Academic journal article Suffolk Transnational Law Review

A Waterspring in the Desert: Advancing Human Rights within Sharia Tribunals

Academic journal article Suffolk Transnational Law Review

A Waterspring in the Desert: Advancing Human Rights within Sharia Tribunals

Article excerpt

I. INTRODUCTION

By now, tragic tales of inhumane punishment and inequity imposed by Sharia tribunals are common lore in the West: a thirteen-year-old rape victim stoned for her "crime," the exclusive right of a husband to immediately divorce his wife with a mere utterance, and the grotesque decapitation of non-Muslims. (1) There is no doubt that such tragedies constitute clear violations of human rights in almost any philosophical schema. (2) But is a complete moratorium on religious arbitration the only way to end these heinous acts and to advance human rights? (3) Might religious courts simultaneously provide a conduit for furthering the international human rights agenda, preserve important cultural norms, and act as agents of reform? (4)

Drawing on Richard Rorty's theory of sentimental education, this Note will argue that religious arbitration in general, and Sharia courts in particular, offer potentially fertile ground for the advancement of human rights. (5) Part II of this Note surveys the jurisprudence and structure of Sharia tribunals. (6) Part III of this Note outlines two major theories of human rights justification. (7) Part IV of this Note will analyze whether contemporary Sharia courts might serve as effective media to advance liberal notions of human rights and will suggest some litigation strategies for doing so. (8) Finally,

Part V of this Note concludes that religious courts are uniquely equipped to both further human rights and simultaneously respect important cultural norms. (9)

II. FACTS

A. The Evolution of Sharia

According to sacred history, Islam began in 610 C.E. when the Prophet Muhammed received his initial revelation from Allah and established the first umma, or Muslim community, united by Islamic values, including the nascent Sharia law. (10) Muhammed's eventual death brought much turmoil regarding the successive leadership and religious trajectory of the umma. (11) While the early community agreed that the Prophet's sacred recitations, the Quran, and his living example should guide the shaping of communal values, there was disagreement about what the Quran and Muhammed's actions actually meant. (12) From the seventh to the tenth century, Islam participated in a process of institutionalization whereby the ever-expanding umma debated, interpreted, and solidified their understanding of the teachings of the Prophet and the Quran. (13) Around the eleventh century, competing groups of ulama, or learned religious scholars engaged in Quranic interpretation, began to "crystallize into legal institutions endowed with the binding authority of Allah's law" and formed the basis for the four major schools of Sharia (14) Post 9/11, Sharia has fallen under close scrutiny for its frequent failure to uphold internationally accepted human rights norms. (15) Indeed, many states, particularly Western liberal ones, question the degree to which their commitment to tolerance and religious freedom obliges them to accommodate Sharia law, if at all. (16)

B. Sharia Jurisprudence

Unlike much of post-Enlightenment, liberal jurisprudence, Sharia legal philosophy, or fiqh, is not reducible to a set of canonized laws governing individual and social action, but emerges from the sacred interplay of divine and human activity.* 17 As a result of this religious element, Sharia jurisprudence is generally thought to draw upon five principles for interpretation: the Quran ("the divine Revelation of Allah recited by Muhammed"), the Sunna ("the Prophet Muhammed's living examples"), qiyas ("reasoning by analogy"), ijma ("the learned consensus of Muslim scholars, or ulama"), and at least until the tenth Century, Ijtihad (independent juristic reasoning). (18) Among these principles, the Quran is the most important. (19) However, because the Quran itself represents a process of revelation where prior verses may have been later abrogated in favor of subsequent revelations, and because the revelations themselves ceased after Muhammed's death, the Islamic community continues to interpret the meaning of the Quran guided by the other four principles. …

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