Human Rights, Universality and Sovereignty: The Irrelevance and Relevance of Sharia
| DOI | http://doi.org/10.1111/1758-5899.12088 |
| Date | 01 November 2013 |
| Author | Abdullahi Ahmed An‐Na'im |
| Published date | 01 November 2013 |
Human Rights, Universality and Sovereignty:
The Irrelevance and Relevance of Sharia
Abdullahi Ahmed An-Na
’
im
Emory University
Abstract
In this article I argue that the paradoxes of universality and self-regulation by the state are inherent to the human
rights paradigm itself in its application to every cultural, religious and ideological context. By the paradox of universal-
ity I refer to the expectation of global agreement on universal human rights norms among peoples of radically differ-
ent cultural (including religious and ideological) traditions around the world. The paradox of self-regulation by the
state is in expecting any state to adopt human rights norms to limit its own powers, and then to effectively enforce
those limitations against the officials of the same state. This article focuses on the internal dimension of this process in
relation to Islamic societies. The case of Sharia is examined here to illustrate how the paradoxes of universality and
self-regulation can be mediated through an internal discourse within Islamic societies. I examine the prospects of Isla-
mic reform in light of the cultural relevance and the legal irrelevance of Sharia norms and the possibility of their inter-
nal transformation from an Islamic point of view.
This article explores ways of mediating the double para-
dox of the universality and state-centric nature of the
human rights paradigm as a strategy for mediating the
tensions between Sharia and some human rights norms.
1
These tensions can be viewed from two perspectives: the
irrelevance of Sharia and the relevance of Sharia.
I call ‘the irrelevance of Sharia’a perspective that
implies that whatever Muslims understand and accept
Sharia to mean is irrelevant to the legal obligation of the
state to respect and protect human rights norms, even if
Muslims constitute the totality of the population of that
state. Any Sharia principle that is claimed to be enforced
by the state ceases to be Sharia by the very act of
enforcing it, because it then becomes the political will of
the state and not the religious law of Islam (An-Na’im,
2008, pp. 9–20). Therefore, there is no religious obliga-
tion to enforce Sharia norms as the law of the state. By
‘the relevance of Sharia’I mean that perceptions of Sha-
ria by Muslims do influence the legitimacy and practical
efficacy of the protection and implementation of human
rights norms in Islamic societies and communities. Sharia
also influences the content of secular state law through
the role of ethical and cultural norms and institutions of
the community. Therefore, it is necessary to engage in
transformative discourse about certain historical concep-
tions of Sharia because of their cultural and political
implications for human rights practice and on the secular
law of the state.
I believe that such transformative discourse can be
effective in changing the attitudes of Muslims about
certain aspects of historical conceptions of Sharia
because any conception of Sharia was always the out-
come of human interpretation rather than an immutable
divine command as such (An-Na’im, 1990). The obligation
of Muslims to observe Sharia is religious, but what the
norms of Sharia mean in practice is the product of
human interpretation and experience.
To briefly explain and support this thesis, which draws
on my more elaborate and documented work,
2
I will
begin with an explanation of the nature and develop-
ment of Sharia to clarify its role in the postcolonial con-
text of present Islamic societies. In the following section I
will discuss the inherent paradox and contingency of the
human rights paradigm in general that can be reconciled
through the sort of religious and cultural mediation I am
proposing in this article. In the last two sections I will dis-
cuss what I mean by the irrelevance and relevance of
Sharia to human rights in Islamic societies.
Sharia and the state in the postcolonial context
The primary scriptural sources of Islamic discourse
among all Muslims are the Quran and Sunna (traditions
of the Prophet). The systematic development of what
came to be known as Sharia began during the 8th and
9th centuries CE, with the gathering and verification of
what came to be accepted as authoritative records of
Sunna, and the development of a juridical methodology
(usul al-fiqh) to regulate the derivation of principles and
rules of Sharia from the Quran and Sunna. The various
Global Policy (2013) 4:4 doi: 10.1111/1758-5899.12088 ©2013 University of Durham and John Wiley & Sons, Ltd.
Global Policy Volume 4 . Issue 4 . November 2013 401
Special Section Article
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