Michigan Journal of International Law Volume 15 Issue 2 1994 Universal Versus Islamic Human Rights: A Clash of Cultures or a Clash with a Construct? Ann Elizabeth Mayer Wharton School of the University of Pennsylvania Follow this and additional works at: https://repository.law.umich.edu/mjil Part of the Civil Rights and Discrimination Commons, Human Rights Law Commons, Law and Gender Commons, and the Religion Law Commons Recommended Citation Ann E. Mayer, Universal Versus Islamic Human Rights: A Clash of Cultures or a Clash with a Construct?, 15 MICH. J. INT'L L. 307 (1994). Available at: https://repository.law.umich.edu/mjil/vol15/iss2/1 This Article is brought to you for free and open access by the Michigan Journal of International Law at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Journal of International Law by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. UNIVERSAL VERSUS ISLAMIC HUMAN RIGHTS: A CLASH OF CULTURES OR A CLASH WITH A CONSTRUCT? Ann Elizabeth Mayer* INTRODUCTION ................................................. 308 I. CONSTRUCTS OF ISLAMIC PARTICULARISM ON HUMAN RIGHTS .................................. 309 A. Conflicts Over Human Rights: A Clash of Cultures? .... 309 B. The Islamic Legal Heritage and Human Rights ......... 321 C. Formulationsof Islamic Alternatives to the International Bill of Human Rights ..................... 324 II. ISLAMIC HUMAN RIGHTS: Two NEW CONSTRUCTS .......... 327 A. The 1990 Cairo Declaration on Human Rights in Islam .............................................. 327 1. Equality of W omen ................................ 329 2. Freedom of Religion ............................... 333 3. Freedom of the Press .............................. 335 4. Freedom of Assembly and Association ............. 337 5. Democratic Freedoms .............................. 337 6. Crim inal Justice ................................... 339 7. States of Emergency ............................... 343 8. Prohibition Against Genocide ...................... 344 •9. Right to Security and Privacy ...................... 344 10. Prohibition of Colonialism and Slavery ............. 346 11. Sum mation ........................................ 347 B. The 1992 Basic Law of Saudi Arabia .................. 350 1. Freedom of Religion ............................... 356 2. The Imposition of "Islamic" Limitations on Hum an Rights .................................. 358 3. Crim inal Justice ................................... 359 4. Rights of W omen .................................. 360 5. Freedom of Speech and Expression ................ 360 6. The Right of Equality and Equal Protection ......... 361 • Associate Professor of Legal Studies, Wharton School of the University of Pennsyl- vania. University of Michigan, B.A. (1964); University of Pennsylvania, J.D. (1975); Univer- sity of Michigan, Ph.D. (1978). The author wishes to thank Aziz Abu Hamad and Penny Parker for their kind assistance in obtaining materials for this article. Michigan Journal of InternationalLaw [Vol. 15:307 7. The Failure to Endorse International Law ........... 362 8. Summation ........... .................... 363 III. DECONSTRUCTING THE CONSTRUCTS ....................... 364 A. Dissident M uslim Voices ............................... 364 B. Universality versus Cultural Relativism at the Second World Conference on Human Rights .................. 371 C. Western Visions of a Monolithic "Islam:" Orientalist Stereotyping and Cultural Relativism .................. 379 D. The Dissent of Iranian and Saudi Women: Political Protest or Cultural Treason? .......................... 389 C ONCLU SION ................................................... 402 INTRODUCTION This article examines the recent trend proposing that Islam and Islamic culture mandate a distinctive approach to human rights. It offers critical assessments of selected civil and political rights in two recent products of this trend: (1) the 1990 Cairo Declaration on Human Rights in Islam, issued by the Organization of the Islamic Conference and endorsed by Iran and Saudi Arabia; and (2) the rights provisions in the Saudi Arabian Basic Law promulgated in 1992. These legislative initia- tives will be examined in conjunction with constructs' of an Islamic culture necessarily at odds with international human rights norms. These constructs have been put forward not only by Westerners influenced by Orientalist stereotypes or attracted to a cultural relativist approach to rights questions, but also by spokespersons for Muslim countries such as Iran and Saudi Arabia. Both Iran and Saudi Arabia have been in the forefront of the campaign to persuade international opinion that Islam mandates a distinctive approach to rights issues. The constructs of Islamic rights that have been offered by Muslims who reject the universality of civil and political rights - set forth in the International 1. Constructs are hypothetical categories with "heuristic or interpretive value even though they do not purport to describe accurately any observable reality." They include: "Ideal or constructed types that combine selected variables in order to focus attention upon common elements in diverse concrete situations or to provide an heuristic device for examining relationships among the selected variables." A DICTIONARY OF THE SOCIAL SCIENCES 123 (Julius Gould & William Kolb eds., 1964).The dictionary warns against misusing constructs: "When employed self-consciously and critically, constructs constitute a legitimate and frequently invaluable device for analysing and explaining human behavior. When used without a clear identification and awareness of their nature as hypothetical categories, they may be reified and confused with 'reality,' i.e. observable phenomena." Id. The authors of the constructs of "Islam," "Islamic culture," and "Islamic civilization" that are criticized in this article seem not to have heeded this warning, treating their constructs as if they corresponded to real world categories. Witer 1994] Universal versus Islamic Human Rights Bill of Human Rights - will be contrasted with the views of Muslims who advocate the universality of human rights and who are inclined to view governmental rights policies as deriving from political, and not cultural, considerations. An examination going beyond the official rhetoric about Islamic human rights reveals that there is no real con- sensus on the part of Muslims that their religion mandates a culturally distinctive approach to rights or that it precludes the adoption of interna- tional human rights norms. In fact, the relationship of Islamic culture to the positions that Muslims inside and outside governments are currently articulating on human rights is neither a simple nor a direct one, and the range of Muslims' attitudes on human rights defies Orientalist stereotypes and facile generalizations about a supposedly monolithic Islamic culture. Part I of this article summarizes the recent debate over universal versus culture-bound human rights, provides a brief review of the role of human rights in the Islamic legal tradition, examines how Islamic ele- ments have been combined with international human rights principles, and discusses the recent trend to promulgate Islamic human rights schemes. Part II analyzes and compares two recent legislative initiatives espousing supposedly Islamic approaches to human rights - the 1990 Cairo Declaration and the 1992 Saudi Arabian Basic Law. Part III examines the perspectives of some Muslim human rights dissidents, con- trasting their views with official pronouncements by Muslim govern- ments at the 1993 Vienna Human Rights Conference. An analysis il- lustrates how Western Orientalist and cultural relativist views of the impact of Islamic culture on human rights correlate with these govern- mental positions and disregard dissenting Muslim opinions, relying instead on stereotypes of a monolithic Islamic culture that is inimical to modern human rights. Finally, Part III.D examines the way religious and cultural pretexts for Iranian and Saudi policies maintain the subjugation of women and obscure the real political conflicts over women's role in society. I. CONSTRUCTS OF ISLAMIC PARTICULARISM ON HUMAN RIGHTS A. Conflicts Over Human Rights: A Clash of Cultures? A prestigious Western scholar has recently added his voice to the ongoing debate about whether human rights are distinctively Western and fundamentally discordant with Islamic culture. In an article in Foreign Affairs, Samuel P. Huntington (head of the Olin Institute for Strategic Studies at Harvard University) links the international debate over whether Michigan Journal of InternationalLaw [Vol. 15:307 human rights are Western, and thus unsuitable for nonWestern cultures, to a broader cultural conflict.2 He claims that in the current phase of world politics, "the dominating source of conflict will be cultural."3 He further argues that Western concepts "differ fundamentally from those prevalent in other civilizations." Among these "Western concepts," he includes: individualism, liberalism, constitutionalism, human rights, equality, liberty, the rule of law, democracy, free markets, and the separation of Church and State, which he asserts "often have little resonance" in nonWestern cultures.4 Because of the centrality that Huntington accords to religion as a determinant of culture in Muslim countries, he posits an "Islamic"