HUMAN RIGHTS
Year:2020 | Volume:14 | Issue:2 (28)|Papers Count:12

The key problem addressed in the paper is that of the legal pluralism, more specifically the pluralism of legal systems within one state that pursues the accommodation of religious freedom claims. In its controversial Refah decisions the Strasbourg Court held that the prohibition of the Turkish Welfare Party was “ necessary in a democratic society” because its plan to set up a plurality of legal systems was not “ compatible with fundamental democratic principles” . 1 This paper tries to inquire into the notion of legal pluralism, tries to test normative assumptions made by the Court in its regard and argues that a “ no plurality” approach would be overly simplistic and that a liberal approach would require different degrees of pluralization (some of which already exist to accommodate differences and diversity within a society) to be extended to religion, without however endangering constitutional democracy. It is necessary to point out at least two major theoretical contexts in which this problem should be considered. One is undoubtedly the issue of ‘ militant’ democracy: once we assume that constitutional democracy and legal pluralism are incompatible, we give a (part of) definition of democracy, which entitles us to reject any changes proposed to it while retaining the claim to be democratic. If we know what is democracy in a substantive sense, which values it is designed to protect (e. g. secularism or fundamental rights) we can legitimately reject any changes to that vision as a measure protective of such values. 2 Another context that is relevant is the issue of universality and cultural relativism. It first appears when we attempt to define democracy as a substantive notion, which necessarily assumes a value judgement. It also becomes relevant if we mind that the rationale of legal pluralism is the necessity to recognize, respect and tolerate different views and visions of ‘ happiness’ . In its pure form the idea of relativism and legal pluralism is represented in the classical version of state-centered international law system, where states posses equal and unlimited internal sovereignty. 1 However even within the State any kind and instance of legal pluralism is about the respect and tolerance of the different normative values and views. Only straightforward consensus on all the rules and values as universal can justify total rejection of legal pluralism. The paper will start by an attempt to clarify the understandings of legal pluralism in social sciences and law. The second part will try to construe a liberal argument in favor of advancing legal pluralism to a certain degree, basing on the individual right to freedom of religion and conscience. Instead of relying on the ‘ collective rights’ argument, it rather believes that individual rights provide a sufficient basis for this claim, as far as religious life and consciousness are deemed an important part of individual personality and self-determination. The third part tries to balance the claims of legal pluralism by considering arguments against such a model of society.

An underlying theoretical point of this paper has been that if fundamental commitments and the questions of cultural identity that they bring with them (What is an X? ) are understood in terms of functional analyses of the kind I have tried to give in the case of Islamic identity today, then there is scope to see these commitments as susceptible to various criticisms in the particular context of a conflict in which they might figure. All this seems to me to offer far more scope and interest to moral philosophy than Williams allows it, even after granting to Williams the validity of the central role he gives to the idea of fundamental commitment and the validity of his critique of traditional moral philosophy. The paper has studied the question "What is a Muslim? " in the dialectic of a conflict arising out of a concern for Islamic Reform. The conflict is one that arises because of moderate Muslims' fundamental commitment to a doctrine which contains features that are often effectively invoked by the absolutists whom moderate Muslims fundamentally oppose. If a full analysis of the commitment reveals its defensive function which have disabled Muslims from a creative and powerful opposition to the absolutists, and if, moreover, this function of the commitment is diagnosed as itself based on a deep but common philosophical fallacy, it should be possible then for moderate Muslims to think there way out of this conflict and to transform the nature of their commitment to Islam, so that it is not disabling in that way. The question of identity, "What is a Muslim? ", then, will get very different answers before and after this dialectic about reform has played itself out. The dialectic, thus, preserves the negotiability of the concept of identity and the methodological points I began with, at the same time as it situates and explains the urgency and fascination that such questions hold for us.

Human rights and religion can very often be seen as reinforcing one another. Therefore, religion plays a primordial role in promoting respect for human rights and fundamental freedoms. For example, moral imperatives like “ do not take any human being's life” or “ you shall not steal” can be found in all major religions of the world, and have acted as an inspiration for the fundamental laws made by man....

Selective adaptation describes the process by which international legal rules are contextualized to local conditions. The institutional and cultural contexts for selective adaptation involve a process by which non-local institutional practices and organizational forms are mediated by local norms. This process can be illustrated by reference to the local implementation of international human rights regimes. Selective adaptation is made possible by ways in which governments, elites, and other interpretive communities express their own normative preferences in the course of interpretation and application of practice rules. Selective adaptation depends on a number of factors, including perception, complementarity, and legitimacy. Perception influences understanding about foreign and local norms and practices. Originally a principle of nuclear physics, complementarity describes a circumstance by which apparently contradictory phenomena can be combined in ways that preserve essential characteristics of each component and yet allow for them to operate together in a mutually reinforcing and effective manner. Legitimacy concerns the extent to which members of local communities support the purposes and consequences of selective adaptation. These three factors exercise a powerful influence on local compliance with international human rights regimes, as local interpretive communities endeavor to harmonize international rules with local norms. This paper will apply selective adaptation paradigm to performance of international human rights obligations such as the right to development. The paper draws on documentary and field research in China and Asia during 2002-2004. Supported by a Major Collaborative Research Initiatives project funded by the Social Sciences and Humanities Research Council of Canada, the paper will suggest how selective adaptation affects the dynamics of the right to development, and how compliance with international human rights rules remains contextualized to local legal and political culture.

My study is about the Islamic reservations to the Convention on the Elimination of All forms of Discrimination Against Women (CEDAW) and their compatibility under the regime of the Vienna Convention on the Law of the Treaties (VCLT). It is focused in the substantive reservations invoking Shari’ a Laws entered by some Muslim countries to the central articles of the Convention which are, therefore, impermissible as incompatible whit the object and purpose of the Convention. I highlight the paradox of maximizing the Convention’ s universal application at the cost of compromising its integrity and how substantive reservations to the CEDAW provisions, tolerating discrepancy between states’ laws and practice and the obligations of the Convention, pose a risk to the achievement of the Convention’ s goals. I also question if the compatibility criterion of the VCLT is effective in view of acceptance of some substantive reservations of a derogatory nature I consider that the “ object and purpose” test is subjective, the practice by the objecting states is not uniform and that looking at those which are (or are not) the objecting states in respect of a particular reservation, it is evident how political or extralegal considerations intervene when states evaluate the compatibility of reservations. I especially focus on the paradox of the objections to a reservation which have the same effect as an acceptance when the objecting and reserving states are still maintaining treaty relation....

At a time when religion has assumed a particular potency in shaping and defining inter-community and inter-state relations the world over, the need for evolving alternate understandings of religion to creatively deal with the fact of religious pluralism has emerged as a pressing necessity. This is an issue for concerned and socially engaged believers in all religious traditions. This paper deals with how, contrary to widely-head stereotypical notions, Islam can be interpreted to promote inter-faith dialogue and amity between followers of different faiths. This discussion centers on the work of a noted Indian Muslim scholar-activist, Asghar ‘ Ali Engineer, seeing how he deals with the primary sources of Islam in order to develop an Islamic theology of pluralism and social justice. Given the fact that in many parts of the world today conflicts involve Muslims and people of other faiths, Engineer’ s creative approach to the Qur’ an offers us an alternate way of imagining Islam and Islamic rules for relations between Muslims and others. In turn, this way of approaching Islam, fashioning Islam as an instrument of peace instead of a tool for war and bloodshed, can provide insights and inspiration to work towards the peaceful resolution of many conflicts in which Muslims are involved.

It is widely accepted that the freedom to practice one's religion, and to live according to one's religious beliefs, is a basic human right, and the key to peaceful coexistence among religious communities and among nations. In my paper I will focus on the problems that arise when sincerely held religious beliefs come into conflict with the rights of others. Recently in the United States, two such situations have received widespread attention. One case involves pharmacists who refuse to fill prescriptions for birth control pills, because they believe that the use of certain kinds of contraception violates their Christian religious beliefs. The other case involves Muslim taxicab drivers who refuse to transport passengers carrying alcohol for similar reasons. In response to such conflicts, religious tolerance is often embraced as a solution. In western society, the ideal of religious tolerance can be traced back at least to John Locke, and received considerable attention in the work of political philosopher John Rawls. In recent years, tolerance has been embraced as a public value through programs that teach tolerance in public schools....

The Enlightenment's distinction between positive and natural religion furnishes a useful point of departure for thinking about the relationship, in today's world, between religion and human rights. According to eighteenth century rationalism, natural religion consists in the simplest form of those beliefs that reason can admit to without contradiction, such as the existence of God and the immortality of the soul (Voltaire); whereas positive religions are merely the multitude of diverging institutions, dogmas, ceremonies and beliefs that human beings have created for themselves during the course of history. In natural religion, consciousness finds divinity within itself, and thus is co-responsible for the laws that it constructs and obeys; in positive religion, God imposes His commands from without. Despite their differences, however, both forms of religion rely on the same conception of temporality to make their claims understood: they conceive of time as a pure linear sequence (t1, t2, t3, etc. ) that is divided into the tripartite form of past, present, and future....

At a time of terrorist actions, the civil wars in Afghanistan and in Iraq as well as the caricatures of the Prophet and Pope XVI’ s speech about violence in Islam, it is urgent for the Islamic academic community to speak about a major issue: the notions of peace and war in Islam....

The recent creation of the Human Rights Council at the United Nations constituted another opportunity for the United States to take positive leadership towards a greater level of human rights implementation. This opportunity for significant and timely paradigm shift has passed with too little fanfare. The US refusal to run for election to the HRC, while not a crippling blow, does deprive it of the influence of the most powerful nation in the world. The US’ ability and willingness to evade scrutiny of its human rights record is an important symbolic setback for human rights progress. This most recent disappointing performance leaves a leadership vacuum which other less powerful nation-states are unlikely to fill....

One of the major challenges for a civilization-and a parameter for assessing it-is how it treats those who do not belong to that civilization. The dichotomy between “ we” and “ them” is made variously across civilizations. In the past, interactions across civilizations are less voluminous and less intense. But things have changed. the world has become a global village. Yet, it remains very pluralistic in terms of religion, culture, ethnicity, and language. The diversity of the contemporary world is due to the existence of concurrent civilizations on the world, each with its distinct culture, world view and values. Western culture, Islamic culture, oriental culture and African culture are some of the more prominent cultures today. Globalization is not without its problems. For one thing, the world is being pressurized into become a mono-cultural environment patterned after western culture. This position is not because of any inherent superiority of western civilization to the other civilization but because of the cultural invasion of the world by the west....

There has been a great deal written about the relationship between sharia law and international human rights law, particularly with regards to the treatment of women. The tensions between sharia law and international law norms of equality and nondiscrimination have been well documented, and the possibilities for interpreting sharia law in a manner that accords with international human rights law have been insightfully explored by scholars of human rights and Islamic law. It has been shown that Islam is a religion of peace, tolerance, justice and equality. It has been said that the Qur’ anic passages describing the role of women should be understood in the context in which they were written, which was a time in history in which women were seen as vastly inferior to men in almost every society throughout the world, particularly in the Arabian peninsula. Read in this context, it is argued, Islam must be seen as an advocate for gender equality, and should thus be interpreted as standing for gender equality today. This paper argues that, while this may indeed be the preferred interpretation of Islam, this is of little assistance to women in countries such as Sudan whose national legislation enshrines and enforces the most discriminatory aspects of sharia law.