Human Rights, Justice and Tolerance: The Formation of Normative Orders in the Relationship between the West and Islam

Project management: Prof. Dr. Rainer Forst

The research project “Human Rights, Justice and Tolerance” pursued the objective of developing an independent concept of human rights in a dual dialog with the Islamic tradition and contemporary human rights philosophy. The guiding principle here was the question of the resources for an overarching system of justification that contains human rights as fundamental norms of justice and does not conform to the scheme of a comparison between “Western” and “Islamic”.

To this end, the internal Islamic human rights debate was first analyzed and compared with human rights discourses whose validity and genesis are regarded as “Western”. From a contextual point of view, it was found that an essential motive of the Islamic discussion is to prove that Islam does not need any foreign moral “teachings”, since, depending on the view, Islam itself is either already morally perfect and therefore does not need any foreign human rights ideas or, alternatively, is itself the original inventor of human rights. From a systematic point of view, an attempt was made to capture the breadth of the Islamic human rights discourse and to organize it according to a criterion that makes the differences in content and methodology in answering the question of the compatibility of Islam and human rights understandable. Four Muslim argumentative stances were differentiated from one another and analyzed in terms of their substantive argumentation.

The reconstruction of the internal Islamic human rights debate has shown that there is a very broad spectrum of opinion among Muslims when it comes to the question of the compatibility of Islam and human rights. There can be no question of a uniform Islamic human rights position, as is often suggested. What was striking about the discourse, however, was the fact that it is primarily concerned with getting rid of the stigma of the human rights problem child. Due to this reactive dynamic, the discourse has not yet been able to make an independent contribution to promoting a general understanding of human rights. This has become particularly clear when it comes to the question of the justification of human rights. The central assumption, which is also shared by other religions, that human rights are given by God or have a divine foundation, leads to the problematic conclusion that these are rights that do not accrue to people as such, but merely because they are creatures of God. Respect for human rights thus becomes primarily a ritual duty towards God, while the moral duty towards man remains secondary and only arises, as it were, from the primary religious duty. This inevitably leads to a further problem. If human rights are to be respected solely because faith makes this a duty, then those people who have a different faith or no faith at all would have no binding reason to respect human rights.

On the level of reasoning theory, it is therefore necessary to justify human rights independently of the Islamic faith in order to guarantee the universal validity of human rights. The problem that arises from this demand from a Muslim perspective, however, is that Muslim acceptance of human rights is directly linked to the ability to establish an Islamic reference to them, i.e. to legitimize human rights from within the Islamic legal and conceptual framework. On the one hand, this has to do with the fact that human rights represent normative claims which, on the one hand, grant people a certain scope for action, but on the other hand also prescribe a certain course of action and thus enter a moral terrain that is simultaneously claimed by religion. Added to this is the fact that the idea of human rights is part of an identity discourse in which they are often portrayed as “Western-Christian values” to which other cultures must adapt. In order to prevent the acceptance of human rights from appearing as a mere adoption of supposedly “Western” ideas, human rights must therefore be derived and justified from the Islamic tradition. In summary, the process of developing the Muslim understanding of human rights is therefore caught between two different claims to normativity: the claim to universality on the one hand and the claim to Islamic legitimacy on the other. Two approaches were developed in the project to respond to this problem.

According to the research results, one way of fulfilling these two requirements simultaneously is to conceptualize human rights, based on the theory of Islamic legal purposes (maqāsid al-šarīʿa), as institutions for the protection of basic human needs. The basis of human needs is Islamically legitimized because its protection symbolizes the purpose of Islamic law. It is capable of universal consensus because human needs exist independently of attitudes and are therefore ethically neutral and intersubjectively justifiable. It is therefore a basis for the establishment of law that is not essential, but is also religious. The development of this concept was initially based on the history of ideas by reconstructing the classical Islamic theory of the purposes of law. Subsequently, the question of what needs are and what needs people have was investigated by recourse to interdisciplinary research into needs. This is the position developed by Mahmoud Bassiouni in his dissertation published by Suhrkamp in 2014.

Another way to justify the internal (from the internal perspective of a culture or religion) and external (universalist) legitimacy of a concept of human rights lies in a reflexive turn to the fundamental “right to justification” of persons not to be subjected to normative orders that cannot be justified to them as free and equal. This is both an internal and external claim to justification, i.e. one that must apply within normative orders, insofar as they claim general validity vis-à-vis their members, as well as one that can be brought from outside to normative orders that claim validity. The human rights that can be justified on the basis of the right to justification, namely by those affected themselves as normative authorities, are accordingly immanent and justifiable across contexts, in varying degrees of concreteness. This is the thesis that Rainer Forst substantiates in his work on human rights, justice and tolerance.

As part of the research project, an international conference was organized entitled “Human Rights Today: Foundations and Politics” (Frankfurt, 17-18 June 2010). Speakers included Abdullahi Ahmes An-Na’im, Susanne Baer, Étienne Balibar, Charles Beitz, Seyla Benhabib, Costas Douzinas, Jürgen Habermas, Hans Joas and John Tasioulas. The contributions to this conference formed the basis for a focus on “Human Rights” in Constellations 20:1, 2013, which was edited by Rainer Forst together with Christoph Menke and Stefan Gosepath.

The most important publications of the research project include Bassiouni, Mahmoud (2014): Menschenrechte zwischen Universalität und islamischer Legitititmität, Berlin: Suhrkamp; Forst, Rainer (2014) Justice, Democracy and the Right to Justification, London: Bloomsbury, 2014 (volume with one essay (Two Pictures of Justice), six critical contributions by A. Sangiovanni, A. Allen, K. Olson, A. S. Laden, E. Erman, S. Caney and a detailed reply (Justifying Justification: Reply to My Critics) and Forst, Rainer (2014) The Power of Tolerance, together with Wendy Brown, New York: Columbia University Press.