Public Reason as a Strategy for Principled Reconciliation: The Case of Islamic Law and International Human Rights Law

Abstract

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. 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. [CONT]

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