Normative Structure of Human Rights in Islam.
Human rights constitute one of the most discussed topics in contemporary times. Islamic term for human rights is al-haqq and is generally being used in almost the same meaning and connotation as the expression human rights in Western discourse. The meaning of al-haqq, however, is not confined to human rights and is used as a key-term in Islamic texts in different connotations with one core meaning of 'established fact'. In the context of human rights it means a proven obligation, or an established claim that cannot be denied. Allah is the source and guarantor of rights hence all rights are inalienable and permanent. Thus normative structure of rights in Islam is fundamentally different from that of West. - Eds.
Concept of human rights and their implementation has grabbed unusual attention in the West during the past couple of centuries. In the course of evolution of the concept, a multidisciplinary framework of human rights, laws for their application and mechanisms for safeguarding and guaranteeing them had come into existence. Western experience, spanning over centuries, had finally taken shape of the UN Charter (1945) and the Universal Declaration of Human Rights (1948). The purposes and principles of this charter and the binding conventions based on the Universal Declaration have been ordained for the whole world. People of all cultures and civilizations are expected to abide by them and any diversion is likely to result in penal measures.
It is, however, a fact that despite a detailed framework of rights, their corresponding laws at national and international levels and enforcement mechanisms, the violation of these rights at individual and collective levels is being carried out not only on by individuals but also by states, international organizations, institutions and companies.
Factors causing these violations may be political, strategic, economic or others. The most significant, however, is something more fundamental and inherent in the approach of this paradigm of rights. It is the attempt to universally enforce a scheme of rights which actually is neither universal nor coherent within itself. Actually, any idea, belief or scheme that stems from human mind is bound to suffer from differences, contradictions and shortcomings. As is the case with any individual, each one of the social scientists and philosophers who has ever defined the roadmap for Western societies, had been different from everyone else in many respects. Thus a survey of western philosophy shows deep-rooted differences, even contradictions, among scholars and philosophers on definition, interpretation, preference and practice of natural law and positive law as well as on determination of 'basic norm' for the law.
It is, therefore, no surprise that the contention that the western concept of human rights is universal is subject to serious reservations and questions in the light of their own definitions of, law, legal norms, basic norm and normativity of legal system. Such reservations had, for example, surfaced with full force in 1990 when member states of the Organization of Islamic Conference (OIC) adopted Cairo Declaration on Human Rights in Islam as an alternative to the Universal Declaration of Human Rights.
A look into the current academic, social and political environment and the continuing process of evolution of human rights in the West shows that there is less likelihood that the West may be able to devise a coherent scheme that would remedy the shortcomings and clarify the ambiguities of the current concept and framework of human rights at least in the near future. Till the time a coherent, comprehensive and unambiguous system of rights is subscribed to, or at least the idea that each civilization has the right to uphold, practice and interpret fundamental rights according to its own ideas and ideals, is subscribed to, the Universal Declaration of Human Rights and the rights stemming out of it, may be practiced throughout the world, This would, however, be a temporary makeshift arrangement that would not endorse the universality of these concepts and rights. The gap between 'is' and 'ought' would still remain.
Appreciating the absence of a universal recognition for the Western devised and driven scheme of rights, many Muslim as well as non-Muslim scholars have attempted to draw comparison between the philosophy and practice of rights in Islam and the West with a view to bring the two closer. Such studies often ignore the fact that in the comparative study of similar phenomenon in distinct cultures, not only the ends are important but the means which lead to those ends are equally relevant too. Two distinct cultures or civilizations can reach the similar conclusion regarding some particular issue but the path each of them adopts to reach that conclusion and the basis for it would always influence the attitudes of the people and make the approach of society different. Those who have ventured into comparative study of human rights in Islam and in the West have generally preferred list-matching instead of digging down the fundamentals of each concept and scheme of rights.
Reality, actually, is far deeper than the one shown by these list-matching exercises. Islam is an altogether different paradigm and the whole truth about human rights in Islam cannot be understood unless the rights, and their concepts, are studied in their own context. The fundamental difference lies in the origin of rights as Islam seeks its guidance from Divine sources while the West acknowledges lessons learnt through human experience. Thus the approach and objectives lie far apart and this lead to differences in outlook and behaviors in all areas and aspects of life.
In this context, the following discussion focuses on the concept of human rights in Islam through its own vision.
Concept of the Human Rights in Islam
Closest corresponding word for the English word "right" in Islamic legal corpus is Al-haqq. In discussions about the human rights and their concept in Islam, the scholars - both Muslim and non-Muslim - generally use this Arabic term as a synonym to the term "human rights". This approach is superficial and ignores the philosophical foundations of both the concepts as well as their connotations in their indigenous paradigms. To avoid misperception in academic exercises, it would be appropriate to study the term 'al-haqq' in some detail. This would help explore and elaborate the normative structure of human rights in Islam.
At the very outset, it needs to be stressed that, contrary to development of Western philosophy, Islamic thought has not evolved through a trial and error phenomenon. It is a complete set of divinely revealed instructions sent through Divinely chosen Messengers. Understanding an idea or a concept in Western paradigm would, therefore, require the most recent viewpoint expressed by experts in that specific area of knowledge but in case of an Islamic concept or principle, one needs to revert back to classical sources of Islam.
It also needs to be acknowledged that during the classical period of Islam, neither the concept of human rights had developed in the West nor the comparison of Islam with a different paradigm in this connection was a topic of debate. It is perhaps for this reason that those who try to explore the concept of human rights in Islamic polity do not find a cogent definition of the term haqq in the context of contemporary debate. The classical jurists have explained this subject under the heading of huqooq-Allah (rights of Allah) and huqooq-al-ibad (rights of human beings) as enshrined in the Islamic law (shari'ah).
The Meaning of al-Haqq in Islamic Legal Corpus
The original meanings of the Arabic masdar (root word) "haqq" have become obscured but can be recovered by reference to the corresponding root in Hebrew where it means: (a) to cut in, engrave in wood, stone or metal; (b) to inscribe write, portray; (c) prescribed, decree, law, ordinance, custom; (d) due to God or man, right, privilege. The word had been used in pre-Islamic Arabic poetry and meant: "something right", "true", "just" and "real". According to Imam Raghib Isfahani, the literal meaning of the word haqq is "conformity and complete compatibility, as the socket of a door sets in with its counterpart and help in rotating the door firmly at its axis".
When a masdar is used as an adjective, it denotes presence of the referred quality in something, an expression or a person to the utmost degree. So the word haqq, when used as adjective, gives the meanings of "just", "certain", "true", "truthful", and "what is as it ought to be".
When used as a noun, it gives either of the following meanings: "right, claim, truth, reason, obligation, worth, price, reward".
Thus primary meaning of haqq is"an established fact" (and therefore "reality") and its secondary meaning is "truth".
The Word al-Haqq as used in the Qur'an
The word al-haqq in all of its declensions is used in the Qur'an 160 times; with different connotations of its dictionary meaning:
1. As "proven fact":
The word is proved true against the greater part of them; for they do not believe.
2. As "ultimate truth" in following two verses:
That He might justify truth and prove falsehood false, distasteful though it be to those in guilt.
And say: "Truth has (now) arrived, and Falsehood perished: for Falsehood is (by its nature) bound to perish."
3. As "obligation":
For divorced women maintenance (should be provided) on a reasonable (scale). This is a duty on the righteous.
4. As "right":
And in their wealth and possessions (was remembered) the right of the (needy), him who asked, and him who (for some reason) was prevented (from asking).
5. For Allah:
This is so, because Allah is the Reality: it is He Who gives life to the dead, and it is He Who has power over all things.
For actions of Allah:
It is He who made the sun to be a shining glory and the moon to be a light (of beauty), and measured out stages for it; that ye might know the number of years and the count (of time). No wise did Allah create this but in truth and righteousness. (Thus) doth He explain His Signs in detail, for those who understand.
7. For Prophet Mohammed (peace be upon him):
How shall Allah guide those who reject faith after they accepted it and bore witness that the Messenger was true and that Clear Signs had come unto them? But Allah guides not a people unjust.
8. For Qur'an, itself:
Those who believe know that this (Qur'an) is truth from their Lord.
9. As the message contained in the Qur'an:
The truth (comes) from thy Lord alone; so be not of those who doubt.
10. Used for the message of Islam:
It is He Who hath sent His Messenger with guidance and the religion of truth, to proclaim it over all religion, even though the pagans may detest (it).
Opposite of al-Haqq
One fundamental principle for determining the meaning of something is to discuss it with reference to its opposite. A famous Arabic maxim states this fact in the words: (Things are identified through their opposites). It is perhaps for the same reason that Lisan al-Arab defines the word in these words:
i.e. al-haqq is opposite of falsehood.
Qur'an has also used al-haqq in the meaning opposite to "dalal" (error) and "batil" (evil) with the connotation that anything opposite to or in opposition of al-haqq is false and hateful hence forbidden:
Such is Allah, your real Cherisher and Sustainer. Apart from truth, what (remains) but error? How then are ye turned away?
Ye people of the Book! Why do ye clothe Truth with falsehood, and conceal the truth, while ye have knowledge?
Technical Meanings of al-Haqq
The word al-haqq thus means differently in different contexts but definitely retains its one core meaning. In theological debates, for example, the world would generally mean differently from a legal context. The experts of Islamic law (fuqaha) define the word as:
Al-haqq (pl. huquq), is the right - opposite of falsehood.
Proven fact which cannot be denied.
Al-Haqq Meaning the Right
While theoretically the word al-haqq may have a number of other meanings, when used in the practical sense, it generally means "right" and has been defined in following words by different Muslim scholars:
Al-haqq is a judicial norm, which is proved by the Shari 'ah.
The definition is further elaborated as:
Al-haqq means an interest of a person established by law or Shari'ah.
This definition explains the purpose of the right (al-haqq) but does not explain the meanings of the right itself because a right establishes a relation between a claimant and his interest which benefits him. Hence another definition is worth quoting:
Al-haqq means the special authority by which the law (Shari'ah) establishes power (over something) or legal obligation (to do an act).
The right in this definition includes the religious rights (acts of worship); the civil rights (like right of ownership); moral rights (like obedience to parents), and public rights (like right of public to have good governance); fiscal rights and non-fiscal rights (like right of guardianship), etc.
This definition associates right with its claimant as the rights of a seller are associated with the prices specifically. If the right is not specified to someone then it cannot be called as a right of somebody and it will become a thing of public utility.
The rights in Islam are the permissions of Allah Almighty from which the norms of the Shari'ah evolve. Without this legal basis, there no right can exist. Therefore, to establish a right, two compulsions are to be fulfilled:
(a) A general compulsions over society or the public at large to respect the right of an individual and not to violate this principle; and
(b) A specific compulsion over the person who owns some rights that he must use his right in such a way that it will not hurt the others.
Al-haqq means an interest of an individual or society or of both together established by the Lawgiver, the Wise.
The right in Islam means the authority recognized by the law to control in a particular way the actions of a person against whom it exists; the latter being obliged to act as required.
Fakhr-ud-Din Razi defines the right as:
The rebuttal of which is not possible is al-haqq.
Ibn-Nujaym has defined it as:
"the entitlement of a person to a thing."
Ibn-Nujaym has also described the exclusivity of a right, terming it:
"an exclusive assignment."
This last expression looks quite exhaustive because an exclusive claim or the assignment in favor of a right receiver is a basic ingredient of the general concept of al-haqq in the Islamic law in the eyes of the jurists (fuqaha). For Muslim jurists, al-haqq is related to claim in the court of law.
Another definition is given by Muhammad Musa as:
"a benefit (maslihah) which the Lawgiver has granted to the individual, or the community, or both."
This definition is also important because it links the existence of a right with maslihah (benefit), which is a pivotal feature in the normative structure of human rights.
According to Al-Khafif too, al-haqq is "what is proven by the Shari'ah for the benefit of man". Al-haqq itself is established by the Shari'ah and is for the benefit of a person.
Abu Sinnah has defined al-haqq as:
That which is established in the Shari'ah.
According To Shi'a jurist: "Haqq is a power, whether material or spiritual, that the law has granted to a person over another person, property, or both". Every right must have at least one of the three ingredients:
1. It can be waived by the right bearer;
2. It can be transferred to another party; or
3. It can be inherited, even without the express will of the right bearer.
Meaning of Al-Haqq as Viewed by Usuliyeen (the Scholars of Usul al-Fiqh)
Usuliyun, the scholars of Islamic jurisprudence (Usul al-Fiqh) have discussed al-haqq from a slightly different perspective from scholars of Islamic law (fuqaha). They discuss al-haqq under the topic of mahkum fih (the subject matter of the commands of Shari'ah). Due to this approach of the Usuliyeen, it is sometimes perceived wrongly by Muslim and non-Muslim scholars that the whole scheme of rights in Islamic law is obligation-oriented instead of right-based. To understand the approach of the Usuliyen it seems appropriate that we should have clear understanding of the meaning of the 'command of Shari'ah' or the Hukm Shar'i along with its necessary ingredients.
Hukm Shar'i can be translated as: injunctions of Islam, Commands of Allah, or the Shari'ah values. A Hukm Shar'i contains following three necessary elements:
1. The source of any Hukm-i-Shari'ah (command of Islamic law) is Hakim, shar'e or the Lawgiver, i.e., Allah the Almighty. He is the one from whom the communication (khitab) originates.
1. The second element of a Hukm Shar'i is the one for whose benefit a command has been given. Such person or class of persons is called Mahkum fih (subject matter of the ruling).
2. Third and the last element is Mahkum 'Alayh, i.e., the person upon whom the obligation has been rested. A Hukm requires a person (mahkum 'alayah) to act in a prescribed manner, he is also known as the mukallaf (subject) or the person who has legal capacity to act directly or through some delegated authority.
The Crux of all Definitions and Interpretations
After an overview of different meanings, connotations, interpretations and definitions of the word "al-haqq", its two meanings emerge to be covering all its other technical meanings in legal sense and these are:
1. the proof ; and
2. the obligation
On the basis of all the above-mentioned literal and technical meanings and usage of the word it can be defined as follows in legal sense:
"Al-haqq is a proven obligation or an established claim of any person or group of persons, whether real or legal, upon any person or group of persons in complete conformity with the express or implied, dictates of Shari'ah."
Elements of a Right
There are three necessary elements of al-haqq, namely:
1. The source of the right, i.e., Masdar al-haqq or al-Shar'e
2. The person upon whom a right or al-haqq is vested, i.e., Sahib ul haqq.
3. The person or thing with which the right is attached, i.e., Mehal ul haqq.
In this triangular relation of Masdar ul Haqq, Sahib ul Haqq and Mehal ul Haqq, the only constant is Masder ul Haqq; the other two are variable.
Masdar ul Haqq: Masdar ul haqq means the norm sender or the source of the right. The norm sender is, obviously, Allah Almighty. He, being the source of all the rights, is the cornerstone of the Islamic concept of right. He deserves and enjoys this position because He alone is al-haqq; the revelation that He sent is al-haqq, the Prophet upon whom that message was revealed is al-haqq and the message al-Qur'an too is al-haqq.
Sahib ul Haqq: Sahib ul Haqq means "norm receiver" or a person who possesses a right and has the authority to claim a right vested in him by the dictates of Masdar ul Haqq. The right holder, or the Sahib ul Haqq, may either be a person, a group of persons (for instance, a society, the government or the rights sender, Himself.
Mehal ul Haqq: Mehal ul Haqq means the "norm object" or the person or body from whom the right is to be claimed. An individual, group of people, society, government or even the right sender Himself may be Mehal ul Haq.
Governing Principle of Islamic Human Rights
The normative structure of Islamic human rights is governed by following four principles:
1. Rights are given by Allah.
2. There is a hierarchy in rights.
3. Rights are based on certain norms
4. Rights have some corresponding duties.
5. These principles are briefly introduced below:
Source of "Right" in Islamic Law is Allah
As has been noted above, the source of any right or al-haqq is the Lawgiver, i.e., Allah. He is the only cause of existence of any right. No right can emerge or exist merely through humanly sources. The Lawgiver sanctions some rights in connection with certain incidental factors, e.g., the rights accrued due to marriage, inheritance, etc. Such factors may also be counted as sources of rights but the rights accrued through them ultimately originate from Allah. Thus the five sources of legal rights which Shari'ah permits with regard to compulsion or obligation, are the following:
(i) Command of Allah, the Lawgiver;
(iii) Intention of a person;
(iv) Acts of benevolence;
(v) Acts that causes damage.
Non-Alienability of Rights
One obvious consequence of rights being originated from Allah is that all human rights are guaranteed by the Ultimate Authority. Therefore, no man or woman can ever curtail or suspend these rights. Hence all human rights are inalienable. No ruler, executive or judicial authority or even the masses can curtail the rights of any person. The rights can only be curtailed in the result of an act done, positive or negative, by the right holder. Hence the alienability or inalienability of any human right depends upon none but the person himself.
Sovereignty in Islam
Another striking feature of Islamic scheme of rights in comparison to the Western concept should also be mentioned here. The Western political and legal history rotates around the question: "upon whom does the sovereignty rest?" Contrarily, the al-haqq is neither granted by society, nor by the state or an international body; the right is created by the God, the creator of humans. This concept is so clear that throughout the checkered Muslim history, the question of sovereignty has never arisen.
Hierarchy in Rights
The Shari'ah aims at certain clear objectives (maqasid). Imam Ghazali, Imam Shatbi and many other scholars have mentioned five basic objectives of the Shari'ah. Briefly, the Shari'ah aims at preserving:
4. Intellect; and
In exercise of rights, these objectives have to be upheld in order of preference which, generally, is the same as listed above but one objective may take precedence in certain situation over another.
Similarly, Shari'ah defines certain rights as Darurat (necessities), others as Hajat (needs) and still others as Tawassu' and Taysirat (ease and facilities). These have to be observed in the same sequence. This hierarchy of rights maintains equilibrium and balance between every class of norm receivers and norm objects.
In the detailed scheme of rights and their normative structure, the priorities have been assigned not only with respect to the rights but also with respect to the right holder. In this scheme, everyone possesses rights but no one has a right above Allah's rights. Among the human beings, there are rights of parents, spouses, children, relatives within family. There are rights of neighbors, employers, employees and even of animals, resources and objects in the society. Among these are rights of Muslims and of non-Muslims. Then there are rights of society, the state and the government. In case of a conflict between two rights of a person or simultaneous rights of more than one individuals, the question of priority becomes relative.
Norms Govern Rights
The governing norms of human rights include justice, equity, equality, consistency, certainty, transparency, freedom and self-determination. Thus the rights of equality before law, right to life, protection from arbitrary arrest and detention, freedom to profess religion etc. become unassailable. Some rights, despite being inalienable in form and nature, lose their inalienability on breach of a corresponding duty. For example, the guarantee to the life of an individual vanishes the moment he infringes the right to life of another.
Duties Associated with Rights
Islamic law (fiqh), in its entirety aims at the best interests of the individuals and the community. Acts which are beneficial are desired, and those which are harmful have been prohibited. Hukm Shar'i is the communication from the lawgiver (Allah) concerning the conduct of Mukallaf (on whom law is applicable), which may be in the form of a demand or an option or only as an enactment. Obligation or duties in Islam are of two types:
1. Negative duties: mandatory abstention (Haram)
2. Positive duties: mandatory practice (Fard)
The negative duties (haram) are the binding demands of lawgiver to abandon something. Prohibition has been classified into:
a) Haram li-dhatihi (which is forbidden for its own sake such as wine, gambling); and
b) Haram li ghayrihi (which is forbidden for an external reason such as, marrying a woman only to make her legal for another man (tahlil).
The legal consequence of breach of a negative duty may be in the form of losing some right like the right to life a murderer losing its inalienability.
Islam ordains certain obligations to perform certain acts. These positive duties are known as Fard or Wajib. Every positive duty gives rise to certain liberties. For example, the obedience of Allah, the Prophet (PBUH) and the ruler is obligatory upon the individuals living in an Islamic state (according to their status and capacity). In result of this obedience, an individual obtains the right to protection of his rights by the state. The moment an individual disobeys the ordainments of Allah, the Prophet or the Islamic government, his or her liberties which are otherwise guaranteed under Shari'ah may be curtailed.
Classification of Rights by Usuliyeen on the Basis of Hukm al-Shar'i
While explaining the nature of hukm (command), Usuliyeen classify the rights under the definition of Mahkum fih or the act to which the hukm is related. They generally divide the rights into following kinds:
1. The rights of Allah (huquq Allah)
2. The rights in which the rights of Allah and rights of men combine.
This category is further divided into two categories:
One. Those in which the right of Allah is predominant; often termed as rights of Allah and men combined.
Two. Those in which the right of the individual is predominant; often termed as rights of men and Allah combined.
3. The rights of humans (huquq al-ibad)
These categories of rights are briefly elaborated below:
Rights of Allah
The rights of Allah are defined as:
"The rights which comprehend a public benefit, not peculiar to any individual." These rights are referred to Allah because of the greatness, significance and generality of their benefits."
Rights of Allah include the following eight types:
(a) The simple and pure acts of worship (ibadat mahdah or khalisah): The first and foremost among these is the faith or Iman. The rest like obligatory prayer, fasting in the month of Ramadan, obligatory alms, Hajj, Jihad, umra, etc. are consequential upon Iman. In an Islamic state the facilitation of pure act of worship is the foremost duty or the obligation of State, conversely it is the right of each individual of the society that he can claim the services from the state for the facilitation of 'Ibadat. These acts of worship are of course not demanded from non-Muslim citizens of a Muslim state.
(b) Pure punishments of "perfect nature", ('uqubah kamilah or mahdah) which include Hudud punishments. They have been instituted by Islam as deterrents and for the welfare of whole society therefore they are regarded as pure rights of Allah and cannot be waived by aggrieved party and have to be executed by the competent authority.
(c) Punishments of "imperfect nature" ('Uqubat qasirah); these are also known as jaza or retributions. In fact these are not the punishments for commission of some crime intentionally by a sui juris but normally it is awarded to a person as consequences of his illegal act apart from the punishment of pure and perfect nature. The best example is exclusion from inheritance of the murderer for the murder of his legal predecessors. The establishment of these punishments is as necessary and beneficial for the society as the establishment of those penalties which are of perfect nature.
(d) Those matters which vacillate between worship and punishment, (al-dai'r bayn al 'ibadah wal 'uqubah). In Islam there are certain religious obligations the non-fulfillment of which renders a man liable for fine. But this payment of fine is considered as the compensation for failing to perform an obligation. The best example are the kaffarat or the act of expiation for different reasons.
(e) Those acts of worship which contain element of financial liability (Ma'unah). The alms giving at the end of Ramadan (sadqat al fitr) is one of its example.
(f) Financial liability in which there is an element of worship, like the specific share out of agriculture produce, i.e., 'Ushr.
(g) Financial penalties
(h) The rights that exist independently (Haqq qa'im bi nafsih). There are three kinds:
One: those laid down initially as a rule
Two: those that are imposed as an addition to a rule; and Three: those that are associated with the initial rule.
When the rights of Allah and the rights of humans combine
The two categories of such rights are discussed below, briefly but separately:
Rights of Allah and Men Combined
These are the affairs in which the rights of Allah and the rights of individual lie side by side but the rights of Allah predominate. The classical jurist have given the example of hadd of qadhaf, but interestingly enough Imam Shaf'ai is of the opinion that it is the right of individual solely. Apparently these two are contradictory opinions but if we see in depth it transpires that this contradiction is merely apparent. The punishment to qadhaf is hadd and as such it is purely a right of Allah like any other hadd. When a person commits a crime of qadhaf against another person, in a relative term, the state does not possess any yardstick to measure whether qadhaf has been committed, unlike other crimes punishable with hadd. In this specific sense it is the right of an individual (as Imam Shaf'ai opines) and when someone claims before an authority of the state that qadhaf has been committed then it becomes obligatory for the state to enforce the corresponding penalty like any other right of Allah in the state.
Rights of Men and Allah Combined
These are the affairs in which the rights of Allah and the rights of individual lie side by side but the rights of individual predominate. The best example of this nature of rights is qisas, whereby a person has the authority to take revenge, forgive or compromise for the hurt caused to his body, and the heirs of someone slain have similar rights.
Rights of Human Beings or Human Rights
This category includes all those rights which are not covered in the above-mentioned categories. It is difficult to enumerate them all. However, they can be categorized as:
1. Right to life.
2. Right to property.
3. Right to honor.
4. Right to protection of intellect.
5. Right to belief.
6. Rights created through contract.
7. Right to do lawful acts (tasarrufat.)
8. Right not to do unlawful act.
An Islamic state is under legal obligation to do all the necessary acts to promote or facilitate these rights of individuals. This duty of the state is
known as duty to ordain the good (amr bi al-m'aruf) and to prevent the vice (nahi 'an al munkir).
Implementation of the Rights in Islam
After introducing the concept and classification of right in Islam, it seems pertinent that we briefly discuss the framework of implementation in Islamic paradigm of life.
Human Rights and the Relations of the State and the Government
In Islamic scheme, the state and the government are distinct entities. The separation of state and the government clearly prescribes the scope and limitations of an Islamic government. Since Allah is the Creator, everyone and everything belongs to Him. The status of the government is that of a trustee responsible for regulating the state and governing its inhabitants according to dictates of Allah. This is the reason the government is called khilafah (caliphate) in Islam because khalifa (caliph) is the vicegerent of Allah on earth and his duty is to impose the dictates of Allah. Thus the rights conferred by the Ultimate Sovereign, Allah, are implemented by the government.
Claimable and Non-claimable Rights
With respect to implementation of rights, they are of two types: claimable and non-claimable.
There are certain rights which can be claimed for enforcement through the force of law. Among them are those claimable by individuals like rights to life, property, modesty, rights accrued from contract etc. and there are rights claimable by community as a whole, including right to be ruled according to principles of Islam, right to participate in political activities, right to hold the government accountable, right to claim promotion of objectives of Shari'ah, and right to claim establishment of sadd al dhara'i' (preventive measures).
There are rights among huquq al-'ibad which are non-claimable or, to be more precise, these are non-justiciable rights. They are of a moral or social nature, such rights of neighbors, parents, children, teachers, students etc. It is, however, pertinent to mention that Islam gives more stress on non-justiciable rights and aims at building a sense of responsibility within the members of society to respect rights of others. The corresponding chart shows how the justiciable human rights in Islam are balanced with their corresponding duties, liberties and claims.
Six Modules of Islamic Normative System of Human Rights
During implementation of rights in the triad of norm giver, norm receiver and norm object, the following possible situations emerge as a normative structure of human rights:
1. The source of norm is Allah, the norm receiver is an individual and the norm object is the government (the rights of an individual in an Islamic state). As such, all these rights are justiciable.
2. The source of norm is Allah, the norm receiver is an individual and the norm object is the society (the rights of individuals in an Islamic society) In this case, most of these rights, but not all, are justiciable.
3. The source of norm is Allah, the norm receiver is the society and the norm object is the government (the rights of the society at large as against the government). In this case too all of these rights are justiciable.
4. The source of norm is Allah, the norm receiver is the society and the norm object is an individual (the rights of the society at large as against individual) In this case, majority of such rights are non-justiciable.
5. The source of norm is Allah, the norm receiver is the government and the norm object is an individual (the government as against every individual of the state) In this case, all these rights are justiciable.
6. The source of norm is Allah, the norm receiver is the government and the norm object is the society (the rights of government as against the public at large). In this case, majority of these rights are justiciable.
The collective intellect of the west has evolved a concept of human rights after according to their experiences in their specific political, economic and social conditions. Since this concept has emerged through a contribution of several scholars at different times and places, it inevitably suffers inherent contradictions and flaws.
Islam has a long and consistent tradition of human rights which Muslim societies have been practicing for centuries when the notion of human right was not even known to the west. The word in Islamic Shari'ah, which has the corresponding meanings of 'right' is 'al-haqq'. The word al-haqq carries numerous meanings in literal and technical sense but the connotation in which it is generally used by the classical jurists is 'established fact'.
Islam's scheme of human rights is normative in form, and logically sets in the larger picture of Islamic ideology of governance. All types of human rights are intertwined in the Islamic polity and they operate jointly and separately within a normative scheme. There relations and priorities, inter se, are well defined within the triad model of norm sender, norm receiver and the norm object. The equilibrium of the whole setup is maintained by two progressive and dynamic concepts of the Shari'ah: "Maqasid al-shari'ah" and "Sadd al-dhara'"".
The experts of Islamic jurisprudence (Usuliyeen) have explained al-haqq under the heading Hukm-e-shar'i (divine command), which is the basis of all human rights. They have discussed al-haqq from the angle of its components, that is, the norm sender, the norm receiver and the norms object. The Usuliyeen have classified al-haqq, in two categories, huquq Allah (rights of Allah) and Huquq al-'Ibad (rights of the people), which help in understanding the concept of justiciable (claimable) and non-justiciable (non-claimable) rights. The explanation of the Usuliyeen is so comprehensive that a whole schema (diagrammatic representation) of Islamic human rights concept can be explained on its basis in the context of modern politico-legal set-up of a state. When this scheme is systematically analyzed and elaborated, whole normative structure of Islamic human rights emerges from it. By explaining the six normative modules of Islamic human rights the whole schema becomes understandable.
It carries the clarity and lucidity that the contemporary Western concept of human rights lacks.
In view of this study, the following two concepts may be clarified:
First, that every civilization and culture is distinct in nature. During the interactions between members of different cultures and civilizations, mutual learning and gradual change is inevitable with the passage of time and variations in circumstances. But any effort to impose the ideas and ideals of one civilization upon another is bound to invite conflicts, resistance, misunderstandings and confusions. Particularly, the concept of human rights in the West does not qualify claim of universality as it is not shared by everyone even at home. The approaches and interpretations of western scholars diverge from each other almost at every point. They are not merely different but at times contradictory too. Islam, on the other hand, offers a system that is coherent, not only theoretically but also practically and has, on the basis of divine guidance, settled the issues at the very outset for which the West is still lacking agreement.
Second, that every system has to be understood and discussed in its specific context. No system, that is distinct in its nature, can be analyzed and judged at the yardstick of another system. Islam's concept and framework on international law cannot, therefore, be studied through list-matching exercises. It has to be read, understood and analyzed in its own specific context.
The following two charts may be useful in understanding this.
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* Dr. Syed Mohammad Anwar is Advocate, Supreme Court of Pakistan and Senior IPS Associate. The author thankfully acknowledge the assistance of Mr. Nadeem Farhat Gillani in preparation of this article.
1 See for example, Azzam, Universal Islamic Declaration of Human Rights.
2 Al-Zarqa, Al-Madkhal al-Fiqhi al-Aamm.
3 Kamali, "An Analysis of Right (haqq) in Islamic Law," 341-65.
4 MacDonald, "Hakk," 82.
6 Isfahani, Mufardat al-Qur'an.
7 Caspari, A Grammar of the Arabic language; Al-Qazwini, Mu'jam maqayis al-lughah; Chirthawli, Kitab us Srf.
8 B'albaki, A Modern English; see also, Salmone, An Advanced Learner's Arabic-English Dictionary.
9 Wortabet, Wortabet's Arabic - English Dictionary.
10 Al-Jurjani, Kitab al-Tareefat, 121 -23.
11 Abul-Baqi, Al-M'jam al-Mufras li alfad al-Qur'an al-Karim.
13 Al-Qur'an, 36:07.
14 Al-Qur'an, 08:08.
15 Al-Qur'an, 17:81.
16 Al-Qur'an, 02:241.
17 Al-Qur'an, 51:19.
18 Al-Baydawi, Tafsir al-Qur'an al-karim, see Tafseer of 10:32.
19 Al-Qur'an, 22:06.
20 Al-Qur'an, 10:05.
21 Al-Qur'an, 03:86.
22 Al-Qur'an, 02:26.
23 Al-Qur'an, 03:60.
24 Al-Qur'an, 09:33.
25 Ibn-Manzur, Lisan al-'Arab.
26 Al-Qur'an, 10:32.
27 Al-Qur'an, 03:71.
28 Qil'aji, Mu'jam Lugha al-Fuquha Arabi.
29 'Ankawi, Hashia Qamar al-Aqmar 'ala Sharah al-Minar.
30 Al-Khafif, Al-Haqq wa al-Zimmah, 32.
31 Al-Zarqa, Al-Madkhal ila Nazarya fi al-Fiqh, 10.
32 Yusuf, Al-Fiqh al-Islami, 211.
33 'Abdul Rahim, Principles of Mohammedan Jurisprudence, 57.
34 Al-Razi, Miftah al-Ghaib, 354.
35 Ibn-Nujaym, Al-Bahr al-Ra'iq Sharh Kanz al-Daqa'iq.
37 Musa, Al-Fiqh al-Islami, 21.
38 Al-Khafif, Al-Haqq wa al-Zimmah.
39 Sinnah, "Nazaryat al-Haqq."
40 Tabataba'I, Bilaghat al-Fiqh, 3.
41 Al-Naini, Munyat al-Talib, 41.
42 Hasan, Principle of Islamic Jurisprudence, 23; Nyazee, Outlines of Islamic Jurisprudence; Hassan, An Introduction to the Study of Islamic Law; Kamali, Principles of Islamic Jurisprudence.
43 Hasan, op.cit., 230-49.
44 Ibid., 251-60.
45 Ibid., 292- 4.
46 Al-Zuhaili, Al-fiqh Al-Islami wa Addilatahu 8; Al-Zuhaili (a), Nazariyyat al-Darurah al-Shari'ah, 50.
47 This is important as Islam acknowledges the rights and legal claims of groups of the persons such as women, slaves and minorities. This acknowledgment and recognition of rights of specific groups and classes of people in a society has, inter alia, helped the Islamic society to ultimately eliminate slavery centuries before the West could do it.
48 In current context, the mention of legal person is also important in the definition. The classical literature of Islamic law and jurisprudence, however, does not recognize artificial person.
49 The conformity of a claim with the dictates of Shari'ah is also necessary because any claim which is prima facie valid but lacks conformity of Shari'ah cannot be called as right or al-haqq. The claim of a Muslim against another person regarding the sale proceeds of wine or swine cannot be termed as a rights matter because the sale and purchase of wine or swine is not permitted by Shari'ah.
50 Ibid., 41.
51 Mohammed, Usul al-Sarakhsi, 120.
52 Hassan, Al-Hukum al-Shar'i 'inda al-Usuliyyin.
53 Abdul Rahim, op.cit.
54 Al-Zuhaili, op.cit.
55 Qadhaf, technically is wrongful accusation of adultery/fornication.
The contention that the western concept of human rights is universal is subject to serious reservations and questions in the light of their own definitions.
Islam is an altogether different paradigm and the whole truth about human rights in Islam cannot be understood unless the rights, and their concepts, are studied in their own context.
Islamic thought has not evolved through a trial and error phenomenon. It is a complete set of divinely revealed instructions sent through divinely chosen Messengers.
While theoretically the word al-haqq may have a number of other meanings, when used in the practical sense, it generally means "right".
The rights in Islam are the permissions of Allah Almighty from which the norms of the Shariah evolve.
It is sometimes perceived wrongly by Muslim and non-Muslim scholars that the whole scheme of rights in Islamic law is obligation-oriented instead of right-based.
"Al-haqq is a proven obligation or an established claim of any person or group of persons, whether real or legal upon any person or group of persons in complete conformity with the express or implied, dictates of Shariah".
One obvious consequence of rights being originated from Allah is that all human rights are guaranteed by the Ultimate Authority. Therefore, no man or woman can ever curtail or suspend these rights.
The legal consequence of breach of a negative duty may be in the form of losing some right like the right to life; a murderer losing its inalienability.
Some rights, despite being inalienable in form and nature, lose their inalienability on breach of a corresponding duty.
An Islamic state is under legal obligation to perform all the necessary acts to promote or facilitate the rights of individuals.
Islam gives more stress on non-justiciable rights and aims at building a sense of responsibility within the members of society to respect rights of others.
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|Date:||Jun 30, 2013|
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