Abdullahi Ahmed An-Na'im and Ebrahim Moosa (South Africa) who dedicated scholarship and activism on Islamic reformation, have acknowledged the difficulties or tensions in the interface of Islam to the existing human rights regime.

One of the problematic areas relate to the internal transformation argument: that Islamic reformation requires a cultural legitimacy among Muslims.

For An-Na'im the dichotomy of the human rights discourse between relativism and universalism is not a useful approach in relation to Islam.

"At one end of this purported spectrum are said countries which claim cultural/religious relativity or contextual specificity to justify rejecting or qualifying certain universal human rights norms, in contrast to those which are supposed to fully accept the universality of all human rights, at the other end," he says.

"Whereas some Islamic and East Asian countries are commonly placed on the relativist side, Western countries are commonly assumed to be universalist."

Such a binary approach is misleading. It assumes either that human rights can be culturally and contextually neutral, or that a conception of human rights emerging within one culture or context can be accepted by other cultures for application in their context.

However, An-Na'im does not propose that Muslims limit themselves to an internal transformation in isolation, as being exclusively Islam or Muslim without an engagement cross-culturally.

An exclusive approach is often premised on an assertion of the exclusive moral superiority of one religion. A cross cultural approach is founded on the moral equality of different religious and cultural traditions.

Islam and rights

Moosa, who is Associate Professor in the Department of Religion of Duke University, makes the point that Islamic rights discourse has an entirely different genesis and pedigree compared to the (secular) human rights discourse.

"Anyone familiar with the inter-cultural debate on human rights would agree that the media debates and dramatic events conceal much more complex issues of history, tradition and .. contested perceptions," he says.

Moosa thinks that the success of a modern Islamic human rights theory depends on the extent to which modern Islamic thought would be open to a revisionist or reconstructionist approach in philosophy and ethical orientation.

He cites Indian philosopher, Muhammad Iqbal who was critical of Muslims who had become incapable of receiving any fresh inspiration from modern thought and experience.

Moosa drives home his point by citing recent-day examples of persecution of reformist politicians and writers in Iran and the violation of women's rights in several Muslim countries. These violations are justified by the Muslim regimes, in terms of particularistic Islamic human rights claims.

A credible discourse within Muslim jurisprudence calls attention to methodological as well as underlying juridical theology and legal philosophy.

Moosa, I think makes a significant point when he says, "It may be convenient to employ an eclectic method in order to validate a particular point of view, but it does not provide a rigorous theoretical framework for a debate such as human rights."

I understand Moosa to mean among others, that the method of selecting views from differing fiqh opinions for example is eclectic and may serve some useful immediate purpose.

If we remember the Amina Lawal case as an instance, there are views which allow a single confession to zina (illicit sexual intercourse). However this was rejected on appeal. The Sharia Appeal Court (Nigeria) in that case preferred a view of three separate confessions, each made at different times.

However, this does not go towards that "credible discourse" in developing a rigorous theoretical framework.

Status and contract

Moosa provides an insight towards developing this theoretical framework. He calls for an examination between the notions of 'status' and 'contract' in Islamic law.

Some scholars presume that it is the 'status' of the individual which determines a body of reciprocal obligations, duties and responsibilities in traditional societies. In modern societies, 'contract' is the operative means of exchange, where the individual is seen as a separate entity that exercises independent authority.

Anthropologists agree that there is no chronological sequence from 'status' to 'contract' but that societies are characterised by the predominance of one model over the other.

"Nevertheless, it is observable now how the effects of colonisation, for instance, transformed 'status' societies into the 'contract' model by instituting centralised authority, bureaucratisation, introducing written constitutions, legal codification, rule of law and notions of citizenship."

"To the extent that a society successfully implements a political system that resembles a contract model between state and citizen, it may be more predisposed to interpret Islam law as compatible with contract and hence open to modern human rights."

Benefits of secularism

Muslim scholars like Abd Al-Karim Soroush (Iran) and An-Na'im have argued that there are benefits in secularism for religious communities or for a project on religion, including Islam.

Although the Islamic consciousness of a community certainly influences Muslim attitudes, An Na'im says it is misleading to assert that Islam is the sole basis of the ethics and political culture of any human society past, or present.

The attitudes and behaviour of Muslims today are influenced by economic, security and other concerns that require extensive interaction with non-Islamic societies.

An-Na'im is of the view that the call of Muslim intellectuals to advocate European conceptions of strict separation between Islam and political authority, legislation and the administration of justice is unlikely to succeed. This approach fails to address the issue of its cultural legitimacy.

Total separation between religion and the state is not possible, or desirable in his view, because of the impossibility of separating religion from politics. He asks, "How can one prevent people from acting politically according to their religious beliefs?"

The relationship between religion and the state should not be one of either complete fusion or categorical separation. There is a continuum of 'secularisms' between these two extremes.

It may be that each country has its own specificity of secularism depending upon its own historical evolution as well as contemporary social conditions. Secularism is dynamic and deeply contextual.

Principle of neutrality

In countries like the United States, the Netherlands, Australia, England and Germany there is a minimum requirement of neutrality.

This is a positive relationship which must ensure that the people are neither advantaged nor disadvantaged by their adherence to the secular or faith-based tradition. The state should not favour or disfavour one particular religious tradition over another.

An-Na'im, refers to secularism as a principle of public policy for organising the relationship between religion and the state in a specific context. The key feature of secularism is its ability to safeguard the pluralism of political community, subject to significant differences as to how that might be achieved in practice.

An-Na'im theorises that human rights, religion and secularism are mutually supportive. The internal transformation within each paradigm is facilitated by the inherent synergy and interdependence of all three.

"The difficulty of agreement on a single foundation for human rights indicates the need for promoting an overlapping consensus among multiple foundations, instead of insisting on a single foundation that may not be acceptable to some communities," he notes.

"An overlapping consensus would enable each community to freely subscribe to a global agreement over the validity and application of human rights norms.

"The application of the idea of overlapping consensus is best achieved through a clear understanding and deliberate application of the dynamics of synergy and interdependence among human rights, religion and secularism."

Dry run

Theories must be tested even if they appear overwhelming.

Malaysia has ratified the Convention on the Elimination of All Forms of Discrimination Against Women (Cedaw) in 1995. In furtherance to this, Article 8 of the Federal Constitution was amended to include non-discrimination on the basis of gender.

However, Article 8 is problematic as it purports to exempt several matters in relation to "personal law" in Article 8 (5) - this was not amended when non-discrimination on the basis of gender was included. It might be noted that the term "personal law" relates to the idea of status.

Applying An-Na'im's synergy and interdependence idea, I would argue that Article 8 (5) cannot purport to diminish the idea of substantive equality in Cedaw.

This stems from a cross-cultural approach and the reform in that human rights regime which seeks to eliminate discrimination. This is also part of the plurality of ideas supported by secularism.

There may be an initial hitch in the traditional understanding of Muslim women's rights. Representative groups may advocate that there is equality between women and men.

These interpretations which are "internal and exclusive" may be a case of selection of fiqh opinions (eclectic), or through a credible discourse of rigorous theoretical framework (including exegetic).

The synergy and interdependence of secularism, human rights and religion pre-supposes that there some overlapping consensus among women of all faiths and beliefs in relation to women's experiences in gender discrimination - the epistemology question.

From my experiences in women's rights struggles, women's experience of discrimination cuts across the board. The discrimination among Muslims provides no exception.

The marketplace of religious ideas through this synergy and interdependence would, I believe, allow a plurality of visions and God willing, ultimately a consensus.

Part 1

of the article was posted yesterday.

The writer referred to the following sources:

Abdullahi A An-Na'im, 'Human Rights' in Judith R. Blau (ed), 'The Blackwell Companion to Sociology'. Mass: Blackwell Publishers. 2001. An-Na'im has written extensively on these matters .

Ebrahim Moosa, 'The Dilemma of Islamic Rights Schemes'. [2000] Journal of Law and Religion. Vol XV. Nos 1&2, 185.

Human rights evolved of the nation-state as a political system. The individual was no longer subject to the discretion of a ruler or system of governance, but instead had claims against the authority in the form of rights. The human rights regime is often referred to having a secular character having evolved from the jurisprudence of natural rights when natural law separated itself from religion. See also Majid Khadduri (1984) 'The Islamic Conception of Justice. Baltimore': John Hopkins University Press, where it is said that Thomas Aquinas developed his ideas on natural law from Muslim scholars (Ibn Khaldun, Ibn Rushd, Ibn Sina) who in turn, studied Greek philosophy. Human rights scholars have also traced the origins of secular human rights schemes to religion and philosophies. This led to some Muslim scholars (Rahid al-Ghannushi for example) claiming that the difference between secular and Islamic rights schemes as one of semantics.

Muhammad Iqbal, 'The Reconstruction of Religious Thought in Islam'. Shaikh Muhammad Ashraf. 1960

Abd Al-Karim Soroush, 'Reason, Freedom and Democracy in Islam'. New York.Oxford University Press. 2000. See also Abdulaziz A Sachedina, 'The Islamic Roots of Democratic Pluralism'. Oxford, New York: Oxford University Press. 2001

Abdullahi Ahmed An-Na'im, 'Political Islam' in Peter L Berger (ed), 'The Desecularisation of the World-Resurgent Religion and World Politics'. Washington DC: Ethics and Public Policy Center. 1999

Abdullahi Ahmed An-Na'im, 'The Synergy and Interdependence of Human Rights, Religion and Secularism: Prospects in Islamic Societies'. Draft manuscript. 2003