Secularity and Secularization
The difference between political and divine power already existed in the Greek and Roman society: the sentence “Give to Caesar what is Caesar and to God what is God’s” refers especially to the fact that there are two different spheres of power in the society. An example of the perfect Western secular country is France. From the Declaration of the Rights of Man and of the Citizen in 1889, France was always a country which wanted a clear distance between political and divine power: the last cases about the Muslim headscarf in 2004 and the Burkini, show exactly what the French think about religion and its symbols. They strongly believe in the concept of multiculturalism, where there’s no difference between a Moroccan-French or a Senegalese-French, everyone is “just French”. Everyone is melted into French people.
Islam and Secularization
Historically, Islam countries were always against secularity. They always had as the main source of Law the Shari’a, which literally means way, commonly used to indicate the legal and religious normative order taken from the Quran and the Sunna, the main sources of Islamic law. Anyway, from the XIX century, with the colonialism, there was a radical changing. Parliaments produced laws, not any more theologians or religious representatives. In response to this new attitude, contemporary Muslim leaders supported or criticize secularity. There were three main thinking currents on the secularization process.
The first one is hostile to the secularization and its related themes, guided by Muslim traditionalists like Ruhollah Musavi Khomeini, former Head of State in Iran from 1979 to 1989 and one of the most influent Iranian religious leaders. They think that Shari’a is the only source of law, unchanging and untouchable. In order to respect that, they used the divine law in every aspect of the law creating problems to the affirmation of basic human rights. Many Islamic countries, such as Iran or Saudi Arabia, are still influenced by Shari’a in many parts of positive law, like penal law, for the use of death penalty for apostasy and adultery; constitutional law, for the discrimination of unbelievers and family law, for the polygamy or the different rights between men and women.
The second one thinks that Shari’a has to be adapted and make it compatible with the modern age and the laws of modern society. In order to do that, there have been developed two different approaches: on one hand, a critical-historical approach to the Divine source of Islamic law, i.e. the Quran and Sunna; on the other hand, the one that considers the general objectives of Shari’a, illustrated in the religious sources. These two different ways find their own ancestor in the school of Mutazilite and Malikite, respectively theologians and jurists lived in the VII and the IX century. While the Mutazilites considered the Quran as the God’s word on issues related to the age of Revelation, the Malikites preferred the application and identification of the general aims and interests found in the Quran and Sunna. These two different approaches are not trying to deny the role of divine source. On the contrary, they are trying to re-invent the role of reason in positive law.
Finally, there are the so-called “Enlighted” Muslims. They do not recognize religion as the main instrument of law, but an issue regarding personal belief and creed. According to them, if Shari’a is fully applied in the State, it would be no more the law of God, rather than the law of humans. The “Enlighted” Muslims strongly believe in the separation of public and divine law and in the independence of the legislator from religion. Naturally, they are tolerant and open to the presence of religion in the society.
Human rights and Islam
Following the history and development of human rights, experts and academics have identified four generations of human rights: the first one regards the individual rights, as the right to life, the right to freedom and the right to security; the second one concerns the community rights, like the right to work and the right to education; the third one refers to the universal principles, as the self-determination of peoples, the peace and sustainable development and the rights of women and children; the last one regards the new rights, that has still to be recognized, as the bioethics principles. However, if we consider the fact that the world has more than 190 countries and a multitude of various creeds and beliefs, the main issue regarding human rights is its demand of universality.
The idea of universalism in human rights born in the United Nations thanks to the influence of Europe and United States, the major Western civilizations. Even if the real ancestor of the UDHR is the Magna Charta Libertatum agreed by King John of England on 15 June 1215, is quite obvious to say that the concept of human rights arose during the Enlightenment movement. The Article 1 of the Declaration of the Rights of Man and the Citizen States of 1789 and the opening of the United States Declaration of Independence of 1776 are the proofs of the influence that the Enlightenment movement had on society and law. Especially in Europe, there is still a difference on civil and political rights, considered as individuals, and the economic and social ones, related to the community. These two different visions arose from two different philosophies of the XVII-XVIII century BC: the enlightenment for the civil and political ones and the Marxism for the economic and social ones. Human rights in Europe must not be considered as a conflict between the individual and the public power, but as a tool which can avoid discrimination.
Western scholars and academics tried many times to prove the universality of human rights. For example, some of them say that human rights have to be given to all men considering just the humanity. Still, the main reason why humanity is not enough for the idea of universalism is that there is not a clear definition of what it is: different ideas and visions of human nature create different group of inalienable rights. Some cultures consider human nature as the freedom to make decisions, others think that humans exist because of God. In order to have a clear definition of humanity, academics have begun to search for features that discern men from other species. They found it in dignity.
Other scholars consider as the main idea of universalism the global consensus. Nevertheless, also consensus is not enough for universalism. Universality means that everyone agrees and follows that idea, including, for example, Muslims. On the contrary, Muslims and their major organizations, like the League of Arab States or the Organization of Islamic Cooperation, do not agree on certain human rights for International consensus, but for God’s will.
The main problem between Western and Islamic model is the different visions of human rights. While Western countries consider the theory of human rights as anthropocentric, according to Islam the basis of human rights is the Shari’a, i.e. a theocentric model.
As resulting from this brief analysis, the main issue regarding Islamic law is not the Shari’a itself, but the interpretation of it. Thus, it is evident that in order to have the exact definition of human rights in Islam there has to be a clear interpretation of the Quran and the Sunna. Unfortunately, Muslims are still far away from it.