Third generation rights: what Islamic law can teach the international human rights movement.

• Author: Morgan-Foster, Jason

Debate over the universality of human rights has typically focused on the extent to which international human rights law differs from local cultural practices and has generally sought to resolve these differences in favor of the international paradigm. Less attention, however, has been given to arguments that the international human rights paradigm may have something to learn from non-Western legal systems. This Article focuses on one such area: the conceptualization of individual duties to the community. In conventional human rights law, rights are explicit, while corresponding duties are often implicit, controversial, and poorly theorized. In contrast, the Islamic legal tradition offers a sophisticated paradigm of common ideals grounded in individual duties. The Article argues that a reconciliation of the rights-based and duties-based paradigms is both possible and necessary to render justiciable third generation "solidarity" rights, such as the right to development, the right to a healthy environment, and the right to peace.

1. INTRODUCTION

   The question of the universality of human rights norms has challenged scholars and commentators for decades. (1) It is a highly important question from a pragmatic standpoint, because human rights are sure to be ignored if they are not culturally relevant. (2) Because cultural legitimacy is so crucial to compliance, efforts to engage local and international law in the effort to seek universal values should be applauded. Not only will the end result be more culturally legitimate, it will also be more complete, benefiting from the combined wisdom of all legal systems and making international human rights more applicable and appealing to every society.

   This Article analyzes one area where efforts to find universal human rights values should begin with the teachings of non-western legal systems: the importance of individual duties to the community. In human rights law, rights are explicit, while corresponding duties are implicit, controversial, and poorly theorized. In several other legal, ethical, and religious systems--such as Islamic law, Jewish law, Christianity, Hinduism, and Confucianism--the reverse is true. (3) Because the rights-based perspective and the duties-based perspective form such fundamental paradigm-establishing assumptions in their respective legal cultures, it is not easy to reconcile the two approaches into a universally acceptable international theory. This Article argues that such reconciliation is possible, however, within the so-called "third generation" of human rights--such as the right to development, the right to a healthy environment, and the right to peace--because these rights include both an individual right and individual duty component. Until now, the individual duty component of third generation solidarity rights has been de-emphasized by international human rights commentators. Examining Islamic notions of third generation solidarity rights, this Article finds a very different interpretation of their nature, one which specifically emphasizes their individual duty component. Not only can this add to our understanding of third generation solidarity rights, the strong presence of these rights in Islamic law can also contribute positively to the debate on the universality of human rights.

   Although multiple scholars have discussed the importance of individual duties in local and regional legal traditions, (4) including several examinations of the role of duties in Islamic law, (5) no scholar has examined the potential of Islamic conceptions of duties to influence our understanding of international human rights law in the context of the debate on the universality of human rights. In fact, the vast majority of comparative scholarship on Islamic law and international law never leaves the defensive paradigm at all, content to defend Islamic law against an international standard, rather than promote the adoption of Islamic legal precepts in international law. In her seminal book on Islam and human rights, Professor Ann Mayer notes that "[q]uestions of Islamic law are only occasionally mentioned in scholarly writing on international human rights--for the sake of comparison with the international norms or to illustrate the problems of introducing international norms in areas of the developing world." (6) This Article, on the other hand, asks what Islamic law can teach the international human rights movement, particularly in the area of individual duties. By attempting this goal, it will help make the case that, as the international human rights movement progressively recognizes the importance of human duties, a core shared universal norm will develop with local (i.e., non-Western) tradition as its roots.

   In Part II, I survey the theoretical underpinnings of the universality debate, focusing on the differences between universalism, moderate cultural relativism, and my theory of reverse moderate relativism (RMR). In Part III, I discuss the role of individual duties, beginning with a discussion of the relationship between duties and rights. After tracing the historical presence of duties in Western political theory--which held sway from ancient Greece through to at least the eighteenth century--I argue that duties have essentially disappeared from the modern human rights paradigm. I conclude Part III by contrasting Islamic law, which exhibits an unfaltering emphasis on duties both historically and in its current practice.

   In Part IV, I examine the rebirth of individual duty in the international human rights (IHR) paradigm as a component of third generation solidarity rights such as the right to development, the right to a healthy environment, and the right to peace. Contrary to the concept of correlative duties, which exist outside of and complementary to the right, third generation solidarity rights make individual duty one of the components of the right itself. Despite this apparent breakthrough, the individual-duty component of third generation rights has been de-emphasized. By examining Islamic notions of third generation solidarity rights, I practice a substantive form of RMR, showing that while duty is a new and fragile part of third generation solidarity rights in their international conception, the Islamic view of these same rights is wholly based in duties. I then briefly answer some of the major criticisms regarding third generation solidarity rights. In Part V, I attempt a methodological form of RMR, transposing elements of the Islamic duties paradigm to human rights law. After an overview of the complex Islamic jurisprudence of duties, I suggest several possible areas where the Islamic duties model could enlighten international human rights theory. Although such a transposition is particularly relevant to third generation solidarity rights, it should prove useful to all human rights.

2. THE UNIVERSALITY DEBATE AND REVERSE MODERATE RELATIVISM (RMR)

   The question of the universality of human rights norms has challenged scholars since the Universal Declaration of Human Rights of 1948, and efforts to formulate a jurisprudence of rights valid for all of humanity are considered laudable by some, offensive to others. Such efforts take three different forms. At one extreme, universalists argue that all human rights are applicable in all cultures, (7) an untenable stance because it eliminates the tensions between various cultures by simply ignoring them. At the other extreme, strict cultural relativists believe cultural variation is so great that no universally shared norms of any kind exist. (8) A third approach is offered by the moderate cultural relativists, who accept cultural differences but still strive to find a core group of universal norms. (9) In the area of Islamic law, moderate cultural relativism is best represented by the outstanding work of Professor Abdullahi Ahmad An-Na'im on interpreting Islamic textual sources (the Qur'an and Sunna) consistent with international human rights norms. (10) Moderate cultural relativists such as An-Na'im have accepted equality as a core right shared across cultures, and their work analyzing equality of the sexes, (11) equality of religious groups, (12) and other areas (13) in Islam has been extensive, certainly controversial, (14) but in my view highly valuable. Similarly, the practical effects of moderate cultural relativism are evident in the momentous legal and political efforts to reinterpret Muslim status law consistent with human rights instruments, first in Tunisia a half century ago, and currently in Morocco. (15)

   Concurrent with these laudable efforts, however, another discourse is also warranted. As scholars continue to analyze, influence, and advocate for a legal shift towards an international standard in some areas, such as women's rights, there should be a concurrent dialogue examining the extent to which international human rights law can or should move towards a more Islamic standard in other domains. This opinion is advanced by An-Na'im in his later work, noting that the human rights movement cannot be effective "so long as there is a perception of exclusive Western authorship of the concept of human rights and its normative implications." (16)

   In a previous work, I therefore proposed a new theory, reverse moderate relativism (RMR). Like moderate cultural relativism, RMR also seeks to develop a core set of shared rights concepts across cultures, but it does so "in reverse." Whereas moderate cultural relativism makes IHR law the neutral benchmark towards which other legal traditions should gravitate in the creation of universally shared norms, RMR explores other non-dominant legal systems as potential neutral benchmarks to be achieved by IHR law in select areas. (17) Without necessarily claiming any past causative link between non-dominant legal systems and the development of international law, (18) reverse moderate relativism rather is concerned with future development of...