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Chapter 5 Islamic Foundations of Religious Human Rights Following an introduction of the terms of reference and thesis of this chapter on the Islamic foundations of religious human rights, my discussion will fall into three parts. First, I will offer an outline of the origins, nature, and development of Islamic law and theology and of their modern influence. The second section will focus on the nature and circumstances of discourse about rights and responsibilities in the Islamic world today. In that light, I will suggest in the third section a theory of Islamic foundations of religious human rights, as can be perceived in the modern context. Introduction: The Imperative of Resolving a Paradox It is the intent of this chapter to discuss both Islamic legal and theological foundations of religious human rights and the influence of an Islamic discourse about rights in more recent Islamic legal life. As a matter of terminology , however, no distinction was made in the work of early Islamic scholars, or in the minds of their followers, between law and theology. Subject matters ranging from legal, in the modern sense of the term, to that pertaining to belief and doctrine, ethics and morality, religious ritual practices, style of dress, hygiene, courtesy, and good manners were all seen as falling within the domain of Shariʿa, the divinely ordained way of life.1 The phrase “religious human rights,” as used in this chapter, refers to those rights that pertain to freedom of belief and conscience, including religious dissent, conformity or lack thereof, and tolerance, as human rights.2 That is to say, I am concerned with religious rights as conceived, articulated, and applied within a “human rights” paradigm, rather than within a particular Islamic Foundations of Religious Human Rights 141 religious or other frame of reference or legal system. The conception and implementation of religious rights as human rights are both necessary and paradoxical in that the two can neither be easily joined nor separated.3 The connection is difficult to make, on the one hand, because of the inherent tension between the underlying premise of universality of human rights and the particularity of religious foundations for those rights.4 Since the universality of human rights means the validity and application of these rights to all human beings throughout the world, they must apply regardless of whether they are perceived to be founded in the religious beliefs of a given community. Universality of human rights is particularly challenged by religious activists, such as Islamist groups in several Islamic countries today, who claim that their religious belief requires the establishment of a “theocratic” state to enforce their vision of the sacred law. Yet, it is imperative to maintain the universality of human rights against such claims precisely because of the exclusive and abusive nature of a theocratic state, against believers and nonbelievers alike. On the other hand, it is difficult to separate religion and human rights because they both not only operate on the same moral plane of justification but also overlap and interact in content. Both normative systems are premised on the same moral precepts of human relations; and while believers are moved to uphold human rights norms out of religious conviction, the protection of the right to hold and act on those convictions is integral to the fundamental concept of human rights. Since believers will always make the connection between religion and human rights, whether positively or negatively, it is better for human rights advocates to acknowledge and respond to it rather than pretend that it does not exist. Failure to resolve the apparent paradox between religion and human rights, I maintain, is detrimental from both perspectives. Unless common ground can be found whereby people would uphold human rights as a matter of, or at least without violation to, their religious conviction, they would be expected to make a choice between the two “creeds.”5 In that case, the cost to the community or person making such a choice is not only in the loss of some or all of the benefits of the abandoned creed but also in relation to the value of the adopted or preferred one. If a community opts for upholding what it believes to be the precepts of its religion over a commitment to human rights norms, then the community and its members will lose from a religious as well as a human rights point of view. Opting for human rights over religious precepts, on the other hand, would entail loss...

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