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damiyyah and Ismah Sociology of Rights: Human Rights in Islam between Communal and Universal Perspectives Inviolability of the Other in Islam Recep Senturk CONTENTS Introduction 1 I. Human and Human Rights in Islam: A Contested Relationship 10 11

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

b. The Communal View: Basic rights are accorded by virtue of Islamic faith or a treaty 16 c. Eclectic Thinkers and Reconciliation between the Two Paradigms II. The Genealogy of the Human 19 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 Doctrines 31 IV. Why did Jurists Differ on the Universality of Rights? The Ulama and the State 36 40 49 36

Two Root Paradigms in Islamic Jurisprudence

V. Sanctity as the Foundation of Universal Law and World Order VI. Muslims and Modern Human Rights 56

The 19th Century Ottoman Reforms: from Divan to Parliament Constitutional Movements during the Ottoman Period 63 Human Rights Dependency 67

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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 II. The Genealogy of the Human 99

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

b. The Communal View: The basic rights are accorded by virtue of Islamic faith 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 Doctrines 3030 VI. Why did Jurists Differ on the Universality of Rights? The Ulama and the State 3636 4040 3535

Two Root Paradigms in Islamic Jurisprudence

VII. Sanctity as the Foundation of Universal Law and World Order 4848 VIII. Muslims and Modern Human Rights 5555 6060

The 19th Century Ottoman Reforms: from Divan to Parliament Constitutional Movements during the Ottoman Period 6262 Human Rights Dependency IXVIII. What is Sociology of Rights For? 6767 7171

Conclusion: 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 can we rationally prove that we really exist? In response he postulated, I think therefore I am. This is the answer I give to the puzzling question: I ask, sothen what? Descartes stoppedquery, however, culminates therewith that conclusionat that point, without further exploring the social and moral implications of human existence. , one of which is the human rights. It was not an issue at his time. But, because of the change in the Zeitgeist, by the shift from the intellectual primacy of metaphysical quest to the pinnacle of the search for human wellbeing on earth, our generation is characterized by puzzlement with human rights: Hhow can we justify that we really have human rights? More plainly put, my very 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 religious or 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 to human rights cause, instead of undermining it. There is not only a single way to justify and talk about human rights, or any other matter in the world. There may be in the world multiple discourses to talk about human rights and multiple grounds to justify human rights, reflecting the diversity of cultures on the globe. However, currently, some of the representatives of these cultures Tackling this question, Iideologies compete with each other to patronize or monopolize the justificationcause of human rights. Each one claims that only my culture grants and protects human rights. Or they say, my culture is the father of human rights. , an exclusivist position I challenge below.This rivalry is unnecessary, counterproductive and inconsistent with the universalism each ideology claims to represent. In this book I challenge this exclusivist position, regardless of which culture it stems from, and offer an inclusive alternative from a sociological perspective which takes into account the diversity of cultures in the world and their right to produce and maintain their distinct discourse on human inviolability. We, as humanity, had the discourse on human inviolability all along, yet in diverse conceptual and institutional forms. Based on this assumption, a truly universalistic position on human rights is

characterized by three features: accepting the inviolability of all human beings; to do so by virtue of their humanity; acknowledging that other universal cultures also respect the inviolability 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 with a claim for superiority. With the purpose of proving my claim, I chose a universal religious culture, namely Islam, which is currently seen by some as the remotest one to the universal human rights and to the respect for the inviolability of the other. how can we rationally prove that each one of us really has rights by birth and equally deserves a good life? 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 human existence to human rights, I explore the prerequisites and the inevitable implications of our existence in society at the universal level. My approach to this question derives from both the Islamic and the modern secular notions of justice, freedom and human rights. Using the example of Islamic legal tradition, this paperbook demonstrates how both religious (divinely inspired, deriving from scriptures) and secular (rationally inspired, deriving from human mind) worldviews may justify human rights in their own terms, yet arriving at parallel conclusions. These two discourses are, however, different in content, scope and implementation. It would also be an open anachronism to treat Islamic and modern discourses on human rights as the same because they reflect the different historical circumstances in which they emerged and put in use. Consequently, rather than subscribing to the current blanket generalizations in the academic and popular literature, this study explores similarities and differences between them. Furthermore, I also explore the ways we can relate Islamic and modern secular discourse on human rights to each other in the present world. From this perspective, the classical Islamic discourse on human rights may serve as an antecedent or a significant source, for Muslims and others, to develop a new human rights discourse which would more effectively respond to the needs of the modern world in the age of globalization. I think Islamic legacy is important to take into account while re-thinking about human rights at the beginning of the 21st century. Muslims ruled the most troubled areas of the present world for so many centuries in peace under cosmopolitan empires from India to the Middle East and to Balkans. There is a gap between two approaches on the universal human rights: legal perspective with an emphasis on universalism and social scientific perspective with an emphasis on relativism. The gap became manifest during the preparation of the UN Declaration in 1948. The American Anthropological OppositionAssociation (AAA) publicly opposed the entire project of the universal human rights declaration. In contrast, the legal approach has triumphantly claimed that the universal human rights can be codified and justified, yet they did so within the parameters of a particular culture, namely secular and Western. The anthropological approach has claimed that the universal human rights are impossible to define because of the irreconcilable social and cultural diversity of the people in the world; hence the Western and secular definition and justification is ethnocentric. I argue that, combining the legal and social scientific approaches will allow us to reconcile the tension between these two contesting paradigms. The global cultural diversity does not preclude the possibility of a number of common denominators or universal values; cultures with diverse languages and dialects may justify and interpret human rights differently but can still meet at a common ground. 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 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 contest between human rights and civil rights paradigms in Islamic law. Fourth, I will explore why the dichotomy we now face emerged, by comparing the opposing methodological postulates of the rRational and Ttraditional schools of jurisprudence. Fifth, I will further explore the usage of the concept of ismahismah (sanctity, basic human rights) in the classical Islamic jurisprudence as a foundation of a universal legal philosophy, capable of practically facilitating pluralism during the middle ages. Sixth, I will look at the key role the concept of ismahismah played in the human rights declarations and regulations (1808, 1839) by the Ottomans during the 19th century reforms in Islamic law. Finally, I will discuss how incorporating a sociological approach may contribute to a better understanding of the relationship between diverse cultures and the human rights cause. I. Preliminary Remarks

on the Interpretive Framework builds upon the axiomatic relationship the universalistic jurists of classical Islamic law established in the 8th century between humanity (adamiyyah) and sanctity or basic human rights (ismah). Yet There is also another gap among scholars concerning whether human rights are exclusively modern, Western and secular; in other words,an ongoing scholarly debate in the current literature on human rights about on whether universal human rights exist in religious and particularly nonWestern cultures. Some argue that religious and non-Western cultures also promote human 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 theoretical level that the existence of an inclusive concept of a the universal human, detached from innate, acquired and ascribed qualities, makes the existence of universal human rights probable likely while its absence makes it impossible. The universal humanIt is a decontextualized conceptualization of the human being, which is constructed by methodologically discarding the inherited, gained and ascribed physical, cultural, racial, geographical, national and religious qualities an individual may have. This is The existence of a concept of the universal human is the first prerequisite for the universal human rights to be possible so because the object it is the subject to which rights are accorded is a universal 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 rights inherent within a culture, we should first ask whether there is a concept of a universal human 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 (universal human rights). In the absence of the universal category recognition of a human within a society, the legal and political thought culture relies on the religiously, culturally, racially or geographically determined exclusive categories, which forestalls the rise or adoptionappropriation of universal human rights within a culture. The second prerequisite for the existence of human rights in a culture is the existence of due process. If there is a due process in a society, it is very much likely that human rights will emerge in this culture. Existence of due process is usually a reflection of the rule of law and formally defined principles of justice. If there is no due process, we cannot expect human rights to exist effectively on the ground. All universal cultures have fostered a concept of human being at the universal level and the due process to achieve justice in society. Here lies the common ground universal cultures share. The examples include Buddhism, Judaism, Christianity, Islam and modern secular ideologies such as liberalism and socialism. It is possible that some did so more forcefully in some aspects or in some periods. Secular approaches to human rights tend to neglect the metaphysical dimension in their justification of human rights. The lack of metaphysical foundation in the secular discourses may be seen as a weakness in advocating human rights. Religious discourses, on the other hand, tend to focus exclusively on the co-believers. The emphasis on the religious community based on brotherhood in the true faith may also be seen as a source of weakness of religious discourses. Approaching the puzzle from such a fresh theoretical perspective, this research paper book aims to explore the case of Islam and to contribute to this broad discussion by providing a balanced and historically well-grounded answer to the following question: Is there a concept of universal human rights in Islam? Following the above perspective, the answer is that such a concept it is contingent on the existence of 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 human rights. Otherwise, it is impossible without such a framework, it would be impossible to justify universal human rights. Therefore, we should first ask: Do the fundamental elements of a Is there a concept of universal human already exist in Islamic law? The answer to this much-debated puzzle is not plainly positive or negative, unlike the monolithic arguments found in the majority of the current literature based on sweeping generalizations. As the survey of the relevant classical and modern literature demonstrates, this is a long and widely debated issue in the juridical and theological discourse since the early history of Islam. Briefly put, there are rival universal and communal views represented by a network of Sunni and Shiite scholars, and withboth supported by a rich literature and sophisticated arguments and counterarguments. The universal perspective advocates equal human rights for all. In contrast, the communal perspective advocates equal rights only for the citizens of the Islamic state, be they

Muslims or non-Muslims. Yet neither perspective this contest in the Islamic legal tradition is not currently known to most scholars in the field of human rights. The lack of modern literature and research testifies for that under scores this void in the current discourse. I argue that the latent tension in Islamic law between the advocates of universalistic and communal perspectives, which has so far eluded the eyes ofbeen circumvented by the researchers, is analogous to the tension between the advocates of the civil rights and human rights paradigms in the modern Western legal thought. The recent political debates in the US testify that the advocates of civil rights paradigm, concentrated exclusively 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 European constitutions incorporate the human rights paradigm while the US constitution incorporates the civil rights paradigm. Hence emerges occasional tensions between the UN 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 a manifestation of this tension. The current US policy concerning the ICC has been to forcefully call for exemption of US citizens. Although the Clinton administration fully supported it, the Bush administration gained exemption from it for the US citizens. The two rival paradigms in Islamic law have been advocated by two separate networks of scholars. I will comparatively unearth them these approaches from the primary sources with the purpose of shedding light onbriefly present the views of the two schools of thought to highlight the existence of the universal approach to human rights-initially formulated by Abu Hanifa, the founder of Hanafite schoolSchool. Abu Hanifas universalistic, an approach paradigm that had been adopted by a widen inter-school network of scholars affiliated with different schools of law. However, Abu Hanifas ideasit and which haves yet to be fully explored by modern researchers in the West and the Islamic world. Most of the concerns and theological arguments of the Muslim jurists who lived during the middle ages no longer have a ground in the present world, characterized as it is with radically different and secular national and international legal concepts and structures. Yet this research will, first, rectify the view of some Muslims and non-Muslims on universal human rights as a principle foreign principle being imposed on themto Islamic civilization, and will demonstrate the basic consistency between one line of Islamic legal thinking and the modern secular Western perspective. Second, it will provide a solid conceptual foundation in the long lengthy tradition of Islamic jurisprudence for Muslim and non-Muslim Muslim human rights activists, thinkers advocates and researchers to build upon and improve. Third, it will demonstrate that the sweeping claims in the current literature about the existence or absence of universal human rights in Islam must be qualified because these claims cannot stand against the background of a literature with conflicting views. Fourth, it, it will suggest a theory of universal human rights to the present Muslim world by building upon the classical legal legacy of Islam and modern secular notions. I combine the recent discourse and social network analysis methods in my 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 derived from Rawls, Habermas and Dworkin, among others. Therefore law avails itself to the methods of discourse analysis. In analyzing the human rights discourse, I apply the dialogic or interactive approach of Bakhtin to law, instead of the concept of law as a oneway speech act envisioned by Austin. I combine itthis approach with Saussures structural method to explore the interaction between the general rules of language use (langue) and their actual implementation on the groundin the field within a given time and place by concrete individuals (parole). This methodological approach allows me to explore the interaction between universal and local processes in the human rights discourse and the constant 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 methods Silverstein proposed to analyze the self-reflexivity of language will also be applied to explore how legal language acts upon itself, particularly during times of major transformations. I also apply the most recent social network analysis methods to uncover invisible colleges and latent cleavages among Muslim jurists to demonstrate that they are divided into two strands on the universality of human rights, although apparentlyon first glance they belonged to a myriad of opposing schools. This is an exercise in what I call the sociology of rights, a new perspective I aim to develop. The present approach to

rights usually offers only a thin description of rights as a consequence of its exclusive reliance on legal and formal perspective. Alternatively, I suggest a thick description of rights by exploring their cultural, historical, theological and particularly religious roots. These roots can only be found through a study of cultures within their particular historical, sociological, cultural and geographical contexts. It helps us to improve the interaction between, what Saussure called, langue (language in abstract) and parole (language in use in a particular setting) of human rights discourse. It thus serves to explore how the same rights are variably justified by different cultures, both religious and secular, through a myriad of ways. It also helps establish a bridge between the inclusive and exclusive social forces, or the communal we and the global We, the human racefamily. The interdisciplinary nature of this research requires me to mobilize conceptual tools from a variety of disciplines and a diverse literature in Arabic, Turkish and English, to which I will in turn contribute. Abdullahi An-Naims works on the issue of human rights and Islam provides me the theoretical framework to build upon and expand further in producing an Islamic discourse on Human rights, responding to the needs of Muslims living in todays global village. Baber Johansen is the only scholar I know of who touched, although in a very brief article, on the concept of ismahismah (inviolability, human sanctity or basic human rights) as used in the Hanafi School alone, without comparing how it was understood and employed by other schools . The current literature does not even touch upon the relationship between adamiyyah (personhood or humanity) and ismahismah. Consequently, I have to rely on the scattered information in the classical literature and painstakingly piece them together. For the first time, I will comparatively expose the core place the concept ismahismah occupies in Islamic law, and explore its potential usage today in enhancing human rights in the contemporary world. Literature is also strikingly absent ondevoid of mentioning the enactment of universal human rights and their justification by Ulama in Islamic terms during the 19th century Ottoman Reforms, such as abolishing the category of dhimmi, establishing equality between Muslim and non-Muslim citizens, requiring them to pay the same amount of taxes, and allowing all citizens to occupy political and administrative office, and to join in the army. Therefore, the Declaration of Regulations (Tanzimat Fermani, ) (18398) may be seen as the first Islamic human rights declaration in the modern sense. Analysis of these earlier efforts will demonstrate the discontinuity and the lack of accumulation in IslamicMuslim efforts to promote the universal human rights since the 19th century. I will also introduce and analyze the modern Turkish literature on human rights in Islam, which is an extension of the classical Hanafi doctrine and the work of the 19th century Ottoman Ulama. After the UN declaration was made in 1948, Turkish scholars of Islamic law, such as Hseyin Kazim Kadri and Ali Fuat Basgil, produced works advocating that it was consistent with Islamic law and thus deserved the support of Muslims. Unlike anthropologists, the majority of the sociologists curiously neglected the issueinteraction between universal of human rights and society; the way they are variably interpreted, justified and implemented by each culture and community. Among the exceptions is the Egyptian sociologist al-Wafi, whose precedence was not followed by later generations. Therefore, sociological literature on law, in general, and human rights, in particular, is underdeveloped. Besides its considerable advantages to a purely legal approach to the relationship between society, culture and rights, Tthe interpretive framework I suggest will promote and facilitate for sociologists to relate their discipline to, and engage themselves in, the cause of human rights. 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 the inclusive universalistic, exclusive communal and eclectic paradigms on human rights in classical Islamic law. Third, I will briefly demonstrate the practical implications of the traditional contest between human rights and civil rights paradigms in Islamic law. Fourth, I will explore why the dichotomy we now face emerged, by comparing the opposing methodological postulates of the rational and traditional schools of jurisprudence. Fifth, I will explore the usage of the concept of ismah (sanctity, basic human rights) in the classical Islamic jurisprudence as a foundation of a universal legal philosophy, capable of practically facilitating pluralism during the middle ages. 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 century reforms in Islamic law. Finally, I will discuss how incorporating a sociological approach may contribute to a better understanding of the relationship between diverse cultures and the human rights cause.

1.Outline of the Research The Genesis of the Concept of Human and Person I argue that the prerequisite for a concept of universal of human rights is the abstract notion of a universal human which is constructed by methodologically stripping a human offdiscarding the inherited, gained and ascribed physical, cultural, racial, geographical, national and religious qualities an individual may have. In other words, it is a decontextualized concept of human. Therefore prior to posing the question on whether there are is a universal universal human rights in a culture, we should first ask whether there is a concept of a universal human in the legal thought of this particular culture. The lack 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 human, the legal and political thought uses religiously, culturally, racially or geographically determined 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 and Western 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 contest between human rights and civil rights paradigms in Islamic law. Fourth, I will explore why the dichotomy we face emerged by comparing the opposing methodological postulates of the Rational and Traditional schools of jurisprudence. Fifth, I will further explore the usage of the concept of ismah in the classical Islamic jurisprudence as a foundation of a universal legal philosophy, capable of practically facilitating pluralism during the middle ages. 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 century reforms in Islamic law. Finally, I will discuss how incorporating a sociological approach may contribute to a better understanding of the relationship between diverse cultures and the human rights cause. II. The Gene Genealogy sis of the Concept of the Human and Person in the Western and Islamic Jurisprudence We tend to take the concept of the human for granted. Gaining recognition as a a human being person human before the law is 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 the overpowered minority groups of men, and,, in particular, women. It was only through a prolonged evolution in n the belief systems, social structures and legal concepts that all mean and womean came to be considered human and person on thean egalitarian bases. The border definition of the concept has been forcefully expanded by the struggles of the segregated groups . Rarely, however, did some a groups fight for the rights of the other groups s. Though I have no claim on the Western legal tradition, I would like to begin with it because it is the familiar story. The purpose here is to set the ground for the future comparisons I intend to undertake for a better illustration of the tensions in the Islamic legal tradition. I believe the tension in Islamic law between inclusive and exclusive paradigms is a phenomenon that can be commonly observed in the Western legal culture as well. Therefore, without going into detail, I will rely on the common narrative about the history of the concept of human and human rights. The First the Familiar Story: From Man Genesis of to Human in the West Currently Human rights have been accorded to an object called human. It is a recent innovation recent innovation and a legal construction. Its meaning has also gone through semantic shifts, contractions and expansions. The word human, which was first used in English in 1533 , as a synonym for the word man. The word person, which emerged in English during the 13th century, is also used synonymously for the same meaning . 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 defined as the bearer of rights and duties, whereas human, used more as a philosophical concept, refers to any member of the human family. Usually, in the common discourse, they are used interchangeably. Historically, a human or a man hasd not always been considered a person, the bearer of rights and duties. Even if they were considered so, they have not been considered equal regarding rights and duties. 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 is capable 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

substance of which the rights and duties are attributes. An individual human being considered as having such attributes is what lawyers call a natural person . Recognition of all human beings as equal persons on the global level is a new concept in the Western history. The communication revolutions in the past century, especially the internet, resulted in the Death of Distance and brought about close interaction of foreign cultures, religions and societies on the global level, which eradicated some of the traditional symbolic borders between different communities. The terms human and person gradually expanded until they encompassed all human beings, regardless of sex, color and religion. Consequently, 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 historical declarations of human rights, these terms do not denote everyone in the concerned society. Instead, they usually include the parties at the bargaining table. For instance, the concept usually does not embrace women. Therefore Attributing the contemporary meanings 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 and cultural dynamics that triggered and maintained sustained this sluggish expansion in the egalitarian definitions of human and person? The process of the evolutionary semantic expansion has been characterized by bloody conflicts. During the middle ages, men and women, the clergy and laity were not equal. Nor were tThe nobility and other lower classes were not equal either. Every excluded group, it appears, had to forcefully fight to gain the right to inclusion and to be treated as equal humans. Women, African-Americans and 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 the West European white males. Even English speaking residents of the American colonies were not treated as full persons by the British Empire. Through the American Independence war, American white males gained the status of being considered equal, human beings with the right to self-determination. The civil war, the civil rights movement and the feminist movement caused the concept to further expand to embrace all US citizens. Yet, the individuals in the US who are categorized as permanent residents or aliens are still not granted equal rights as citizens. Every excluded group, it appears, had to fight to forcefully gain the right to be included in the concept and to be treated as equal humans. The women, the African-Americans and the Jews are just some examples. The With the UN Declaration in 1948, for seems to be the culmination of that evolutionary process with the set purpose of universal rights for every individual on the face of the earth. For the first time, in the history of human rights documents, we can assume that the terms human and person arehave been used in a truly inclusive manner on the universal level. Later, the constitutions of some member countries, e.g. most European countries, have also incorporated the concept of universal human and the ensuing rights while some have not. Although it played the leading role in the preparation of the UN Declaration, the US has not incorporated the concept of the universal human rights in its own constitution, which relies on the concept of civil rights. The above survey demonstrates how the changing constellation of relations among nations and groups transformed the concept of exclusive concepts of human and person into inclusive and universal ones. Excluded groups were not welcomed out of mercy. Instead, each group had to pave its way forcefully. The birth of the concept of human and its definition, as history documents, has been contentious, painful and bloody. The concept of the universal 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 usually credit the philosophers of the Enlightenment for the initial formulation of a concept of the universal human. Why did they construct such a concept and what did they Europeans do with it? We need to look more closely to the conflicts at that time between the secular intellectuals and the ecclesiastical thinkers. The Enlightenment philosophers undermined the religiously defined, and thus non-universal, concept of a human to set the philosophical ground for a secular definition of human. They were also trying to draw a new line of cleavage vis--vis the traditional line of cleavage drawn by the Church against the Christian Church doctrine of the time, by. They speaking on behalf of humanity, but not on behalf of Christendom. From this perspective, the construction of the universal human can bee seen as a secular achievement, which. It took place after emancipation from religious categories imposed on human groups based on their faith. It is hard for a universal concept of human to survive intact. It poses a constraint to the powerful

political actors in favor of the less powerful. It poses a problem for those who want to draw a thick line between We and They. A balance of power is needed to ensure the survival of the concept as a truly egalitarian and universal one. Education and culture might also be useful factors. The history of the concept human rights can be extended retrospectively to the past by exploring not only its immediate fathers but also remote ancestors. For instance, the work of someancient prophets and, philosophers and great masters can be seen as great achievements towards a universal concept of human and a morality in accordance with it . Each one These efforts, which must be understood within itstheir own context,. However, none of these historical efforts cannot be is compared able in organization and implementation to the UN declaration, in organization and implementation although its objective still remains as a remote ideal for the majority of the people in the world. We should trace and acknowledge the ancestors of the idea in the ancient and medieval cultures yet its father was the UN declaration, which is the common achievement of the entire humanity. The From Segragation to Civil and Human Rights The article 6 in the UN Declaration stipulatesd that: Everyone has the right to recognition everywhere as a person before the law. This may be seen as the culmination of a long process in the Western history from segregation to civil rights and to universal human rights. By Through this article, the universal objectbearer of human rights was createdreaffirmed and the rights were accorded to that objectevery human. Without acknowledging this abstract object, the UN declaration would not have been possible. The religious and conservative traditions in the world, which initially opposed the universal human 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 the immediate fathers sources because, as history documents, it belongs to a coalition of secular efforts, both socialist and capitalist and, Eastern and Western combined. Each tradition has justified thehuman rights in their own terms. The statesy agreed on the rights but disagreed on their source. Therefore, the UN documents strategically and persistently evaded the reference to the source of rights. The silence of the documents on the source of rights allows each community to variably justify them while still remaining within the universal paradigm of human rights. Thus, even if the socialist ideology, which championed human rights more forcefully than others during the last century, found itself in crises by the collapse of the USSR, the UN and the universal human rights paradigm remained unaffected. Internalization of the human rights paradigm by various secular and religious worldviews and activation of their resources to justify them in their own dialects strengthens both sides. The Western human rights discourse has thus a dynamic discourse history with so many dialects. It has already become the lingua franca of politics and law in our age. The present challenge for Western advocates, especially Americans, is to make the human rights paradigm work for all, especially globally beyond the Western worldld on the global level. Since its legitimacy heavily derives from its claim to universality, the survival of the human rights paradigm in the West, depends on whether 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, its legitimacy and credibility will be undermined, and consequently the inevitable recess back to the exclusive civil rights paradigm will ensue in the West. Divergent The Genesis of the Human in Islamic Views on Human: After the familiar story about the development of the inclusive concept of human and the universal human rights in the This is in the Western history, 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 it evolve? And what did Muslims do with it? . How about the non-Western history? In the Throughout Islamic history, the concept of the universal human was born with the teachings of the Prophet Muhammad (571-632). The Quranic message is addressed to the entire humanity (al-nas pl. of insan) and the children of Adam (Beniuu Adam). The terms used in the Q. and the sayings of Prophet Muhammad (the Hadith) to indicate human are insan, ibn adam (child of 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 as other resources such as customs and analogy. Previous studies have already explored the way the Q. and the Hadith approach the definition of a human and human rights. Thus I will not reproduce those here. The terms used in Islamic law to indicate human are insan, adami and nafs. Yet different schools exist in Islamic law with divergent conceptualization of these terms. Divergent Islamic

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Views on Human and Human Rights: From this theoretical perspective, myMy initial research in the classical Islamic literature on jurisprudence demonstratesd that there is such a concept in the legal discourse network emanating from Abu Hanifa (699-767), but it is 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 his followers use the term damiyyah (lit. being a child of Adam, humanness, or personhood on the biological level) to indicate the abstract concept of a universal human. Having ascertained the existence of a universal concept of human in Islamic legal tradition, we know now that it is likely for Islamic law to produce human rights. Since the basic concept 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 her attributes are similar to those of God regarding mercy, knowledge, love, justice and the like. 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 of God on earth; she is charged to represent His will and implement justice. Gods love and providence for humanity are universal, for believers and infidels, for pious and sinful. A believer 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 as the natural state of mind and heart; the natural religion, law and morality. The word Islam is 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 reversion to her nature, not a conversion. Rational theologians believe that even if God had not send Prophets, people can, and must, discover what is good and bad by using their minds and conscience. God sent Prophets to help people in easily learning what they can also discover by themselves but in a longer time. Divinely inspired teachings of the Prophets reaffirm what is 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 be unjust. Therefore, hundreds of thousands of Prophet were sent to all peoples of the world. Prophet Muhammad is the last ring in the chain of Prophets; he inherited the legacy of all Prophets 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 of God on earth and have direct personal access to God. No mediator is allowed between God and human. The ruler is the vicegerent of Prophet Muhammad, this is what the word Caliph stands for (khalifat rasul Allah), but not representative of God, which is a title common 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 the lowest levels of creation. Woman is not blamed for the fall from Heaven. Devil deceived both Adam and Eve in Paradise at the same time; it was a jointly committed sin, which was forgiven by God after they repented. Those who commit a sin must repent by themselves and revert back to their pure state. Publicizing a sin one has committed by telling it to others is blameworthy. The heart of a believer is the House of God, more sacred than the Kaaba in Mecca. The Kaaba 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 heart. Thinking is an activity of heart. Oppressing others and corruption may cause heart die and loose touch with moral reality. God looks only at hearts and actions, not at the appearance of the individuals. Diversity among humans is intended by God because it reflects His power and art. God created humans in different 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 discover Gods greatness. The Q. states: (49/13). God uses the relations with fellow humans to try them. The trials are passed if all the rights are paid. Man and woman are tried in their relations. Same is true for family members, 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 to improve love, morality and justice in social relations. Prophet Muhammad said: I am sent to perfect morality. He also said: The best among you in the sight of God are those who are best in their conduct to others. Rights and duties bind people to each other in constructing a society. God created humans in such a

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way 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 and moral 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. B The basic human rights in Islamic law fall under the heading of ismahismah, which literally means legal protection, sanctity and infallibility or reverence. Occasionally, the concept hurmah, which literally means sanctity, is also used with the same meaning. The ismahismah 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 universally protected 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 modern juristhe current language of human rights discourse in the West, prudence these are called the basic or irreducible rights. One has to bear in mind that the political system under which these terms were used was different than the national state structure we are living in today. Therefore, one should not equate them with their contemporary counterparts without further exploration and deliberation. The protection of these five objects 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, but they are less strongly emphasized: the fundamental needs (haciyyat) and accessories (tahsiniyyat). These terms will be discussed later in greater detail. Muslim jurists employed the term ismahismah 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 of ismahismah, not only as the foundation of Islamic law, but also all legal systems. These juristsy expected all legal systems to conform to thise basic criterion, grounded on the concept of ismahismah, to be qualified as legitimate under Islamic rule. The classical jurists set the goal of the political system as the world order (nizam al-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 East and to India (1526-1857) had usually been characterized by a cosmopolitan society and culture. The Islamic political system allowed concurrent jurisdiction by different religious communities as well as by different Islamic sSchools of lLaw (madhahib). It wasiswas called the Millets system and was implemented by all Muslim states from the beginning of Islamic history. Therefore, it would be a grave mistake to associate Millets system exclusively with the Ottomans, who inherited it from previous Islamic states and improved it. Under Islamic rule, each community enjoyed the status of Millet: the Jews, various Christian denominations such as Copt, Armenians and Orthodox, along with Zoroastrians, Hindus and Buddhists. This pluralist system required a universal legal philosophy that would grant legitimacy to different legal systems, irrespective of the religion or tradition behind it. A Muslim jurist was therefore required to produce a legal framework under the umbrella of which various legal systems could concurrently operate without conflict. This universal legal philosophy, which I will briefly present below, may be called characterized as a meta-jurisprudence, the jurisprudence about jurisprudences. In modern jurisprudence these are called the basic 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 be protected under the coverage of ismahismah, but there was a question that divided them: Who washas the right to the ismahismah accorded to? Is it the entirety of humanity or a segment of it? Can Islamic law legislate for the non-citizens to grant them human rights? Is the entireDoes all of humanity or the citizenry of the Islamic state alone, composed of Muslims and non-Muslims, fall under the jurisdiction of Islamic law? To what extent are Muslims allowed to intervene to theon legal traditions under their rule and on what grounds? There emerged two positions in Islamic law as to the relationship between ismahismah and damiyyah or, more plainly put, as to who possesses the five basic rights covered under the title of ismahismah. Abu Hanifa and his followers from Hanafite and other schools attached ismahismah with damiyyah, while al-Shfii and his followers from 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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accorded by virtue of being a human Abu Hanifa and his followers advanced the cause of universal human rights universally and unconditionally granted to all by birth, on the a permanent and equal basis, byfor the virtue of being a human - which cannot be taken away by any authority. Abu Hanifa identified the concept of damiyyah (personhood) with the concept of ismahismah (protection) and argued that being a child of Adam or a human, whether Muslim or not, serves as the legal ground for possessing basic rights (al-ismahismah bi al-damiyyah). Although the concepts of ismahismah and damiyyah require a more thorough explanation, we can phrase this principle in plain English 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 and Timurtshi, just to name a few, are of this opinion. The universal approach crossed the boundaries 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 of 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 alQayyim al-Jawziyya from the Hanbali school, Ibn Rushd, Shtib and Ibn al-shr from the Mlikite school, and Maghniyya from the Jafari Shiite School also share the Hanafite opinion. Therefore, it would be misleading to take the universal view on human rights as an exclusively Hanafite perspective-despite the fact that its originator was Abu Hanifa. The universalistic jurists used mainly the following arguments while defending their doctrine: (1) Gods purpose in creating humanity, the trial (ibtila) and holding them responsible (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 does not want his creation to be destroyed, which is possible only by granting sanctity to each one of them. (3) God in the Q. and Prophet Muhammad in his sayings strictly prohibited assaulting and slaying any human being . They even ordered protecting non-Muslim women, children and clergy during war. (4) Disbelief (kufr) is not normally harmful to Muslims 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 not assault other people they should enjoy sanctity. (6) The objective of war is not to exterminate 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. The disbelief of the enemies is not a valid reason to make war against them. Therefore when peace prevails everyone must enjoy sanctity. (8) The non-Muslims must be given chance to 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 notion of a universal human and his place in the network of social relations with other people worldwide. It also aims to establish peaceful relations not only between Muslims and nonMuslims but also among non-Muslims from different religions. These scholars mainly use the following arguments to defend their opinion: (1) The Prophet prohibited killing anyone during the time of peace and he ordered protecting non-Muslim women, children and clergy in the war. (2) Disbelief (kufr) is not normally harmful to Muslims unless the disbelievers engage in a war against Muslims. (3) Jihad is a defensive war, but not an offensive war. (4) The human must be protected because God does not want his creation to be destroyed. (5) The objective of war is not to kill non-Muslims but to force them to make peace and, if required, pay tax. These arguments are all based on the notion of a universal human and his place in the network of social relations with people with different faith. This approach aims to establish peaceful relations not only between Muslims and non-Muslims but also among non-Muslims from different religions. The protection of five basic rights is also considered the common ground of all religions, which provides a juridical ground for religious pluralism. For this reason they are called the objectives of the law or religion (maqasid al-shariah). It is apparent that Islamic law assumes that people would always belong to a religion, which is not the case today. According to Islamic theology and lawjurisprudence, these five principles constitute the unchangeable core of all religions and the legal systems in the world. It is agreed by all Muslims that the creed (aqidah) does not accept changealteration but law (shariah) accepts it because societies evolve and undergo change. Therefore the faiths taught by all the Prophets have been the same but the laws issued by them changed over time. Yet the main purpose of all religious legal systems across history--formulated as the protection of five basic rights-remained unchanged. One consequence of this approach is that Muslims allowed the non-

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Muslim populations they ruled to practice their laws unless it harmed one of the protected basic rights. For instance, narrative has it that when Egypt was conquered, Amr ibn s allowed the Egyptians to practice their conventional laws except the custom of sacrificing a girl to the Nile for more water. Likewise, it is also reported that, in India, the Hindus were allowed to practice their law except the custom of burning the widow with the body of her late husband. These two customs in Egypt and India were outlawed by Muslim rulers of the time because they contradicted the right toof life. It was argued that these customs could not originate from the practice of the founders of these religions because they normally would respect the five protected basic rights. Similarly, the marriage between brothers and sisters were outlawed among Zoroastrians in Iran because it was seen as violating the protection of the family. The above named scholars considered the protection of the five basic rights necessary based on the argument that the purpose of God in creating the human family on this earth is trial (taklif), which cannot be achieved unless the human is free and protected. Otherwise, if human beings were not granted basic freedoms and protections, their purpose on earth would be unrealizable. A humans religious choice must be honored even if it is in contradiction with the Islamic teaching. His life must be protected because this is the only way he can respond to the divine call. His reason must also be honored since reason is the mechanism by which moral choices of right and wrong are made. Reason is also the only way through which humans understand the divine message and implement it. The mind of everyone must be honored and protected even if they oppose the way we think. The classical doctors of Islamic law used these 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 side must be granted certain rights because damiyyah never ceases to exist;, however, certain constraints emerging from the conflict situation apply. Yet violating the ismahismah of others result in the termination of ones own ismahismah, but neither as a whole nor forever. An official court, but not individuals, determines the consequential punishment based on objective rules. Yet, if the public authorities fail to protect the ismahismah of the citizenry, or if they are the ones who violate the ismahismah of their own citizens, then the individual is entitled and obliged to protect his or her her ismahismah. If people die during the struggle to protect their ismahismah, they are revered as martyrs. In other words, the struggle to protect basic human rights, such as protecting religion, reason, life, family and property, which are necessary for a free and just society, is considered to be equally important as the struggle in the battle to protect the abode of Islam against outside enemies. This is because the ismahismah is indivisible and cannot be suspended under any condition for all humans who are in principle granted the same basic rights on the equal and permanent basis. However, as far as the criminals who deserve a punishment is are concerned, the ismahismah becomes divisible according to the Hanafites and thus during the punishment, it is suspended only in part and for a limited period of time. The Hanafites claim that only the relevant part (mahall al-jaza) from the ismahismah of the criminals, which is legally determined, is suspended during punishment while the rest remains intact. For instance, the property of a burglar should 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 the Balkans, particularly during the life of the Ottoman State. The discourse of the Ottoman scholars of law confirms the Hanafite perspective, briefly outlined above. Yet, presently, the research is lacking to determine the extent to which the Ottoman State actually followed 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 the official discourse of the Millet System, to the Hanafite law in their effort to rule a multinational and multi-religious empirestate on a vast geography for an exceptionally longer period of time. The Ottoman legal discourse on the Millet System and the debated rights of non-Muslims under Ottoman rule can be followed in the writings of the Ottoman Shaikhulislams and Ulema on Fiqh. The Ottoman example is one among many parallel examples from Andalusia to India. Therefore, although it may not be seen as the only or the authentic practice of Islam, Ottoman experience provides a significant and relatively

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recent Islamic example for a noticeably plural society under Islamic rule. The present concepts of citizenship and rights are based on different philosophical grounds than the way they were viewed by classical scholars of Islamic law. Yet despite the manifest differences between the premodern universalist approach in Islamic law and the modern secular legal systems, which I do not need to point out here one by one, a similarity is striking concerning the concept of a universal human, which serves in both legal cultures as the philosophical foundation of universal human rights. Abu Hanifas influence continued until the beginning of the 20th century. For instance, Al-Miydani (d. 1881), a Syrian 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 Ottoman EmpireState, the Hanafi view suffered from an eclipse until today. The so-called contemporary Islamic states disinherited the Ottoman legacy and disowned the universalistic view in Islamic law in favor of the exclusive doctrine on human rights, which will 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 competing discourse network, emanating from al-Shfii and crossing the conventional school borders, also gained followers from other schools of thought. This discourse lacks the abstract concept of human qua human as a possessor of rights. Instead, it relies on the religiously defined categories, such as disbeliever (kafir) and believer (mumin). Non-Shfiite scholars such as Imam Mlik (712-795), Ahmad ibn Hanbal (780-855), and the majority of their 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 this perspective. 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) The injunction 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 deity but Allah. (3) Disbelief (kufr), they argue, is the worst sin and cannot be allowed. Based on my initial research, the category of a universal human, comparable to the Hanafite concept of damiyyah, does not exist in the Shfiite doctrine. Instead, the Shfiite legal thought reliesy on the religiously defined categories of Muslims and non-Muslims. The Muslims are qualified for the ismahismah by virtue of their faith (iman). However, the non-Muslims are not qualified for the ismahismah unless they make a treaty with the Muslim state and secure their protection in exchange for the taxes they pay. This treaty is called dhimmah and the tax paid for it is called kharaj. According to Hanafites, the treaty of dhimmah is not a reason for ismahismah (which is already universally present), rather it 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 communal perspective, since the non-Muslims do not have ismahismah, the relationship between Muslims and non-Muslims is considered to be a continuous state of war unless there is a treaty of peace. Yet, according to the Hanafites, the non-Muslims who are not the citizens of the Islamic state are also protected because they have ismahismah as humans. Likewise, the apostate (murtadd) is punishable because of his apostasy (kufr), according to the Shfiites. For Hanafites, apostasy is punishable, not because it is a denial of Islam as a true religion, but because of its danger to the community and the confusion of faith it causes. These points can be seen as just some implications of the lack of a concept of the universal 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 Shiite schools, hasve been influential in Hijaz, Egypt, and North Africa, Spain and Iran in varying degrees until the Ottoman rule took over. The Jews and Christians residing in these regions maintained their life as dhimmis who possessed ismahismah due to their treaty with the Islamic rulers who followed the Shfiite doctrine. Critique and Search for a New Synthesis: I will adopt a method of historical and contextual interpretation of the legal evidence used by al-Shfii and his followers to reach a consolidation between the communal (Shfiite) and the universal (Hanafite) positions in the Islamic legal doctrine. This approach has already been used by the scholars who adopted the universal approach to basi c human rights in their counterarguments against those who called for a communal view. The communal arguments, which I summarized above, are criticized as follows: Regarding

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the first and second arguments, it is claimed that the various orders in the Q. and Hadith to fight against non-Muslims apply to the times of war or a particular group of Arab polytheists living in Hijaz. Therefore, these orders cannot be generalized. Against the third communal argument mentioned above, it is argued that the non-Muslims must be given chance to learn about Islam. Besides, Islamic law does not punishes not aall sins against God unless they harm other members of the society. Furthermore, the compulsion to accept Islam is forbidden. On a more philosophical level, the prominent Hanafi scholar Marghinani (d. 1197) criticized the Shfiite view as follows: With respect to the arguments of 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 is attached, not to Islam, but to the person; because man is created with an intent that he should bear the burdens imposed by the LAW, which men would be unable to do unless the molestation or slaying of them were prohibited, since if the slaying of a person were not illegal, he would be incapable of performing the duties required of him. The person therefore is the original subject of protection, and property follows as the dependant thereof, since property is, in its original state, neutral, and created for the use of mankind, and is protected only on account of the right of the proprietor, to the end that each may be enabled to enjoy that which is his own (The Hedaya, II, 201-2).c. Eclectic Thinkers and Reconciliation between the Two Paradigms: The universal approach crossed the boundaries 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 of 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 alQayyim al-Jawziyya from the Hanbali school, Ibn Rushd, Shtib and Ibn al-shr from the Mlikite school, and Maghniyya from the Jafari Shiite School also share the Hanafite opinion. Therefore, it would be misleading to take the universal view on human rights as an 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 great achievement in the world today. However, historically, it was not always so. This was true particularly for the minority groups of men, and, in particular, women. It was only through a prolonged evolution in belief systems, social structures and legal concepts that all men and women came to be considered human and person on an egalitarian bases. The definition of the concept has been forcefully expanded by the struggles of segregated groups . Rarely, however, did a group fight for the rights of other groups. Though I have no claim on the Western legal tradition, I would like to begin with it because it is the familiar story. The purpose here is to set the ground for the future comparisons I intend to undertake for a better illustration of the tensions in the Islamic legal tradition. I believe the tension in Islamic law between inclusive and exclusive paradigms is a phenomenon that can be commonly observed in the Western legal culture as well. Therefore, without going into detail, I will rely on the common narrative about the history of the concept of human and human rights. The Genesis of Human in the West : Currently human rights have been accorded to an object called human. It is a recent innovation and a legal construction. Its meaning has also gone through semantic shifts, contractions and expansions. The word human was first used in English in 1533 , as a synonym for the word man. The word person, 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 defined as the bearer of rights and duties, whereas human, used more as a philosophical concept, refers to any member of the human family. Usually, in the common discourse, they are used interchangeably. Historically, a human or a man has not always been considered a person, the bearer of rights and duties. Even if they were considered so, they have not been considered equal regarding rights and duties. 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 is capable 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 substance of which the rights and duties are attributes. An individual human being considered as having such attributes is what

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lawyers call a natural person . Recognition of all human beings as equal persons on the global level is a new concept in the Western history. The communication revolutions in the past century, especially the internet, resulted in the Death of Distance and brought about close interaction of foreign cultures, religions and societies on the global level, which eradicated some of the traditional symbolic borders between different communities. The terms human and person gradually expanded until they encompassed all human beings, regardless of sex, color and religion. Consequently, 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 historical declarations of human rights, these terms do not denote everyone in the concerned society. Instead, they usually include the parties at the bargaining table. For instance, the concept usually does not embrace women. Therefore attributing contemporary meanings to the terms used in the historical documents, such as the Magna Carta, would inescapably lead to anachronism. What are the social, political, legal and cultural dynamics that triggered and sustained this sluggish expansion in the egalitarian definitions of human and person? The process of the evolutionary semantic expansion has been characterized by bloody conflicts. During the middle ages, men and women, 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 and to be treated as equal humans. Women, African-Americans and Jews are just some examples of such groups who were normally excluded from the concept. The definition of human rights bearers initially included West European white males. Even English speaking residents of the American colonies were not treated as full persons by the British Empire. Through the American Independence war, American white males gained the status of being considered equal human beings with the right to self-determination. The civil war, the civil rights movement and the feminist movement caused the concept to further expand to embrace all US citizens. Yet, the individuals in the US who are categorized as permanent residents or aliens are still not granted equal rights as citizens. With the UN Declaration in 1948, for the first time in history, the terms human and person have been used in a truly inclusive manner on the universal level. Later, the constitutions of some member countries, e.g. most European countries, have also incorporated the concept of universal human and the ensuing rights while some have not. Although it played the leading role in the preparation of the UN Declaration, the US has not incorporated the concept of the universal human rights in its own constitution, which relies on the concept of civil rights. The above survey demonstrates how the changing constellation of relations among nations and groups transformed the concept of exclusive concepts of human and person into inclusive and universal ones. Excluded groups were not welcomed out of mercy. Instead, each group had to pave its way forcefully. The birth of 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 for humanity with the due cost paid by the lives and blood of an enormous number of people all over the world. Historians usually credit the philosophers of the Enlightenment for the initial formulation of a concept of the universal human. Why did they construct such a concept and what did Europeans do with it? We need to look more closely to the conflicts at that time between the secular intellectuals and the ecclesiastical thinkers. The Enlightenment philosophers undermined the religiously defined, and thus non-universal, concept of a human to set the philosophical ground for a secular definition. They were trying to draw a new line against the Christian Church doctrine of the time, by speaking on behalf of humanity, but not on behalf of Christendom. From this perspective, the construction of the universal human can bee seen as a secular achievement, which took place after emancipation from religious categories imposed on human groups based on their faith. The history of the human rights can be extended retrospectively to the past by exploring not only its immediate fathers but also remote ancestors. For instance, the work of ancient prophets and philosophers can be seen as achievements toward a universal concept of human . These efforts, which must be understood within their own context, cannot be compared in organization and implementation to the UN declaration, although its objective still remains as a remote ideal for the majority of the people in the world. The article 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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process in the Western history from segregation to civil rights and to universal human rights. Through this article, the universal bearer of human rights was reaffirmed and rights were accorded to every human. Religious and conservative traditions in the world, which initially opposed the universal human 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 the immediate sources because, as history documents, it belongs to a coalition of secular efforts, 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 but disagreed on their source. Therefore, UN documents strategically and persistently evaded the reference to the source of rights. The silence of the documents on the source of rights allows each community to variably justify them while still remaining within the universal paradigm of human rights. Thus, even if the socialist ideology, which championed human rights more forcefully than others during the last century, found itself in crises by the collapse of the USSR, the UN and the universal human rights paradigm remained unaffected. Internalization of the human rights paradigm by various secular and religious worldviews and activation of their resources to justify them in their own dialects strengthens both sides. The Western human rights discourse has a dynamic history with many dialects. It has already become the lingua franca of politics and law in our age. The present challenge for Western advocates, especially Americans, is to make the human rights paradigm work for all, especially globally beyond the Western world. Since its legitimacy heavily derives from its claim to universality, the survival of the human rights paradigm in the West depends on whether it will work for non-Western people as it does for Western people. Otherwise, if the New World Order fails to make it work for all at the global level, its legitimacy and credibility will be undermined, and consequently the inevitable recess back to the exclusive 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 the universal human rights in the Western history, now we can turn to Islamic history to see if there is a concept of a universal human in Islamic legal tradition. If so how and when did it 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 Prophet Muhammad (571-632). The Quranic message is addressed to the entire humanity (al-nas pl. of insan) and the children of Adam (Benuu Adam). The terms used in the Q. and the sayings of Prophet Muhammad (the Hadith) to indicate human are insan, ibn adam (child of 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 as other resources such as custom and analogy. Previous studies have already explored the way the Q. and the Hadith approach the definition of a human and human rights. Thus I will not reproduce those here. My research in the classical Islamic literature on jurisprudence demonstrates that there is such a concept in the legal discourse network emanating from Abu Hanifa (699-767), but it is 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 the term damiyyah (lit. being a child of Adam, humanness, or personhood) to indicate the abstract concept of a universal human. Having ascertained the existence of a universal concept of human in Islamic legal tradition, we know now that it is likely for Islamic law to produce human rights. Since the basic concept exists, it is possible to analyze and evolve it.

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Who is, then, a human in Islamic thought? She is created in the image of God, not physically, but spiritually, in the sense that her attributes are similar to those of God regarding mercy, knowledge, love, justice and the like. 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 of God on earth; she is charged to represent His will and implement justice. Gods love and providence for humanity are universal, for believers and infidels, for pious and sinful. A believer 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 as the natural state of mind and heart; the natural religion, law and morality. The word Islam is 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 reversion to her nature, not a conversion. Rational theologians believe that even if God had not send Prophets, people can, and must, discover what is good and bad by using their minds and conscience. God sent Prophets to help people in easily learning what they can also discover by themselves but in a longer time. Divinely inspired teachings of the Prophets reaffirm what is 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 be unjust. Therefore, hundreds of thousands of Prophet were sent to all peoples of the world. Prophet Muhammad is the last ring in the chain of Prophets; he inherited the legacy of all Prophets 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 of God on earth and have direct personal access to God. No mediator is allowed between God and human. The ruler is the vicegerent of Prophet Muhammad, this is what the word Caliph stands for (khalifat rasul Allah), but not representative of God, which is a title common 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 the lowest levels of creation. Woman is not blamed for the fall from Heaven. Devil deceived both Adam and Eve in Paradise at the same time; it was a jointly committed sin, which was forgiven by God after they repented. Those who commit a sin must repent by themselves and revert back to their pure state. Publicizing a sin one has committed by telling it to others is blameworthy. The heart of a believer is the House of God, more sacred than the Kaaba in Mecca. The Kaaba 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 heart. Thinking is an activity of heart. Oppressing others and corruption may cause heart die and loose touch with moral reality. God looks only at hearts and actions, not at the appearance of the individuals. Diversity among humans is intended by God because it reflects His power and art. God created humans in different 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 discover Gods greatness. The Q. states: O humankind! Lo! We have created you male and female, and have made you nations and tribes that ye may know one another. Lo! the noblest of you, in the sight of Allah, is the best 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 the rights are paid. Man and woman are tried in their relations. Same is true for family members, 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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to improve love, morality and justice in social relations. Prophet Muhammad said: I am sent to perfect morality. He also said: The best among you in the sight of God are those who are best in their conduct to others. Rights and duties bind people to each other in constructing a society. God created humans in such a way 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 and moral beings. All human beings share fundamental rights equally. Basic human rights in Islamic law fall under the heading of ismah, which literally means legal protection, sanctity and infallibility . Occasionally, the concept hurmah, which literally means sanctity, is also used with 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 the majority. However, some jurists consider honor separately as the sixth universally protected 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 of human rights discourse in the West, these are called basic or irreducible rights. One has to bear in mind that the political system under which these terms were used was different than the national state structure we are living in today. Therefore, one should not equate them with their contemporary counterparts without further exploration and deliberation. The protection of these five values are considered the five founding principles of law (alusul al-khamsah), the indispensible 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, but they are less strongly emphasized: the fundamental needs (haciyyat) and accessories (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 of ismah, not only as the foundation of Islamic law, but also all legal systems. These jurists expected 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 (nizam al-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 East and India (1526-1857) had usually been characterized by a cosmopolitan society and culture. The Islamic political system allowed concurrent jurisdiction by different religious communities as well as by different Islamic schools of law (madhahib). It was called the Millets system and was implemented by all Muslim states from the beginning of Islamic history. Therefore, it would be a grave mistake to associate Millets system exclusively with the Ottomans, who inherited it from previous Islamic states and improved it. Under Islamic rule, each community enjoyed the status of Millet: the Jews, various Christian denominations such as Copt, Armenians and Orthodox, along with Zoroastrians, Hindus and Buddhists. This pluralist system required a universal legal philosophy that would grant legitimacy to different legal systems, irrespective of the religion or tradition behind it. A Muslim jurist was therefore required to produce a legal framework under the umbrella of which various legal systems could concurrently operate without conflict. This universal legal philosophy, which I will briefly present below, may be characterized as a meta-jurisprudence, the jurisprudence about jurisprudences.

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IIIV. The Practical Implications of the DisagreementContest between Universal and Communal Doctrineson the Relationship between Sanctity and Rights

The preceding contest shaped many issues in the Islamic legal tradition as the advocates of the contesting paradigms systematically and persistently took their view to its logical ends. They shadowed all the relevant practical issues in social and international relations. Therefore, there are numerous political and legal implicationissues emanating from itthe disagreement outlined above. Fully recovering all the implications is not our purpose here, which may require a painstaking survey of all classical literature. The purpose here is to demonstrate the wide ranging impact of the contest on the relationship between the human and human rights. Five examples will be presented below, which will suffice for our purpose here.

1. What is the naturalde facto state of international relations? between Muslims and non-Muslims? Peace, the universalistic approach argues, is the de facto state of international relations between Muslims and non-Muslims, unless otherwise proven. By default, non-Muslims are friends. If there are indications proving the contrary, then they are considered enemies. For them the cause of war is war. In other words, if non-Muslims initiate war, Muslims also engage a defensive war against them. The universalistic scholars carefully distinguished between adversity (harb) and infidelity (kufr): all enemies may be infidels but not all the infidels are enemies. War, argues the communalist perspective, is the de facto state of relations between Muslims and non-Muslims, unless otherwise proven, on the grounds that the cause of war is infidelity (kufr). Consequently, non-Muslims are by default enemies (harbi); if there is an indication to the contrary, then, they are considered friends. Therefore, non-Muslims, with no treaty of peace, have no sanctity. 2. Whose ismahismah are we required to protect?

We are required to protect the sanctity of all humanity, argue the universalistic jurists. For them, all human beings fall under the jurisdiction of Islam. Therefore, Muslims must stand even for the human rights of non-Muslims. Each individual, community and state is responsible for the entirety of humanity. Failing to act makes each one of them accountable, legally and religiously. In contrast, the communalist jurists claim that we are responsible only to protect the sanctity of the citizenry. Disbelief disqualifies non-Muslims who did not make a treaty with the Islamic state to have human rights. Consequently, Muslims are not responsible for the rights of non-Muslims. Also, they argue, only citizenry fall under the jurisdiction of Islamic state. 3. Is apostasy a crime?

The universalistic perspective argues that apostasy alone is not a punishable crime unless it is accompanied by a conspiracy to harm the sanctity of the religion of Islam. This may happen through discrediting Islamic religion with propaganda . The verse in the Q. on apostasy was revealed after a group of conspirators decided to enter Islam as a group and leave it after a short while to persuade others that they could not find what they looked for in Islam. Therefore, for the stipulation about the punishment to be applicable to a particular case of apostasy, it must be carried on with the purpose of conspiracy against

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Islam, but not out of mere conviction. From this perspective, a non-Muslim, even if he is an apostate, is not by default an enemy. The communalist perspective, however, argues that apostasy in itself is a punishable crime. This argument is based on the verse from the Q. ; it does not take into account the historical circumstances in which the stipulation was made. The apostate looses his citizenship by loosing his religion because, for the communalist jurists, citizenship is granted by virtue of faith. Consequently, he also looses his sanctity. From this perspective, since the apostate is a non-Muslim who is not a citizen, by default he is considered an enemy. I should also note that none of the schools requires punishment of a woman who leaves Islam. They also unanimously agree that non-Muslim women must not be killed during war because of the utter prohibition by the Prophet Muhammad. Hanafi scholars used this unanimously accepted practice to support their claim concerning the reason why the apostate is punishable. They argued that had the apostasy was the ground for the punishment of apostasy, she would also be punished the same way as the male apostate. Therefore, they conclude, it is not apostasy, but engaging in a war against Muslims is the reason why the apostate is punished. 4. Are there any implications on womans rights?

Since the protection of family is a human right, some disagreements in family law may be traced back to the contesting position on the human rights. The universalistic perspective does not make a distinction in principle between man and woman; both are considered human, adami, and are entitled to the same human rights. However, outside the basic human rights, one can discern, looking from a modern perspective, that women are treated differently than men in such areas as inheritance and family law. These practices were not traditionally considered unequal treatment. Yet, the notion of equality and the gender roles have undergone a great change during modernization. These changes may be attributed to the prevailing customs that influence law. Islamic jurisprudence states that custom always changes; so are the rules grounded on them. There is a heated debate currently going on in this area, which falls beyond the interest of this paperbook. According to Hanafi scholars, a woman, be she a virgin or a widow, can marry herself independently. In an arranged marriage, a marriage contract is invalid without the consent of woman. The communal perspective gives greater authority to the family over a womans marriage; a marriage contract is invalid without the consent of a guardian from the family of the woman. A virgin cannot conduct the marriage act by herself without the presence of a guardian; only a widow can marry herself independently. Communalists argue that this serves better to the interest of the women because the guardians are more experienced in the intricacies of marriage than the inexperienced young woman. Islamic law has produced a complicated system of ending marriage, involving methods and concepts that may have no parallels in modern law. Marriage may be conducted and dissolved independently, by the consent of the parties involved, without authorization from state officials or religious authorities. Without going into details, it suffices us to say that the Hanafi law grants equal rights to a unilateral dissolution of marriage (talaq); both parties are entitled to negotiate on the three rights of unilateral divorce without the courts decision. According to the Shaffi School, however, a woman is not entitled to the unilateral dissolution of marriage (talaq). Both schools accept that she is entitled to file a divorce with the court, in which case the dissolution is produced by a court decision. 5. Does indictment cause ismahismah to fall entirely or in part?

This issue is related to the rights of the criminal and prisoners. Indictment does not cause the ismah to fall completely in any school of law; all agree that an indicted person still enjoys basic human rights. However, the Hanafi jurists are more attentive to keep it as intact as possible. Consequently, they refuse coupling reparation with punishment. For instance, from the Hanafi perspective, either punishment or reparation is required to punish theft (sirqat). However, the Shafii scholars argue that both punishment and reparation apply in the case of theft.

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These examples are sufficient to observe how the different positions on the issue of ismah led to different legislations. A wide array of judgments emanated from the contest between rival paradigms on human rights. Exploring the tension between universal and communal perspectives thus allows us better understand the divergence of Islamic law and appreciate the logic behind it.

IVI. The Contest between Two Root Paradigms in Islamic JurisprudWhy did Jurists Differ on the Universality of Rights? ence

The Rational School (Ahl al-Ray) versus the Traditional School (Ahl al-Hadith) The above survey demonstrates that all Muslim jurists emphasized rights but some gave them greater emphasis and scope. At this point, we are faced by two explanatory questions: Why was there such a great emphasis on rights in the classical Islamic law by all jurists? Why did Muslim jurists defer on the issue of universality? Or, why did Abu Hanifa emphasize human rights more than other jurists and accord them to all human beings, instead of citizenry alone? I argue that the answer for the first question lies in the ambigious relation between Ulama and the state. I also argue that the answer for the second question lies in the different methodological postulates adopted by different jurists. In my explanation, I combine political and cultural factors.

The Ulama and the State

All schools of law resisted enaction of their rulings by the state. Muslims had been free to follow any school of law or scholarly opinion. Ulama knew that enaction would bring about monopolization to the interpretation of religion and law; it would also allow state to insert more influence on society. Consequently, Islamic law was never the positive or official law of the state during the Islamic history. Now was it the canonical law of Muslims, represented by a Church like structure. Islamic law was loosely codified in the legal literature according to different schools of law, but not enacted by a state until recently. For the first time in Islamic history, Ottomans enacted Islamic law towards the end of the 19th century. The Ulama made it clear that their voice was not the voice of God. Therefore, they argued, no human doctrine can be imposed on all believers as Gods absolute will. A scholarly opinion (ijtihad) is Gods will according to a particular mind. Other minds are also entitled and obliged to strive to discover Gods will. Scholars presented their opinions as an outcome of their mind, but not divinely inspired views. As Baber Johansen also points out Islamic epistemology was characterized by contingency, which served as a foundation of freedom of religion and expression. Some scholars are reported saying, I know I am right, but I may be wrong. And I know that my opponent is wrong, but he may be right. Scholars had thus imposed limitations on their own authority, despite the temptations by the state. It is unanimously accepted by all schools that imitation of scholars (taqlid) is not acceptable in Theology; every Muslim is required to rationally ground her faith (taqlid) by using her mind. Blind faith is rejected. Consequently, if one is asked, why are you a Muslim? one is not allowed to say because scholars say it is the right path. Instead, she has to produce her own reason(s), which are convincing for her, not necessarily convincing for all. Yet, in legal and moral matters one is allowed to follow a scholar she chooses, because they are not as fundemantal as matters of faith and also it is impossible for everyone to specialize in law and morality.

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None of the founders of the four schools of law in Islam accepted offers by the rulers to the highest offices in the government. Therefore, one wonders whether the ambiguous relationship between the Ulama and the state had an impact on the rise of the theory of ismah. Abu Hanifa did not accept the request by the Abbasid ruler to serve as the chief judge, even though he was tortured at an old age . His attitude may be seen as civil disobedience. Whether it would be possible to attribute Abu Hanifas greater emphasis on universal human rights and individual freedoms to his personal experience with the state is a question yet to be explored. Malik was asked by the Abbasid caliph whether he would allow his book, al-Muwatta, to be enacted all over the Islamic state . He also refused such a great prestige on the grounds that he did not want to limit the understanding of law by an individual interpretation. Ahmad ibn Hanbal was tortured by the Abbasid rule for his refusal of the official theology of the state. Shafii, who studied under Ahmad ibn Hanbal and Muhammad al-Shaibani (one of the students of Abu Hanifa) also refused employment by the state and relied exclusively on his own financial resources. Some observes see this as an Islamic form of separation between state and religion . It might also be seen as the Islamic form of secularism. Had the Ulama accepted cooptation by the state and allowed the sanctification of their legal opinions by the enactment of the state, a corporate religious authority with an exclusive claim to define what is right and wrong would have emerged in Islam. The pious scholars considered employment by state a disgrace. The famous saying goes, the worst scholar is the one at the door of a ruler and the best ruler is the one at the door of a scholar. Refusing cooptation by the state ensured greater autonomy and self-determination for Islamic law and jurists. Rejecting what everyone desired also increased their legitimacy and authority in the eyes of the general public as they remained untainted by governmental corruption and oppression. It seems that by refusing the power over bodies with the state enforcement, they aimed to gain more power over minds and hearts. Governments usually cooperated with less pious Ulama who had less influence on the public, but even then the relationship was not always smooth. These scholars accepted government employment to better promote implementation of the Islamic law through state enforcement. Yet resistance still continued. For instance, the Madrasa or university became integrated in the government system but the Tekke, or the Sufi lodge, did not. The ascetic Sufi scholars preferred to remain independent of the temporal powers. Even then, the scholars in the Madrasa received their payments, not from the state, but from private foundations established to support education. In the Ottoman hierarchy, the Shaikh al-Islam came even before the Grand Vizier, and was second only to the Ottoman Sultan. He was the only person in the Sublime Port, Istanbul, with the power to revoke government decisions, which they freely used on many occasions. However, the Ulama did not tightly organize themselves under one structure. Their organization was rather informal and fluid; it was different than the way Christian clergy was organized as one big Church. Instead, the scholars acted as individual authorities who were connected to each other through informal scholarly networks, shaped by their affiliations to various schools of thought. The state, however, was well-organized from the very beginning of Islamic history, with the exception of its civil wars. Consequently, the representation of religion was left to the authority of the individual scholars. The scholar was a powerful person; she carried the power to ordain a student as a scholar (alim). Actually, she was the sole authority to do so. Even the state could not issue a diploma to assign one as a scholar. In the same way, the individual scholar, but not an organization, was the only authority capable of issuing a religious ruling based on her informed opinion (ijtihad). Intellectuals need protection from the state to express and implement their views. The Ulama, who were the intellectuals of their time, developed a theory of human rights that ensured everyone, including themselves, protection against the powerful actors in the society, particularly the state. Specifically, the strikingly broader views of Abu Hanifa on the rights and freedoms of the individual at the universal level might have been influenced from his relationship with the powerful actors, as a businessman, intellectual and immigrant. Abu Hanifa was both a

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businessman, especially in his youth, and a scholar. He was also a second generation convert and immigrant. The founders of the other three schools shared with Abu Hanifa only the pressure he faced as an intellectual, although not to the same extent, but they did not share at all the pressures he faced as a businessman, as a convert and as an immigrant. These biographical differences, whether knowingly or unknowingly, might have had an impact on the greater emphasis and wider scope Abu Hanifa assigned to human rights.

Two Root Paradigms in Islamic Jurisprudence

We may expand our search for the possible causes behind the scholarly conflict I have described above by comparatively analyzing the methodological and juridical postulates used by different jurists. What led to the aboverise of the two rival perspectives on human rights in Islamic law contrast in Islamic law? What prevented the communalist scholars like al-Shafii from developing, or adopting the existing universalistic view on human rights? This question can only be answered by exploring the philosophical and methodological differences between the two rival schoolsroot paradigms in IIslamic jurisprudence: The Rational School (Ahl al-Ray) versusand the Traditional School (Ahl alHadith). Below, I will highlight their development and demonstrate how the Rational School facilitated production of universal concepts and legal maxims while the Traditional School inhibited or hindered such activity. None of the founders of the four schools of law in Islam accepted offers by the rulers to highest offices in the government. Abu Hanifa strongly refused the offer by the Abbasid ruler to serve as the chief judge. He was pressured for that yet he still refused. Eventually, the Caliph ordered his detainment and torture until he accepts the service of his government the chief judge. Despite his old age, Abu Hanifa preferred the death by torture over serving a government as a chief judge. Malik was asked whether he would allow his book, al-Muwatta, to be enacted all over the Islamic empire. He refused such a great prestige on the grounds that he did not want to limit the understanding of law by an individual interpretation. Ahmad ibn Hanbal was tortured by the Abbasid rule for his refusal of the official theology of the state. Shafii who studied under Ahmad ibn Hanbal and Muhammad al-Shaibani, one of the students of Abu Hanifa, also relied exclusively on his resources. This may be seen as an Islamic form of separation between state and religion. The pious scholars considered employment by state as a disgrace. The famous saying goes, the worst scholar is the one at the door of a ruler and the best ruler is the one at the door of a scholar. Refusing cooptation by the state ensured greater autonomy and selfdetermination for Islamic law and jurists. Rejecting what everyone desired also increased their legitimacy and authority in the eyes of the general public as they remained untainted by the governmental corruption and oppression. However they did not tightly organize themselves under one banner. Rather they acted as individual authorities who are connected to each other through informal scholarly networks, shaped by affiliation to various schools of thought. The state, however, was strictly organized from the beginning. Consequently, the representation of religion was left to the authority of the individual scholar. The scholar was a powerful person; she carried the power to ordain a student as a scholar (alim) as the sole authority of issuing a diploma belonged to her individually; she could issue a religious ruling based on her informed opinion (ijtihad). The earliest among the founders of legal schools, Particularly, Abu Hanifas emphasis on the individual, her rights and autonomy may seem excessive to some even today. He defined Fiqh (Islamic Jurisprudence and Law) as the knowledge of the individual about her rights and duties (marifah al-nafs ma laha wa ma alayha). There are several striking

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elements reflected in this definition, which can be used to highlight Abu Hanifas approach to law and rights. . In the production of laws, tThe sole agency is attributed to the individual, but not to a corporate body or state. The individual is charged to discover her rights and duties. No authority beyond the individual to tell her about her rights and duties is acceptedmentioned in the definition. The individual is the only unit of analysis and the only actor. Nor did he put any conditions on the individual to do Fiqhhe qualify the individual by requiring him to have certain attributes. Regardless to her merits, every one can, in fact is required to, make Fiqh. Although originally derived from the Q. and Hadith, HeAbu Hanifas greater emphasis on the individual might have also been promoted by a concerned that the fielddevelopment of law would be taken over by the state. At that time the discussion was going on about enacting Islamic law in the Abbasid Palace. ThisHis emphasis on the autonomy of the individual and the scholar might have also played a role in hisAbu Hanifas refusal of the government office. Abu Hanifa, like many scholars in the classical era, promoted and appreciated scholarly debate (al-khilaf). He had three prominent students and the way he allowed them to disagree with him demonstrates the great autonomy he assigned to human agency. Rarely, did his leading students and successors Muhammad, Abu Yusuf and Zufar, altogether agree with him. He promoted and appreciated scholarly debate (al-khilaf). He himself stood against the authorities from the previous generation by saying,: They are humans; we are also humans (Hum al-rijal Nahnu al-rijal). This statement also highlights the limits of human agency vis--vis the agency of others: a scholarly opinion cannot override another (al-Ijtihad la yangud bi al-ijtihad). For Abu Hanifa, an opinion is judged by its own merits but not by the number of people who share and support it. . BesidesIn addition, heAbu Hanifa was an advocate of the sanctity of the mind (ismahismah al-aql) for everyone, which requires freedom of expression. Abu Hanifa emphasized the relationship between reason and conscience. Therefore hHe, therefore, founded two types of Legal-Normative Science (Fiqh).: The formerfirst (the reason) is the principle of the Applied Jurisprudence (al-Fiqh al-Amali), while the lattersecond (conscience) is the principle of the Jurisprudence of Conscience (al-Fiqh al-Wijdani). He also emphasized the relationship between Pphilosophy and Llaw. He called pPhilosophy as and theology the Greatest Science (al-Fiqh al-Akbar). Abu Hanifa and authored personally only on about itphilosophy and theology thereby grounding law on its metaphysical postulates. Like Socrates, his views on law were recorded by his students who organized and disseminated them as books. . In theAbu Hanifas definition of Jurisprudence, the emphasis on rights and duties is also striking. The individual is entitled to rights and is charged bywith duties. One should also note the absence of reciprocity between rights and duties, as Abu Hanifa discarded the traditional reciprocity between rights and dutiesthe two. For him, rights are not contingent upon the my fulfillment of my duties. One can fail in fulfilling her duties but her shortcomings does not disqualify her forconstitute a ground to deny her basic rights. Abu Hanifa emphasized on individuals autonomy but he can hardly be characterized as an individualist. He perceived the individual as a part of a network of social relations in which rights and duties are determined. Rights and duties, according to Abu Hanifa, become possible only if one is a part of a society; otherwise, it is impossible for the solitary individual to have rights or duties. He also charged the individual to defend her community and all of humanity. Abu Hanifa is credited to be thewith foundinger of the Rational School (Ahl al-Ray)., whichMethodologically, the Rational School relied extensively on scholarly opinion, applied mindreasoning on the scriptures and judicial employed analogy. From this perspective, like cases are judged the same way by extending the original ruling to similar cases. This method is also called the mMethod of jJurists (al-Fuqaha) or the mMethod of the Hanafis (Ahnaf).

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In contrast, the followers of the other dominant schools (Maliki, Hanbali and Shafii) are commonly known as the School of Tradition (Ahl al-Hadith) because of their greater emphasis on strictly following the teachings of Prophet Muhammad. They opposed the Rational School and criticized it for not strictly following the legacy of the Prophet and the earlier generations. Yet the majority of the scholars who authored works in this tradition were at the same time theologians. Hence their school was also known as the School of the Theologians (al-Mutakallimun). Yet, paradoxically, unlike the methodology they employed in theology,Yet theyir refrained from fully applying their mind onanalyzing law and jurisprudence and choose to remain boundconcerned with the existing legal traditions and customs. Therefore, the reason why they adopted a traditional approach to law cannot be attributed to the lack of rational thinking on their part. Traditionalism was a choice they made on rational grounds. For instance, the great champion of rationalism, Averroes, Ibn al-Rushd, followed the Maliki School during his service as a judge, although he deviated from that school on the issue of human rights. Al-Shafii is credited for writing the first systematic treaties on the methodology of Islamic jurisprudence from the perspective of the Traditional School. His book is titled as alRisalah and is currently available in English . He defined Fiqh (the Science of Law) as deriving normative rules from the detailed legal evidences (istinbat al-ahkam alshariyya min al-adillah al-tafsiliyya). Shaffiis definition puts the emphasis on the process followed in the production of norms. It is a process of derivation from the preexisting evidences. The conceptterm evidences stands forsymbolizes means the verses of the Q. and the sayings of Prophet Muhammad. A jurist is required to build herhis ruling on a concrete verse from the Q. or a saying of the Prophet, without relying on such rationalhuman (secular) methods as analogylogic and analysis. The methodology of Islamic jurisprudence, particularly from the perspective of the Rational School (Ahl al-Ray), made it possible for Muslims to combine various religious (divinely inspired, deriving from scriptures) and secular (rationally inspired, deriving from human mind) sources of law. There are two commonly known religious source of Islamic law: the Q. and the Hadith, the two scriptures of Islam. Among the secular sources are consensus of scholars, judicial analogy, custom, necessity, utility and forestalling harm. Islamic law is not sacred, divine or canonical in the Christian sense; it shares features of both religious and secular law. Revelation and reason concurrently serve its production. This integrative legal methodology is grounded on the Islamic approach to knowledge, which is also very comprehensive, combining both religious and secular sources. Muslim theologians agreed in the classical era that there are three sources of objective knowledge: revalation (al-khabar al-sadiq), reason (al-aql al-salimah) and sense perception (al-hawass al-salimah). From a Western perspective, the first one of these sources is religious, the latter two are secular. The source of subjective knowledge is inner exprience (hal), which is the interest of the Sufis. Lawyers must rely exclusively on the aforementioned objective sources when serving as judges. The Islamic epistemology had thus integrated various types of knowledge: divine, rational, emprical and experiential. Yet, in the Western philosophical, legal and religious tradition, they are usually perceived as mutally exclusive as a line was drawn between religious and secular spheres.

We may say that the Hanafi Method is deductive and the Shafii method is inductive. The Hanafis explored the common rationale behind the scattered verses of the Q. and the sayings of the Prophet Muhammad and stipulated the outcome in the form a legal maxim. These legal maxims are called the foundational principles (al-asl pl. al-usul). A Hanafi jurist may rely on these legal maxims rather than the Q. and Hadith. The above statement by Abu Hanifa concerning the relationship between ismahismah and adamiyyah is a legal maxim. It is not a verse from the Q.. Nor iswas it uttered by the Prophet. Yet it is founded on a number of statements from the Q. and Hadith. The later generations of jurists deduced rulings from this general principle, without having to refer to its sources in the Q. and Hadith. Yet a Shafiitraditionalist jurist is not allowed to do so;, instead,as he is

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always required to revisit the Q. and Hadith each time he needs to derive a normative judgment. Similarly, limiting the basic rights (daruriyyat) to five (right to life, property, freedom of expression, freedom of religion, honor and family) is also a result of applying mind to the traditions. These rightsy are extrapolated by surveying the common rationale behind the teachings of the Q. and Hadith. They are not listed as such at one place in the scriptures of Islam. Therefore, some scholars contested them, trying to expand or contract their sphere, though their views did not gain prominence. However, these efforts demonstrate that the list of basic rights or the rights emanating from them are subject to scholarly judicial discretion, which leaves the gate open for reform. The rights covered by the doctrine of ismah may be seen as analogous to the first generation of human rights in the West. Succeeding evolution and expansion of the concept in the West brought about the so-called second and third generation of rights. The concept of basic or axiomatic rights (daruriyyat) in Islamic jurisprudence should also be thought in relation to two other accompanying concepts: the fundamental needs (alhawaij al-asliyya) and the accessories (tahsiniyyat). The rights covered by these latter concepts resemble the second and third generation of human rights in the West. Among the fundamental needs are shelter, food, transportation, education, employment and the like. The means (e.g. a house, a car, books, tools, sustenance for a period of time) one owns to fulfill these needs are exempted from the annual alms tax, zakat. From the Hanafi perspective, these legal maxims are as binding for a Muslim as the commands of God in the Q. or the commands of the Prophet expressed in the form of Hadith. The fact that they are human constructions does not undermine their authority because they reflect the outcome of scholarly opinion (ijtihad). The first Ottoman codified law, the Mejelle, enacted a hundred of these legal maxims, testifying to their place and role in Islamic law. The Hanafi method reflects the attitude of simplifying law by reducing it to ever smaller numbers of rules in the form of legal maxims. Yet the School of Tradition perceives it as a distortion and breaking away from the tradition of the Q. and Hadith. This tension between greater authenticity and greater simplicity may also be observed in other legal systems, as Crotty writes: On the view taken here, law is a selection or winnowing of the profuse and inconsistent meanings that confront us: it is a simplification, for social purposes, of what I shall call our ethical complexity. This simplification makes possible a stable order by providing a common set of understandings that sideline, for public purposes, the commitments and values that constitute peoples deepest sense of their identity. These commitments and values, however, continue to press on law, and call for it to incorporate more aspects of citizens deeper sense of identity. Law, on this view, is caught in a bind between two imperatives: to simplify (in the interests of efficiency, clarity and order), and to make more complex (in the interests of fairness, equity). The tension between these two imperatives is a force for change in law, and, more deeply, for change in our sense of what law is and its role in a democratic society .

LikewiseConnected to this is the difference on the emphasis on the letter and the spirit of laws. , the The Rational Method gives primacy to the spirit of law while the Traditional Method gives primacy to the letter of the law. Consequently, the former allowspromotes the extrapolation of legal maxims, based on the common rationale and the common objective, while the latter requires direct usage of the verses from the Q. and the sayings of the Prophet. This brief outline about the contrast between the two root paradigms in Islamic jurisprudence demonstrates why the Traditional School failed to incorporate a universal concept of human to serve as the philosophical ground of universal human rights. The construction of the concept of a universal human requires a shift forward from the traditional law by rigorously applying mind.

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Abu Hanifa was a contemporary of Malik, whom he visited in Medina while on a pilgrimage to Mecca. Yet Ahmad ibn Hanbal and al-Shafii came after him. However, these scholars differreddiffered fromAbu Hanifa on the universal human rights and insisted on the civil rights. This may be seen as a recess in the development of Islamic legal tradition and lack of accumulative progress and evolution. Some of the later scholars, however, attempted to reconcile the two methods. They tried to integrate thean emphasis on reason with an emphasis on tradition;, theas well as an emphasis on the spirit of law with thean emphasis on the letter of law;, and thean emphasis on simplifying law with an emphasis on greater authenticity. Their works demonstrate how the opposite methodological perspectives werecould be reconciled, giving rise to a new approach to the methodology in Islamic jurisprudence. This new root paradigm took its place next to the two older paradigms, rather than replacing them., because the synthesis had its own distinct identity.

VII. SanctityISMAH as the Foundation of Universal Law and World Order :

Using the rational methodology of jurisprudence, the universalistic jurists in the classical era made the concept ismah the foundation of a universal law, applicable in the cosmopolitan Millets system. It is based on a meta-jurisprudence, a legal philosophy intended to embrace all legal systems globally. It is a self-reflexive activity by the jurists about their own profession worldwide. What do jurists from all nations and religiouns stand for? What do all legal systems stand for? What is the common ground among divergent legal systems? Why should all legal systems be granted legitimacy? Where does legitimacy come from? Is there a limitation to the right to legal self-determination? These are some of the questions the universalistic jurists from the classical period tackled. Therefore, ismah is a key concept not only to understand Islamic Law per se, but also the way Muslims looked at the legal systems of the world and the way they incorporated them within their own social order. Then, what is law for Muslims? This question cannot be answered without reference to the theory of ismah. The paradigm of ismah plays a role in the way one looks at himself and relates to others. This is true on the individual, communal and global levels: the I, the we and the We, as well as their interrelationships, are defined based on the concept of ismah. All legal systems serve the purpose of protecting human sanctity, the classical jurists observed. Therefore, they concluded, every legal system is legitimate so long as they serve this objective. Hence, the legal tradition of each community should be protected and those who adhere to it should continue practicing it. Islamic law was not imposed on the conquered lands and communities during the Middle Ages. Instead, each society was allowed to maintain its laws. Yet if there was a practice in contradiction with the sanctity of human beings it was to be abolished forcefully. For this reason, practices like sati in India or virgin sacrifice to the Nile in Egypt were not allowed under Islamic rule. Each community was allowed to enjoy legal autonomy but not to the detriment of human sanctity . For the lack of a better term I translate ismah as sanctity or basic human rights. It is a powerful and central concept in Islamic jurisprudence and meta-jurisprudence and is a theory constructed by Muslim jurists during the 8th century. The inspiration for it came from the teachings of the Prophet Muhammad, reflected in the Q. and Hadith. Yet it took a reworking of the Prophets legacy to produce such a universal theory, following the classical rational jurisprudence.

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One should bear in mind that the concept of ismah emerged in an political structure which was not characterized by nation states. Nor was it characterized by positive law or a monolithic system of law. In contrast, the term human rights emerged in the West at the age of nation states and positive law. The difference in the circumstances in which these two theories emerged must be taken into account when comparing them. Ismah is not only a legal concept in classical Islamic thought; it is at the same time a moral and religious concept. One is not allowed to violate her own ismah and the ismah of others. One should protect her own ismah and the ismah of everyone else on the earth. But why? Not only because one may suffer legal consequences, but more importantly, for moral and religious reasons. Violating ismah or failing to protect it is a major sin; God will punish for it in the Hereafter. Protecting ismah, however, is a moral and religious virtue; it will be rewarded by God in the Hereafter. According to Islamic theology, God may forgive sins committed against Himself, but not against other human beings. If a sin involves violation of a persons ismah, the victim is the only one who is entitled to forgive it. God does not forgive the violation of human rights (huquq al-ibad) because these rights belong to their bearers. Consequently, if one commits a sin by violating the right of another person, he is required to compensate the damage before repenting for his sin. Repenting without compensating the harm is not acceptable. A robber must return the stolen property or pay reparation before standing in the presence of God to apologize for his sin. Likewise, the person who damaged the honor of another must repair the damage and make the victim content prior to turning to God for forgiveness. Some of the rights covered by ismah are considered the rights of the persons (huquq al-ibad) while some are considered the rights of law (huquq al-shar) or the rights of God (huquq Allah). The reasoning behind the latter category is that their violators cannot be forgiven by the victim since it involves causing damage to the public, not only an individual victim. If the crime involves violation of a personal right, the victim is entitled to reach a settlement, accept reparation or forgive unconditionally. Rights of the person comprise right to life and property. Rights of the law include protection of religion, mind, honor and family. Reparation is acceptable if the crime involves the violation of one of the rights of a person and can be monetarily assessed and compensated. Otherwise, if the crime involves the violation of one of the rights of law, which cannot be monetarily assessed and compensated, reparation is impossible. Punishment must be applied in these cases. Injury or theft may be forgiven by the victim. Murder can also be forgiven by the family of the victim. But a raped or slandered woman cannot uplift the punishment from the rapist or the slanderer by forgiving him. The latter is considered a violation of public order, not only the violation of individual sanctity. From the perspective of universalistic jurists, the rights ismah embraces are universally granted, indivisible, non-contingent, non-reciprocal and inalienable. They reflect the most basic needs of a human being to lead a decent life. These needs are called the axiomatic needs (daruriyyat). The concept daruri means inevitable, beyond discussion, absolutely necessary. Classical jurisprudence recognizes three types of need: axiomatic needs (daruriyyat), required needs (haciyyat) , and the accessories or embellishments (tahsiniyat). The first category alone is protected universally as human rights. The others are also emphasized on varying degrees. The objective of all political and legal systems (maqasid al-shariah) is to ensure the protection of human sanctity and provide the needs for a decent life for each human being. This is how the classical jurists defined it. Therefore, they stipulated, the implementation of a particular law in a particular setting may be revoked, suspended or even reversed, if it is going to be counterproductive. The axiomatic needs have the power to override all laws. A legal maxim stipulates: the axiomatic needs turns the unlawful into lawful (al-darurat tubih al-mahzurat). For instance, drinking alcoholic beverages is prohibited but in the absence of any other drink one must drink them to maintain his life; in that case, it is no longer a sin but an obligation. They tried to

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determine the borders of the axiomatic needs clearly and strictly, to prevent misuse of the permissions emanating from them. Although they have the power to override all the laws, the axiomatic needs of a person do not have the power to override the rights of others. For instance, if one consumes the food owned by another, out of dire necessity to maintain his life, he must compensate for it, because his need does not negate the sanctity of anothers property. The needy person has the right to take this property, but he is at the same time obliged to compensate for it at a later time. The above example can be used to explore the hierarchy among rights and needs. Right to life is considered prominent above all other rights. In the case of a conflict, priority is always given to it. For instance, if the circumstances dictate so, one has to take the property of another person to protect his life because right to life overrides the right to property. In a similar way, if the axiomatic need of a person conflicts with the required need or an accessory of another, the priority is given to the first one. The legitimacy of a political and legal system, universalistic jurists argued, depends on whether it effectively fulfills the functions expected from it (al-Masalih al-Mursalah), which is the protection of ismah by providing the most basic needs of humans. These are the most fundemantal benefits that are expected from a political system, or it otherwise looses its legitimacy. The legitimacy of political authority is contingent upon providing basic human rights (al-Mulk manut ala al-maslaha) . The theory of maslaha (function, utility) in classical Islamic jurisprudence features prominently. A law can be based solely on that principle. Furthermore, existing laws can be suspended on that principle in some circumstances if their implementation is going to function counterproductively by causing harm, rather than protection to human sanctity. Each of the five basic human rights constitutes a source of law, al-asl, on which laws can be built. For this reason, they are called the five governing principles or sources of law (alusul al-khamsah). Again, this goes back to the methodology of Islamic jurisprudence. The root principles of law or the legal maxims, al-usul, which had been produced through induction from scattered teachings in the Q. and Hadith, summarize the common rationale in the laws and, in turn, serve as grounds for new legislation. The ismah of a person remains intact under all conditions. No authority has the right to usurp it from a person. Nor does the individual have the right and power to voluntarily abandon them. The only reason that causes the ismah of an individual to fall is her violation of the ismah of others. As explained above, violating sanctity brings about punishment or reparation, according to the Hanafi jurists, while the Shafii jurists claimed both are required. Inflicting a punishment, which is a harm, is impossible before ones ismah falls. This is how the ismah is legally enforced through punishment and reparation. The violator looses her ismah, but not completely. Hanafi scholars are stricter on the extent to which a criminals sanctity falls. They advocate that only the segment where the punishment is going to be implemented (mahall al-jaza) looses its sanctity. On this ground, they refuse coupling punishment with reparation. However, the Shafii jurists extend the fall of ismah in such a way that it includes both punishment and reparation at the same time. Islamic law charges every individual, community and state to protect their own ismah and the ismah of others. One is responsible for the entire world. This is a moral, religious and legal duty. Dying for the sanctity of ones own or others is considered martyrdom, to be rewarded by Paradise. If a state fails in protecting the ismah of a citizen, it is required to pay reparation to the victims family. For instance if a prisoner is murdered in a state prison, the state has to pay blood money to her family. The family of the victim is not even required to prove that there was negligence on the part of the state. Since it is the responsibility of the state to protect the sanctity of life in prison, it has to compensate for its failure. Likewise, if a person is murdered in a neighborhood the entire neighborhood is required to pay blood money if the criminal is not found.

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The theory of ismah had thus served as the foundation of a cosmopolitan legal system during the Middle ages up until the collapse of the Ottoman State, peacefully embracing the diverse and contradictory laws of Jews, Christians, Zoroastrains, Buddhists and Hindus, along with different schools of Islamic law. The universalistic Muslim jurists stipulated the principles regarding the protection of human sanctity to be applicable worldwide, across all legal systems, irrespective of the faith behind it. The legitimacy Muslims granted to non-Islamic legal systems can also be observed in the way they remained open to receiving laws from them. The Methodology of Islamic Jurisprudence (Usul al-Fiqh) lists among the sources of Islamic law the laws of the previous peoples (shar man qablana). If the Islamic law is silent on an issue, this rule stipulates, Muslims are allowed to adopt the laws from other cultures. It may be seen as yet another sign that the openness of classical Islamic law is for universal cooperation and exchange . The concept ismah was employed as the foundation of meta-jurisprudence.

IMPLICATIONS OF THE DISAGREEMENT ON THE ISMAH What is the natural state of international relations between Muslims and nonMuslims? Whose ismah are we required to protect? Is apostasy a crime? Are there any implications on womans rights? Does indictment cause ismah to fall entirely or in part? VII. Muslims vis--vis Modern Human Rights

VIIII. Muslims and Modern Human Rights

Our exploration has so far remained on the conceptual level, building on the analysis of the legal discourse. Now we can explore the role, if any, the above described theories played in history. Did the justification of universal human rights from an Islamic perspective remain on the rhetorical level or play a role in shaping social relations? I will briefly explore how the universalistic perspective produced a positive approach towards the modern human rights discourse during the 19th century, which found its way to legislation by the last and the longest-lived Islamic state, the Ottomans. The Ottoman States (1299-1920) isis only one among many analogous pluralist Islamic states in history. Other paramount examples are from the Rightly Guided Caliphs in Medina (632-661), Umayyads in Syria (661-749), Abbasids in Iraq (749-1258), Andalusia Umayyads in Andalusia under Umayyad Caliphs (756-1031) and Mughals in to India under Mughals (1526-1857). The Ottoman Nevertheless, their experience is important for our concerns here because they encountered modernity during the late 18th and and 19th centuries with a positive attitude and tried to synthesize Islamic and European approaches regarding human rights and democracy. Yet later Muslim generations have not built upon this progressive and reformative legacy; instead they began from scratch, the point where the Ottomans began at the end of the 18th century, discarding the experience of the longest century in Islamic history. Consequently, the universalistic doctrine is not currently represented in the Muslim world on both intellectual and practical levels. The states with a claim to implement Sharia follow the communal perspective and do not build on the previous experience. Recently, a greater appreciation of the Ottoman experience of reform and modernization arose in the Muslim world from the Balkans, to the Middle East to Pakistan and Malaysia . The Ottoman orthodoxy, represented by the Caliph and Shaikh al-Islam in Istanbul, had

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already authorized universal human rights and democracy two centuries ago. Yet, owing to the interruption in the social memory of Muslim society and the ensuing confusion on human rights, some Western and Muslim intellectuals still debate the relationship between Islam, democracy and human rights. I argue that a greater clarity can be achieved concerning these pressing questions by exploring the 19th century Islamic response toward universal human rights, as embodied in the Ottoman efforts for structural and cultural reforms. Despite the commitment of Ottomans to the universalistic perspective in Islamic law, the history testifies that occasional violations of human rights occurred in the Ottoman history: some higher level state officials were executed for their corruption when the Sultan had to bow to the demands from Janissaries; the brother of the Sultan was sometimes killed if he was involved in a political conspiracy to replace the current Sultan (siyaseten katil). These practices cannot be justified by Islamic law. Therefore, they were justified either by raison dtat or customary law, which Turks brought from Central Asia or inherited from previous states. The practice of slavery continued until recently although Ottomans tried to reduce it and improve the life conditions of the slaves. Non-Muslim citizens, who enjoyed freedom in other areas such as commerce, law and education, had been barred from political office and joining army. The non-Muslim citizens were expected to pay additional taxes in exchange of the security provided by the Muslims. All these treatments were abolished by the 19th century reforms, which I will explore further below, as a result of the new egalitarian concept of citizenship which Ottomans appropriated during transition to a modern democratic state structure. Emergence of a modern concept of citizenship and human rights discourse in the West took place during the 19th century. At that time, Ottomans ruled the majority of the Muslim lands from Algeria to Yemen, and from the Balkans to Caucasians. Consequently, with the purpose of exploring what Muslims did for the advancement of human rights during the 19th century, we have to revisit Ottoman history. The Ottomans represent not only the historical roots of the modern Turkey but also more than 30 succeeding Muslim and non-Muslim nation states. Most of these states emerged after the Ottomans collapsed in 1920 as the region was divided by the colonial powers. Since Istanbul was the seat of the government, the reforms took place in Istanbul and gradually disseminated to the periphery. The 19th century corresponds to the reformative period in Islamic history. Since Ottomans ruled the majority of the Muslim world, the Muslim contribution to human rights was through their efforts, which combined diverse Muslim communities from East to West. Most views on the Ottoman State retrospectively impose the modern images on it in an anachronistic manner. A more accurate understanding of Ottoman history must be based on a deeper understanding of the Ottoman Weltanschauung. The primary source of the Ottoman worldview was the universalistic view of the Hanafi Fiqh, combining rational philosophy, theology, Sufism and formal law . They also inherited the legacy of Eastern Rome, the Byzantium, and previous Islamic states. Suleyman the Magnificent symbolically expressed how Ottomans inherited the legacy of the major past civilizations and built upon them with the four pillars of the Suleymaniye Mosque, which were brought from the relics of different civilizations around the world: Rome, Byzantium, Babylon, Egypt. The Ottoman objective was to maintain the World Order (nizam-i alem), a concept they derived from Islamic legal philosophy. For this purpose, they pragmatically reconciled the opposites from an imperial perspective: past and present; non-Islamic and the Islamic; secular and religious; Western and Eastern. With the rise of the Western civilization, the official Ottoman ideology also adopted a policy of reconciling modern and traditional elements. The Millets System served as the institutional mechanism for the World Order, bringing together diverse religious, ethnic, linguistic and cultural communities in a vast geography. The Chief Rabbi served as the head of the Jewish Millet. The Patriarch led the Orthodox community. The Armenian Patriarch ruled the Armenian community. The Copt Patriarch in Egypt was in charge of the Coptic Christians. Later, Catholics and Protestants were also granted the status of the Millet, which allowed them self-governance and autonomy in

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their internal affairs . These communal leaders reported to the Caliph. Following the spirit of the age, Ottomans abolished the Millets System towards the end of the 19th century as they granted equal citizenship to all subjects, irrespective of their religion. They also enacted positive laws to replace the traditional diverse legal system with standard laws for all, which is further discussed below. The modern secular form of pluralism was adopted to replace the traditional Islamic form of pluralism. The traditional Ottoman legal system was derived from two sources: classical Islamic law (Shariah) and customary law (Urf or Kanun). Some Shariah rules, especially those pertaining to criminal law, were replaced by the customary punishments. The Ulama produced and implemented both laws in an integrated system. The Cadis belonged to the Ulama class. The traditional methodology of Islamic jurisprudence recognizes social custom (urf, adah) as a source of law, which was used extensively by the Ottomans. Some historians interpret this as a form of secularism.

The 19th Century Ottoman Reforms: from Divan to Parliament

The reaction of the Muslims to the rise and spread of universal human rights in the era of modernization is also characterized by their earlier familiarity with the abstract concept of the universal human. The contemporary impact of the time-honored conflicting views on who has the ismah, is also observable in a survey of the varying Muslim responses to the evolution of human rights in the West and their penetration in the Islamic world. The first concrete reaction on the state level begins with the Declaration of the Tanzimat (Charter of Regulations) in 1839 in the Ottoman State by Sultan Mahmud II. The latest significant example may be the Cairo Declaration on Human Rights in Islam by the Organization of the Islamic Conference (OIC) in 1990. The Ottoman Caliph, advised mostly by Hanafite Ulema, granted equal rights to nonMuslims for the protection of life, property, honor and religion in the 1839 declaration of Tanzimat. Later, other declarations concerning human rights had also been issued in the reforming Ottoman State, which, in some aspects, resembled the decrees by earlier sultans known as Adalatname or Kanunname. Faced with Western ideological and cultural influence, the Ottomans had to compete with the European powers in extending rights to their citizens on equal basis. They had Hanafite law at their disposal to achieve this objective. The universalistic approach to human rights made it possible for them to reform Islamic law, parallel to changing custom. The major debate, carried by the Ottoman bureaucrats, Ulama and the intellectuals, during the second half of the nineteenth century, did not only revolve around whether rights should be given to citizens but also involved limiting the power of the Ottoman sultan. The Charter of Allaince in 1808, between the Sultan and the Dignitaries, examplifies this trend. The Ottomans framed the declaration of Tanzimat as a public reiteration of the rights already granted by Shariah. The execution of the reformist Pertev Pasha in 1837 prompted bureaucrats like Rifat Pasha to take measures for their own protection, which is also viewed as another major reason behind the declaration of the first human rights charter by a Muslim state. When Europe was shaken by the French Revolution in 1789, Selim III (1789-1807) ascended the Ottoman throne as the Sultan-Caliph. Ruling from 1789 until 1807, Selim III also initiated a highly radical reform project. With the purpose of getting feedback from the public, he issued a decree to civil, military and religious dignitaries resquesting them to submit their views on the possible causes of the weakness of the Ottoman society and state as well as their proposals for their reform. Following the Ottoman tradition, the vide ranging dignatariesdignitaries, from a wide ranging social spectrum, presented their ideas in the form of memorials. Three distinct perspectives emerged from these reform proposals: (1) Conservative: recover the glories of the Ottoman golden age by reverting to its traditional methods. (2) Eclectic: reconcile the European system with the existing order. (2) Radical: replace the traditional system with a modern one.

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The Sultan adopted the third and the most radical of the perspectives, which was also maintained by his successors persistently until the collapse of the Sublime State. He promulgatedde, in 1792 and 1793, a whole series of new instructions and regulations which came to be known collectively as the New Order (Nizam-i Cedid). He established a new corps of regular infantry, trained and equipped on the modern on European linesmodel, and a special new treasury to fund it. He also took some disciplinary measures to reform the administration. He improvedpayed greater attention to establishing better diplomatic relations with the European states. For this purpose, he established regular and permanent Ottoman embassies in the major European capitals such as London, Paris, Vienna and Berlin. Mahmud II, who ascended the Ottoman throne in 1808, regioriouslyrigorously maintained the reform programme of Selim III. The first outcome was the Charter of Alliance (Sened-i Ittifak), which was an agreement betweenm the Sultan and the dignitaries (Ayan). With this document, the Sultan's sovereign power was limited for the first time in the Ottoman history,history; therefore the historians consider it an important document , signallingsignaling the urgemove toward more political representation of peoples will, participation, broader political inclusion, democratic reforms, limits toing the power of the state and the Sultan, and more rights for the citizens. This document is also seen as the first step towards a constitution.

Constitutional Movements during the Ottoman Period

Constitutional movements during the Ottoman period commenced towards the end of the 18th century. Sultan Selim III (1789-1808) envisagedset up the formation of thean Aadvisory Aassembly (Meclis-i Meshveret), within the context of the New System (Nizam-i Cedid), initiating thea major stepmarch towards a constitutional government system. His successor Mahmud II, who was also a radical reformer, signed the Charter of Alliance (Sened-i Ittifak) in 1808, which is seen as the first important document from the point of view of a constitutional order.: It restricted the Sultan's exercise of power and delegated some authorityies to thea senate body, called the Ayan. The Royal Decree of the Rose Garden (Gulhane Hatt-i Humayunu) was launched in 1839, during the Tanzimat Reforms . This declaration, which may be seen as the first declaration of human rights by a Muslim state, assured all citizens their basic rights: right to life, property, freedom of religion, protection of honor, education, employment and due process.. The Tanzimat declarationIt was grounded on the doctrine of ismah in Islamic law. The document is especially significant for its recognition of equal rights in education and in government administration for those of Christian persuasion, exemplifying egalitarian principles. The Ferman declared: All Muslim or non-Muslim subjects shall benefit from these rights. Everyone's life, chastity, honor and property is under the guarantee of the state according to the Shariah laws. Representatives of all religious groups and the ambassadors of European states were present in the declaration ceremony, which was closed by the prayer of Shaikh al-Islam. In 1875, the Imperial Edict on Justice (Ferman-i Adalet) provided for independence of the judicial courts and ensured the safety of judges. The 1876 Constitution marks the most important step along the road to the rule of law, initiating the First Constitutional Period, which continued only for only a year, under the rule of Abdulhamid II. The first Ottoman constitution is seen somewhat restrictive in the exercise of powers, butit nevertheless, for the first time it, recognized a parliamentary system. This constitution has provisions covering basic rights and privileges and, the independence of courts and the safety of judges, among other aspects. In 1908, the Young Turks who dethroned Abdulhamid II launched the Second Constitutional Period and laid the foundations of a parliamentary system, which continued until the fall of the Ottoman State. The British invasion of Istanbul after World War I brought the Ottoman experience with democracy to an end as they exiled all the members of the parliament.

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Briefly, this is how the Ottomans reformed their system from Divan, the traditional decision making body composed of the dignitaries, to the Ottoman Parliament, composed of the elected representatives of the people, both Muslims and non-Muslims, from a vast geography extending from North Africa to the Balkans and the Middle East. Through structural and cultural reforms, the Ottomans demonstrated how an Islamic system of government can adapt itself to the modern developments. Expectedly, major problems remained to be solved over time. The Ottoman Ulama, under the Shaikh al-Islam, was among the reformative ruling elite during this timeese reforms. Successful and enduring reforms were the outcome of an alliance of the existing powers, the Palace (Caliph, Sultan), the People of Knowledge (Ilmiyye), the People of Sword (Army, Seyfiyye) and, the People of Pen (Bureaucrats,the Kalemiyye, Bureaucrats). In this period, Fiqh, the legal-normative science of Muslims, also went through transformation. The prominent Ottoman sociologist Ziya Gokalp initiated an intellectual movement, centered at the Istanbul University, to combine traditional methods of Fiqh with those of modern sociology. He called his new eclectic methodology, the Social Methodology of Jurisprudence (Ijtimai Usul al-Fiqh). For him, the success of the Ottomans relied inon the East-West synthesis. He said, I belong to the Islamic religion, Western civilization and the Turkish race. The three elements of his ideology (religion, civilization and nationalism) were reflected in the title of one of his books: Turkification, Islamization and Modernization (Turklesmek, Islamlasmak, Muasirlasmak) . The Young Turks adopted his ideology and implemented it at the turn of the 20th century until 1920. Afterwards, the modern Turkish Republic dropped the ideology of reconciliation and followed a policy of modernization and secularization alone. At that time, Ziya Gokalp, having changed his mind, wrote The Principles of Turkish Nationalism (Turkculugun Esaslari) to serve as the ideology of the new state. Secular and modern notions of justice and human rights were to be adopted slowly. The British invasion of Istanbul after World War I brought the Ottoman experience with democracy to an end, as all the members of parliament were exiled. After four years of successful resistance in several fronts (North Africa, Egypt, Yemen, the Balkans, Dardanelles, Caucasians) against an alliance of colonial European states, the fall of the Ottomans was effected by the disparity of power between the parties involved in the World War I. The Ottoman experience with democracy was crucial for the rise of the modern Turkish Republic as the first secular democracy in a Muslim country. With the fall of Ottomans, humanity lost thea major bridge between Islamic and Western Civilizations . The Ottoman legacy has been dispossessed by the later Muslim rulers and intellectualss. Consequently, the bridgelink Ottoman built between the Islamic and modern human rights discourse also disappeared with them. The new champions of Islam, e.g. Saudia Arabia, discarded the developments in Islamic law, started everything over and reverted back to the pre-Ottoman period by calling to a return to the Q. and the Hadith, and to policies of non-cooperation between Islam and the Western civilization. Yet some of them are still at the pointing ofamenable to the unending discussion aboutng whether Islam is compatible with democracy and human rights. The disinherited legacy of the Islamic reforms under the Ottomans during the 19th century unfortunately did not register in the Muslim mind due to the propaganda by the colonialists and nationalists against Ottomans. As Victoria R. Holbrook points out, the Ottoman legacy was stigmatized and unclaimed . The Salafis (Islamic puritans), modernists, colonialists, nationalists and the orientalists allied themselves against the Ottoman legacy, throwing the baby out with the bath water. Ironically, the Salafis refused the Ottoman legacy becauseon the grounds that it was unIslamic while the secular modernists refused it becauseon the grounds that it was Islamic. The nationalists refused it because it was not nationalist while the orientalists refused it because it was nationalist. A revisit to the Ottoman reform era is needed by critically examining the presently dominant discourse. The aforementionedse ideologies, in their narrative on the Islamic and Ottoman history, commonly share the simplistic regress paradigm without offering a scholarly explanation. Their narrative is usually based onwhen they look at the Islamic

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and Ottoman history and blamblaminge the vvictim: Islamic civilization fell because it decayed; the Muslims caused their own fall and deserved the horrible consequences. Even the rejection of the social evolutionary schemes of history in the Western social theory could not bring about a substantial critique of this orthodox view on the fall of the Ottomans. What would have happened if the Ottoman State had not collapsed under military pressure from the Western colonialists? This is a question for those who refuse a deterministic view of history. Perhaps the Muslim world would remain as part of the Western civilization and would not have lagged behind the modernization and democracy. Yet the parliament that, for the first time, brought together in Istanbul the elected representatives of people from Algeria to Sudan, fromto Bosnia andto Yemen was short lived. So was their legacy. The current discussions among the Muslim intellectuals worldwide explore the kind of questions the Ottoman Ulama tackled long ago, during the Selim III at the turn of the 19th century, about the compatibility of Islam with democracy and human rights. For the present oppressive rulers and the exclusivist thinkers, Islam is not compatible with democracy and human rights. Yet, Nno response could be more ensuring for the devout Muslims and the non-Muslim observers than the answer and practice of the Caliphs and the Shaikh al-Islams under the longest lived Islamic political structure. Had the Ottoman State survived or had the successive Islamic states maintained its reformative legacy, we would not have to tackle most of the theoretical questions and policy problems we are facing today. Yet the chain of memory is broken. To me, wWhat wwent wwrong lies here. Human Rights Dependency

As the theory of ismah went into an eclipse, the period after the fall of the Ottoman State may be described as human rights dependency, during which human rights came to Muslim world through the efforts of international organizations, but not through indigenous efforts. Muslims became recipients of human rights but they were no longer contributors to the human rights cause. The contemporary Turkish Muslim scholars have displayed a favorable reception towards the universal human rights during the twentieth century. In 1949, Yakup Kadri, a renowned author on Islam, wrote an Islamic commentary on the UN Charter where he concluded that it is in complete conformity with Islamic law. After the declaration of the UN Charter, Ali Fuad Basgil, a religiously oriented professor of law from Istanbul University, strongly supported the concept of universal human rights in his public lectures. But the state followed an anti-religious approach to human rights, completely banning religious education in the country for decades. Ali Fuad Basgil could barely save his life from the military rule and was not allowed to participate in politics to implement his views on human rights. He was accused for being a reactionary because of his belief in the freedom of religion. The first school of theology was opened in Ankara, the capital of Turkey, under pressure from NATO during the early sixties and it remained the only one until 1982. The religious life and education has been under strict control of the state. The irony is that this secular Tsarian (or Caesarianist) system, which had no parallel in the Western world, except the USSR, was introduced as a part of Westernization and modernization. Consequently, it poses a great problem for the integration of Turkey in the EU. The recent efforts of integration with the EU unmasked this phenomenon. The authoritarian Turkish ruling elite claims defending Western values but there is a great divergence between the European democracy and Turkish system, which was instituted allegedly as Western. The EU pressures Turkey, though mostly in vain, as did NATO, for more freedom of religion and the separation of religion and state. The Turkish government is also under pressure from major human rights organizations for its negative record. Ironically, the conservative Islamist wing rigorously supports integration with the EU, for gaining better human rights and particularly freedom of religion. Whether they will use more freedom of religion, if

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they ever get it, to undermine and abolish the democratic system which provides it remains unknown. This is the worry their opponents highlight to discredit them. Another favorable voice for universal human rights emerged in Sudan, Mahmoud Mohamed Taha. He was also silenced but this time, the pretext was not a secular one. He was executed because he was accused for going against Islamic teaching. Yet his message was carried on by Abdullahi A. An-Naim who could publicize his ideas in America, but not in his homeland, Sudan. An-Naim calls for a reform of Shariah to make it better respond to the needs of the changing times by incorporating universal human rights. Juxtaposing the cases of Ali Fuad Basgil and Mahmoud M. Taha demonstrates how the authoritarian governments, be they secular or religious, tend to misuse both religion and secularism to silence voices for better human rights, which they expediently frame as political opposition. The absence of a viable middle class, civil society and public sphere cripples all the efforts in the struggle for better human rights. The Muslim population, who sees no internal solution after exhausting all the potential strategies, eventually turns to international organizations to bring more pressure on their own governments, which signed international documents on human rights. I used these two examples to illustrate how the Muslim world still remains dependent on the Western organizations for the advancement of human rights. Analogous examples are abundantly available. During the preparation of universal human rights documents, the delegations from Muslim countries confused the world by displaying inconsistent attitudes, particularly on the rights of workers and women. Some Muslim states expressed objections against some of the provisions of the UN Declaration in 1948. Yet, some voted for it without any objection. Those who signed have not taken them as seriously as their Western counterparts have done; it has usually remained as a lip service. However, there are some efforts worthy of mentioning. Muslims produced two international human rights declarations after the UN declaration: UNESCO Declaration (1981) and the ICO Declaration (1990), known as the Cairo Declaration on Human Rights in Islam. All Muslim states signed the latter document, which took around two decades to prepare. The Islamic Conference Organization (ICO) seems to be the most significant platform and vehicle for the advancement of human rights in the Muslim world. Yet its voice is hardly heard as Muslim societies face great challenges. Without putting the issue into an historical perspective, the Islamic confusion on human rights cannot be understood and solved. Nor can the human rights dependency, on the part of Muslims who believe in human rights, be overcome without linking the chain of memory to past cultural reservoir. Human rights discourse in the Muslim world needs philosophical, moral and historical roots to grow on, gain strength and bear fruits. Otherwise, its defenders will remain dependent on the Western discourse and consequently will get easily dismissed by the conservative population, patriarchy and authoritarian rules. The power of precedence, on the theoretical and historical levels, must be put in use in justifying human rights in Islam today. The irony in the phenomenon, which I have conveniently labeled as human rights dependency, following Abdullahi A. An-Naim, is that the support for both the oppressive regimes and the human rights advocacy comes from the West. The conflict of the humanitarian and the colonialist urges, emanating from the West, is reflected in this phenomenon. Alas, the former is usually overpowered by the latter. The politicians and the interest groups from East and West, with exclusive reliance on instrumental rationality in their approach to human rights, establish international coalitions among themselves. So must do the civil communities and intellectuals from around the globe, acting with the value rationality, to cure the human rights dependency of the non-Western world. Reinvigorating the universal approach in Islamic law and combining it with the modern notions will provide a remedy to human rights dependency for the benefit of all around the globe. But how can we do that? This is the question I will address in the next section.

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VIIIX. What is Sociology of Rights For?

In the above discussion, I have simultaneously utilized sociological and legal approaches. The concurrent usage of the concepts and methods derived from sociology and law helped me in exploring some aspects of human rights which I could not possibly see if I had remained only within the boundaries of either discipline. Yet, currently there is a gap between legal and sociological approaches to human rights. I believe that a sociological approach to rights-with its emphasis on relativism-must be coupled with the currently dominant formal legal approach-with its emphasis on the universality of laws. This way, we can utilize the advantages afforded by both perspectives in exploring the tensions and weaknesses in the universal human rights discourse and offer better remedies. Below, I will provide a brief account of my attempt towards integrating these approaches and highlight the benefits we may attain by implementing it. A relational approach to society, law and rights, as opposed to the traditional essentialist one, would allow us identify the mutable and immutable elements and the constant reconfiguration of relations among them over time. The continuity lies in the persistently reoccurring relations among humans within a society, which we commonly call structure, organization, institution or system. The synergy between discursive and social action produces them. Yet some sociologists and lawyers tend to conflate discourse to what they distortedly term social structure or social reality. However, discourse is not less real than society. In fact, no social structure is possible without discourse or vice versa. Discourse is the interconnected talk which interconnects people and brings about what we commonly call society. Interconnections in discourse and society make each other possible and from their interaction emerges what is called social reality. Talk and the reflexive talk about previous talks, be they our own or for others, interactively constitute social relations and bind people in social networks, bestowing on them an identity and a role. Whether religious or secular, narrative brings and keeps us together. Law is one such social institution, grounded in competing narratives. A sociological approach may be applied to law by approaching it the way Saussure, the Swiss linguist who is seen as the father of structuralism, approached language as a social institution. Language is social; it is above the individuals; its rules constrain them. An individual cannot make a language for herself or disregard its rules at wish. In his book, S/Z, Barthes demonstrated how powerless we are vis--vis language because we cannot even replace one letter with another letter with a close voice: we cannot use the letter z instead of letter s. Language is thus inherited from the previous generations and is internalized through socialization. However, Saussure observes that language changes over time. The change emanates from its usage on the ground by people. For Saussure, change in language emerges from the interaction between the universal linguistic rules (langue) and their pragmatic application in particular settings (parole). Extending Saussures approach to law may allow us to explore the tension and the interaction between the individual and law or human agency and social structure. Similar to language, law is also social. It also has universal rules which are implemented on the ground by concrete individuals. Its rules also constrain individual action which cannot be disregarded at wish. Furthermore, the interaction between the discourse and practice of law is the locus where the fermentation for change begins. The relationship between discourse and society is problematic. The positivist perspective conflates discourse to society, which is what is real for them. In contrast, the postmodernist perspective reduces social structure to discourse to deconstruct the conventional images of reality. Yet for Saussure, conflating the two is detrimental; they should be kept separate and the tension between them should be explored and exploited. Law is not merely a discourse, yet it cannot exist without a discourse. The practice and discourse mutually influence each other and their relationship is constantly reconfigured.

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Austin, Rorthy, Dworkin and Habermas have come to variably acknowledge the relationship between law and discourse. For Austin, law was a one-way speech from the superior to the inferior in the form of a command. Yet some jurists from the succeeding generations are inclined towards a circular model on the relationship between law and its subjects because it allows exploring the two-way interaction. I believe this problem can be better solved if we apply a dialogical approach, originating from Bakhtin, a prominent Russian linguist. The tensions and dynamics influencing law can be better explored if approached as a dialogue between, or better put a polylogue among, the producers, practitioners and subjects of law. In fact, all are producers, practitioners and subjects of law at all times, but in differing and sometimes less visible and highly indirect ways. Furthermore, the change in law is not always effected by external dynamics. On the contrary, the legal discourse is one of the most self-reflexive genres. Motivated by internal dynamics, it constantly acts upon itself. Legal discourse is multiplex: there is law, the talk about laws, and the talk on the talk about laws. The second is usually called jurisprudence while the third may be called reflexive jurisprudence or meta-jurisprudence. Silversteins concept of reflexive speech applies to legal discourse as well. Most talk in and on law and jurisprudence falls in the category of reflexive speech. A sociological approach to legal discourse should not solely focus on what law means, but also what law does in society in concrete settings. The rules of pragmatics are at constant play in legal discourse. Words do things. Things come to being first in discourse before they become facts on the ground. People do things with words. The seed for action first grows in mind and heart, then in langue, before it falls on the ground to grow and bear fruits. Shared discourse, which in my usage frequently replaces the amorphous term culture, is also an expression of shared meanings in a society. Therefore, an authentic understanding of human rights discourse requires, what Clifford Geertz calls, a thick description. A thick description of rights may compliment the currently used formal approach by linking rights to the shared notions of justice, equity and freedom. Some of the notions are universal while some are local. Also, there may be difference in the way universal notions are locally understood within each culture. Consequently, even if all or some cultures share a number of universal notions about human rights and justice, the way they justify them may be diverse. Cultural variation in the justification of rights was a major issue during the preparation of the UN Declaration during the 1940s. The drafters choose to strategically remain silent on the issue of justification since ideologies and religions, which agreed on the universal human rights, terrifyingly disagreed on their justification. Each group answered the question where do rights come form? with distinct and usually opposing and irreconcilable terms. Deists, atheists, capitalists, communists, Buddhists, Confucians, Jews, Christians and Muslims all have their own distinct way of justifying rights. Furthermore, each camp differs within itself. Sometimes internal conflicts are more tense than the external ones. Worse was the exclusivist claim by ideologies to patronize or monopolize the human rights discourse. An ideological stand must expectedly be exclusive. However, I believe that a common ground is possible to discover through thickly describing each method of justification and identifying the commonly shared elements. This way the contradictions of the absolute relativism, voiced by the American Anthropological Association (AAA), during the preparation of the UN Declaration, can be avoided. From the perspective of absolutist relativists, universal law is impossible. In contrast, I claim that each culture may justify human rights in its own terms and meet in the common ground with other cultures. Also, no ideology, acting self-appointedly on behalf of a religion, culture or civilization, has the right to exclusively patronize or monopolize universal values of justice, freedom, equality and freedom. Such an attempt for monopolization contradicts by the claim itself. The pitfalls emanating from the absolutist claims of relativism and exclusivist claims to ideological supremacy may be overcome by coupling the formal approach of jurists, emphasizing universality, with a sociological approach, highlighting social difference and change.

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From this perspective, we may establish a synergy between competing paradigms and tackle the question the drafters of the UN Declaration pragmatically preferred to evade. Since then, different ways of justification have been seen as mutually exclusive and incompatible, which has a weakening impact on human rights cause. The currently prevailing paradigm tends to justify rights on secular and Western terms alone. Consequently, non-secular and non-Western people may easily be disturbed and alienated by the exclusive claims of secular, materialist or atheist ideologies for the justification of universal human rights. Yet, if a common ground is discovered then all religions and secular ideologies may join forces to stand on it while advocating for human rights in their own terms. This would allow us to establish a synergic triad among religions, secularisms and human rights discourses. One of the most important ways sociological approach may compliment the formal legal approach is though underlying the interaction between personal relations and social structures. Currently, human rights paradigm relies on the formal legal approach. The logic of personal relations is not the same as the logic of formal relations. According to Tonnies, the former produces community (Gemeinschaft) while the latter produces society (Gesselschaft). According to Durkheim, the former is integral for mechanic society while the latter is integral for organic society. Furthermore, the former primarily appeals to conscience and morality while the latter appeals primarily to reason and legal code. If the former relies on love, sacrifice and trust, the latter relies on reciprocity and contract. Secular approaches are better equipped to promote the universal law while religious approaches are better prepared to promote the universal love. Their cooperation is needed to mobilize both formal and personal relations in globally promoting respect and compliance with human dignity and sanctity. Law and love are not mutually exclusive, rather they must be brought to bear upon, and reinforce, each other. Universal human rights cause cannot succeed without integrating both logics. In the human rights scholarship, the unit of analysis cannot be states and their relations alone. The individual, the community and their interrelations must also be fully incorporated. Appeal to reason must go with the appeal to conscience. Appeal to individual must go with the appeal to community and the state. Same way, appeal to universal law must go with the appeal to universal love. Otherwise rights will stand on a slim foundation. This is what sociology of rights is for. In sum, value-rationality must compliment instrumentalrationality on the individual, communal, state and international levels. Otherwise, we will be the prisoners of the iron cage Weber prophesized a century ago.

TFurthermore, I will also argue that the reaction of the Muslims to the rise and spread of the universal human rights in the era of modernization and Westernization is also characterized by their earlier familiarity with the abstract concept of universal human. The contemporary impact of these time-honored conflicting views on who has the ismah, I will document, is also observable in a survey of the varying Muslim responses to the evolution of human rights in the West and their penetration to the Islamic world, beginning with the Declaration of the Tanzimat (Regulations) in 1839 in the Ottoman Empire by Sultan Mahmud II to the Cairo Declaration on Human Rights in Islam by the Organization of the Islamic Conference in 1990. The Ottoman Caliph, surrounded mostly by Hanafite Ulema, granted equal rights to non-Muslims for the protection of life, property and religion in the 1839 declaration of Tanzimat. Later, other declarations concerning human rights had also been issued in the reforming Ottoman Empire, which, in some aspects, resembled to the decrees by earlier sultans known as Adalatname or Kanunname. Under the pressure of the Western expansion, the Ottomans had to compete with the Western powers extending rights to their citizens on equal basis. They had Hanafite law in their disposal to achieve that. The major debate, carried by the bureaucrats, the Ulema and the intellectuals, during the second half of the nineteenth century did not only revolve around the rights to be given to the citizens but also around limiting the power of the Ottoman sultan. The Ottomans presented the declaration of Tanzimat as a public reiteration of the rights already granted by the Shariah. There is no evidence that these declarations,

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which served some diplomatic purposes at that time, brought about a radical change in the actual practice but granted that right of life would be observed. The execution of the reformist Pertev Pasha in 1837 prompted bureaucrats like Rifat Pasha to take measures for their own protection, which is viewed as another major reason behind the declaration of the Tanzimat reforms. Human Rights Dependency: The period after the fall of the Ottoman Empire may be described as human rights dependency, during which human rights came to Muslim world through the efforts of international organizations, but not through indigenous efforts. Muslims became recipients of human rights but they were no longer contributors to the human rights cause. The modern Turkish scholars have displayed similar favorable reception towards the universal human rights during the twentieth century. In 1949, Yakup Kadri, a renowned author on Islam, wrote an Islamic commentary on the UN Charter where he concluded that it is in complete conformity with Islamic law. After the declaration of the UN Charter, Ali Fuad Basgil, a religiously oriented professor of law from Istanbul University, strongly supported the concept of universal human rights in his public lectures. UNESCO Dec. ICO dec. 1981 Cairo I AM THEREFORE I HAVE RIGHTS

Conclusion: I am therefore I have Rights

I conclude by reiterating my claim that I am therefore I have rights. Voicing this claim, I believe I stand on the common ground of all religious and secular approaches to universal human rights. Above, I have demonstrated only the roots of this claim in the secular modern and traditional Islamic legal notions. Further research may be conducted regarding other secular and religious traditions. In fact, there is an increasing volume of literature unearthing the roots of human rights within diverse cultures of the world. They are all well-justified in their efforts while there is no justification for the ideological claims to monopolize human rights. My very existence justifies my rights. They are indivisible and inalienable. I am charged to stand for my own rights and for the rights of the entire humanity. It is a duty for me to recognize all my fellow human beings as equal persons and protect their rights the same way I do for my own rights. My community and state must also do the same. Protecting basic human rights must be the objective of all legal systems, if it is already not. The legitimacy of the political authority and the law should be judged by their conformation with basic human rights. Individuals should not defer their moral capacity to their superiors and therefore always judge the judgments and the judges from the perspective of human rights. Universal love must be accompanied by universal law, in order for both to succeed. Conscience and reason must join forces for a better life on the globe for everyone. Those who act on universal values should coalesce their powers against those who are motivated by instrumental rationality alone, for the benefit of all depends on that. These are some of the principles one may also derive from the classical Islamic law. They are ancient yet still speak to us. Nevertheless, Tthe universal view, in represented by a branch of the classical doctrine of Islamic law, is curiously invisible neglected in the Modern Islamic discourse on human rights. Today, the Turkish and Arabic discourse on human rights occasionally heavily utilize the term ismahismah (sanctity) but rarely do they utilize the category demiyyah

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(humanity), the absence of which cripples any attempt to philosophically ground human rights on the universal level. Unfortunately, with the break in the chain of memory, the modern Islamic legal discourse has lost the universal dimension that characterized the discourse of some jurists in the classical era. Most of the modern Islamic discourse on human rights revolves around religiously defined social categories such as muslim and kafir (non-Muslim), rather than a universally comprehensive inclusive concept of human society (adamiyyah). Unearthing and reintroducing the classical Islamic concept of universal human can surpass transcend this communal approach, which is the objective of this research. Even though the traditional-Islamic and modern-Western approaches to universal human rights cannot be expected to completely converge due to the historical and religious reasons, the segments of Muslim society who have welcomed the rise of universal human rights in the West, culminating in the UN declaration, have been those who have already found in their cultural repository some of the abstract constructions on which the Declaration was heavily based, the most important one being the abstract concept of a universal human. This concept exists in one strand of Islamic law and needs to be unearthed to provide a solid philosophical foundation for universal human rights in Islam, which is the purpose of this research aimed to provide. The theory of damiyyah and ismahismah needs to be researched further and explained in modern human rights language to both Muslims and non-Muslims. Deriving from this theoretical ground, we can extend this venue until a full-fledged theory of universal human rights is developed and expressed in modern language to meet the present needs of the Muslim society in its internal relations with other fellow Muslims and external relations with other fellow humans-a pressing need in the present globalized world. Muslims lagged behind the modern world regarding the universal human rights despite the classical universalistic tradition in Islamic law and the rigorous reforms by the Ottomans during the 19th century to bring traditional Islamic polity in line with its modern counterparts. Yet the chain of memory has been broken in the Islamic civilization. Presently, some Muslim states and intellectuals try to start over in producing and justifying rights. I offer an alternative strategy which exploits the authority of precedence, on theory and practice. I also recognize the need for each culture and religion to do so. This approach contradicts with the dominant ideological approaches characterized by an exclusivist claim for the justification of human rights. Diverse ways of justifying human rights by different cultures in their own terms will empower human rights cause and increase compliance globally. A historical precedence for this claim comes from the Islamic tradition. Another strategy may be, as I did above, to indiscriminately combine the ideas and notions from different cultures, past and present, East and West, on the meaning, prerequisites and implications of human existence in society. There is a room in this perspective for the universality and relativity. Universality cannot be monopolized or patronized by a particular ideology. Nor can it be precluded because of the social and cultural diversity on the globe. Globalization helps us increasingly discover the commonality of human experience from different cultures, times and places. Yet we need to make an effort to discover the links, and to fill the gaps, among them to demonstrate how they bear upon each other. Such an integrative view makes human rights paradigm multi-potential and plastic, rather than exclusivist and fixed. Diverse cultures may thus variably reaffirm universality of human rights in their own terms, adding to the power of the paradigm. This is the ultimate goal of this project.

3. Significance (a)This research will contribute to the ongoing controversy between scholars of human rights on whether non-Western cultures also have a concept of universal rights equally given to all by birth. My work will demonstrate that there are two lines of thought in the Islamic theology and law dealing with the issue; one is universalistic while the other is not.

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Yet, at this stage, it would be imprecise to claim that the meaning of the Islamic and the Western approaches to universalism completely converge. It would require further comparison and research. (b)This research will shed light on one of the reasons why Muslims perceive universal human rights differently by exploring the extent to which the legacy of rival historical legal cultures, represented by different schools of law, play a role in shaping the notion of a universal human and his basic rights. (c)This research will unearth a classical universalistic doctrine of human rights currently unknown to the majority of the specialists and activists in the field, particularly in the West. It may serve as the point of departure for a new universal doctrine of human rights from an Islamic perspective that is accessible to modern people, Muslims and non-Muslims alike. Such an approach will greatly contribute to the dialogue and intellectual harmony between Muslims and non-Muslims. (d)Integrating the Ottoman and Turkish legal experience to the current scholarship of human rights will be another contribution of this project. Our study of human rights and Islam would not be complete without taking the Ottoman rule into consideration, which lasted almost for seven centuries (1299-1923) and over three continents with countless ethnic and religious groups. Likewise, the modern Turkish discourse on human rights must also be comparatively analyzed because Turkey has a unique experience with modernity. (e)Another contribution of this research will be suggesting an Islamic theory of universal human rights, embedded in the modern human rights language, yet as an extension of classical Islamic notions to address problems of the present world. 4. Presentation of Results I intend to produce first an article addressing the following four issues: (1)The rival paradigms in classical Islamic law concerning human rights. (2)The documents of human rights issued by the Ottoman state in the period of modernization. Ottoman discourse and practice are significant not only because it is an integral part of more than six centuries of the Islamic history but also it is the last multinational and multi-religious empire Muslims established. Yet it is one of the least known fields. (3)The perception of the UN Charter by experts of Islamic law in Turkey. Turkish view on human rights is an important part of the Islamic view in the contemporary Muslim world, however, it has yet to be analyzed and compared with the responses of other parts of the Islamic world. (4)The fourth section will explore the possibility of developing a universal theory of human rights deriving from the classical Fiqh heritage.

Each issue will, at the end, constitute a chapter in the book I wish to author. I will also remain open to the suggestions regarding the presentation and modification of my findings after consulting with other Fellows. The focus of this research will be on the theoretical level and based on the analysis of legal discourse. The actual practice of Muslims and the extent to which it was consistent with the theory throughout the Islamic and Ottoman history requires another research. The reason why I choose to analyze the Ottoman and Turkish cases is not only because these are the cases I am most familiar with, but also these are the cases that are absent in the current research on human rights in the Muslim world.

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Al-Zuhayli, Wahba, al-Fiqh al-Islami wa Adillatuh, Dimashq: Dar al-Fikr 1409/1989 11111Abu Hamid Al-Ghazali Those Who Rush To Condemn People Are Reckless Ignoramuses
Al-Ghazali on Tolerance By Asma Barlas Feb 25, 2013 It is truly illuminating to read the work of Islams most famous theologian, Abu Hamid al-Ghazali, against the backdrop of religious politics (specially, the application of blasphemy laws) in Pakistan today. Of particular relevance is his Faysal al-tafriqa bayna al-islam wa al-zandaqa, which Sherman Jackson translates as The Decisive Criterion for Distinguishing Islam from Masked Infidelity (On the Boundaries of Theological Tolerance in Islam, Oxford University Press, 2002). In this book, al-Ghazali defines the methodological criteria by means of which Muslims can legitimately distinguish between belief and unbelief (Kufr). However, in this essay, I discuss not his methodology - which emphasizes the need for reasoned and logical proofs - but those parts of his argument that bear on intolerance, claims to interpretive authority, and the rush to accuse people of Kufr, since these are exceptionally pertinent to Pakistans problems. As a way to situate Faysal both theologically and politically, Jackson makes a number of arguments. First, he points out that heresy was not always synonymous with infidelity or apostasy in classical Islam because scholars differentiated between formal and material heresy; it thus connoted several categories of theological deviance, including Kufr. For al-Ghazali, Kufr is purely a matter of rejecting the truthfulness of the Prophet Muhammad [pbuh]. Beyond this, it reveals, in and of itself, virtually nothing about a persons moral or religious constitution. Thus, a kafir (qua kafir) is neither immoral, irreligious, nor exempt from receiving recognition - in this world - for the good he or she commits (which is why, says Jackson, to use kafir as a moral, ethnic, cultural, or even civilisational delineator ...[is] a patent misuse of the category). Second, while theology functions as a category of exclusion, al-Ghazalis aim was to define the boundaries within which competing theologies can coexist in mutual recognition. Such a project necessitates not only tolerance, but also a method for determining acceptable theological interpretation. In this context - a thousand years before modernist Muslim scholars began to critique traditionalist methodologies for the same reasons - alGhazali rebuked the tendency (of both traditionalists and rationalists) to ignore that interpretive presuppositions are historically determined, and to conflate interpretation and revelation. Indeed, on his views, it was both these tendencies that were responsible for religious extremism in his day. According to al-Ghazali, obscuring the historical situatedness of scholars and their work - the very invisibility of the theologians history - is what makes both him and his theology so powerful by promoting the idea that he is transcendent and harbours no biases, carries no past, and labours under no provisional, half-, or untrue premises. This fiction enables the confusion of revelation with its interpretation and allows different schools to insist that anyone who opposes their doctrine effectively charges the Prophet [pbuh] with lying. This was customary during al-Ghazalis lifetime - and in fact it was the ease and frequency with which the Ulema made such claims that consumed the bulk of [his] attention in Faysal - but while he refers to this issue only in passing, as Jackson makes clear, the struggle for interpretive hegemony always entails repression. In this regard, Jackson makes the important point that just because there is no formal authority (like a clergy) in Islam does not

50 mean that there is no orthodoxy or that Muslims dont curb theological dissent by such informal means as the threat of stigma, malicious gossip, ostracism, or verbal attack by respected members in the community.
If Jacksons introduction shows how little some things have changed in a millennium in Muslim societies, alGhazalis work shows the subversive potential inherent in Islamic theology that has been repressed and marginalised during the course of Muslim history. Three of al-Ghazalis arguments are particularly revolutionary. First, in response to charges of Kufr against himself (for having broken with traditional doctrines of his time) al-Ghazali asks what gives anyone this monopoly over the truth ... Why should one of these parties enjoy a monopoly over the truth to the exclusion of the other? He shows - by contrasting the Mutazilite and Asharite position on a couple of issues - that there is indeed no basis for such claims and ends by saying that anyone who gives others a monopoly over the truth is himself closer to being guilty of both Unbelief and contradictoriness inasmuch as that person privileges others over the Prophet (pbuh). Second, al-Ghazali condemns casting aspersions on the people of Islam - however much their ways may differ while they hold fast to the statement, There is no god but God; Muhammad is His messenger, being sincere therein. That is, religious diversity in Islam is not a problem so long as Muslims share core convictional beliefs. In fact, al-Ghazali does not even view Bidah (unsanctioned innovation) as an act of Unbelief and goes so far as to say that not everyone who embraces senseless hallucinations must be branded an Unbeliever, even if his doctrines are clearly absurd. He also questions whether consensus (Ijma) can be used as the yardstick for judging what is acceptable or not, given the difficulties of defining consensus consensually. Finally, al-Ghazali questions the authority of religious scholars and jurists to pass judgments about Kufr. As he says: those who rush to condemn people who go against ...any ...school as Unbelievers are reckless ignoramuses. For, how could the jurist, purely on the basis of his mastery of Islamic law (Fiqh), assume this enormous task? In what branch of the law does he encounter the (aforementioned) skills and sciences? So when you see the jurist who knows nothing but law plunging into matters of branding people Unbelievers or condemning them as misguided, turn away from him and occupy neither your heart nor your tongue with him. For, challenging others with ones knowledge is a deeply ingrained human instinct over which the ignorant are able to exercise no control.

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