The liberal notion of universal law derives its supposed normative force from an ill-defined notion of universal values. This notion of universality is tied conceptually and historically to Western imperialism—and many of the values taken to be “universal” are not.
But even if, for the sake of argument, we presupposed the existence of some set of universal values—this would neither entail nor imply that they could be realized through any universal law; and there is certainly no reason to think that liberalism would be the only, or even the best, way of realizing these values. Take, for instance, the value of respecting women: according to liberalism, the best way to show respect for women is to treat them exactly the same as men. However, this is not the only understanding of justice.
The classical conception is not “to treat everyone the same” but instead “to treat equally those who are the same”—according to which there are two forms of injustice:
- Treating people different when they are in fact the same, or
- Treating people the same when they are importantly different
In this spirit, traditionalists argue that the liberal conception fails to respect women qua women. Under the liberal conception, women are only valued in those aspects in which they can easily be interchanged with men (i.e. as a worker, a voter, a consumer, etc.). It is rarely considered just how much is built into this discourse.
For instance, it is presupposed that the only (or in any case, best) ways of empowering women, and people in general, is to give them prolific professional titles, higher salaries, etc. That there are alternative, perhaps more contextually relevant, forms of power or significance is completely overlooked in favor of blind submission to capitalist interpretations of value (the truth of which is also presumed as universal and incontrovertible).
In defiance of this paradigm, a traditionalist would argue that the best way to respect women is to respect the differences between the sexes and to honor gender roles. This neither entails nor implies treating women as 2nd class citizens—instead, that women and men have reciprocal and complimentary (rather than identical) rights and duties. In fact, a more careful examination of social dynamics in traditional societies would reveal that women have a good deal more power than is traditionally assumed–much of which is lost in transition to “modern” paradigms of gender relations.
To this, the liberal would retort that recognizing any difference between the sexes is necessarily discriminatory: non-identical is synonymous with unequal.
While there are significant merits to either of these positions, there is no way to formulate universal policies which simultaneously treat men and women differently but also exactly the same. So, if there is a single body of laws to which all must submit, one of these conceptions has to be chosen. And whichever one is chosen, there will be a group of people who legitimately feels as though the law disrespects women. And in the case of societies in which most people, to include most women, reject liberalism–to impose upon them the liberal interpretation of what it means to respect women would alienate the bulk of society, including most of the women the liberals ostensibly wish to “honor and protect.” Accordingly, in these societies, if one conception of “respecting women,” had to be chosen, it would seem most just to adopt the traditional interpretation which the liberals would also have to be subject to (as opposed to subjecting the overwhelming majority to the will of an extreme minority). This does not entail a disregard for women’s rights (e.g. political participation, education, legal protection from violence/ exploitation)—but rather changes the nature of feminism.
As a second example of this irreconcilability of policy despite the shared value of respecting women, consider the case of hijab bans in Europe: on the one hand, the idea behind the prohibitions is to ensure respect for women. However, the law seems to assume that women are not even capable of deciding how to dress themselves without the government’s help. This seems more condescending than respectful. While the law may have been well-intentioned (although it was certainly also rooted in racism and xenophobia), what these legislators failed to understand is that for many Muslim (and non-Muslim) women, covering one’s hair is a means of respecting oneself, and also a symbol of said respect (as an example, the bans on women covering their hair conveniently excluded nuns). In fact, in the European context in which these laws were passed, far from making women “invisible,” a covered woman stands out to an extraordinary degree.
For many Muslim women, the hijab has become a symbol of Islamic feminism. Accordingly, Muslim women overwhelmingly find efforts (mostly of white non-Muslims) to “liberate” them to be deeply offensive and terribly misguided—in much the same way secular dictators in Iran and Turkey forced women to dress in “modern” (i.e. Western) styles, complete with fashion police to sanction women who dressed to conservatively or exclude them altogether from the public sphere.
Against these policies, Muslim women often reply that if they wanted to demonstrate a lack of self-respect, a lack of respect for their own bodies, if they wanted to render themselves as mere objects for men—they would plaster themselves in make-up, dress, and behave according to immodest Western norms. Notice that each views the other as being, in a sense, exploited or oppressed. And both parties of women want to prevent their sex from being objectified, and want to show respect for their gender and their bodies—they just have diametrically opposed notions of what sort of actions represent the fulfillment or violation of these shared ideals.
One could make similar arguments about economic relations between men and women. According to the contemporary Western narrative, women have been empowered by being given the choice to work. A traditionalist might retort that there is little “choice” in the matter for most. Despite empirical measures suggesting that many women increasingly desire to scale back or opt out of their participation in the workforce, it is increasingly difficult to do so in a society where wages and benefits have been structured under the assumption of multiple breadwinners. In fact, much of this “extra” income is devoted to paying others to perform the work women have traditionally done: others prepare meals for the family, others watch the children. And for the additional cost, the quality is lower: people’s diets are less healthy eating out, or dining on quick processed foods. People “watching” one’s children do not provide the same love and guidance of a parent raising their children. One could go on at length. For these and other reasons, two earners today are often able to provide less security than a single breadwinner previously. In fact, if one happens to be a single parent, they will often find themselves having to simulate the “dual earner” model themselves by taking on multiple simultaneous jobs.
Despite Western narratives about “progress,” there are substantial tradeoffs for each paradigm, and it is impossible to objectively determine which would be best for women. This is partially because this evaluation is inevitably tied to conceptions of what counts as respect/ disrespect, what is more or less important, what sorts of things people find happiness in, etc. And these can vary wildly across (and even within) cultures.
That is, the notion of universal values does not entail the formulation of universal laws. In fact, the source of the aforementioned conflicts is precisely the insistence upon a singular corpus juris to which all citizens must be subject—this doctrine of universality creates a zero-sum political game that gives rise to many of the most trenchant and vitriolic social conflicts. Under universalistic systems, governments are typically forced into a democratic dilemma; they can either:
- Foster a government which is unrepresentative of the majority of its citizens in many critical aspects, for the sake of protecting minority groups; or,
- Allow minorities to be held ransom by the tyranny of the majority.
Neither of these options seems particularly appealing; however, these two options need not be exhaustive.
Instead of pursuing the ill-fated Western universalistic enterprise, which within the MENA context will only exacerbate social divisions, it may be better to pursue systems of legal pluralism. In the Middle East and North Africa, Islam serves as the cultural and historical center of gravity, even for non-Muslim intellectuals such as Michel Aflaq and Edward Said. Accordingly, as a countermodel to the notion of universal law, the pluralistic tradition of fiqh could be translated into contemporary MENA societies to resolve a host of social tensions. In fact, forms of government derived from Islamic values and frames of reference can serve as templates for how to address many of the challenges facing the world today.
However, realizing this potential will require that the people of the Middle East and North Africa reject the frameworks which have been imposed upon them, which many have regrettably internalized, and which continue to inform most of the political discourse in the region and around the world. The first step in this process is to reject the supposed universality of Western ideologies and institutions, recognizing them as cultural artifacts which may prove malignant in exogenous contexts.