Jamal Eddin Draiwill: Professor of Modern Civilisation and History of Thought, Faculty of Letters and Human Sciences – Kairouan
President, “Muntadā al-Thaqāfah wa al-Ḥiwār (Culture and Dialogue Forum)”
Editor-in-Chief, “Majallat al-Ḥayāt al-Thaqāfiyyah”
The human being is considered [Islamic] legislation’s ultimate end; as it remedies his condition, in both reasoning and actions, and reforms his setting and world—given they are the domain where he exercises such reason and actions. Thus, securing the Supreme Legislator’s objective of freeing the human being from submitting to other than God (Allāh), and succumbing to vain desires and false notions; in addition, propagating good and virtue, and establishing justice and equity, to the point of perfecting human meanings in the individual, and elevating the human collective to the peaks of urbanisation and civilisation attainable in each era.
On this basis, the human being in the Islamic frame of thought, on one hand, is person of truth and liberty; Islam perfects the founding elements of his dignity, in the dimension of independent will and free mind, so that choice and consent are the basis for performing his function as Allāh’s vicegerent (khalīfah) on Earth. This ensures that execution is marked by excellence and quality, following a sustained and rising trajectory; so that the human being is not crippled, or swept into corrupt and destructive acts. On the other hand, he is person of duty and responsibility, where his intrinsic drivers of positivity are purified and promoted, manifesting in a pursuit of good, and contribution to the efforts of civilising earth and multiplying its fruits, in collaboration with others on the basis of virtuous actions and righteousness.
The Noble Qur’ān laid the foundation for the principle of human dignity applicable to all humans, Muslim and non-Muslim alike; in this respect, Allāh, the Almighty, unequivocally says :
“We have honoured the children of Adam and conveyed them on land and sea, and provided them with good things, and favoured them greatly over many We have created” (Sūrat al-Isrā’ 70).
This represents a fundamental principle for individual rights and freedoms assuring human dignity. Therefore, after deliberation and examination, it is clear that every right announced in universal human rights declarations supports and sustains human dignity, and preserves and cultivates the intrinsic meanings of humanity, as a legitimate right, and commended acquisition. As such, every violation whether borne of denial or prohibition, in subtraction or impairment, is a religious offence and civic wrongdoing, drawing condemnation and punishment.
In light of the foregoing, this paper compares some articles appearing in human rights resolutions, namely the Universal Declaration of Human Rights (dated 10 December 1948CE) and the Abolition of Forced Labour Convention (dated 25 June 1957CE)1 on the one hand, to Islamic law objectives (maqāṣid) relating to individual rights and freedoms, on the other. The aim is to determine the extent of their agreement or otherwise.
1 – The origins of individual rights in the Universal Declaration of Human Rights (December 1948CE) in light of Islamic law objectives:
The foundation of individual rights included in the Universal Declaration of Human Rights is traceable to the European Renaissance. In particular, the concepts emerging from what is known as “humanism”, which appeared in the late fifteenth century, developing fully in the sixteenth and seventeenth centuries.
The Italian cleric, Pic de la Mirandole, was one of the most prominent representatives of this movement in the late fifteenth century, publishing his book, “La dignité de l’homme (The dignity of man)” in 1486CE. In it he says: “I have read in the books of the Arabs that in this universe we may not find a creature more fascinating than man”2. He confirmed that belief in human dignity is deeply rooted in Arab-Islamic culture, despite its recession in that culture’s middle era. Indeed, oppressors, tyrants and the politically-devious had usurped control of the Muslim nation’s (Ummah) affairs, heralding an era of pervasive stagnation, blind imitation, and knowledge-centred bigotry. The confluence of these factors created a climate, where human dignity was all but quashed. The human being was cast into the depths of darkness and oblivion, to the benefit of rulers’ inflated image and status; at times, awarding them status akin to the Almighty.
The Bill of Rights announced by the American revolutionaries in 1776CE, and the Declaration of the Rights of Man and of the Citizen espoused by the French Revolution in 1789CE, and other similar laws appearing in quick succession in European societies, were the decisive juncture for codifying individual rights in contemporary modern society, taking them from theoretical possibility into reality.
Indeed, if there are any merits to the eighteenth century, (‘the century of lights’), then transporting the issues of freedoms and rights from the domain of philosophical discourse to applied practice would be the most notable.
Turning to the Islamic law objectives concerned with the human being, we find that Islamic legislation’s purpose was to elevate the human (individual) by perfecting their innate meanings of humanity, through working to deliver the material and moral conditions that secure his dignity in real life. Similarly, it elevates the human (collective) by promoting those factors that build communal resolve in engendering mutual acquaintance and collaboration in doing good and upholding piety; these represent the enabling factors for accomplishing grand schemes and noble enterprises that safeguard stability, drive the glory, and maintain the greatness of the human collective.
In this context, in the exegesis of Allāh’s saying: “O’ You who believe, respond to Allāh and the Messenger when He calls you to what will grant you life!” (Sūrat al-Anfāl 24), Imām Muḥammad al- Ṭāhir b. ‘Āshūr said: “granting life is to provide the human being with those things that perfect him, through enlightening minds and signalling noble manners, and those things that improve the individual and society… Valour is life for the soul, independence is life, freedom is life, and sound living conditions are life”3.
One cannot help but note that Ibn ‘Āshūr’s four part classification of the components of life with dignity, included life’s material (sound living conditions) and moral (freedom, independent will and valour) dimensions.
In the chapter on Islamic legislation’s general objective in his book “Maqāṣid al-sharī‘ah al-Islāmiyyah”, Ibn ‘Āshūr explains that Islamic legislation’s prime objective is: “the human being’s rectitude through integrity of his mind, his deeds, and what he holds of the world’s assets (the environment)”4.
As a corollary to what Ibn ‘Āshūr says, everything that purifies and elevates human intellectual abilities, and supports man’s independent will and free choice, is considered a legitimate right, whose acquisition is highly commended. Indeed, the purpose of establishing Islamic law is to “take the person charged with religious duty (al-mukallaf) from being the object of his own desire to being Allāh’s servant by choice, as he is Allāh’s servant by necessity”5, as phrased by Imam al- Shāṭibī in “al-Muwāfaqāt”. Indeed, choice presumes intellect and freedom.
As such, Islamic legislation’s rulings were directed towards man’s purification (morally), and developing his living conditions (materially). These two aspects are essential and complementary in purifying man’s humanity, securing his dignity and developing his character.
Islamic law rulings also set about eradicating all forms of trespass on human dignity, such as oppression, subjugation, intimidation, harshness, and cruelty in all its variations; this is articulated by the noble Qur’ān verse: “…and relieving them of their burdens, and the chains that were around them” (Sūrat al-A‘rāf 157).
In the exegesis of this verse, and in the context of elucidating the meaning of ‘burden’ and ‘chains’, Ibn ‘Āshūr said: “a metaphorical representation indicating man’s emancipation… from the wickedness of despots, the humiliation of leaders, and the cruelty of the powerful towards the weak.”6
Hence, the Islamic message’s objective is to eradicate all types of oppression, degrading treatment and cruelty that violate human dignity; and emancipate humans, individually and collectively, from all forms of subjugation and exploitation. The human being cannot execute his role (as Allāh’s vicegerent on earth), while divested of freedom, dignity and independent choice. Indeed, broken, humiliated persons cannot be expected to shoulder the burden of the noble endeavour forged in honour and strength, which Allāh, the Almighty, wishes for His believing servants: “… All honour and might belong to Allāh, to His Messenger, and to the believers” (Sūrat al-Munafiqūn 8).
2 – Examples of individual rights in the Universal Declaration of Human Rights (10 December 1948CE) in light of Islamic law objectives:
Article 1 of the Universal Declaration of Human Rights states that: “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood”.
This fundamental article was grounded on the fact that human beings are free by virtue of being “born free”, and indeed, dignity and rights are assured to them in equal measure, without discrimination on the basis of religion, race, gender, or geographical, social or tribal affiliation. Conventional wisdom dictates that human beings should act towards one another, in the first instance, in the spirit of human brotherhood arising from the common origin; secondly, in possessing the common traits of intellect and talents, by which to explore and build the world, which demands equality in terms of dignity and rights. Thus, any conditions contrary to this principle represent a deviation from the norm, requiring a response or rebuttal, fitting to the particular deviation’s nature, background, and context.
On this same basis, Ibn ‘Āshūr explains that: “Freedom is an innate description on which human beings are created at the very first moment of their genesis and existence on earth. It is a basic foundation of the human being.”7
According to Ibn ‘Āshūr, the human being is free by virtue of the origin of his existence. Freedom is intrinsic to him ever since he was found on earth and started life. Ibn ‘Āshūr goes further to say that this principle is a pivotal point upon which human urbanisation is founded8. This dictates that “no limits should be imposed on freedom other than those that prevent established harm from befalling the person”9. In his view, any violation of freedom is a trespass on the human personality, in its core and essence, seen from one perspective; from another perspective, it is a trespass on human urbanisation and civilisation, which may only rise and progress towards its long-term aims through freedom.
Article 4 states that: “No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms”. We note that Article 4 is intimately linked to Article 1; indeed, it is among those prerequisites by which Article 1 may be realised in the real world. All forms of treatment of human beings that deny them their freedom and degrade their dignity are proscribed and forbidden. Civilised human society is invited to eradicate such practices, and block those means (sad al-dharāi‘) by which they materialise, as well as punish those engaged in them.
In this context, Ibn ‘Āshūr says: “One of the fascinating aspects of Islamic law is its concern for propagating freedom in a consistent manner… Islamic law drew attention to the fact that freedom is life and emphasised that slavery is death… hence, Islam voided all its causes”10.
Thus, Islamic law’s objectives included granting people dominion over their own person. No other human holds any authority over their views, thoughts, or choices. This one aspect of pure monotheistic belief (tawḥīd) is the Islamic message’s most prominent expression and essence. In the words of Prophet Muḥammad’s honourable companion, Rib‘ī b. ‘Āmer, in his spontaneously simple, yet profound reply to the question posed by Rostam, the Persian army commander, about the purpose of this [Islamic] message: “We came to free human beings from the worship of other humans to the worship of Allāh only”.
Article 18 states: “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”.
Freedom of thought and belief is a pivotal cornerstone in the construct of freedom; it is a realistic inherent right obliged by human dignity. Indeed, freedom of thought and belief may be considered the essence of human existence, at the individual and collective levels. Those unable to think freely, nor freely choose their belief are not in the zone of true, actual existence. In that they are not engaged or participating in exploring the world, and experiencing the test of life, in the manner that Socrates, the philosopher of Athens, expressed by saying: “A life without test is not worth living”.
True living, i.e. an honourable life, or true existence, is the human being’s free and rational choice of the type of life they find acceptable. Further, his choice of belief is based on free thinking and independent mind.
It is these meanings that Ibn ‘Āshūr underscores, by saying: “freedom of belief… the broadest of all freedoms in scope, because the devotee to a belief has absolute freedom to think about what they believe in. They roam with conscious volition over an area defined only by proofs and arguments, which are his defining boundaries”11.
While the Islamic message invites Muslims to hold the bond of religion as the greatest of all bonds, it did not make it “grounds for aggression towards those not affiliated, or to negate their right to life or to implement rulings according to their belief”12.
Ibn ‘Āshūr elucidates that the course of Islamic history, in those periods governed by Islam’s tolerant, noble teachings and directives, unsullied by corruption, distortion, and bigotry, only serves to highlight that Muslims “mixed with peoples of diverse religions, coming under their authority—Christian Arabs, Mageans of Persia, Jacobean Copts, Sabateans of Iraq, and Jews of Jericho; they treated all of them in the best way one treats a companion. They learned from, and taught them; they translated their books of knowledge, and granted them freedom to practice their rituals, and respected their religious traditions, and perhaps shared in many of them, as was the case in celebrating the Nowruz, and the immersion festival (‘īd al-ghams) in Egypt”13.
Professor Imam Muhammad al-Khidr Hussain concludes that Islam’s rulings in relation to those living amongst Muslims yet espousing other religions, revolve around “being benevolent towards them, kind to the weak among them, and generous toward their poor, affording them tender words out of gentleness and mercy; tolerating their harms as neighbours, in the vein of generosity and forbearance; all aggression towards them is forbidden, not even a single foul word or backbiting causing one of them to turn away”14. Ibn Hazm mentioned in Marātib al-ijmā‘ that if anyone was under Muslims’ protection, and the enemy invaded our lands intent on harming that person, then it is obligatory to mobilise for battle against that enemy… indeed, to die safeguarding that person”15.
Imam al-Khidr stated with candour: “He who scrupulously examines Islam’s nature will confirm its purity from malevolent objectives that stoke the embers of reprehensible intolerance in its followers’ viscera against another religion, as claimed by some of those, who only hear its message from behind a veil”16. Ibn ‘Āshūr built the principle of equality between Muslim and non-Muslim in rights afforded in interpersonal dealings (mu‘āmalāt), on the Messenger’s words: “For them [non-Muslims] what is for us (rights, etc.…), and on them whatever is upon us (duties etc….)”17. He says: “This is established from knowledge of the basis for equality… and as such needs no presentation of effective cause (ta‘līl)”18.
Ibn ‘Āshūr’s position on apostasy appears dissonant with his objectives-based reasoning generally, his evidencing on the culture of freedom, and refuting the culture of the “group assured salvation (al-firqah al-nājiyyah)” featuring in contemporary Islamic thought. However, a few erudite scholars have revisited the issue, we mention among them, Shaykh Abdul Aziz Jawish, in his book, “al-Islām dīn al-fiṭrah wa al-ḥurriyyah”, which he authored in 1905CE, yet the 1st edition appeared in 1952CE. He concludes that the apostate referred to by the Messenger saying: “Kill the one, who changes his religion”19 refers to the traitor engaged in fighting. Hence, the punishment is not for renouncing the faith, but for the act of treachery and fighting. Therefore, the ruling does not include one who renounces his religion due to mere confusion and doubt20.
Shaykh Abdul Mutaal al-Saidi asserted the same opinion in his book, “al-Ḥurriyah al-dīniyyah fī al-Islām”, dedicating an entire chapter to: “invalidating coercing the apostate to accept Islam”21.
In his book: “al-Jarīmah wa al-‘uqūbah fī al-fiqh al-Islāmī”, Shaykh Muhammad Abu Zahrah affirmed that the view consistent with the spirit and guidance of Islam is to demand absolute repentance22 . Dr Taha Jaber Fayyad al-Alwani discussed the issue with depth and precision in his book: “Lā ikrāh fī al-dīn – baḥth fī ishkāliyyat al-riddah wa al-murtaddīn min ṣadr al-Islām ilā al-yawm”.
He concluded that the Noble Qur’an’s verses did not stipulate a religious punishment or worldly penalty for apostasy. Indeed, it is not sound for a ruling to be issued on apostasy for mere change of belief, as that would contradict the Islamic law objectives granting freedom of belief, declared in the verse of Chapter (Sūrat al-Baqarah 255): “There is no compulsion where the religion is concerned”, and the verse: “Say, ‘It is the truth from your Lord; so let whoever wishes have faith, and whoever wishes embrace unbelief’ ” (Sūrat al-Kahf: 29)23.
These views emanating from the objectives-based reasoning of luminary Muslim scholars are worthy as a reliable basis for us to revise the foundation for the principle of freedom of belief, as a branch of the general principle of freedom, considered one of the Islamic message’s core foundations.
3 – Some Articles of the Abolition of Forced Labour Convention issued in June 1957CE, in light of Islamic law objectives (maqāṣid):
This convention was issued against the backdrop of codifying the prohibition of forced labour, given that it is an aspect of exploitation and degrading treatment contrary to human dignity and human rights. In its preamble, it stated that “all necessary measures shall be taken to prevent compulsory or forced labour from developing into conditions analogous to slavery”.
This agreement’s most prominent provisions are as follows:
• Prohibiting methods of payment, which deprive the worker of a genuine possibility of terminating his employment.
• Prohibiting the means of political coercion or direction of the worker and employing him for or against any political views.
• Prohibiting all coercive measures that impose forced labour disciplines on the worker.
• Mandatory regular payment of wages.
If we re-examine the Islamic law objectives in the domain of interpersonal transactions (mu‘āmalāt) relating to physical work, presented in Ibn ‘Āshūr’s book, “Maqāṣid al-sharī‘ah al-Islāmiyyah”, we find that in contracts between worker and employer, Islamic law’s objective is “protection for workers… so that their work is not unfairly nullified or undervalued … because employers have numerous ways for investing their wealth, and have choice in either utilising or hoarding it in spending… unlike workers”24.
Ibn ‘Āshūr lists conditions on which such contracts revolve, the most important being:
- Avoiding any condition akin to enslaving the worker.
- Providing the means to execute the work to the worker, so he is not compelled to complete it himself.
- Expediting prompt payment of the worker's wages punctually and without deferral.
- Removing any onerous conditions on the worker in these contracts, so that the employer does not exploit the worker’s need to work, and grasps the opportunity to profit in excess.
- Allowing the worker to add benefits over and above those required to accomplish the work to these contracts, on condition that these are not onerous to the employer25.
There is no dispute that these objectives relating to workers’ rights, and stipulations arising thereof, are contained in precise detail in the aforementioned agreement prohibiting forced labour. Indeed, Islamic law objectives added further elements biased towards the worker, and safeguarding his dignity; for example, “workers adding extra benefits to these contracts, in contrast to employers”. This reveals that based on fairness and justice, Islamic legislation secures the worker’s dignity; indeed, it is the pivot for the foundations of human development and pillars for the balance of human society, and the thriving of human civilisation. In fact, Ibn ‘Āshūr authored “Maqāṣid al-sharī‘ah” before the Universal Declaration of Human Rights, and the Abolition of Forced Labour Convention.
Furthermore, one of Islamic legislation’s most prominent objectives is delivering rights to owners, petitioners, and deserving parties, as a robust foundation for human society’s cohesion and balance, and a principal factor in preserving the integrity of its fabric, securing its stability, and reason for its strength, prosperity and progress.
It is the duty of scholars and intellectuals concerned with Islamic thought generally, and legislation especially, who appreciate—before others—the magnitude of what both potentially offer human society, in factors of balance and well-being, to comprehend—especially at this decisive historical juncture for our Arab, Islamic societies—the confirmed need to undertake a process of cultural criticism of the traditional intellectual approaches and models. The aim is to restore integrity and effectiveness to Islamic thought and legislation, and to convince that both emanate from a message that came for life, and living things; it came to perfect and purify the meanings of humanity within the human being, and elevate and remedy life, making it better and more beautiful.
We consider that the Islamic objectives-based approach to legislation is appropriate as a powerful pivot in restructuring the contemporary Islamic juristic mind, providing it with novel and renewing cognitive methodological methods that raise the value of its performance in tracking contemporary society’s progress, in its acceleration, and growing complexity, and in the balanced treatment of emergent cases, issues, affairs, and momentous events, such that it is capable of exercising deep thinking in developing studies of human rights, in particular, and issues of political thought, in general; indeed, restoring Islamic legislation to the course of history, and reconciling it with the movement of human civilisation, divorced of any illusory superiority over the human mind’s novel products in all knowledge domains, in pursuing human wisdom, and in the awareness that building the world and human civilisation is a collective achievement and multilateral enterprise. Indeed, Islamic thought, with all its intrinsic elements, is invited to break free from the closed frames imposed by approaches and models that must now be subjected to criticism and relegation, to establish a new Islamic jurist mind, which is convincing in its ability to strike the required balance between submission to the religion’s teachings, on one hand, and the requirements of conscious and effective connection with changing times and places, on the other. Hence, Muslim individuals and communities are saved from the dichotomy of clash between religious text and reality; thus, Islamic thought and legislation may join the course of history and movement of civilisation, with confidence and insight.
This was published in:
The Activation of Sharīʿah Objectives in the Political Sphere, translated from Arabic, 2014, Al-Furqān Islamic Heritage Foundation, London, UK, p 362-347.
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