A western question to the Middle East: 'Is there a human rights discourse in Islam?'

• Author: Strawson, John

Arab Muslim rulers . . . transformed an unsophisticated tribal polity into one of the most sophisticated and durable kinds of rule, that of oriental despotism, the methods and traditions of which have survived in the Muslim world to the present day.(1)

As Palestinian society enters into the world community through the difficult re-birth of the Oslo process, it begins to feel the glare of the human rights monitors. In the two-and-a-half years since the creation of the Palestinian National Authority, Palestine has been subject to intense human rights interest. In this time Amnesty International has published four reports(2) and the country has been visited by many 'human rights missions.' In the same period Western aid organizations have launched projects to promote human rights and democracy usually staffed by Europeans and North Americans. From all this one might conclude that Palestine needs to be taught about democracy and human rights.

In its latest report Amnesty International "urges that the Palestinian Basic Law should be approved by the Palestinian Authority and passed as soon as possible by the Legislative Council and that human rights guarantees will be respected."(3) This demand is addressed to a legislature which had been established barely eleven months previously and which has a mountain of work before it - establishing the legislative framework for every area of Palestinian life. It also has to deal with the continuing realities of Israeli occupation, including the restrictions on travel for citizens and officials between areas controlled by the Palestinian Authority. Amnesty International demands that the Palestinians adopt a basic law in months whereas the address of the letterhead, the United Kingdom, has failed to adopt any similar instrument some 350 years after the English revolution.

In the debate about the development of civil society and human rights, it becomes clear the West retains its right to review and to comment upon the Middle East in colonial terms. The premise remains that due to the essential characteristics of the Islamic Middle East, despotism is inevitable without the intervention of Western ideas.

Amnesty International is not alone in its unreasonable demands placed on the Middle East. British lawyers on an earlier expedition revealed their attitudes toward the Middle East while inspecting Gaza and Jericho.(4) At the time the Palestine National Authority was merely six weeks old, yet they expected a basic law. The lawyers complained that although they were told about the existence of a 1962 Constitution for Gaza, they had "not been able to obtain a copy in English."(5) In Jericho, "the town contains a dusty square, with money changers and some small shops." They were "greeted by Brigadier Haj Ismail, a veteran of the Lebanese conflict, who is a tall man with penetrating eyes and brusque, perhaps overbearing, military manner, as was well as by another, more rotund and affable Palestinian commander, Brigadier Sa'adi Najj."(6) These passages, written not in 1894 but in 1994. It is curious that these British lawyers might think that their report would have any real engagement with either of the 'overbearing' or 'affable' Palestinian officials. It is also odd that the English legal profession should entrust such a mission to people who are so unfamiliar with the area that they expect legal documents to be English.(7)

The West has seized the grand-stand seat of international order and from its position surveys the world with an imperial eye. In fixing its gaze on human rights, the West divides the world into the viewed and viewers, the monitored and the monitors. The cause of international human rights has spawned numerous investigative organisms, some sponsored by the United Nations, many semi-official, which draw up reports on the human rights records of other countries. These are the mechanism through which the target is viewed. At the same time the human rights movement has been appropriated by the West as its own. In looking outward at the world, the West has honed human rights into a particular tool for vision. The Islamic Middle East is frequently in its sights. This essay argues that a review of the literature of this area reveals the persistence of Orientalism which obscures and frustrates any discussion of human rights.

The end of the Cold War has created considerable discussion on the direction of international and national societies. The end of bipolarism has been met with a series of responses which include a celebration of the end of ideology(8) and a search for new conflicts.(9) Within Western liberal circles there has also been a trend to use the situation to declare a victory over communism and to project a generalization of liberal democratic models.(10) In each case Western evaluations of the outcome of the Cold War reveal the dominant postcolonial world order. In the projection of a New World Order the supervising role of Western ideas and institutions appears strongly rooted in a belief that ready made truths can merely be conveyed to the ignorant and wayward. The rise of Islam as a political movement has convinced the West that its mission is not yet over, seeing Islam as inevitably opposed to democracy, pluralism and human rights. This response replicates colonial relationships and misses the opportunity of a historical juncture which offers the possibility of a new, universalist, engagement between human cultures. The construction of new models of human societies with the human being at the center requires us all to appreciate our location in order to begin that process.(11) The opportunity for a new phase of discourse in international relations, political science and cultural studies requires that we reach beyond the referential 'colonial other.' An engagement with the Islamic discourse on human rights can enrich the human rights discussion.

Western discourses on human rights have become increasingly bold during the last two decades in claiming an exclusive Western heritage for human rights, which, it is argued, is located in 'Western civilization.' According to this outlook the 'West' was born in classical Greece, progressed through ancient Rome, bypassed the Catholic Church but linked with Kant, the European Enlightenment, the French and American Revolutions, all of which produced the United Nations and the Universal Declaration of Human Rights.(12) In this account, Hegel, Marx, Engels and Lenin are optional extras depending on your political outlook. Within this perspective the Crusades, the inquisition, colonialism, slavery, fascism, Stalinism and the holocaust are absent.

Non-western societies are constructed as backward in that they are portrayed as traditional, rural and static. Within this framework the West's image of Islam as an unchanging and unchangeable religion fits well. While some leading Western scholars accept that human rights concepts have not existed "even in the western tradition until rather recently,"(13) most, nevertheless, argue that their origins are contained within the European discourse. Nearly all are united on the proposition that there is little basis for an understanding that such concepts could lie in the intellectual lineages beyond the West.

Islamic societies have long been characterized by Western scholars as held under the thrall of oriental despotism.(14) As a result, it appears to them as an obvious fact that rights cannot exist in such a society. Some current writers concerned with the issue of Islam and human rights, (Jack Donnelly, Bassam Tibi and Ann Mayer) base their work within this perspective. They have developed a series of detailed objections to Islam possessing a human rights discourse on four grounds: (1) Islamic law, as it is divine is static; (2) there is an anti-individualism in Islam which is contrary to the idea of human rights; (3) Islam thinks in terms of duties and not rights; and (4) human rights can only exist in a positive and modernist legal system. In constructing these arguments they stand in a tradition of legal Orientalism which grew out of the Eighteenth Century experience of colonialism.(15) Edward Said argues that Orientalism is built through European intellectual judgment taking a 'superior location'(16) made available by European power.

During the high point of colonialism, Europeans saw Islamic law as flawed due its connection with a false religion, today it remains flawed due to its alleged rejection of human rights. What remains consistent is the right of Europeans (and the West in general) to take the authoritative view. Since the Eighteenth Century, Islamic law has become the subject of a positivistic construction by European scholarship and colonial administrations, some of the results of which have entered into Islamic scholarship itself. Legal Orientalism has developed through a process of the selection of elements of Islamic law. This process of selection has defined the scope of Islamic law and has influenced the development of a normative system. The strength of legal Orientalism, and indeed its utility during the period of colonialism, lies in the fact that only genuine sources of Islamic law were drawn on. Modern western scholars follow this approach which adds authenticity to their work in both the West and the Islamic world. The reason this has been successful is due to the character of Islamic law itself and its scriptural heritage.

Ann Mayer in her book, Islam and Human Rights,(17) rightly points out that it has a title which people "tend to consult when looking for material on human rights in Muslim countries."(18) Since its first edition in 1991, it has come to occupy an authoritative place in the field. The methodology of the work reflects the process that I have described above in which a combination of silence and selectivity of Islamic sources serves to build an argument that there is a culture-based resistance to human rights in Islam.(19)...