Maslaha and Maqasid al-Shari‘a

Other Muslim legal scholars have charged scholars like Abou El Fadl and An-Naʾim as being too conciliatory toward western normative legal traditions in their constructions of human rights. Mashood Baderin, in International Human Rights and Islamic Law, argued for the necessity of the Islamic principle of maslaha for (p. 829) realizing human rights in the Islamic world. In this work he maintained that the sources and methods of Islamic law can be fruitfully employed in contemporary human rights discourse. As an interpretive strategy, maslaha refers to the idea of public interest in relation to the law (shari‘a): divine law should be understood as benefitting humanity. In relation to human rights, some Islamic scholars have invoked the principle of maslaha in the context of maqasid al-Shari‘a (goals and purposes of the law) in order to talk about human rights as a tradition that has strong compatibility with the Islamic tradition Tafsir al ahlam.

Baderin criticized scholars like Mayer and An-Naʾim of being too uncritical of international law as a western construct, and yet he also expressed skepticism of human rights violations in Muslim majority states that have been justified, however weakly, in the name of Islamic law. Baderin views the interpretive principle of maslaha as a way to avoid the pitfalls associated with each approach: “Through mutuality and accommodation, the legitimizing force of Islamic law in many Muslim States can be positively utilized for the enforcement of international human rights law in the Muslim world.”18

In making the case for a maslaha approach to human rights, Baderin did not attempt to resolve long-standing disagreements between western and Islamic countries on matters concerning either gender and the family or the treatment of religious minorities. Regarding gender and the family, Baderin restated certain modern Islamic arguments by asserting ontological equality between women and men, found in the Qur’an, but differed in emphasizing their complementary roles in the family and wider society. As for the treatment of minorities, Baderin cited the Qur’anic injunction not to discriminate based on race or ethnicity, but not necessarily on religion. In Baderin’s work, we can discern traces of Mawdudi’s arguments, as well as the technique of turning to the Qur’an directly for guidance. Importantly, Baderin does not seem to share Mawdudi’s conviction that the Islamic state is the best vehicle for the implementation of shari‘a principles. Rather, Baderin has endorsed a kind of legal pluralism wherein Muslims can draw from religious principles in shaping their legal and social arrangements.

Anver Emon offered important criticisms of the recourse to maqasid al-Shari‘a as a strategy employed by modern reformists. In Islamic Natural Law Theories, Emon showed that in the context of debates about the relationship between revelation and human reason, premodern jurists used the principle of maqasid al-Shari‘a to argue for restricting the use of human reason.19 Moreover, Emon has maintained that modern Muslim reformers should take into account the original context of maqasid al-Shari‘a, which includes metaphysical presumptions about Islamic natural law theory. He argued, “To cover up and perpetuate those presumptions may (p. 830) inadvertently limit the effective use of that model in a new historical moment when such presumptions are vulnerable to critique in light of prevailing theories of knowledge, philosophies of law, and theories of government.”20 It is thus important for Muslim reformers to consider the historical context in which maqasid al-Shari‘a developed and the historically specific (premodern) problems to which the theory responded. Emon’s critique implies that any modern appropriation of maqasid al-Shari‘a must account for substantial differences in modern epistemology and politics.

IV. Freedom of Religion

As mentioned previously, the Saudi delegate Baroody contested the right to freedom of religion during the drafting and adoption of the UDHR, as did later Islamic organizations that drafted human rights treaties. An enduring question for many scholars in the Muslim world was whether freedom of religion meant the right to change belief. In the context of Islamic human rights discourse where the shari‘a is assumed to be a complete basis for human rights, a conception of freedom of religion is construed as freedom to follow Islam. Article 9 of the Cairo Declaration stipulates that the state is required to allow for education (enumerated, albeit differently, in UDHR Article 26), specifically education in becoming acquainted with the religion of Islam. Article 10 of the Cairo Declaration states that: “It is prohibited to exercise any form of pressure on man or to exploit his poverty or ignorance in order to force him to change his religion to another religion or to atheism.” The combined language from Articles 9 and 10 addresses the concern about missionary conversions of Muslims, but also shows the influence of Islamist arguments, initiated by thinkers like Sayyid Qutb, that people should have the freedom to follow Islam.21

Just as there is no one Islamic perspective on human rights, there is no singular Islamic perspective on religious freedom. In an essay on Islam, freedom of religion, and the UDHR, John Kelsay noted the pervasive influence of Wahhabism on Baroody’s arguments as the Saudi delegate. Twentieth-century Wahhabi doctrinal beliefs assert the primacy of God’s revelation and the state’s role in propagating the (p. 831) truth of Islam.22 Kelsay demonstrated that the association of true religious belief with state power made it difficult, if not impossible, for Baroody to assent to Article 18 as it had been drafted. (Baroody’s objection may also have stemmed from a concern about the historical reality of colonial Christian missionaries in traditional Muslim lands.)23 For other Muslim delegates, there were concerns about apostasy from Islam. There was diversity among Muslims on this point, however: another Pakistani delegate, Khan, argued that Islamic sources could support Article 18 as drafted.

Some scholars have identified a Protestant bias in American practices of church–state separation, which they argue has framed in normative and hegemonic terms the way that we understand rights as involving freedom of religion. Critical theorist Talal Asad argued that human rights discourse is emblematic of the modern western state’s massive power. He maintains that because rights are, as a category, subject to conflicting interpretations, all discourse about them is “a matter of domination rather than negotiation.”24

Following Asad, Peter Danchin questioned the neutrality of the modern democratic state vis-à-vis religion and criticized the conception of individual moral rights upon which practices of establishment and disestablishment rest.25 The state promotes a normative view of freedom that, in Danchin’s argument, is too bound up with bifurcating the secular public sphere and private religious sphere. Danchin, like other critics of secular human rights discourse, disagreed with argument that the current human rights framework is “neutral” enough to accommodate diverse expressions of religion.

Thus, the matter of religious freedom both in the Muslim world and elsewhere continues to be the subject of debate. Asad’s and Danchin’s respective works reflect a postcolonial critique of western hegemony in international human rights concepts, both in terms of the genesis of the discourse and what they perceive to be the thinly disguised interests of the modern state. But historical evidence demonstrates that not all Muslims are suspicious of a concept of religious freedom, and in fact, many support it as a human right. To return to An-Naʾim’s argument, the right to freedom of religion is not a trivial matter, insofar as ideally it protects the individual from the (p. 832) imposition of the state’s religious or non-religious ideology and from the imposition of religious norms and practices of dominant groups within a society. A central focus of the UDHR and international covenants is the protection of the individual. Although the ideal of state neutrality vis-à-vis an individual’s religious beliefs and practices may never be perfectly realized—as the state has an interest in creating a certain kind of subject—the constitutional separation of state power from institutional religious authority has historical credibility.

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