Âdamiyyah and ‘Ismah Sociology

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damiyyah and Ismah Sociology of Rights: Human Rights in Islam between Communaland Universal Perspectives Inviolability of the Other in Islam Recep Senturk CONTENTSIntroduction 1

I. Human and Human Rights in Islam: A Contested Relationship 10

a. The Universalistic View: Basic rights are accorded by virtue of being a human 11

b. The Communal View: Basic rights are accorded by virtue of Islamic faith or a treaty16

c. Eclectic Thinkers and Reconciliation between the Two Paradigms 19

II. The Genealogy of the Human 19

The Genesis of Human in the West 20

The Genesis of the Human in Islam 25

III. The Practical Implications of the Contest between Universal and Communal Doctrines31

IV. Why did Jurists Differ on the Universality of Rights? 36

The Ulama and the State 36

Two Root Paradigms in Islamic Jurisprudence 40

V. Sanctity as the Foundation of Universal Law and World Order 49

VI. Muslims and Modern Human Rights 56

The 19th Century Ottoman Reforms: from Divan to Parliament 60

Constitutional Movements during the Ottoman Period 63

Human Rights Dependency 67

VII. What is Sociology of Rights For?71

Conclusion: I am therefore I have Rights 78

Selected Bibliography 82

TABLE OF CONTENTS

I. Preliminary Remarks on the Interpretive Framework 33

II. The Genealogy of the Human 99

The Genesis of Human in the West 1010

The Genesis of the Human in Islam 1515

III. The Human and Human Rights in Islam: The Contested Relationship 2121

a. The Universalistic View: The basic rights are accorded by virtue of being ahuman 2121


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2b. The Communal View: The basic rights are accorded by virtue of Islamic fait

or a treaty 2727

c. Eclectic Thinkers and Reconciliation between the Two Paradigms 3030

V. The Practical Implications of the Contest between Universal and Communal Doctrines3030

VI. Why did Jurists Differ on the Universality of Rights? 3535

The Ulama and the State 3636Two Root Paradigms in Islamic Jurisprudence 4040

VII. Sanctity as the Foundation of Universal Law and World Order 4848

VIII. Muslims and Modern Human Rights 5555

The 19th Century Ottoman Reforms: from Divan to Parliament 6060

Constitutional Movements during the Ottoman Period 6262

Human Rights Dependency 6767

IXVIII. What is Sociology of Rights For? 7171Conclusion: I am therefore I have Rights 7878

Introduction

Covenants without swords are but words.

Hobbes

The age of Descartes was characterized by puzzlement with human existence: Hhow canwe rationally prove that we really exist? In response he postulated, I think therefore I amThis is the answer I give to the puzzling question: I ask, sothen what? Descartes

stoppedquery, however, culminates therewith that conclusionat that point, without furtheexploring the social and moral implications of human existence. , one of which is thehuman rights. It was not an issue at his time. But, because of the change in the Zeitgeisby the shift from the intellectual primacy of metaphysical quest to the pinnacle of thesearch for human wellbeing on earth, our generation is characterized by puzzlement withhuman rights: Hhow can we justify that we really have human rights? More plainly put, mvery existence suffices as a substantiation of my rights, irrespective of my innate,inherited, gained or ascribed qualities. I argue that all universal cultures, be they religiouor secular, ancient or modern, commonly agree on the inviolability of all human beings.Yet they do so in their own terms, which is an inevitable sociological diversity.Acknowledging such diversity in ways human sanctity is justified brings more strength tohuman rights cause, instead of undermining it. There is not only a single way to justifyand talk about human rights, or any other matter in the world. There may be in the wor

multiple discourses to talk about human rights and multiple grounds to justify humanrights, reflecting the diversity of cultures on the globe. However, currently, some of therepresentatives of these cultures Tackling this question, Iideologies compete with eachother to patronize or monopolize the justificationcause of human rights. Each one claimsthat only my culture grants and protects human rights. Or they say, my culture is thefather of human rights. , an exclusivist position I challenge below.This rivalry isunnecessary, counterproductive and inconsistent with the universalism each ideologyclaims to represent. In this book I challenge this exclusivist position, regardless of whicculture it stems from, and offer an inclusive alternative from a sociological perspectivewhich takes into account the diversity of cultures in the world and their right to produceand maintain their distinct discourse on human inviolability. We, as humanity, had thediscourse on human inviolability all along, yet in diverse conceptual and institutionalforms. Based on this assumption, a truly universalistic position on human rights is


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3characterized by three features: accepting the inviolability of all human beings; to do soby virtue of their humanity; acknowledging that other universal cultures also respect theinviolability of all humanity. The claim that only we, as a group, nation or civilization,respect human rights inadvertently defies itself and turns into an exclusive ideology withclaim for superiority. With the purpose of proving my claim, I chose a universal religiousculture, namely Islam, which is currently seen by some as the remotest one to theuniversal human rights and to the respect for the inviolability of the other. how can werationally prove that each one of us really has rights by birth and equally deserves a goodlife? IIn response, I postulate my response to this puzzle as, I am therefore I have rights.

MIf I exist, my very existence suffices as a substantiation of mythat I have human rights,irrespective of my innate, inherited, gained or ascribed qualities. By tying humanexistence to human rights, I explore the prerequisites and the inevitable implications ofour existence in society at the universal level. My approach to this question derives fromboth the Islamic and the modern secular notions of justice, freedom and human rights.Using the example of Islamic legal tradition, this paperbook demonstrates how bothreligious (divinely inspired, deriving from scriptures) and secular (rationally inspired,deriving from human mind) worldviews may justify human rights in their own terms, yetarriving at parallel conclusions. These two discourses are, however, different in content,scope and implementation. It would also be an open anachronism to treat Islamic andmodern discourses on human rights as the same because they reflect the differenthistorical circumstances in which they emerged and put in use. Consequently, rather thansubscribing to the current blanket generalizations in the academic and popular literature

this study explores similarities and differences between them. Furthermore, I also explorthe ways we can relate Islamic and modern secular discourse on human rights to eachother in the present world. From this perspective, the classical Islamic discourse onhuman rights may serve as an antecedent or a significant source, for Muslims and othersto develop a new human rights discourse which would more effectively respond to theneeds of the modern world in the age of globalization. I think Islamic legacy is importantto take into account while re-thinking about human rights at the beginning of the 21stcentury. Muslims ruled the most troubled areas of the present world for so manycenturies in peace under cosmopolitan empires from India to the Middle East and toBalkans. There is a gap between two approaches on the universal human rights: legalperspective with an emphasis on universalism and social scientific perspective with anemphasis on relativism. The gap became manifest during the preparation of the UNDeclaration in 1948. The American Anthropological OppositionAssociation (AAA) publiclyopposed the entire project of the universal human rights declaration. In contrast, the legapproach has triumphantly claimed that the universal human rights can be codified andjustified, yet they did so within the parameters of a particular culture, namely secular andWestern. The anthropological approach has claimed that the universal human rights areimpossible to define because of the irreconcilable social and cultural diversity of thepeople in the world; hence the Western and secular definition and justification isethnocentric. I argue that, combining the legal and social scientific approaches will allowus to reconcile the tension between these two contesting paradigms. The global culturaldiversity does not preclude the possibility of a number of common denominators oruniversal values; cultures with diverse languages and dialects may justify and interprethuman rights differently but can still meet at a common ground. Below, I will first look athow the concept of the universal human emerged within the Islamic and Western legal

traditions. Second, I will comparatively analyze the inclusive universalistic, exclusivecommunal and eclectic paradigms on human rights in the classical Islamic law. Third, I wibriefly demonstrate the practical implications of the traditional contest between humanrights and civil rights paradigms in Islamic law. Fourth, I will explore why the dichotomywe now face emerged, by comparing the opposing methodological postulates of therRational and Ttraditional schools of jurisprudence. Fifth, I will further explore the usageof the concept of ismahismah (sanctity, basic human rights) in the classical Islamicjurisprudence as a foundation of a universal legal philosophy, capable of practicallyfacilitating pluralism during the middle ages. Sixth, I will look at the key role the conceptof ismahismah played in the human rights declarations and regulations (1808, 1839) bythe Ottomans during the 19th century reforms in Islamic law. Finally, I will discuss howincorporating a sociological approach may contribute to a better understanding of therelationship between diverse cultures and the human rights cause. I. Preliminary Remark


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4on the Interpretive Framework builds upon the axiomatic relationship the universalisticjurists of classical Islamic law established in the 8th century between humanity(adamiyyah) and sanctity or basic human rights (ismah). Yet There is also another gapamong scholars concerning whether human rights are exclusively modern, Western andsecular; in other words,an ongoing scholarly debate in the current literature on humanrights about on whether universal human rights exist in religious and particularly non-Western cultures. Some argue that religious and non-Western cultures also promotehuman rights while some argue that these cultures are incompatible with human rights.Before any attempt to answer this question, we should ask what are the structural and

intellectual conditions that makes human rights possible? I will argue on the theoreticallevel that the existence of an inclusive concept of a the universal human, detached frominnate, acquired and ascribed qualities, makes the existence of universal human rightsprobable likely while its absence makes it impossible. The universal humanIt is adecontextualized conceptualization of the human being, which is constructed bymethodologically discarding the inherited, gained and ascribed physical, cultural, racial,geographical, national and religious qualities an individual may have. This is The existencof a concept of the universal human is the first prerequisite for the universal human rightto be possible so because the object it is the subject to which rights are accorded is auniversal human. If the object subject is absent, the predicate rights will also be absent.Therefore, prior to posing the question on whether there are universal human rightsinherent within a culture, we should first ask whether there is a concept of a universalhuman in the legal thought of this particular culture. The lack of the latter (abstract

concept of a universal human) is the cause for of the absence of the former (universalhuman rights). In the absence of the universal category recognition of a human within asociety, the legal and political thought culture relies on the religiously, culturally, raciallyor geographically determined exclusive categories, which forestalls the rise oradoptionappropriation of universal human rights within a culture. The second prerequisitefor the existence of human rights in a culture is the existence of due process. If there is due process in a society, it is very much likely that human rights will emerge in thisculture. Existence of due process is usually a reflection of the rule of law and formallydefined principles of justice. If there is no due process, we cannot expect human rights texist effectively on the ground. All universal cultures have fostered a concept of humanbeing at the universal level and the due process to achieve justice in society. Here liesthe common ground universal cultures share. The examples include Buddhism, Judaism,Christianity, Islam and modern secular ideologies such as liberalism and socialism. It ispossible that some did so more forcefully in some aspects or in some periods. Secularapproaches to human rights tend to neglect the metaphysical dimension in theirjustification of human rights. The lack of metaphysical foundation in the seculardiscourses may be seen as a weakness in advocating human rights. Religious discourseson the other hand, tend to focus exclusively on the co-believers. The emphasis on thereligious community based on brotherhood in the true faith may also be seen as a sourceof weakness of religious discourses. Approaching the puzzle from such a fresh theoreticperspective, this research paper book aims to explore the case of Islam and to contributeto this broad discussion by providing a balanced and historically well-grounded answer tothe following question: Is there a concept of universal human rights in Islam? Followingthe above perspective, the answer is that such a concept it is contingent on the existenceof the basis for the a concept of universal human in Islamic law: If the basic conceptual

ground work it exists, then it is likely that Islamic law does features universal humanrights. Otherwise, it is impossible without such a framework, it would be impossible tojustify universal human rights. Therefore, we should first ask: Do the fundamentalelements of a Is there a concept of universal human already exist in Islamic law? Theanswer to this much-debated puzzle is not plainly positive or negative, unlike themonolithic arguments found in the majority of the current literature based on sweepinggeneralizations. As the survey of the relevant classical and modern literaturedemonstrates, this is a long and widely debated issue in the juridical and theologicaldiscourse since the early history of Islam. Briefly put, there are rival universal andcommunal views represented by a network of Sunni and Shiite scholars, and withbothsupported by a rich literature and sophisticated arguments and counterarguments. Theuniversal perspective advocates equal human rights for all. In contrast, the communalperspective advocates equal rights only for the citizens of the Islamic state, be they


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5Muslims or non-Muslims. Yet neither perspective this contest in the Islamic legal traditionis not currently known to most scholars in the field of human rights. The lack of modernliterature and research testifies for that under scores this void in the current discourse. argue that the latent tension in Islamic law between the advocates of universalistic andcommunal perspectives, which has so far eluded the eyes ofbeen circumvented by theresearchers, is analogous to the tension between the advocates of the civil rights andhuman rights paradigms in the modern Western legal thought. The recent politicaldebates in the US testify that the advocates of civil rights paradigm, concentratedexclusively on the rights of the citizenry, still hold, despite the declaration and ratification

of the UN declarations since 1948. This may be attributed to the fact that the Europeanconstitutions incorporate the human rights paradigm while the US constitutionincorporates the civil rights paradigm. Hence emerges occasional tensions between theUN and the European perspectives, on the one hand, and the US policies, on the other.The recent debates on the International Criminal Court (ICC) may be analyzed viewed as manifestation of this tension. The current US policy concerning the ICC has been toforcefully call for exemption of US citizens. Although the Clinton administration fullysupported it, the Bush administration gained exemption from it for the US citizens. Thetwo rival paradigms in Islamic law have been advocated by two separate networks ofscholars. I will comparatively unearth them these approaches from the primary sourceswith the purpose of shedding light onbriefly present the views of the two schools ofthought to highlight the existence of the universal approach to human rights-initiallyformulated by Abu Hanifa, the founder of Hanafite schoolSchool. Abu Hanifas

universalistic, an approach paradigm that had been adopted by a widen inter-schoolnetwork of scholars affiliated with different schools of law. However, Abu Hanifas ideasitand which haves yet to be fully explored by modern researchers in the West and theIslamic world. Most of the concerns and theological arguments of the Muslim jurists wholived during the middle ages no longer have a ground in the present world, characterizedas it is with radically different and secular national and international legal concepts andstructures. Yet this research will, first, rectify the view of some Muslims and non-Muslimson universal human rights as a principle foreign principle being imposed on themto Islamcivilization, and will demonstrate the basic consistency between one line of Islamic legalthinking and the modern secular Western perspective. Second, it will provide a solidconceptual foundation in the long lengthy tradition of Islamic jurisprudence for Muslim annon-Muslim Muslim human rights activists, thinkers advocates and researchers to buildupon and improve. Third, it will demonstrate that the sweeping claims in the currentliterature about the existence or absence of universal human rights in Islam must bequalified because these claims cannot stand against the background of a literature withconflicting views. Fourth, it, it will suggest a theory of universal human rights to thepresent Muslim world by building upon the classical legal legacy of Islam and modernsecular notions. I combine the recent discourse and social network analysis methods inmy research. I subscribe to the view that law is a common yet contested discourse,evolving out of the interaction between global and local processes, an approach derivedfrom Rawls, Habermas and Dworkin, among others. Therefore law avails itself to themethods of discourse analysis. In analyzing the human rights discourse, I apply thedialogic or interactive approach of Bakhtin to law, instead of the concept of law as a one-way speech act envisioned by Austin. I combine itthis approach with Saussures structuramethod to explore the interaction between the general rules of language use (langue) an

their actual implementation on the groundin the field within a given time and place byconcrete individuals (parole). This methodological approach allows me to explore theinteraction between universal and local processes in the human rights discourse and theconstant interaction between them, analogous to language. Like linguistic principles,human rights are also framed universally but they are locally used, legitimized,interpreted and implemented through diverse social mechanisms. The methodsSilverstein proposed to analyze the self-reflexivity of language will also be applied toexplore how legal language acts upon itself, particularly during times of majortransformations. I also apply the most recent social network analysis methods to uncoveinvisible colleges and latent cleavages among Muslim jurists to demonstrate that theyare divided into two strands on the universality of human rights, although apparentlyonfirst glance they belonged to a myriad of opposing schools. This is an exercise in what Icall the sociology of rights, a new perspective I aim to develop. The present approach t


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6rights usually offers only a thin description of rights as a consequence of its exclusivereliance on legal and formal perspective. Alternatively, I suggest a thick description ofrights by exploring their cultural, historical, theological and particularly religious roots.These roots can only be found through a study of cultures within their particular historicasociological, cultural and geographical contexts. It helps us to improve the interactionbetween, what Saussure called, langue (language in abstract) and parole (language in usin a particular setting) of human rights discourse. It thus serves to explore how the samerights are variably justified by different cultures, both religious and secular, through amyriad of ways. It also helps establish a bridge between the inclusive and exclusive soci

forces, or the communal we and the global We, the human racefamily. Theinterdisciplinary nature of this research requires me to mobilize conceptual tools from avariety of disciplines and a diverse literature in Arabic, Turkish and English, to which I wilin turn contribute. Abdullahi An-Naims works on the issue of human rights and Islamprovides me the theoretical framework to build upon and expand further in producing anIslamic discourse on Human rights, responding to the needs of Muslims living in todaysglobal village. Baber Johansen is the only scholar I know of who touched, although in avery brief article, on the concept of ismahismah (inviolability, human sanctity or basichuman rights) as used in the Hanafi School alone, without comparing how it wasunderstood and employed by other schools . The current literature does not even touchupon the relationship between adamiyyah (personhood or humanity) and ismahismah.Consequently, I have to rely on the scattered information in the classical literature andpainstakingly piece them together. For the first time, I will comparatively expose the cor

place the concept ismahismah occupies in Islamic law, and explore its potential usagetoday in enhancing human rights in the contemporary world. Literature is also strikinglyabsent ondevoid of mentioning the enactment of universal human rights and theirjustification by Ulama in Islamic terms during the 19th century Ottoman Reforms, such asabolishing the category of dhimmi, establishing equality between Muslim and non-Muslimcitizens, requiring them to pay the same amount of taxes, and allowing all citizens tooccupy political and administrative office, and to join in the army. Therefore, theDeclaration of Regulations (Tanzimat Fermani, ) (18398) may be seen as the first Islamichuman rights declaration in the modern sense. Analysis of these earlier efforts willdemonstrate the discontinuity and the lack of accumulation in IslamicMuslim efforts topromote the universal human rights since the 19th century. I will also introduce andanalyze the modern Turkish literature on human rights in Islam, which is an extension ofthe classical Hanafi doctrine and the work of the 19th century Ottoman Ulama. After theUN declaration was made in 1948, Turkish scholars of Islamic law, such as Hseyin KazimKadri and Ali Fuat Basgil, produced works advocating that it was consistent with Islamiclaw and thus deserved the support of Muslims. Unlike anthropologists, the majority of thesociologists curiously neglected the issueinteraction between universal of human rightsand society; the way they are variably interpreted, justified and implemented by eachculture and community. Among the exceptions is the Egyptian sociologist al-Wafi, whoseprecedence was not followed by later generations. Therefore, sociological literature onlaw, in general, and human rights, in particular, is underdeveloped. Besides itsconsiderable advantages to a purely legal approach to the relationship between society,culture and rights, Tthe interpretive framework I suggest will promote and facilitate forsociologists to relate their discipline to, and engage themselves in, the cause of humanrights. Below, I will first look at how the concept of the universal human emerged within

the Islamic and Western legal traditions. Second, I will comparatively analyze theinclusive universalistic, exclusive communal and eclectic paradigms on human rights inclassical Islamic law. Third, I will briefly demonstrate the practical implications of thetraditional contest between human rights and civil rights paradigms in Islamic law. FourthI will explore why the dichotomy we now face emerged, by comparing the opposingmethodological postulates of the rational and traditional schools of jurisprudence. Fifth, will explore the usage of the concept of ismah (sanctity, basic human rights) in theclassical Islamic jurisprudence as a foundation of a universal legal philosophy, capable ofpractically facilitating pluralism during the middle ages. Sixth, I will look at the key rolethe concept of ismah played in the human rights declarations and regulations (1808,1839) by the Ottomans during the 19th century reforms in Islamic law. Finally, I willdiscuss how incorporating a sociological approach may contribute to a betterunderstanding of the relationship between diverse cultures and the human rights cause.


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71.Outline of the Research The Genesis of the Concept of Human and Person I argue thatthe prerequisite for a concept of universal of human rights is the abstract notion of auniversal human which is constructed by methodologically stripping a humanoffdiscarding the inherited, gained and ascribed physical, cultural, racial, geographical,national and religious qualities an individual may have. In other words, it is adecontextualized concept of human. Therefore prior to posing the question on whetherthere are is a universal universal human rights in a culture, we should first ask whetherthere is a concept of a universal human in the legal thought of this particular culture. Thelack of the latter (abstract concept of a universal human) is the cause of the absence of

the former (universal human rights). In the absence of the universal category of a humathe legal and political thought uses religiously, culturally, racially or geographicallydetermined categories, which forestalls the rise or adoption of universal human rights.Below, I will first look at how the concept of universal human emerged in Islamic andWestern legal tradition. Second, I will comparatively analyze the inclusive universalistic,exclusive communal and eclectic paradigms on human rights in the classical Islamic law.Third, I will briefly demonstrate the practical implications of the traditional contestbetween human rights and civil rights paradigms in Islamic law. Fourth, I will explore whythe dichotomy we face emerged by comparing the opposing methodological postulates othe Rational and Traditional schools of jurisprudence. Fifth, I will further explore the usagof the concept of ismah in the classical Islamic jurisprudence as a foundation of auniversal legal philosophy, capable of practically facilitating pluralism during the middleages. Sixth, I will look at the key role the concept of ismah played in the human rights

declarations and regulations (1808, 1839) by the Ottomans during the 19th centuryreforms in Islamic law. Finally, I will discuss how incorporating a sociological approachmay contribute to a better understanding of the relationship between diverse cultures anthe human rights cause. II. The Gene Genealogy sis of the Concept of the Human andPerson in the Western and Islamic Jurisprudence We tend to take the concept of thehuman for granted. Gaining recognition as a a human being person human before the lawis no longer considered a great achievement in the world today. However, historically,until recently it was not always so until recently. This was true particularly for theoverpowered minority groups of men, and,, in particular, women. It was only through aprolonged evolution in n the belief systems, social structures and legal concepts that allmean and womean came to be considered human and person on thean egalitarian basesThe border definition of the concept has been forcefully expanded by the struggles of thesegregated groups . Rarely, however, did some a groups fight for the rights of the othergroups s. Though I have no claim on the Western legal tradition, I would like to begin witit because it is the familiar story. The purpose here is to set the ground for the futurecomparisons I intend to undertake for a better illustration of the tensions in the Islamiclegal tradition. I believe the tension in Islamic law between inclusive and exclusiveparadigms is a phenomenon that can be commonly observed in the Western legal cultureas well. Therefore, without going into detail, I will rely on the common narrative about thhistory of the concept of human and human rights. The First the Familiar Story: FromMan Genesis of to Human in the West Currently Human rights have been accorded to anobject called human. It is a recent innovation recent innovation and a legal constructionIts meaning has also gone through semantic shifts, contractions and expansions. The worhuman, which was first used in English in 1533 , as a synonym for the word man. Theword person, which emerged in English during the 13th century, is also used

synonymously for the same meaning . Both terms have been variably constructed andused in the political and legal discourse during the subsequent centuries. Person, usedmore as a technical legal term, is defined as the bearer of rights and duties, whereashuman, used more as a philosophical concept, refers to any member of the human familyUsually, in the common discourse, they are used interchangeably. Historically, a human oa man hasd not always been considered a person, the bearer of rights and duties. Even ifthey were considered so, they have not been considered equal regarding rights andduties. Certain law dictionaries reflect the recent manner the concept was used as such:Every full citizen is a person; other human beings, namely subjects who are not citizens,may be persons. But not every human being is necessarily a person, for a person iscapable of rights and duties, and there may well be human beings having no legal rights,as was the case with slaves in English law A person is such, not because he is human,but because rights and duties are ascribed to him. The person is the legal subject or


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8substance of which the rights and duties are attributes. An individual human beingconsidered as having such attributes is what lawyers call a natural person . Recognition all human beings as equal persons on the global level is a new concept in the Westernhistory. The communication revolutions in the past century, especially the internet,resulted in the Death of Distance and brought about close interaction of foreign culturesreligions and societies on the global level, which eradicated some of the traditionalsymbolic borders between different communities. The terms human and person graduallexpanded until they encompassed all human beings, regardless of sex, color and religionConsequently, when we read historical documents where the terms person and human

occur, we need to determine who are meant by them. For instance, in the historicaldeclarations of human rights, these terms do not denote everyone in the concernedsociety. Instead, they usually include the parties at the bargaining table. For instance,the concept usually does not embrace women. Therefore Attributing the contemporarymeanings of the terms toused in the historical documents, such as the Magna Carta,document would inescapably lead to anachronism. What are the social, political, legal ancultural dynamics that triggered and maintained sustained this sluggish expansion in theegalitarian definitions of human and person? The process of the evolutionary semanticexpansion has been characterized by bloody conflicts. During the middle ages, men andwomen, the clergy and laity were not equal. Nor were tThe nobility and other lowerclasses were not equal either. Every excluded group, it appears, had to forcefully fight togain the right to inclusion and to be treated as equal humans. Women, African-Americanand Jews are just some examples of such groups who were normally excluded from the

concept. The concept definition of human rights bearers initially included a group of theWest European white males. Even English speaking residents of the American colonieswere not treated as full persons by the British Empire. Through the AmericanIndependence war, American white males gained the status of being considered equal,human beings with the right to self-determination. The civil war, the civil rightsmovement and the feminist movement caused the concept to further expand to embraceall US citizens. Yet, the individuals in the US who are categorized as permanentresidents or aliens are still not granted equal rights as citizens. Every excluded grouit appears, had to fight to forcefully gain the right to be included in the concept and to betreated as equal humans. The women, the African-Americans and the Jews are just someexamples. The With the UN Declaration in 1948, for seems to be the culmination of thatevolutionary process with the set purpose of universal rights for every individual on theface of the earth. For the first time, in the history of human rights documents, we canassume that the terms human and person arehave been used in a truly inclusive manneron the universal level. Later, the constitutions of some member countries, e.g. mostEuropean countries, have also incorporated the concept of universal human and theensuing rights while some have not. Although it played the leading role in the preparatioof the UN Declaration, the US has not incorporated the concept of the universal humanrights in its own constitution, which relies on the concept of civil rights. The above surveydemonstrates how the changing constellation of relations among nations and groupstransformed the concept of exclusive concepts of human and person into inclusive anduniversal ones. Excluded groups were not welcomed out of mercy. Instead, each grouphad to pave its way forcefully. The birth of the concept of human and its definition, ashistory documents, has been contentious, painful and bloody. The concept of theuniversal human: It is a great achievement for humanity with the due cost paid by the

lives and blood of an enormous number of people all over the world. Historians usuallycredit the philosophers of the Enlightenment for the initial formulation of a concept of theuniversal human. Why did they construct such a concept and what did they Europeans dowith it? We need to look more closely to the conflicts at that time between the secularintellectuals and the ecclesiastical thinkers. The Enlightenment philosophers underminedthe religiously defined, and thus non-universal, concept of a human to set thephilosophical ground for a secular definition of human. They were also trying to draw anew line of cleavage vis--vis the traditional line of cleavage drawn by the Church againsthe Christian Church doctrine of the time, by. They speaking on behalf of humanity, butnot on behalf of Christendom. From this perspective, the construction of the universalhuman can bee seen as a secular achievement, which. It took place after emancipationfrom religious categories imposed on human groups based on their faith. It is hard for auniversal concept of human to survive intact. It poses a constraint to the powerful


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9political actors in favor of the less powerful. It poses a problem for those who want to draa thick line between We and They. A balance of power is needed to ensure the survival ofthe concept as a truly egalitarian and universal one. Education and culture might also beuseful factors. The history of the concept human rights can be extended retrospectivelyto the past by exploring not only its immediate fathers but also remote ancestors. Forinstance, the work of someancient prophets and, philosophers and great masters can beseen as great achievements towards a universal concept of human and a morality inaccordance with it . Each one These efforts, which must be understood within itstheir owcontext,. However, none of these historical efforts cannot be is compared able in

organization and implementation to the UN declaration, in organization andimplementation although its objective still remains as a remote ideal for the majority ofthe people in the world. We should trace and acknowledge the ancestors of the idea inthe ancient and medieval cultures yet its father was the UN declaration, which is thecommon achievement of the entire humanity. The From Segragation to Civil and HumanRights The article 6 in the UN Declaration stipulatesd that: Everyone has the right torecognition everywhere as a person before the law. This may be seen as the culminationof a long process in the Western history from segregation to civil rights and to universalhuman rights. By Through this article, the universal objectbearer of human rights wascreatedreaffirmed and the rights were accorded to that objectevery human. Withoutacknowledging this abstract object, the UN declaration would not have been possible. Threligious and conservative traditions in the world, which initially opposed the universalhuman rights, eventually came to internalize them and unearth the roots of the idea in

their tradition. These traditions may be seen as the ancestors of the idea, but not theimmediate fathers sources because, as history documents, it belongs to a coalition ofsecular efforts, both socialist and capitalist and, Eastern and Western combined. Eachtradition has justified thehuman rights in their own terms. The statesy agreed on therights but disagreed on their source. Therefore, the UN documents strategically andpersistently evaded the reference to the source of rights. The silence of the documents othe source of rights allows each community to variably justify them while still remainingwithin the universal paradigm of human rights. Thus, even if the socialist ideology, whichchampioned human rights more forcefully than others during the last century, found itselin crises by the collapse of the USSR, the UN and the universal human rights paradigmremained unaffected. Internalization of the human rights paradigm by various secular anreligious worldviews and activation of their resources to justify them in their own dialectsstrengthens both sides. The Western human rights discourse has thus a dynamicdiscourse history with so many dialects. It has already become the lingua franca ofpolitics and law in our age. The present challenge for Western advocates, especiallyAmericans, is to make the human rights paradigm work for all, especially globally beyondthe Western worldld on the global level. Since its legitimacy heavily derives from its claimto universality, the survival of the human rights paradigm in the West, depends onwhether it will work for the non-Western peoples as it doesid for the Western peoples.Otherwise, if the New World Order fails to make it work for all onat the global level, itslegitimacy and credibility will be undermined, and consequently the inevitable recess bacto the exclusive civil rights paradigm will ensue in the West. Divergent The Genesis of thHuman in Islamic Views on Human: After the familiar story about the development of theinclusive concept of human and the universal human rights in the This is in the Westernhistory, now we can turn to the Islamic history to see if there is a concept of a universal

human exists in Islamic legal tradition. If so how and when did it emerged? How did itevolve? And what did Muslims do with it? . How about the non-Western history? In theThroughout Islamic history, the concept of the universal human was born with theteachings of the Prophet Muhammad (571-632). The Quranic message is addressed tothe entire humanity (al-nas pl. of insan) and the children of Adam (Beniuu Adam). Theterms used in the Q. and the sayings of Prophet Muhammad (the Hadith) to indicatehuman are insan, ibn adam (child of Adam) and nafs. (soul or individual). Yet our focushere is not on the scriptures of Islam (the Q. and the Hadith) but on the Islamic law, whicis extrapolated from them as well as other resources such as customs and analogy.Previous studies have already explored the way the Q. and the Hadith approach thedefinition of a human and human rights. Thus I will not reproduce those here. The termsused in Islamic law to indicate human are insan, adami and nafs. Yet different schoolsexist in Islamic law with divergent conceptualization of these terms. Divergent Islamic


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10Views on Human and Human Rights: From this theoretical perspective, myMy initialresearch in the classical Islamic literature on jurisprudence demonstratesd that there issuch a concept in the legal discourse network emanating from Abu Hanifa (699-767), butis absent in the competing legal discourse network emanating from al-Shfii (767-820).The Shiite scholars are also divided on this issue among themselves. Abu Hanifa and hisfollowers use the term damiyyah (lit. being a child of Adam, humanness, or personhoodon the biological level) to indicate the abstract concept of a universal human. Havingascertained the existence of a universal concept of human in Islamic legal tradition, weknow now that it is likely for Islamic law to produce human rights. Since the basic concep

exists, it is possible to analyze and evolve it. Who is, then, a human in Islamic thought?She is created in the image of God, not physically, but spiritually, in the sense that herattributes are similar to those of God regarding mercy, knowledge, love, justice and thelike. God bestowed His attributes such as knowledge to humans yet in a limited form.Infinity belongs only to God. Human soul is a divine breath. A human is a vicegerent ofGod on earth; she is charged to represent His will and implement justice. Gods love andprovidence for humanity are universal, for believers and infidels, for pious and sinful. Abeliever is also required to love God and His entire creation and treat them accordingly.All human beings are created perfectly. They are born with perfect souls. By nature,everyone is a Muslim, in the sense that they all obey Gods will, peaceful and free of sins.Yet later they are misled by the corrupt traditions, customs and cultures. Islam is seen athe natural state of mind and heart; the natural religion, law and morality. The word Islamis used as a generic name for all religions sent by God to humanity, not only the religion

preached by Prophet Muhammad. Thus, for a non-Muslim to embrace Islam is a reversioto her nature, not a conversion. Rational theologians believe that even if God had notsend Prophets, people can, and must, discover what is good and bad by using their mindsand conscience. God sent Prophets to help people in easily learning what they can alsodiscover by themselves but in a longer time. Divinely inspired teachings of the Prophetsreaffirm what is inherent in human nature concerning good and bad conduct. God doesnot punish a people without sending them a Prophet to warn and teach them; otherwise would be unjust. Therefore, hundreds of thousands of Prophet were sent to all peoples othe world. Prophet Muhammad is the last ring in the chain of Prophets; he inherited thelegacy of all Prophets who came before him, integrated and perfected them. No humanbeing is god. Nor can one speak with the voice of God. All are vicegerents of God onearth and have direct personal access to God. No mediator is allowed between God andhuman. The ruler is the vicegerent of Prophet Muhammad, this is what the word Caliphstands for (khalifat rasul Allah), but not representative of God, which is a title common toall. A human occupies the highest ontological category, higher even than the angels.Therefore, God ordered them to prostrate before Adam. Angels are not blessed with thefree will and rational knowledge. Yet, corruption may cause humans to descend to thelowest levels of creation. Woman is not blamed for the fall from Heaven. Devil deceivedboth Adam and Eve in Paradise at the same time; it was a jointly committed sin, whichwas forgiven by God after they repented. Those who commit a sin must repent bythemselves and revert back to their pure state. Publicizing a sin one has committed bytelling it to others is blameworthy. The heart of a believer is the House of God, moresacred than the Kaaba in Mecca. The Kaaba is a stone building and will perish as theentire world will collapse in the last hour, yet a human heart is made of divine light andwill not perish. The seat of reason is heart. Thinking is an activity of heart. Oppressing

others and corruption may cause heart die and loose touch with moral reality. God looksonly at hearts and actions, not at the appearance of the individuals. Diversity amonghumans is intended by God because it reflects His power and art. God created humans indifferent sexes, races, nations and cultures without giving superiority to one over other.The diversity allows them to know each other, a knowledge through which they discoverGods greatness. The Q. states: (49/13). God uses the relations with fellow humans to trythem. The trials are passed if all the rights are paid. Man and woman are tried in theirrelations. Same is true for family members, neighbors, sellers and customers, teachersand students, and rulers and subjects. Religion is for humans but not vice versa; humansare not for religion; it is sent to improve love, morality and justice in social relations.Prophet Muhammad said: I am sent to perfect morality. He also said: The best amongyou in the sight of God are those who are best in their conduct to others. Rights andduties bind people to each other in constructing a society. God created humans in such a


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11way that they cannot maintain their life alone; needs brings them close to each other.Satisfaction of needs must be through lawful and moral ways. Humans are thus social anmoral beings. If the object exists, attaching the predicate to it is possible. Ismah:Human Sanctity and Basic Rights:All human beings share fundamental rights equally. BThe basic human rights in Islamic law fall under the heading of ismahismah, whichliterally means legal protection, sanctity and infallibility or reverence. Occasionally, theconcept hurmah, which literally means sanctity, is also used with the same meaning. Theismahismah covers five basic rights values: life (nafs), property (ml), religion (dn), life(nafs), reasonmind (aql),, family (nasl). The latter is also called honor (ird) by the

majority. However, some jurists consider ithonor separately as the sixth universallyprotected value. In other words, ismah provides the following basic rights: right to life,property, freedom of religion, expression, family and honor. and property (ml). In moderjuristhe current language of human rights discourse in the West, prudence these arecalled the basic or irreducible rights. One has to bear in mind that the political systeunder which these terms were used was different than the national state structure we areliving in today. Therefore, one should not equate them with their contemporarycounterparts without further exploration and deliberation. The protection of these fiveobjects values are considered the five founding principles of law (al-usul al-khamsah),the necessaryindispensible or axiomatic rights of the human (darrat or daruriyyat),the expected functions of law (masalih al-mursalah) and the objectives of the law(maqsid al-shariah). Islamic law also recognizes other needs and rights for humans, buthey are less strongly emphasized: the fundamental needs (haciyyat) and accessories

(tahsiniyyat). These terms will be discussed later in greater detail. Muslim juristsemployed the term ismahismah to develop a universal legal philosophy, regarding theneeds fulfilled by law, its governing principles, objectives and functions. They consideredthe protection of the basic human rights, covered by the concept of ismahismah, not onas the foundation of Islamic law, but also all legal systems. These juristsy expected alllegal systems to conform to thise basic criterion, grounded on the concept ofismahismah, to be qualified as legitimate under Islamic rule. The classical jurists set thegoal of the political system as the world order (nizam al-alam), embracing not onlyMuslims but also the followers of other belief systems. Consequently, Islamic societies inhistory from Andalusia (756-1031) to the Middle East and to India (1526-1857) had usualbeen characterized by a cosmopolitan society and culture. The Islamic political systemallowed concurrent jurisdiction by different religious communities as well as by differentIslamic sSchools of lLaw (madhahib). It wasiswas called the Millets system and wasimplemented by all Muslim states from the beginning of Islamic history. Therefore, itwould be a grave mistake to associate Millets system exclusively with the Ottomans, whoinherited it from previous Islamic states and improved it. Under Islamic rule, eachcommunity enjoyed the status of Millet: the Jews, various Christian denominations such aCopt, Armenians and Orthodox, along with Zoroastrians, Hindus and Buddhists. Thispluralist system required a universal legal philosophy that would grant legitimacy todifferent legal systems, irrespective of the religion or tradition behind it. A Muslim juristwas therefore required to produce a legal framework under the umbrella of which variouslegal systems could concurrently operate without conflict. This universal legal philosophywhich I will briefly present below, may be called characterized as a meta-jurisprudence,the jurisprudence about jurisprudences. In modern jurisprudence these are called thebasic or irreducible rights. III. The Human and Human Rights in Islam: The Contested

Relationship: All Muslims jurists in the classical era agreed on what rights should beprotected under the coverage of ismahismah, but there was a question that dividedthem: Who washas the right to the ismahismah accorded to? Is it the entirety ofhumanity or a segment of it? Can Islamic law legislate for the non-citizens to grant themhuman rights? Is the entireDoes all of humanity or the citizenry of the Islamic state alonecomposed of Muslims and non-Muslims, fall under the jurisdiction of Islamic law? To whaextent are Muslims allowed to intervene to theon legal traditions under their rule and onwhat grounds? There emerged two positions in Islamic law as to the relationship betweenismahismah and damiyyah or, more plainly put, as to who possesses the five basicrights covered under the title of ismahismah. Abu Hanifa and his followers from Hanafiteand other schools attached ismahismah with damiyyah, while al-Shfii and his followerfrom his own and other schools attached it to iman (declaration of Islamic faith) or amn(making a treaty of security). (a)a. (a) The Universalistic View: B The basic rights are


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12accorded by virtue of being a human Abu Hanifa and his followers advanced the cause ofuniversal human rights universally and unconditionally granted to all by birth, on the apermanent and equal basis, byfor the virtue of being a human - which cannot be takenaway by any authority. Abu Hanifa identified the concept of damiyyah (personhood) witthe concept of ismahismah (protection) and argued that being a child of Adam or ahuman, whether Muslim or not, serves as the legal ground for possessing basic rights(al-ismahismah bi al-damiyyah). Although the concepts of ismahismah anddamiyyah require a more thorough explanation, we can phrase this principle in plainEnglish as follows: B. The basic human rights are granted to all human beings. The

Hanafites such as Sarakhsi, Zaylai, Dabusi, Marghinani, Ibn Humam, Bbart, Ksn andTimurtshi, just to name a few, are of this opinion. The universal approach crossed theboundaries of the Hanafite school and gained followers from other schools of thought(madhhab) in Islam, which gave rise to an inter-school discourse network. A brief survey other like-minded scholars and their intellectual affiliation will demonstrate this structureNon-Hanafite scholars such as Ghazzali from the Shfiite school, Ibn Taymiyya and Ibn aQayyim al-Jawziyya from the Hanbali school, Ibn Rushd, Shtib and Ibn al-shr from theMlikite school, and Maghniyya from the Jafari Shiite School also share the Hanafiteopinion. Therefore, it would be misleading to take the universal view on human rights asan exclusively Hanafite perspective-despite the fact that its originator was Abu Hanifa.The universalistic jurists used mainly the following arguments while defending theirdoctrine: (1) Gods purpose in creating humanity, the trial (ibtila) and holding themresponsible (taklif) for their actions, cannot be achieved unless all human beings are

granted sanctity and enjoy freedom. (2) The human must be protected because God doesnot want his creation to be destroyed, which is possible only by granting sanctity to eachone of them. (3) God in the Q. and Prophet Muhammad in his sayings strictly prohibitedassaulting and slaying any human being . They even ordered protecting non-Muslimwomen, children and clergy during war. (4) Disbelief (kufr) is not normally harmful toMuslims unless the disbelievers engage in a war against Muslims. So it must be tolerated(5) Jihad is a defensive, but not an offensive, war. Therefore, when non-Muslims do notassault other people they should enjoy sanctity. (6) The objective of war is not toexterminate the enemies but to force them to make peace and, if required, pay tax. (7)The justifying reason for war is protecting sanctity against those who assault it. Thedisbelief of the enemies is not a valid reason to make war against them. Therefore whenpeace prevails everyone must enjoy sanctity. (8) The non-Muslims must be given chanceto learn about Islam which they cannot do unless they are granted sanctity. (9)Compulsion in religion is forbidden in the Q.. These arguments are all based on the notionof a universal human and his place in the network of social relations with other peopleworldwide. It also aims to establish peaceful relations not only between Muslims and nonMuslims but also among non-Muslims from different religions. These scholars mainly usethe following arguments to defend their opinion: (1) The Prophet prohibited killing anyoneduring the time of peace and he ordered protecting non-Muslim women, children andclergy in the war. (2) Disbelief (kufr) is not normally harmful to Muslims unless thedisbelievers engage in a war against Muslims. (3) Jihad is a defensive war, but not anoffensive war. (4) The human must be protected because God does not want his creationto be destroyed. (5) The objective of war is not to kill non-Muslims but to force them tomake peace and, if required, pay tax. These arguments are all based on the notion of auniversal human and his place in the network of social relations with people with differen

faith. This approach aims to establish peaceful relations not only between Muslims andnon-Muslims but also among non-Muslims from different religions. The protection of fivebasic rights is also considered the common ground of all religions, which provides ajuridical ground for religious pluralism. For this reason they are called the objectives ofthe law or religion (maqasid al-shariah). It is apparent that Islamic law assumes thatpeople would always belong to a religion, which is not the case today. According toIslamic theology and lawjurisprudence, these five principles constitute the unchangeablecore of all religions and the legal systems in the world. It is agreed by all Muslims that thcreed (aqidah) does not accept changealteration but law (shariah) accepts it becausesocieties evolve and undergo change. Therefore the faiths taught by all the Prophets havbeen the same but the laws issued by them changed over time. Yet the main purpose ofall religious legal systems across history--formulated as the protection of five basic rightsremained unchanged. One consequence of this approach is that Muslims allowed the non


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13Muslim populations they ruled to practice their laws unless it harmed one of the protectebasic rights. For instance, narrative has it that when Egypt was conquered, Amr ibn sallowed the Egyptians to practice their conventional laws except the custom of sacrificinga girl to the Nile for more water. Likewise, it is also reported that, in India, the Hindus weallowed to practice their law except the custom of burning the widow with the body of helate husband. These two customs in Egypt and India were outlawed by Muslim rulers ofthe time because they contradicted the right toof life. It was argued that these customscould not originate from the practice of the founders of these religions because theynormally would respect the five protected basic rights. Similarly, the marriage between

brothers and sisters were outlawed among Zoroastrians in Iran because it was seen asviolating the protection of the family. The above named scholars considered the protectioof the five basic rights necessary based on the argument that the purpose of God increating the human family on this earth is trial (taklif), which cannot be achieved unlesthe human is free and protected. Otherwise, if human beings were not granted basicfreedoms and protections, their purpose on earth would be unrealizable. A humansreligious choice must be honored even if it is in contradiction with the Islamic teaching. Hlife must be protected because this is the only way he can respond to the divine call. Hisreason must also be honored since reason is the mechanism by which moral choices ofright and wrong are made. Reason is also the only way through which humans understanthe divine message and implement it. The mind of everyone must be honored andprotected even if they oppose the way we think. The classical doctors of Islamic law usedthese theological arguments to justify the five basic rights. To illustrate this issue further,

we may also briefly look at the Hanafite view on war. From the Hanafite perspective,denial of Islam (kufr) does not justify war and deprivation from the five basic rights(ismahismah). For Abu Hanifa, war, not disbelief, is the cause of war. In other words,non-Muslims are protected during peaceful times since they are human beings (dam),and difference of faith is not a cause for war. Even in the case of war, the enemy sidemust be granted certain rights because damiyyah never ceases to exist;, however,certain constraints emerging from the conflict situation apply. Yet violating theismahismah of others result in the termination of ones own ismahismah, but neither aa whole nor forever. An official court, but not individuals, determines the consequentialpunishment based on objective rules. Yet, if the public authorities fail to protect theismahismah of the citizenry, or if they are the ones who violate the ismahismah of theiown citizens, then the individual is entitled and obliged to protect his or her herismahismah. If people die during the struggle to protect their ismahismah, they arerevered as martyrs. In other words, the struggle to protect basic human rights, such asprotecting religion, reason, life, family and property, which are necessary for a free andjust society, is considered to be equally important as the struggle in the battle to protectthe abode of Islam against outside enemies. This is because the ismahismah is indivisiband cannot be suspended under any condition for all humans who are in principle grantedthe same basic rights on the equal and permanent basis. However, as far as the criminawho deserve a punishment is are concerned, the ismahismah becomes divisibleaccording to the Hanafites and thus during the punishment, it is suspended only in partand for a limited period of time. The Hanafites claim that only the relevant part (mahallal-jaza) from the ismahismah of the criminals, which is legally determined, is suspendedduring punishment while the rest remains intact. For instance, the property of a burglarshould still be protected even if he is punished for burglary. The Hanafite Sschool has

been strongly influential in the Indian Subcontinent, Central Asia, Asia Minor and theBalkans, particularly during the life of the Ottoman State. The discourse of the Ottomanscholars of law confirms the Hanafite perspective, briefly outlined above. Yet, presently,the research is lacking to determine the extent to which the Ottoman State actuallyfollowed the Hanafite principles in their seven- centuries- long history. At this moment,the only observation we can make for sure is that they gave primacy, at least in theofficial discourse of the Millet System, to the Hanafite law in their effort to rule a multi-national and multi-religious empirestate on a vast geography for an exceptionally longerperiod of time. The Ottoman legal discourse on the Millet System and the debated rightsof non-Muslims under Ottoman rule can be followed in the writings of the OttomanShaikhulislams and Ulema on Fiqh. The Ottoman example is one among many parallelexamples from Andalusia to India. Therefore, although it may not be seen as the only orthe authentic practice of Islam, Ottoman experience provides a significant and relative


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14recent Islamic example for a noticeably plural society under Islamic rule. The presentconcepts of citizenship and rights are based on different philosophical grounds than theway they were viewed by classical scholars of Islamic law. Yet despite the manifestdifferences between the premodern universalist approach in Islamic law and the modernsecular legal systems, which I do not need to point out here one by one, a similarity isstriking concerning the concept of a universal human, which serves in both legal culturesas the philosophical foundation of universal human rights. Abu Hanifas influencecontinued until the beginning of the 20th century. For instance, Al-Miydani (d. 1881), aSyrian scholar from Damascus, wrote at the end of the 19th century that the person has

sanctity by virtue of his existence (al-Hurr masum bi nafsihi). By the fall of the OttomanEmpireState, the Hanafi view suffered from an eclipse until today. The so-calledcontemporary Islamic states disinherited the Ottoman legacy and disowned theuniversalistic view in Islamic law in favor of the exclusive doctrine on human rights, whichwill be outlined below. Al-Miydani: al-Hurr Masum bi nafsih. b.(b) The Communal View:The basic rights are accorded by virtue of Islamic faith or a treaty: The competingdiscourse network, emanating from al-Shfii and crossing the conventional school borderalso gained followers from other schools of thought. This discourse lacks the abstractconcept of human qua human as a possessor of rights. Instead, it relies on the religiouslydefined categories, such as disbeliever (kafir) and believer (mumin). Non-Shfiitescholars such as Imam Mlik (712-795), Ahmad ibn Hanbal (780-855), and the majority oftheir followers (e.g. Dawud al-Zahiri, Ibn Hajar al-Haytami, Shirbini, Kurtubi, Karafi,Bujayrimi, Ibn Arabi, Khallaf) also defend the same perspective. Although its first

renowned advocate was al-Shfii, an inter-school network of scholars defends thisperspective. The majority of the classical Shiite scholars also adopted the same approach(e.g. Ts, and Hilli). These scholars generally use the following arguments: (1) Theinjunction on fighting against infidels in the Q. (9/5, 12; 8/39) is a general commandment(2) The Prophet said: I am ordered to fight against people until they say: there is no deitbut Allah. (3) Disbelief (kufr), they argue, is the worst sin and cannot be allowed. Basedon my initial research, the category of a universal human, comparable to the Hanafiteconcept of damiyyah, does not exist in the Shfiite doctrine. Instead, the Shfiite legalthought reliesy on the religiously defined categories of Muslims and non-Muslims. ThMuslims are qualified for the ismahismah by virtue of their faith (iman). However, thenon-Muslims are not qualified for the ismahismah unless they make a treaty with theMuslim state and secure their protection in exchange for the taxes they pay. This treaty called dhimmah and the tax paid for it is called kharaj. According to Hanafites, the treatyof dhimmah is not a reason for ismahismah (which is already universally present), ratheit is an alliance against the third parties. Likewise, according to the Shfiites, being a nonMuslim, with the exception of dhimmis, is a cause for war. From the communalperspective, since the non-Muslims do not have ismahismah, the relationship betweenMuslims and non-Muslims is considered to be a continuous state of war unless there is atreaty of peace. Yet, according to the Hanafites, the non-Muslims who are not the citizensof the Islamic state are also protected because they have ismahismah as humans.Likewise, the apostate (murtadd) is punishable because of his apostasy (kufr), accordingto the Shfiites. For Hanafites, apostasy is punishable, not because it is a denial of Islamas a true religion, but because of its danger to the community and the confusion of faith causes. These points can be seen as just some implications of the lack of a concept of theuniversal human and his rights in the Shfiite doctrine. The Shfiite view, which is also

shared by a significant number of scholars from the Mlikite, the Hanbalite and Shiiteschools, hasve been influential in Hijaz, Egypt, and North Africa, Spain and Iran in varyingdegrees until the Ottoman rule took over. The Jews and Christians residing in theseregions maintained their life as dhimmis who possessed ismahismah due to their treatywith the Islamic rulers who followed the Shfiite doctrine. Critique and Search for a NewSynthesis: I will adopt a method of historical and contextual interpretation of the legalevidence used by al-Shfii and his followers to reach a consolidation between thecommunal (Shfiite) and the universal (Hanafite) positions in the Islamic legal doctrine.This approach has already been used by the scholars who adopted the universal approacto basi

c human rights in their counterarguments against those who called for a communal viewThe communal arguments, which I summarized above, are criticized as follows: Regardin


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15the first and second arguments, it is claimed that the various orders in the Q. and Hadithto fight against non-Muslims apply to the times of war or a particular group of Arabpolytheists living in Hijaz. Therefore, these orders cannot be generalized. Against the thircommunal argument mentioned above, it is argued that the non-Muslims must be givenchance to learn about Islam. Besides, Islamic law does not punishes not aall sins againstGod unless they harm other members of the society. Furthermore, the compulsion toaccept Islam is forbidden. On a more philosophical level, the prominent Hanafi scholarMarghinani (d. 1197) criticized the Shfiite view as follows: With respect to the argumenof al-Shfii, we reply that his assertion, that the sin-creating protection (al-ismahismah

al-muthimah) is attached to Islam is not admitted; for, the sin-creating protection isattached, not to Islam, but to the person; because man is created with an intent that heshould bear the burdens imposed by the LAW, which men would be unable to do unlessthe molestation or slaying of them were prohibited, since if the slaying of a person werenot illegal, he would be incapable of performing the duties required of him. The persontherefore is the original subject of protection, and property follows as the dependantthereof, since property is, in its original state, neutral, and created for the use of mankindand is protected only on account of the right of the proprietor, to the end that each maybe enabled to enjoy that which is his own (The Hedaya, II, 201-2).c. Eclectic Thinkersand Reconciliation between the Two Paradigms: The universal approach crossed theboundaries of the Hanafite school and gained followers from other schools of thought(madhhab) in Islam, which gave rise to an inter-school discourse network. A brief survey other like-minded scholars and their intellectual affiliation will demonstrate this structure

Non-Hanafite scholars such as Ghazzali from the Shfiite school, Ibn Taymiyya and Ibn aQayyim al-Jawziyya from the Hanbali school, Ibn Rushd, Shtib and Ibn al-shr from theMlikite school, and Maghniyya from the Jafari Shiite School also share the Hanafiteopinion. Therefore, it would be misleading to take the universal view on human rights asan exclusively Hanafite perspective-despite the fact that its originator was Abu Hanifa. II.The Genealogy of the Human: We tend to take the concept of the human for granted.Gaining recognition as a human before the law is no longer considered a greatachievement in the world today. However, historically, it was not always so. This was truparticularly for the minority groups of men, and, in particular, women. It was only througa prolonged evolution in belief systems, social structures and legal concepts that all menand women came to be considered human and person on an egalitarian bases. Thedefinition of the concept has been forcefully expanded by the struggles of segregatedgroups . Rarely, however, did a group fight for the rights of other groups. Though I haveno claim on the Western legal tradition, I would like to begin with it because it is thefamiliar story. The purpose here is to set the ground for the future comparisons I intend undertake for a better illustration of the tensions in the Islamic legal tradition. I believe thtension in Islamic law between inclusive and exclusive paradigms is a phenomenon thatcan be commonly observed in the Western legal culture as well. Therefore, without goinginto detail, I will rely on the common narrative about the history of the concept of humanand human rights. The Genesis of Human in the West : Currently human rights have beeaccorded to an object called human. It is a recent innovation and a legal construction. Itmeaning has also gone through semantic shifts, contractions and expansions. The wordhuman was first used in English in 1533 , as a synonym for the word man. The wordperson, which emerged in English during the 13th century, is also used synonymously .Both terms have been variably constructed and used in the political and legal discourse

during the subsequent centuries. Person, used more as a technical legal term, is definedas the bearer of rights and duties, whereas human, used more as a philosophical conceptrefers to any member of the human family. Usually, in the common discourse, they areused interchangeably. Historically, a human or a man has not always been considered aperson, the bearer of rights and duties. Even if they were considered so, they have notbeen considered equal regarding rights and duties. Certain law dictionaries reflect therecent manner the concept was used as such: Every full citizen is a person; other humanbeings, namely subjects who are not citizens, may be persons. But not every human beinis necessarily a person, for a person is capable of rights and duties, and there may well bhuman beings having no legal rights, as was the case with slaves in English law Aperson is such, not because he is human, but because rights and duties are ascribed tohim. The person is the legal subject or substance of which the rights and duties areattributes. An individual human being considered as having such attributes is what


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16lawyers call a natural person . Recognition of all human beings as equal persons on theglobal level is a new concept in the Western history. The communication revolutions in thpast century, especially the internet, resulted in the Death of Distance and brought abouclose interaction of foreign cultures, religions and societies on the global level, whicheradicated some of the traditional symbolic borders between different communities. Theterms human and person gradually expanded until they encompassed all human beings,regardless of sex, color and religion. Consequently, when we read historical documentswhere the terms person and human occur, we need to determine who are meant by themFor instance, in the historical declarations of human rights, these terms do not denote

everyone in the concerned society. Instead, they usually include the parties at thebargaining table. For instance, the concept usually does not embrace women. Thereforeattributing contemporary meanings to the terms used in the historical documents, such athe Magna Carta, would inescapably lead to anachronism. What are the social, political,legal and cultural dynamics that triggered and sustained this sluggish expansion in theegalitarian definitions of human and person? The process of the evolutionary semanticexpansion has been characterized by bloody conflicts. During the middle ages, men andwomen, the clergy and laity were not equal. Nor were the nobility and lower classes.Every excluded group, it appears, had to forcefully fight to gain the right to inclusion andto be treated as equal humans. Women, African-Americans and Jews are just someexamples of such groups who were normally excluded from the concept. The definition ofhuman rights bearers initially included West European white males. Even Englishspeaking residents of the American colonies were not treated as full persons by the Britis

Empire. Through the American Independence war, American white males gained thestatus of being considered equal human beings with the right to self-determination. Thecivil war, the civil rights movement and the feminist movement caused the concept tofurther expand to embrace all US citizens. Yet, the individuals in the US who arecategorized as permanent residents or aliens are still not granted equal rights ascitizens. With the UN Declaration in 1948, for the first time in history, the terms humanand person have been used in a truly inclusive manner on the universal level. Later, theconstitutions of some member countries, e.g. most European countries, have alsoincorporated the concept of universal human and the ensuing rights while some have notAlthough it played the leading role in the preparation of the UN Declaration, the US hasnot incorporated the concept of the universal human rights in its own constitution, whichrelies on the concept of civil rights. The above survey demonstrates how the changingconstellation of relations among nations and groups transformed the concept of exclusiveconcepts of human and person into inclusive and universal ones. Excluded groups werenot welcomed out of mercy. Instead, each group had to pave its way forcefully. The birtof the concept of human and its definition, as history documents, has been contentious,painful and bloody. The concept of the universal human is a great achievement forhumanity with the due cost paid by the lives and blood of an enormous number of peopleall over the world.

Historians usually credit the philosophers of the Enlightenment for the initial formulationof a concept of the universal human. Why did they construct such a concept and what didEuropeans do with it? We need to look more closely to the conflicts at that time betweenthe secular intellectuals and the ecclesiastical thinkers. The Enlightenment philosophersundermined the religiously defined, and thus non-universal, concept of a human to set thphilosophical ground for a secular definition. They were trying to draw a new line againstthe Christian Church doctrine of the time, by speaking on behalf of humanity, but not onbehalf of Christendom. From this perspective, the construction of the universal humancan bee seen as a secular achievement, which took place after emancipation fromreligious categories imposed on human groups based on their faith.

The history of the human rights can be extended retrospectively to the past by exploringnot only its immediate fathers but also remote ancestors. For instance, the work of ancieprophets and philosophers can be seen as achievements toward a universal concept ofhuman . These efforts, which must be understood within their own context, cannot becompared in organization and implementation to the UN declaration, although itsobjective still remains as a remote ideal for the majority of the people in the world. Thearticle 6 in the UN Declaration stipulates that Everyone has the right to recognition

everywhere as a person before the law. This may be seen as the culmination of a long


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17process in the Western history from segregation to civil rights and to universal humanrights. Through this article, the universal bearer of human rights was reaffirmed and rightwere accorded to every human.

Religious and conservative traditions in the world, which initially opposed the universalhuman rights, eventually came to internalize them and unearth the roots of the idea intheir tradition. These traditions may be seen as the ancestors of the idea, but not theimmediate sources because, as history documents, it belongs to a coalition of secularefforts, both socialist and capitalist and Eastern and Western combined. Each tradition

has justified human rights in their own terms. The states agreed on the rights butdisagreed on their source. Therefore, UN documents strategically and persistently evadethe reference to the source of rights. The silence of the documents on the source of righallows each community to variably justify them while still remaining within the universalparadigm of human rights. Thus, even if the socialist ideology, which championed humanrights more forcefully than others during the last century, found itself in crises by thecollapse of the USSR, the UN and the universal human rights paradigm remainedunaffected. Internalization of the human rights paradigm by various secular and religiouworldviews and activation of their resources to justify them in their own dialectsstrengthens both sides.

The Western human rights discourse has a dynamic history with many dialects. It hasalready become the lingua franca of politics and law in our age. The present challenge fo

Western advocates, especially Americans, is to make the human rights paradigm work foall, especially globally beyond the Western world. Since its legitimacy heavily derives fromits claim to universality, the survival of the human rights paradigm in the West depends owhether it will work for non-Western people as it does for Western people. Otherwise, ifthe New World Order fails to make it work for all at the global level, its legitimacy andcredibility will be undermined, and consequently the inevitable recess back to theexclusive civil rights paradigm will ensue in the West.

The Genesis of the Human in Islam

After the familiar story about the development of the inclusive concept of human and theuniversal human rights in the Western history, now we can turn to Islamic history to see ithere is a concept of a universal human in Islamic legal tradition. If so how and when didit emerge? How did it evolve? And what did Muslims do with it?

The concept of the universal human was born with the teachings of the ProphetMuhammad (571-632). The Quranic message is addressed to the entire humanity (al-napl. of insan) and the children of Adam (Benuu Adam). The terms used in the Q. and thesayings of Prophet Muhammad (the Hadith) to indicate human are insan, ibn adam (childof Adam) and nafs (soul or individual). Yet our focus here is not on the scriptures of Islam(the Q. and the Hadith) but on the Islamic law, which is extrapolated from them as well asother resources such as custom and analogy. Previous studies have already explored theway the Q. and the Hadith approach the definition of a human and human rights. Thus Iwill not reproduce those here.

My research in the classical Islamic literature on jurisprudence demonstrates that there issuch a concept in the legal discourse network emanating from Abu Hanifa (699-767), butis absent in the competing legal discourse network emanating from al-Shfii (767-820).The Shiite scholars are also divided on this issue. Abu Hanifa and his followers use theterm damiyyah (lit. being a child of Adam, humanness, or personhood) to indicate theabstract concept of a universal human. Having ascertained the existence of a universalconcept of human in Islamic legal tradition, we know now that it is likely for Islamic law toproduce human rights. Since the basic concept exists, it is possible to analyze and evolvit.


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18Who is, then, a human in Islamic thought? She is created in the image of God, notphysically, but spiritually, in the sense that her attributes are similar to those of Godregarding mercy, knowledge, love, justice and the like. God bestowed His attributes suchas knowledge to humans yet in a limited form. Infinity belongs only to God. Human soulis a divine breath. A human is a vicegerent of God on earth; she is charged to representHis will and implement justice. Gods love and providence for humanity are universal, forbelievers and infidels, for pious and sinful. A believer is also required to love God and Hisentire creation and treat them accordingly.

All human beings are created perfectly. They are born with perfect souls. By nature,everyone is a Muslim, in the sense that they all obey Gods will, peaceful and free of sins.Yet later they are misled by the corrupt traditions, customs and cultures. Islam is seen athe natural state of mind and heart; the natural religion, law and morality. The word Islamis used as a generic name for all religions sent by God to humanity, not only the religionpreached by Prophet Muhammad. Thus, for a non-Muslim to embrace Islam is a reversioto her nature, not a conversion. Rational theologians believe that even if God had notsend Prophets, people can, and must, discover what is good and bad by using their mindsand conscience.

God sent Prophets to help people in easily learning what they can also discover bythemselves but in a longer time. Divinely inspired teachings of the Prophets reaffirm whais inherent in human nature concerning good and bad conduct. God does not punish a

people without sending them a Prophet to warn and teach them; otherwise it would beunjust. Therefore, hundreds of thousands of Prophet were sent to all peoples of the worldProphet Muhammad is the last ring in the chain of Prophets; he inherited the legacy of allProphets who came before him, integrated and perfected them.

No human being is god. Nor can one speak with the voice of God. All are vicegerents ofGod on earth and have direct personal access to God. No mediator is allowed betweenGod and human. The ruler is the vicegerent of Prophet Muhammad, this is what the wordCaliph stands for (khalifat rasul Allah), but not representative of God, which is a titlecommon to all.

A human occupies the highest ontological category, higher even than the angels.Therefore, God ordered them to prostrate before Adam. Angels are not blessed with the

free will and rational knowledge. Yet, corruption may cause humans to descend to thelowest levels of creation. Woman is not blamed for the fall from Heaven. Devil deceivedboth Adam and Eve in Paradise at the same time; it was a jointly committed sin, whichwas forgiven by God after they repented. Those who commit a sin must repent bythemselves and revert back to their pure state. Publicizing a sin one has committed bytelling it to others is blameworthy.

The heart of a believer is the House of God, more sacred than the Kaaba in Mecca. TheKaaba is a stone building and will perish as the entire world will collapse in the last hour,yet a human heart is made of divine light and will not perish. The seat of reason is heartThinking is an activity of heart. Oppressing others and corruption may cause heart dieand loose touch with moral reality. God looks only at hearts and actions, not at theappearance of the individuals.

Diversity among humans is intended by God because it reflects His power and art. Godcreated humans in different sexes, races, nations and cultures without giving superiorityto one over other. The diversity allows them to know each other, a knowledge throughwhich they discover Gods greatness. The Q. states:

O humankind! Lo! We have created you male and female, and have made you nations antribes that ye may know one another. Lo! the noblest of you, in the sight of Allah, is thebest in conduct. Lo! Allah is Knower, Aware (The Q. 49/13).

God uses the relations with fellow humans to try them. The trials are passed if all therights are paid. Man and woman are tried in their relations. Same is true for familymembers, neighbors, sellers and customers, teachers and students, and rulers and

subjects. Religion is for humans but not vice versa; humans are not for religion; it is sent


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19to improve love, morality and justice in social relations. Prophet Muhammad said: I amsent to perfect morality. He also said: The best among you in the sight of God are thoswho are best in their conduct to others.

Rights and duties bind people to each other in constructing a society. God createdhumans in such a way that they cannot maintain their life alone; needs brings them closeto each other. Satisfaction of needs must be through lawful and moral ways. Humans arthus social and moral beings.

All human beings share fundamental rights equally. Basic human rights in Islamic law faunder the heading of ismah, which literally means legal protection, sanctity andinfallibility . Occasionally, the concept hurmah, which literally means sanctity, is also usewith the same meaning. The ismah covers five basic values: life (nafs), property (ml),religion (dn), mind (aql), family (nasl). The latter is also called honor (ird) by themajority. However, some jurists consider honor separately as the sixth universallyprotected value. In other words, ismah provides the following basic rights: right to life,property, freedom of religion, expression, family and honor. In the current language ofhuman rights discourse in the West, these are called basic or irreducible rights. Onehas to bear in mind that the political system under which these terms were used wasdifferent than the national state structure we are living in today. Therefore, one shouldnot equate them with their contemporary counterparts without further exploration anddeliberation.

The protection of these five values are considered the five founding principles of law (ausul al-khamsah), the indispensible or axiomatic rights of the human (darrat ordaruriyyat), the expected functions of law (masalih al-mursalah) and the objectives ofthe law (maqsid al-shariah). Islamic law also recognizes other needs and rights forhumans, but they are less strongly emphasized: the fundamental needs (haciyyat) andaccessories (tahsiniyyat). These terms will be discussed later in greater detail.

Muslim jurists employed the term ismah to develop a universal legal philosophy,regarding the needs fulfilled by law, its governing principles, objectives and functions.They considered the protection of the basic human rights, covered by the concept ofismah, not only as the foundation of Islamic law, but also all legal systems. These juristsexpected all legal systems to conform to this basic criterion, grounded on the concept of

ismah, to be qualified as legitimate under Islamic rule.The classical jurists set the goal of the political system as the world order (nizamal-alam), embracing not only Muslims but also the followers of other belief systems.Consequently, Islamic societies in history from Andalusia (756-1031) to the Middle Eastand India (1526-1857) had usually been characterized by a cos

Âdamiyyah and ‘Ismah Sociology

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