The notions of state and citizen, which underpin the modern discourse of Human Rights, are problematic in that they both are conspicuously absent in the classical civilization of Islam. Despite the intimate connection that has always existed between the Islamic doctrine and the exercise of political power, Muslim tradition never developed any concept of the state - a territorial entity which is ‘sovereign’ within its boundaries and whose authority is binding both on the ruler and the ruled. It conceived of Islamic order in transcendental terms as the rule of Divine Law (Shari´a) and defined Muslim body-politic as a sacred moral community (umma) which stands above all mundane institutions. Traditional thought, consequently, accepts no institution, be it secular or clerical, native or foreign, as representative of Islam. Hence the modern debate, which reproduces endless variations on the single act of the citizen's negotiation with the state, largely escapes the Muslim audience.
To speak of Human Rights (henceforth abbreviated as HR) is essentially to speak about the claims of the citizen against the state. The beneficiary of these rights then is the citizen and the not the believer, the normal category for apprehending an ideal individual in the Islamic tradition. Given also the fact that the modern state is ‘secular’, that it professedly makes no claims to guiding its citizens’ destinies beyond the mundane, that it offers no doctrine of ‘salvation’, it is not surprising that it does not constitute the highest locus of a Muslim’s loyalty. Hence, the first problem to be tackled in any Muslim debate on HR is the nature of the political order which the modern Muslim can accept as his own. (The historical situation of our age needs emphasis as the classical theory of the Islamic rule (Hukuma) does not seem to answer our needs.) Without resolving the question of the nature and constitution of Muslim public order today, it is futile to participate in the HR discourse and make any worthwhile contribution. For the crucial, nay controversial, question forced upon the Islamic tradition by HR is whether citizenship is, or can be made, synonymous with the membership in a ‘faith community’, or whether the two are based on contrary principles of historical order. Alternatively, we may phrase the question as: Can the Muslim become a citizen, and hence a beneficiary of the HRs scheme, without renouncing his obligations to the sacred law and community of his faith?
It also needs emphasizing that that contemporary Muslim debate has been plagued by intellectual confusion and moral timidity. Finding themselves on the receiving end of the civilizational exchange, Muslims of our times have been more concerned with the preservation of their heritage than with any explorations of their future. Muslim response to secular world-order, a creation of Islam’s former rival, the Christian West, which is also its principal beneficiary, is a case in point. Because the modern state appropriates the Divine attribute of ‘sovereignty’ and claims for itself the right to legislate (and hence stands above the Revealed Law), it has been received with much suspicion and considerable hostility in the Muslim world. None of its otherwise appealing tenets, such as freedom of conscience and equality before law, have made any headway in contemporary Muslim consciousness.
Muslim societies, preoccupied as these have been with the preservation of the 'dignity and integrity of the believer’, have not discerned the significant improvement of civil liberties which such a minimalist, secular, state also heralds. Against the onslaught of foreign ideologies, Muslims instinctively rose to defend their tradition, even if it entailed upholding worn out interpretations of medieval fuqaha, which appeared to deplete the moral vitality of the Koranic text itself. This was in spite of the fact that every Muslim state was then flouting the letter and the spirit of the sacred Law, just as every Muslim ruler today scouts at any secular demand for the safeguard of the rights of the citizen. So in actual fact, neither the civil liberties of the citizen nor the sacred dignity of the believer have been accorded any respect beyond the perfunctory lip service, a sad state of affairs which makes the culture of human rights a veritable oddity in the Muslim world.
Much confusion was also spread by uninformed and unsuspecting ideologues who coined blatantly self-contradictory neologisms like ‘The Islamic State’ and made them part of the indigenous discourse. Believing that ‘state’ is simply a modern euphemism for political order, they were led to equate faith with coercion, and ended up by constructing totalitarian structures which they called Islamic! Little did they realise that these vacuous abstractions could not be redeemed by historical analysis, or that ‘Islam’ defined as ‘state’ was nothing but a secular heresy. (One need not confound the modern theory with the classical fiqhi (juristic) models of khilafa or imama. The latter were veritable doctrines of power but they lacked the idea of statehood and impersonal authority.)
The transformation - disfigurement - of Islam into an ideology produced at least one casualty - the Islamic tradition. It could no longer assert its right to be judged on its own terms but had to prove its legitimacy by out-secularising the secular state, by accepting that goods and gadgets are as salubrious as salah and zakah! But even secular ideology suffered as a consequence; it was never given a proper hearing in the court of appeal of Islamic conscience. Even its self-imposed neutrality in matter of faith, its agnostic creed which regards the 'teleological' question about the end and meaning of human existence outside of its jurisdiction, has been dismissed as of no consequence. Perhaps the secular state does not appeal to the Muslims because it has no answer to the ultimate question of the goal of human existence, while Islamic conscience demands guidance as well as governance from the state. But let us not pre-judge the issue.
Given the fact that no proper discussion of HR is possible without acquiescing in to the modern - secular - theory of the state, it is imperative that we closely examine the Muslim sentiment with regard to the cardinal tenet of secularity, namely the separation of Church and State. The instinctive Muslim response, which is now aggressively propagated as a sacred tenet of the Islamic doctrine, maintains that not only is such a ‘bifurcation’ un-Islamic, but it is also impossible to implement as there is no ‘church’ in Islam. And yet, nearly everyone is also willing to concede that the faith of Islam is transcendent, spiritual and eternal while the existential reality of the Muslims is immanent, political and historical: in short that there is a gap between the ideals and realities of Islam. True enough, Muslims have never despaired of this duality and posited it either as a shocking paradox, or as a cruel and irreconcilable contradiction.
What is characteristically Islamic here is then not the separation but the refusal to construe this contradiction in such a way that it transforms itself into an anti-existential doctrine. The Muslim contention is not with the keeping of the two orders of reality, the temporal and the eternal, separate and distinct but with the debasement and devaluation of the existential and the historical that also comes with this separation and is the very heart and soul of many religious traditions. The reasons for Islam’s unflinching commitment to the historical - the this-world of theology - are not far to seek. The historical and the existential is the testing ground of morality and Islam, which is unnegotiably committed to upholding the sovereignty of the moral, cannot do without them. Politics as the quest for a just historical order is therefore intrinsic to Islam and incumbent upon its community. It does not however constitute the end and the goal of the believer’s faith.
Confession vs. Conscience
The ruling idea of the modern state, and that of HR, then, rose in the European tradition which had institutionalised the spiritual and the temporal as church and state. The ideology and morality of the HR is therefore intelligible and meaningful only within this dualistic framework. The state as a secular institution rose in response to confessional wars which plagued European polities during the seventeenth century. With time, even the believers came to prefer the non-confessional state to the supremacy of the rival church that made religious affiliation a benchmark of political loyalty. In other words, it was an experience not unlike that of the Muslims in their early history, where too sectarian strife and civil wars were instrumental in the constitution and consolidation of the ‘apolitical’ Sunni community (Ahl al-Sunna wa’l Jama´ a ). It was the failure of religious bodies to agree upon a single locus of authority that made the search for an alternative source of sovereignty possible. As the Christians came to the realisation that no agreement in matters of public importance was possible on the basis of faith, they chose a new authority that was trans-confessional, though with time it also came to be, anti-confessional.
Be that as it may, the important point for Muslims to reflect over is that the modern state is not, as is generally acclaimed, neutral with respect to religion. No, it cannot tolerate religion as an institutional and political force: It banishes religiosity, as it were, from the domains of power and knowledge and pours it into individual conscience. The freedom of conscience and religion, which the secular state is proud to uphold, is therefore a vacuous kind of freedom; it does not allow those who enjoy it any degree of autonomy with respect to the actualisation of their ideals. For the secular state does not accept that either statecraft or public morality may be derived from religious consciousness. Religion in the secular world-view and practice is something personal, trans-historical and politically innocuous. It has no aspiration to the re-making of the world.
That freedom of conscience or religion has evolved into such a sacrosanct tenet of secular morality, including that of the HR ethos, is understandable, given the backdrop of religious wars against which the modern state makes its debut. Nor may it be denied that a confessional state does not, and probably cannot, guarantee full freedom of religion and confession to its subjects (freedom of conscience is a tautological euphemism; for conscience is always free. It is its public - political - manifestations that provoke the coercive powers of the state.) The man of a different faith and confession represents, after all, the other of the religious self. The other of the secular self, similarly, is not the believer but the citizen of a different, potentially rival, state. Not surprisingly, just as the confessional state discriminates against its other, the member of a rival faith or church, so does the secular state, except that its discriminatory treatment is meted out to the non-citizen, the bona-fide foreigner of our times.
That great moral stigma is attached to the 'other' of the confessional state, whereas everyone takes the legal discrimination of a foreign citizen for granted, is a telling commentary on the irrelevance of religion and religious community in the modern political system. It has very little bearing on the question of morality, as no political system is known to man that does not make a distinction between the political 'self' and its 'other', favouring the former and penalising the latter. (Politics is quintessentially parochial and perforce entails the judgment of inclusion and exclusion, of separating friends from foes. Systems claiming universality, usually religions, churches and ideologies, are universal only in their ‘transcendent’, apolitical and ahistorical, aspects.) Similarly, the much acclaimed equality of all citizens in a secular state is matched by the equally emphatic claim of the equality of all believers in a faith-community. Nor can we overlook the fact that the secular state-system produces its own ambiguities. For instance, the richer states of the world are already under pressure, and guilty of moral dubiousness, in the face of the influx of refugees and asylum-seekers. The contradictions of the legal doctrine of equality of all citizens and the moral sentiment of solidarity with all humans are clearly exposed in their policies, causing much tension between the moral and the pragmatic sections of their populace.
Whatever the attraction and justification for the Islamic thinker to apprehend and delineate the ideological and metaphysical parameters of the secular state, it must be reserved for another forum. On this occasion, we need to start from the reality of the secular system of territorial states to which all Muslim regimes have given their full allegiance. Every Muslim community today is part of the global state-system and ostensibly exercises ‘sovereignty’ within the borders of a parochial and territorial entity. Muslim states are also signatories to the United Nations’ ‘Charter of the Fundamental and Universal Human Rights’ and as such morally and legally bound to honour and implement its provisions. Moreover, with few exceptions, contemporary Muslim rule is alien, arbitrary and predatory. Hence, it must not be allowed to use ‘Islam’, or the medieval formulations of Muslim jurists, as the legitimising argument for its oppression and denial of fundamental rights. Cynicism against HR is also cynicism against Islam. Despite their - theoretical and metaphysical - reservations against the secular-humanist ethos of HR, Muslims qua citizens must promote the cause of HR; for the theoretical resolution may come later, and not to be beneficiaries of a humane political culture would be infinitely more grievous. Far more appealing and congenial to the Muslim tradition is the alternative strand of HR morality that constitutes a reflection on the theme of a Just World Order. There can be no denying that it is fully consonant with the Qur’anic themes of Khilafa and Amana, man’s (humanity’s) collective responsibility for the care and subsistence of the world. Hoping that Muslim thinkers take up this challenge and enrich the discourse of HR from their Qur’anic vantage-point which engenders a collective notion of Humanity Rights, I would re-focus my attention on the nature of the HR theory and its implications for Muslim thought.
Sentimentality not Rationality
Despite the unsteady and lopsided philosophical foundations of the HR doctrine, it has become the spearhead of moral consciousness in our days. Indeed, such is its emotional sway that to contest the notion of human rights, even within a philosophical context and in good faith, is to invite the inquisitional fury of the liberal Church. And yet, ironically, the political tradition most ardently committed to promoting an individualistic view of the world, liberalism, seems to be ill at ease with the notion of the 'universality' of rights. Its philosophical scepticism and core claims about the impermanence and intractability of moral argument do not cohere with the postulation of 'transcendence' that constitutes the normative ground of the HR civil morality. While some supporters of HR strike a Kantian posture and promote a cross-cultural vision of the HR, others are highly censorious of any effort to ground HR in a timeless, ahistorical and unsituated rationality. Equally adamant is their refusal to accept any theoretical justification for divorcing ethics from politics. Thus the mood of the philosophical discourse of HR oscillates between universalism and scepticism, between the euphoria of transcendence and the sobriety of contingency.
Against the kind of foundational approach to HR morality that is represented by Kantians, postmodernism represents a most potent antidote. The search for a foundation to human nature and rationality, and the concomitant propensity to take ontology or history as a guide to life, postmodernists contend, is quite misguided. If anything, the argument proceeds, history and anthropology make us think of ourselves as 'the flexible, protean, self-shaping, animal rather than as the rational animal or the cruel animal.' Indeed, the only fact of our nature is 'our extraordinary malleability'. (How could there be a 'self-shaping' animal without the possession of will, which in its turn requires rationality, is beyond my comprehension? And if there is no human 'nature', what is this entity 'self' that we may perpetually shape and re-shape?)
Notwithstanding the logical backslides of the argument, postmodernists’ message is quite unambiguous: HR theory needs no foundation in deeper moral knowledge or knowledge of human nature. The de facto acceptance of global "human rights culture" renders HR foundationalism outmoded and superfluous. In short, the categorical imperative to the defence of HR need have no cognitive basis! Consistent with this anti-foundationalism is the assertion is that not 'rationality' but 'sentimentality' is the faculty through which human solidarity is promoted. Hence, the suggestion is that we should concentrate on 'manipulating our feelings rather than increasing our knowledge.' Only through 'sentimental education' may we enlarge our self-image and 'expand the reference of the terms "our kind of people" and "people like us".' Surely, through its total control of the agencies of sentimental education, its unchallenged monopoly of over all the media of propagation, the West is in the unique position of promoting human solidarity as never before. Unfortunately, however, so far this awesome power to influence minds and hearts of people has been used only for the aggrandisement of the western man, just as the demonizing of Islam and the Muslims has been the principal ambition of this propaganda machine. Whatever its other discomforts, these insight would seem to suggest that for the promotion of a genuine HR culture, an equitable distribution of the means of 'sentimental education' is a prerequisite.
The Secular Indictment
We must realise that the Muslim indecision, or inability, to be part of the formative HR debate can have distressing consequences for the Islamic tradition. For what, in its original setting, is, at best, a fluid theory, a wishful moral sentiment, or a misguided foundationalism, may easily present itself in a cross-Islamic context as a sacred canon, a legal fait accompli, and a binding charter, to which the only permissible Muslim response is compliance and submission. For, rightly and wrongly, HR activists feel that their most ardent opponent is the Muslim tradition, especially its ‘fundamentalist’ wing. That they confound the genuine Islamic response, which is yet to be articulated, with the political expedient statements by the hired spokesmen of despotic Muslim regimes, is no doubt disturbing to the committed Muslim thinker the focus of whose loyalty is no political establishment of the day.
As for the HR’s criticism of the Islamic tradition, it is delivered as a standard secular-liberal indictment of the fiqhi model of Islamic order in which the state figures as a - problematical, ambiguous and opaque - metaphor of faith and which expresses 'metaphysical' tents like nulla salus extra ecclesiam as the civil inequality of the believer and the protected. Predictably, then, the locus of the critique is on 'discrimination against women and non-Muslims', 'restrictions on the rights and freedoms of women', and 'freedom of religion in Islamic human rights schemes.' The only novelty of the HR discourse is that the secularist inquisition is conducted not in the language of power but in that of morality, not within the courtroom of Weltgeschichte but inside the sanctuary of HR.
The HR idea, it is my conviction, does not present Muslim thought with any insurmountable moral challenge. Islam has the moral and intellectual resources to meet all the demands of HR conscience. The recurrent Muslim insistence on taqwa rather than fatwa clearly testifies to the fact that the fiqhi model of Islamic order is not coterminous with Islam. Once Muslims, as the civil society of the Umma, have succeeded in harnessing indigenous polities, which at present are only serving alien interests, and have delineated their idea of statehood, all the provisions of the HR charter can be met. Further, Muslim states too can relate to the rhetoric of HR in a spirit of genuine compliance, or cynically in terms of self-interest. They have after all the benefit of learning from the Western powers!
As for those who accept the facile dichotomy of modernisation/traditionalism as a moral fact, it should be impressed upon them the kind of antiquated evolutionism that they so ardently espouse is inimical to the very idea of morality! For the modern society, which incarnates the superior morality of HR, is either the outcome of - an inevitable and pre-determined - historical process, or, it is the product of contingent and blind forces. In either case, it owes nothing to the actions and decisions the moral will which, per definition, operates neither in necessity nor in chance! Historicism and HR morality, in other words, are based on contradictory principles.
Universalism and its Discontents
To claim universality for a manifestly contingent and expedient charter of HR, then, is either to lack all philosophical sophistication or to possess exceptional political guile. For the theory of universal human rights can only be reconciled with the notion of historical development, if history has already come to an end and civil morality has reached its finality in the ethos of the modern civilisation. If so, the apprehensive Muslim may justifiably wonder, whether the rhetoric of the universality of HR masks the claim of the modern society to be the End? Further, does this coming of the End abrogate every other historical project, Islam including, and abolish its future? These fears may not be unfounded: Western hegemony, after all, is always legitimated as a theory of the end of history. The HR’s debate merely alerts us to the making of a new polemics according to which resistance to western hegemony is no longer a resistance to any actual historical power group but to the universal morality of human rights, it is a rejection not of the prevailing world-order but of the human community itself! Surely, then, the universality of human rights is as much of a political claim as a moral one. As such, it deserves more than a casual scrutiny or perfunctory lip-service.
Whatever the philosophical discomforts of the universal theory of HR, it cannot be gainsaid that the notion of human rights is able to call upon a consensus that is far wider and more universal than that of western civilisation. Indeed, it has captured Muslim imagination and stirred Islamic conscience as well. Even Muslim scholars have examined the concept of Haqq (Right) in Islamic law and come to the conclusion that despite the fact that Muslim jurists never articulated a precise definition, Islamic law not only was cognisant of haqq but it even developed other more comprehensive and precise concepts such as hukm (moral values) which subsumed the former.
In the West, however, despite its 'natural' and 'universal' appeal, the theory of natural or human rights has had many critics and detractors. For Jeremy Bentham, for instance, the very idea of such rights was 'nonsense on stilts.'; for Edmund Burke, their 'abstract perfection' was also their 'practical defect'; for Alasdair MacIntyre, human rights are fictions... like 'witches and unicorns'; and for Cathrine MacKinnon, 'international human rights are so abstract that people who concretely believe polar opposites can agree on them on principle and give them equally to no one. Both a Stalin and a Solzhenitsyn can embrace them.' Of course, these strictures apply only to the legal positivism of the HR theory and are not meant to debunk the ideal of a humane political culture of mankind. To have misgivings about HR is therefore neither to renounce the ideal of a common humanity nor to abandon a quest for humane politics. It is, as expressed by its most cogent and passionate feminist critic, Catharine MacKinnon, 'to look beyond the legal formalism of formal equality to social consequences'. It is to realise 'that although inequality hurts individuals, it only hurts them as members of social groups.' The tragedy of Bosnia clearly shows that international guarantees of HR are no substitute for collective political struggle.
The most powerful objection to the legal formalism of the rights theory, which disregards the political and social context of the right situation and takes no notice of the communal mooring of the individual, is articulated by Leo Strauss, who says: 'Liberalism stands or falls by the distinction between state and society, or by the recognition of a private sphere, protected by law but impervious to the law, with the understanding that above all, religion as particular religion belongs to the private sphere. Just as certainly as the liberal state will not "discriminate" against its Jewish citizens, so it is constitutionally unable and even unwilling to prevent "discrimination" against Jews by individuals and groups. To recognise the private sphere in the sense indicated means to permit "private discrimination", to protect it and thus in fact to foster it. The liberal state cannot provide a solution to the Jewish problem, for such a solution would require a legal prohibition against every kind of "discrimination", i.e. the abolition of the private sphere, the denial of the difference between state and society, the destruction of the liberal state.' Unfortunately, what was once the Jewish problem, is now the Muslim problem. Liberal European states accord full citizenship rights to its Muslim population, liberal civil societies persecute them. Similarly, liberal world-order treats Muslim states as outcasts and pariahs. It is high time that we realise that HR-talk is power-talk and learn to deal with it sagaciously and pragmatically.
The moral impasse in which humanity finds itself today requires a cure far more potent than the anodyne of HR: All the men and horses of Human Rights cannot put the Humpty-Dumpty of our forlorn humanity together again. The current Charter of HR does not contain any viable solution to the problem of global injustice; it does not constitute a blue-print for a Just World-Order. Nor is any cross-cultural approach to the universalism of the HR’s ideology anything but a delusion. After all, what legitimacy does a cross-cultural dialogue carry when ‘Western’ technology and gadgetry has taken the place of religion in being the opium for the people. Unless one believes that goods do not convey ideas, or that cross-cultural dialogue is matter of trading goods not ideas, or that cultural exchange is merely a one-sided transfer, one must see the moral futility of such a ‘dialogue’ in an unjust and hegemonic world as ours. Further, the Charter of HR does not say anything about the ‘rights of humanity’ or ‘rights of nature’ because such a discourse would be subversive of the whole ethos of industrial and post-industrial society.
Utopia or Transcendence?
The greatest problem with the HR idea is that it is based on a misreading of man’s political nature. For if everyone is gratuitously assured of certain rights (privileges?), then what point is there in collective political struggle by which, our human experience shows, rights are wrested from those in power. And most virile nations would be rather donors than recipients of rights. Further, only by political action do we make history to submit to our will. Must we, then, accept the current Charter of HR as a fait accompli and be swallowed by the Western - Hegelian or Fukuyamian - myth of Weltgeschichte? Must our global morality be merely an extension of the Western Realpolitik? Or, expressed in traditional Islamic rhetoric, must the Muslim, in facing the HR tribunal, renounce his right to political struggle, to cultural and moral autonomy? To ensure the universality of the HR idea, we would need a conception of a universal Gemeinschaft of man, and not merely a global Gesellschaft of warring states. Whether such a universal human community can be erected on the contingent morality/legality of HR, or whether it requires the permanence of Divine imperative and human submission (Islam) remains to be seen.
Whatever the nature of the cynicism and political guile that vitiates the practice of HR today, Muslims need to espouse its moral and utopian aspirations. We must realise that the citizen does not live by order alone; s/he demands virtue as well. Human existence within a political society cannot be exhausted by the politics of power and utility, it also needs a 'metaphysical' infrastructure of morality and transcendence. Ironically, even the Secular City, which once revolted against tradition in the name of realism and substituted political virtue for human excellence, today prescribes a set of 'fundamental' commandments that are anything but realistic. And it proclaims a 'universal' charter of public morality that is intransigently and militantly provincial. Out of the Machiavellian bag of raison d'état jumps the utopian cat of Human Rights!
Modern conscience now demands that the state, the linchpin of all pragmatic order, submit to the dictates of a morality that is universal. It must limit the claim of legal sovereignty and restrict the authority of the general will. Both the Hobbesian Leviathan, the Mortal God, and the Hegelian Geist, God's march on earth, must bow before the sovereign individual and acknowledge his inviolability. And this goes even for the Islamic state which lays claim to the mandate of Divine Vicegerency (Khilafa). For within the moral scheme of Human Rights, the actual member of a historical community, le citoyen, is subordinate to the abstract being, l'homme. The latter alone is the full beneficiary of civil liberties. Relinquishing of the communitarian attributes, then, is a necessary precondition for the enjoyment of 'inalienable' rights!
Against the genocidal backdrop of Bosnia and Nazi Germany, the real test of the humanity of a society, the pontifical Western theory is in need of some humility. But so is the modern Islamic one, which has produced few, if any, humane ideas during the last two centuries. Away from the utopian pastures of individual rights and on the existential battlefield of politics, classical Muslim civilisation may have behaved as humanely and civilly as any other, its modern inheritors however are not following its tradition in the battle of ideas. Their discussion with the proponents of HR needs to be honest and realistic, but it must also be moral and visionary. The HR debate must not become a sermon to the already converted but must provide a forum for the moral conscience of humanity. Not only religions but also states and state-systems, not only the traditional civilisation of Islam but also the modern Leviathan of secularism, must be arraigned before the court of universal moral conscience. Such a discourse, if and when it comes to actuality, must be assured the fullest collaboration of the Islamic intellect and conscience.
S Parvez Manzoor
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