Tuesday, January 4, 2011

"Legal Guardians: Islamic Law, International Law, Human Rights Law, and the Salman Rushdie Affair"

Anthony Chase, Legal Guardians: Islamic Law, International Law, Human Rights Law, and the Salman Rushdie Affair, 11 Am. U. J. Int'l L. & Pol'y 375 (1996)

Chase's article is a thorough analysis of the legitimacy of the fatwa against Salman Rushdie from two perspectives: (1) under international human rights law and (2) under traditional principles of Islamic religious/legal thought. The article and the precise issues discussed are dated, of course, but as the Danish Cartoon Controversy demonstrated, the relationship between freedom of speech and Islamic law remains a relevant concern.

On the first issue, Chase presents a long discussion of freedom of speech under the International Covenant of Civil and Political Rights (to which Iran is a signatory), along with contrasting concerns that Rusdie's book could constitute hate speech or "communal libel." Chase's analysis seems to make clear that the fatwa violates international human rights norms, though he ties his analysis into a discussion of cultural relativism and whether/how non-Muslims can "really understand the anger a book such as The Satanic Verses can cause". (p. 430) I'm not qualified to speak about the legal analysis in this section, but I will note that Chase makes no real attempt to discuss why the international law issue matters from a practical perspective--is/was Iran likely to change its policies to better cohere with international human rights norms?

On the second issue, Chase writes that "[i]t is both condescending and counterproductive to condemn Khomeini's fatwa without even a nod toward understanding its basis in Islamic law and political context and the rage of those who feel they are the whipping post of Western military, political, and cultural power." (p. 393) Chase argues that "Khomeini's position is somewhat novel in the history of the Islamic world and can be criticized from within the Islamic legal tradition." (p. 395) According to Chase, the fatwa is equivocal on exactly what crime it is that Rushdie is alleged to have committed, should not have been issued against someone outside Iran's territorial sovereignty, and represents a break from traditional Islamic understandings of what warrants capital offenses because blasphemy by itself is not punishable by the death penalty. "[I]n order to make Rushdie's death sentence coherent within the constructs of the Islamic legal system, one must proceed in the convoluted manner of first construing Khomeini's fatwa as implicitly accusing Rushdie of blasphemy, which in turn serves as proof of apostasy, for which a sentence of death is admissible." (p. 399) Chase concludes that the fatwa "can now be viewed as somewhat reckless, justifiable only in a rather tortured fashion . . . Khomeini stretched the bounds of the Islamic legal order, making it a mere servant to his political projects". (p. 405)

No comments:

Post a Comment