 (2008–09): 569–597.Find this resource:
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Danchin, Peter G., “The Politics of Religious Establishment: Recognition of Muslim Marriages in South Africa” in Winnifred F. Sullivan and Lori G. Beaman (eds.) Varieties of Religious Establishment (New York: Ashgate, 2013) 165–186.Find this resource:
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Emon, Anver M., “Sharia and the (Em)brace of Difference: From Theology to Law to Identity Politics” in John Bowlin (ed.) The Kuyper Center Review vol. 2: Revelation and Common Grace (Grand Rapids: Eerdmans, 2011) 173–199.Find this resource:
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Mir Hosseini, Ziba, “Justice, Equality, and Muslim Family Laws: New Ideas, New Prospects” in Mir Hosseini et al., (eds.) Gender and Equality in Muslim Family Law: Justice and Ethics in the Islamic Legal Tradition (New York: Palgrave MacMillan, 2013) 7–34.Find this resource:
Mohanty, Chandra, “Under Western Eyes: Feminist Scholarship and Colonial Discourses.” Feminist Review 30 (1988): 61–88.Find this resource:
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Stuart, John, “Empire, Mission, Ecumenism, and Human Rights: ‘Religious Liberty’ in Egypt, 1919–1956.” Church History 83, no. 1 (March 2014): 11–134.Find this resource:
Sullivan, Winifred F., The Impossibility of Religious Freedom (Princeton: Princeton University Press, 2007).Find this resource:
Waltz, Susan, “Universal Human Rights: The Contribution of Muslim States.” Human Rights Quarterly 26 (2004): 799–844.Find this resource:
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Welchman, Lynn, “Musawah, CEDAW, and Muslim Family Laws in the 21st Century” in Emon, Ellis, and Glahn (eds.) Islamic Law and International Human Rights Law: Searching for Common Ground? (New York: Oxford University Press, 2012) 309–319.Find this resource:
(1) The number of scholars and written projects that address this topic is too numerous to list comprehensively here, although I will address several works over the course of this chapter.
(2) Johannes Morsink, The Universal Declaration of Human Rights: Origins, Drafting, and Intent (Philadelphia: University of Pennsylvania Press, 1999).
(3) Anthony Pagden, “Human Rights, Natural Rights, and Europe’s Imperial Legacy,” Political Theory 31, no. 2 (April 2003): 190.
(4) Jack Donnelly, Universal Human Rights in Theory and Practice (Ithaca, NY: Cornell University Press, 2003).
(5) Irene Oh, “Islamic Voices and the Definition of Human Rights,” Journal of Church and State 53, no. 3 (2010): 376–400.
(6) Oh, “Islamic Voices,” 381.
(7) Susan Waltz, “Universal Human Rights: The Contribution of Muslim States,” Human Rights Quarterly 26 (2004): 799–844.
(9) Ann Elizabeth Mayer, Islam and Human Rights: Tradition and Politics (Boulder, CO: Westview Press, 1999).
(10) The conflict in Israel/Palestine likely influenced the development of this argument. It is notable that whereas Hamas initially was secular in framework, Israel’s military, economic, and social oppression of Palestinians encouraged the organization to adopt a more religious (Islamist) ideology.
(11) Muhammad Khalid Masud, “Clearing Ground: Commentary to ‘Shari‘a and the Modern State,” in Islamic Law and International Human Rights Law: Searching for Common Ground? ed. Emon et al. (New York: Oxford University Press, 2012), 104–114.
(12) Abu A’la Mawdudi, Human Rights in Islam (London: The Islamic Foundation, 1976).
(14) e.g. some Islamist militant interpreters have drawn from Qur’an 9:1–35, a series of verses that enjoin Muslims to fight against “idolaters” and also the People of the Book, to legitimize their militant action against non-Muslims.
(15) Abdullah Ahsan, “Law, Religion, and Human Dignity in the Muslim World Today: An Examination of OIC’s Cairo Declaration of Human Rights,” Journal of Law and Religion 24, no. 2 (2008–09): 569–597.
(16) Abdullahi An-Naʾim, Islam and the Secular State: Negotiating the Future of Shari‘a (Cambridge, MA: Harvard University Press, 2008) 29.
(17) Khaled Abou El Fadl, “The Human Rights Commitment in Modern Islam,” in Human Rights and Responsibilities in the World Religions, ed. Runzo et al. (London: Oneworld, 2003), 301.
(18) Mashood Baderin, International Human Rights and Islamic Law (New York: Oxford University Press, 2005), 219.
(19) Anver M. Emon, Islamic Natural Law Theories (Oxford: Oxford University Press, 2010).
(20) Anver M. Emon, “Sharia and the (Em)brace of Difference: From Theology to Law to Identity Politics,” in The Kuyper Center Review vol. 2: Revelation and Common Grace, ed. John Bowlin (Grand Rapids: Eerdmans, 2011), 185.
(21) For an interesting discussion of Qutb’s and other Islamist views about the Islamic right to proselytize, see Andrew F. March and Naz K. Modirzadeh, “Ambivalent Universalism? Jus ad Bellum in Modern Islamic Legal Discourse,” The European Journal of International Law 24, no. 1 (2013): 367–389.
(22) John Kelsay, “Saudi Arabia, Pakistan, and the Universal Declaration of Human Rights,” in Human Rights and the Conflict of Cultures: Western and Islamic Perspectives on Religious Liberty, eds. David Little et al. (Columbia: University of South Carolina Press, 1988).
(23) John Stuart presents evidence that British Protestant missionaries in Egypt understood “religious liberty” to consist in a freedom to proselytize, so this worry is not unfounded. See Stuart, “Empire, Mission, Ecumenism, and Human Rights: ‘Religious Liberty’ in Egypt, 1919–1956,” Church History 83, no. 1 (March 2014): 11–134.
(24) Talal Asad, Formations of the Secular: Christianity, Islam, Modernity (Stanford: Stanford University Press, 2003), 151.
(25) Peter G. Danchin, “The Politics of Religious Establishment: Recognition of Muslim Marriages in South Africa,” in Varieties of Religious Establishment, eds. Winnifred F. Sullivan and Lori G. Beaman (New York: Ashgate, 2013), 165–186.
(26) For a rebuttal of American arguments against ratification, see Harold Hongju Koh, “Why America Should Ratify the Women’s Rights Treaty,” Case Western Reserve Journal of International Law (2002): 263–276.
(27) Chandra Talpade Mohanty, “Under Western Eyes: Feminist Scholarship and Colonial Discourses,” Feminist Review 30 (1988): 61–88.
(28) Edward W. Said, Orientalism (New York: Vintage Books, 1994).
(29) Fatima Mernissi, The Veil and the Male Elite, trans. Mary Jo Lakeland (New York: Basic Books, 1992), 22.
(30) Leila Ahmed, Women and Gender in Islam (New Haven: Yale University Press, 1992), 151.
(31) Ziba Mir Hosseini, “Muslim Women’s Quest for Equality: Between Islamic Law and Feminism,” Critical Inquiry 32, no. 4 (Summer 2006): 629–645.
(32) Ziba Mir Hosseini, “Justice, Equality, and Muslim Family Laws: New Ideas, New Prospects,” in Gender and Equality in Muslim Family Law: Justice and Ethics in the Islamic Legal Tradition, eds. Z. Mir Hosseini et al. (New York: Palgrave MacMillan, 2013), 7–34.
(33) Riffat Hassan called the Qur’an the Magna Carta of human rights in “Rights of Women within Islamic Countries,” Canadian Women’s Studies (1995).
(34) Lynn Welchman, Women and Muslim Family Laws in Arab States: A Comparative Overview of Textual Development and Advocacy (Amsterdam: Amsterdam University Press, 2007).
(35) Samia Bano, Muslim Women and Shari‘a Councils: Transcending the Boundaries of Community and Law (New York: Palgrave Macmillan, 2012). This type of study affirms Kecia Ali’s observation that women’s studies in Islam, initially focussed on women’s oppression, moved in the early twenty-first century toward a new focus on women’s agency. See Ali, Marriage and Slavery in Islam (Cambridge, MA: Harvard University Press, 2010). For a prominent example of this kind of work, see Saba Mahmood, Politics of Piety: The Islamic Revival and the Feminist Subject (Princeton: Princeton University Press, 2006).
(36) Michele Brandt and Jeffrey A. Kaplan, “The Tension between Women’s Rights and Religious Rights: Reservations to CEDAW by Egypt, Bangladesh, and Tunisia,” Journal of Law and Religion 12, no. 1 (1995–96): 105–142.
(37) Lynn Welchman, “Musawah, CEDAW, and Muslim Family Laws in the 21st Century,” Islamic Law and International Human Rights Law: Searching for Common Ground? eds. Emon et al. (New York: Oxford University Press, 2012), 309–319.
(38) In some cases, however, Islamist groups have pursued international military action without the affiliation of a sovereign state—e.g. al-Qaida.
(39) Lisa Hajjar, “Domestic Violence and Shari’a,” in Women’s Rights and Islamic Family Law: Perspectives on Reform, ed. Lynn Welchman (New York: Zed Books, 2004), 250.
(40) This debate has a long history. For two discussions, each with a distinct perspective, of how these questions have affected discourse around the American constitutional separation of church and state, see W.F. Sullivan, The Impossibility of Religious Freedom (Princeton: Princeton University Press, 2007) and Martha Nussbaum, The New Religious Intolerance: Overcoming the Politics of Fear in an Anxious Age (Cambridge, MA: Belknap Press, 2012).
(41) Susan M. Okin, “Is Multiculturalism Bad for Women?” In Is Multiculturalism Bad for Women? eds. Joshua Cohen et al. (Princeton: Princeton University Press, 1999).
(42) See Ziba Mir Hosseini, “Beyond ‘Islam’ vs ‘Feminism’,” IDS Bulletin 42, no. 1 (2011): 67–77.
(43) See, e.g., Anver M. Emon, Mark Ellis, and Benjamin Glahn, eds., Islamic Law and International Human Rights Law: Searching for Common Ground (Oxford: Oxford University Press, 2012).