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Ahmed Ali Sawad’s PhD thesis has rightly been hailed ‘brilliant’, and we must all be pleased that a mind of such brilliance lives amongst us. This comment cannot at all do justice to its depth and scope. This is a quick comment in the hope of starting a debate on our own rejection of certain human rights.

‘Cultural’ universalism

Sawad’s thesis is in many ways a demonstration of the remarkable ability of a ‘culturally different’ mind’s grasping of other ‘culturally different’ conceptions of human rights and self-understandings.

Sawad’s culturally different background has not prevented him from grasping the major ‘Western’ conceptions of rights, from natural law theories to John Rawls’s political liberalism. He could also engage in a vigorous ‘universal critique’ of those conceptions (unless ‘universal’, inter-subjective communication would be meaningless and ineffective.)

Of course Sawad would not accept cultural relativism, especially of the ‘thick’ variety. He instead advocates a ‘diversity paradigm’ for human rights. For him, human rights are not based on universalism, but on ‘plural consent’ of ‘States’ based in ‘cultural-legal’ milieu.

New paradigm for rights

The thesis covers a remarkably extensive study of the Shari’a-based reservations by ‘Islamic states’ (including the Maldives) to demonstrate that human rights are not ‘ontologically’ universal. Besides, other universalisms such as Michael Ignatieff’s ‘minimalist’ universalism, Rawlsian ‘overlapping consensus’ universalism, and Donnelly’s ‘relative universalism’ also do not capture this reality. What captures this reality is diversity paradigm.

However, Sawad agrees that the ‘Islamic states’ accept almost all human rights, presumably because they are Shari’a-based. Thus, there are only few areas of divergence, including ‘absolute’ right of religion and gender-based inequality.

Sawad also acknowledges that Shari’a is not monolithic, thus there are differences on, for instance, the issue of apostasy as demonstrated by Abdullah Saeed and Hassan Saeed. However, he quotes Malaysian scholar Hashim Kamali to point out this diversity is ‘diversity in unity’ as there are areas where agreement exists. If one considers Salwa Ismail’s argument in Rethinking Islamist Politics that even such basic notions like ‘God’ have no consensus around them, this unity must indeed be very thin!

Human rights in classical Shari’a?

However, Sawad’s thesis does not attempt to scrutinize the Islamic bases for human rights. He only briefly considers Muslim thinkers such as An-Nai’m. I submit this lack of scrutiny has implications of his overall argument.

The fact of the matter is that classical jurists have not provided any theory of human rights. Khaled Abou El Fadl rightly argues that Muslim thinkers to-date have mainly only provided apologetic views on human rights. Indeed, as Mawlana Mawdudi did, ad hoc Quranic injunctions such as ‘do not kill innocents’ can be presented for an apologetic understanding of human rights that compromises the purpose of human rights. This is what religious scholars like Ibrahim Rasheed Moosa and Mohamed Iyaz Abdul Latheef have done too.

Human rights, in this sense, are not ‘culturally’ authentic in any pre-modern society, West or the East.

If this is so, one wonders how ‘cultural-legally’ authentic would even ‘Islamic states’’ existing convergence on human rights be? If one grants that Shari’a has not given a theory of human rights, it is an escapable point that this convergence cannot be consistently Shari’a-based.

But these ‘Islamic states’ still find it acceptable to converge on non-Islamic human rights. In my view, this acceptability of almost-all human rights by ‘Islamic states’ finds no particularly stronger cultural-legally authentic basis than the rejection of certain other rights simply because a particular group’s current understanding of Shari’a contradicts those rights.

This point is strengthened by the fact that most of the Muslim majority states that have made reservations are authoritarian. We have reason to suspect that an authoritarian state’s action would represent the voice of the people and their ‘cultural-legal’ representation would have any legitimacy.

Relevance of a universal ethic

I think if Sawad considered the arguments of people like An-Na’im and El Fadl on the anthropomorphism or human element involved in the interpretation of Islamic Texts (almost always by male Muslims) and the necessity for a methodologically systematic re-interpretation of these Texts, it would be difficult to reject the arguments for an ‘overlapping consensus’ on human rights.

Of course, the whole point of ‘overlapping consensus’ is that there cannot be a single universal basis (either religious or secular) for human rights. Different comprehensive doctrines will come up with different bases for an ‘overlapping consensus’.

Sawad’s argument against overlapping consensus may be right as far as the practice of reservation goes, but only because ‘Islamic states’ so far have failed to come up with a religiously coherent basis for human rights.

Without such a coherent basis, we only get ad hoc views on human rights, where the equality and equal freedom of human beings are compromised in the name of one group’s understanding of Islam.

I submit, equal rights for all human beings simply because they are humans ought to be a universal value, although only plural bases for an ‘overlapping consensus’ around such a universal value would exist in a diverse world.

We must be direct and critical on this: ad hoc convergence on human rights that results in rejecting equal rights for some human beings simply represents one group’s domination of the other.

The purpose of human rights is exactly to reject such domination.

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