In many Muslim countries, even those with ostensibly secular governments, some of the legal codes — especially family and personal status laws, laws regulating sex outside of marriage and laws of punishment — are enactments of Sharia, or Islamic law. Sharia-based laws are generally seen by the local population as not merely the law of the land but as the law of God.
Sharia — “path” or “way” in Arabic — is, like Halacha, a particularly well-developed legal system that regulates many aspects of day-to-day life. So long as adherence to Sharia, or for that matter to Halacha, is voluntary, it generally presents no issue of human rights violation.
Your mosque, or church or synagogue, can demand your obedience, but it can’t send you to jail if you refuse. If the state gets into the act by bringing its power to bear upon the enforcement of religious law, any resulting discrimination or abuse becomes the responsibility of the state, and fair game for criticism from the international community.
Doing so can be tricky. The business of the human rights community is to scrutinize laws and practices in light of human rights norms, not to express judgments about a law’s source. In the words of a typical disclaimer in a Human Rights Watch report on Sharia-based (and gender-discriminatory) divorce law in Egypt: “Human Rights Watch does not advocate for or against Sharia per se, or any other system of religious belief or ideology; nor do we seek to judge or interpret the principles of any religion or faith. We are simply concerned about human rights violations resulting from the implementation of any legal system, in any country.”
In other words, vi olations of human rights that are the result of official enforcement of Sharia can be condemned and remedied without reference to Islamic law.
On its face, this approach may seem sensible. Human rights organizations are presumably experts in human rights, not in religion, and so they are right to confine their research and reporting to what the law is, how it is enforced and the effect of the enforcement. If Egypt’s Sharia-based matrimonial law gives women unequal access to divorce; if the Sharia-based law of Nigeria devalues the testimony of women as witnesses in court; if Pakistan’s Sharia-based hudood laws, which punish extramarital sex, are discriminatorily enforced and mandate cruel punishment — then why not call for their repeal on human rights grounds alone?
For many years, this is exactly what advocacy groups like Human Rights Watch and Amnesty International have done. For example, Human Rights Watch’s proposed solution to Egypt’s discriminatory divorce law and Pakistan’s brutal hudood laws, as well as a raft of others, was to call upon the governments to repeal them.
Amnesty International, too, called for the repeal of the discriminatory Sharia-based Nigerian law. Their reports thus speak the language of human rights only, giving the reader no idea that Islamic law has anything to do with the human rights violations documented or the solutions proposed.
But by evincing a dismissive attitude toward Islam — implying that Muslims should reject religious law for no reason other than its conflict with human rights law — these advocacy groups have alienated much of the reports’ most important audience: the local population.
“In a zero sum calculus, God always wins,” said Naz Modirzadeh, a young scholar at American University in Cairo who is sharply critical of such traditional human rights reporting. The “complete avoidance of Islamic law,” the underestimation of the attachment of educated middle class Muslims to their religion, renders such reports, she said, “irrelevant and off-key.”
A Gallup survey released in June, the result of more than 8,000 face-to-face interviews with women in eight Muslim countries, found that vast majorities are proud of their religion and do not regard themselves as oppressed. Even secular reformists in Muslim countries speak the language of Islamic law if they want the local audience to listen.
Muslims will not soon adopt our faith — secular humanism — and to insist that they do so “would be almost as intolerant as the Islamist jihadist demand that we should adopt theirs,” says Timothy Garton Ash, a senior scholar at the Hoover Institute.
In the last year or so, and mindful of risks — such as the implicit legitimization of Sharia’s repressive aspects — human rights organizations have begun to look for opportunities to deploy Sharia-based arguments in support of human rights. For example, it is generally understood by Islamic scholars that the proper evidentiary and fair-trial threshold required for a stoning is virtually impossible to meet and that most executions that are carried out under Sharia-based hudood laws are flawed on procedural grounds.
Modern day Muslim reformists, both secular and religious, press the point: If you are going to impose Sharia-based punishment, you must also afford Sharia-based protection. Human Rights Watch now condemns sentences to death by torture in Muslim countries, not only on human rights grounds but, where appropriate, with reference to Muslim scholarship condemning the practice on religious grounds.
Sharia was recently introduced into some parts of northern Nigeria. According to local witnesses, this has resulted in a regime of brutal punishment, flawed trials and an abandonment of the compassionate values of authentic Islam. Although Human Rights Watch’s report — tellingly titled “Political Sharia?” — contained its customary disclaimer regarding Islamic law, it nevertheless usefully and powerfully concluded: “Some of these practices violate what many Muslims consider to be Sharia’s own rules and principles.” And it presents the testimony of the Muslim witnesses as to their understanding of what those rules and principles are.
It is time to question our assumption that there is little common ground between us and devout Muslims. On some issues, especially the status of women, the assumption remains sadly true, but where we can respectfully engage Islam, we may cause some Muslims to question their assumptions about us.
That’s a beginning. And perhaps this beginning will bring closer the day when such reports will routinely be written by Muslims devoted both to Sharia and to human rights.
Kathleen Peratis, a partner in the New York law firm Outten & Golden, is a trustee of Human Rights Watch.