An objectives-based, first principles examination
Jaber Abdulhady Salem al-Shafe'i: Assistant Professor of Islamic Sharī‘ah – Law College – Alexandria University
Islam’s human-centred disposition is apparent to anyone examining the Book of Allāh (the Glorified and Supreme), the Sunnah of His Prophet Muḥammad (peace and blessings upon him), reports from the Companions (may Allāh be pleased with them), and the body of opinion of Muslim jurisprudents. This manifests in a set of principles, norms, and juristic rulings (aḥkām) protecting man, and other creatures, whether in times of peace or war. Islam emphasised abiding by these principles, norms, and rulings by necessity; hence, this commitment is inherent to Muslims’ religious observance, where violation attracts punishment in this life and the hereafter.
Muslims applied these principles and rulings through history. Pertinently, Islam did not make application of these principles and rules contingent on any other party’s commitment to them through a defining international treaty. This is because the underlying goal in legislating these principles and provisions is humanitarian, focusing strictly on the human being, who was honoured and distinguished above most of creation by Allāh, the Glorified and Supreme.
While the international community settled on human rights several years ago, what it achieved represents, in reality, a fraction of what Islam brought to the world over fourteen centuries earlier. Islam ushered in unprecedented and novel, systems and regulations for human rights. In fact, the principles evolved by the international community, after a long and arduous journey, differ very little in substance to those of Islam in this context.
The reasons for choosing this topic, and its importance
- The matter of human rights is considered one of those topical issues deserving recognition and attention, in light of the violations currently being perpetrated, in times of peace or war.
- In addressing Islam’s position on the subject, the researcher observes Islam’s pristine, robust and rich rulings, principles, and norms in this domain; indeed, these paid keen attention to the human being and others, honouring him in times of peace, war, and truce, without distinction. Indeed, emphasising that believers in these principles and norms may only be described as compassionate, virtuous, just, and humane.
- Revealing the clear association between Islam’s provisions in this regard, and international conventions to underscore the contribution of both. Furthermore, to emphasise that the rights, principles, and human and civilised values Islam introduced, were universally accepted by peoples of different colours, races, languages, creeds and tribes, in signing and ratifying the international conventions and agreements containing some of these rights. Allāh, the Almighty, says: “O’ people, We (Allāh) have created you all from male and female, and made you into races and tribes so that you may become acquainted with one with another…” (Sūrat al-Ḥujurāt 13). Furthermore, to emphasise that these rulings are entirely suitable for application in these times.
- Muslim international law jurisprudents are called upon to use the international fora to highlight the human rights established by Islam. Debunking the torrent of accusations levelled at Islam and Muslims by those who do not know this religion. Additionally, enriching the international human rights system with the ground-breaking Islamic concepts and principles in this domain. The human rights system is of concern to us at a time, when many human rights are being violated, particularly those of Arabs and Muslims. This painful reality compels everyone, especially international law jurisprudents, to engage in organised and sustained efforts to enrich the international system of human rights with Islamic principles, especially in the domain of practice.
Methodology
In this paper, I follow an approach, where the provisions of the Universal Declaration of Human Rights (UDHR) are referred to several rights. Then, I examine these rights from the Islamic perspective, grounding them on Islam’s sources and objectives (maqāṣid). In such a way that demonstrates Islam’s pioneering position in establishing, emphasising, and abiding by these rights.
First: The universality of Islam – proof and validation
Islam is distinguished by its universality; it came for all humankind, regardless of differences in race, colours, places, and times. Indeed, it was not specific to a particular race, place, or time, as confirmed by reality. People from different races and colours, from different places and times, embraced this religion. They did not find anything odd preventing them from adopting it. Despite their diversity, they all pray, fast, pay the due from wealth (zakāt) and perform the pilgrimage (ḥajj).
In addition, nothing in Islam contradicts established scientific fact. On the contrary, it affirms and alludes to some of these facts, even before humans discovered them through the means at their disposal.
Islam is eternal and valid for all times and places, sent to all people, regardless of differences in class, race and colour, because its fundamentals and principles take into account human needs in every age, rendering it valid for all peoples, times, and places.
Islam is universal in its invitation, its discourse, its nation (ummah), its values, and its social system. These foundations, and others, sustain its universality.
Islam elucidated its message and nature, affirming its universality, and negating that it is addressed to a specific race or nation, or to a particular part of the world, or era. Islam is not an Arab, ethnic, or regional invitation, but to all people, all humanity, and the entire world. Allāh, the Almighty, says: “We have sent you [Prophet] only to bring good news and warning to all people, but most of them do not understand” (Sūrat Saba’ 28); Allāh, the Almighty, says: “Say (Prophet): ‘O mankind! Verily, I am a messenger to all of you’” (Sūrat al-A‘rāf 158). He also says: “Say (Prophet): ‘O mankind! Verily, I am a clear warner to you’” (Sūrat al-Ḥajj 49). Further: “a warner to mankind” (Sūrat al-Muddaththir 36). Elsewhere, Allāh says: “And We (Allāh) have only sent you as a mercy to all creation” (Sūrat al-Anbiyā’ 107). He also said: “Blessed is He who sent down al-Furqān (the Qur’ān) onto His servant that he may be a warner to all creation” (Sūrat al-Furqān 1). And He said: “It (the Qur’ān) is but a reminder to all creation” (Sūrat Ṣād 87). These in addition to other Qur’ān verses indicating and affirming that Islam was sent to all mankind and creation.
The Sunnah of the Prophet, peace and blessings upon him, also indicated and affirmed Islam’s universality. The Prophet, peace and blessings upon him, was reported as saying: “I have been given five things, which were not given to anyone before me. Allah made me victorious by frightening my enemies from a distance of one month's journey. The earth has been made for me (and my followers) a place for praying and purification, therefore any of my followers may pray wherever prayer is due. Booty has been made lawful for me, yet it was not lawful for anyone before me. I have been given the right of intercession (on the Day of Resurrection). Every Prophet was sent to his nation only, but I have been sent to all mankind”.1
The universality of Islam’s law is represented in its principles, and values consistent with persons’ sound innate nature (fiṭrah), and are not specific to any one nation, nor are they restricted to any specific place, or any particular human group or generation. These principles and values are founded on compassion, affection, justice, equality, the fulfilment of covenants, cooperation, tolerance, etc. Allāh, Glorified and Supreme, allowed His Messenger, peace and blessings upon him, to conquer Makkah and gain the upper hand over its inhabitants. However, despite the cruelty, torment, and expulsion, which he and his companions had suffered at their hands, he said to them: “What do you think I should do to you?” They said: ‘Good! You are a decent brother and nephew’. He said to them: “Go! For you are free"2.
The Messenger, peace and blessings upon him, dispatched messages to many kings and peoples inviting them to Islam. This confirms and supports the universality of Islam. The Messenger, peace and blessings upon him, sent delegations of his companions, carrying written missives to kings inviting them to Islam. He sent to the Negus, King of Abyssinia, to Caesar, Emperor of the Romans, to Khesru, Emperor of Persia, to al-Muqawqis, King of Egypt and Alexandria, to al-Ḥārith b. Abū Shamar al-Ghasānī, King of the frontiers of the Levant, and to Jīfer and ‘Abād from the Banū Azd, the sons of al-Jalandī, King of Oman, to Thumāmah b. Athāl and Hawdhah b. ‘Alī, the two Kings of Yamamah from the Banū Ḥanīfah, to al-Mundhir Ibn Sāwī, King of Bahrain, to al-Ḥārith b. ‘Abd Kalāl al-Ḥimyarī and Na‘īm b. ‘Abd Kalāl al-Ḥimyarī in Yemen3.
All this and more affirms the universality of Islamic law. Indeed, Islam’s universality is an indisputable certainty4.
It is worth remembering at this juncture that the universality of Islam does not preclude recognition of any other religion. Indeed, Islam recognises the revealed religions, and clarifies how to treat their followers. Allāh, the Almighty, says: “[Believers], argue only in the best way with the People of the Book, except with those of them who act unjustly. Say, ‘We believe in what was revealed to us and in what was revealed to you; our Lord and your Lord are one [and the same]; we are devoted to Him’” (Sūrat al-‘Ankabūt 46). Further: “Say, ‘People of the Book, come to a proposition that is common to us all: we worship Allāh alone, we ascribe no partner to Him, and none of us takes others besides Allāh as lords.’ If they turn away, say, ‘Bear witness that we are Muslims” (Sūrat Āl-‘Imrān 64). Allāh, the Almighty, also said: “Say, ‘People of the Book, do not overstep the bounds of truth in your religion and do not follow the whims of those who went astray before you– they led many others astray and themselves continue to stray from the even path’” (Sūrat al-Mā’idah 77).
Secondly: The humanity of Islam: proof and validation
Humanitarianism is an ethical perspective that elevates the human being in status and stature, and prevents anything that could lead to his being subjected to humiliation, degrading treatment, intimidation, loss of freedom or violation of person or faith5. This is what Islam brought and elucidated. Indeed, anyone examining the texts of the Noble Qur’ān and Prophetic Sunnah, the statements and practice of the Companions, and the opinions of Muslim jurisprudents, will discern the extent of Islam’s attention to bettering the human being’s state.
Allāh, Glorified and Supreme, honoured man by creating him by His Hand, blowing into him of His Spirit (rūḥ), commanding the angels to prostrate before him, and appointing him as His vicegerent on earth; Allāh, the Almighty, says: “We created man in the finest mould” (Sūrat al-Tīn 4). Allāh, the Almighty, also says: “We have honoured the children of Adam and carried them by land and sea; We provided them with good things and favoured them greatly over many We have created” (Sūrat al-Isrā’ 70). Further: “When I have formed him and breathed My Spirit into him, fall down in prostration in front of him” (Sūrat al-Ḥijr 29). Also: “When your Lord told the angels, ‘I am putting a vicegerent on the earth,’ they said, ‘why put on it one who will cause corruption and bloodshed, when we glorify You with praise and proclaim Your Purity?’ He said, ‘I know what you do not know’ ” (Sūrat al-Baqarah 30).
Allāh, Glorified and Supreme, also subjugated everything in the heavens and earth to man, and provided him with powers and talents to master the earth, and reach the farthest extents decreed for him, in material perfection, and spiritual elevation. Allāh, the Almighty, says: “By His command He has made the night and day, the sun, moon, and stars all of benefit to you. There truly are signs in this for those who use their reason” (Sūrat al-Naḥl 12). The Almighty also says: “Have you not considered how Allāh has made everything on the earth of service to you? That ships sail the sea at His command? That He keeps the heavens from falling down on the earth without His permission? Allāh is most compassionate and most merciful to mankind” (Sūrat al-Ḥajj 65). Further: “[People], do you not see how Allāh has made what is in the heavens and on the earth useful to you, and has lavished His blessings on you both outwardly and inwardly? Yet some people argue about God, without knowledge or guidance or an illuminating book” (Sūrat Luqmān 20). Also: “It is Allāh who subjected the sea for you––ships sail on it by His command so that you can seek His bounty and give Him thanks– He has made everything in the heavens and everything on the earth subservient to you. It is all from Him. There are certainly Signs in that for people who reflect” (Sūrat al-Jāthiyah 12-13).
For man to secure his aims and achieve his ends, Islam brought rulings that enable him to do so. One of the principal features distinguishing Islam is that it is a human-centred faith. This means it is designed for man’s preservation, development, and uplift6. It came to honour human beings and preserve that noble status; it promulgated rulings that protect and preserve the human being from before birth, and from after birth until his demise, and even after his death. Therefore, Islam came to preserve the human being while a baby in its mother’s womb by proscribing abortion; protecting him during his lifetime by proscribing murder and any form of aggression by any means whatsoever. It came to preserve him after death by commanding honourable treatment of his corpse, and not subjecting him to aggression of any kind.
It displeases Allāh, Most Magnificent, to see man—whom He honoured and created with His own hand—insulted and his dignity denied. For this reason, Pharaoh is declared among the corrupt; Allāh, the Almighty, says: “Pharaoh exalted himself arrogantly in the land and divided its people into different groups: oppressing one group, slaughtering their sons and sparing their women—he was one of the corrupters” (Sūrat al-Qaṣaṣ 4).
Islam also demonstrated concern for the human’s spiritual side, prescribing ritual worship (‘ibādah), including (ṣalāh), fasting, and pilgrimage, to satisfy his spiritual needs. Islam did not overlook the human’s material side, either. It legislated rulings that safeguard wealth, and permit enjoyment of the good things in life, allowing marriage, etc. Not only that, but it involved society and State in providing basic human needs, so that a person does not live in deprivation. Both society and State are obliged to help, using zakāt funds or state resources, if a person’s income is insufficient to meet legitimate needs.
Islam also tended to the human mind; Allāh, Glorified and Supreme, endowed the human being with the blessing of intellect, as a distinguishing feature of his humanity. Islam legislated rulings that preserve and care for the human mind. These mandated learning, and assisted in achieving this by all means, and outlawed any kind of assault on the mind by any means causing its impairment.
The human being is Islam’s central interest, which is why all the rulings were legislated for him, to preserve him physically, morally, and in his faith, honour, and wealth, without distinction. In this regard, some have said: “… and the intent of the legislation regarding the creation (al-khalq)—the term, al-khalq, the creation, is general and comprehensive—encompasses five aims, namely to preserve their religion, life, intellect, progeny, and wealth. Anything that involves preserving these five assets, is a public interest (maṣlaḥah) that must be guarded, and anything that impairs or undermines them is a detriment (mafsadah), whose opposition is a public interest”7.
Others also say: “The establishment of legislation is to take care of the public interests of God’s servants’ (‘ibād) —the term, ‘ibād, servants, is also general and comprehensive —both in the immediate and long term. What is accepted is that through inductive reasoning (istiqrā’), we have found that it was laid down for people’s public interests… The obligations imposed by Islamic law are related to preserving its own objectives insofar as the creation is concerned—the term, creation, is general and comprehensive…”8. Some say: “The law of Allāh is present wherever there is a public interest”9.
Anyone examining Islam’s system will find that it aims to secure the human being’s public interests; those that sustain his life, and are reason for his happiness in this life and the hereafter. The human’s public interests are achieved by securing his necessities (ḍarūriyyāt), needs (ḥājiyyāt), and improvements (kamāliyyāt). Thus, the human being’s public interests, which Islamic legislation was keen to preserve, fall into these three categories:
First, public interests that are necessities (ḍarūriyyāt), are those vital for sustaining religious and worldly public interests. These are five in number, namely preserving religion (al-dīn), life (al-nafs), progeny (al-nasl), wealth (al-māl) and intellect (al-‘aql). For each one, Islamic legislation promulgated rulings guaranteeing the means for their preservation, protection, survival, and continuation. It decreed penalties addressing apostasy (riddah) and public expression of unbelief to protect religion; retribution (qiṣāṣ), blood money (diyyah), and expiation (kaffarah) to protect life; stoning (rajm) and flogging (jald) to protect progeny and personal honour; amputation [ḥadd] and discretionary punishment (ta‘zīr) to protect wealth; and flogging and discretionary punishment also to protect the intellect. Islamic legislation also introduced regulations for sale, commerce, and the obligatory contribution from personal wealth (zakat). It prohibited usurping people’s wealth, thus deeming usury (ribā), gambling (maysir), and fraud in transactions to be unlawful (ḥarām) to protect wealth. It established marriage and rulings on family, and prohibited fornication and adultery, and slander against chaste women, to preserve progeny and honour. Islam also preached the necessity of seeking knowledge, instructing humans to seek and acquire knowledge to enlighten the mind, and sustain its effective role in life. Indeed, it outlawed the consumption of alcohol to protect the mind.
Second, public interests that are needs (ḥājiyyāt) are those public interests complementing the preservation of necessities (ḍarūriyyāt) by eliminating constraints (ḥaraj) and removing hardship (mashaqah). In the absence of catering for these interests, life becomes hard, and debilitating constraints rife. Thus, Islamic legislation introduced these needed public interests, such as profit-sharing partnership (muḍārabah), forward sale (al-salm), oath-taking (qasāmah), blood money paid collectively by relatives (diyyah ‘alā al-‘āqilah), and imposing liability for damages (taḍmīn) on artisans10.
Third, improvement (kamāliyyah) public interests, which relate to people’s customs, and ethics. Islamic legislation introduced rulings with the objective of preserving ethical behaviours among people, and steering them along the path of perfection. Examples of improvement public interests are: hygiene and pristine personal appearance for ritual prayer (salāh); seeking closeness to Allāh by offering voluntary acts of worship (nawāfil); etiquettes for eating and drinking; abstaining from killing the enemy’s women and children, and priests in war11; outlawing mutilation of the enemy’s dead in war; choosing the best and finest in quality to give in obligatory financial dues (zakāh); being extra scrupulous when earning one’s living; and refraining from extravagance in consuming food, drink, and clothing.
One of most important objectives of Islamic legislation is to establish justice and equality between people in society. Allāh, the Almighty, says: “Allāh commands justice, acting with excellence, and generosity towards relatives, and He forbids indecency, doing wrong, and tyranny. He warns you, so that you may take heed” (Sūrat al-Naḥl 90). People are equal in terms of fulfilling religious duties in Islam. Acting with justice towards people is in everything, and is required of anyone given authority in any public matter. Justice is required in: court rulings and dispute settlement; appointments to public office; exercising oversight on holders of public office; levying taxes; and in spending on public services without bias, prejudice or favour. All people, rich and poor, ruler and ruled, are the same on the balance of justice and equality.
There is no distinction between people on the grounds of lineage, pedigree, colour, gender, or race. The Prophet, peace and blessings upon him, was reported as saying: “O’ People! Your Lord is one and your father (Adam) is one, an Arab has no advantage over a non-Arab, a non-Arab has no merit over an Arab, the red is not superior to the black, nor the black over the red, except by their fear of Allāh and piety12”.
Humans are equal in their humanity, and are only differentiated by other things, for example, piety. Abū Dharr is reported to have mocked Bilāl over his mother and called him: “son of a black woman!” Bilal went and informed Allāh’s Messenger (peace and blessings upon him), who became very angry. Abū Dharr unsuspectingly came to the Prophet (peace and blessings upon him), who turned away from him. Abū Dharr said: “O’ Messenger of Allāh you turned away from me, so there must be something that you were informed about”. He said: “Is it you, who mocks Bilāl for his mother? The Prophet (peace and blessings upon him) said: “By Him who revealed the Book to Muḥammed—or what Allāh willed that he swear by—no one can claim advantage over another except by deed; you are all like filling a measuring vessel (sā‘)13”.
It is also the case that honouring the human being, living or dead, has nothing to do with their religion. It was reported that the Messenger, peace and blessings upon him, stood up as a Jewish funeral passed; some of his companions said: He is Jewish; he said: “Is it not a soul?14”
All of this, and much more besides, is evidence that Islam is a humanitarian faith—the human being is the centre of its attention. That is to say, it was designed for man by virtue of his humanity, regardless of ethnicity, colour, class, nationality, religion, or social status, or whether in war, peace, or treaty.
It is established fact that human rights in Islam are comprehensive; Islam introduced all kinds of religious, political, financial, social, and intellectual rights, and others. Regardless of whether these rights are communal or individual, Islam promulgated respect, protection, and full assurance of human rights for all people, or every person by virtue of their humanity. Indeed, the human being was assigned the duty of upholding and protecting these rights, simply for being a human being. Furthermore, these rights are not specific to any individual or society to the exclusion of others, but apply to all individuals and societies. In addition, we find that human rights are non-derogable, and valid at any time and place, without distinction. This is evidenced by the discourse on the protection of these rights, as we shall see.
> First Point: The nature of human rights, their categories and source
Firstly: the concept and categories of human rights:
The term, “human rights”, came into popular use after the Second World War, thanks to the Universal Declaration of Human Rights. It encompasses all the concepts that were previously indicated by other commonly-used terms, e.g. “personal freedoms”, which includes civil liberties, such as freedom of ownership, freedom to enter into contracts, freedom to work, and others. Also the term, “public freedoms”, which included political freedoms, such as freedom of assembly, freedom to form associations, and press freedom. Hence, the term, “human rights”, is broader in scope, as it includes all the terms indicated.
In reality, “human rights” is considered one of those terms that are difficult to encapsulate in a specific, determinate, inclusive, and robust definition, due to the multiplicity of rights that fall under it, in their number, diversity, complexity and interconnections. Hence, developing a definition elucidating the meaning of this term was subject of many attempts. However, none succeeded in developing a specific, determinate, inclusive, and robust definition of the term, “human rights”.
Therefore, it seems to me, that the nature of the term, “human rights”, may be illustrated by presenting the classification of types and number of rights that come under it. For example, it may be said: human rights include bodily rights, such as those rights that protect the integrity of the human body, and also the right to life.
Among these rights are financial rights, such as the right to ownership, as well as religious rights, such as the right to non-compulsion with respect to religious belief. They also include intellectual rights, such as freedom of education; political rights, such as the right to vote; and social rights, such as the right to marriage, and so on.
One notes that a right develops in step with progress in social, political, economic, and cultural relations. Therefore, we find multiple, different and overlapping classifications of types of human rights. Some divide these rights into natural rights, attributed to humans by virtue of their humanity, regardless of country of origin or domicile; for example, the right to life and other civil rights, as well as the right to contract and political rights. These are rights enjoyed by a group of individuals, who participate in political life, encompassing the right to vote, and the right to run for political office. There are social rights, such as the right to marry and form a family, and economic rights, which relate to wealth and ownership.
Others divide these into: personal and public rights. These academic divisions do not obscure the fact that human rights overlap, intertwine, and are interdependent and interrelated.
Secondly: sources of human rights
1. The sources of human rights in Islam
By sources of human rights in Islam, we mean the scriptural indicants (al-adillah al-shar‘iyyah) underpinning these rights. In general, these sources are the same as those of Islamic jurisprudence, represented by the scriptural indicants; because by their nature, human rights in Islam are actually Islamic law rulings, and must therefore be based on relevant indicants. It is common knowledge that such indicants are numerous; however, we will refer to some of them in the following:
- The Noble Qur’ān: This is the primary source of Islamic legislation; it is the words of Allāh, Glorified and Supreme, revealed to Muḥammad, peace and blessings upon him, in Arabic, transmitted to us through multiple, independent, and uninterrupted chains of reporters (tawātur), and challenging everyone by its shortest chapter (sūrah), whose recitation is an act of worship, beginning with Sūrat al-Fātiḥah and closing with Sūrat al-Nās15.
It is well-known that most rulings in the Noble Qur’ān are either polysemous (mujmallah), general (‘āmah), or unconditioned (muṭlaqah). Therefore, the Sunnah of the Prophet, peace and blessings upon him, the practice of the Companions, and the opinions of jurisprudents, have clarified and detailed, or particularised and conditioned what is in the Noble Qur’ān16. This is because the Qur’ān is the constitution of Muslims, and so its rulings are presented in polysemous, general, and unconditioned forms.
In this context, the Noble Qur’ān contains numerous verses, which establish many rights for humans; for example, Allāh, the Almighty, says: “We have honoured the children of Adam and carried them on land and sea; We provided them with good sustenance and favoured them greatly over many We have created” (Sūrat al-Isrā’ 70). This verse, in reality, is considered equivalent to a full declaration of human rights in Islam. Indeed, it established emphatically that the human being is honoured and favoured over all other creatures. Therefore, materialising this honour requires the recognition of many rights, before birth, in his lifetime, and after his death.
Some of these rights resulted from the honour of Allāh, Glorified and Supreme, creating him with His Hand, breathing into him from His Spirit, shaping him in the best form, commanding His Angels to prostrate before him, in salutation and respect, and making him His Vicegerent on earth. Moreover, Allāh put everything in the heavens and earth in man’s service. He provided him with the powers and talents to master earth, and attain the highest possible level of material and spiritual perfection that Allāh decreed. Therefore, rulings were legislated to protect and preserve man, before birth, from birth to death, and even after his demise. Indeed, “the human being” has always been the Islamic faith’s centre of the attention. Thus, all the rulings were legislated for his sake, to preserve him physically, and morally, as well as in his faith, honour, and wealth. One of key rights that Islam instituted was establishing justice and equality among people in society. The Qur’ān verses that establish and evidence these rights have already been mentioned.
- The Prophetic Sunnah: this is the second source of legislation after the Noble Qur’ān, and refers to everything issuing from Prophet Muḥammad, peace and blessings upon him, in terms of statements, actions, and tacit approval (taqrīr17).
The Sunnah of the Prophet, peace and blessings upon him, established many human rights, in numerous traditions (ḥadīth); some of which we mention, as follows:
- What the Prophet, peace and blessings upon him, is reported to have said in what is known as the “Farewell Speech (khuṭbat al-wadā‘)”, delivered on the Day of Sacrifice (al-ḥajj al-akbar): “O’ people, listen to me as I explain to you, for I do not know, perhaps I will not meet you again, after this year, in this place. O’ people, your blood and your wealth are sacred to you until you meet your Lord, as sacred as this day of yours, in this city of yours. Have I conveyed? O’ Allāh, be my witness!
Whoever holds a trust then let him restore it to the one who entrusted him with it. The usury (ribā) you practised in pre-Islamic times (jāhiliyyah) is null and void.
O’ people, your women have a right over you, and you have a right over them. They must not allow onto your bedding anyone else but you, and they should not allow anyone you dislike into your homes, except with your permission. They should not commit indecency (fāḥishah), and if they do, you are permitted to desert them in bed and discipline them. If they desist and obey you, you are obliged to provide them with clothing and food, with kindness. Women are in your hands, and can do nothing for themselves. You took them as trust of Allāh. You lawfully enjoy conjugal relations with them by the word of Allāh, so fear Allāh in your women and treat them well…
O’ people, believers are indeed brothers, and the wealth of one is not lawful to the other except with the former’s approval freely given.
O’ people, your Lord is one, and your father is one; you are all from Adam and Adam is from dust. The most honourable among you in sight of Allāh, is the one who fears Allāh most. An Arab has no merit over a non-Arab, except through piety. Let those who are present inform those who are absent.
O’ people, Allāh has allotted to every inheritor his share of the inheritance. No bequest is allowed in more than the third of the inheritance. The child (born out of wedlock) belongs to the one on whose bed it is born, and stoning to death is for the adulterer. Cursed is he who claims other than his father or claims kinship to other than his kin…18”.
It is clear that this speech is also to be considered a declaration of human rights, as it instituted more than one human right, such as the right to life, right to ownership, right to preservation of honour and progeny, right to equality, right to freedom, the right to inviolability of home, the rights of the wife, the rights of the husband, the right of kinship, the right to inheritance, and the right to bequeath (waṣiyyah).
- The Companions’ traditions: Those examining the legacy of the Companions (may Allāh be pleased with them), in the many traditions reported about them, will find that they were keen to emphasise and entrench many human rights. Here, it suffices to mention the wonderful example of ‘Umar b. al-Khaṭṭāb (may Allāh be pleased with him) concerning the incident involving the Egyptian Copt with the son of ‘Amr b. al-‘Ās. It was reported that an Egyptian came to ‘Umar b. al-Khaṭṭāb (may Allāh be pleased with him), and said: O’ Commander of the faithful; I raced the son of ‘Amr and I beat him, so he started lashing me with a whip and saying: I am the son of the noble ones. ‘Umar wrote to ‘Amr ordering him to come to Madinah, and to bring his son with him. So he came. ‘Umar, then asked: Where is the Egyptian? Take the whip and hit him! As he was hitting the son of ‘Amr, ‘Umar kept saying: whip the son of the noble ones. Then ‘Umar turned to the Egyptian and said: put the whip on ‘Amr’s bald head. The Egyptian said: O’ Commander of the faithful! It was his son, who whipped me, and I have taken my revenge on him. So ‘Umar said to ‘Amr: Since when have you enslaved people, when their mothers gave birth to them free?19
- Human rights charters and declarations in Islam:
It is worth noting in this regard that contemporary Islamic thought has presented formulations defining human rights in contemporary language. It contributed codified definitions of human rights in the form of charters, declarations or treaties, including the following:
- Declaration of Human Rights and Obligations in Islam, issued by the World Muslim League, Makkah, 1979CE.
- The Universal Islamic Declaration of Human Rights, issued by the Islamic Council of Europe, London, 1980CE.
- Draft Document of Human Rights in Islam, issued by the Organisation of the Islamic Conference (OIC) Summit in Taif, 1989CE.
- Draft of Human Rights in Islam, presented to the Fifth Conference for Human Rights, Tehran, December 1989CE.
- The Cairo Declaration on Human Rights in Islam, 1990CE.
- Declaration on Child Rights and Welfare in Islam, issued in Morocco, 1944CE.
Looking into these documents and declarations reveals that they determine many human rights in Islam, such as the right to life, the right to freedom, the right to equality, the right to justice, the right to protection of honour and progeny, the right of free thinking, the right to belief, the right of non-compulsion in religion, the right to own, the right to work, the right to education, the right to freedom of movement, the right to litigate, the right to freedom of expression, the right to privacy, the right to inviolability of home, the right to marriage, the rights of the wife, the rights of the husband, the right of lineage, the right to custody and nursing, the rights of the unborn baby, the rights of the deceased, as well as other rights.
Islamic governmental and non-governmental organisations have issued several documents entitled "Human Rights in Islam", and many specialised researchers and experts have authored books and studies on human rights in Islam. All of these works have relied as their sources on the Noble Qur’ān, the Prophetic Sunnah, the sayings of the Companions, and the opinions of Muslim jurisprudents.
Among these documents are the “Charter of Human Rights in Islam” issued by the Organisation of the Islamic Conference, and the “Universal Islamic Declaration of Human Rights” issued by the Islamic Council of Europe.
2. Sources of human rights in international conventions (the international human rights system) – texts and sources:
The sources of human rights in international conventions are20:
- The 1945CE Charter of the United Nations.
- The 1948CE Universal Declaration of Human Rights (UDHR) (the subject matter of this paper).
- The International Covenant on Economic, Social and Cultural Rights.
- The International Covenant on Civil and Political Rights.
This Covenant has two optional protocols:
>> The first regarding approving the right of the Committee concerned with human rights to look into complaints brought by individuals.
>> The second is concerned with abolition of the death penalty.
- The International Convention on the Elimination of all Forms of Racial Discrimination.
- The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
- The Convention on the Right of the Child.
- The Convention on Elimination of all Forms of Discrimination against Women.
- The 1926CE Convention to Suppress the Slave Trade and Slavery21.
> The Second Point: The nature and classification of Islamic law objectives, and their relationship to scriptural indicants
Introduction: Through its rulings, Islamic law aims to secure a number of objectives that achieve man’s happiness in this life and the hereafter. Some of the rulings that achieve these objectives are: the human rights system, which is considered the most superior of systems. Islamic law’s meticulous and robust treatment of human rights was suitable for all times and places, eliminating all causes for conflict and discord, and securing the means to peace and stability.
Recently, there has been a surge of interest in studying the maqāṣid or Islamic law objectives, and scholars’ and researchers’ devoting attention to them. Yet this subject still needs many more studies to uncover its numerous aspects.
Muslims face many challenges at this time, compelling them to elucidate Islamic law’s merits. Islamic law objectives is considered one of the important topics open to study nowadays. This is because it demonstrates Islamic legislation’s merits by clarifying the objectives that Islamic law took into account in its general, specific, or particular legislations.
Furthermore, it refutes some of the specious arguments (shubuhāt) that some raise against Islam’s rulings, especially relating to human rights. This is accomplished by presenting and elucidating the objectives of Islamic law in the field of human rights. Thus, the correct understanding of these rights may be truly discerned, and the specious arguments being raised about them refuted.
This point will include the following:
1. Islamic law objectives - terminology and definitions:
- Definition of the Islamic law objectives:
At the outset, we point out that the reviewer of the literature on Islamic law objectives will encounter several terms in common use in this domain; these include: objectives (maqāṣid) – effective causes (‘ilal) – wisdoms (ḥikam) – public interests (maṣāliḥ) – ends (ghāyāt) – secrets (asrār) – meanings (ma‘ānī) – goals (ahdāf), and others.
Moreover, examining scholarly definitions22 of the Islamic law objectives will reveal that they are numerous and diverse. These definitions may be classified by trend into:
The first trend: expresses the objectives as wisdoms (ḥikam), and defines the general objectives as: “the Legislator’s meanings (ma‘ānī) and wisdoms that are discerned in all or most cases of legislation, such that they are observed to not belong to a specific class of Islamic law rulings23”.
Some have defined them as: “The meanings, wisdoms, and the like, which the Legislator took into account in both general and specific legislation, so as to achieve the servants’ public interests24”.
Others defined them as: “the wisdoms intended by the Legislator in all circumstances of legislation25”.
The second trend: expresses the objectives as public interests (maṣāliḥ), defining them as: “procuring public interests for people, and preventing harm and detriment to them26”. Some define them as: “procuring public interests, and their means to creatures, and preventing detriment, and its means, to them, in this life and the hereafter, or combining the two27”. Others define them as: “The public interests intended by the Legislator in legislating rulings28”.
The third trend: the objectives are expressed by ends (ghāyāt), secrets (asrār), meanings (ma‘ānī), or goals (ahdāf). Therefore, we find some defining the objectives as the ends established for Islamic law to secure human beings’ public interests, whether these are general, specific, or particular29.
Some define the Islamic law objectives as: “Islamic law’s ends (ghāyāt) and secrets (asrār) established by the Legislator in each of its rulings30”.
Others define them as: “the ends (ghāyāt), goals (ahdāf), outcomes, and meanings (ma‘ānī) that Islamic law brought and established in rulings, and sought to secure, materialise, and accomplish at all times and in all places31”.
They were also defined by some as: “the absent meanings (ma‘ānī), which the Legislator resolved to materialise through His Rulings32”
The fourth trend: this combines the meanings expressed by the three previous trends in its definition of the objectives, adding to them the meaning of effective cause (‘illah). Thus, it defines the Islamic law objectives as: “the ends (ghāyāt), which Islamic law aims to achieve in all its legislated rulings, elucidated laws, and stipulated directives and higher principles. These are also known as wisdoms, effective causes, goals, secrets, and meanings. Scholars summarise Islamic law’s objectives in the phrase: “procuring public interests and preventing detriment (jalb al-maṣāliḥ wa dar’ al-mafāsid)33”.
Our position vis-à-vis these trends: First of all, it should be pointed out that it is not permitted to express the objectives as effective causes. Indeed, this is a serious matter, and grave error, whose severity and error is all too apparent. Further, expressing objectives as public interests is to cite the part, while intending the whole, whereas public interests, while the highest, represent only one of Islamic law’s objectives. Also, referring to the objectives as wisdoms (similarly, ends, secrets, meanings, and goals) requires disambiguation. All this will become clear in the following.
The difference between effective cause, wisdom, and objective:
Effective cause (‘illah), wisdom (ḥikmah), and objective (maqṣad) are terms that lend themselves to confusion, and examining their differences is a thorny issue.
‘illah - According to the preponderant opinion, effective cause (‘illah) is the clear, determinate description defining the ruling34. Alternatively, it is the clear, determinate description upon which the Legislator deems the ruling to exist or not. Otherwise, it is the clear, determinate matter defining the rationale by which the ruling is deemed to exist or not.
It is well known that existence of the ruling or otherwise revolves around the effective cause (‘illah). If the effective cause is identified, then the ruling is identified, and if the effective cause is absent, then the ruling is negated. For example, the Legislator decreed that amputating the thief’s hand is an Islamic punishment (ḥad). If we look into the effective cause of this ruling, we find that it is the act of stealing. Theft possesses a clear description that cannot be mistaken by anyone. Moreover, it is determinate and is no different from person to person or place to place. Therefore, if we confirm the act of theft, then it indicates existence of the ruling, which is amputating the hand, contingent on all other conditions being met.
On the other hand, according to the preponderant opinion, wisdom (ḥikmah35) is the public interest procured, or detriment prevented, as a consequence of the legislated ruling. In the case of amputating the thief’s hand, we find that the effective cause is theft, while the wisdom behind legislating this Islamic punishment is to preserve, protect, and safeguard people’s wealth.
Thus, we can see that the wisdom is the motive behind, and end pursued by legislating the ruling. Indeed, it is a description that may not be apparent or indeed, determinate, and may differ according to time or place. In contrast, the ruling’s effective cause is a clear, determinate matter, on which the Legislator grounded the ruling, linking it to the ruling’s existence or otherwise, and it is unchanging, regardless of time or place.
Building the ruling on the effective cause and linking them together achieves the wisdom behind legislating the ruling. It follows then that wisdom is based on effective cause. If we identify the effective cause, we may then determine the wisdom, but if the effective cause is not apparent to us, then we may not discern the wisdom.
Rulings in Islamic law are of two types with respect to determining their effective cause and wisdom:
>>The first are those rulings with rationally-apprehensible meaning (ma‘qūlat al-ma‘nā), and so, their effective causes can be discerned; for example, prohibition of alcohol, legality of punishment, etc. Hence, the wisdom and underlying legality of this type of ruling can be determined. Scholars designate them as “rulings open to juristic reasoning (aḥkām ijtihādiyyah)”.
>>The second type are rulings, whose meaning cannot be rationally-apprehended, and their effective cause we may not be able to discern. This does not mean that these rulings lack effective causes; indeed they have effective causes, but these are not apparent to us. Scholars designate them “ritual rulings (aḥkām ta‘abudiyyah)”; for example, the number of prostrations (rak‘ah) in prayer, kissing the Black Stone, throwing the stones in the Ḥajj, etc.
In this type of rulings, it may not be possible to determine the underlying wisdom, as we are unable to identify the effective cause. Nevertheless, we are required to accept them in faith, and hold the conviction that they are legislated for us out of wisdom that we cannot discern36.
For example: the Legislator decreed the shortened form of prayer (ṣalāh) while travelling. The effective cause for this ruling is travel, while the wisdom is to relieve hardship and remove constraints on people. Likewise, breaking the fast while travelling; the effective cause is travel, while the wisdom is to relieve hardship and remove constraints on people. Permitting sick people to break the fast during the day in the month of Ramadan is another example. The effective cause is sickness, while the wisdom is to ward off hardship. Similarly, in the prohibition of alcohol, the effective cause is intoxication, while the wisdom is the preservation of people’s minds and distancing them from anything that impairs it. In all these examples, the effective cause possessed an apparent and determinate description37.
The extent to which effective cause is distinct from wisdom, and the permissibility of causation (ta‘līl) based on wisdom:
Based on the above, some legal theorists (uṣūliyyūn) differentiate between effective cause and wisdom, as pointed out earlier, and disallow establishing rulings on wisdom, rather, the ruling is established on effective cause38. This is the view we concur with. While others see no difference between effective cause and wisdom, and so it is permissible, in their view, to build the ruling on the wisdom.
It is well known that legal theorists differed on the matter of causation based on the wisdom, presenting several distinct opinions, which can be summarised into three opinions39:
>>The first opinion: the majority of legal theorists adopt the view that it is not permissible under any circumstances to rationalise an effective cause based on the wisdom.
>>The second opinion: some legal theorists consider it permissible, without restriction, to rationalise an effective cause based on the wisdom.
>>The third opinion: some legal theorists consider it permissible to rationalise effective cause based on the wisdom, so long as it is apparent and determinate, while it is not permissible to do so, if it is not apparent and indeterminate.
It seems to me that the correct opinion is what most scholars adopt, in that under no circumstances is it permissible to rationalise effective cause based on wisdom, as mentioned. All legal rulings are based on effective causes rather than wisdoms. Indeed, the legal ruling exists wherever its effective cause exists, even if the wisdom is yet to be determined, and is negated when its effective cause is absent, even if the wisdom is materialised. Thus, the prescription of the religious duty is properly effected, and rulings follow consistently.
Our definition of the Islamic law objectives
In my opinion, the objectives of Islamic law may be defined as: “a set of general, specific or particular objectives that Islamic law recognises and strives to achieve though its legislative domains, topics, or rulings”.
This definition will be explained by referring to the classification of the Islamic law objectives, in the following analysis.
2. Classification of the objectives of Islamic law:
It is well known that classifications are developed by jurisprudents, expressed in juristic language. Therefore, scholars have discussed the classification of objectives (maqāṣid), diverging into several trends40. Thus, some jurisprudents divide them into objectives relating to the Legislator (maqāṣid al-shāri‘), and objectives relating to those on whom the religious duty is prescribed (maqāṣid al-mukallaf41). Other scholars chose to classify objectives into those relating to necessities (maqāṣid ḍarūriyyah), needs (maqāṣid ḥājiyyah) and improvements (maqāṣid taḥsīniyyah). Others elected to divide them into definitive objectives (maqāṣid qaṭ‘iyyah) and probablistic objectives (maqāṣid ẓanniyyah). Others classified them into universal (kulliyyah) and partial (ba‘ḍiyyah). Some divide them into foundational (aṣliyyah) and subordinate (taba‘iyyah) objectives, while others classed them into general (‘āmah), specific (khāṣah), and particular (juz’iyyah42).
Without delving into the details of these different classifications, it could be said that classifying objectives into general, (‘āmah), specific (khāṣah), and particular (juz’iyyah), in my view, is clearer in defining the objectives of Islamic law, and illustrating their essence and nature. This is the approach we adopt in this paper.
- The general objectives of Islamic law
Many scholars defined the general objectives of Islamic law using a multiplicity of diverse definitions; the clearest in my view is: “those objectives that Islamic law recognises, and strives to realise in all or most of its legislative domains43”.
Through this definition, I can define Islamic law’s general objectives as: “a set of general goals that Islamic law recognises and strives to realise through its legislative domains”.
These goals or objectives are numerous, multiple, and diverse; for example, securing people’s public interests; achieving justice and equality among people; promoting ease and relieving the burdens on those persons on whom religious duties are prescribed (al-mukallafīn); adopting a gradual approach to legislation; actions linked to intentions; choosing the most secure approach; freedom; consideration for the sound innate human nature; the objective of not emulating the unbelievers; etc.
Several objectives fall under each goal; for example, we find that the goal of “securing people’s public interests” covers several general objectives such as those relating to necessities (ḍarūriyyah) objectives of preserving religion, life, wealth, honour and progeny, and intellect, as well as the needs (ḥājiyyah) and improvement (taḥsīniyyah) objectives.
- Specific objectives of Islamic law:
These may be defined as “a set of objectives that Islamic law recognises and strives to realise through a specific domain or topic, among its legislative domains or topics44”. For example, the domain or topic of marriage, divorce, inheritance, wills, etc. These domains or topics have their own specific objectives, in parallel with achieving the general objectives of Islamic law.
- The particular (juz’iyyah) objectives of Islamic law:
The particular (juz’iyyah) objectives of Islamic law may be defined as: “a set of goals and wisdoms that Islamic law recognises and strives to realise through a specific ruling45”. These include the requirement for witnesses in a marriage contract; prohibition of marrying the wife’s mother; or to concurrently have sisters as wives; etc. These rulings have their own particular objectives, but that would not negate their having general or specific objectives. For example, requiring witnesses to attest to a marriage contract aims at securing a general objective, falling under preserving progeny and honour.
To what extent do rulings open to juristic reasoning (aḥkām ijtihādiyyah) and ritual rulings (aḥkām ta‘abudiyyah) fall into the objectives sphere:
In this category of objectives, i.e. particular objectives, the question is raised regarding the extent to which rulings open to juristic reasoning and ritual rulings fall in the sphere of objectives. Regarding the juristically-reasoned ruling, we find that it falls within the sphere of particular objectives; hence, it is explored through this ruling. In this case, the wisdom could be confused with the objective, where “wisdom” is used as a synonym for “objective”; yet scholars tend to use the term, “wisdom”, more frequently than the term, “objective”. In the book, al-Mi‘yār al-mu‘rib, it is stated that: “the wisdom in the terminology of legal practitioners is that intended in establishing or negating the ruling46”.
On the other hand, the ritual ruling by its nature does not fall into the sphere of particular objectives or wisdoms, although it could fall into the sphere of general or specific objectives. However, nothing prevents exploring its particular objective or wisdom, but the mind may or may not grasp its objective or wisdom. Even if the mind were to comprehend its objective and wisdom, this would not change its nature as a ritual ruling. Indeed, the human mind may, at some point, discern the objective or wisdom inherent in a ritual ruling, but this may be disproven at a later date. Yet, this does not invalidate the ritual ruling, rather it remains in force, and applicable, and is ascribed to Allāh, the Almighty, as a matter of worship, faith, and conviction; the servant is obliged to believe with certainty that this ritual ruling has been legislated in his interest.
For example, we find that the Legislator stipulated that a divorced woman must observe a waiting period (‘iddah); this is a ritual ruling, yet, scholars attempted to reason it, saying: the principal objective or principal wisdom for obliging a divorced woman to observe a waiting period is to confirm that the womb is free of pregnancy, and that there is no confusion over lineage. Nevertheless, while minds are able to discern this objective or wisdom, the ruling is unaffected, and retains its ritual nature. Thus, if someone today says: modern science and medicine can confirm for us using rays (CT, magnetic resonance, television etc.) that a divorced woman’s womb is free of pregnancy immediately after divorce, which negates the principal objective or principal wisdom of the waiting period; does this mean that there is no waiting period for a divorced woman, and she can marry without observing a waiting period? Certainly not; because the waiting period remains a ritual ruling; valid and applicable as an expression of devotion, faith, and conviction in Allāh, the Almighty.
Based on the foregoing, it may be said: expressing the objectives as effective causes is a grave matter and serious error, in my view; indeed, the difference between effective cause and objective may be summarised in that the effective cause is an apparent, determinate description to which the ruling’s existence or otherwise is linked, Furthermore, it relates to the particular rulings, while the objective may be generalised to all or most domains of Islamic law; it may also relate to a specific legislative domain or topic, or perhaps a particular ruling specifically.
Expressing the objectives in terms of public interests is akin to citing the portion, yet intending the whole. Public interests are one, indeed the highest, of Islamic law’s objectives.
Correlation between the wisdom and the objective
Referring to the objectives as wisdoms (and likewise ends, secrets, meanings, and goals) is a matter requiring definition and disambiguation. As explained previously, there is no difference between the two terms ,“wisdom (ḥikmah)” and “objective (maqṣad)”, as wisdom is synonymous to objective47; however, scholars tended to use the term “wisdom” more than “objective”. In the book, al-Mi‘yār al-mu‘rib, it is stated that: “the wisdom in the terminology of legal practitioners is that intended in establishing or negating the ruling48”
Regarding what was mentioned in that there are differences between wisdom and objective, embodied in that the wisdom relates to individual rulings, while the objectives often relate to universal rulings. Moreover, objectives are determinate, while wisdoms may not be so, and that objectives exist definitively by virtue of Islamic law rulings in contrast to wisdoms that may lag behind the Islamic law rulings.
One may respond to the above in that the wisdom may be particular relating to a particular ruling, but may also relate to a specific legislative domain or topic, such as marriage, for example. Thus, it may be said that the wisdom behind marriage is so and so, while it is also general relating to universal rulings, such as saying that the wisdom of Islamic law is to secure people’s public interests of preserving life, wealth, intellect, progeny, and honour. Therefore, just as the objectives can be particular relating to a particular ruling, specific relating to a particular domain, and general relating to all or most of the Islamic law domains, then so can the wisdoms.
Also the saying that the objectives are determinate matters, while wisdoms may not be so, is refuted by saying wisdoms may be determinate too.
Likewise, the saying that objectives are strictly established by virtue of the Islamic law rulings, unlike the wisdom that may lag behind the Islamic law rulings. The response is that definitively “wisdoms” do not lag behind the legal rulings. Indeed, every legal ruling has its wisdom, but the mind may or may not apprehend it, as mentioned above when talking about rulings open to juristic reasoning, and ritual rulings49.
From the above, it is clear that there is a correlation between wisdom and objective in expression and usage. Therefore, some have defined the wisdom as: “the wisdom is what is intended from the legislation of the ruling”50. Some defined it as “the outcome of the legislation in procuring or complementing a public interest, or preventing and lessening a detriment”.51 Yet, others defined it as: “the end pursued by legislating the ruling, such as preserving life and wealth by legislating retribution and amputation”.52
3. Scriptural indicants and their relationship to the Islamic law objectives:
Nowadays, some people have attempted to make the Islamic law objectives a wholly independent discipline. It seems to me that this only serves to divest the objectives of their essence, distancing them from their origin. Indeed, the relationship of the objectives to the legal theory (uṣūl al-fiqh) discipline is that of branch to stem, or part to the whole. It is a relationship of subordinate and branch, rather than being independent and distinct53. The objectives branched from, are subordinate, and are intimately attached to legal theory domains of enquiry.
With regard to scriptural indicants, it may be said that these are not in themselves objectives, but are Islam’s texts of the Qur’ān and Sunnah, and what is based on them, and referenced to them, of juristic consensus (ijmā‘) and legal analogy (qiyās), and so on. Rulings are grounded on these indicants. These rulings lead to the objectives and to achieving them; indeed, scriptural indicants, rulings, and objectives are inseparably connected 54.
It seems to me that rulings, effective causes, wisdoms, and objectives are deduced from the scriptural indicants, and that the relationship of the objectives to the indicants is that of something to its source.
In the book, “I‘lām al-muwaqi‘īn ‘an Rabb al-‘ālamīn”, we find: “the Qur’ān and the Sunnah of the Messenger of Allāh, peace and blessings upon him, are full of causation of rulings by wisdom and public interests, and causation of the creation on their basis. They also point to the wisdoms for which the rulings were legislated, and these discrete entities (aʿyān) were created. If the Qur’ān and the Sunnah comprised one or two hundred instances, we would have cited them, but they exceed one thousand instances, in diverse forms55”.
The following presents a glimpse on scriptural indicants and their relationship to the Islamic law objectives.
First – The Noble Qur’ān: As the primary source of Islamic legislation, it contains many Islamic law objectives. Here are some examples:
- Allāh, the Almighty, says: “When you [Prophet] said to the man who had been favoured by Allāh and by you, ‘Keep your wife and be mindful of God,’ you hid in your heart what Allāh would later reveal: you were afraid of people, but it is more fitting that you fear God. When Zayd no longer wanted her, We gave her to you in marriage so that there might be no fault in believers marrying the wives of their adopted sons after they no longer wanted them. God’s command must be carried out” (Sūrat al-Aḥzāb 37).
- Further: “Another of His signs is that He created spouses from among yourselves for you to live with in tranquillity: He ordained affection and compassion between you. There truly are signs in this for those who reflect” (Sūrat al-Rūm 21).
- Also: “And do not go anywhere near fornication or adultery; it is an indecent act, and evil way” (Sūrat al-Isrā’ 32).
- He said: “The month of Ramadan is the one in which the Qur’ān was revealed as guidance for mankind, with clear signs containing guidance and distinguishing between right and wrong. So, any of you who are resident in the month should fast it, and anyone who is ill or on a journey should make up for the lost days by fasting on other days later. Allāh wants ease for you, not hardship. You should complete the prescribed period and proclaim Allāh’s greatness for having guided you, so that you may be thankful” (Sūrat al-Baqarah 185).
- He said: “Allāh wishes to lighten your burden; and man was created weak” (Sūrat al-Nisā’ 28).
- He said “Strive hard for Allāh as is His due: He has chosen you and placed no constraint in your religion, the faith of your forefather Ibrahim. Allāh has named you Muslims – both in the past and in this [message] –so that the Messenger could be witness against you and you could be bear witnesses against all mankind. So, establish the prayer, give the prescribed dues, and seek refuge in Allāh: He is your protector––an excellent protector and an excellent helper” (Sūrat al-Ḥaj 78).He said: “Allāh does not burden any soul with more than it can bear: each gains whatever good it has done, and suffers its bad– Lord, do not take us to task if we forget or make mistakes. Lord, do not burden us as You burdened those before us. Lord, do not burden us with more than we have strength to bear. Pardon us, forgive us, and have mercy on us. You are our Protector, so help us against the disbelievers’” (Sūrat al-Baqarah 286).
- He said: “and let the wealthy man spend according to his wealth. But let him whose provision is restricted spend according to what Allāh has given him: Allāh does not burden any soul with more than He has given it– after hardship, Allāh will bring ease” (Sūrat al-Ṭalāq 7).He said: “There is life for you in retribution, people of understanding, that you may perhaps attain piety” (Sūrat al-Baqarah 179).
- He said: “O’ you who believe, when you contract a debt for a stated term, put it down in writing: have a scribe write it down justly between you. No scribe should refuse to write: let him write as Allāh has taught him, let the debtor dictate, and let him fear Allāh, his Lord, and not diminish [the debt] at all. If the debtor is feeble-minded, weak, or unable to dictate, then let his guardian dictate justly. Two men among you should act as witnesses. But if there are not two men, then a man and two women with whom you are satisfied as witnesses, so that if one of the two women should forget the other can remind her. Let the witnesses not refuse when they are summoned. Do not disdain to write the debt down, be it small or large, along with the time it falls due: this way is more equitable in Allāh’s eyes, more reliable as testimony, and more likely to prevent doubts arising between you. But if the merchandise is there and you hand it over, there is no blame on you if you do not write it down. Have witnesses present whenever you trade with one another, and let no harm be done to either scribe or witness, for if you did cause them harm, it would be a crime on your part. Be mindful of Allāh, and He will teach you: He has full knowledge of everything” (Sūrat al-Baqarah 282).
- He said: “[Prophet] take the obligatory dues (zakāt) from their wealth to cleanse and purify them, and pray for them; your prayers bring relief to them. Allāh is All-Hearing, All-Knowing” (Sūrat al-Tawbah 103).
- And said: “O’ you who believe, intoxicants and gambling, idolatrous practices, and [divining with] arrows are repugnant acts of Satan’s doing, shun them so that you may prosper. With intoxicants and gambling, Satan seeks only to incite enmity and hatred among you, and to stop you remembering Allāh and prayer. Will you not give them up?” (Sūrat al-Mā’idah 90-91).
It is clear that these and other Qur’ān verses secure, evidence, and address many of the Islamic law objectives, be they general objectives, such as the objective of promoting ease, lessening burdens, and eliminating constraints, the objective of preserving honour and progeny, or the objective of preserving life; or indeed, specific objectives, such as the objective of securing tranquility, affection, and compassion in marriage, or the objective of purifying wealth and self in relation to fulfilling the obligatory dues on wealth (zakāt); or particular objectives, such as recording or witnessing a debt, or the objective of prohibiting alcohol and gambling, as both lead to enmity, hatred, dispute, and conflict.
Second – The Prophetic Sunnah: as the second source of legislation after the Noble Qur’ān, it contains many of the Islamic law objectives. Here are examples of such Prophetic traditions:
- Abū Hurayrah narrated that the Prophet, peace and blessings upon him, said: “The religion (Islam) is easy, and whoever overburdens himself in the religion shall be overcome by it. So, follow a middle course (in your worship), and if you cannot then be as perfect as you can, rejoice, and gain strength by worshipping in the morning, the afternoon, and part of the night”56.
- The Prophet, peace and blessings upon him, said: “Allāh is gentle, and loves gentleness in everything”57.
- Al-Mughīrah b. Shu‘bah reported that he proposed marriage to a woman; the Prophet, peace and blessings upon him, said to him: “Look at her, for indeed, it is more likely to create lasting affection between you”58.
- The Prophet, peace and blessings upon him, said: “Marry and multiply, for indeed, I shall be taking pride in your numbers among other nations59”.
The Prophet, peace and blessings upon him, said: “O’ young men. Whoever can afford marriage let him get married. It is a guard for his sight and protection against carnal desires; as for those who cannot, let them fast, for it is a restraint for them60”.
-The Prophet, peace and blessings upon him, forbade a woman being married as a second wife to the husband of her paternal or maternal aunt, and added: “if you do that you would have severed your ties of kinship61”.
It is clear that these and other traditions secure, evidence, and address many of the Islamic law objectives, be they general objectives, such as promoting ease, lessening burdens, and eliminating constraints, preserving honour and progeny, or preserving life; or specific objectives relating to marriage, or particular objectives as is the case in prohibiting concurrently being married to a woman and her paternal or maternal aunt.
Third: juristic consensus (ijmā’): as a source of Islamic jurisprudence, juristic consensus ranks after Qur’ān and Sunnah. It may be said that it achieves many objectives, perhaps, the most important is promoting ease, lessening burdens, and eliminating constraints.
Fourth: analogy (qiyās): as a source of Islamic jurisprudence, analogy ranks fourth after the Qur’ān, Sunnah and juristic consensus (ijmā’) and is considered the setting for many objectives of Islamic legislation. Besides, it is considered the context for studying effective cause (‘illah) and wisdom.
Fifth – juristic preference (istiḥsān): this is considered one of the means of independent opinion-based juristic reasoning (ijtihād al-ra’y); this does not apply to mere opinion, because the human mind alone has no function in the domain of the lawful (ḥalāl) and prohibited (ḥarām). Thus, juristic preference is one of the most important sources of independent juristic reasoning (ijtihād), and the most serious and influential on the development of Islamic jurisprudence. Properly applied, juristic preference is a means of growing the body of Islamic jurisprudence, underpinning its flexibility and expansion, and avoiding the restriction and hardship arising from some rulings in their details and branches, as well as overzealous application of analogy (qiyās); indeed, improperly applying juristic preference leads to religious texts being suspended, and the general principles and universal rules neglected.
As for the definition of juristic preference (istiḥsān) in terminology: the scholars have offered many definitions, including: “adopting a ruling on an issue different to that dictated by strict analogy to like issues due to a stronger and more preponderent argument compelling this departure62”.
Juristic preference (istiḥsān), as an indicant, leads in its applications to securing the Islamic law objectives, including procuring the public interest and preventing detriment, relieving hardship, and bringing ease to people. This will be clarified by presenting the types of juristic preference with examples for each type, as follows:
Types of juristic preference: elucidating the types of juristic preference provides further clarity, where several examples are presented. In fact, scholars did not adopt one approach in explaining the types of juristic preference. Some divide juristic preference into two main types, with several other types under each. On the other hand, some enumerate the types of juristic preference63.
Examination of either approach reveals that some types were validated using examples whose ruling is established by juristic preference as an independent source for establishing rulings. However, we find other examples whose source is the revealed text (naṣ), or juristic consensus, not juristic preference as an independent source; it may then be said that these juristic preference types are based on their relationship to the other sources.
The types of juristic preference, as mentioned by some scholars, are64:
1– Juristic preference based on revealed text (istiḥsān bi al-naṣ): which is adopting a ruling on the issue distinct from the general ruling applicable to similar cases, due to a stronger and more preponderant argument, established by the Qur’ān or the Sunnah, compelling such a departure.
An example of juristic preference established by the Qur’ān is the permissibility of making a bequest, which is a posthumous act of donation. General rules decree that such an act is not valid, because the testator is disposing of property after his death, i.e. after they no longer hold title to such property, because death annuls ownership. This act resembles disposing of the heirs’ property, i.e. other persons’ property, because the relationship of testator to his wealth is severed by death; therefore, additional time is granted before loss of ownership is deemed to occur. Otherwise, it is not possible for the transfer of ownership to occur, or for it to be valid. However, the Qur’ānic text stated that it is permissible on the grounds of istiḥsān, where Allāh, the Almighty, says: “… after any bequest they make…” (Sūrat al-Nisā’ 12), due to people’s need for such provisions, and eliminating the hardship resulting from disallowing them.
Examples of juristic preference established by the Sunnah include: permissibility of a forward sale (salm), which is a future sale at a current price; this means that a person sells what they do not possess at the time of contract, for a price paid on the spot at the time of contract. The general principle requires that what is absent at the time of contract cannot be sold; according to the narrated tradition that the Messenger, peace and blessings upon him, said to Ḥakīm b. Ḥizām: “Do not sell what you do not have65”.
This indicant requires that the object of the sale be in the seller’s possession at the time the contract is made. Therefore, it is not permissible to sell what is not in the person’s possession. As such, applying this general principle deems the forward sale not permissible, because it entails selling what one does not possess at the time of contract. However, the revealed text found in the Sunnah of the Messenger, peace and blessings upon him, is: “Whoever engages in forward sale (salm), then let him do so on known measure (kayl) and known weight, for a known price, to a known period”66.
This is because people need this kind of transaction to eliminate hardship arising from disallowing forward sales. Indeed, a farmer may not have money to spend on cultivating his land, and needs someone to lend him. However, he may not find a lender, so he is compelled to sell a specified amount of crop that is yet to grow, i.e. it does not exist at the time of creating the contract. This at a lower price, agreeable to the buyer, on condition that the sold quantity is received at a later date67.
2 – Juristic preference based on juristic consensus (istiḥsān bi al-ijmā‘): This is adopting a ruling on an issue distinct from the general ruling applicable to similar issues, due to a stronger and more preponderant argument established by juristic consensus, which obliges such a departure. Among the examples of juristic preference established by consensus is the permissibility of the manufacturing contract (istiṣnā‘) contract. This is when a person contracts someone to make something for a defined price on specific terms. On general principle, this is not allowed, because a contract for a non-existent object is forbidden by the tradition: “Do not sell what you do not have68”. However, the jurisprudents have allowed it, exempting it from the ruling of similar cases based on istiḥsān. This is because it was customary pratice among people in every age, without objection from any scholar, since people need it, and to mitigate the hardship resulting from disallowing it.69
3 – Juristic preference based on analogy (istiḥsān bi al-qiyās): relates to those cases where the ruling is not clarified by any revealed text, or juristic consensus, and where there are manifestly similar cases, whose ruling is established by a specific principle, and so the like case would be expected to be assigned the same ruling; yet, the ruling selected is distinct, and is referred to another ruling established by another principle to which it has a non-obvious similarity, which would not come to mind, and contrary to the first ruling. The mujtahid jurisprudent would turn from the obvious to the non-obvious due to a stronger and more preponderant argument that necessitates such a choice.
Among the examples of juristic preference based on analogy is the case of the creditor, who stole from his debtor before the agreed period for repaying the debt had elapsed. We encounter its similarity to two fundamentals, i.e. analogies. The first is obvious, which stipulates amputating the thief’s hand, while the other is not obvious, stipulating not amputating the hand of a creditor, who steals from his debtor, if the debt is still due as agreed. It is stipulated in Islamic jurisprudence (fiqh) that whoever steals an amount equivalent to a debt he is owed, then this would be considered as payment of the debt, and his hand is not amputated. Referring this issue to the non-obvious is stronger and more preponderant than referring it to the obvious. Therefore, juristic preference rules to not amputate the hand of a creditor, who stole an amount equivalent to the debt owed by his debtor, before it is due for repayment. This is because the established right, albeit deferred, is deemed extenuating, thus preventing the penalty.
4 – Juristic preference based on custom (istiḥsān bi al-urf): This entails departing in the ruling of the case from that of similar cases to another ruling, due to a stronger and more preponderant argument, established by custom, compelling such a departure. Examples of juristic preference based on custom: the permissibility of establishing an endowment (waqf), based only on movable assets, if this is customary practice, according to some Ḥanafī jurists. Yet, fundamentally, an endowment (waqf) is established in perpetuity, and is therefore, only possible for buildings; this because these can be perpetual and irrevocable, while movable assets are typically included in an endowed building. This means that movable assets that are not part of a building cannot be converted into an endowment (waqf) separately, because they are liable to damage and wear and tear. However, some Ḥanafī jurisprudents exempted the endowment (waqf) of movable assets set by custom, such as books, book shelves, lighting equipment, cleaning tools and carpets needed for mosque flooring, and the like. Ḥanafī scholars allowed endowing such movable items based on juristic preference, because this was established customary practice.
5 – Examples of juristic preference based on public interest (maṣlaḥah): imposition of liability on those offering their labour to the general public (ajīr mushtarak) for damage to people’s belongings in their custody, unless the damage was caused by force majeure that cannot be mitigated or guarded against. This includes the tailor and dyer, if the item of clothing in their custody is lost or ruined for no obvious reason. Imposing liability on those offering their labour to the general public is established by juristic preference, contrary to the original case that the trusted individual is not liable, unless he infringed or was negligent; further, the property in the hands of those offering their labour to the general public is held as a trust, like a deposit in the hands of the depositor. Thus, on the basis of the original case, those offering their labour to the general public, who are trusted, are not liable for loss or damage, unless they infringed or were negligent. However, based on juristic preference, jurisprudents ruled to the contrary, and decided that those offering their labour to the general public were liable for loss or damage arising due to no obvious reason, of the item of clothing in their custody; this is contrary to the original case, for the purpose of securing people’s public interest in preserving their wealth, and for fear of its loss for no obvious reason; indeed, in cognizance of corrupted ethics and weak religious scruples, and also compelling those offering their labour to the general public to be more conscientious and assiduous in caring for people’s property placed in their charge.
Among the examples of juristic preference based on public interest (istiḥsān bi al-maṣlaḥah) is the validity of an endowment established by a person deemed legally incapacitated. This is contrary to the rule stipulating that the donations of a legally incapacitated person are not valid. However, jurisprudents exempted from this rule an endowment for life, by a legally incapacitated person, with himself as designated beneficiary, on the basis of juristic preference. They ruled this was valid, because such an endowment is in his interest, and results in preserving his wealth from loss, as the endowment locks the wealth, and is not open to sale or purchase. Hence, the purpose for which the person was declared legally incapacitated is satisfied, which is to preserve his wealth.
Jurisprudents also excluded from this rule bequests made to charitable purposes by a legally incapacitated person, deeming this valid on the grounds of juristic preference, because he has an interest in it, as he will be rewarded in the hereafter; moreover, it also preserves his wealth from loss. A bequest is not incompatible with preserving wealth, as transfer of ownership only occurs after the person’s demise. The purpose for which he was declared legally incapacitated is fulfilled, which is to preserve his wealth.
6 – Juristic preference based on necessity (istiḥsān bi al-ḍarūrah): departing from the norm on an issue by adopting a ruling distinct from the general ruling applicable to similar issues, due to a stronger and more preponderant necessity, which compels such a departure.
Examples of juristic preference based on necessity include: accepting testimony based on hearsay in matters relating to lineage, death, and marriage; this is contrary to the norm, where hearsay is not acceptable in testimony. Indeed, a witness may not testify to something he has not witnessed himself; because testimony is derived from "witnessing", with certainty of knowledge and sight. This is according to the reported saying of the Prophet, peace and blessings upon him: “If you see as you see the sun, then testify, otherwise do not”.70 However, jurisprudents are of the view that hearsay is permissible in testimony of cases involving lineage, death, and marriage based on istiḥsān, for the sake of ease, and mitigating hardship.
The examination of the reasons behind such matters is the exclusive domain of specialists, and relate to rulings that persist for centuries. Indeed, rejecting hearsay testimony would have led to hardship and suspension of rulings. Thus, for this necessity, jurisprudents allowed hearsay testimony in cases involving lineage, death, or marriage, applying juristic preference.
Other examples of juristic preference based on necessity is the permissibility of a doctor seeing the body of a woman (not his spouse or permanently unmarriageable relative), other than her face and hands. In other words, juristic preference allows the doctor to examine the location of illness for treatment purposes. This is contrary to the norm that prohibits seeing any part of a woman, who is not a spouse or permanently unmarriageable relative, beyond her face and hands.
Based on the foregoing, we note that juristic preference as an indicant, leads to achieving the Islamic law objectives, including procuring the public interest and mitigating detriment, removing hardship and making life easier for people.
Sixth – Textually unattested interests (al-maṣāliḥ al-mursalah): legislating rulings is intended solely to secure people’s interests, i.e. procuring benefit, mitigating harm, and relieving hardship. This is one of the general principles of Islamic law. The book, “al-Muwāfaqāt” (Reconciliations), states: “The establishment of legislation is to take care of the public interests of God’s servants’ (‘ibād) —the term, ‘ibād, servants, is also general and comprehensive —both in the immediate and long term. What is accepted is that through inductive reasoning (istiqrā’), we have found that Islamic law was laid down for people’s public interests… The obligations imposed by Islamic law are related to preserving its own objectives insofar as the creation is concerned71”. The objective of the Legislator in His Ccreation is to preserve their religion, life, wealth, progeny, and intellect. Anything that involves preserving these five assets, is a public interest (maṣlaḥah) that must be guarded, and anything that impairs or undermines them is a detriment (mafsadah), whose opposition is a public interest72.
Some scholars have said: “Allāh’s Law is present wherever there is a public interest73”.
It is common knowledge that incidents are neither limited by individual detail nor occurrence, but are repeated anew along with people’s conditions, and evolve as environments differ. If a revealed text indicates that such incidents should be considered or ignored, then this is acted upon. However, where no such indicant exists to rule on whether an incident should be considered or ignored, while a definite public interest exists, which is not in conflict with revealed texts, and does not entail any detriment or evil. The mujtahid jurisprudent needs a source to regulate such interests, and on which rulings may be established, in every time and place. Therefore, scholars have talked about an indicant based on independent juristic reasoning (ijtihād) termed textually unattested interests (maṣāliḥ mursalah); these serve as an indicant, which leads, in application, to achieving a major objective of the Islamic law, namely procuring the public interest and mitigating detriment.
Examples of this, in the view of some scholars, is Umar b. al-Khaṭṭāb (may Allāh be pleased with him) establishing the system of government administration (sing. diwān), concerned with state affairs and interests. Moreover, the appointment of governors to oversee the state’s financial and military affairs; extending mosques to accommodate the largest number of worshipers; widening roads to facilitate traffic; digging irrigation canals to provide water for agricultural land; imposing tax on agricultural produce from state land in private hands (kharāj); creating urban centres and administrative boundaries; establishing prisons; instituting maintenance payments for each child born in Islam; deducting from governors’ private wealth if they engaged in commerce while in public office and placing such funds in the public treasury (Bayt al-māl); and not keeping married military men away from their wives for longer than four months74.
‘Umar b. al-Khaṭṭāb also instructed that consultation be done by six of the grand Companions, with whom the Prophet, peace and blessings upon him, had been pleased, when he died; they were those remaining from the ten assured Paradise75, namely ‘Uthmān b. ‘Affān, ‘Alī b. Abū Ṭālib, and ‘Abd al-Raḥmān b. ‘Awf, Ṭalḥah b. ‘Ubayd Allāh, al-Zubayr b. al-‘Awwām, and Sa‘d b. Abū Waqqāṣ.
Another example of opinion based on textually unattested interests is ‘Umar b. ‘Abd al-‘Azīz establishing caravansaries (inns) to which strangers could turn. He ordered this based on textually unattested interests, given the huge expansion in the Islamic state, and the large number of travellers and strangers.76.
Another example of opinion based on textually unattested interests, is that of some jurisprudents allowing the levying of taxes on those with means, if required to defend the state, and the public treasury did not have sufficient funds77. Also, admitting the testimony of children against children in incidents, where no adults are present78. Also, executing the purveyor of heretical innovations in religious matters (mubtadi‘), who promotes his heresy, if on balance the harm arising was preponderant and universal.
Another example of opinion based on textually unattested interests is instituting traffic rules and regulations for public roads, establishing postal services, issuing coin and paper money, and introducing foreign forms of government organisation into the Arab context.
Other examples include documenting marriages in an official document to prove the marriage in court, if this is ever denied; recording a property sale contract to transfer ownership; requiring a driving licence from the road traffic department for motorists; issuing licences from the concerned departments for those practicing medicine, engineering, or law; requiring construction licences from municipal authorities for those wishing to build; and many more examples where the ruling is based on textually unattested interests79.
Based on the foregoing, we note that the application of textually unattested interests as an indicant leads to the realisation of a principal objective of Islamic law, namely procuring the public interest, and preventing detriment.
Seventh – Blocking the means (sadd al-dharāi‘): regarding blocking the means, we read in the book, “al-Muwāfaqāt”: “It has become clear that the rule of [blocking] the means is universally agreed to be acceptable in general, while disagreement is over something else80”. Blocking the means as an indicant, leads in its applications to achieving a principal objective of Islamic law, which is procuring the public interest and preventing detriment.
Eighth – Custom (‘urf): applying custom as an indicant leads to achieving many Islamic law objectives, such as bringing ease, and removing hardship.
Finally, it can be said that scriptural indicants are not objectives in themselves, but are the texts of Islamic law from the Qur’ān and Sunnah, and all what was built on, and inferred from the Qur’ān and Sunnah of juristic consensus (ijmā‘), and analogy (qiyās), etc. Rulings were grounded on these indicants, and in turn, these rulings lead to, and secure the objectives. Rulings are means to achieve the objectives. Thus, indicants, rulings, and objectives are inseparably connected.
It seems to me that rulings, effective causes, and wisdoms or objectives are deduced from the indicants, and that the relationship of the objectives to indicants is akin to that of something to its source.
4. The Islamic law objectives are objectives across all schools of Islamic jurisprudence (madhāhib):
In fact, the general objectives (maqaṣid ‘āmah) of Islamic law are a set of objectives in the schools of Islamic jurisprudence; hence, the objective of achieving public interests of all types, whether necessities (ḍarūriyyāt), needs (ḥājiyyāt), or improvements (taḥsīniyyāt); the objective of bringing ease and reducing hardship; the objective of justice and equity, and other general objectives, are all considered objectives by all schools of Islamic jurisprudence, and indeed, all sects and creeds.
This has been confirmed by many scholars regarding public interests or necessities. In terms of the necessities, these are recognised by all schools of Islamic jurisprudence, and indeed, all faiths and laws. Some say81: “it is impossible that prohibiting neglect of these five fundamentals, and warning sternly against violation is absent in any nation or faith meant to improve the creation. For this reason, faiths did not differ on outlawing unbelief, murder, adultery, theft, and consuming intoxicants”.
Some say82: “The rationale of these matters is clear, these are known as the five universals, which were not permitted in any faith community”.
Others say83: “And they are necessary, and have not been forsaken in any faith community”.
Others say84: “The necessary is that which includes preservation of one of the five objectives, which all faiths agree on preserving”.
Others say85: “If it is a fundamental (aṣl), it is referred to the five objectives, which were safeguarded by all faith communities and religious codes”.
Likewise, the specific objectives (al-maqaṣid al-khāṣṣah) are a set of objectives in all schools of Islamic jurisprudence. For example, the objectives of marriage, inheritance, or custody are objectives in all schools of Islamic jurisprudence. No school of jurisprudence lacks them; for example, the specific objectives of marriage are: tranquility, affection, and compassion, which is an objective recognised by all.
As for the particular objectives (al-maqaṣid al-juz’iyyah), it can be said that they are narrower or wider in scope from one school of Islamic jurisprudence to another. It may also be said that the particular objectives differ according to the legal ruling itself, so whoever adopted permissibility had an objective in mind, and whoever accepted proscription also had an objective in mind.
> The Third Point: The Universal Declaration of Human Rights (UDHR) and the Islamic law objectives that are necessities (ḍarūriyyāt)
Preface: Since the Universal Declaration of Human Rights was issued by the United Nations General Assembly on 10 December 1948CE, Western countries have considered it a product of their legal and civilisational heritage, and symbol of their progress. The General Assembly called on all member states, regardless of their political or regional status, to promote, publish, distribute, study and explain the Declaration, especially in schools and other educational institutions.
The Universal Declaration of Human Rights consists of a preamble and thirty articles. The Preamble states: “Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”.
The Preamble affirms: “Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want…
…Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law.
…Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life and larger freedom.
Whereas Member States have pledged themselves to achieve, in cooperation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms.
Now, therefore, the General Assembly proclaims this Universal Declaration of Human Rights as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction”.
Looking at the Declaration, one finds a set of necessary rights, which Islamic law sought to secure through those objectives that are necessities. We have already pointed out that Islamic law has numerous, and diverse general objectives. These include: the objective of securing people’s public interests, under which come several other general objectives, such as the objectives that are necessities, which are those objectives essential for establishing the public interests of religion and human life, namely, the preservation of religion, life, wealth, honour and progeny, lineage, and intellect.
Below, we shall present these rights and their basis in indicants from the perspective of these Islamic law objectives:
1 – The human being’s right to life
This was among first human rights mentioned in the Universal Declaration of Human Rights, which stressed that every individual has a right to life. Article 3 says: “Everyone has the right to life…86”.
The human being’s right to life and the objective of preserving life in Islam:
The human right to life is secured through the objective of preserving life; one of the general objectives of Islamic law, which it considers and works to achieve through its legislative domains. It is also considered one of the necessity objectives, indispensable to materialising the public interests of religion and life.
In Islam, the prime human right is the right to life. It is a prerequisite, a sine-qua-non, for all other rights to be realised. A person cannot enjoy any right without life, and as such, this is a sacred right, as Allāh made the human soul an honoured creature. He created the human with His Hand and commanded His honourable Angels to prostrate before him, preferring the human being over much of His Creation. Allāh granted humans life, and no one has the right to cause detriment or threaten its well-being. For this reason, Allāh laid out legislation to preserve the human soul’s right to life. He established that any violation of this right, by killing, is a capital crime, tantamount to aggression against the whole of mankind. Further, Allāh established that providing the means to give life to one human is equal to doing so for mankind in its entirety.
Allāh, the Almighty, said: “On account of [his deed], We decreed to the Children of Israel that if anyone kills a person– unless in retribution for killing someone else, or for spreading corruption in the land– it is as if he murdered all mankind, and if anyone gives life to another person, it is as if he had given life to all mankind. Our messengers came to them with clear signs, but many of them continued to commit excesses in the land” (Sūrat al-Mā’idah 32). Allāh also said: “…do not kill any person that Allāh has made inviolate, except by right. This is what He commands you to do, so that perhaps you will use your reason” (Sūrat al-An‘ām 151). Allāh also said: “Do not kill any person, which Allāh has made inviolate, except by right: if anyone is wrongfully killed, We have given authority to his next of kin, but he should not be excessive in taking life, for he is already aided [by Allāh]” (Sūrat al-Isrā’ 33). And He said: “If anyone kills a believer deliberately; his punishment is Hell, and there he will remain. Allāh is angry with him, and has cursed him, and has prepared a terrible torment for him” (Sūrat al-Nisā’ 93).
Emphasising the human being’s right to life, the Prophet, peace and blessings upon him, said: “The extinction of the whole world is less important to Allāh than the slaying of a Muslim man87”.
It was reported that during the era of the Prophet, peace and blessings upon him, a man was killed and the killer was not discovered; so, the Prophet, peace and blessings upon him, climbed the pulpit and said: “O’people… A man is killed while I am among you and the culprit is unknown. If the people of the heavens and the earth agree to slay a person, Allāh would punish them, or do what He may will88”.
He, peace and blessings upon him, also said: “whoever assists in slaying a Muslim, even with part of a word, will come on the Day of Resurrection with the words written between his eyes: despairing of Allāh’s mercy89”.
Indeed, if Islam prohibited the assault on a person’s right to life by others, it also prohibited the assault by the person himself on this right. The Almighty said: “Do not kill yourselves. Allāh is Most Merciful to you” (Sūrat al-Nisā’ 29). The Prophet, peace and blessings upon him, also said: “Whoever throws himself off a mountain and kills himself, he will be in Hell forever. Whoever sips poison and kills himself, he comes up in Hell with the poison in his hand and sipping it, and will abide there forever. Whoever kills himself with a piece of metal, he will come up in Hell with the piece of metal, stabbing his belly forever90”. The Prophet, peace and blessings upon him, said: “Whoever kills himself with whatever instrument, will be tormented by it on the Day of Resurrection91”. It was narrated that he, peace and blessings upon him, said: “A man of the past nations was wounded and he grew impatient [with the pain] . So, he took a knife and cut his hand, so his blood flowed until he died. Allāh said: My servant hurried to bring death upon himself. I made Paradise forbidden for him92”.
It is clear from the foregoing texts that killing oneself or committing any kind of aggression against oneself is forbidden. This is because the human’s life is not his property, but the property of Allāh, the Almighty.
Islam established that aggression on the soul is the same for all without distinction; a woman like a man, a child like an old man, and a rich person like a poor person. Allāh, the Almighty, decreed retribution by killing the perpetrator (qiṣāṣ) as punishment for such an act, and as a deterrent to this crime, and a measure to protect this right; the Almighty said: “There is life for you in retribution, people of understanding, so that you may guard yourselves against what is wrong” (Sūrat al-Baqarah 179).
In Islam, the right to life is enshrined for both Muslim and non-Muslim. In addition to the above Qur’ānic verses and Prophetic traditions, which do not discriminate between Muslim or other in protecting and emphasising this right; the Prophet, peace and blessings upon him, said: “Whoever kills a person protected by a treaty shall not smell the fragrance of Paradise…93”. He, peace and blessings upon him, also said: “Whoever kills a person from among the protected non-Muslims (ahl al-dhimmah), Allāh has forbidden him entry into Paradise”. He, peace and blessings upon him, also said: “Whoever kills a person protected by covenant from Allāh and covenant from His Messenger, has violated the covenant of Allāh and shall not smell the fragrance of Paradise, though its fragrance can be detected from a distance of seventy autumns94”.
It is clear from the above that the human right to life stipulated in the Universal Declaration of Human Rights is established, emphasised, and protected in Islam. This right aims to secure the objective of preserving life, which is one of Islamic law’s general and necessary objectives.
2 – The human right to the security of person:
One of the rights in the Universal Declaration of Human Rights is the right to security of person, where it emphasised that every individual has the right to security of life, mentioning several manifestations of that right. Article 3 states that: “Everyone has the right to… security of person95”.
Article 5 states: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”.
Article 9 states: “No one shall be subjected to arbitrary arrest, detention or exile”.
The human right to the security of person and the objective of preserving life in Islam:
The human right to the security of one’s person is considered one of the complementary rights that stems from the human’s right to life. This right is also secured through the objective of preserving life, which is one of the general objectives that Islamic law takes into account and seeks to materialise through its legislative domains; it is also necessary for realising the public interests of religion and life.
The right of a person to security of his person is stipulated in Islam, whereby Islam prohibits every act that diminishes this right, whether intimidation, abuse, beating, detention, or such like; in other words, Islam prohibited every act, whether physical or moral, that detracts from this right .
The Prophet, peace and blessings upon him, is reported to have said: “The Muslim’s back is inviolate except rightfully96”.
He, peace and blessings upon him, also said: “Whoever exposes a Muslim’s back [to flogging] without right, will meet Allāh, Who is angry with him97”.
He, peace and blessings upon him, also said: “It is not lawful for a Muslim to frighten a Muslim98”.
He, peace and blessings upon him, said: “Do not frighten a Muslim; frightening a Muslim is a grave injustice99”.
He, peace and blessings upon him, said: “One should not point a weapon at his brother; none of you knows, as perhaps Satan may cause his hand to move, and he falls into a pit in Hell100”.
The Prophet, peace and blessings upon him, also said: “Do not stand by while a man is being beaten unjustly; indeed, Allāh’s curse will befall all those present for not defending him”101.
The right of the person to security of his person in Islam is not only prescribed for Muslims, but non-Muslims as well. Hishām b. Ḥakīm b. Ḥizām narrated that he passed through the Levant and saw people made to stand in the sun with oil poured on their heads. He said: What is this? He was told: They are being tortured for [not paying] the kharāj. Hishām said: I heard the Messenger of Allāh, peace and blessings upon him, saying: “Allāh will torture those who torment people in this world102”. In the narration reported by Jarīr, Hishām is reported to have said: Their Emir at the time was ‘Umayr b. Sa‘d, with jurisdiction over Palestine; so he went and spoke to him, and he commanded they be freed.
It was reported that Zayd b. Sa‘nah, a Jewish rabbi, lent the Prophet, peace and blessings upon him, a sum needed to cover a deficit in the affairs of new Muslims. However, he decided to ask for earlier settlement of the debt. He said: I went to him, i.e. the Prophet, peace and blessings upon him, and took hold of his tunic and robe, stared at him sternly, and said to him: O’ Muḥammad, will you not pay me what you owe? By Allāh, I know you—children of ‘Abd al-Muṭṭalib—only as procrastinators, and through my dealings with you, I know of your behaviour! ‘Umar looked at me, with his eyes rolling in his face like a round orb; he then cast me a stare, and said: O’ enemy of Allāh! You say to the Messenger of Allāh, peace and blessings upon him, what I heard and do to him what I saw? By Him in Whose Hand my soul is, were it not for that which I fear loss, my sword would have cut your head. All the while, the Messenger of Allāh was looking at me with calm and patience; he said: “O’ ‘Umar! He and I deserved better than this; You should have ordered me to pay my debt in the best manner, and ordered him to follow up his debt in the best manner. O’ ‘Umar! take him and give him what is due to him, and add twenty measures (sā‘) of dates more, in compensation for frightening him103”.
Zayd said: ‘Umar took me, and gave me my right, and an extra twenty measures of dates. So I said: ‘Umar, what is this extra? He said: The Messenger of Allāh, peace and blessings upon him, ordered me to give you extra, to compensate for frightening you. Thus, we see that while the Jewish man had harmed the Prophet, peace and blessings upon him, verbally and physically, the Prophet, peace and blessings upon him, did not permit that the man be harmed, and ordered that he be compensated for what ‘Umar (may Allāh be pleased with him) had done and said.
The Prophet, peace and blessings upon him, said: “Whoever harms a non-Muslim subject (dhimmī) he will have me as his opponent, and whoever I oppose shall have me as his adversary on the Day of Resurrection104”. He, peace and blessings upon him, also said: “If anyone wrongs a man with whom a covenant has been made, or diminishes any right of his, or imposes on him more than he can bear, or takes anything from him without his ready agreement. I shall stand against him on the Day of Resurrection105”.
It is clear from the above that the human right to the integrity of person specified in the Universal Declaration of Human Rights has already been stipulated, emphasised and safeguarded in Islam. Islam aims to secure the objective of preserving life, which is one of the general Islamic law objectives considered necessities.
3 – The person’s right to own, and to protect his property:
One of the rights stipulated in the Universal Declaration of Human Rights is the right to own and protect property. Everyone has the right to own property individually or in association with others, and no one shall be arbitrarily deprived of their property106.
Related to this right is the person’s right to protect his intellectual property. Everyone has the right to the protection of their moral and material interests resulting from any scientific, literary or artistic production of which he is the author107.
The person’s right to ownership and protection of his property and the objective of preserving wealth in Islam:
The person’s right to ownership and protection of their property is achieved through the objective of preserving wealth. This is a general objective that Islamic law considers, and works to secure through its legislative domains. The human right to ownership and protecting property is established and emphasised in Islam, which strives to achieve it through its legislative domains. It is also considered one of the necessary objectives that are indispensable to establish the public interests of religion and life.
Among others, Allāh created in man the innate instinct to own and to prize wealth, which drives his quest to gain a livelihood, build the world, and survive. There is a relationship between ownership and wealth, in the sense that ownership in its common manifestations is applied to wealth108. Indeed, money is a life force, and it is in man’s innate nature to crave wealth. Allāh, the Almighty, said: “And you have an insatiable love for wealth!” (Sūrat al-Fajr 20), and: “Truly, he (man) loves wealth with extreme vigour” (Sūrat al-‘Ādiyāt 8).
The Prophet, peace and blessings upon him, said: “If the son of Adam had two valleys of wealth, he would seek a third. Nothing will fill his belly but dust, and Allāh accepts those the repentance of those who repent109”. The Prophet, peace and blessings upon him, also said: “The son of Adam grows old, but two things grow younger: desire for wealth and desire for life110”.
Islam established the person’s right to ownership and protection of his property, and associated property with people. Allāh, the Almighty, said: “O’ you who believe, do not consume each other’s wealth by false means, but only by means of mutually agreed trade…” (Sūrat al-Nisā’ 29).
Islam also protected the person’s earnings, and instituted ownership. The Prophet, peace and blessings upon him, said: “Whoever revives dead land, it belongs to him, and the unjust root [i.e. whatever is taken or planted unlawfully] has no right111”.
He, peace and blessings upon him, also said: “No one is allowed to take anything for his Muslim brother’s wealth, in jest or seriousness; and if he did take any, he should return it to him112”.
He, peace and blessings upon him, said: “… nothing [taken] from a Muslim’s wealth is permissible, except what he gives with goodwill113”.
Islam’s respect for ownership is evident in its respect for wealth, which is the object of such ownership; Islam forbade violation of wealth, in any shape, way, or form. It outlawed theft, and instituted a deterring punishment for it. Allāh, the Almighty, says: “As for thieves, male or female, cut off their hands in reprisal for what they have done; an object lesson from Allāh: Allāh is Almighty, All-Wise” (Sūrat al-Mā’idah 38).
It also instituted a deterrent punishment for bandits, who intimidate and terrorise people, rob their money, and kill them. Allāh, the Almighty, said: “The reprisal against those who wage war on Allāh and His Messenger and go about corrupting the land, is that they should be killed or crucified, or have their alternate hands and feet cut off, or be banished from the land: that will be their degradation in this world, and in the Hereafter, they will have a terrible punishment” (Sūrat al-Mā’idah 33).
The Prophet, peace and blessings upon him, said: “Your blood, and your wealth, and your honour are forbidden for you to violate, like the sacredness of this day of yours, in this city of yours, in this month of yours114”.
Man also has the right to protect and defend his wealth. It was reported that a man came to the Prophet, peace and blessings upon him, and said: O’ Messenger of Allāh! What if a man came to take my wealth? He said: “Do not give him your wealth”. He said: if he fights me? The Prophet said: “then fight him”. He said: What if he kills me? The Prophet said: “You will be a martyr”. He said: What if I killed him? The Prophet said: “He will be in the Hell Fire115”. The Prophet, peace and blessings upon him, said: “Whoever is killed defending his wealth is a martyr116”.
Just as Islam protected individual ownership, it also recognised and protected collective ownership. He, peace and blessings upon him, said: “People are partners in three things: water, pasture, and fire117”.
It is clear from the above that the human right to ownership and its protection, specified in the Universal Declaration of Human Rights, has already been established, emphasised, and protected in Islam. This right seeks to secure the objective of preserving wealth, which is one of
Islamic law’s general and necessary objectives.
4 - The human right to freedom of thought, freedom of opinion and expression:
The human right to thought is guaranteed by the Universal Declaration of Human Rights. Everyone has the right to freedom of thought118. Among the rights emphasised by the Universal Declaration of Human Rights is the human right to freedom of opinion and expression; Article 19 stated that: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers”.
The human right to freedom of thought, opinion and expression and the objective of preserving intellect in Islam:
The human right to thought is stipulated and emphasised in Islam. It is a right achieved through the objective of preserving intellect, which is one of the general objectives that Islamic law considers and works to achieve through its legislative domains. It is also considered one of the necessary objectives, indispensable for materialising the interests of religion and life.
Allāh, the Almighty, favoured the human being with reason, and distinguished him from animals. Islam granted the intellect great importance, making it the prerequisite for religious duty (manāṭ al-taklīf); the intellect is the means to knowledge and progress, and so preserving it is an indispensable necessity, without which people’s life is not proper. Islamic law prohibited everything that corrupts, absents, or impairs the mind; it outlawed all types of intoxicants and drugs, so as to preserve the intellect.
Some119 have expressed this as: “Indeed, reasoning is an obligation and one of the necessary rights, inviting attention to its preservation; thus leading to stability of both religion and human soul, in equal measure. Because, reasoning is the backbone of every action related to a public interest, and its deviation results in great detriments”.
The intellect is the instrument of thinking and creativity. Islam has recognised the right of a person to think about his affairs, and then express himself through the various means of expression. Every person can think and express his thoughts without interference or prohibition by anyone, as long as he is acting within the limits set by Islam, in this regard.
There are many Qur’ān verses indicating the freedom of thought and exercising the intellect, including Allāh, the Almighty, saying: “Say [Prophet], ‘I exhort you to do one thing: stand before Allāh, in pairs or singly, and then reflect: your companion [the Prophet] is not possessed. He is only a warner to you ahead of a terrible punishment” (Sūrat Saba’ 46).
Allāh, the Almighty, said: “They ask you [Prophet] about intoxicants and gambling: say, ‘There is great sin in both, and certain benefits for people. But the sin in them is greater than the benefit.’ They ask you what they should give away. Say, ‘Whatever is surplus to your needs.’ In this way, Allāh makes His Signs clear to you, so that you may reflect” (Sūrat al-Baqarah 219).
Allāh, the Almighty, said: “Would any of you like to have a garden of palm trees and vines, graced with rivers flowing underneath and containing all kinds of fruits, then to be stricken with old age, and have children who are weak, and then for a fiery whirlwind to strike it and burn it down? In this way Allāh makes His Signs clear to you, so that you may reflect” (Sūrat al-Baqarah 266).
Allāh, the Almighty, said: “Say, ‘I do not say to you that I possess the treasures of Allāh, nor do I know the unseen, nor do I say to you that I am an angel. I only follow what has been revealed to me.’ Say, ‘Are the blind the same as those who can see? So will you not reflect?’ ” (Sūrat al-An‘ām 50).
Allāh, the Almighty, said: “With it He makes crops grow for you, and olives, palms, grape vines, and fruit of every kind. There is truly a Sign in that for people who reflect” (Sūrat al-Naḥl 11).
Allāh, the Almighty, said: “It is He who stretched out the earth, placed firmly embedded mountains and rivers in it, and made two types of every kind of fruit. He draws the veil of night over the day. There truly are signs in that for people who reflect” (Sūrat al-Ra‘d 3).
Allāh, the Almighty, said: “Then eat from every kind of fruit and travel the paths made easy for you by your Lord.’ From inside them comes a drink of varying colours, containing healing for people. There is truly a sign in this for those who reflect” (Sūrat al-Naḥl 69).
Allāh, the Almighty, said: “And He has made everything in the heavens and everything on the earth subservient to you. It is all from Him. There are truly signs in that for people who reflect” (Sūrat al-Jāthiyah 13).
Allāh, the Almighty, said: “Allah takes back people’s souls when their death arrives and those who have not yet died, while they are asleep. He keeps hold of those whose death has been decreed and sends the others back for a specified term. There are certainly Signs in that for people who reflect.” (Sūrat al-Zumar 42).
Allāh, the Almighty, said: “It is He who gives life and death, and His is the alternation of the night and day. So will you not use your intellect?” (Sūrat al-Mu’minūn 80).
Regarding the freedom to express opinion, Allāh, the Almighty, said: “[Believers], only argue with the People of the Book in the best way, except with those of them who act unjustly. Say, ‘We believe in what was revealed to us and in what was revealed to you; our God and your God are one, and we submit to Him’ ” (Sūrat al-‘Ankabūt 46).
It was narrated that the Prophet, peace and blessings upon him, said: “None of you should demean himself”, and they said: O Messenger of Allāh, how can one of us demean himself? He said: “He considers that he must say something, but does not. On the Day of Resurrection, Allāh, Most Glorious, Most Magnificient, will say: What stopped you from saying such and such? He will say: fear of the people. Allāh will say: I was more deserving of your fear120”.
Concerning the freedom of opinion, the traditions about the Companions include the report that ‘Umar, may Allāh be pleased with him, said in one of his sermons: O’people, if anyone sees deviation in me, he should put me right. One man answered him: By Allāh! If we saw any deviation from you, we would straighten you with our swords. To which ‘Umar responded to him with complete satisfaction, saying: Thanks to Allāh for making among the Muslims people who would correct ‘Umar’s deviation with their swords. ‘Umar added: You are no good if you do not say it, and we are no good, if we do not listen121”.
While Islam has granted every person the right to think and express his thought and opinion without interference or prohibition from anyone, it restricted this right to limits it established in this regard. For example, the exercise of this right should not entail the promotion of indecency, or broadcasting or publishing incorrect information, contrary to the truth. The Almighty said: “Those who love to see indecency spread among the believers will have a painful punishment both in this world and the next: Allāh knows and you do not” (Sūrat al-Nūr 19).
It is clear from the above that the human right to freedom of thought, opinion and expression, stipulated in the Universal Declaration of Human Rights, is established, emphasised and safeguarded in Islam. It is a right that aims to secure the objective of preserving the intellect, which is one of Islamic law’s general and necessary objectives.
5 – The person’s right to education:
The human right to education is one of the human rights recognised and emphasised by the Universal Declaration of Human Rights, which elucidated its features, manifestations, and stages122. It granted everyone a mandatory right to education, where at least elementary and fundamental stages of education must be free, and elementary education compulsory. Moreover, technical and professional education must be made generally available, and higher education equally accessible to all on the basis of merit. Education must be directed to the full development of the human personality and strengthening respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace. Finally, parents have a prior right to choose the kind of education given to their children123.
The human right to education and the objective of preserving the intellect in Islam:
The human right to education is complementary to the right to freedom of thought, opinion and expression; these rights are offshoots of the objective of preserving the intellect, which is one of Islamic law’s general objectives to which Islam granted attention, and works to achieve through its legislative domains. It is also a necessary objective, which is indispensable for preserving the interests of religion and life.
Learning in Islam is not merely a human right, which a person may choose to exercise, and thus learn and gain knowledge, or refuse and remain ignorant; rather, it is a duty (wājib) or obligation (farḍ). The Prophet, peace and blessings upon him, said: “Seeking knowledge is an obligation on every Muslim124”. Learning occupies an eminent position in Islam; indeed, the first Qur’ān chapter (sūrah) revealed linked the creation of man to his education, as if to indicate that lack of education diminishes man’s humanity. Allāh, the Almighty, says: “Read! In the Name of your Lord who created; [He] created man from a clinging form. Read! Your Lord is the Most Generous; He who taught by [means of] the pen; who taught man what he did not know” (Sūrat al-‘Alaq 1-5). He, the Almighty, said: “The All-Merciful; taught the Qur’ān. He created man; and taught him clear expression” (Sūrat al-Raḥmān: 1-4).
If Islam obliged learning as a duty on all Muslims, male and female, it made the provision of education for all people an obligatory duty on those in authority; Allāh, the Almighty, says: “It is He who raised up among the unlettered people a Messenger from them to recite His Signs to them, and purify them and teach them the Book and Wisdom, even though before that they were clearly misguided” (Sūrat al-Jumu‘ah 2).
The Prophet, peace and blessings upon him, said: “Whoever pursues a path in search of knowledge, Allāh will thereby make easy for him a path to Paradise125”.
It is clear from the foregoing that the human right to education, specified in the Universal Declaration of Human Rights, is established, emphasised and protected in Islam. This right aims to achieve the objective of preserving the intellect, which is one of Islamic law’s general and necessary objectives.
6 – The human right to marry and raise a family:
The Universal Declaration of Human Rights guaranteed and reinforced the human right to marry and raise a family. It clarified and emphasised that men and women, on reaching full age, shall have the right to marry without any limitations due to race, nationality or religion. They are entitled to equal rights as to marriage, during marriage, and at its dissolution. Marriage shall be entered into only with the free and full consent of the intending spouses, who have equal rights as to marriage, during marriage, and at its dissolution. They have the right to found a family, which is the natural and fundamental group unit of society and is entitled to protection by society and the State126.
The human right to marriage and founding a family, and the objective of preserving honour, progeny, and lineage in Islam:
The human right to marry and form a family is achieved through the objective of preserving honour, progeny, and lineage, which is one of the general objectives that Islamic law takes into account and seeks to achieve through its legislative domains. It is also one of the necessary objectives that is indispensable for the establishment of the interests of religion and worldly life.
The person’s right to marry and form a family is an established and emphasised right in Islam; indeed, it is a sacred right. The family in Islam is considered society’s first building block, and marriage is the only legitimate basis to form a family and have children. It is a right for every human being on reaching puberty. Hence, Islam provided extensive rulings on marriage, clarifying its wisdom or objectives, its pillars and conditions, the rights and obligations of each spouse, the means of preserving it, its termination between the spouses by legal means, when the need arises, or based on the interest of one or both spouses.
Islam also made it clear that neither man nor woman may be forced into a marriage they do not want. Rather, each must agree to marrying the other; Islam made this an important pillar of the marriage contract. It was reported that a virgin came to the Prophet, peace and blessings upon him, and mentioned that her father had forced her to marry against her will. The Prophet, peace and blessings upon him, allowed her to exercise her choice.
One of the objectives of the marriage is founding a family, and the preservation of honour, progeny, and lineage, i.e. marriage protects the human being’s virtue and purity, and preserves the human race and the continuity of life. Allāh, the Almighty, says: “it is Allāh who has given you spouses from amongst yourselves and through them He has given you children and grandchildren…” (Sūrat al-Naḥl 72). Allāh, the Almighty, also said: “O’ people, be mindful of your Lord, who created you from a single soul, and from it created its mate, and from the pair of them spread countless men and women far and wide…” (Sūrat al-Nisā’ 1).
The preservation of honour, lineage, and progeny is a general objective of Islamic law, which prohibits the violation of a person’s honour, dignity, or reputation. The Prophet, peace and blessings upon him, said: “Your blood, and your wealth, and your honour are forbidden for you to violate, like the sacredness of this day of yours, in this city of yours, in this month of yours127”.
Indeed, the human right to marriage and founding a family secures many other specific objectives, including affection, compassion, and tranquillity between spouses. This right provides the serenity necessary for the human being to fulfil himself, due to the mutual care afforded by family members, emotionally, materially, and socially. Allāh, the Almighty, says: “Among His signs is that He created spouses for you of your own kind so that you might find tranquillity in them. And He has placed affection and compassion between you. There are truly signs in that for those who reflect” (Sūrat al-Rūm: 21). And He says: “It is He who created you all from one soul, and from it made its mate so that he might find comfort in her…” (Sūrat al-A‘rāf 189128) .
In the previous Qur’ān verses, one notes emphasis on the common origin of spouses, male and female, who were created from a single soul. This highlights the principle of equality between spouses, and facilitates harmony and mutual understanding between them. The verses refer to the man and woman with the Arabic term, “zawj”, i.e. “spouse”, which in classical Arabic is gender-neutral, and used for both masculine and feminine; this again emphasises the principle of equality between them. For this reason, Islamic law granted each spouse comparable rights and obligations to the other; Allāh, the Almighty, says: “… Wives possess rights similar to those held over them to be honoured with fairness; but men have a degree above them…” (Sūrat al-Baqarah 228).
Among the rights due to wife and children is that the man should spend on them, and care for them, within his means. Allāh, the Almighty, says: “He who has plenty should spend from his plenty, but he whose provision is restricted should spend from what Allāh has given him. Allāh does not demand from any soul more than what He has given it. After hardship, Allāh will bring ease” (Sūrat al-Ṭalāq 7). Parents are required to give their children the best upbringing and education possible, while children are expected to respect their parents and obey them in all matters recognised as good. Allāh, the Almighty, said: “Take them under your wing, out of mercy, with due humility, and say, ‘Lord, show mercy to them, as they did in looking after me when I was small” (Sūrat al-Isrā’ 24).
Children are also obliged to care for, and support, their parents as they grow old. The Prophet, peace and blessings upon him, said: “You and your wealth belong to your father129”. A companion asked Allāh's Messenger, peace and blessings upon him: O’ Messenger of Allāh, who among the people is most deserving of the best of my companionship? He replied: “Your mother”. The enquirer said: Who else? He replied: “Your mother”. He said: Who else? He replied: “Your mother”. He asked: Who else? He replied: “Your father130”.
Thus, in the shade of the family, children imbibe the sentiments of love, mercy, mutual support, and equality, which help them build a society of tolerance and solidarity.
It is worth mentioning in this regard that in Islam, marriage has well-known rulings in its jurisprudence, composed of obligatory pillars, requirements, preclusions, and legal effects, as well as ways of dissolution; all of which must be complied with. Therefore, if the articles of the Universal Declaration of Human Rights agree with these rulings, then all is well and good; for example, the case of the marriage contract not being valid without the free consent of both parties. However, if the provisions of the Universal Declaration of Human Rights differ with Islam’s rulings, then these must be set aside, and Islam’s rulings applied. Indeed, the Universal Declaration of Human Rights states that a man has the right to marry any woman without any restrictions due to religion, and that a woman has the right to marry any man without any restrictions due to religion; a case which, in Islam, is subject to well-known regulations and rulings131.
It is clear from the foregoing, that the human right to marriage and forming a family stipulated in the Universal Declaration of Human Rights, is well-established, affirmed, sanctified, and protected in Islam. It is recognised as a right that aims to preserve honour, lineage, and progeny, which are general and necessary objectives of Islamic law, taking into account the special rulings relating to marriage set out in Islam.
7 – The human right to freedom of belief
The Universal Declaration of Human Rights stressed the importance of the right to freedom of belief. It stipulated that everyone has the right to freedom of religion, including the right to change one’s religion or belief, and the freedom to manifest that either in teaching, practice, and establishing and observing ritual worship, whether privately as an individual or publicly in community with others132.
The human right to freedom of belief and the objective of preserving religion in Islam:
The human right to freedom of belief is an established, emphasised and sanctified right in Islam. It is manifested through the objective of preserving religion, which is one of the general objectives that Islamic law considers and works to secure through its legislative domains. It is also considered a necessary objective that is indispensable for the establishment of the interests of religion and life.
Islam recognised a human being’s freedom of belief; indeed, the freedom of religious belief is guaranteed in Islam, and no one may be forced to embrace Islam. Allāh, the Almighty, says: “There is no compulsion in religion: true guidance has become distinct from error…” (Sūrat al-Baqarah 256). And He says: “you have your religion and I have my religion” (Sūrat al-Kāfirūn 6). At the time of the Message, the Messenger, peace and blessings upon him, was ordered by Allāh, the Almighty, to deliver the message of Islam to people, and to leave them the choice to accept it or not. Allāh, Glorified and Supreme, says: “So [Prophet] remind them: you are only a reminder; you are not in control of them” (Sūrat al-Ghāshiyah 21-22). Allāh, the Almighty, says: “We know best what they [the disbelievers] say. You [Prophet] are not a dictator over them. So remind, with the Qur’ān, whoever fears My Threat” (Sūrat Qāf 45). Allāh, the Almighty, says: “Say, ‘It is the truth from your Lord; so let whoever wishes have belief, and whoever wishes to be an unbeliever’…” (Sūrat al-Kahf 29).
The Prophet, peace and blessings upon him, confirmed this right in the ‘Madinah Charter”, in which he recognised non-Muslims having their own religious beliefs. The Charter states that “…Jews have their religion and Muslims have their religion…133”.
The freedom to belief and worship must be respected by all. As jurisprudents say: leave them to what they believe in; they have rights like us, and obligations like us134.
It is worth noting in this regard that for the Muslim person, the bounds on freedom of belief and worship in Islam are defined by the rulings on apostasy that are well-known in Islamic jurisprudence. The Muslim is not allowed to renounce his religion, where the apostate is the one who voluntarily rejects the Muslim religion of his own volition and choice, even if he chooses another religion. Both the apostate’s renunciation of Islam, and the new religion they adopt, are not recognised.
The ruling here is to ask them to repent. If they return to Islam, then they are Muslim. However, if they insist on apostasy, they would be liable to capital punishment, in the case of a man, but a woman would be incarcerated for life until she repents or dies. This distinction, in ruling execution for a man and incarceration for a woman, is made by the Ḥanafī and Shī‘ah Imāmiyyah schools of jurisprudence.
It is clear from the foregoing that the human right to belief and freedom to worship, stipulated in the Universal Declaration of Human Right, is well-established, affirmed, and protected in Islam. It is recognised as a right that aims at preserving the objective of preserving religion, which is a general and necessary objective of Islamic law, while adhering to the special rulings on apostasy in Islam.
One notes that the Universal Declaration of Human Rights recognised and affirmed the person’s right to litigate in case of violation of his fundamental rights135. It seems to me that this right aims to achieve all the objectives that are necessities (ḍarūriyyah), depending on the nature of the claim subject to litigation. This right is established and confirmed in Islam, where the body of Islamic jurisprudence is replete regarding the right to litigation, such that it cannot all be presented here.
The previously-mentioned human rights and objectives are acknowledged by all faiths, laws, and the sound human innate:
The previous human rights are rights and objectives recognised by all faiths, laws, sound innate natures, and sensible minds136. Some have said137: “It is impossible for any faith community or legislation that intends to improve the human beings’ state not to include prohibition or stern warning regarding eschewing these five principles. For this reason, legislations did not differ on proscribing unbelief, murder, adultery, theft, and the consumption of intoxicants”.
Some say138: “The rationale for these matters is obvious, and they are are known as the five universals, whose violation was not permitted in any faith”.
Some say139: “they are necessary, and have not been forfeited in any faith community”.
Some say140: “The necessary is that which includes the preservation of one of the five objectives, which faiths have agreed to preserve”.
Some say141: “If it is a principle (aṣl), then it is referred to the five objectives that no faith or legislation failed to adopt”.
> The Fourth point: The Universal Declaration of Human Rights and the Islamic law objectives that are needs (maqāṣid ḥājiyyah)
Looking into the Universal Declaration of Human Rights, one finds a set of rights that Islamic law sought to achieve through the objectives that are needs. We have already pointed out that Islamic law has numerous, and diverse general objectives. They include the objective of “securing people’s public interests”, which covers several other general objectives, including objectives that are needs. These complement the preservation of necessary interests through removing constraints and eliminating hardship. Indeed, without the public interests that are needs, life becomes harsh, and constraints prevalent.
We will mention and ground these rights from the perspective of these objectives, as follows:
1 – The human right to freedom of movement and to seek refuge in another country:
The Universal Declaration of Human Rights affirms the human right to freedom of movement, stressing that everyone has the right to freedom of movement and choosing his place of residence within the borders of each state. It stipulates that everyone has the right to leave any country, including his own, and to return to it142.
The Universal Declaration also affirmed the human right to asylum in another country, stipulating that everyone has the right to seek refuge in other countries or try to seek refuge in them in order to escape persecution. This right may not be invoked by those prosecuted for non-political crimes, or acts that contradict the United Nations’ purposes and principles143.
The human right to freedom of movement and taking refuge in another country, and the interest that is a need in Islam.
Both the human rights to freedom of movement and seeking refuge in another country are effected in Islam through the interests that are needs, and are established rights in Islam. Allāh, the Almighty, says: “It is He who has made the earth subservient to you, so walk its broad trails, and eat of His Provision, and to Him you will be resurrected” (Sūrat al-Mulk 15). Islam does not restrict a person’s freedom to move from one place and another, except in cases where it is in the individual’s own interests, or the public interest; for example, the case of an epidemic appearing in a place, where it is feared that movement of the individual to another area without checking he is free of disease would lead to the infection being passed onto the inhabitants of that area. The Prophet, peace and blessings upon him, was reported to have said: “If you hear of an outbreak of plague in a land, do not enter it144”.
On the other hand, Islam encourages migration to other countries to flee persecution, injustice, or harm, and almost considers it a duty to do so, in order to protect the person’s interests. Allāh, the Almighty, says: “When the angels take the souls of those who have wronged themselves, they ask, ‘What were your circumstances?’ They reply, ‘We were oppressed in this land’. They say, ‘Was Allāh’s earth not spacious enough for you to migrate to some other place?’…” (Sūrat al-Nisā’ 97)
Islam urges welcoming immigrants and treating them well, helping them and assuring their safety. Indeed, it stipulates this as a duty on Muslims, even if the migrants are not Muslims. Allāh, the Almighty, says: “Those who were already settled in their homes [in Madīnah], and firmly rooted in faith, love those who migrated to them, and harbour no desire in their hearts for what has been given to them. They prefer them over themselves, even if they too are needy; those who are saved from their own souls’ greed are truly the successful” (Sūrat al-Ḥashr 9). And He said: “If any one of the idolaters seek your protection [Prophet], grant it to them, so that he may hear the word of God, then take them to a place where they are safe, for they are people with no knowledge [of it]” (Sūrat al-Tawbah 6).
2 - The human right to work and to a standard of living worthy of human dignity, and to social welfare:
One of the rights included in the Universal Declaration of Human Rights is the human right to work and to a standard of living worthy of human dignity. Every human being has the right to work, and has the freedom to choose his employment, based on fair and favourable conditions; moreover, he has the right to protection against unemployment. Everyone, without discrimination, has the right to equal pay for equal work. Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection. Everyone has the right to form, and to join trade unions or associations for the protection of their interests. Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay145.
Everyone, as a member of society, has the right to social security146. Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care, and the necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age, or other lack of livelihood in circumstances beyond his control147.
The human right to employment and to a standard of living worthy of human dignity, and to social security and the objective of the interest that is a need (maṣlaḥah ḥājiyyah) in Islam:
The human right to employment, to a standard of living worthy of human dignity and to social welfare, are all rights that are achieved in Islam through the objective of the interest that is a need.
Islam came to change the economic and social conditions prevailing at the time, where the rich enslaved the poor, and the strong oppressed the weak. Islamic law sought to lay the foundations for a mutual supportive society with solidarity prevailing among its members. The state also undertakes to provide a decent living for all people, regardless of their race, colour, or belief. This because all people are bound by human brotherhood, and affection and love should prevail amongst them.
The social system in Islam is based on work and mutual welfare. Work must be provided for every person who is capable of it, who must receive a wage commensurate to his work. The Prophet, peace and blessings upon him, said: “Give the hired worker his wage before his sweat dries”148. The worker must also be honest in executing his work. The Prophet, peace and blessings upon him, said: “Allāh loves that If one of you does any work, he would do it with excellence149”.
Regarding safeguarding a fair wage for the worker, Allāh, the Almighty, said in a Divine tradition (ḥadīth qudsī): “I shall stand as opponent to three persons on the Day of Resurrection: one who made a covenant in My Name, but then betrayed; one who sells a free person as a slave and consumes his price; and a man who hired a worker and received the work to his satisfaction, but did not pay him his wages150”.
Regarding the worker’s right to rest, the Prophet, peace and blessings upon him, says: “Your body has right over you151”.
As for those who are incapable of working, because of illness, disability, old age, or senility and have no one to take care of them, the state shall assume the duty of providing them to the point of sufficiency, which enables them to rise above the level of poverty and deprivation, to a state of independence in means and sufficiency, i.e. achieving a standard of living worthy of their human dignity. This is what is meant by mutual welfare in Islamic law. The state provides a decent living to such people from the Zakat and gifts it takes from the wealthy; Allāh, the Almighty, said: “and those in whose wealth there is a known share; for the beggar and the destitute” (Sūrat al-Ma‘ārij 24), and “And in their wealth there is a share for the beggar and the destitute” (Sūrat al-Dhāriyāt 19). On this matter, ‘Alī b. Abū Ṭālib, may Allāh be pleased with him, said: Allāh levied from the wealthy a share sufficient to take care of their poor; if they go hungry, unclothed, or are incapacitated, it would be because of the wealthy people not paying152.
Social welfare in Islam is inclusive of all society’s units; for example, the neighbour, Muslim or non-Muslim, is included in this social welfare provision. The Prophet, peace be blessings be upon him, said: “Whoever spends his night sated, while his neighbour is hungry is not one of us153”. He also said: “Any inhabitants of a neighbourhood, where someone goes hungry in their midst, then they are denied Allāh’s Aid and Protection154”.
Islam also strives to distribute wealth fairly, and so it strictly prohibits monopolising wealth so that it is concentrated in the hands of a specific class. Allāh, the Almighty, says: “…so that it does not become something that merely revolves among the rich among you…” (Sūrat al-Ḥashr 7).
The human right to employment, to a standard of living worth of human dignity, and to social welfare are all rights that aim at achieving the interest that is a need (maṣlaḥah ḥājiyyah) in Islam.
3 – The human right to take part in public life and assume public office:
The Universal Declaration of Human Rights has guaranteed everyone the right to take part in their country’s government, either directly or through freely-chosen representatives. It stipulates that everyone has the same right to assume public office in their country. It also determined that the will of the people shall be the source of the government’s authority; this popular will shall be expressed in periodic and genuine elections, held by secret poll and equal suffrage, or by any equivalent procedure that guarantees the freedom to vote 155.
The human right to participate in public life and to assume public office, and the objective of interests that are a needs (maṣāliḥ ḥājiyyah) in Islam:
The human right to participate in public life and to assume public office aims at achieving the objective of the interest that are a need in Islam.
The right to participate in public life or political and social decision-making is an established right in Islam.
All persons in society participate in matters of civic responsibility; the Prophet, peace and blessings upon him, said: “All of you are guardians, and you are responsible for your subjects156”. The way to put this right into practice is through the process of “mutual consultation (shūrā)”. Allāh, the Almighty, said: “… and they manage their affairs by mutual consultation…” (Sūrat al-Shūrā 38). According to the majority of jurisprudents and scholars, mutual consultation (shūrā) in Islam is not an optional choice, where those in authority may choose to implement it or not, rather it is an obligation on them. Allāh, the Almighty, said: “… and consult (O’ Prophet) with them about the matter…” (Sūrat Āl-‘Imrān 159). Moreover, note thatthe authority to rule in Islam is subject to the Islamic injunctions.
4 - The human right to inviolability of private life:
The human right to inviolability of private life is emphasised in the Universal Declaration of Human Rights. Article 12 stipulates that: “No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks”.
The human right to inviolability of private life and the objective of the interest that are a need in Islam:
Regarding this right in Islam, we find that it aims at achieving the interest that are a need for the human being, which is an established right in Islam. Allāh, the Almighty, says: “O’ believers, do not enter houses other than your own until you have asked permission and greeted their inhabitants– that is better for you, perhaps you will pay heed. And if you find no one at home, do not enter until you have been given permission. And if you are told, ‘Go away’, then do so– that is purer for you. Allāh knows well what you do” (Sūrat al-Nūr 27-28). Allāh, the Almighty, also says: “O’ believers, avoid most suspicion– indeed, some suspicion is a sin– And do not spy on one another, and do not backbite one another: would any of you like to eat the flesh of your dead brother? No, you would hate it. So be mindful of Allāh; Allāh is Ever-Accepting of Repentance, Most Merciful” (Sūrat al-Ḥujurāt 12).
The Prophet, peace and blessings upon him, said: “Do not harm the Muslims, do not revile them, nor spy on them to expose their secrets. For indeed, whoever seeks to expose his Muslim brother’s secrets, Allāh will expose his secrets and disgrace him, even from within his abode157”.
It is worth remembering that a set of rights stipulated by the Universal Declaration of Human Rights are achieved through the Islamic objective of the interest that are need, including the right to enjoy the nationality of a country158, and the right to recognition as a person before the law159.
> The Fifth Point: The Universal Declaration of Human Right and the other general objectives in Islamic law
The Universal Declaration of Human Right established other rights that can be referred to the general Islamic law objectives that are not necessities; we mention these as follows:
1 – The human right to freedom:
Freedom is of many kinds, including natural freedom, civil freedom, political freedom, intellectual freedom, and religious freedom. The Universal Declaration of Human Rights refers to them all, and makes them mandatory rights. Freedom here refers to the natural freedom that liberates a person from slavery to humans. The Universal Declaration of Human Rights affirmed this in several articles160. Article 1 states that: “All human beings are born free and equal in dignity and rights…161”. Article 3 of the Declaration confirmed that: “Everyone has the right to… liberty…162”. Article 4 stipulated that: “No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms163”.
It is to be noted that in Article 3, the Universal Declaration of Human Rights linked the three rights: the right to life, right to security of person, and the right to freedom164. This can be understood to mean that a person’s life does not acquire its true worth, unless the person enjoys freedom, with his personal security guaranteed.
- The human right to freedom and the objective of freedom in Islam:
The human right to freedom is attained through the objective of freedom, which is one of the general objectives that Islamic law upholds and strives to secure through its legislative domains.
The person’s right to freedom is an established and affirmed right in Islam. Indeed, it is a sacred right, which Islam sought to secure through its legislative domains, exactly like the right to life. In Islam, the person’s right to freedom is the primary natural quality with which every human is born. The Prophet, peace and blessings upon him, said: “Every child is born with a pristine innate165”. Thus, the human being in Islam is born free of any shackles of slavery to his fellow man, and free from slavery to his desires and weaknesses; this kind of freedom is intimately attached to, and one of the necessities of human dignity, and remains sustained, and attached to the human being. For this reason, Islam forbade the violation of any person’s freedom and dignity by anyone. ‘Umar b. al-Khaṭṭāb, may Allāh be pleased with him, in establishing, asserting and sanctifying this right, said: “Since when have you enslaved people, when their mothers delivered them free?166”; indeed, the human being is slave to his Creator only, freeing them from slavery to any other creature, regardless.
This kind of freedom is opposite to slavery or enslavement, which robs a person of legal competence and any control over their affairs; rather, they are owned by others. Given that some may be confused regarding Islam’s stance on slavery, we shall try to correct the misconceptions regarding Islam’s position vis-à-vis slavery, and how compatible it is with international agreements. We will address this in the following point.
Correcting misconceptions about Islam’s position on slavery, and the extent to which it is compatible with international agreements:
To begin with, we do not wish to expand on this topic nor delve into its details. This is because such treatment of the subject requires a study of its own. However, we limit ourselves to pointers to the subject as appropriate to the matter at hand.
Everyone knows that Islam did not introduce the system of slavery to the world; rather, slavery existed and was ubiquitous before Islam’s advent, and subject of a thriving, universal trade. Enslavement was practised before Islam by all the world’s nations, with many sources of supply, such as wars, abduction, punishment for some crimes, defaulting on debts, and other sources. Slaves were treated with great cruelty and in despicable ways that are too shameful to describe.
Islam came, and the state of slaves was as described. Thus, Islam began by calling for treatment of slaves in the best way. It urged its followers to do so, and began to eliminate some of the sources of slaves. It abolished abduction and enslavement of free people from their lands. It abolished enslavement both as a punishment, and penalty for inability to pay-off debt, while encouraging manumission through many ways. In fact, some Muslims—due to the cruel treatment suffered by slaves at the hands their non-Muslim owners— would buy slaves from their masters, treat them well, and set them free. Islam also introduced many ways to get rid of slavery altogether167, including: the system allowing slaves to contract their freedom (al-mukātabah168), freedom on the death of their master (al-mudabbar169), and the system of ‘mother of the child’ (umm al-walad). Some people may think that allowing a man to sexually enjoy his slave girls is mistreatment; however, this view is in fact erroneous, based on this encouraging manumission of these slave girls. When a man enjoys his slave girl, and she bears him a child, she is free on her master’s death. The Prophet, peace and blessings upon him, said: “Her child freed her”170.
Islam has also mandated freeing a slave as the expiation for several unlawful acts, such as breaking an oath171, equating a wife to the husband’s mother to indicate divorce (ẓihār)172, manslaughter173 and deliberately breaking one’s fast in the month of Ramadan.
It is established that Islam urged the best treatment for slaves, and that Muslims’ treatment of slaves was unprecedented, and the best that could be. Islam also worked to end to slavery in many ways. Thus, Islam was the first religion to call for the emancipation of slaves, no other religion or system had done that before. Indeed, Islam established the rule that any Muslim born of free parents must never be enslaved in any way. Islamic history is replete with such matters.
Numerous indicants for this exist, including: Allāh, the Almighty, saying: “… If any of your slaves wish to pay for their freedom, make a contract with them accordingly, if you know there is good in them, and give them some of the wealth Allāh has given you…” (Sūrat al-Nūr 33). In this verse, Allāh, the Almighty, urged contracting freedom for slaves. He, the Almighty, also said: “Goodness does not lie in turning your faces towards East or West. Rather, those with true devoutness are those who believe in Allāh and the Last Day, in the Angels, the Book, and the Prophets; who give away some of their wealth, however much they cherish it, to their relatives, to orphans, the needy, travellers and beggars, and to set slaves free; those who keep up the prayer and pay the prescribed alms (zakāt); who honour pledges whenever they make them; who are steadfast in misfortune, adversity, and battle. Those are the ones who are true, and it is they who are conscious of Allāh” (Sūrat al-Baqarah 177). Allāh elevated the act of freeing slaves to being a pillar of devoutness. Further, He, the Almighty, says: “Worship Allāh, and do not associate anything with Him. Be good to your parents, to relatives, to orphans, to the needy, to neighbours who are related to you and neighbours who are not related to you, to companions, to travellers in need, and to your slaves. Allāh does not like arrogant, boastful people” (Sūrat al-Nisā’ 36). This verse made good treatment of slaves mandatory.
It was narrated that the Prophet, peace and blessings upon him, said: “Allāh said: I shall stand as opponent to three persons on the Day of Resurrection: one who made a covenant in My Name, but then betrayed; one who sells a free person as a slave and consumes his price; and a man who hired a worker and received the work to his satisfaction, but did not pay him his wages174”.
He, peace and blessings upon him, was also reported as saying: “Whoever emancipates a believing slave, Allāh will save every limb of his for every limb of his slave’s from the Hellfire”175.
He, peace and blessings upon him, was also reported to have said: “Your slaves are your brothers. Allāh has placed them under your authority.
He who has his brother under him, should feed him from what he eats and clothe him from what he wears. Do not burden them beyond their capacity, and if you burden them then help them176”.
He, peace and blessings upon him, said: “Whoever defames an innocent slave in what he might have said to him, will be punished on the Day of Resurrection, unless it was as he said177”.
He, peace and blessings upon him, said: “Whoever beats a slave unjustly, the slave shall be given his revenge on the Day of Resurrection178.
The Prophet, peace and blessings upon him, was reported as saying: “Whoever slaps his slave or beats him, then expiation [for the act] shall be his freedom”179.
The Muslims continued to follow this way in dealing with slaves. Almost fifteen years into the mission of Prophet Muḥammad, peace and blessings upon him, came the first battle between Muslims and non-Muslims, the Great Battle of Badr. This ended in victory for the Muslims and the defeat of the polytheists, with the Muslims capturing almost seventy men. The prevalent and customary practice before, and up to, that time under prevailing norms was that prisoners of war are to be enslaved; wars were the principal source of slaves. Yet, the Messenger, peace and blessings upon him, did not enslave any of the Battle of Badr’s prisoners, despite the fifteen years of persecution, and harm meted to the Messenger and the Muslims. Indeed, when He, peace and blessings upon him, prevailed over them, he did not enslave them, but afforded them the best treatment, and released them out of grace, or for ransom. This shows that Islam wanted nothing but freedom for humans.
However, when non-Muslims began to enslave the freemen amongst the Muslim captives, where slavery is the most difficult and unbearable thing that could be inflicted on a person, and because Islam ruled that a Muslim born to free parents is not to be enslaved in any way; further, it is the most reprehensible detriment and greatest harm that they enslave our captives and we release their captives—the position to protect these people could only be to permit slavery, under the principle of reciprocity. Accordingly, it may be said that Islam, by permitting enslavement intended to protect man against slavery. Thus, if non-Muslims took Muslim prisoners as slaves, then the Muslims would do likewise. If they desisted from enslaving them, then the Muslim leader was allowed to also desist. It was as though slavery was allowed so that non-Muslims would not enslave Muslim prisoners, and therefore, Muslims would not enslave non-Muslim prisoners.
For this reason, Islam took a position on slavery by permitting it when it was in the interest of Muslims. Indeed, it did not declare it a duty (wājib) nor recommended (mandūb) practice, but gave permission as a means of leverage in the hand of the Muslim ruler to use only when it served the Muslims’ interest180, such as when non-Muslims take Muslims as slaves and the Muslim ruler, in applying reciprocal treatment, takes non-Muslims as slaves. This is because if the enemy enslaved Muslim captives, without a reciprocal response, then the enemy would continue to do so, increasing the number of slaves. Accordingly, it may be said that: Islam permitted slavery in order to combat it, and acted to reduce its growth and proliferation.
Islam also abolished all sources and causes of slavery, including aggression, abduction, the powerful overpowering the weak, penury and deprivation, and other sources and causes that were known to all previous nations, except for one source or reason, which is prisoners taken in a legitimate war. Yet, here the authority had the leeway to implement it or not, and, therefore, it could take more than one option that best served the interests of the Muslim nation, as pointed out earlier.
Accordingly, it can be said: if international agreements, nowadays, have prohibited slavery and indulging in slavery activities181, then rulers of Muslim countries are permitted to ban slavery.
Confirmation that Islam’s rules and principles are good for all times and places, is that it did not prohibit slavery, but permitted it when it was in the interest of Muslims. Indeed, had it prohibited it, and it was then practised again, with non-Muslims enslaving Muslims in particular, in that case it would not have been permissible for the ruler to reinstate slavery when it was forbidden by others, or if others reinstate it, i.e. to retaliate in kind.
Today, there are signs of a return of slavery, but in a terrifying form; given the horrendous numbers we hear or read about, especially affecting women and children. This has become a trade of multiple forms, including sexual exploitation, trafficking in human beings and human organs, and so on182. Despite the international conventions prohibiting the practice of slavery, the United Nations Organisation, nonetheless, felt the matter of such gravity as to nominate 2004CE, the International Year to Commemorate the Struggle against Slavery and its Abolition. But we now see this danger upon us; so if some tried to use it against Muslims—Allāh forbid—then the Muslim ruler would be justified to resort to it, as treatment in kind, so as to protect Muslims from such a threat. Now, if Islam had proscribed slavery, it would not have been permissible for the ruler to revert to its practice once again.
2 – The human right to equality:
The Universal Declaration of Human Rights, stipulated man’s right to equality and emphasised it throughout its text. Indeed, all its articles and clauses are based on the principle of equality. It highlighted several aspects of this human right, including the following:
A – Prohibition of all kinds of discrimination:
Article 2 of the Universal Declaration of Human Rights states: “Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty”.
B – Equality of the sexes:
Together with the call for the elimination of all types of discrimination, referred to in Article 2 of the Universal Declaration of Human Rights above, Article 16 states that: “Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution. Marriage shall be entered into only with the free and full consent of the intending spouses183”. In addition, the Universal Declaration states in the Preamble that: “Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom”.
C – Equality before the law:
Among the features of equality in the Universal Declaration is equality before the law. Article 7 of the Universal Declaration of Human Rights states that: “All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination”. This in addition to the equality of the person before the law, which is stipulated in Article 6 of the Universal Declaration of Human Rights that: “Everyone has the right to recognition everywhere as a person before the law”.
D – Equality in freedom and dignity:
The features of the Universal Declaration of Human Rights include equality in freedom and dignity. Article 1 states: “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”. In addition, the Universal Declaration states in the Preamble that: “Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world”.
The human right to equality and the objective of equality in Islam
The human right to equality is achieved through the objective of equality, which is a general objective that Islamic law takes into account and works to achieve through its legislative domains. The human right to equality is therefore a well-established and confirmed right in Islam. Indeed, it is a sacred right that Islam has sought to materialise through its legislative domains.
The right to equality among human beings in Islam is an indisputable, mandated reality, as Allāh created all human beings from a single soul. Allāh, the Almighty, says: “O’ mankind, be mindful of your Lord, who created you from a single soul, and from it created its mate, and from the pair of them spread countless men and women far and wide; be mindful of Allāh, in whose name you make demands of one another. Beware of severing the ties of kinship: Allāh is always watching over you” (Sūrat al-Nisā’ 1). All human beings are equal in their essence, namely the common human value. Any differences in appearance, such as race, colour, belief, origin or tribe, is, in fact, conducive to better acquaintance and greater harmony, rather than animosity and conflict. If there are differences between people, then these lie outside the description of their humanity. Allāh, the Almighty, says: “O’ mankind, We (Allāh) created you all from a male and female, and made you into peoples and tribes so that you might come to know each another. The noblest among you in Allāh’s sight is the one with the most piety. Allāh is All-Knowing, All-Aware” (Sūrat al-Ḥujurāt 13). One of the Qur’ān verses affirming equality between men and women is: “Their Lord has answered them: ‘I will not allow the deeds of any one of you to be lost, whether you are male or female each is like the other (in rewards)…” (Sūrat Āl-‘Imrān 195).
The Messenger, peace and blessings upon him, said: “O’ people! Your Lord is one, you ancestral father (Adam) is one; you are all from Adam, and Adam is from dust. The most honourable among you in sight of Allāh is the most pious; no Arab has any merit over a non-Arab, nor a non-Arab over an Arab, nor a red man over a white man, nor a white man over a red man, except by their fear of Allāh. Have I delivered the message? Allāh, be my witness? Let those present inform those who are absent”184.
He, peace and blessings upon him, also said: “People are the same like the teeth of a comb. The red is no more honourable than the black, nor the Arab more so than non-Arab”185.
It was reported that the Prophet, peace and blessings upon him, said: “O’ people! Your Lord is one, your ancestral father (Adam) is one. Indeed, no Arab has any merit over a non-Arab, nor a non-Arab over an Arab, nor a red man over a black man, nor a black man over a red man, except in their piety186”.
Therefore, all human beings are equal in their humanity, while the differences between them exist in other areas, such as their piety.
It is also reported that Abū Dharr is reported to have mocked Bilāl over his mother and called him: “son of a black woman!” Bilal went and informed Allāh’s Messenger (peace and blessings upon him), who became very angry. Abū Dharr unsuspectingly came to the Prophet (peace and blessings upon him), who turned away from him. Abū Dharr said: “O’ Messenger of Allāh you turned away from me, so there must be something that you were informed about”. He said: “Is it you, who mocks Bilāl for his mother? The Prophet (peace and blessings upon him) said: “By Him who revealed the Book to Muḥammed—or what Allāh willed that he swear by—no one can claim advantage over another except by deed; you are all like filling a measuring vessel (sā‘)187”.
During the rule of ‘Umar b. al-Khaṭṭāb, may Allāh be pleased with him, a Jewish man complained to him about ‘Alī b. Abū Ṭālib. When both came before the Caliph, ‘Umar addressed the Jewish man by his name, but used an agnomen for ‘Alī saying: “Abū al-Ḥasan, stand beside your opponent”. ‘Alī became angry, and ‘Umar said to him: “Did you not like your opponent to be Jewish and stand equally with him before the law?” ‘Alī said: “I was angry because you differentiated between us: you called him by his name and called me by my agnomen188”.
It is clear from the above that there is no distinction between people because of race. There is no difference between one human race and another, and there is no distinction between people, because of their colours and languages.
On the basis of this absolute equality between all people in the common human value, Islam instituted equality among people in all other rights, such as public and civil rights, and social and economic rights, as a mandatory matter. There is no discrimination between people, regardless of their race, colour, or religion.
3 – The person’s right to justice:
Among the rights that the Universal Declaration of Human Rights paid attention to, and affirmed in all its texts is the person’s right to justice. All its texts are based on the principle of justice. Moreover, the principles of justice and equality go hand-in-hand, and their manifestations are manifold, multiple, intertwined, and correlated. In addition to what we mentioned earlier, regarding the person’s right to equality, the Universal Declaration mentioned numerous manifestations of the human right to justice, including the human right to fair trial189. Article 10 of the Universal Declaration of Human Rights states: “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him”.
Article 11 (para 1) states: “Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence”.
The person’s right to justice and the objective of justice in Islam
The human right to justice is achieved through the Islamic objective of justice, which is a general objective that Islamic law considers and seeks to achieve through its legislative domains. The human right to justice is a recognised and affirmed right in Islam; rather it is a sacred right, which Islam seeks to achieve through its legislative domains.
The right to justice in Islam is an is an indisputable, mandated reality, as Allāh, the Almighty, says: “Say: my Lord commanded justice…” (Sūrat al-A‘rāf 29). He, Supreme in Majesty, also says: “You who believe! be upholders of justice, and bearing witness for Allāh alone, even if it is against yourselves, your parents, or your close relatives. Whether the person is rich or poor, Allāh is well able to take care of them. Refrain from following your own desires, so that you can act justly. If you twist or turn away, Allāh is aware of what you do” (Sūrat al-Nisā’ 135). He, the Almighty, says: “They are people who listen to lies and consume what is unlawful. If they come to you [Prophet] for judgement, you can either judge between them, or decline. If you decline, they cannot harm you in any way, but if you do judge between them, judge between them justly. Allāh loves the just” (Sūrat al-Mā’idah 42). He, the Almighty, also says: “Allāh commands you to return things entrusted to you to their owners, and, if you judge between people, to do so with justice: Allāh’s instructions to you are excellent, for He is All-Seeing, All-Hearing” (Sūrat al-Nisā’ 58). He, the Almighty, says “Allāh commands justice, doing good, and generosity towards relatives and He forbids indecency, doing wrong, and tyranny. He warns you, so that you may take heed” (Sūrat al-Naḥl 90). He, the Almighty, says: “So [Prophet] call people to the faith and follow the straight path as you have been commanded. Do not follow their whims and desires, but say, ‘I believe in whatever Book Allāh has sent down, and I am commanded to be just between you. Allāh is our Lord and your Lord. To us our deeds and to you yours; there is no argument between us and you. Allāh will gather us together, and to Him we shall return” (Sūrat al-Shūrā 15). He, the Almighty, says: “If two groups of the believers fight, you [believers] should try to reconcile them; if one of them is [clearly] the aggressor, fight the aggressors until they submit to Allāh’s command, then make a just and even-handed reconciliation between the two of them: Allāh loves those who are even-handed” (Sūrat al-Ḥujurāt 9).
The Prophet, peace and blessings upon him, also said: “The just people will be on the Day of Resurrection on pulpits of light at the Right Hand of the Compassionate, and both of His Hands are right, those who act with justice in their rulings regarding their kindred and those in their charge”190.
Since Allāh, the Almighty, prescribed justice among the believers, He prescribed that it should be practised between believers and others, saying: “O’ you who believe, be steadfast in your devotion to Allāh and bear witness impartially. Do not let hatred of others lead you away from justice, but adhere to justice, for that is closer to piety. Be mindful of Allāh: Allāh is aware of what you do” (Sūrat al-Mā’idah 8).
It was reported that one day the Commander of the Faithful, ‘Alī b. Abū Ṭālib, may Allāh be pleased with him, was walking though the market in Kufa, and passed by a Jewish man offering a shield for sale. When he saw the shield, he recognised it as his own that he had lost some years earlier, with its distinctive emblem clearly on it. He said to the Jewish man: This shield is my shield. The Jewish man said: But it is my shield; you can go to the judge. The Caliph stood beside the Jewish man before Shurayḥ, the judge. Shurayḥ said: the complainant should produce the evidence. The Commander of the Faithful said: The shield is my shield and its mark is such and such, and this is al-Ḥasan b. ‘Alī, my witness to that. The judge said: O’ Commander of the Faithful, I know that you are honest, but you have no evidence, and al-Ḥasan’s testimony is no good, because he is your son; therefore, we rule that the shield belongs to the Jewish man. The man was shaken and impressed by the whole incident; he said: By Allāh, this religion that you adjudicate to, is the Revelation that was revealed to Moses and it is religion of truth. The shield is the shield of the Commander of the Faithful, and I bear witness that there is no God but Allāh, and that Muḥammad is the Messenger of Allāh191.
The administration of justice in Islam is not limited to the rulers and those who judge, but extends to everyone including, for example, parents who must be fair among their children. The Prophet (peace and blessings upon him) said: “Be just among your children192”.
Islam seeks justice in everything, and protects man from oppression, where injustice is forbidden in Islam. In the Divine tradition (ḥadīth qudsī): “O’ my servants, I forbade oppression for Myself and made it forbidden among you, so do not oppress one another…”193.
Ibn Taymiyyah says: Allāh sustains the just government, even if it were unbelieving, and will end the unjust government, even if it were Muslim.
The establishment of justice and achieving equality among people in society, is one of the most important objectives of Islamic law. People are equal in their religious obligations. Justice between people is in everything, and it is required of everybody charged with any matter of public concern. Justice is required in the judiciary and the settlement of disputes; in the appointment of officials and overseeing governors; in imposing taxes; and in spending on the many facets of public amenities in general, without any preference for one group over another.
On the scale of justice and equality, all people are equal, rich and poor, ruler and ruled. There is no difference between people due to lineage, family, colour, gender and race. The Messenger, peace and blessings upon him, set the example when Usāmah b. Zayd wanted to intercede for a woman of Banū Makhzūm, who committed theft. The Messenger, peace and blessings upon him, said: “what destroyed those before you is that whenever a noble person committed theft, they let them off, and if a powerless individual committed theft, they would punish them. By Allāh, if Fatima, daughter of Muḥammad, commited theft, I would cut off her hand”194.
Conclusion, including several results
At the conclusion of this paper, we may deduce the following:
- Islam is a universal and humane religion, and is considered an international human rights system.
- Islam has preceded the Universal Declaration of Human Rights in establishing human rights.
- Human rights in Islam stem from the dignity bestowed on man by Allāh, the Almighty, who honoured him over all of His other creatures. He created man in the most excellent form, and appointed him His Vicegerent on Earth to cultivate and develop it for the purpose of advancing his life on it.
- The sources of human rights in Islam are different from the sources of human rights in the Universal Declaration of Human Rights.
- Islamic law has objectives that guarantee, protect, and preserve the diverse and numerous human rights.
- Human rights in Islam are broader in scope than human rights in the international system, where Islamic law gives man rights before his birth and after his death, while the global system is limited to human rights during his lifetime, i.e. from birth until his death.
- Human rights in the Universal Declaration of Human Rights are subsumed by the general objectives of Islamic law, with some reservations, which we indicated in those instances.
- Regarding these reservations, we point out that according to the theory of sources of international law, the general principles of law recognised by civilised nations are contingent on also being recognised by the major legal systems in the world, including Islamic law. Therefore, if the general principle is not recognised by Islamic law, it cannot be a source of general international law.
- The Universal Declaration of Human Rights brought some rights that aim to achieve some general objectives of Islamic law. This is consistent with the nature of the Universal Declaration, which is the general law of human rights in the international system.
- The Universal Declaration of Human Rights focused on rights that aim to achieve the objectives that are necessities (ḍarūriyyāt) and those that are needs (ḥājiyyāt). Nevertheless, we can see in it rights that aim to achieve objectives that are improvements (taḥsīniyyāt), such as the human right to freely partake in associations and peaceful assemblies195.
- The obligation to implement human rights in Islam is due to several reasons, including: Muslims apply these provisions on the basis that, for them, these are religious obligations. They believe in them, and adhere to them, as binding rulings. These are sacred, because they are from a divine source, Revelation from Allāh, the Almighty, and from the Sunnah of the Prophet, peace and blessings upon him. They are also from the traditions of the Companions, may Allāh be pleased with them, and represent the body of opinions of Muslim jurisprudents and scholars in all eras. Therefore, these rulings and obligations remain—and must remain—respected and complied with, and never violated; in reverence and fear of Allāh, and the reckoning in the hereafter, as well as the accountability to the ruler and his punishment in this life.
As for the international community, its commitment to the rights stipulated and documented in the Universal Declaration comes at the recommendation of the United Nations General Assembly, which adopted and promulgated the Universal Declaration of Human Rights. However, as acknowledged by many states and individuals, there is nothing to guarantee the application of these rights. The major proof is what we see nowadays in the violations of these rights by some states, especially the powerful states that claim to be working to implement these rights.
It is noted that this Declaration set out general rules, committing the states that are party to it, to take the necessary measures, at the national level, to ensure respect for it, whether through legislation, procedures, policies or other means. Otherwise, the Universal Declaration of Human Rights will lack substance regarding these principles, and the aims for which it was established will be for nothing.
| Source note: This article is part of the book; The Objectives of Sharīʿah and the International Conventions, Al-Furqān Islamic Heritage Foundation, translated from Arabic, 2013, London, UK, p 31-142. Please note that some of the images used in this online version of this article might not be part of the published version of this article within the respective book. |
