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Islam and Human Rights: Tradition and Politics

By Ann Elizabeth Mayer | Go to book overview

CHAPTER 5
Discrimination Against Women and Non-Muslims

Equality in the Islamic Legal Tradition

Accommodating the principle of equality in an Islamic human rights scheme involves dealing with two aspects in the Islamic tradition, one egalitarian and the other mandating sexual and religious discrimination, as well as the mixed reactions of contemporary Muslims to these two aspects. The degree of difficulty of reconciling the two depends on which aspect is taken to be more truly representative of Islamic values.

There is much in the sources of Islamic law that bespeaks a fundamentally egalitarian philosophy. For example, it is an important tenet of Islam that the best person is the person who is most pious. The accounts of the earliest rulers of the community, including stories of the life of the Prophet, are full of incidents indicating the rulers' humility, their egalitarian spirit, and their humane concern for the rights and welfare of all of their subjects. However, the Islamic sources do distinguish in a number of areas between the rights of Muslims and non-Muslims, men and women, and free persons and slaves. The jurists of the premodern period tended to deemphasize the egalitarian features of Islam and to interpret shari'a requirements in ways that reinforced the hierarchical features of the Islamic social order, in which the free male Muslim possessed the most rights and the female nonMuslim slave, the fewest. 1

In modern times, Muslims have generally agreed that slavery is a retrograde institution that is now unacceptable, and the large body of premodern shari'a law on slavery has been effectively discarded. At present Muslims are deeply divided on the question of whether legal distinctions based on sex and religion have become similarly superseded, so that the premodern shari'a rules in this area should be discarded as well. For this reason, Muslims today disagree about whether a legal

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