The following is a guest post by Louise Dear, Ph.D. candidate at St Antony’s College, University of Oxford, working on human rights and Islamic law in the UK.
From the 14-19 November 2010 Muslim scholars and jurists, international lawyers, and academics converged in the Schloss Leopoldskron in Salzburg, Austria, to engage in discussion aimed at fostering critical academic research across the traditions of Islamic and international law. The seminar was the second in a series of sessions, begun in October 2008, in partnership with the International Bar Association. The seminar aimed to promote critical scholarship on Islamic and international law to encourage self-reflexive thinking and deepen understanding of, and between, disciplines. A key outcome of the Common Ground project is a book which will combine the session debates with scholarship of the faculty authors and commentators. Such endeavours are likely of interest to Islamic and international law scholars working on Europe, given the decisions of the European Court of Human Rights in Dahlab v. Switzerland, Layla Sahin v. Spain, and Refah v. Turkey. In all three cases, the Court analysed Islam and/or Islamic religious symbols, which involved testing compatibility with European human rights provisions.
The Common Ground project was conceived as a reaction to polarising political discourse which threatens synergy between the traditions of Islamic and international law. Narratives of difference, conflict and fundamental systematic incompatibility necessitate sustained reflection on the authenticity of this discord. However despite this need, it became clear during debate that there was some unease over the idea of uncovering ‘common ground’. Indeed, it was felt that a quest for common ground has the potential to fall into the trap of replicating certain liberal / imperial strategies which claim hegemonic authority over values, thereby casting one set of traditions as normative, and another as ‘other’. Where commonalities are strained (like for example over gender and equality) and one or both bodies of law and practice are called upon to marginalise, diminish or even exclude potentially incommensurable rules and practices; questions may be validly posited over which norms give way and what dynamics of power and authority are at play during this process. For this reason, some participants preferred the alternative concept of ‘clearing ground’ in each respective tradition, the key to this semantic shift being the will to acknowledge and ingratiate difference in and between traditions, as opposed to the will to marry or homogenize legal norms and practices across traditions. Practically, this means analysing comparative histories of the legal traditions, and the context of the evolution of legal norms and practices, rather than comparing norms and practices, in abstract, to one another. ‘Clearing ground’ ostensibly contains no expectation of a convergence of legal traditions, in order that other creative possibilities emerge.
The seminar focused on six substantive themes, in addition to a variety of subtopics, these included: defining Islamic and international law; punishment and the rights of the accused; freedom of speech; minority rights; gender and equality; and freedom of religion. Each topic presented historically and contemporaneously thorny issues to the intersection between Islamic and international law, none more so perhaps, than gender and equality.
Starting from the inconvenient position that neither Islamic law nor human rights law has delivered justice to women, scholars have rightly (often righteously) critiqued both traditions. The Islamic doctrine of complementarity between sexes has not seen the equal dignity of women actualised, and similarly, formal equality in international law has not delivered substantive equality. The seminar session on gender and equality met these conflicts head on, and highlighted some exciting and optimistic places of departure. It was suggested that the proceedings in the gender and equality session heralded an “Islamic Renaissance”; due in part to the strong presence of representatives from Sisters in Islam and particularly, Musawah, a new global movement for equality and justice in the Muslim family. The launch of the latter organisation in 2009 – with 250 participants from 47 countries – was cited as a historic point of departure for the relationship between religion, law and gender. As ‘Islamic feminists’ Musawah were a stimulating presence in the Common Ground project; their Framework For Action declares, “We, as Muslims and as citizens of modern nations, declare that equality and justice in the family are both necessary and possible. The time for realising these values in our laws and practices is now.” Crucially, they situate claims for equality, and the praxis of reform, simultaneously in a critique of Islamic and international law frameworks; acknowledging that both legal regimes are influenced by the political, social and cultural contexts in which they operate. They argue that the process of reform, in addition to confronting law, jurisprudence and state practice directly, will be enhanced by deep reflection on these contextual influences.
Also of interest were debates on freedom of expression and blasphemy laws, which drew out some interesting points on the protection of public order and the protection of the vulnerable, illustrated by the controversy over the burning of the Qur’an by Christian extremists in the US. The discussions on freedom of religion focused on apostasy, the validity (or lack of validity) of corporal punishments under Islamic law, and the idea of apostasy as a political, not a theological, issue. Another concern regarding freedom of religion centred on the jurisprudence from the European Court of Human Rights on issues such as the banning of the hijab (headscarf); on the role of the state and the rights of the individual it was noted that the Court had not yet found an appropriate balance.
The Salzburg Global Seminar produced rich, insightful and at times exciting developments in the field of Islamic and international law. The global scope of the seminar faculty was notable; the presence of prominent Malaysian scholars, activists and lawyers, such as Zainah Anwar and Malik Imtiyaz, highlighted the importance of the South East Asia region in such debates. In the presence of such a faculty, the intellectual albatross that is the ‘clash of civilisations’ seems a distant memory, and the promise of justice through radical reform of these legal traditions seems tantalisingly imminent.
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