Most important human right in our lifetime, Part 3

by Tony D'Amato

I suppose we can divide human rights into two types: those that people want, and those they don’t want. In the preceding parts of this thread, I’ve set out what I think is one of the hardest cases of the second type. I’ve pictured a Muslim woman (taking the term Muslim generically for present purposes—there are of course many Muslim sects with many variations of practices) who, in the exercise of her own volition, chooses to be legally inferior to men. I’ve tried to articulate her position, which is a composite of the views I have heard after many years of listening and study.

However, the International Covenant on Civil and Political Rights provides for equality before the law for all persons and prohibits discrimination on the ground of sex (Article 26). It also provides for the equal right of men and women to all civil and political rights (Article 3). Thus there is a clash between this norm of international law and the preferences of Muslim women.

Exacerbating this clash is the fact that Muslim men are united with Muslim women on this score: both sexes believe that men are superior to women—legally, socially, physically, and according to the tenets of Islam. Moreover, their nations stand behind them. Today, as I write these words, the newspapers are reporting the final text of the proposed Iraqi constitution. It provides in Article Two (1)(a) that “No law may contradict Islamic standards.” Let’s look at the relevant Islamic standard provided in the Qu’ran:

Men have authority over women because God has made the
one superior to the other. Good women are obedient. As for
those from whom you fear disobedience, admonish them,
forsake them in beds apart and beat them.

Quibbling aside, it seems to me that no fair-minded person can compare the texts of the ICCPR and the Qu’ran and conclude that they are substantively compatible with each other.

In approaching the problem of a clash between the law and deeply held religious/cultural practices, let us briefly consider two easier cases. The first case is that of Christian Scientist parents refusing to let their six-month-old child be operated upon to remove an intestinal blockage. Here the law intrudes: it prohibits the parents’ interference and requires that the operation proceed. The second case is that of female circumcision. Even though this practice is widespread in Muslim communities throughout northern Africa, the law on the books in those countries forbids it.

These cases are easier because our case of the inequality of Muslim women is generally accepted by all persons living within the nation that authorizes the inequality. Thus not only do we have a clash between international law and religious/cultural practices, but we also have a clash between international law and a state’s domestic jurisdiction. On all counts, this clash is so enormous as to lead us to revaluate our commitment to the rule of law.

I think revaluation is always healthy. The “law” should not blindly dominate our lives. I’ve argued elsewhere that even the word “should” should not apply to legal commands. A rule of law, as Kelsen pointed out, is simply a calculation: “if you choose to do X, the state will do Y to you.” There is no “should” or “ought” about it at all.

If Kelsen’s essentialist view is accepted, then we have to go outside the law to see whether the law “should” be obeyed. Morality (at least as Kelsen sees it) is external to the law. Thus it is morality that provides the “should” factor. But morality, by its very nature, cannot apply to every law that is enacted without ending up contradicting itself. Thus morality must pick and choose among the legal rules. Some “ought” to be obeyed; others (like the law requiring apartheid decades ago in South Africa) “ought not” to be obeyed.

Hence, in comparing the ICCPR with the Qu’ran, “the law” will only take us a small part of the way. What we really have here looks like a clash of morality. How do we deal with that?

One way to deal with it is through moral relativism. We might say that although women and men ought to be equal before the law, this equality applies only in parts of the world. In other parts, where both men and women agree that women ought to be inferior to men under the law, then THEIR morality dictates a result opposite to the one we would reach.

I think moral relativism is incoherent. I believe there is a clear moral answer to the clash between equality and inferiority for women. I believe in moral absolutism, which I acknowledge up front is an arrogant doctrine. I’ll try to defend my position in my final blog, coming soon to a theatre near you, either Wednesday or Thursday of this week.

http://opiniojuris.org/2005/08/23/most-important-human-right-in-our-lifetime-part-3/

6 Responses

  1. I’m a Muslim man and I disagree with this statement: “Exacerbating this clash is the fact that Muslim men are united with Muslim women on this score: both sexes believe that men are superior to women—legally, socially, physically, and according to the tenets of Islam.”

    There is no consenus among Muslim men (or women) on this.

    And on your point about Islam and the Iraq constitution, it is worth recalling that the transitional constitution under which Iraq is currently operating also recognises Islam as the source of all laws and forbids laws that conflict with Islam; and, yet, this has hardly entrenched Islamic law or anything else in Iraq.

    It’s also worth noting that the same provision in the proposed constitution that says Islam is the source of all laws also guarantees protection for women and other minorities and basic human rights.

    With the greatest respect, the fear mongering should stop.

  2. [With the greatest respect, the fear mongering should stop.]

    I don’t think that anyone at this site is fear-mongering. That is not the issue. The topics being discussed here are real topics that have real implications for international law and governance.

    I will tell you what the problem is in the west with Islam. The problem in the west is that western nations are struggling with two very specific weaknesses within our laws and government.

    The first weakness is the inability to see hostility outside of the traditional western colonialist role. That means the only evil that is seen is capitalist evil involving traditional power groups, and yet those groups are now marginalized in favor of minorities (women and other minorities). For example, in Zimbabwe, the dictator Mugabe was allowed to ethnic cleanse white farmers from their lands, starving millions of people because as I said, only certain groups are defined as hostile. Where there once were 5,000 active farms producing food, now there are less than 450. Zimbabwe was once the largest producer of food in Africa, but because of neo-Marxism, it is now a prime candidate of humanitarian aid instead. Remarkable, isn’t it? But to internationally-driven feminists, millions of people starving is a better outcome than millions of people with bellies not knowing hunger that get their food from white land owners.

    The second prime weakness is the west’s inability to understand Sharia Law. Since the west does not view Islam as hostile (outside of security thinkers that know better), regardless of how Islam behaves in the global neighborhood it receives praise in the international media and from foreign governments and non-government organizations as a victimized minority (sort of how Mugabe is praised even though he perpetuates great evils).

    In Iraq, the announcement that the Iraqi Constitution would be structured around Sharia law is stunning to me. Not one leftist group stood for separation of church and state, as they readily do in America, preying upon anyone or any group that even remotely claims such a connection or effort.

    That means the west does not understand Sharia Law or is fearful to even dare try a separation of church and state effort there. Your claim that the Iraqi Constitution’s structuring around Islamic Law will not entrench Islamic Law in Iraq is incredible in that it is a great example of what it is that I am talking about. If the Iraqi Constitution is structured as it is now around Islamic Law, the country will be governed by Islamic Law. There is no other way to explain it.

    What western feminists want is to bring abortion, divorce, and other western feminist-defined so-called “women’s rights” to Islam. Islamic men I think sense that, and they find it outrageous to their culture. I am certain that Sharia Law forbids most of that behavior.

    The question then becomes how many western men will die to implement such a feminist form of government in Islamic countries? Islamic countries do not recognize any law but Sharia Law. Many western countries do not understand that law either.

    So my question is this. Do you think that the wars occuring in Islamic countries by the west are occurring to bring folks the Bill of Rights, or do you think the wars are bringing Islam feminist fascism as has overtaken the west?

    Obtestor

  3. Would Islam tolerate 65 out of 490 students getting pregnant at school as just happened at this American high school? (13% of the entire high school’s girls are pregnant)

    http://www.ccsdistrict.org/timken/

    This is an interesting subject. What would Sharia Law do in such a case? How would Islam react to this situation in Islamic countries?

    In America, when 65 out of 490 young girls get pregnant in a high school, 13% of all the female students, American feminists celebrate it. So help me out here and explain to me what Islam would do in this example if a local Imam found out that 13% of a school’s underage children became pregnant in an Islamic community.

    Obtestor

  4. Here’s what happened in one rich man’s household. He had his 18-year-old daughter tested for virginity and the doctor reported that she had lost her virginity. She explained to her father that she fell off her bicycle and there was bleeding. However, she had a girl friend who underwent the same test with the same result. The families put two and two together.
    The rich man hired private detectives, no expense spared, who found out after much searching that the two young women were messing around with a couple of Pakistani young men. The police, at the bidding of the parents, arrested the young men and interrogated them. They confessed and named the two girls.

    Now we are at the rich man’s home on Sunday morning. Everyone is gathered around the pool, including servants, relatives, children, in-laws, etc. Some men appear who are holding the young girl tightly. They take her into the pool and hold her head under water. Everyone watches her drown.

  5. Looking at how Islamic law was formed, we need to look at the society it was born into. Which is the Arab tribal society Islam as a faith was founded in, is, a patrilineal and patrilocal society (like other cultures of the day)

    Prior to Islam, Women, in this part of the world had little or no rights at all, beyond being practically the property of the man. In such desert societies women also were the source of shame that they might bring unto the man (the roots of honor killing).

    Islam came and change all that, It made it a precondition for a Muslim that in order to be a good Muslim he has to be good to his household first, to treat mothers, wives and daughters as equal human beings, not lesser.

    The Koran, in many places emphasizes that the road to heaven must go through treating women fairly and well.

    Islam, as shocking as it may seem to many non-Muslims, alleviated the woman to a much better status than she had before Islam. Islam made the woman equal to man before God, gave them, inheritance rights (non existence before), gave them the right to marry, and divorce, and gave the freedom of choice in many areas of societies.

    By the 7th century standards, this was revolutionary.

    The issue I have with Prof. D’Amato’s is also his usage of the terms “Superior” and “inferior” which both have explosive negative racial and legal connotations, in referring to legal inequalities of women comparing to men.

    Also his reference of “inferiority” of “Muslim Women” is that he takes the Koranic text that speaks to 7th century audiences without proper modern understanding through Islamic Juris prudence.

    That does not mean that the Koranic texts are archaic or useless in modern world. But, like any other religious book, i.e. the Bible of the Torah, we have to understand such religious and ancient texts in context of space and time they were born in.

    We can’t apply modern concepts of law on ancient religious texts and deem them illegal, because they simply incompatible with the Geneva conventions on Human Rights.

    Now, if we take case of Women driving in Saudi Arabia. The case here is not the case of Muslim women have no rights to drive. It is rather a case of Saudi women that are unable to drive, because, just a cross the border Muslim Kuwaiti women are able to drive, and now can be elected to parliament.

    Other Gulf States women not only can drive but enjoy the same legal rights of men.
    In other Arab countries women assume leadership positions in many areas of public life.

    But one has to understand that the seeming disparity between men and women in the Middle East is not inherent in Islam as a religion, but rather it has to do with that particular society, and in the degree of education, economic growth and modernization of that society.

    So, it was quite obvious that women in Afghanistan have little or no rights under the Taliban regime. After the Taliban, Women there did not rush to sport western style or fancy dresses and mini skirts; they still cover themselves in Burkah or Chadur.

    In Turkey, an overwhelmingly Muslim country, women there do not share the same problems with Afghani Muslim women. A case in point is the election of a woman prime Minister, Tanso Chiller, 1993-1996.

    Another case is the Muslim world most populace country, Indonesia, which was ruled, until last year by a woman president. Add Pakistan, Turkey, and Bangladesh to the mix, you’ll find between them that half of the world Muslim population was, at one point ruled by women.

    All that does not mean, of course, that women in Muslim countries do not suffer from injustices and inequalities, a problem that is not restricted to Muslim countries alone.

    All Arab and Muslim countries have secular legal and penal codes, Western, (with exception of few) and apply the same laws to men and women, equally.

    In the matter of personal issues, such as marriage, Islamic laws are applied for Muslims and Church law for Christian Arabs.

    One might argue the Muslim women in certain countries can not inherit equal share from their fathers. This case, has to do with nature of society of the 7th century when an Arab man was suppose to be responsible for the woman welfare and well being, providing food and shelter to his wife and family. Women were not generally speaking supposed to be the main beard winner in the household.

    This burden fell on the man. So as a mean to assist the man in his responsibilities in establishing a household of his own, he was accorded a double share of his sister in inheritance, His sister, typically, in the 7th century, was not required to be the main provider of her household.

    Today, in the 21st century, as an Arab man, if I want to get married with an Arab woman (note that I am talking about particular Arab Muslim costumes, not Chinese or Bosnian Muslim costumes) I am required to endure all of the expenses of the wedding, provide her with costumery gifts in gold. (Which has in past has served as an insurance policy of sort in case she was divorced, especially women without education that might help them and their children)

    So, I am supposed to pay an arm and a leg to get married, and the woman or her family will pay nothing. They are just giving me a wife, and I should be just happy with that.

    Today, women in many Muslim societies are educated, working and can attain a comfortable standard of living sometimes higher than that of a man.

    Finally, do we need certain modification in the understanding of some Islamic laws here and there to accommodate changes in the societies my answer is yes.

  6. Professor D’Amato said: [Now we are at the rich man's home on Sunday morning. Everyone is gathered around the pool, including servants, relatives, children, in-laws, etc. Some men appear who are holding the young girl tightly. They take her into the pool and hold her head under water. Everyone watches her drown.]

    That circumstance is with a female that has chosen her partner and remained with the one partner as well. You know as well as I do that the American high school incident involved girls with perhaps numerous sex partners, so many that multiple accusations against many different boys (and men) will appear for each case of pregnancy to determine who will test out for DNA tagging of the ‘daddy’ in each pregnancy.

    So western ‘values’ in regards to the law is going to surprise many Islamic men, not that they haven’t perhaps been informed that one of the key issues of the ‘great satan’ is our lack of moral values in how we allow our women to treat themselves as well as how men treat them.

    The only thing that we will see exported to Islam is feminism. What does Islam export to the west? Oil. How can we possibly enforce any international law over Islam short of dropping bombs on Islamic countries? We sure aren’t going to boycott those countries because their trade is in oil and we need it by the boatload.

    So what we will be bringing to Islam is feminism because the modern international law groupthink ignores real rights and tries to install false rights in their stead. There are limits to freedom because what happened at that American high school where 13% of all the female students that became pregnant is not freedom. No, that is 65 cases of statutory rape in one school, and those are just the cases where the girls got pregnant and the media found out about it. Perhaps a full 40% of the female student body is engaging in that activity.

    So what feminism tries to define as freedom may simply be an anarchy assault upon anyone with moral religious values because of the repulsive nature of the behaviors involved.

    I think that you pointed out remarkably well how Islamic men will deal with western feminism on a case by case basis.

    Obtestor

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