Contemporary discussions on religious minorities in Islam

Brigham Young University Law Review, 2002 by Nielsen, Jorgen S

I. INTRODUCTION

Much of the early European scholarship in the field of Islam relied heavily on the classical Islamic legal textbooks.3 One major problem with this scholarship is that it assumed such law was also descriptive. While these assumptions about law had also characterized a phase of European historiography, the historians were able to correct their assumptions by referring to the data in diplomatic and judicial archives. Scholars of Islam and the Middle East were much slower to adopt these methods of the European and North American historians4 for two main reasons: first, their training long remained isolated from the mainstream of history as a discipline, and second, because the Islamic and Middle Eastern archives, necessary for a study of how the law was implemented and how it impacted society, have only recently become accessible.5

II. DISCUSSION

A. Explanning Present Perceptions of Islam

1. The development and influences of Islamic scholarship

Simplistic views of Islamic law, rooted in out-of-date scholarship, have been reinforced by developments in the Muslim world itself. Islamist political movements have tended to attract most attention when they have expounded those traditional rules of Shari'ah such as the death penalty for apostasy and adultery, harsh punishments for certain other crimes, and oppression of women and non-Muslims. The Taliban in Afghanistan is another obvious example. The West has gradually accepted such rules and traditions as "typical" of the Islamic world.

However, the "typical" image outlined above is only partially accurate and ignores the extraordinarily complex predicament of the Islamic scholarly disciplines over the last century or so. The rise of European economic and political power during the nineteenth century had deep repercussions in the Muslim Middle East even before many regions fell under direct colonial rule. The shift of educational models from that of the madrasa-university to that of Oxford, Cambridge, and the Sorbonne accompanied the rise of new forms of employment in civil and military state structures. New professions and specialties associated with modernization and the gradual integration of local and regional economies into global networks attracted growing numbers of people and resources away from the systems and institutions of Islamic education. New specialist colleges, military and civilian, became the ideal destinations for ambitious young men, and the American University of Beirut became the desired alternative to Al-Azhar, the thousand-year-old Islamic university in Cairo.

The result of these changes was the decimation of the Islamically literate elite (ulama) and a consequent decline in comprehension of the complexities of the Islamic legal tradition. At the same time, pressures for reform, especially in family law, came to be associated with pressures for westernization, leading many Islamic scholars and activists to reject all reform as a surrender to the imperialists. What was left in the broader Muslim public opinion was a merely superficial comprehension of the rules of the Shari'ah partnered by complete ignorance of its subtleties, of its scope for flexibility in implementation, and of the centrality of the rules of interpretation. At the same time, the available trained personnel with the full range of traditional skills and knowledge was sharply reduced in number. So when, for example, President Jaafar al-Numeiri of Sudan made Islamic law the norm in his country, citizens had only a superficial knowledge of it and committed quite blatant mistakes.

2. Islamic constitutions

Western perceptions of human rights in the Muslim world are influenced by traditional views of Islamic thinking, by the practice of states in the region, and often by a confusion of the two. It is important to emphasize that very few Muslim countries claim to have an Islamic constitution. Some of the Muslim countries that do claim to have an Islamic constitution are Iran, Afghanistan, Libya, Saudi Arabia, one or two Gulf States, and possibly Morocco. However, these countries lack a full consensus of Islamic opinion inside and outside their own countries in support of their claims to an Islamic constitution. Indeed, in many cases it might be said that there is a contradiction between the state and Islamic trends. Examples of this contradiction are found in most of northern Africa, Algeria, Egypt, Syria, Iraq, Turkey, and all the Muslim countries of the Caucasus and Central Asia.

3. Islam and the Universal Declaration of Human Rights

Pakistan, and Syria drew attention to the difficulties that Articles 16 and 18 posed for Muslim countries.8

4. Urbanization in Muslim countries provides support for Islamic political movements

5. Islamic organizations draw up their own human rights documents

Amidst this period of growth and urbanization, Islam was increasingly being challenged on its attitude toward human rights. In response to these challenges, Islamic organizations felt obliged to create their own Islamic human rights documents in such a way as to provide Islamic parallels to the U.N. Declaration on Human Rights. These documents tend to have an apologetic tone, indicating that the concept of human rights is now comfortably at home in an Islamic environment and that human rights are rooted in Qur'anic principles. Large parts of these texts are reasonably consonant with recognized principles laid down in international documents such as the U.N. Universal Declaration on Human Rights11 and the European Convention on Human Rights.12 In relation to the status of non-Muslims, the documents usually begin by citing the Qur'anic injunction that "There is no compulsion in religion" and then to guarantee to non-Muslims the right to freedom of belief and religious practice.13