SOCIOLOGY OF RIGHTS: HUMAN RIGHTS IN ISLAM BETWEEN
UNIVERSAL AND COMMUNAL PERSPECTIVESExplores the combined social and legal perspectives of how human rights are justified by different cultures on their own terms; particularly how Muslims justify human rights.
- Description of Research
- Research-in-Progress Documents
Recep Senturk – Interview
Describe the challenges that you experienced during your research.
Deciphering the 8th century Islamic Legal Theory and translating classical texts to modern English are probably most challenging. The doctrine and terminology are not the same as modern theories although the objective of protecting human sanctity and ensuring the enjoyment of basic rights and freedom is identical.
What is the status of your research?
Currently, I am working to complete an article that will comprise approximately 25% of the work towards my other goal of publishing a book
What are your future plans for the project or for work in the field of Human Rights?
The main goal is to highlight the common grounds among religions in order to avoid conflict among them while drawing attention to universal moral and legal principles shared by all religions. I want to facilitate dialogue between inclusionists and exclusionists so that everyone will eventually realize the commonalities in religion and recognize the benefit of co-existence with different belief systems in a society. I am still working on the institutional aspect of my theory.
Along the way, has your design or idea for research changed or do you see it changing in the near future?
My ideas are evolving. I am open to changing my ideas if I am convinced otherwise. The research is a constant process; there is no dogma. Before, I focused on the theoretical but discussions with other scholars have drawn my attention to institutional perspectives.
Recep Senturk – Description of Research
My research aims to explore the possibility of grounding universal human rights in the classical Islamic legal theory. With the purpose of achieving this goal, it has to answer two interrelated questions: What makes rights possible? How can one justify universal human rights within Islamic law today?
In response to the first sociological question, I argue that a universal concept of �human,� disregarding innate, acquired, inherited and ascribed qualities, is the most important prerequisite for human rights to exist in a culture because it is the object to which rights are accorded. In the absence of this inclusive and universal category in a legal culture, exclusivist definitions of �self� and �other� emerge, reflecting religious, national, regional or ethnic exclusivism. Consequently, these type of cultures and their legal systems accord rights to their citizenry, community, or a segment of it, alone.
Does Islamic legal culture meet this criterion? The heterogeneous structure of Islamic legal tradition defies monolithic views. In the thought of some jurists from the classical period, there was indeed a universal category of human (al-adamiyyah), while some relied solely on religiously defined concepts such as Muslim and non-Muslim. I argue that only those Muslim jurists whose thoughts incorporated the concept of �humanity� (al-adamiyyah) could produce a theory of universal human rights, while this was impossible for other jurists who did not construct a universal object to which rights were to be accorded.
In response to the second legal question, I argue that, irrespective of their differences, their very existence qualifies human beings to have basic human rights, which I set in the form of a precept as: I am therefore I have rights. Building on the classical inclusive tradition in Islamic law, I claim that universal human rights are granted by birth to every one, Muslim and non-Muslim, equally and by virtue of being a human. They are not conditional, contingent, divisible or reciprocal. All human beings and communities are charged to protect their own rights and the rights of others as a legal, moral and religious duty. The legitimacy of political authority emanates from a state�s protection of human rights, which is the common goal of all legal systems worldwide and must remain so, in order for any state to enjoy legitimacy. Protection of universal human rights is the common ground and the objective of all legal systems, secular and religious, even if they are characterized by different ways of legitimizing rights.
I derive this view from a major strand in the classical Islamic law, originating from Abu Hanifa�s (d. 767) doctrine on the axiomatic relationship between �ismah and adamiyyah. We may render the concept of �ismah, though imprecisely, as sanctity and irreducible or basic human rights. Analogous to the first generation of human rights, �ismah covers the protection of life, property, religion, mind, honor and family against any intrusion by individuals, communities and states. The term adamiyyah corresponds to the modern concept of personhood and humanity. Abu Hanifa, the founder of the Hanafi School of Law, argued that sanctity, or basic human rights, are due for humanity (al-�Ismah bi al-adamiyyah). All Hanafi scholars subscribed to that position and advocated granting basic human rights universally, although the doctrine was not fully elaborated and institutionalized the way it was in the West after WWII. This tradition was implemented to a certain extent in the vast geography where the Hanafi doctrine was practiced, in such places as the Ottoman Empire, Central and South Asia. The universalistic paradigm survived until the end of the 19th century before its eclipse. For instance, Al-Miydani (d. 1881), a Syrian scholar from Damascus, wrote at the end of the 19th century that a person has sanctity by virtue of his existence (al-Hurr ma�sum bi nafsihi).
On the contrary, the founders of the remaining three Sunni Schools of Law, Malik (d. 795), al-Shafii (d. 820) and Ibn Hanbal (d. 855), lacked the universal concept of human, al-adamiyyah, and thus argued that sanctity is due for the citizenry alone by virtue of faith or treaty (al-�Ismah bi al-iman aw bi al-aman). Citizenship in the medieval Islamic context does not connote the same meaning it does under modern nation-states. For these scholars, non-Muslims, who are not the citizens of Islamic state are outside the jurisdiction of Islamic law. Therefore they have no sanctity or rights, that Muslims are responsible for protecting. The exclusivist doctrine on human rights was implemented where the aforementioned three schools reigned in such places as Andalusia, North Africa, Middle and Far East. The legal doctrines of these schools were concurrently implemented in Muslim societies throughout Islamic history, which had been characterized by legal pluralism.
This division in Islamic law reminds us the modern tension between a civil rights paradigm, which advocates rights only for the citizens of a particular state, and a human rights paradigm, which advocates rights for all of humanity. The fact that the jurists who came after Abu Hanifa still advocated an exclusivist civil rights doctrine may be seen as a regress in Islamic legal thought. In contrast, Western legal cultures evolved from a civil rights paradigm to a universal human rights paradigm during the 20th century. Most European constitutions have incorporated the human rights paradigm after WWII, while the US constitution has preserved the civil rights paradigm. Hence, occasional tensions emerge between the UN and the European perspective, on the one hand, and US policies, on the other. A recent example is provided by the debates over the establishment and jurisdiction of the International Criminal Court (ICC), from which Americans gained exemption. Strikingly, even the current political and legal scene within the US is also characterized by an analogous tension between advocates of civil and human rights. While the former group concentrates on protecting the rights of Americans, the latter calls for universal protection of human rights around the globe.
The parallelism between the ways the inclusive and exclusive social forces play their role in different ancient, modern, religious and secular settings reminds us that the tension under investigation here, between civil and human rights paradigms, is not peculiar to medieval Islam. Instead, the contest between inclusive and exclusive approaches, and the cleavage emerging from it, is a general phenomenon concerning politics of difference, found in all cultures. Therefore it needs to be explored sociologically, from a comparative perspective.
The historical practice of Muslims, however, may not always reflect the fulfillment of universal human rights, particularly regarding non-Muslims and women. The universalistic view has failed to develop institutional mechanisms to fully achieve the ideal it set before humanity. History demonstrates that the human agency variably mediates between universal values, scriptures and the laws. Therefore each generation must reaffirm the classical axiomatic relationship between universal rights and human existence by incorporating the ever-changing terminology and institutions. This is especially important today, in our globalized world.
In particular, there is an urgent need for a new Islamic philosophy of human rights, expressed in the modern legal dialect yet rooted in the commonly shared Islamic notions of justice, so as to draw greater credibility among Muslims. To this end, my query in Islamic legal tradition led me to conclude that �I am therefore I have rights.� More clearly put, my very existence qualifies me to enjoy human rights without a need to search for another ground of justification. My rights are not reciprocal or contingent, on whether I fulfill my duties; rather they are indivisible and inalienable. This theory will build upon the universalistic jurisprudential paradigm in Islam, along with the inclusive legal precedence set by previous Muslim societies from Andalusia to India, and embed them in the current language of universal human rights.
The irony is that I defend the same rights as other secular and religious advocates, but each one of us may justify them differently; our paths are diverse but our destination is the same: protection of human dignity. Local cultural resources should be mobilized to ground universally shared human rights for wider and greater compliance around the globe. This is what studying the sociology of rights may facilitate for us.
Recep Senturk – Development/Training/Networking
I advocate a “law without borders.” The basic premise of this law is: “I am therefore I have rights.” The new phase in human history neccessitates such a law. In particular, I focus on Islamic religion and law due to my affiliation to Islamic culture. Today I see a great need for a universal Islamic view on human rights. Globalization requires Muslims to adopt the universal interpretation of Islam to build peaceful and friendly relations with their neighbors in the global village. In particular, my county, Turkey, is on the way to enter the European Union. That means closer relations between Muslims and non-Muslims. Consequently, we need to assure non-Muslims that Turks, as Muslims, will perceive them as their friends and Islam will promote such a friendship as a universal religion. Also, Turkish Muslims should learn that their religion requires them to respect the human rights of non-Muslims. My research will contribute to foster friendly relations as Muslims become citizens of the globalized world and particularly as Turkish Muslims become the citizens of the European Union–if that ever happens.
At this stage, all that I can do is to get the word out. I plan to do it via writing articles, books, and other kinds of publications in English, Turkish, and Arabic. I am also considering making documentaries for TV, as a means of disseminating my universalistic view on human rights. Intellectuals do things with words. I recognize that this is not sufficient. However, at this stage, this is what I can do. Mine would be a humble contribution to the cause of human rights and to building bridges between two cultures which are on a collision course. We need more communication between civilizations in the foggy times we live in.