A waterspring in the desert: advancing human rights within Sharia tribunals.

Author:Yost, D. Andrew

    By now, tragic tales of inhumane punishment and inequity imposed by Sharia tribunals are common lore in the West: a thirteen-year-old rape victim stoned for her "crime," the exclusive right of a husband to immediately divorce his wife with a mere utterance, and the grotesque decapitation of non-Muslims. (1) There is no doubt that such tragedies constitute clear violations of human rights in almost any philosophical schema. (2) But is a complete moratorium on religious arbitration the only way to end these heinous acts and to advance human rights? (3) Might religious courts simultaneously provide a conduit for furthering the international human rights agenda, preserve important cultural norms, and act as agents of reform? (4)

    Drawing on Richard Rorty's theory of sentimental education, this Note will argue that religious arbitration in general, and Sharia courts in particular, offer potentially fertile ground for the advancement of human rights. (5) Part II of this Note surveys the jurisprudence and structure of Sharia tribunals. (6) Part III of this Note outlines two major theories of human rights justification. (7) Part IV of this Note will analyze whether contemporary Sharia courts might serve as effective media to advance liberal notions of human rights and will suggest some litigation strategies for doing so. (8) Finally,

    Part V of this Note concludes that religious courts are uniquely equipped to both further human rights and simultaneously respect important cultural norms. (9)

  2. FACTS

    1. The Evolution of Sharia

      According to sacred history, Islam began in 610 C.E. when the Prophet Muhammed received his initial revelation from Allah and established the first umma, or Muslim community, united by Islamic values, including the nascent Sharia law. (10) Muhammed's eventual death brought much turmoil regarding the successive leadership and religious trajectory of the umma. (11) While the early community agreed that the Prophet's sacred recitations, the Quran, and his living example should guide the shaping of communal values, there was disagreement about what the Quran and Muhammed's actions actually meant. (12) From the seventh to the tenth century, Islam participated in a process of institutionalization whereby the ever-expanding umma debated, interpreted, and solidified their understanding of the teachings of the Prophet and the Quran. (13) Around the eleventh century, competing groups of ulama, or learned religious scholars engaged in Quranic interpretation, began to "crystallize into legal institutions endowed with the binding authority of Allah's law" and formed the basis for the four major schools of Sharia (14) Post 9/11, Sharia has fallen under close scrutiny for its frequent failure to uphold internationally accepted human rights norms. (15) Indeed, many states, particularly Western liberal ones, question the degree to which their commitment to tolerance and religious freedom obliges them to accommodate Sharia law, if at all. (16)

    2. Sharia Jurisprudence

      Unlike much of post-Enlightenment, liberal jurisprudence, Sharia legal philosophy, or fiqh, is not reducible to a set of canonized laws governing individual and social action, but emerges from the sacred interplay of divine and human activity.* 17 As a result of this religious element, Sharia jurisprudence is generally thought to draw upon five principles for interpretation: the Quran ("the divine Revelation of Allah recited by Muhammed"), the Sunna ("the Prophet Muhammed's living examples"), qiyas ("reasoning by analogy"), ijma ("the learned consensus of Muslim scholars, or ulama"), and at least until the tenth Century, Ijtihad (independent juristic reasoning). (18) Among these principles, the Quran is the most important. (19) However, because the Quran itself represents a process of revelation where prior verses may have been later abrogated in favor of subsequent revelations, and because the revelations themselves ceased after Muhammed's death, the Islamic community continues to interpret the meaning of the Quran guided by the other four principles. (20)

      The Sunna, or the oral tradition recounting the Prophet Muhammed's living examples, is considered a sacred source in Sharia jurisprudence and holds a special place in the hierarchy of legal interpretation. (21) Where the Quran and Sunna are silent on an issue, the limited use of qiyas may supplement Sharia jurisprudence. (22) More importantly, the ijma plays a central role in juristic decisions insofar as the ulama commonly represent the governing body in most Sharia courts and thus their consensus in many ways constitutes binding law. (23) Finally, the contentious use of ijtihad, which for the most part has been closed off in Sharia courts, may allow for the issuance of a single, scholarly opinion regarding a challenging legal issue not yet resolved by the four other principles. (24) While these basic modes frame the method in which Sharia courts arrive at judicial decisions, by their very nature they result in myriad interpretations as to what is "just" in any situation. (25) Therefore, several extra-Sharia factors will also influence the legal philosophy of Sharia courts, such as the geographical location of the court, whether its rulings are state-sanctioned, and who constitutes the ulama overseeing the hearing. (26)

    3. Sharia Courts

      Sharia courts take several different forms, depending on their location and the nature of the society in which they arise. (27) In the Middle East, where historically the judicial ulama, and not the executive caliph, carried out Sharia proceedings, most contemporary Islamic societies have unified executive and judicial authority in one body or representative. (28) As a result, the once-influential scholarly community that traditionally presided over the vast jurisdiction of Sharia courts has been relegated to much narrower jurisdiction, such as family law or civil law, leaving major legal decisions in the hands of political leaders. (29) Western Sharia courts usually function as a parallel legal system that is subject to the state's constitution. (30) In most cases, Sharia courts include a panel of Sharia-educated judges who hear such cases and craft judicial opinions that may or may not be enforced depending on the state in which the court presides. (31) In most Middle Eastern Sharia courts, the rulings are binding and enforced, but in the West, only when the litigants have freely agreed to the court's jurisdiction are Sharia decisions considered practically binding, though not always state-enforced. (32)


    1. Human Rights Jurisprudence and Philosophy

      The concept of human rights has been ruminating in Western philosophy since Ancient Greece. (33) Examining the broad scope of contemporary human rights philosophy is helpful for understanding the nexus of Sharia law, the Islamic Reformation, and human rights in religious tribunals. (34) While there are several theories on the source and scope of human rights, a broad brush stroke can reduce them to two basic schools of thought: foundationalism and anti-foundationalism. (35)

      1. Foundationalism

        A foundationalist view of human rights argues that human rights are universal moral maxims rooted in a unique, transcultural, human quality or principle that binds all people to certain moral obligations. (36) This quality is a kind of "human nature," such as a soul, rationality, sentience, or inherent dignity. (37) Despite the name, each postulate attempts to ground a moral justification in an independent truth giving rise to moral intuitions and forming the basis for laws and universal human rights. (38) Indeed, it is by coming to know the nature of human beings that one may justify a codified moral principle or law and require specific behavior from others. (39) Thus, enforcing human rights, according to the foundationalist, is a matter of protecting that principle through either positive or negative rights. (40) Historically, Western traditions (including Islam) have assumed a foundationalist theory of moral obligation, often codifying these obligations as law. (41)

        Foundationalist modes of persuasion most frequently use syllogism, logic, and formal reasoning to achieve their ends. (42) It is in the sound and valid argument upon which the foundationalist rests her conclusion, and where she expects her opponent to be most fully persuaded. (43) Foundationalist reasoning might be understood as "reasoning by logic," insofar as it employs necessary and sufficient conditions and formal logic to convince others to adopt a conclusion. (44) In the end, the foundationalist endeavors to construct a logically compelling argument that leads to the necessary conclusion that human rights are indeed predicated upon a fundamental principle, one that cannot be undermined by emotive appeals. (45)

      2. Anti-Foundationalism

        Anti-foundationalists like Richard Rorty assert there exist no such morally relevant transcultural facts or distinctive human nature. (46) Instead, what we call "human rights" are culturally influenced intuitions framed as generalizations and utilized to shape the kind of world in which we want to live. (47) Anti-foundationalists argue that this is enough, that the human rights culture should end its search for the ever-elusive human nature and focus its efforts on manipulating sentiments. (48) Sentimental education is the most efficient and powerful means by which one can convince another to act according to a moral ethos, such as human rights. (49) In fact, human rights violations occur not because of a disregard for the rights of other humans, but because violators see their victims as inhuman. (50) For this reason, anti-foundationalists see the calling as a rhetorical challenge where human rights are advanced by sentimental manipulation: a process of convincing human rights violators that the inhuman "other" is actually human, just like them. (51) This "progress of sentiments" is a...

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