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The relationship between Islamic law and international human rights law has been the subject of considerable, and heated, debate in recent years. The usual starting point has been to test one system by the standards of the other, asking is Islamic law 'compatible' with international human rights standards, or vice versa. This approach quickly ends in acrimony and accusations of misunderstanding. By overlaying one set of norms on another we overlook the deeply contextual nature of how legal rules operate in a society, and meaningful comparison and discussion is impossible. In this volume, leading experts in Islamic law and international human rights law attempt to deepen the understanding of human rights and Islam, paving the way for a more meaningful debate. Focusing on central areas of controversy, such as freedom of speech and religion, gender equality, and minority rights, the authors examine the contextual nature of how Islamic law and international human rights law are legitimately formed, interpreted, and applied within a community. They examine how these fundamental interests are recognized and protected within the law, and what restrictions are placed on the freedoms associated with them. By examining how each system recognizes and limits fundamental freedoms, this volume clears the ground for exploring the relationship between Islamic law and international human rights law on a sounder footing. In doing so it offers a challenging and distinctive contribution to the literature on the subject, and will be an invaluable reference for students, academics, and policy-makers engaged in the legal and religious debates surrounding Islam and the West.
Mark Ellis is Executive Director of the International Bar Association (IBA). He leads the foremost international organization of bar associations, law firms, and individual lawyers in the world. Prior to joining the IBA, he spent ten years as the first Executive Director of the Central European and Eurasian Law Initiative (CEELI), a project of the American Bar Association (ABA). Providing technical legal assistance to twenty-eight countries in Central Europe and the former Soviet Union, and to the International Criminal Tribunal for the Former Yugoslavia (ICTY) in The Hague, CEELI remains the most extensive international pro bono legal assistance project ever undertaken by the US legal community. He served as Legal Advisor to the Independent International Commission on Kosovo, chaired by Justice Richard J. Goldstone and was appointed by OSCE to advise on the creation of Serbia's War Crimes Tribunal and was actively involved with the Iraqi High Tribunal.
Anver M. Emon is Associate Professor of Law at the Faculty of Law, University of Toronto. His research focuses on premodern and modern Islamic legal history and theory; premodern modes of governance and adjudication; and the role of Shari'a both inside and outside the Muslim world. The author of Islamic Natural Law Theories (Oxford University Press, 2010), Professor Emon is the editor in chief of Middle East Law and Governance: An Interdisciplinary Journal.
Benjamin Glahn is the Former Deputy Chief Program Officer and Program Director at the Salzburg Global Seminar.
Table of Contents
Foreword, Edward Mortimer
1. Editors' Introduction, Mark Ellis, Anver M. Emon, Benjamin Glahn
Part I: Islamic Law and International Human Rights Law
Narrating Law, Kathleen Cavanaugh
Shari'a and the Modern State, Anver M. Emon
Commentary to Anver M. Emon "Shari'a and the Modern State" and Kathleen Cavanaugh "Narrating Law", Hans Corell
Clearing Ground: Comment on "Shari'a and the Modern State", Muhammad Khalid Masud
Commentary: Shari'a as Rule of Law, Justice Adel Omar Sherif
Part II: Freedom of Speech
Rethinking the Universality of Human Rights: A Comparative Historical Proposal for the Idea of "Common Ground" with Other Moral Traditions, Nehal Bhuta
Negotiating Speech in Islamic Law and Politics: Flipped Traditions of Expression, Intisar Rabb
The Great Divide and the Common Ground Between the United States and the Rest of the World, John B Bellinger III & Murad Hussain
Part III: Freedom of Religion
Freedom of Religion and Belief in International Law: A Comparative Analysis, Urfan Khaliq
Pre-Modern Islamic Legal Restrictions on Freedom of Religion, with Particular Reference to Apostasy and its Punishment, Abdullah Saeed
The Freedom of Religion and Expression: A Rule of Law Perspective, Malik Imtiaz
Commentary, Barney Twiss
Part IV: Women's Equality
Unveiling Equality: Disciplining the 'Other' Woman Through Human Rights Discourse, Ratna Kapur
Women in Search of Common Ground Between Islamic and International Human Rights Law, Ziba Mir-Hosseini
Women and Islamic Law - Commentary, Justice Sandra Day O'Connor
Islamic and International Law: Searching for Common Ground: Musawah, CEDAW, and Muslim Family Laws in the 21st Century, Lynn Welchman
Part V: Minority Rights
Religious Minorities and Islamic Law: Accommodation and the Limits of Tolerance, Anver M. Emon
The Dialectic of International Law and the Contested Approaches to Minority Rights, Errol Mendes
Religious Minorities and Islamic Law, Justice Richard Goldstone
Islam vs. the Shari'a: Minority Protection within Islamic and International Legal Traditions, Javaid Rehman
Epilogue: Common Ground or Clearing Ground?, Robin Lovin