نشریه حقوق بشر
پیاپی 30 (پاییز و زمستان 1399)

Communitarianism is considered as one of the most pivotal schools of thought in contemporary normative political theories. In fact, it is a label for a group of people who share common characteristics such as critiques on liberalism, and some concepts like “community”, “tradition” and “self”. Since most communitarians belong to the analytical philosophy, which focus on language and logic, they could not be regarded as contextualists. On the other hand, their analysis is related to “tradition”, “here and now”, and “particularism” which denotes the importance of historical, political and sociological situation. It seems that not only the enrichment of morality and human rights in communitarianism is possible, but also it implies somehow relationship with context, cultural diversity and relativism. It seems that communitarianism needs a “third way” between text and context.

This paper advances a framework for the evaluation of Sharia (Islamic law) with respect to the modern notion of international human rights law. The paper argues that certain universal standards of human rights and freedoms, as understood and formulated in international human rights documents, lack precise equivalents in Islamic law, and some generally-accepted principles of Sharia contradict corresponding principles of international human rights law. Sharia's response to the idea of human rights and traditional interpretation of Islamic law are hard to reconcile with international human rights norms and standards. It is also argued that the application of Sharia, public and criminal law in particular, is problematic and results in deficiencies and hardship in Muslim societies. This paper contributes to the debate on Islamic reformism and human rights in arguing that Sharia's contradiction of universal human rights norms cannot be avoided, and that traditional mechanisms of reform within the framework of Sharia are inadequate for achieving the necessary degree of reform. It is suggested that, based on a cross-cultural dialogue and intellectual debate, an essential and primary reform should define the objective foundations of human rights in reason and human dignity, not on Sharia criteria and qualifications.

The moral and legal rights to sue a party do not always conform well. In cases where legal rights are not established, one may obviously be entitled to file a lawsuit against the action conducted outside the ethical frameworks. In contemporary legal systems, “the right to sue someone” must be based on statutory law; however, there are some issues which are not recognized in national laws or international right-oriented systems, but they have theoretical significance. Because some of these issues cannot be easily denied in terms of morality and just because they are not recognized, they cannot be rejected or undermined. In other words, a moral right shall not be denied merely because it is not recognized as a legal right.  Therefore, this article seeks to look at the moral right of the child born out of rape and prove that if a mother decides to keep and give birth to such a child, can the child bring a charge against the mother?

The guiding question of this paper is “How can, if at all, the universality of human rights survive critical examinations within the prevailing multiculturalist frame of reference?” This paper examines the possibility conditions of critically reasoning for the universality of human rights. The discussions in this paper runs at two levels of analysis. At the conceptual level, a theoretical monist-pluralist frame of reference will be developed to reformulate the problematic of the universality of human rights in a form more compatible methodologically with multiculturalist approaches in the humanities, social sciences and current discourses of cultural studies. Demonstrating the weaknesses of the alternative solutions, the main hypothesis of this study suggests to refer to a reconstructed version of the “golden rule of reciprocal fairness.” At the practical level, this paper will set forth three “why”, “which”, and “how” questions regarding those principles which can bolster a universal reception of the human rights as fairness.

Freedom of religion in the sense of freedom of belief and of religious manifestations; in teaching, practice, worship and observance is one of the basic human rights laid down in the Universal Declaration of Human Rights, art. 18. Freedom of religion in this sense is considered to be an important right and to play an important role in keeping up social peace in society. Germany, being a secular state with a historical connection to Christian religion, has anchored this right of religious freedom in is constitution in Article 4.According to Art. 7/3 religious education in state- run schools is accomplished in accordance with the religious communities. This religious education is normally provided for by the Catholic and Protestant Churches, but also by the Jewish community.  There are 3,2 Mio Muslims in Germany , especially from Turkey, but also from the Arab countries and Iran. Most of these Muslims do not plan to return to their native countries and will remain in Germany.They do enjoy freedom of religion in the above-mentioned sense. In my paper I will deal with the question of how religious manifestations of the Muslims in Germany “in teaching, practice, worship and observance “is accomplished. I shall focus on their religious education and endeavor to answer the following questions: What does Islamic education mean in Germany, in a secular state? Who provides for it and how? How does it differ from religious education in Islamic countries? How is it seen by the German society? I will deal with these questions on two levels (1) on the national level and (2) on the local level. On the national level a clear effort of the German state can be seen to integrate the Muslim minority as a religious group into the German state. For this reason the German Minister Wolfgang Schäuble convened in 2006 the so called “Islamkonferenz inviting jurists, scholars of Islamic studies and representatives of the different Muslim communities as well as independent persons to talk about the situation of Muslims in Germany. The unsolved question still is: how the different Islamic groups comprising Muslims from different social, political and religious backgrounds and from different countries as Turkey, Arab states, Iran, Afghanistan with different national Islamic traditions could find a common platform of religious Islamic belief in a secular state. By establishing the Coordinating Council (Koordinierungsrat) of Muslims in Germany in April 2007, some larger Islamic organizations tried to create a common structure for the representation of all Muslims. So far this organization has not been recognized by the German state as the official representative of all Muslims, but the discussions at the “Islamkonferenz” are not yet finished and are still going on. One of the main aims of the Muslim Organizations is to gain the right to give Islamic religious lessons at German state-run schools. Whereas on the national level the integration of Islam as a religion within the secular system is discussed, on the local level religious teaching is currently taking place within different projects in many selected state schools in Germany as well as in local mosques. Religious teaching at mosques will be discussed by taking the example of mosques in Goettingen, a small university town in Central Germany. There are two main mosques in Goettingen: one belonging to the Turkish community (Ditib) and the other being an Arab mosque. I shall sketch the concept of religious education given in this Arab mosque with regard to its content and the way it is taught to the children, whether it corresponds to the classical Islamic education and which concepts, beliefs, rituals and cultic acts are being considered important for children growing up in a completely secular context? Finally, I shall compare this approach at the local level with the efforts made on the national level and discuss how these different efforts are judged by the German society.

As Human Rights are supposed to be equal for all human beings leaving any social
differences away there must be ways found to educate the population in Human Rights matters. One of the ways for Human Rights education is Religion. Religion is the link between the people of one society that does not care for social and educational differences. There is no need for high education to believe and to confess to a religion. But also in times of insecurity, e.g. wars or catastrophes, people tend to be more religious than in times of peace and are seeking help and moral advice from their religious leaders.
By attending religious ceremonies people get informed not only about religious matters but also about political ones as religious institutions are also a place for exchanging knowledge. An important role plays the religious leader as he can have a great influence esp. on the masses with lower education. By using effective methods he can contribute to implementing Human Rights in society. As there are already different methods of intercultural training on Human Rights affairs existing I would like to explain how, in analogy to that, an inter-religious training on Human Rights Affairs, esp. anti-discrimination, could work. The basis is the anti-bias concept which was originally developed in South Africa and which aims at the general removal of discrimination like sexism, racism, north-south-hierarchy, etc. The focus is on the sensibilization of oneself and starting a life-long-learning process of living aware of existing prejudices and developing tolerance in society. The anti-bias concept starts working directly at the mechanism of discrimination and is therefore useful and appropriate for the pedagogical fields which include religious institutions. The religious leader is enabled by this training to work with groups, e.g. children and adults or men and women, and lead those people to their emotional self-experience. Developing on this, non-discriminating conducts for the personal life- and the working situation is produced. Religion that works together with the anti-bias method shows how many chances a society has with less discrimination for all and helps finally to implement Human Rights.

Democracy is a much used and abused word. As a possible structure of political organization, democratic concepts are very much under debate in Muslim countries. Democracy in a western sense has become associated with a forceful “democratization” of the Middle East, which in effect has brought war and various forms of foreign domination to crucial areas of this sensitive region. However, up to now democratic structures are an exception in Muslim countries. Due to historical developments during the past centuries, there seems to be a lack of theoretical backing for democracy in the culture of the Middle East. This is surprising, because Islam, from its beginning, has offered the model of shura (consultation), which can and should be developed to serve modern governance. Especially Shi'ism can offer a theological backing through interpretations and explanations conducive to the formation and implementation of an Islamic democracy. In Imam Ali's (a.s.) letter to Malik al-Ashtar, we find a beautiful outline of what today is called “good governance”. Moreover, Shi'ism postulates the Imamate of the Mahdi (a.s.) as a just rule to-come. In the absence of the Imam-e zaman, an Islamic democracy should prevail with full participation of Muslims. But how is it possible to organize a modern Muslim country democratically? In addition to a working government and a majlis or parliament formed on the basis of elections, the expertise of religious scholars is needed – scholars who are capable of Ijtihad, so that they can find answers to the needs of present-day life in the wake of ongoing social change. In an Islamic polity, the period of awaiting al-Mahdi al-muntazar requires active participation of the people, since unless there is widespread readiness to support the good cause, the Mahdi will not appear. This participation is a basic human right and also a duty of men and women. For this purpose, every individual should have the opportunity to develop his/her moral, religious and cultural consciousness and the social and political awareness through education and self-education, so that citizens may fulfil their social and democratic responsibilities within the framework of Islam.

The emerging right to democracy (e.g. Franck, T) within international law favors a liberal, democratic packaging. Yet as Abedolkarim Sourash argues, there has been a conflation of liberalism and democracy, which must be decoupled.  It is from this point of departure that this paper will examine the international legality of militant democracy and interrogate when and how a constitutional democracy can legally act in an anti-democratic manner to combat threats to its democratic existence.  Militant democracy was a term introduced in 1937 by Karl Lowenstein. It refers to a form of constitutional democracy authorized to protect civil and political freedom by pre-emptively restricting its exercise. Lowenstein’s writings, at the time, were concerned with the limitations of democratic institutions in containing fascism. Militant democracies stand in contrast with the principles of legal pluralism, but the extent to which international law authorizes transformative political agendas that seek to implement forms of religious, cultural, or national autonomy is unclear.

Peaceful co-existence is a universal but elusive aspiration. Despite the search for tools to create a peaceful world, conflict remains between nations and within nations. The fostering of peace is a question to which scholars, religious leaders and politicians put their minds, but despite this attention the paradox remains that there is little evidence that local and global conflict have subsided. Ideally the key to providing solutions can be found in the tenets of the world’s major religions and cultural traditions and in the musing of some of the great philosophy voices of past and modern times. Regrettably these tenets are often absent in education systems where there are limited endeavours to encourage young people to think locally and globally about social justice, peace and human rights. Many of the current ways of imparting knowledge of human rights and peace are limited, with the emphasis on the legal aspect alone and on international instruments such as the Universal Declaration of Human Rights (UDHR). Although the UDHR is an inspiring document given that its creation stemmed from a commitment to all humanity, its uncritical acceptance negates the critiques about western dominance. Arguably, unless humankind can find a way to grapple with the tension between universal and relativist approaches to human rights by acknowledging diversity, the search for peace and social justice will be limited. This paper contemplates the creation of human rights understandings beyond legal constructs to explore how human rights concepts can be invoked through education to reduce ignorance, prejudice, religious intolerance and fear that detracts from the goal of peaceful co-existence. It explores the question of responsibility to ‘the other’, a form of responsibility that is not apparent in the clash of cultures and the conflict between nations. The paper suggests a schema for human rights understandings based on philosophical, political, historical, anthropological, legal and practical approaches to human rights. This includes forging the connection between theory and practice; engaging in critical pedagogy through a process of collaborative dialogue and inquiry; being familiar with the historical origins of human rights and their application; and understanding that concepts of human rights are found in every cultural and religious tradition.  In advocating such a schema it draws on examples that present barriers and prospects and in so doing outlines the endeavours that take place in the inter-disciplinary Master of Human Rights program at Curtin University in Australia as a model that may be adaptable to other contexts. The paper concludes by suggesting practical ways in which the schema could be enacted including through a lifetime educational commitment to human rights through historical and philosophical understandings, inter-faith dialogue and cultural exchanges.

The following paper will present the theory and possibilities of implication of the phenomenon of civil disobedience understood as one of the most powerful and most effective tools of democratic society when it comes to implementing the necessary and indispensable changes required for the improvement of the political domain and the social public sphere.   In the first part I will present the narrow but orthodox and widely discussed definition of civil disobedience presented by John Rawls in his Theory of Justice (1971). Given such a definition, as well as the major conditions under which the actions undertaken in the name of civil disobedience can be justified, I will focus my analysis on two major aspects of the discussed notion.   Firstly, I will discuss civil disobedience, which is in its essense an unlawful act, paradoxically expresses the highest respect for the positive law by the person performing the civilly disobedient act through one’s submission to the judgment of the law which is an object of one’s protest. This way, civil disobedience presents itself as the phenomenon which, not having a legal recognition (not being legalized), holds super-legal force required to impose the changes on the unjust legal system or on the particular unjust regulation.   Secondly, I will point out that civil disobedience, as a public act performed by the people (the subjects of the particular law), expresses the will of the people and, therefore, it can not be used (by themselves) in the ways contradictory to their best self-interest but always supported by the “the commonly shared sense of justice” (Rawls). From this premise I conclude that the universal human rights, as thier supporters claim, are one of the main ends of the political activism in the recent decade and should be advocated in the civilly disobedient manner.   In the last part I will contrast the Rawlsean definition with a much broader and more relevant understanding of civil disobedience when it concerns today’s globalizing world. In this world, the nation-states cease to be the only political actors when confronted with the transnational public sphere, and, therefore, the understanding of civil disobedience as a transversal arena of public dissent presented by Roland Bleiker (2000) is more appropriate. In this definition civil disobedience becomes, not only a political instrument of particular subjects of a particular society, but it also becomes a tool for the international mobilization of means and of people in the name of presenting and imposing the respect for the universal human rights despite the national borders and societal paradigms.

In American history, the ‘Black body’ has been commodified both during the slavery era and in the contemporary period whereby the private management of prisons has partly resulted to mass Black incarceration. The abolition of slavery some 150 years ago is still fairly recent compared to the 400 years it was practiced: thus some of the heinous treatments by slave owners were carried over into the criminal justice system, causing the police, jury, judges, etc., to treat Black people unequally and unfairly compared to their White counterparts. From the ‘proceedings of the rebellious negroes’ in the slavery era to the racialized media coverages of police brutality against Black people, Black protests, treatment of criminal suspects, etc., the American mass media have been identified as playing a major role in the maintenance of the deep racist structures that perpetuate mass Black incarceration. This paper links up some historical practices against Black people with the contemporary racist practices in order to show that slavery is still functionally alive in America and manifests concretely through the justice system: this paper aims at amplifying the ongoing debates toward obliterating the remnants of slavery in America.

After the atrocity’s committed during the Second World War, the citizens of the world cried out for a universal code of ethics. On December 10th 1948 the General Assembly of the United Nations adopted a universal declaration of human rights, thus setting a new standard for all nations to follow. According to Article 18 of that declaration “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship, and observance”. People, and women in particular, who are born in different parts of the world have different cultural, as well as religious identities. It is time for education on, and a universal understanding of, the identity differences of Muslim women to be made universally accessible, and understood. Although the ultimate result was the near obliteration of an entire race, and a worldwide war, the groundwork was laid in a much quieter manner. The Nazi party slowly began working their ideals into society. First espousing the sovereignty of the German race and then planting the seeds for the loathing and contempt that would follow for all other races. Near the end of the Second World War Adolph Hitler described Jewish people as “something aggressive” the same words that French president Jacques Chirac recently used when petitioning Parliament to pass a law banning the wearing of hijab in France?