ENGLISH ATIGHETCHI ABSTRACT
DARIUSCH ATIGHETCHI
Professor of Islamic Bioethics,
Faculty of Theology
Lugano, Switzerland
The influence of modern Western-international normative models can be deemed a form of legal-intellectual colonization. The Western influence appears in many different ways and in almost all the legal frameworksof almost all Muslim states. Most of these have implemented modern Western public law; since the middle of the 19th century juridical acculturation has been talked of in reference to the predominance of models of Roman law(to a lesser extent of Common Law as well) in Muslim states. All the states have become legislators, including Saudi Arabia which nevertheless asserts –in the respect of the Shari’a-based approach- that its legislative activity is only an application of the siyāsa shar’iyya,i.e. a mere administrative activity aimed at applying the Shari’a,rather than an actual autonomous activity producing legal norms[1]. TheShari’ahad never been codified; codification started in the last two centuries under Western influence and the imitation of codified juridical models from the West, now dominant in Muslim states and in the rest of the world.Animitation of the civil[2], criminal, commercial and administrative “Western” codes can be seen almost everywhere. For example, the organization of collective courts of law (instead of the traditional qadi, the monocratic judgewhose decisions were not put into writing); the different levels of jurisdiction;the introduction of a Supreme Court; the introduction of a constitution (a classic institution of Roman law): it is not surprising that Saudi Arabia was the last Islamic country to introduce a constitution into its legal systemafter a fierce internal debate by Muslim jurists.
The greatest resistance to juridical innovations (bida’) has always come from family law and the law on inheritance as these are fields inspired directly by the Koran and the Sunna and, as a result, are more difficult to “modernise” or modify[3]. At present, any new application of Shari’a based rules (e.g. in criminal law) takes place through laws of the state; in practice, the very Islamization or re-Islamization of a state takes place mainly using juridical instruments from other traditions.
These transformations have been so considerable that Muslim law, due to external normative and cultural influences, has been transformed from an extra-territorial, personal and confessional law into a state and territorial law[4].
Thetripartite division of Islam into a juridical, religious and political system reflects a Western analytical-juridical pattern based, in its turn, on Roman categories that distinguish dogma, morals, rites, public and private law. All these patterns are ill-adapted to reflecting the uniqueness of Islam as showedin the classic definition “Din wa Dawla”i.e.“Religion and State”.
As a partial counterbalance and in response to the external influences, some Constitutions list the fundamental human rights but, at the same time, state that some specific rights are acceptable only if compatible with the Shari’a, a mechanism that allows reasserting the primacy of the latter over every other juridical influence (e.g. art. 26 of the Saudi Arabian Constitution The state protects human rights in accordance with the Islamic Shari'ah>).
In addition, in parallel with the International Declarations and Documents on human rights, women’s rights, children’s rights etc..., some important Islamic bodies have produced a series of documents on the same subjects aimed at reasserting the Islamic identity and specificity. Of particular importance is the Declaration of Human Rights in Islam approved in Cairo by the Organisation of the Islamic Conference (OIC) in 1990[5] and the Universal Islamic Declaration of Human Rights promulgated in Paris at a UNESCO meeting in 1981 by the Islamic Council of Europe. These are Islamic “universal declarations” alternative to the so called neutral or secular UNHR declaration.
Perhaps a new approach to “cultural differences” is urgently needed in the light of two influences that in the contemporary world act in synchrony and with incredible efficacy:
1)A universalistic aggression which acts on the level of principles, rules, laws and values.
2)A globalizing-standardizing trend that acts on concrete models and styles of life, habits, customs, and fashions, going as far as involving technological instruments and medical techniques.
The fact that the current drive to standardize concepts, cultures, ways of life etc. has taken on an unprecedented dimension in the whole of the history of human civilization can immediately be observed.
It is not surprising that this drive coincides chronologically with the enormous pressure-drive represented by the cultural trend of universalization of human rights.
I would like to recall that a computer, a plane, acar, a shirt, a syringe, a Computer Assisted Tomography (CAT) etc. are not neutral instruments. Viceversa, they are “cultural articles” i.e. a crystallization of implicit values, ideas, imaginations, feelings, present in the creators of these means and in the culture/s of origin[6]. Importing such “neutral” articles also inevitably means importing (to a different extent) the “conceptual background” from which they come. It is naïve to believe that the soul of a tradition remains intact whilst everything changes in depth. The capacity of penetration of modernity -even limited to the technical and external sphere-is totalizing and strongly invasive, democratizing and levelling regarding the “modus vivendi”.
Few understand how contemporary medicine and the technological means that accompany it, essentially the same everywhere (the difference is determined by financial resources)represent fantastic instruments of technological, but also conceptual standardization, to a model/s from a group of culturally specialized areas.The very conceptions on the human body, numerous in past centuries, are increasingly tending to be standardized to the progressive monopoly of some cultural conceptions to the detriment of others that have disappeared or that are disappearing.
Bioethicsenjoys a privileged position for observing the modifications brought about on the visions and rules of the past relating to the control of the human body. The West and other technologically advanced states live in a context of “permanent scientific revolution”[7]drawing with them, thanks to globalization, all the other countries, obviously to a different extent depending on local situations. Technological or modern products are those that form the first impact with modernity.
These standardizing influences risk overwhelming, very quickly, the numerous conceptions of women,infancy, old age and traditional behaviours present in the different cultures and which have been formed, at times, thanks to a very long social, cultural and juridical process over thousands of years. Often we come across conceptions, modus vivendi et operandi that date back as far as “cultures in the ethnological state” therefore well before the locally prevalent cultures and religions. These are modus-vivendi and conceptions that survive with great difficulty in contact with contemporary globalization more than in the past centuries. This phenomenon of “occultation and disappearance” of diversities should be stemmed by the international documents (but is it really possible?) which, in actual fact, rather than sanction a decent survival, risk sanctioning only “a silent and invisible disappearance”. The reason can be explained by an analogy: for reasons that understandably are complex, over thousands of years, the majority of cultures produced by human groups have disappeared; only a minority have left any traces in the history books. There is a cultural evolution which makes some cultures (in turn divided internally) prevail over others apparently destined to be absorbed or disappear.In a theological vision of history, all this is part of a divine plan.
Today, following the joint assault of universalism and globalization –both generally promoted by the so called “advanced” countries-, diversities risk being reduced to the survival of “tame and inoffensive” differences,belonging to the categories of socio-cultural-folklore factors.It is not surprising that the universal principles of bioethics are protected from criticism by stating that the “diversities and cultural, religious and social (local) values should be respected and protected” but, paradoxically, this is translated into a condition of protection or implicit recognition of a state of inferiority of the cultures “to be protected” by those “protectors” (the “universalists”) which become paladins of the former (perhaps considering themselves morally superior).
In this framework what sense is there in presenting various universal religions which, at the same time, claim their exclusive specificity?In the Islamic perspective, Islam is not a monotheism “equal” to the others and worthy of similar respect; in it the pure monotheism updates and definitively supersedes the previous Divine Revelations as it is the only one based on the direct and literal word of God (Koran) and on the last law (i.e. the most perfect) given by God to man (theShari’a).
If the specificities have a meaning, these provoke multiple models of universality which cannot be reduced to others. Saying that there is a “common matrix” shared by the universal religions and lay/secular universalism (from which all the great documents of the last century on human rights originate) is legitimate but the opportunity for considerable misunderstandings.It is more useful to say that there are different “universalities” with (some) insuperable differences. Respecting this approach, it is fundamental to recover the strong sense of religious and juridical differences.
What is to be done when the universal principles of a Western-lay approach and a religious law are not “in harmony”?Muslim law is a religious law of “direct” divine origin, unlike the other monotheistic religious laws judged – by Islam – of divine “inspiration”. This origin guarantees the “universality” of the Islamic juridical provisions which are not rooted in a “natural law” founded on human reason (which is “naturally” fallacious) but rooted in the eternal, direct and literal word of the Creator[8] (prevailing opinion in Sunni Islam). Between the divine and the human law, the former must prevail.
The Declaration of Human Rights in Islam (Cairo, O.I.C., 1990[9]) and the Declaration proclaimed in 1981 at UNESCO by the Islamic Council of Europe constantly refer to the Shari’a as the exclusive source of human rights (see the Preambles of both the Declarations) and as the sole instrument to interpret these Documents (art. 24, DHRI, OIC, 1990).
The religious laws cannot compete on the terrain of the universality and the protection of the freedom and equality with the secular declarations on fundamental human rights of the last century[10]. It is no wonder that art. 2 of the 1948 Declaration (UDHR, UN) states that these fundamental rights must be respected independently of every characteristic of individuals, including religion. These rights are “a priori”and indipendent with respect to religious faiths and religious rights. The international conventions intend, inter alia, to protect people from violations of religious freedom perpetrated both by States and by the religions. If a religious group were to prevent the conversion of its members to another faith, the group violates the respect of human rights. In all these cases the UDHR intends to assert the primacy of the individual conscience and natural freedom over the rights of the religious community. This approach is difficult to accept in Islamic Law.
At present the world seems to be distinguished by an increasingly accentuated orientation towards de-territorialization and with the concept of nations superseded. If law wants to take on a global dimension, it has to be rid of the constraint of being the law of a single state or the expression of a particular juridical tradition. In the meantime, something unexpected is happening:the more there is a tendency towards globalization, the more the nostalgia for a local dimension or reference emerges with its specific language, tradition and religiosity. The more the territory loses meaning, the greater the nostalgia for a border that distinguishes us from something and someone else and from the rest of humanity emerges.
This is where religious identities come back into play; they are capable of providing <roots, traditions and belonging>, much more than the now small nations and the universalistic ideologies of the past, defeated by history. In addition, they could appear as opponents of the present globalization proposing an alternative model. The dimension of the territory is increasingly less perceived to the detriment of the dimension of belonging, which is increasingly sought. The laws of the major religions guarantee a strong sense of belonging for daily life. Above all though, these religions with their juridical systems supersede, without denying it, their historical territorial dimension and can go beyond their own borders without losing the attraction that they have from a historically and geographically located identity as inevitably occurs for States.
At present, the place of belonging and identity is no longer defined in geographical terms[11]. European Islam is the best example of a sense of belonging (the umma or identity) based on a common faith or religious practice which in the name of a theo-law is an alternative to the territorial law of the European States and the spatial law of the market.
The great faiths are becoming “trans-national nations”[12], i.e. capable of fuelling the faith in belonging to a common destiny, capable of providing a meaning to the life of each believer <much more than the cold universality of human rights which risk becoming the real losers in this clash.
In the wake of these explanations, religious laws could represent the last obstacles or alternatives to the triumph of the universalistic influence-aggression (which involves principles, rules, laws and values mainly grounded on European cultures of the last centuries) andof the globalizing-standardizing trends (which involve concrete models and styles of life): on this distinction see above pag. 3.
Aninteresting example: Islamic Penal Law vs. UDHR.
The fact that the Shari’a inflicts the death penalty, the lex talionis and flagellation for certain offences introduces ... to the contrast between this penal system with respect to the Universal Declaration of Human Rights and the countless international documents against the death penalty, torture and all types of violence (e.g. mutilation and flagellation). Islam is a salvific religion and the respect of the Shari’a represents, according to the Tradition, an indispensable premise for salvation after death (save the will of God) but also to produce a fair and orderly society on earth. Divine compassion ... do not contradict the possible recourse to harsh penalties considered at times indispensable for the purpose of preventing, dissuading and punishing crime, protecting the community as a whole at the price of the sacrifice of individuals or their physical integrity. The equilibrium that is required between the salvific and the punitive inclination can be exemplified in Koran 5,32 when it says:
“if anyone slew a person –unless it be for murder or for spreading mischief in the land- it would be as if he slew the whole people: and if anyone saved a life, it would be as if he saved the life of the whole people”. This arrangement, aimed at safeguarding life and the integrity of the individual as long as it does not violate the precepts of the divine Law, is present in the documents on the protection of man in Islam of a traditionalist orientation. For example, article 2 of the Declaration of Human Rights in Islam approved in Cairo by the Organisation of the Islamic Conference in 1990 declared :
“A) Life is a God-given gift and the right to life is guaranteed to every human being. It is the duty of individuals, societies and states to protect this right from any violation, and it is prohibited to take away life except for a Shari’a-prescribed reason. . . .
C) The preservation of human life throughout the term of time willed by God is a duty prescribed by Shari’a.
D) Safety from bodily harm is a guaranteed right. It is the duty of the state to safeguard it, and it is prohibited to breach it without a Shari’a-prescribed reason”.
Similarly, the Declaration proclaimed in 1981 at UNESCO by the Islamic Council of Europe stated under article 1 (in the Arabic version) after having quoted Koran 5,32: “This sacred character of human life may be disregarded only in the name of the authority of Muslim Law and according to the measures it lays down”.
The documents which do not come into the conservative-traditionalist context respond to different viewpoints although without refusing the fundamentals of the faith. This is the case of the “Arab Charter of Human Rights” drawn up in 1994 by the “Committee for Human Rights of the League of Arab States” , a document of liberal ... inspiration as shown by article 19: “The people are the source of all power” rather than God as in the texts of an Islamic tendency. In addition, the text recognises the validity of the principles of the “Universal Declaration of Human Rights” of the Charter of the United Nations but simultaneously the principles of the “Declaration of Cairo” of 1990 are also reasserted[13].
Whilst in the West, social values may change under the pressure of autonomy and freedom of the individual, a modification that must be taken into account by the legislators, Muslim jurists deem that the law must protect the ethical values of a religious society. It is possible to refer to art. 24 of the Declaration of human rights in Islam, approved in Cairo by the Organisation of the Islamic Conference in 1990: “All rights and freedoms guaranteed by this Declaration are governed by the rules of Islamic Law”. Furthermore, art. 17 responds to the concept of “privacy" dominant in the West: “everyone has the right to live in an environment that is free from moral corruption and disease, which enables him or her to develop his or her personality morally, the society and the state being bound by law to guarantee that right”. In other words, the reference to human rights does not allow models of behaviour that threaten the integrity and the principles of a Muslim society to prevail ...[14].