Of the many books that have been published concerning the interplay between Islamic law and international human rights law, this is one of the most important and thought-provoking. It is the product of a series of seminars held over a number of years and is carefully crafted to guide the reader though a series of difficult issues in a methodical fashion. It is divided into five parts, each of which opens with two substantial essays exploring a topic from the perspective of international human rights law and from Islamic law, which are then followed by a series of shorter comments and reflections upon the issues which they raise. The first part considers the broader landscape of Islamic law and international human rights law while the others consider ‘flashpoints’, these being freedom of expression, freedom of religion, gender equality and minority rights. Clearly, this is a substantial agenda.
The work overall is underpinned by a distinction between a search for ‘common ground’ and the idea of ‘clearing ground’. Rather than seek to understand Islamic law in the light of human rights law, or vice versa, the idea is to explore the way in which each relates to the theme under consideration by examining the ‘deeply contextual nature of how Islamic law and international human rights law are legitimately formed, interpreted, and applied’ (p 4). This is intended to help ‘clear the ground’ by stripping away some of the preconceptions which are commonly brought to the search for that common ground. In essence, the idea seems to be that, by critical self-reflection, a new space may emerge in which that common ground can be located. The book has the limited aim of engaging in this ‘clearing of ground’ rather than in exploring whether this action does indeed reveal such a space. That task is, for now, left to the reader. This is, then, an ambitious and innovative approach. The problem is that it can descend into a rather self-deprecating critique of what might be wrong with one's own conceptual outlook in order to justify making the concessions necessary to find the meeting place. It is not self-evident that saying ‘we both may be wrong’ provides a significantly better basis from which to determine common ground than the assertion that ‘we both think we are right’.
Taking the work as a whole, it is difficult to avoid the feeling that, whereas those offering perspectives from international human rights law tend to draw out the latent ambiguities in its approaches and seek to reveal why some of its more absolutist claims may need to be received with some critical scepticism, those from an Islamic perspective tend more towards apologetics. This is evident in the opening section, where Kathleen Cavanaugh seeks to show that international law is politicised and so it is inappropriate to project it as an impartial absolute as against a ‘politicised’ Islamic law. The matching contribution from the Islamic perspective by Anver Emon, however, is largely restricted to a presentation of the rich texture of Islamic legal history lying at the intersection of law and politics. This may help ‘clear ground’, though only in the sense of suggesting that both are the equal of (or no better or worse than) each other – but it hardly opens up a common space in which to locate common ground: common flaws or common failing, perhaps.
Turning to the ‘flashpoints’, the same issues arise. The first concerns freedom of expression, though in reality it is focused on freedom of religious expression. There is a particularly interesting contribution by Intisar Rabb, exploring the distinction in Islamic thought between political expression and blasphemy and how these have changed over time by being transposed into changed political settings. This is ‘clearing ground’ in a positive and helpful fashion. It is perhaps disappointing, therefore, that the final commentary by John Bellinger is restricted to extolling the virtues of UN Human Rights Council Resolution 16/18, which is the apogee of common ground, located in political compromise rather than in the space made ‘in the clearing’.
The next section turns to freedom of religion itself. The opening chapter, by Urfan Khaliq, is an exceptionally well-done analysis of the reality of international human rights law's engagement with the freedom of religion. It is honest, accurate and, it has to be said, at times rather depressing reading, emphasising as it does what in fact is not really agreed upon at the international normative level. This too is excellent ‘clearing’ of conceptual baggage. The chapter on Islamic law is, by comparison, far more limited in scope, looking at pre-modern limitations of the freedom of religion, primarily apostasy. This rather misses the point, but it does end with the recognition that Muslims today could do more to emphasise that individuals are free to change religious beliefs – something which Khaliq points out is not as settled from a legal perspective as many would have it believed. This section concludes with a particularly interesting reflection by Sumner Twiss on the high value to be placed on freedom of conscience, and the resulting justifications for placing very few limitations on the freedom of religion or belief, drawing on the writings of the seventeenth-century Baptist Roger Williams.
The final two sections look at gender equality and minority rights. Perhaps understandably, in both instances the focus is more firmly on the failings of both international human rights law and Islamic law in this regard, and so they perhaps serve the overall purpose by exposing common weaknesses of approach. Whether this helps forge common ground in any positive fashion is not quite so clear. The sections on gender inequality do raise some provocative questions concerning the legitimacy of gender and cultural essentialism but there is, at times, a hint that neither Islamic law nor international human rights law can adequately capture and address the reality of gender inequality. The section on minority rights opens with an excellent chapter by Emon, pointing to the need to balance rights of minorities within dominant cultures, bearing in mind ‘the extent to which the prevailing legal order can or cannot accommodate those demands’ (p 343). This is an intriguing gloss to the more predictable conclusions usually encountered and demands some reflection. A key question might be: what sets that dominant culture today? International human rights law, perhaps? Or perhaps not. This may be the real debate which needs to be engaged with.
Does the overall project of ‘clearing ground’ to find common ground succeed? The conclusions of the final two comments upon the flashpoint of minority rights show the breadth of the divide that still remains. For Richard Goldstone, ‘The acceptance of religious minorities will not come easily for previously and still theocratic societies. The only way religion will be removed as a force for oppression and violence is to keep it out of the political and legal arena’ (p 370). For Javaid Rehman, however, ‘Laws are constructed by fallible human beings; they are a construct of a human mind set and need consistent review and revision based on changing socio-economic needs and perceptions of morality’ (p 378). This hardly speaks of commonality. But it is Rehman who, for this reviewer, best captures the spirit of the enterprise: his comment is prefaced by the observation that ‘it is important to recognise and reiterate that the call of reform of discriminatory laws is not a criticism of the great religion of Islam itself’, and followed by the conclusion that ‘In order to make progress, Muslim societies (in common with all other societies) must ensure consistent alignment of constitutional norms with evolving norms on human rights and minority rights.’ In other words, it is not about critiquing the presuppositions of our positions in order to re-locate our thinking. It is about recognising our evolving understanding of both religious thought and legal regulation, in the light of the changing world and the changing societies in which we live and in which we relate to each other. No more, no less. And it may be that this is sufficient to comprise a useful common ground.
