“Os islãs” no panorama dos direitos humanos: transconstitucionalismo como alternativa

Abstract

In the context of the hypercomplex world society, controversial issues emerge about the incompatibility of Islam with the Western notion of human rights, due to aspects related to social evolution, especially with regard to the de-differentiation, largely Muslim countries, of legal-religious systems as well as the influxes of partial cultural systems on them, which reflect on the notion of human rights in Islam. With this, it is sought to verify if there is opposition of the Islam to the human rights or if this assertion is mere generalization due to the ignorance of the asymmetries of the Muslim countries. In the initial lines, this work aims to analyze Islam in the human rights landscape, demonstrating the existence of asymmetries in Muslim countries and the reflections of these asymmetries in the total legal-religious system of Islam and in the Islamic notion of human rights. It then examines whether the 1981 Universal Declaration of Human Rights (IUDHD) and the Declaration of Human Rights in Islam, also known as the 1990 Cairo Declaration on Human Rights in Islam (DDHI), were inspired by the Qur'an, compiled in the seventh century, expresses notions of human rights prior to the Western notion present in the Universal Declaration of Human Rights of 1948 (UDHR), therefore, one can speak of compatibility and even equivalence between such visions about human rights. In order to do so, the examples of the inherent devices of gender equality in the Islamic and Western declarations mentioned, as well as in the Holy Book of Islam, were made. With regard to the Islamic notion of human rights, the Sunni perspective was taken as a basis, as it was the majority, and illustrated the way in which these devices were applied in Saudi Arabia, Egypt and Turkey, considered as Sunni Muslim countries respectively , ultraconservative, moderate and modern. Finally, it was tried to ascertain if the thesis of the transconstitutionalism can be expressed as a suitable means for the development of a dialogue between the Western and Islamic notions of human rights - identity and otherness - to be realized through the United Nations and of the Organization for Islamic Cooperation (OIC), enabling reciprocal learning with repercussions on the production and application of human rights. For this to be possible, a methodology was adopted that covers a bibliographic study in books, articles, dissertations and theses, as well as the method developed by Nitish Monebhurrun for the construction of legal texts.