Sharia and Human Rights: Hemeneutics and the Risks of State‐centrism
| Author | Domenico Melidoro |
| Date | 01 November 2013 |
| DOI | http://doi.org/10.1111/1758-5899.12087 |
| Published date | 01 November 2013 |
Sharia and Human Rights: Hemeneutics and
the Risks of State-centrism
Domenico Melidoro
LUISS ‘Guido Carli’, Libera Universit
a Internazionale degli Studi Sociali, Rome
A response to ‘Human Rights, Universality and
Sovereignty: the Irrelevance and Relevance of
Sharia’
Abdullahi An-Na’im*
Traditionally, human rights advocates consider human
beings independently from cultural affiliations. However,
if people’s culture is brought into the picture, human
rights’justification and acceptance can face risks. One
could say that, notwithstanding their universal aspira-
tions, human rights are parochial in so far as they do not
pay attention to human particularities and cultural loyal-
ties. Thus, showing that human rights discourse is some-
how consistent with what people deem relevant (i.e.
their own culture and/or religion) is crucial to fostering
human rights’overall justification and acceptance. This is
An-Na’im’s aim in ‘Human Rights, Universality and Sover-
eignty: the Irrelevance and Relevance of Sharia’.
An-Na
’
im presents his views on the irrelevance and rele-
vance of Sharia in those cases in which human rights are at
stake. He argues that the ways in which Muslims under-
stand and are committed to Sharia is irrelevant when the
state has to respect and protect human rights. Imposing
Sharia would mean treating it as the expression of the
political will of the state rather than as a religious law. How-
ever, An-Na
’
im contends, Sharia is also relevant in the sense
that the commitment to Muslim religious doctrine might
confer legitimacy and practical efficacy to human rights in
Islamic societies. Beyond this view is the idea that human
rights cannot be legitimate and efficacious if people see
them as imposed from outside, or that their justification
comes from principles and doctrines that are extraneous to
the Islamic tradition. Thus, the relevance of Sharia for the
human rights discourse implies that the acceptance and
implementation of human rights norms has to come from
within. Differently stated, it should be the outcome of
‘internal transformations within Islamic societies’.
An-Na’im’s views on human rights and on the possibili-
ties of working out an account of Sharia that is consis-
tent with the modern culture of human rights are well
known, at the least since the publication of his Toward
an Islamic Reformation: Civil Liberties, Human Rights and
International Law (1990). Thus, far from giving a complete
critical assessment of his positions, in this short comment
I would like to address two issues that I find particularly
troublesome.
The first issue concerns what the author defines as the
‘paradox of self-regulation by the state’. It results from
the tensions between the alleged universality of human
rights and the fact that, as An-Na’im writes, ‘the agency
of the state is necessary for the practical application of
human rights norms’. Although human rights disregard
states’borders, and although the respect for human
rights is considered an element for evaluating the level
of democratic legitimacy of a state, at the end of the
day, ‘according to current international law doctrine, only
states can set human rights norms and assume responsi-
bility for the protection of the rights of persons subject
to their jurisdictions’.
The problem of An-Na’im’s view is that it might have
state-centric upshots. This is because of the assumption
that states have the final responsibility to protect the
rights of their citizens. However, if this holds, human
rights seem to become only (or mainly) a domestic mat-
ter. In other words, the reduction of the respect and
implementation of human rights to a national issue does
not account adequately for the fact that in many cases
states themselves have perpetrated heinous violations of
human rights against their own citizens. When this hap-
pens, the executioner should not be allowed to play the
part of the defender of the oppressed as well. Indeed,
both philosophical theory and international law have rec-
ognized that the implementation and protection of
human rights might overcome the boundaries of state
sovereignty.
The second issue concerns An-Na’im’s hermeneutical
approach. The way in which Sharia is perceived in a Mus-
lim society is relevant in order to confer legitimacy and
*An-Na’im, A. (2013) ‘Human Rights, Universality and Sovereignty: the
Irrelevance and Relevance of Sharia’, Global Policy, Vol. 4, No. 4, pp. 411–412.
DOI: 10.1111/1758-5899.12088.
Global Policy (2013) 4:4 doi: 10.1111/1758-5899.12087 ©2013 University of Durham and John Wiley & Sons, Ltd.
Global Policy Volume 4 . Issue 4 . November 2013 411
Special Section Article
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