Sherman Jackson Western Muslims & Human Rights An Alternative Framework

The Discourse School

As for the discourse school, this is the most cynical and perhaps least popular of them all. For discourse scholars, there really is no such thing as human rights, certainly not as an ontological reality. Rather, human rights is simply a powerful, seductive, and convenient language through which various interests are able to pursue their claims, however self-serving or imperial these might be. They denounce the natural school's universalism and transcendence as sheer nonsense.

Indeed, Alasdair MacIntyre once famously proclaimed the belief in any universal notion of human rights as being one with belief in witches and unicorns. At the same time, discourse scholars see all the other schools' singular obsession with political and civil rights as misguided and even complicit in placing abuses other than those of the state beyond critique. For example, abuses by multinational corporations or the various social, cultural, and economic dislocations wrought by globalization.

Yet while rejecting the transcendent claims of the protest school, discourse scholars share the latter's concern for the oppressed. For them, however, human rights, even in the service of the oppressed, is not an ontological reality but merely an ideological tool.

My Position: An Eclectic Approach

Now, my own thinking, or my own position, at least at this point in my thinking, falls somewhere in an annoyingly eclectic space between these schools.

This is not entirely a result of an inability on my part to make up my mind on core issues. Rather, the tendency in human rights discourses, at least to my mind, seems to place everything that might be identified as a human right on the same plane. And this seems to me to be rather misguided.

Primary vs Secondary Rights Classification

I agree that freedom from genocide, torture, rape, murder, unlawful confiscation, detention, and the like can be reasonably defended as human rights. I do not believe, however, that freedom from hijab or polygyny or sharia in general is a human right. Nor do I believe that equality in all of its iterations is a human right.

Nor do I believe that even freedom from racism is a human right. Moreover, to the extent that I would characterize any of these latter as human rights, I would not place them on the same plane or defend them with the same urgency as I would genocide, torture, rape, and the like.

At bottom, with regard to what I have presented here as these first-tier or primary rights, I am inclined to agree with the natural and protest schools. I am hesitant to join them, however, in their attributions of universality and transcendence to these rights. For me, the problem with the natural school and the protest school is that their universalism is based on ideological projection, what I have termed elsewhere false universals.

To use the depiction of the famed gazelle, they look upon their own personal or group interests as if these represented the interests of the entire world.

The Problem of False Universals

This should not be understood as a denial of the possibility of universal values. But to me, all projections, including Islamic projections, result in false universals. True universals, on the other hand, are canvassed, and they are the result of consensus.

Thus, to the extent that what I have termed first-tier or primary rights are recognized as universal, I would say that they could only rightfully gain this recognition along the lines advocated or recognized by the deliberative school, that is, through negotiation and the generation of consensus. Indeed, I suspect that it is the lack of dissent more than any positive affirmation of universality that holds these primary rights in place today.

It is when we come to the functional distinction between primary and secondary rights, however, that an alternative framing may be most relevant.

The Teleological Dimension

Of course, primary and secondary is my own division, and it is not without problems of its own. On the one hand, I am unaware of any Western human rights scheme that formally recognizes such a dichotomy, though it seems clear that polygyny, for example, as a human rights violation, is not the same as genocide.

On the other hand, upon close examination, it is with the secondary rights that we begin to detect, at least to my mind, a certain teleological pretension of the human rights discourse as a whole. In other words, secondary rights often constitute the final aims of human rights discourse, and in this capacity are actually served by the primary rights. In this sense, they are secondary only accidentally and in theory. In actual practice, they are primary.

To state the latter in Islamic terms, secondary rights often constitute the maqasid, or broader aims, of the Western human rights scheme. And just as in Islamic legal theory, no individual law, no matter how explicitly laid out in the sources it might be, is to be applied in instances where its application stands to obliterate one of the broader aims of the sharia, primary human rights may take a maqsid, where their pursuit threatens the unspoken broader interests of the human rights discourse.

Illustrative Example: The Polygyny Debate

Let me try here to give a brief example of what I am talking about. Western critiques of Islamic schemes of human rights, or more precisely of sharia, tend to focus on two main topics, women and non-Muslims. Both of whom are identified as victims of inequality. To my mind, the problem with non-Muslims is more a function of the homogenizing tendencies of the legally monistic structure of the nation state than it is to any specific provisions of sharia.

In fact, the Universal Islamic Declaration on Human Rights states explicitly in Article 10 that non-Muslims have the right to exemption from sharia and to present their civil and family law disputes to their own tribunals. Of course, the same would not apply to women as a class, as the bulk of these would obviously, in a Muslim society, be Muslims.

Now, in one of his essays, a major proponent of human rights in a Muslim context identifies polygyny as a violation of human rights, inasmuch as it discriminates against women. Discrimination here is instantiated by the unequal treatment of women, explained by what is referred to as reciprocity. That is, the principle that X should treat Y in the same way that X would like to be treated by Y. On this affiliation, sharia stands in need of reinterpretation in order to ban polygyny and thus bring it into conformity with the principle of equality.

Yet it would seem to me that where equality, clearly a primary right in the Western scheme, really the aim of this critique, allowing polyandry would be just as effective an option as would banning polygyny. But this is never contemplated, despite the fact that allowing polyandry would carry the additional advantage of promoting greater freedom, itself also a primary right. Rather, the ban on polygyny appears to take precedence as the true aim of pressing the principle of equality. And even the more perfect equality, not to mention freedom, that would obtain by allowing polyandry is sacrificed to the desire to ban polygyny.

Of course, whether you believe this or not, the issue here is not polygyny or polyandry, but the tendency in human rights discourses to conceal, while pursuing interests and outcomes that lie beyond its stated objectives.

Makau Mutua's Critique of Liberal Human Rights

Perhaps few have been more eloquent, certainly among those writing in the West, in insisting that human rights discourses conceal a hidden agenda than the human rights attorney and activist, Makawa Matua. In his book, Human Rights, a Political and Cultural Critique, he refers explicitly to the "holy trinity of liberalism, democracy, and human rights."

He insists that the human rights corpus is essentially a philosophy promoting the diffusion and primacy of liberalism around the globe. Liberalism, moreover, is not an abstract, neutral, or unstoried enterprise. It is emphatically European, and by extension, we might add, American.

According to Matua, the evangelical zeal with which it is promoted, alongside the depths of the deniers of its role as one of the broader aims of the human rights discourse, and I quote here, "leaves humanity stuck at the door of liberalism, unable to go forward or imagine a post-liberal society."

To be sure, liberalism is an amorphous term, both denoting and connoting many things to many people. I do not think it would be a misrepresentation of things, however, to say, as does human rights advocate Sally Mary, that, and I quote, "human rights are part of a distinctive modernist vision of the good and just society that emphasizes autonomy, choice, equality, secularism, and protection of the body."

Again, their pretensions to transcendence and universalism notwithstanding, these values are quite storied and often pressed to teleological ends. This may not always be the case, but it is routinely so, especially when it comes to Muslim-majority polities.

Neutralist vs Perfectionist Liberal Approaches

In her book, Toleration as Recognition, Anna Galeotti identifies two liberal approaches, the neutralist and the perfectionist.

Neutralist Liberalism

Neutralists see the liberal order as a hospitable empty box in which any culture, tradition, way of life, or worldview is welcome to pursue its dream. Pluralism, according to this vision, both in the sense of allowing competing visions and suspending judgment on their relative rightness, is a primary value. As such, proponents of a liberal order, including the state, have no right to engage in any attempt to produce better citizens.

Perfectionist Liberalism

Perfectionists, on the other hand, see liberalism as entailing a distinct and concrete moral outlook, which must be actively defended and boldly promoted. Pluralism, on this understanding, is a secondary, if not tertiary value, and those whose way of life clashes with the fundamental values of freedom, autonomy, and self-development may be either tolerated if it proves useless or counterproductive to repress them, or coerced if it seems feasible to force them to comply, or if they appear to pose an imminent threat to the liberal order.

Hijab, for example, that is the headscarf, according to perfectionists, while causing no harm in itself, must be combated because it implies women's subordination and invisibility, which makes it incompatible with liberal ideals. Cuteridectomy, on the other hand, must not be tolerated because it is harmful. In sum, perfectionist liberals take a direct interest in producing better citizens, in which capacity they may deem it necessary to force people to become autonomous, secular, individualistic beings in accordance with concrete visions of the liberal good.

Perfectionist liberalism is the form in which human rights, at least to my mind, seems to have come or have been pitched to most Muslim communities.

The Concretization Problem

It does not take much to see, of course, that autonomy, equality, protection of the body, freedom, and the like are all concretized in accordance with views, histories, and sensibilities entirely exterior to these values themselves. Otherwise, there is no reason why hijab, for example, would not be consistent with every one of the aforementioned values, including autonomy, choice, secularism, and protection of the body, as well as freedom, development, and equality.

Cuteridectomy, on the other hand, given our, including my own, cultural biases and sensibilities, is a practice, much like euthanasia, that I, along with many of us in this room, would strongly object to and very strongly encourage others to object to.

Whether or not, however, especially when compared to how we treat, say, prostitution or euthanasia, it is consistent with autonomy, equality, secularism, protecting the body, and the like, seems to me to be an entirely different matter. And, it seems to me, the only way to argue that it is inconsistent with these values would be through the language of human rights, not through the substance of its values.

An Islamic Alternative: Al-Qarafi's Framework

What, then, would be the alternative, presumably Islamic framework for human rights? I shall take as my point of departure some ruminations. And by the way, let me say this. I mean, this is an arbitrary point of departure. We're talking 1,400 years of Islamic intellectual history. There are literally thousands of points of departure that one could imagine. I'm going to take a particular one.

I shall take as my point of departure some ruminations of a very old friend of mine, the 7th, 13th century Maliki jurist of Cairo, Shihab al-Din al-Qarafi.

Al-Qarafi's Legal Framework

In his famous work on legal precepts, al-furuq, al-Qarafi takes up the matter of the relationship, or more properly, the distinction between the rights of God and the rights of humans, huquq Allah versus huquq al-adamiyyin.

Quite counterintuitively, al-Qarafi identifies the rights of humans not with what they are entitled to claim, but with what they have a right to forfeit. As he put it, I have an Arabic here, "everything that a human has the right to forfeit, that is what we mean by a right of a human."

This stands in contrast, according to him, with the rights of God, which are essentially human entitlements that we do not have a right to forfeit. As he put it, "everything that a human does not have the right to forfeit, that is what we mean by a right of God."

To be sure, the ultimate ground of all of these rights is divine dispensation, which positions Sharia to play a determinative role in determining their substance. We should note, however, that what may be understood as human rights are not limited to what al-Qarafi identifies as huquq al-ibad, or the rights of humans. Rather, the rights of God are also essentially human rights, the difference between the two being simply that the latter are inalienable, while the former are not.

Examples of Rights Classification

To distinguish between the two, al-Qarafi cites the fact that humans have an inalienable right to be free of exploitation via usury. Thus, even if they agree to such, this would not be something that they would be allowed to do. On the other hand, humans have a right to be represented by upright witnesses in court, but they may choose to forfeit this right and accept the testimony of scoundrels in their behalf. And I was reminded of this this morning, they may, for example, forgive, pardon, someone who's murdered a member of their family.

That's what he identifies as coming under a regime of human rights. On their face, such examples would seem to be of little use in developing a modern human rights scheme. But this may have more to do with the incumbency and accumulated weight of the dominant order, which makes it difficult to extricate ourselves from the tendency to view everything else through a prism destined to relegate the latter to inferior status.

Modern Application of Al-Qarafi's Framework

What I would like to do in the little time that I have left is indulge al-Qarafi a bit more imaginatively to see what advantages and disadvantages his ruminations might hold for a modern Muslim scheme of human rights. At bottom, al-Qarafi's huquq Allah, or rights of God, I guess I'll use the English, everybody here might not know the Arabic. At bottom, al-Qarafi's rights of God are essentially primary human rights, while the rights of humans are secondary rights.

When we look more broadly at Islamic juristic writings, however, we find that among the concerns most consistently included under the designation rights of God is the sanctity of the public space. This space, traditionally understood to be occupied by Muslims and non-Muslims alike, is unanimously depicted as absolutely inviolable. On al-Qarafi's definition then, it would never be the right of any group or individual to compromise or threaten the sanctity of the public space.

Now as the very value of the public space was the inextricable role it played in enabling humans to sustain their livelihoods and necessary human relations, this provision could easily be seen as covering such primary values as freedom from genocide, torture, rape, murder, unlawful confiscation, detention, and the like. Beyond this, however, the essential aspects not only of religious belief, but also of religious practice, that is, Muslim and non-Muslim alike, could be easily accommodated as a right of God, understood again as the freedom of the public space from violence, terror, and unwarranted molestation.

Advantages of Al-Qarafi's Scheme

First Advantage: Protection Based on Public Space Sanctity

Two things require attention here. First, protection of non-Muslims' primary human rights is not grounded in the principle of equality, nor in that of universality per se, but in that of the sanctity of the public space. Second, and this is related to the first point, there is nothing that requires the public

space to be legally or religiously homogenized or monistic. On the contrary, it is understood in explicit terms to be pluralistic.

This not only qualifies the meaning of Sharia as the ultimate source of the rights of God as well as the rights of humans, but suggests ways in which equality might be an inferior principle in which to ground such primary rights. For if the aim is simply to make non-Muslims equal to Muslims, it is difficult to imagine how they might come to enjoy any rights, privileges, or exemptions other than those enjoyed by Muslims, even if this leads to their being denied the right to practice things that their religion permits.

Second Advantage: More Substantive Rights Scheme

The second advantage that I see possibly in this scheme relates to its provision of a more substantive scheme of rights. As al-Qarafi points out, among the rights of God are such things as freedom from exploitation, from usury. To my mind, this could be read as a synecdochic reference, not only to the various ravages wrought by modern capitalism, but to the notion that human rights concerns can be extended beyond an exclusive emphasis on the specifically political abuses of the state.

In other words, on al-Qarafi's scheme, the abuses of multinational corporations or even local monopolies and vested interests might be more easily drawn into human rights concerns and sensibilities. For it does not matter in his scheme who violates a right of God. Rights of God are inviolable, period.

Of course, the fact that this right, like all other rights of God, is grounded in the Sharia might raise issues about the extent to which non-Muslims would come under this protection. But it seems to me that, in effect, the most that this will do is convert these protections from primary to secondary rights, in which capacity non-Muslims would have a right to forfeit this protection, but Muslims would not have a right to impose this forfeiture upon them.

Third Advantage: Less Hegemonic Teleological Relationship

The third and final advantage, or at least possible advantage, of al-Qarafi's scheme relates to the teleological relationship between his primary and secondary rights. I must admit here that my thinking at this point is still a bit fuzzy.

What I think I want to say, at least for the time being, is that I suspect al-Qarafi's scheme of being less teleological, and thus less hegemonic, than the dominant scheme of human rights in the West. As is known, Islamic law recognizes an explicit regime of broader aims and objectives, known as the maqasid. In this regard, Islam might be seen as no less teleological than the dominant scheme of human rights in the West.

There is another sense, however, in which Islam's teleological thrust neither undermines nor drives its regimes of rights. While the very question of what is the right of God and what is the right of a human is informed by the interpretive contributions of the broader aims and objectives of the sharia, these

rights are concrete and specific, not open-ended principles easily filled with ideologically driven aspirations. In this capacity, once they have been arrived at, they are not easily placed in the service of broader visions of the good society.

Where rights of God and rights of humans are violated or denied, the aim is simply to restore them, even if people may choose forfeiture over restoration in the case of rights of humans. But there is no question of secondary rights providing the teleological thrust or vision for the instantiation of primary rights, as Motuwa and the Diaspora School argue to be the case with the Western scheme of human rights.

It is true, of course, that Islam has an interest in producing better citizens. The difference, however, at least I would argue, is that it does not seek to do this through a regime of rights. In this way, Islamic human rights, or certainly al-Qarafi scheme, would seem to be less hegemonic than the Western scheme of human rights.

Disadvantages of Al-Qarafi's Scheme

First Disadvantage: The Slavery Issue

Let me now turn to two possible disadvantages of al-Qarafi scheme. The first is quite substantive. This is the issue of slavery. In practical terms, the growing global consensus against slavery clearly encompasses Muslims. As mentioned, the Declaration of Human Rights in Islam explicitly outlawed it. In more grounded theoretical terms, however, that is, as an explicitly legal right, the Western system would seem to be a more effective means of placing slavery beyond consideration. Humans, qua humans, simply have a right under any and all circumstances to be free of slavery.

Of course, this too is a storied difference, the Western tradition and experience of slavery being quite different from that of Islam's. Still, the way to placing this higher wall around slavery under any and all circumstances, including war, requires, I think, a bit more sharia grounding, a grounding that al-Qarafi system at least at this point does not appear to provide. After all, slavery is quintessentially an institution at war, at least, or an institution of war, at least according to Islam.

And one can only imagine how differently the public space might be conceived as operating in times of war as compared to times of peace.

Second Disadvantage: Limited Scope

The second disadvantage relates to scope. Specifically, Islam's ability or readiness to extend its moral vision beyond the boundaries of deliberative global consensus. For al-Qarafi, the ultimate determinant of the concrete rights of humans is clearly the sharia. At the same time, humans, or the humans he contemplates, are primarily Muslims. Even non-Muslims who come under the jurisdiction of sharia are understood to enjoy rights that may contradict the moral vision of Islam.

Perhaps the most glaring example of this being the Zoroastrian institution of self-marriage. This is an example I've talked about before where the Zoroastrian priest permitted men to marry their mothers

or their daughters or their sisters. And this is brought to Muslim jurists. And they say, well, if they don't seek our adjudication, we don't do anything. If they do seek our adjudication, we judge them according to Zoroastrian law and not according to sharia.

So while modern history and its ever-expanding deliberative consensus has gone a long way in enshrining the bulk of what I have been referring to as primary human rights, there remains a sense in which Islam, at least on al-Qarafi's scheme, would hesitate to second-guess the concrete schemes of rights upheld by non-Muslims in their autonomous, independent, non-Muslim jurisdictions.

Here, too, then, the Western system will be far less encumbered in addressing human rights in non-Western jurisdictions through such universal values as freedom or equality. Of course, it might be argued, on the other hand, that in taking a more hands-off approach to non-Muslim jurisdictions, Islam is effectively mimicking the way that the rest of the world habitually treats the United States and the West in general. Western countries today are generally not held to have human rights issues. They only have civil rights issues, which reflects the extent to which their regimes of rights are accepted as both self-validating and self-corrective. We know, for example, how vehemently and summarily dismissed Malcolm X was when he tried to cast the plight of black Americans as a human rights issue.

The Role of Virtues and Akhlaq

I would like to conclude here, having perhaps pushed your patience to the limit, with a reiterative remark regarding the limitations not only of the human rights discourse, but of the rights discourse overall.

I mentioned earlier that I did not think that freedom from racism, for example, was a human right. By this, I meant that I did not believe it to be anyone's guaranteed right, that is, by mere dent of being human, that they not be looked upon with contempt or not be looked down upon based on the color of their skin or their ethnic genealogy. What I did not mean, however, was that racism or predatory ethnocentrism were good or morally defensible.

In fact, my beliefs are quite the opposite. But the way to deal with these diseases is not simply through legal prescriptions and sanctions. And we might remind ourselves that law is the primary and premier most favored mechanism through which human rights advocates routinely operate.

Rather, racism and such ills belongs to the province of what MacIntyre and others, including myself, would refer to as the virtues and what Muslims such as al-Qarafi would have known as akhlaq. It is ultimately, in other words, our hidden, pre-rational, even pre-conscious selves that must be addressed and properly animated if these defects are to be effectively addressed. And this, I am afraid, is something the nonreflexive rationalism of the human rights discourses simply cannot do.

The Ultimate Import of Quran 2:275

Which brings me back, oddly, to Quran chapter 2, verse 275. The virtues, or akhlaq, are not simply important as a theoretical alternative to human rights. Their absence is actually the reason that we get

so many human rights violations in the first place. While all the lofty declarations Muslim and non-Muslim alike remain in all too many instances idle ink on paper.

In his book, Saviors and Survivors, Darfur Politics and the War on Terror, Mahmoud Mamdani points to the often feigned or contrived ambiguity between such constructs as official census categories and racism, intervention and invasion, the tragedies in Iraq, Afghanistan, on the one hand, and what is going on in Darfur on the other. The latter being commonly accepted as a human rights concern, the former, commonly not.

In the end, no amount of the kind of rationalistic jousting promoted by human rights discourses, Western or Islamic, will resolve these ambiguities. Rather, like the pre-Islamic Arabians, each side will continue to point to ontological differences that allegedly sustain its case. This is, to me, the ultimate import of Quran 2.275. For this verse makes it clear that in the end, it may be only the virtues and the akhlaq of piety and a heteronormous commitment to obedience to the commandments of God, not any ontologically obvious distinctions that will enable us to see, at least in many cases, the difference between apparent and actual good and evil.

Question and Answer Session

Thank you very much. Yeah. Dr. Jackson said he didn't think about this a great deal.

I'm not sure about that. He thought a great deal about it. Um, I, I, uh, I, I... There are two questions. You can sit down. You want to sit down? Whatever you say, I'll work it. I see Ali, and I see Mohammed's hand.

First Question on Justice and Equality

Questioner: Thank you for your talk. I wanted to ask you... I wanted to ask you... This thing is not on. I wanted to ask you, um, how does justice figure into your account of Qarafi? And I... What I could sense was that you were hesitant to embrace, um, the concept and the practice of equality, perhaps because of its, um, connections with measurability, determinism, uh, irreciprocity of kind, um, calculability of relationality. So I wanted to ask you, if it's not equality, then how do you interpret justice? Couldn't justice, the, um, the normative emphasis on justice, couldn't that be reconfigured into some form of equality?

Professor Jackson's Response:

Well, I think that in general, uh, the problem that I have with both of these constructs is that as abstract categories, they're both fine. I don't think that... I mean, I don't think that you'll find anybody, uh, who's against justice. And even I, in my talk, I said I'm against equality in all of its iterations. The problem is that equality and justice, they all have to be concretized. Uh, and once they are concretized, they become storied constructs.

They have a beginning in history. They have a, an existence in history. They involve competing parties, uh, both in terms of who's on... I mean, who's treating whom, who's the subject and the object of this equality or this justice, all right? Um, and so we get into the problem of how to concretize, uh, these values.

Um, not whether or not justice is, is, is, is, is, is, is a value that we recognize. So I'm not against justice as, as, as a value, but I'm against my concretion of justice parading as universal justice. And I'm also against your concrete, or concretion of equality parading as universal equality.

Uh, an example that comes to mind is, uh, um, uh, what's his name up at Yale? Uh, the law school. Yes, Stephen Carter. Uh, uh, has an interesting, uh, little report in his book, God's Name in Vain. He says that, uh, uh, he was once told by a Christian, uh, chaplain working in one of the, uh, prisons that these Muslim inmates have no right to complain about anything because they enjoy all of the rights that Christians enjoy. And what Carter said is that, well, no doubt they do. But if I were a Muslim, I would want to have the rights that I need to live a dignified existence as a Muslim, not simply the rights that Christians have to live as Christians.

So that, that's an example of a concretion of, of, of equality that's raised to the level of an abstract universal category. That's the problem that I have. I'm not against equality as, I'm not against justice.

Second Question on Naturalism and Governance

Questioner: So, so, so who's justice? Who's equality? No, you didn't. I did, but you know I'm gonna give you a, a difficult question here. Um, it seems to me that, uh, I mean there are a lot of things to, to, that your, your talk raises. But I'm gonna try to focus on one of them.

Um, I think despite your attempt to distinguish your scheme from a naturalist scheme, it's a, it's, it's equivalent to a naturalist scheme insofar as whatever is an alienable right and a non-alienable right is posited uh, as metaphysically true, as a metaphysically true conception, whether that's from God or nature or whatever. So it's, it's, it's conceptually akin to a naturalistic view of rights.

So I wanna press you, there are certain advantages to that and certain disadvantages to that. So I wanna press you on the disadvantages of that view. Because you could take human rights as a project of governance rather than as a project of ontology.

So the purpose is not so much to discover a sort of true ontology of human beings, but rather how do you solve the problem of human beings living together in a, in a, as a, as a problem of mutual governance. And I think this is the thing that, I guess the, the, I guess the way I would critique the Qura'afian conception of the Shari'ah. There's no rule for, there's no role for human governance.

Um, in the way you present it. So that, especially it is clearest in the case of non-Muslims. So rights are generated and then they're given to non-Muslims on a take-it-or-leave-it basis. Now of course, we'd say they're perfectly decent rights. They have a perfectly decent set of rights that, um, entails for them to flourish, et cetera, et cetera. But they have no role in the generation of the rights themselves.

And so I think one could say that at least from perspective of human rights as a, as a governance project, the biggest source of tension is that the human rights as a governance project looks as the ultimate inalienable right that human beings have is to govern themselves. And in your description of this Islamic human rights scheme or this Qura'afian scheme, there is no role for human self- governance. Right? Um, and so just curious what you think about that.

Professor Jackson's Response:

Well, um, I mean, you meant to raise a difficult question and in some ways you did. In other ways perhaps you missed a certain subtlety that I was trying to get at. With regard to the first part of your question, um, I don't think that al-Qura'afis, especially not al-Qura'afis, is a naturalist scheme.

Because in some ways what he's saying, in some ways what he, Tabri, and others are saying is that ontology does not tell the whole story. Even if you are unequal to me, you're less intelligent, you're less, I don't know, wealthy, less whatever, all right? I still have an obligation to treat you in a certain way. All right? And that's not dictated by the ontological relationship between us.

There's something beyond ontology. So they're not looking for natural schemes of rights. They accept a transcendent realm of rights. Now, it's not the same as the naturalist realm because it's not ontologically grounded and it's not universal in the sense that you mean universal.

With regard to governance, I'm not so sure I would fully agree with you and I would take, or I would offer two ideas for consideration. The first is that when we think of issues of governance, we tend to think, again, in terms of the legally monistic nation state.

That is certainly not what Al-Qarafi has in mind. And as I tried to allude to with the example of the self marriage, we don't generate their rights in terms of who can marry whom. And they could change that tomorrow.

We have nothing to do with that, at least according to Al-Qarafi. So if the Zoroastrian community decides tomorrow that gay marriage is fine, what Al-Qarafi is saying is that we don't have anything to do with that. Because we do not presuppose a single regime of rights that runs equally across the board, covering all communities in the same way.

Let me finish, Mohamed. That's on the one hand. On the other hand, I think that we need to be a bit more attentive to the reality of limitations in the scope of Islamic law.

I think that the tendency is to think that, you know, let me put it this way. If Fox News and Newt Gingrich and all these people were to be right, let's say, and Al-Qarafi would come and take over America tomorrow, a good bulk of American law would stay exactly the same as what it is. Traffic laws, zoning laws, licensing medical doctors, I mean, all kinds of things that are outside of the scope of concretely religious law.

And even people like Sheikh Yusuf Al-Qaradawi and others have said explicitly there's no reason why non-Muslims can't participate in those kinds of regulations. No reason at all. So the idea that Al-

Qarafi's scheme would completely ban non-Muslims from participation in what kind of society we have, I don't see that.

And especially for Al-Qarafi because of the pre-modern jurists, he is very explicit in pointing out the limits of Islamic law. There's no such thing as an Islamic speed limit. And he would be explicit about that. There's no such thing as Islamic zoning laws. So I'm not so sure I would subscribe to the notion that they have no role in self-government or in generating the rules that we live by.

Follow-up Discussion

Moderator: One of the tasks I was given by Ellen was to also just to stimulate or raise some questions. Some respondents preferred not to do that. And just to give you a little bit of a break. Mohamed, did you have a follow-up question? Okay.

I thought you were going to help me out here. So I was going to wonder, in terms of the schema, let's bring Al-Qarafi to America as you said, right? So what are the kinds of things that he is going to change? And you talked about the idea of this public space. And I like the idea that you talked about the public space as not being a homogenized one.

You said pluralistic space. But then I'm wondering whether you're thinking about the space in a kind of a... One way that someone like Milbank would talk about as a kind of a complex space, right? But I'm wondering whether when you talk about the Qarafian style is whether it's a hierarchical public space, where certain things will be go according to certain kind of ontological categories. And I'm wondering that in this particular context, how such a set or imaginary of ontological space or ontologically based rights would work in a political space like ours.

In other words, what you would then require is that you have to undo and remake many of the parameters of the nation state to make this possible. To make Qarafi work. Or would it not require unmaking or redoing that? So that's a set of... It's a thought that comes to mind as to how Qarafi will work in the kind of space we have out here.

I know yours is a kind of a think. You're thinking through this issue. You are positing some questions. But I'm thinking of it that if we bring him here what will change? And the question that comes to mind as you were speaking. So let's take it more concretely and take Qarafi to Oklahoma, right? Where they got this Sharia restriction and ban and nothing about Sharia would go through any legislature or courts cannot entertain that. To what extent would this create a way in which it allows, for instance, someone who believe that Muslims are antithetical to their very existence.

So there are certain categories and groups of people in the United States who believe that Muslims and their ideology and their beliefs are completely antithetical. How does one negotiate those kinds of antinomies in a Qarafian model? Because one of the things I find that while you are making very strong accents, very strong accents on difference and on your hierarchy or rather your category of primary and secondary rights and the way you justify those. I'm wondering how one arbitrates those and if you have thought about that in that context.

The other set of issues that Okay. Okay. Let me just throw one more thing up. And that is one of the things that we haven't talked about thus far is the idea that we make it a choice between liberal rights and other kinds of genealogies of rights. And I've seen, for instance, political models that have hybrids. The example is South Africa.

So in South Africa you have a set of kind of liberal freedoms and guaranteed constitutionally but also a set of entitlements. The right to labor to organize, the right to housing, the right to water, all kinds of other kinds of entitlements that citizens require and that is also inspired out of the kind of socialist struggle that was behind the ANC at one stage and also the idea that socialist bloc challenged the bourgeois rights and said what about political economic rights as vital rights.

So I'm wondering that as a set of kind of meditations and reflections that your talk had sparked in me. And finally the third reflection I know you can handle this is that the question of when you move with Qarafi from huquq and yeah I'm going to be philologically kind of challenging you and asking from huquq as huququllah, huquq al-ibad that you translated as rights would you not give any attention to the question of haqq meaning as certain kind of duties that result in reciprocal claims as the early scholars used it.

I mean one of the criticisms I have with people like Rashid al-Hanoushi or the people of the universal declaration of Islamic rights and all those people is the slippage from the medieval and classical Islamic categories of haqq and quick translation into liberal bourgeois rights. And I think those are very different kinds of things and I don't want to accuse you of the same thing I'm just asking how do you do the translation.

Professor Jackson's Extended Response:

Three seconds. Well Ibrahim you'll have to help me out in remembering all these things. Let me try and begin with the last thing first.

I hear what you're saying in terms of this translation of haqq as rights and ignoring what many and by the way I would not consider it to be many of the early scholars who recognize this sort of reciprocal relationship between entitlements and duties. Claims and duties. There are any number of claims that have no reciprocal obligation to them at all.

So in that sense haqq is a right. I have a woman has the haqq to dispose of her property. That's not predicated upon any kind of reciprocal obligation that she may have. There are any number of rights or claims let's say that are not reciprocal. So I would agree that while not all haqq are such that they do not entail reciprocal or presumption of some kind of reciprocal engagement. Not all haqq work like that.

There are haqq that work like that. So I would argue that this translation is not totally bogus and that there is something to be invested in and looking at it like this. Which brings me to my second comment.

Look Qarafi died in 1285. I mean we're in 2011 now. I mean this is an enormous, a gargantuan enterprise of translation Ibrahim. And I don't advocate that Qarafi has set out some kind of cookie cutter blueprint that can simply be slapped down on America. Not by far. In fact, anyone who's read anything that I've read I'm very much opposed to that very move.

That's a ridiculous move as far as I'm concerned. It completely dehistoricizes and in a way that we attribute that dehistoricization to people like Qarafi who was well aware of his existence in a particular historical moment and never said that well I'm writing for Sherman Jackson you know in 2011 at Duke. So I think that there are any number of radical adjustments that would have to be made.

I think that what brought me to thinking about this particular topic in this particular way was the sort of assignment that I was understood to get from Ellen and the fact that I think that Muslims often get stuck and I think Abdullahi was talking about this to some extent get stuck in this notion that the notion of humans having rights is a completely Western phenomenon that has no justification at all in Islam. And I wanted to simply investigate that a bit.

Now with regard to the public space a hierarchical public space I think it would be naive to assume that Qarafi or any other human being as Abdullahi said, I'm agreeing with Abdullahi here. That's quite surprising. That any other human being would come into a human space and want to say that any advantage in power that I enjoy, I want to just give up. I don't want any advantage of power.

I don't think that Qarafi would say that. And I think that to the extent that he could maintain a certain advantage as would the rest of us. He would try to do that.

In terms of the hierarchy however, I thought there would be a hierarchical public space in that regard. But I think in another way the public space becomes hierarchical in as much as we prioritize the different rights that are being distributed. In other words, if I want different rights from the ones that you have, you get yours, I get mine, who's up and who's down? Where's the hierarchy there? It's usually when I want a right, the same right that you want, you get it, I don't get it, that results in hierarchy.

So I think that we're looking at a slightly different kind of public space with Qarafi. And again, man, Abdullahi, this is scary. Because there's a real extent to which, again, he's living in a time where he does not see the state as being invested with either the right or the duty to promote any kind of vision of this as opposed to that kind of citizen.

So he's very much at home with allowing sub-state communities to negotiate that public space. And the state being there more so to keep order. Now, an Islamic order, this is where I differ from Abdullahi, an Islamic order. But with far more sort of distance than we would assume based on the role that the nation state plays today. There's one other question you had and I don't remember it now.

Well, that was about economic and political rights and as not a hybrid system. Oh yeah, I mean, I'm not against the substance of all liberal rights. I guess what I have some difficulty with is, again, the

tendency to speak in abstract, universal terms on the one hand and then present these rights in very storied, concretized ways on the other. That's one thing.

And I think the other is, and I do have some sympathy with al-Qarafi in this regard. He would be looking at a much more sort of communitarian type public space in which the liberal demand in which rights or entitlements are validated and justified basically denies groups the right to indulge their own story. To say, okay, we will negotiate this, but we will not negotiate this because this is simply too essential to our being as whoever we are.

Additional Questions from the Audience

Third Questioner: I see several hands. One, two. Yes, sir. Related to the question that was asked previously. I think that regardless of what the actual source of what constitutes human rights, there are a lot of human rights that we sort of naturally believe without taking the title of naturally for naturalism. What's, in your opinion, and I have very little, no knowledge of Islam, is actually the active role of individual societies, the world organization in actually promoting at least the basic human rights that we have no argument about them whatsoever?

Professor Jackson's Response:

Well, again, as I said, for al-Qarafi, the basic human rights are inalienable, so we have a communal obligation to keep them in place, and that when they're violated, we don't have a right to simply say that, well, no, they are part of the rights of God, and so they have to be defended as such. It's not as if the community has no role in preserving rights, but across communal lines, especially when it comes to what I refer to as the secondary rights, there's not this business of, we're going to make you guys all polygynous because we really think that's a good idea. That's what I was trying to get at.

Fourth Questioner: Hi. I'm actually kind of curious with your definition of rights and Islamic law, and especially your description of the al-Qarafi school. I was just thinking in terms of a Muslim community as being highly heterogeneous, rather than being constitutive of one particular school of thought. And you also were alluding to the rights of God.

In view of what you say, that translation is also a form of interpretation. How would we, therefore, know a law, an Islamic law, that is being constructed here, is representative of the diversity within the Muslim thought, especially since if this particular act is codified in the law or the sharia law of the country. And how would that, therefore, one decide what is constitutive of a set of primaries versus secondaries? And how do we know which are the rights of God? Because each different school of thought may have different interpretations of the very same issue itself.

Professor Jackson's Response:

Well, I mean, basically I think that here, I think, in terms of the nature of Islamic law, and here, I would disagree with Abdullah here, and that is that not everything in Islamic law is of the same degree of how can I put this? There are issues in Islamic law on which there is a unanimous consensus. Now,

whether that consensus is hermetically validatable or not, the general going understanding is that there are things on which there is a unanimous consensus. And very little wrangling around what that unanimous consensus is on these sort of core values.

Beyond that, you're right. Mannequins will claim this. Some mannequins will claim that. Hanafis will claim something else. And part of what our job would be under those circumstances is to come up with a framework for how we negotiate these competing notions of what Sharia stands for. I mean, and this is exactly what al-Qarafi did in his own life.

He happened to be a member of a minority school in a state that sort of elevated or privileged another school. And so what he had to do was fight for his right to maintain his own understanding, a corporate understanding, not his own individual understanding, the understanding of his school as a valid way of going about living a dignified Islamic life. So what we're talking about here is what the framework we would have to do that.

But I don't see how this is any different from what we have in any other legal system. I mean, we talk about Islamic law as if, well, Muslims have all kinds of ideas on all kinds of things. Constitutional lawyers don't have all kinds of ideas on all kinds of things. Judges don't have different opinions. Supreme Court judges don't have different opinions. American law doesn't change from one era to another.

So the problem of diversity and indeterminacy, that's a human problem that we have to come up with ways of managing. I don't see where Islamic law is any different in that regard. Or if it is, it's different in degree in that kind.

Final Exchange on Self-Governance

Follow-up by Second Questioner: I get to ask my follow-up. Just a couple of things. I guess I need to be clear on what I mean by self-governance and collective self-governance. Because it's true, obviously, as a historical matter, that Islamic law created space for non-Muslim communities to practically govern themselves. But it was Islamic law that determined those boundaries. But that's your opinion.

I don't agree with that. It was the standards of the fuqaha that determined where Islamic law applied and where it didn't apply. And so what I mean by self- governance is that each person, or I guess what standard of liberal theory means, is that each citizen has an equal claim on making the rules that govern everybody together.

And that's fine. I think it's possibly possible to defend that model, but I'm just saying that it's absent in that. We were just talking about this issue of indeterminacy. It's a different kind of indeterminacy because it's essentially a theological indeterminacy because we don't know what the proper rule that God wants is. And so as long as we're stuck to interpretive methods of rule-finding, we can't resolve it. But the liberal answer is, we have a political process that we make the rule collectively through this representative institutions.

The result that comes out is the rule that applies to everybody. And so this is what I think is really the heart of the dissonance, is that in the liberal conception of human rights, the most fundamental right for which everything else comes out of, is that you have no power to dispose of your right to govern yourself. Whereas in the Islamic conception, in a certain sense you do, once you become a Muslim, you now have become subject to the rules of God, and there's no sort of negotiation anymore.

Likewise, with the Aqd al-Dhimma, you have consented to become subject of Islamic law, but you're not an author of it anymore. And I think this is where the tension is, not the substance.

Professor Jackson's Final Response:

And I think it would be interesting to see how that could be developed, because I don't think that's necessarily the case. I think it's very easy to come up with theories that are consistent with pre- modern Islamic laws to why non-Muslims can't participate in rule-making. But I just don't think you can find it in the pre-modern tradition. So I'd be curious to hear how would you account for this difference? If you're interested in creating a collective sense of rule-making within the Islamic tradition that encompasses non-Muslims, which of course is a very tangible question now in Egypt, for example.

How do you include cops fully as citizens? How do you use somebody like Qarafi to get there? When it's not even clear for Qarafi, he conceives of Muslims as actively involved in rule-making as opposed to rule-finding. There's a difference in rule-finding, like going to Quran and finding the rule, and then making your rule collectively through deliberation. Also in the context of Egypt right now, there's debate about or some people are raising the debate about Sharia being the source of the law, right? So it's quite article two.

Look, Mohammed, I agree that there are differences in this whole notion of the liberal notion of individual autonomy and the right to determine one's own self-governance. To get that out of an Islamic system would take a lot of heavy theoretical lifting. But I think that it's really important, at least from my perspective, to get our points of departure straight.

Because if, and this is why to my mind, Qarafi would have a bit less of a problem with this than you are implying. Because he does not begin, his point of departure is not a legally monistic state. It is not that at all. He has no problem with imagining, as you say, cops in Egypt, for example, having all kinds of laws that are self-generated by that community that he as a Muslim basically has nothing to do.

This is very alien and foreign to us now. We assume that Islamic law or the quote-unquote, and I think it's true, and it's one of the problems with the Islamic state, that it basically takes over that nation- state model of a legally monistic order and imposes that on everybody. That's not Qarafi's point of departure. So when you talk about communal access to self-governance, I think it makes a difference whether you're talking about a legally monistic state or a legally pluralistic state. That doesn't solve all the problems, but I think it solves a lot.

Not from the liberals. I told you, I mean, you can't get that out of there. Yeah, and I agree. But it doesn't mean that I'm anymore empowered in that system than I would be under this one.

Conclusion

Moderator: Well, Professor Sherman Jackson has given us a lot to think about. There will be a session after this, but we're going to break right now. Please help me to thank Professor Jackson for his presentation.

[Applause]

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This document represents a complete transcription and formatting of Professor Sherman Jackson's academic lecture "Western Muslims & Human Rights: An Alternative Framework?" delivered at Duke University. The content preserves all original arguments, discussions, and Q&A sessions while organizing them for enhanced readability and reference.