Routledge Handbook of International Human Rights Law

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Abingdon, Oxon: Routledge; — See also the Turabian citation guide. See also the official Chicago Manual of Style website. A citation is a reference to a source. A citation consists of an abbreviated alphanumeric expression e. Generally the combination of both the in-body citation and the bibliographic entry constitutes what is commonly thought of as a citation whereas bibliographic entries by themselves are not.

In your text, when you need to give a reference for a claim or assertion, you would use a citation , linked to your full bibliography at the end of your work. There are two main systems for doing this:. The Oxford Referencing System relies on footnotes. The first time you reference a publication, you would give a footnote reference, for example:. Footnote 3, in this example, would contain the complete bibliographic reference see above to the relevant publication. When you subsequently reference the same source, you should include a further footnote, but this time you need only include the author, date of publication, and page number if appropriate, for example:.

The Harvard Referencing System does not use footnotes for references. Instead, the reference is always given in the main text as the author's name and date of publication, and where a direct quotation is used the page number should also be given. For example:. Rather, they pursued what can be described as an extreme positivistic approach to these rights. Muslim jurists examined the existing positive legal injunctions that arguably can be said to serve these values, and concluded that by giving effect to these specific legal injunctions, the five values have been sufficiently fulfilled.

So, for example, Muslim jurists contended that the prohibition of murder served the basic value of life, the law of apostasy protected religion, the prohibition of intoxicants protected the intellect, the prohibition of fornication and adultery protected lineage, and the right of compensation protected the right to property.

At most, these laws are partial protections to a limited conception of values, and at any case, cannot be asserted as the equivalent of individual rights because they are not asserted as immunities to be retained by the individual against the world. It is reasonable to conclude that these five values were emptied of any theoretical social and political content and were reduced to technical legalistic objectives.

This, of course, does not preclude the possibility that the basic five values could act as a foundation for a systematic theory of individual rights. To argue that the juristic tradition did not develop the idea of fundamental or basic individual rights does not mean that that tradition was oblivious to the notion. In fact, the juristic tradition tended to sympathize with individuals who were unjustly executed for their beliefs or those who died fighting against injustice.

Jurists typically described such acts as a death of musabarah, a description that carried positive or commendable connotations.

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Muslim jurists produced a formidable discourse condemning the imposition of unjust taxes and the usurpation of private property by the government. I will mention only some of these positions, leaving the rest to a more extensive study. The same principle was applied to criminal cases; the jurists argued that it is always better to release a guilty person than to run the risk of punishing an innocent person.

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Interestingly, some jurists asserted that a judge that relies on a coerced confession in a criminal conviction is, in turn, to be held liable for the wrongful conviction. Most argued that the defendant, or his family, may bring an action for compensation against the judge, individually, and against the Caliph and his representatives, generally, because the government is deemed to be vicariously liable for the unlawful behavior of its judges. But perhaps the most intriguing discourse in the juristic tradition is that which relates to the rights of God and the rights of people.

These rights belong to God in the sense that only God can say how the violation of these rights may be punished and only God has the right to forgive such violations.

In addition, in the juristic theory, all rights not explicitly retained by God, accrue to the benefit of human beings. In other words, any right haqq that is not specifically and clearly retained by God becomes a right retained by people. For instance, a right to compensation is retained individually by a human being and may only be forgiven by the aggrieved individual. The government, or even God, does not have the right to forgive or compromise such a right of compensation if it is designated as part of the rights of human beings. The rights of human beings are not forgiven by God unless the human being concerned forgives them first, and the claims for such rights are not dismissed [by God] unless they are dismissed by the person concerned The rights of a Muslim cannot be abandoned except by the possessor of the right.

Even the imam [ruler] does not have the right to demand [or abandon] such rights.

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This is because the imam is not empowered to act as the agent for a specific set of individuals over their specific rights. Rather, the imam only represents people, generally, over their general and unspecified rights. This is not because the range of the rights of people was narrow—quite to the contrary, it is because the range of these rights was too broad.

It should be recalled that people retain any rights not explicitly reserved by God. Effectively, since the rights retained by God are quite narrow, the rights accruing to the benefit of the people are numerous. The juristic practice has tended to focus on narrow legal claims that may be addressed through the processes of law rather than on broad theoretical categories that were perceived as non-justiciable before a court.

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As such, the jurists tended to focus on tangible property rights or rights for compensation instead of focusing on moral claims. Despite this limitation, the juristic tradition did, in fact, develop a notion of individual claims that are immune from governmental or social limitation or alienation. There is one other important aspect that needs to be explored in this context.

Muslim jurists asserted the rather surprising position that if the rights of God and rights of people mixed rights overlap, in most cases, the rights of people should prevail. The justification for this was that humans need their rights, and need to vindicate those rights on earth. As to the rights of people, Muslim jurists did not imagine a set of unwavering and generalizable rights that are to be held by each individual at all times. Rather, they thought of individual rights as arising from a legal cause brought about by the suffering of a legal wrong. A person does not possess a right until he or she has been wronged, and as a result, obtains a claim for retribution or compensation.

Shifting paradigms, it is necessary to transform the traditional conceptions of rights to a notion of immunities and entitlements. As such, these rights become the property of individual holders, before there arises a specific grievance regardless of whether there is a legal cause of action.

The set of rights that are recognized as immutable and invariable are those that are necessary to achieve a just society while promoting the element of mercy. It is quite possible that the relevant individual rights are those five values mentioned above, but this issue needs to be re-thought and re-analyzed in light of the current diversity and particularity of human existence.

The fact that the rights of people take priority over the rights of God, on this earth, necessarily means that a claimed right of God may not be used to violate the rights of human beings. God is capable of vindicating whichever rights God wishes to vindicate in the Hereafter. On this earth, we concern ourselves only with discovering and establishing the rights that are needed to enable human beings to achieve a just life, while, to the extent possible, honoring the asserted rights of God. I have justified this position on Islamic grounds; while acknowledging that this approach is informed by the interpretive traditions of the past, it is not the dominant approach to the subject or even a well-established approach among Muslims in the modern era.

Unfortunately, the only well-established approaches to the subject today are the apologetic and puritan approaches. As far as contemporary discourses are concerned, they are replete with unjustified assumptions, and intellectual shortcuts that have seriously undermined the ability of Muslims to confront such an important topic as human rights. In addition, partly affected by Muslim apologists, many Western scholars repeat generalizations about Islamic law that, the least one can say, are not based on historical texts generated by Muslim jurists.

Among those unfounded generalizations are the claims that Islamic law is concerned primarily with duties, and not rights, and that the Islamic conception of rights is collectivist, and not individualistic. Pre-modern Muslim jurists did not assert a collectivist vision of rights, in the same way that they did not assert an individualistic vision of rights. But as a matter of juristic determination, this amounted to no more than an assertion that the many should not be made to suffer for the entitlements of the few.

Routledge Handbook of International Human Rights Law

For instance, as a legal maxim, this was utilized to justify the notion of public takings or the right to public easements over private property. This principle was also utilized in prohibiting unqualified doctors from practicing medicine. Even with regard to public takings or easements, the vast majority of Muslim jurists maintained that the individuals affected are entitled by the state to compensation equal to the fair market value of the property taken. In addition, pursuant to a justice perspective, one can argue that a commitment to individual rights, taken as a whole, will accrue to the benefit of the many the private citizens over the few the members of ruling government.

I do believe that the common good is greatly enhanced, and not hampered, by the assertion of individual rights, but this point needs to be developed in a more systematic way in a separate study. In fact, some pre-modern jurists have asserted that to every duty there is a reciprocal right, and vice versa. The fact that the jurists did not hinge the duty to obey on the obligation to respect the individual rights of citizens does not mean that they were, as a matter of principle, opposed to affording the ruled certain immunities against the state. In some situations, Muslim jurists even asserted that if the state fails to protect the well-being of the ruled, and is unjust towards them, the ruled no longer owe the state either obedience or support.

The widespread rhetoric regarding the primacy of collectivist and duty-based perspectives in Islam points to the reactive nature of much of the discourse on Islamic law in the contemporary age. In the s and s, most Muslim countries, as underdeveloped nations, were heavily influenced by socialist and national development ideologies, which tended to emphasize collectivist and duty-oriented conceptions of rights.

Therefore, many Muslim commentators claimed that the Islamic tradition necessarily supports the aspirations and hopes of what is called the Third World. But such claims are as negotiative, re-constructive, and inventive of the Islamic tradition as any particular contemporaneous vision of rights.

In my view, however, from a theological perspective, the notion of individual rights is easier to justify in Islam than a collectivist orientation. God created human beings as individuals, and their liability in the Hereafter is individually determined as well. Each individual embodies a virtual universe of divine miracles in body, soul, and mind. The answer is because God has already made such a commitment when God invested so much of the God-self in each and every person.

The measure of moral virtue on this earth is who is able to come closer to divinity through justice, and not who carries the correct religious or irreligious label. I am very grateful to my students Holly Robins and Dana Lee, and my wife, Grace Song, for their invaluable feedback and assistance. Tim Dunne and Nicholas J. Wilson, ed.

Routledge Handbook of International Human Rights Law

For a study that analyzes this phenomenon, but is critical of the American contribution, see Diana G. Tauris, John L. On the adoption of secularized law, and the emergence of Western legal professionals in Egypt, see Farhat J. For a probing survey of orientalism and its practices, see Bryan S.

The Wahhabi rebellion was considerable, at one point reaching as far as Damascus in the north and Oman in the south. Egyptian forces under the leadership of Muhammad Ali in , however, after several failed expeditions, quashed the rebellion, and Wahhabism seemed to be on its way to extinction.