20 Pages Posted: 23 Apr 2007 Last revised: 12 Mar 2008
The salient question of the twenty-first question may turn out to be religion, and its relationship to secular norms such as international human rights law. In this paper, I explore a Rawlsian strategy for effecting a principled reconciliation of Islamic law and international human rights law. The need for effecting such reconciliation is pressing, as is evidenced by first, the large number of Muslim-majority states that adopt Islamic law-based reservations to international human rights conventions, and second, the distrust that non-Muslim majorities often exhibit to their Muslim minorities which is in part fueled by suggestions that Muslims are insufficiently committed to human rights norms. Rawls' framework for analyzing how incompatible theories of the good may nevertheless co-exist within one constitutional regime under conditions that give rise to an overlapping consensus suggests that advocates of Islamic law and international human rights law should seek to articulate both the norms of international human rights law and their justifications in a manner that could reasonably result in the good faith acceptance by Muslims of such norms, and the good-faith acceptance of Islamic law by international human rights law as a legitimate interlocutor. I propose a framework for effecting this reconciliation through various strategies: first, revision of non-conforming substantive rules of Islamic law wherever possible to do so without engaging in controversial moral or theological interpretation so as to render them in conformity with norms of international human rights law; second, where there is a genuine contradiction between Islamic religious doctrine and the norms of international human rights law, by the more robust recognition within international human rights law of the right of Muslims (as well as other religiously-motivated citizens) to continue to observe voluntarily Islamic law (or other religiously-motivated norms) - even where adherence to such norms results in discrimination - as a matter of their human right to religious freedom, while Muslim states would agree not to impose such religiously-motivated rules as part of its positive legislation; and third, requiring Muslim states to disavow restrictions on freedom of conscience, including laws penalizing apostasy, even in civil law.
Suggested Citation: Suggested Citation
Fadel, Mohammad, Public Reason as a Strategy for Principled Reconciliation: The Case of Islamic Law and International Human Rights. Chicago Journal of International Law, Vol. 8, No. 1, p. 1, 2008; University of Toronto, Legal Studies Research Paper No. 981777. Available at SSRN: https://ssrn.com/abstract=981777