Human Rights and Islamic Legal Tradition: Prospects for an Overlapping Consensus

Abstract

The encounter between human rights law and Islamic legal tradition was largely academic until the last decades of the twentieth century. Following the widespread international adoption of human rights instruments such as CEDAW, and the concurrent rise of Islamist political movements that attempted to enforce pre-modern interpretations of the Shari’a, adherents of the two seemed destined for conflict; at least for growing mutual distrust and contempt. But is this clash inevitable?

Can we find a way of reconciling these two polarized forces? Is there common ground on which they can engage in productive debate? While the case has been made that some advocates of universal human rights show ethnocentric if not ‘fundamentalist’ tendencies that they would do well to reflect upon, in my paper I shall focus on the new reformist and feminist voices in Islam, and their potential and promise for changing the terms of the debate with human rights law. I shall explore the political and hermeneutical challenges faced by advocates of human rights in Muslim contexts, and the prospects of success in translating the religious value of human dignity into legal rulings within an Islamic framework. The struggle for human rights in Muslim contexts, I argue, is enmeshed in an intricate dialectic between theology and politics, both of which must be acknowledged if we are to find the common ground with human rights.

Originally published as Human Rights and Islamic Legal Tradition: Prospects for an Overlapping Consensus, in: M. L. Pirner, J. Lähnemann, H. Bielefeldt (Hrsg.) Menschenrechte und inter-religiöse Bildung, EB-Verlag Dr. Brandt e.K., Berlin 2015.