Public Reason as a Strategy for Principled Reconciliation: The Case of Islamic Law and International Human Rights Law
Fadel, Mohammad H., Chicago Journal of International Law
If the salient question of the twentieth century was race, first as manifested in European imperialism and then in international decolonization and domestic civil rights movements, the corresponding question of the twenty-first century may very well be religion, particularly Islam. Even in the absence of September 11th, several long-term global trends would have made it almost inevitable that previously specialized debates on the compatibility of Islam and human rights law would become an important concern to policymakers throughout the world. Among these are (i) the revival in religious expression and assertions of religious identity among all major religions, including Islam; (ii) the presence of large numbers of Muslims in established democracies and major developing countries aspiring to enter the club of advanced democracies (for example China, India, and Russia); and (iii) the success of religiously-based political movements in Muslim-majority states demanding greater Islamization of the state and society and the corresponding retreat of secular politics.
Many, if not all, Islamic political movements have an ambiguous position toward human rights law; they tend to endorse the concept as an abstract principle while objecting to certain substantive provisions of human rights law. This ambivalence is reflected in the policies of Muslim-majority states. Many of these states ratify international human rights conventions but do so subject to a reservation that, in the event of a conflict between provisions of the treaty and Islamic law, the provisions of Islamic law control.1 Indeed, relevant international instruments themselves have created a tension between human rights law-which is focused primarily on the individual - and cultural rights law which recognizes the right of a state to act to protect its culture or way of life. Moreover, the reluctance of many Muslim-majority jurisdictions to accede without qualification to human rights instruments because of Islamic law creates concern as to the willingness and ability of Muslim minorities to conform to the domestic human rights standards of established democracies. This in turn contributes to fostering domestic political movements in various democracies that promote fear of Muslim immigrants as a subversive cultural and political force.
Given these political realities, human rights advocates have to tread a careful line in their approach to issues that potentially conflict with Islamic law. On one hand, too categorical of an approach risks violating legitimate rights of religious expression and contributes to an overall political climate in which the political rights of Muslim individuals may be infringed upon equally by hostile non-Muslim majorities or authoritarian regimes in the Muslim world resisting calls for increased democratization on the argument that to do so would only empower illiberal elements of their societies. Yet on the other hand, too deferential an approach risks tolerating systematic violations of human rights norms in Muslim majority jurisdictions or in multicultural societies with Muslim minorities.2
II. A RAWLSIAN APPROACH TO INTERNATIONAL HUMAN RIGHTS LAW AND ISLAMIC LAW
This Article seeks to build on overlapping concerns of human rights law and Islamic law in the hope of mapping out a principled approach to resolving conflicts between contemporary human rights standards and accepted doctrines of Islamic law.3 This strategy is based on concepts developed by John Rawls in his seminal work Political Liberalism? and argues that much of the current conflict between the substantive norms of human rights law and Islamic law could be resolved if human rights justifications were grounded in an overlapping political consensus rather than in foundational metaphysical doctrines that are necessarily controversial. In other words, I argue that it would be possible to resolve conflicts between substantive human rights provisions and Islamic law if human rights advocates and Islamic law advocates both agreed to observe the limitations of "public reason. …