Islam and human rights: Beyond the zero-sum game
3 Jun 2013
By Abdullahi Ahmed An-Na'im
Abdullahi Ahmed An-Na'im is the Charles Howard Candler Professor of Law at Emory University School of Law. His most recent books are Islam and the Secular State: Negotiating the Future of Shari'a and Muslims and Global Justice.
In view of the history and current realities of Islamic societies around the world, we should expect to see - and in fact do see - a significant range of views about human rights, rather than any kind of uniformity that might follow from preconceived notions of Islam and Muslims.
Profound political and theological differences have divided Muslims from the beginning in the Arabia of the seventh century, leading to civil wars over issues of political power within a few decades of the Prophet's death. What came to be known as Shari'a gradually evolved during the first three centuries of Islam through human interpretations of the Qur'an and Sunna of the Prophet. That process was characterized by diversity of opinion among various schools of Islamic jurisprudence (madhahib) of the Sunni and Shi'a traditions, each according to its own methodology of usul al-fiqh (the science of sources or foundations of Islamic jurisprudence).
The established methodology of usul al-fiqh in that formative stage applied such techniques as reasoning by analogy (qias) and consensus (ijma) to develop a systematic corpus of Shari'a principles out of the texts of Quran and Sunna. When those textual sources were silent on a specific issue, the founding jurists of Shari'a exercised their independent juridical reasoning (ijtihad).
Whatever the situation may have been in various parts of the Muslim world through the centuries, Shari'a principles were effectively displaced by European legislation and enforcement of positive state law during the colonial period in all fields except family law. Those colonial legal systems were generally continued by the new "nation states" with Muslim-majority populations after independence, with minor adjustments along similarly secular lines. There was certainly no general return to pre-colonial administration of justice anywhere in the Muslim world in any field except in family law. Matters of marriage, divorce, custody of children and inheritance remained governed by Shari'a principles throughout the colonial and post-colonial era.
http://www.abc.net.au/religion/articles/2013/06/03/3773420.htm
