A Muslim Declaration of Human Rights?

From the outset of Islam, prophetic teachings and practices, both personal and societal, set the tone for nondiscriminatory treatment of minorities. During Prophet Muĥammad’s time, several eminent representatives of non-Arab groups—e.g., Bilāl the Ethiopian, Salmān the Persian, and Śuhayb the Roman (European)—were held in high esteem by the majority Arab Muslim population. Praise from the Prophet Muĥammad ﷺ for non-Arab people further enhanced their stature. He stated, for example, “The call to prayer is for the Ethiopians.”⁴ “Were faith in the Pleiades the Persians would attain it.”⁵ “The Europeans are best in the treatment of their poor and downtrodden.”⁶ On two occasions, he sent contingents of his followers to seek asylum in Abyssinia, an African kingdom, led by a just king whom he praised.⁷

In addition, the Prophet’s relationship with many of his black companions highlights—in stark contrast with most societies past and present—the social cohesion and efforts to eradicate race consciousness during the prophetic era. For example, the Prophet ﷺ adopted a black Arab youth, Zayd b. Ĥārithah,⁸ as his son and attached him to his lineage before the Qur’an prohibited the latter practice. He referred to an African woman, Barakah al-Ĥabashiyyah (Umm Ayman), as his mother. Zayd and Umm Ayman married, and their son, Usāmah, described as having a dark complexion,⁹ became known as the beloved of the beloved of the Messenger of God. The Prophet ﷺ was known to send his dark-skinned companions to the homes of light-skinned aristocratic Arabs to ask for the hands of their daughters in marriage.¹⁰ He also appointed individuals of African descent to high offices in the fledgling Muslim polity.¹¹ Such prophetic decisions and directives served as a model for the achievement of social integration and cohesion in Muslim realms, especially because Muslims seek to emulate the prophetic character. Much of this came to an end with the advent of European colonization and the dismantling of the institutional structures buttressing the shariah as a viable civilizational force.¹²

Respectful treatment of non-Muslim minorities living in Muslim lands became a reality because the Prophet ﷺ extended protection to all those living under Muslim rule. He stated, “Whoever oppresses a person granted a covenant of protection, violates his rights, burdens him with an unbearable workload, or takes something from him without his consent, I will prosecute him [the transgressor] on the Day of Resurrection.”¹³ He also declared that anyone who unjustly kills someone under the protection of the Muslim polity would be banned from paradise.¹⁴

The importance—and the impact—of Islam, through prophetic teachings, can be witnessed in the history of all major Muslim population centers where Arabs, Persians, Turks, Africans, and Europeans created dynamic, ethnically mixed societies. These centers included Baghdad; Cairo; Mecca; Medina; Hyderabad; Istanbul; Fes; Marrakesh; Sarajevo; Timbuktu; and during the time Muslim rule prevailed in the Iberian Peninsula, the entirety of Andalusia. 

While not without some faults, the striking ethnic and social harmony of Muslim lands inspired the renowned twentieth-century historian Arnold J. Toynbee to write:

The extinction of race consciousness as between Muslims is one of the outstanding moral achievements of Islam, and in the contemporary world there is, as it happens, a crying need for the propagation of this Islamic virtue; for, although the record of history would seem on the whole to show that race consciousness has been the exception and not the rule in the constant interbreeding of the human species, it is a fatality of the present situation that this consciousness is felt—and felt strongly—by the very peoples which, in the competition of the last four centuries between several Western powers, have won—at least for the moment—the lion’s share of the inheritance of the Earth.

As things are now, the exponents of racial intolerance are in the ascendant, and, if their attitude towards “the race question” prevails, it may eventually provoke a general catastrophe. Yet the forces of racial toleration, which at present seem to be fighting a losing battle in a spiritual struggle of immense importance to mankind, might still regain the upper hand if any strong influence militating against race consciousness that has hitherto been held in reserve were now to be thrown into the scales. It is conceivable that the spirit of Islam might be the timely reinforcement which would decide this issue in favor of tolerance and peace.¹⁵

Toynbee’s assessment that “the spirit of Islam” could promote “tolerance and peace” in matters of race can be extended to matters of religion as well. The confessional nature of the premodern world made the attainment of peaceful relations in this realm particularly challenging, but here too Islam fostered models of success. Premodern Muslims generally permitted every human being, regardless of their faith, to participate in unrestricted worship. During the Ottoman epoch, this freedom evolved into a sophisticated system of minority religious rights known as the millet system. The influential historian Bernard Lewis recognized the religious freedom afforded to all under Ottoman rule:

Surely, the Ottomans did not offer equal rights to their subjects—a meaningless anachronism in the context of that time and place. They did however offer a degree of tolerance without precedence or parallel in Christian Europe. Each community—the Ottoman term was Millet—was allowed the free practice of its religion. More remarkably, they had their own communal organizations, subject to the authority of their own religious chiefs, controlling their own education and social life, and enforcing their own laws, to the extent that they did not conflict with the basic laws of the Empire.¹⁶

As Lewis states, it is meaningless to measure the ways premodern Muslim societies protected ethnic and religious minorities, using a modern yardstick based on how those protections unfold, at least in theory, in contemporary pluralistic states. It is more appropriate to compare outcomes, especially the historical reality that those Muslim societies, as a rule, prevented the kinds of persistent ghettoization, violence, and insecurity that ethnic and religious minorities still experience in many modern states. 

Sanctified Beings and the Rights They Deserve

From the advent of Western human rights discourse in Muslim societies, scholars and thinkers have endeavored to craft a modern human rights declaration rooted in the Islamic tradition. That effort culminated in 1990 with the Cairo Declaration of Human Rights in Islam (CDHRI), formulated through a collaborative effort between member states of the Organization of Islamic Cooperation (OIC). But even though many Muslims view the CDHRI as an Islamic corrective to the UDHR, it still reflects the structure and content of its Western predecessor, with the notable exception of making the shariah its foundation and the basis for its interpretation.  

Despite the “Islamic” label of the CDHRI—a descriptor many Muslims may also apply to the overwhelming majority of articles in the UDHR—the materialistic nature of these seminal human rights declarations limits their ability to address human beings as spiritual creatures and to capture the complex array of rights Islam affords to humans as integrated spiritual and material beings.¹⁷ What Islam can contribute in this regard cannot be overstated: it provides a more robust and formidable foundation for a universal approach to human rights by including in the definition of human the sanctified spiritual (and material) being that applies to all of humanity. 

In this sense, both the UDHR and the CDHRI represent thoroughly modern declarations that accept the Darwinian divorce of the spiritual and the intellectual essence of humans. Contemporary legal theorist Shaykh Abdullah Bin Bayyah says concerning this divorce:

As for Darwinism, which today has become a reference point for most intellectual circles, a human being does not transcend the designation of a primate from the animal kingdom, of the hominoid family, distinguished by its brain, crescent shaped nails, and full set of teeth. In doing so, Darwinism has nullified its own rationality, which includes human rationality with all its attributes, extraordinary perceptions, marvelous intellectual faculties, and unique gifts, reducing man to nothing more than an offspring of a monkey that once walked on all fours only to evolve into a biped. In this way, they were satisfied with the form of man forgetting the essence. They put forth a scientifically unsound explanation that those who claim knowledge fell over one another to support.¹⁸

As Shaykh Bin Bayyah suggests, the Islamic tradition does not regard humanity as a mere biological advancement of lower life forms. Were this the case, there would be little fundamental distinction between human and animal rights, other than those arising from the advancement and complexity of the human brain. Rather, Islam categorizes human life as a biological reality that has been sanctified by a special quality, the spirit (rūĥ), instilled into the human being. We read in the Qur’an: “He then fashioned [the human being] and breathed into him of His spirit” (32:9).¹⁹

Interestingly, all humans by virtue of their being—regardless of which nation, tribe, or religious group they belong to—share this spiritual quality. A well-known prophetic tradition illustrates this unifying spiritual bond: a funeral procession was passing by, and the Prophet ﷺ rose in respect, prompting one of his companions to remark that the deceased was a Jew, and the Prophet ﷺ responded, “Is he not a human soul?”²⁰ God refers to this shared spiritual quality when He says: “We have truly ennobled the human being” (17:70). 

The manifold ennoblement of humans in creation highlights the ascendancy of their spiritual and intellectual faculties²¹ and forbids their belittlement or debasement, a prohibition that extends far beyond the mere preservation of worldly life. Their ennobled status guarantees, for example, rights before birth, by forbidding abortion, except in certain well-defined instances; by mandating the proper washing, shrouding, and burial of a stillborn baby over the age of four months;²² and by urging, as an affirmation of their personhood in utero, the naming of stillborn babies.²³ After their death, humans possess the right for their bodies to be properly washed, shrouded, and buried. In addition, the intentional mutilation of a cadaver, even in times of war, is forbidden, as is insulting or verbally abusing the dead, whether Muslim or not. These ordainments and practices remind us that all aspects of human life are sanctified, a necessary basis for extending formally legalized rights to their theoretical possessors.

Meanwhile, neither the UDHR nor the CDHRI defines the terms human and rights. The absence of the definitions leads to ambiguity, which in turn creates significant controversy around emotionally and politically charged issues such as abortion. The topic of abortion, or the fetus, receives no mention in the UDHR or the CDHRI. All the arguments put forth in favor of including abortion as a universal human right assume that a fetus cannot be defined as a human at any stage of development, leaving it bereft of rights.

A faithful Muslim human rights declaration must define a human and when its life begins with great clarity and precision so it can afford humans the right to life, both physical and spiritual, at every stage of their existence on earth.

A truly Islamic corrective to the UDHR would also root itself in the intellectual heritage of Islam, one that acknowledges the rights that humans possess in their relations with each other, the rights that societies possess over individuals and those of individuals over society, and the rights of God over humans and the rights God grants humans over Him. Further, the definition of a human being would include both the spiritual and material natures of the human. The Islamic tradition, in other words, furnishes a broad base for crafting a universal declaration of human rights.

Translating the ideas, principles, and underlying ethos of that base into a viable legal structure reflecting a truly Islamic human rights declaration requires a methodology rooted in the maqāśid al-sharī¢ah (the overarching objectives of the shariah). The maqāśid are more than a system of legal philosophy and ethics. In some cases, they identify the inapplicability of a particular ruling in certain contexts. More importantly, for our purposes, they provide a framework for establishing Islamic rulings for novel contingencies, such as the need for an Islamically informed conception of human rights that arises from the modern state and its imposition on the global Muslim community. Such a corrective would augment and enrich the UDHR and the CDHRI to make them more universal and acceptable to religious communities around the world.

During the formative period of Muslim law, legal scholars largely ignored the maqāśid; later, some scholars began to theorize the approach, a practice that continues into the modern era.²⁴ Collectively, the premodern scholars identified five definitive objectives (đarūriyyāt), or essentials: the preservation of life, the preservation of intellect, the preservation of the family, the preservation of religion, and the preservation of wealth or private property. The brilliant Maliki legal theorist Shihāb al-Dīn al-Qarāfī added a sixth: the preservation of honor or human dignity.²⁵ These six essentials of the divine law readily constitute a foundation for a viable, principled human rights scheme. They also facilitate expansion into areas neglected by contemporary Western human rights declarations, which would require the ad hoc introduction of novel categories of rights to include those areas.

How Rights Flow from the Essentials

The preservation of life as a divinely sanctioned human right illustrates how building on the essentials can facilitate a principled expansion of human rights protections. This divine objective demands the prohibition of murder; the prohibition of weapons of mass destruction; and a ban on the current acceptance of “collateral damage,” whereby innocent civilians are killed in the pursuit of targeting enemies. It also demands environmental protection and the maintenance of biodiversity,²⁶ including diverse and variegated seed stocks of food crops necessary for perpetuating and expanding the production of fruits and vegetables; the right to clean water, air, and soil; and the preservation of wildlife. Hence, in a maqāśid scheme, with the objective of preserving the life of future generations, environmental protections become human rights, with clear policy implications for both international and domestic law. 

Because losing these protections does not immediately threaten human life, they constitute a lower level of rights in relation to the essentials. A maqāśid-based hierarchy would categorize them as pressing needs (ĥājāt). While the level of any right flowing from an essential might be debatable, in the case of environmental protections, considering the future implications of the loss of biodiversity, we might argue that the essential of preserving life logically subsumes biodiversity, even as a pressing need. Hence, expanding a Muslim human rights declaration to include the preservation of biodiversity would not be an ad hoc or a politically motivated move; it would flow naturally from the foundational essential of preserving human life.

While a maqāśid-based supplement to the UDHR should be readily attractive to Muslims, one might question its legitimacy with other groups, such as staunch secularists who may be more concerned about its theological origins than its content. It would be a misplaced concern, however; as Imam al-Ghazālī states:

It is impossible for any way of life or religious dispensation through which the greater good of humanity is desired to allow the prohibition or eradication of these five Essentials [preserving religion, life, intellect, family, private wealth, and human dignity—a sixth Essential added after Imam al-Ghazālī’s time].²⁷

Imam al-Ghazālī’s insight remains true today because most of the global opposition to the UDHR originates from religious communities, both Muslims and others, thus demonstrating a pressing need for a scheme that is rooted in universally recognized religious principles but whose categories are broad enough to include many concerns addressed by existing materialist human rights declarations. Contemporary scholar of maqāśid Jasser Auda predicts that the need for a religiously sound corrective will only grow with the increasing polarization between “traditionalists” and “progressives”:

However, some members of the United Nations High Commission for Human Rights (UNHCHR) expressed concerns over the Islamic Declaration of human rights [sic] because they think that it “gravely threatens the intercultural consensus on which the international human rights instruments were based.” Other members believe that the declaration “adds new positive dimension to human rights, since, unlike international instruments, it attributes them to a divine source thereby adding a new moral motivation for complying with them.”²⁸

I end where I began, with a brief discussion of nationalism. As mentioned, the modern state involves a merger of a state and a nation. In terms of a nation, Article 15 of the UDHR declares that everyone has a right to a nationality, and no one shall be denied the right to change their nationality. This article illustrates how closely the UDHR is tied to the rise of the modern European state. Were it not for the emergence of the state within the European political context, we would not be speaking of this right at all, let alone its “universality.” In other words, the state is not a transcendent, timeless reality; therefore, the right to membership within a state or nationality cannot be described as a fixed, universal right. It is amenable to change or eradication with the changing nature or eventual demise of the state.

In contrast, the six essentials lying at the heart of the maqāśid are transcendent and timeless. Indeed, they are frequently referred to as the six universals. Two hundred years ago, talk of nationality as a universal human right was meaningless, and one hundred years from now, that may again be the case. This is not to deny the benefits derived from the imposition of the state on the world’s peoples and from the associated rise of human rights as an aspect of international law. But if we examine the harm associated with nationalism, including two world wars that culminated with the atomic bombing of Japan, along with the inconsistent embrace of national aspirations by the “global powers” (now illustrated in stark relief by the contrast in the level of support for the Ukrainian and Palestinian national struggles), we can see the defects inherent in a regime rooted in two amoral institutions: the nation and the state. An alternate system rooted in the morality of world religions may prove to be more than just a supplement to the UDHR.