Ahmed Farrag
When we speak of human rights and liberties in Islam, we speak of two coupled dimensions; one ideological, principled and cultural, manifesting in principles underwritten by topical and historical references in sacred religious texts; hence, obligating a commitment grounded on religion, ethics, and values. The other, the dimension of rights and legislation, manifests in legal formulae defining its nature, functional domains, and scope of responsibility, as well as obliging respect and compliance from individuals and State, along with guarantees and mechanisms ensuring it is safeguarded.
Is our problem about defending Islam and demonstrating that its principles and regulations offer texts that are in accord with humanity’s achievements in the protracted struggle against subjugation and aggression, and striving for the recognition of rights and liberties? Fruits of this struggle may have first manifested in the Magna Carta in 1215CE, the Bill of Rights in 1688CE in Britain, the United States Declaration of Independence in 1776CE, and the French Declaration of the Rights of Man and the Citizen in 1789CE.
Yet ultimately, these secured recognition in the Universal Declaration of Human Rights in the aftermath of the Second World War on 10/12/1948CE, the European Convention of Human Rights on 4/11/1950CE, the International Covenant on Civil and Political Rights on 16/12/1966CE, and the Treaty (or International Covenant) on Economic, Social and Cultural Rights on 16/12/1966CE. These conventions and agreements continue to gather force and become further rooted (through references in preambles to constitutions or laws).
If we establish this, then straightaway we would have proven that Islam was ahead of other systems in recognising such rights.
But now, is this enough—it may be ludicrous to try, as we witness [events in] Bosnia and Kosovo.
Two things are required of us:
The first: to eliminate misrepresentations of Islam.
Some are lingering left-overs of bygone times (the Crusades), for which Islam is not responsible.
Others are a result of ignorance of Islam, and therein lies a shared responsibility.
Some are freely volunteered by Muslim falsifiers, extremists, or zealots, and [addressing] this is our responsibility solely.
However, in all cases, the outcome falls squarely in the realm of misrepresenting Islam and committing an injustice against it. This then becomes ingrained in the western psyche, provoking degrees of hostility, starting with – or should I say – culminating in appalling aggression and hideous brutality – as the world saw from the Serbs – and varying shades of apathy and contempt manifested by some researchers in their call to dismiss any culture that disagrees with Western culture, considering anything else as inferior, backward, and incapable of leading humanity’s and society’s endeavours. By implication, this overtly invites Muslims to embrace the elements of Western culture in all domains, including human rights and liberties, based on the claim that this is absent in Islamic culture and Islamic civilisation. A proposition that has sadly gained supporters from some westernised Muslims.
The second matter: I believe we are required to do is:
To elucidate the Islamic position on human rights and liberties.
This is a vital demand for several reasons:
First: it does justice to Islam and corrects the prejudiced view, especially among Western researchers.
Second: the effort in grounding rights and liberties in Islam on textual evidence (naṣ) reveals the depth of the foundations on which the rulings on these rights and liberties are established in Islamic belief (‘aqīdah) and law (sharī‘ah), and how rights and duties are bound together. Indeed, erecting grand monuments in the Muslim mind, thought, and conscience, in such a way that they have become an integral part of the cultural composition, and social equation. Gaining depth and light, with the passage of history, with the exception of some periods of decay, where Muslims themselves were prime victims.
The third reason: the interaction of civilisations, with their distinct cultural features, will help turn human rights into a matter of international concern, while also enriching its underpinnings, based on the historical experiences of diverse peoples, and contributions stemming from a variety of situations, philosophies, and faiths, added together to form a strong, cohesive amalgam. However, the exact opposite is happening, and we are subtracting from the overall strength of this amalgam or system. This will be the case so long as some researchers persist in discarding some peoples’ centuries of struggle, or ignoring others’ religious and cultural sources, in terms of the principles established by their faith, or depth added via the application of values throughout their history.
Deprecating or denying the struggle or role of peoples in establishing human rights is equivalent to rejecting Islam’s influence on the recognition and establishment of these rights, and indeed, Islam being first in doing so. Both depreciation and denial feed an unjustified conflict, wasting much needed effort, with respect to both perspectives presented here; it divests the matter of its historical, topical, and values heritage, which is crucially needed to mobilise people power and democratic forces in the world today in support of the demands for human rights and backing liberties everywhere—however much we confess to shortcomings here or there. Otherwise, the issue is liable to lose faithful supporters representing truth and actuality, and loyal backers representing hopes and aspirations; moreover, it would lose the necessary acceptance at the level of international communities, as would the mechanisms it has established, and is in the process of establishing, to promote human rights, liberties, and civilised dialogue around the common ground, and protecting these from transgressions and violations.
Indeed, we believe, as stated by the Messenger (peace be upon him), that: “the Creation are all Allāh’s dependents, and if Allāh willed He would have made all peoples into one nation”. Moreover, when God made us into “peoples and tribes”, this was for the purpose of knowing each other and cooperating with each other, and not to hate each other and fight one another; He said: “And we made you into peoples and tribes so that you may know each other…” (Sūrat al-Ḥujurāt 13). When God locates excellence and distinction between persons within the framework of piety, or makes piety the frame for excellence and distinction between persons, then it is impossible for this to be achieved through extermination of a people, or annihilation of a nation.
Rather, it is necessary for this to materialise as part of an ethical, civilised system possessing a religious reference and a global, humane view. Moreover, endowed with a high level of understanding and objectivity, and connecting seamlessly with the advances that resulted in the Universal Declaration of Human Rights, and subsequent international covenants and conventions.
Constitutions and laws in the majority of nations stipulate the principles.
More than a few shortcomings and inconsistencies—even if some positives exist—are apparent in the reality of implementation in East and West, and in our countries. This is motivation for the world’s peoples to exert greater effort in dissolving the discrepancies between statute and actual practice.
A new concept evolved following World War II, the 1948CE Universal Declaration and thereafter.
The global and regional character is an attempt to pressure those States lagging in the rights domain to adjust domestic conditions to the minimum standard required by agreements, so as to safeguard the individual’s humanity; this aspect is positive; however:
The human rights movement, especially in the West, politicises the concept and uses it to mount pressure on other States, by either shaming or humiliating them. It focuses on highlighting their violations, while covering up what occurs within Western states themselves, or the latter’s actions outside their borders (and sometimes within), and in Third World nations.
The issue is truly served not through principles and declarations, but in the guarantees of implementation, especially within national laws of each State, and the related rights and liberties in constitutional, criminal, administrative, civil, procedural, labour, and family laws.
These laws must conform to the standard set in the declarations, covenants, and conventions.
Rights must be connected to duties, so that we speak about human rights and duties, or human duties and rights. Emphasis must be placed on the individual’s responsibilities and duties, whereby he will attain or secure his rights, only by performing his duties.
Another point to note: the present-day human being typically desires liberties and rights for himself, and is unconcerned about the state of others’ liberties and rights. He exaggerates those things that intrude on his liberties and rights, and takes pleasure in whatever happens to rivals, while feigning compassion. It is imperative to rouse his sense of responsibility, and this is (our duty).
Is there a concept for human rights?
What is its basis in evidence?
What is its relationship with modern declarations?
Right – freedom – is a principal value as it is both basis and condition for one’s testimony to God’s Oneness (tawḥīd), i.e. the declaration of faith, to be valid, and as foundation of society, State, and civilisation.
The believer may not recognise Allāh’s Oneness and the truth of His Messenger, unless his foundation — as stated by Ghannouchi: is “the ‘I’ of the sane and free in a moment of awareness and freedom, who says: ‘I’ bear witness that there is no God but Allāh, and ‘I’ bear witness that Muḥammad is God’s Messenger”.
Freedom is not mere permissibility (ibāḥah) or right, but an obligation seen from one perspective, and a continuous struggle (jihād) against oneself, and the forces of evil, so as to promote the word of truth, justice, and freedom, in collaboration with the ‘other’.
Human rights and liberties are founded on two principal matters of one’s faith:
1. The human being, is himself intrinsically honoured by God, by virtue of being one of the sons of Adam.
2. He is God’s appointed vicegerent, and so enjoys rights, over which no one has authority.
Given that this is an inseparable part of Islamic law and objectives, and fruit of beliefs and rituals, it acquires the stature of obligation (wājib), permanence, and principle; therefore, one is rewarded for acting on it, and punished in this life and the hereafter for neglecting it.
The individual’s principal rights include the freedom of belief, and by extension, freedom of expression, debate, and religious ritual practice, as well as intellectual freedom.
The books of Islamic jurisprudence (fiqh), Islamic good governance (al-siyāsah al-shar‘iyyah), or other Islamic law disciplines, do not contain a chapter dedicated specifically to human rights. Rather, each right is treated within its topical context.
Studies dedicated to the right (ḥaqq) clarify the basis of all rights.
Studies on the ruling of choice (al-ḥukm al-takhyīrī) clarify the basis of liberties.
Studies on the ruling of obligation (al-ḥukm al-iqtiḍā’ī) clarify the basis of duties; this is unique to Islamic law (sharī‘ah).
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Development
The Roman concept: religion is subject to the State.
Christianity: separation of religion and State, while emphasising human dignity.
The right to life, liberty, and ownership are all natural rights, which can be discovered by the intellect, after divesting the idea of its religious basis, and so the innate mind became a source of law.
In joining the collective, the individual seeks to assert his self and safeguard his rights, rather than lose or renounce them, and the State’s duty is to protect and not undermine.
Social contract theory: individuals renounce part of their absolute freedoms to establish an authority that protects and organises them, while the remaining freedoms are free of State interference.
Subsequently, the first human rights charters came about: 1215CE Magna Carta, 1688CE Bill of Rights, 1776CE Declaration of Independence in America, 1789CE the French Declaration of Rights of Man and the Citizen, and the remaining constitutions of the French Revolution.
The concept from the point of view of ‘individualism’:
- A non-renounceable nature, but no one can be forced to practice it.
- [Requiring] restrictions regulating its practice, but not to the point of voiding the right.
- Intrinsically negative; the State pledges to not pursue individuals as they practise it, but does not provide it.
- Individualised and specific to the individual, and not collective for civil associations or labour unions.
Economic and social democracy appeared with the advent of industrialisation, with visible effects on human rights from the time of the 1848CE French Constitution.
In the inter-war period, States recognised the right to work, social security, organising in unions, and some family rights.
After the Second World War: many constitutions included declarations of human rights.
International instruments were issued:
- The Universal Declaration of Human Rights (10/12/1948CE).
- The European Convention on Human Rights (4/11/1950CE).
- The International Covenant on Civil and Political Rights (16/12/1966CE).
- The International Covenant on Economic, Social and Cultural Rights (16/12/1966CE).
Rights evolved further from individual to collective, i.e. those rights that may only be materialised collectively, such as family and minority rights, as well as a trend towards collectivism in exercising rights, such as freedom of collective worship.
Rights shifted from passive to positive; for example, economic and social rights whereby the State is compelled to commit itself to guaranteeing rights.
This was achieved through promulgating social legislation via constitutional mechanisms and revolutionary intervention.
States that gained independence (Islamic ones included) issued constitutions aligned to the most recent legal texts.
However, these remained slogans adorning constitutions, as States did not put these into practice.
Given that systems cannot be imported like commodities, social, economic, political, and cultural change does not happen by mere edict, without processes of edification, communication, and all manner of reforms.
Well-established regimes created practical safeguards, including: articles stipulating that human rights take precedence over other laws:
Recognition of its mandatory value, sometimes at a level higher than the constitution itself; hence, it is binding on the normal legislator, the constitutional legislator, and executive.
These are at the level of the constitution for the normal legislator, while the executive is lower than either normal or constitutional legislators.
Evaluation
In the traditional form, equality in law is of no substance, and not realistic.
In practice, it is a slogan that did not prevent continued racial discrimination in the United States of America, or depriving women of their rights in Europe.
Freedoms are enjoyed only by the powerful, which encouraged the social and socialist trend.
The conventions lack technical mechanisms by which to achieve protection, due to the concept of State sovereignty, and non-interference in the internal affairs [of States] being upheld.
The term, “al-ḥaqq”, or right in the Arabic language denotes “the permanent”, and for jurists (fuqahā’), it refers to that established in Islamic Law, as being due to God by the human being, or due to the human being by others.
As such, rights are classified by owner into: God’s (Divine) right and the servant’s right. God’s rights are understood to indicate the collective right. This connection to God elevates and honours the collective.
Commonly, scholars classify rights into four types:
1. Exclusively due to God.
2. Exclusively due to God’s servant.
3. Both rights are present, and God’s right is predominant (such is the case in punishment for slander (ḥadd al-qadhf)).
4. Both rights are present, and the servant’s right is predominant (such is the case in legal retribution (qiṣāṣ)).
The shared right (3, 4) such as the individual’s preservation of his life, mind, and physical health to keep them free of harm; to protect his freedom from allowing himself to be oppressed; and protect his wealth from self-inflicted harm or loss. In the foregoing, God’s right encompasses preserving these granted bounties, and the human’s right is represented by his personal stake in his life, health, and wealth.
Consideration is given to the dominant of the two rights; hence, if God’s right was dominant, then no human being is permitted to waive, or act over it as he wishes, such as [disposing of] his life or organs. If the servant’s right was predominant, then he is permitted to waive it, such as [cancelling] debt.
Whereas, every religious obligation is God’s right, and since each Islamic law ruling embodies a public interest (maṣlaḥah) for human beings, then rights are of two types:
- Where God’s right is dominant, and we call it God’s right.
- Where the servant’s right is dominant and we call it the servant’s right.
God’s right: encompasses the ritual acts of worship (‘ibādāt); it also includes those matters whose objective is to protect society, wherein a public interest, not specific to any one individual, arises; [such as] the protection of those perceived to be too weak to protect their right.
The servant’s right: wherein a personal interest of an individual or individuals arises, such as the right of each person to home, work, and spouse; this is termed the individual personal right.
God’s rights are distinguished by the following rulings:
• They may not be waived by way of pardon (‘afw), reconciliation (ṣulḥ), or remission (ibrā’).
• Everyone, particularly those in authority, may demand and defend these. As a result, the mechanism of protecting public rights or ḥisbah, evolved. This comprises commanding what is defined as good and forbidding what is defined as wrong.
• The ruler is delegated to apply public penalties.
• For multiple instances of wrongdoing, penalties overlap.
• The rules of inheritance do not apply to public rights (if the offender dies, his heirs are not punished).
• God’s rights are founded on [the principle of] forgiveness; He, the Glorified, is not harmed by anything, and as such, He accepts the retraction of a confession for fornication or adultery.
The following rules define a servant’s rights:
• The penalty for [violating] the servant’s right is either a specific punishment, between punishment and restitution, or restitution only.
• In individual personal rights, pardon (‘afw), reconciliation (ṣulḥ), or remission (ibrā’), are permitted (with some exceptions; [for example] theft is excluded so as to protect wealth; fornication or adultery is excluded so as to protect lineage; slander is excluded so as to protect reputation and honour; murder and bodily harm…). Even if he [the victim] agreed to waive them, this would not be valid, and would have no legal effect.
• Individual personal rights are claimed on the demand of the injured party or their guardian.
• Penalties for individual personal [rights violations] do not overlap.
Freedoms in Islam
• The established general principle is that originally all things are permitted, wherever there is no text; “What Allāh has made lawful in His Book is lawful, and what He has made unlawful is unlawful, and what he has been silent on is forgiven, so accept from Allāh his pardon; indeed, Allāh will not have forgotten anything”.
• By extension, this yields the rule: no crime and no punishment except by text “And We would not punish…” (al-Isrā’ 15)
• In the domain of transactions (mu‘āmalāt), Islamic law has defined limits for people relating to their contracts.
The contracting party establishes the contract by his free will, but the related ruling is of the Legislator’s (God) creation and edification.
• Permission (ibāḥah) is the original state in contracts and conditions (as attributed to some Ḥanbalī jurists); hence, anything people develop in contracts, and agree to as conditions, in the absence of prohibition in text, retains its original state of being permissible.
Civil liberties
• These are permitted by the Legislator (God), where applied to actions; for example, the right of ownership, freedom of assembly, freedom of movement, and all political and cultural rights, such as right to vote, freedom of opinion, expression, thought, conscience, and faith.
These are all permitted matters, meaning that the individual exercises choice in doing or abstaining, and this is the basis of the ruling of free choice (al-ḥukm al-takhyīrī).
• Permission here is universal, i.e. for everyone, and does not imply a shared right; hence, each individual is entitled to exercise their personal allowance or freedom.
• Islamic law did not stop at just considering some acts as permitted (i.e. to do or abstain), but proceeded to consider these an obligation.
Work is permitted or a right that the State commits to making available for the unemployed; however, it is obligatory on able persons.
Marriage is an allowance or right where the State commits to provide assistance, but it is recommended (mustaḥab)… etc.
• Civil liberties denoting permitted actions - individual rights: from the perspective that the individual may or may not exercise them; this is the essence of the meaning of freedom.
• From the perspective that the State, representing society, has the duty to protect this freedom, and prevent individuals from infringing on each other, in such a way that no one is barred from exercising it, if they so wish… or forced to do so, if disinclined. Moreover, the State is obliged to not violate these freedoms through its organs and agents.
• Abu Zahrah broadens the essential objectives (al-maqāṣid al-ḍarūriyyah), and clarifies those matters that come under human rights and freedoms in the modern sense; hence, the concept of preserving the person encompasses protecting life and human dignity, and part of this preservation is the freedom to work, freedom of thought, freedom of speech, and freedom of residence, and whatever else constitutes the essentials of freedom.
• Right and duty from Islam’s perspective:
- Every human being’s right corresponds to an obligation to another human being, or the State, either by commission or omission.
- The right—or more precisely, the freedom—may in some cases be an obligation on the owner of the right or freedom himself.
- The five rulings may all apply to a single matter, depending on circumstances.
- The ruler is granted the power to change the ruling between allowance, obligation, and prohibition.
• Each right corresponds to an obligation:
• When Islamic law established rights and exemptions (rukhsah), it obliged corresponding duties to guarantee these rights and exemptions are fulfilled. This is a principal cornerstone of right, namely referring to the one due to fulfil the right. This is embodied in an obligation that falls upon them to fulfil the other party’s right.
• In this way, Islamic law is distinct from those systems that present rights as nothing more than slogans with no binding arrangement, other than the negative State commitment of non-interference or non-prohibition. Even when matters progressed to conceptualising a positive State role, this was limited to a political not a legal commitment; the latter would have allowed pursuing legal redress from the State to secure these rights.
• The dimensions of the topic in Islamic law are further elucidated by combining the rulings related to God’s right and His servant’s rights, and the rulings related to individual (al-‘ayni) obligation and sufficiency (kifā’ī) duties. In this way, Islam’s perspective of communal rights and obligations is clarified.
• Indeed, God’s right embodies the collective’s right, while the sufficiency (kifā’ī) duty falls on the collective.
• The matter of rights and obligations is exclusive to four cases:
1. The individual’s right towards another individual.
2. The individual’s right towards the collective.
3. The collective’s right towards the individual.
4. The collective’s right towards itself.
Examples of the first type:
The right of the wife to material provision (nafaqah) by her husband, material provision for relatives, employee rights upon the employer, the partner’s right of pre-emption or first refusal (shuf‘ah), the neighbour’s right, right to divorce, right of the owner on the trespasser, and literary and artistic property rights.
Examples of the second type:
The right of the poor on the public treasury (bayt al-māl), right of the individual towards the collective in relation to public permitted matters, the different freedoms of individuals, the right of ownership, freedom of movement, thought, and institutionalised consultation (shūrā), right to equality, and right to life.
Examples of the third type:
The right of the public treasury towards those obliged to pay the religious dues of zakāh, feeding the hungry, assisting soldiers, the obligation of jihād, the obligation of commanding good and forbidding wrongdoing, and tasking those needed by the Muslim nation in the different crafts and industries.
Examples of the fourth type:
The right of public enterprises, which provide public services or fulfil sufficiency (kifā’ī) duties towards the State, to cover their costs and protect their activities.
- The single matter that is both a right and an obligation on the person:
Both rights of work, marriage, commanding good and forbidding wrongdoing, and institutionalised consultation (shūrā):
- Work by facilitating its tools and financial capital.
- Marriage facilitated [by the State], if the individual is unable to meet its expenses, so as to help in preserving their chastity.
- Institutionalised consultation (shūrā) so that the Muslim nation is not subjugated by a tyrant.
• Five rulings may apply to a single issue:
- Able to marry, and shall commit fornication, if not married, then marriage is obligatory (farḍ)
- Able to marry, and fears committing fornication, if not married, then marriage is necessary (wājib)
- Able, and upright, and does not fear fornication, if not married, then marriage is recommended (mandūb)
- If he was sure of being unjust to his spouse, and failed to fulfil conjugal rights, then marriage is prohibited (ḥarām)
- If he feared being unjust to her, then marriage is disliked (makrūh)
• The ruler’s power to change the ruling between allowance, obligation, and prohibition is conditioned; [in that the issue]:
1. Must lie within the bounds of his jurisdiction.
2. Must be based on a public interest (maṣlaḥaḥ).
3. Must not entail sin.
Examples of this:
- ‘Umar imposes on the Companions not to leave Madinah without permission and then for a fixed time.
- ‘Uthman partially relaxed their confinement.
- Mu’āwiyah did the opposite.
- ‘Umar forbade the leading Companions from marrying non-Muslim women from the people of the book (ahl al-kitāb), saying: “I do not declare it unlawful; but I fear that people will stop marrying Muslim women”. He separated Ṭalḥah and Ḥuzayfah from their non-Muslim wives from the people of the book. He saw a public interest in forbidding this, without considering such marriages to be unlawful. Moreover, these two Companions were endowed with the capacity of creative juristic reasoning (ijtihād), and they obeyed his command.
- The share for those whose hearts are to be won over (al-mu’alafah qulūbuhum): Abū Bakr was convinced by ‘Umar’s argument: God granted Islam glory, and relieved Islam of needing them.
- ‘Umar exiled Naṣr b. Ḥajjāj, whose striking handsomeness stirred women’s passions.
- Similarly, setting the age for marriage, or the ruler’s intervention to prevent polygamy without necessity; the aim being to deter those divorcing without legitimate reason from committing gross injustice. Such cases and others are common in Islamic governance (al-siyāsah al-shar‘iyyah), and this has become an established principle in legal theory. However, exactness is required in [applying] Islamic law objectives (maqāṣid).
Restrictions
• Rights and liberties are not absolute, and Islamic law defines rules aimed at reconciling individuals’ differing interests.
• Therefore, rights and liberties, and not only ownership, have a social function. No one is allowed to use a right, except in its legitimate form; otherwise, they will have entered into an abusive exercise of right.
• For example, an individual exercising their right with the sole intention of harming others, without any interest or gain.
An ill person divorcing their wife to prevent her from inheriting; acknowledging a (fictitious) debt to harm creditors or heirs; or reinstating a wife just before the end of her period of waiting (‘iddah) intending to harm her… etc.
• The individual exercising his right established by ownership in an abnormal manner; for example, someone excessively irrigating their land, until their neighbour’s crop is damaged, or renting a mode of transport and then overloading it beyond capacity.
• Abuse of power.
• Any act of the leader or one of his government assistants outside the limits of the rights and duties of State, and invoking the granted authority, is considered abuse [of authority].
Protecting rights
• Sovereignty of Islamic law is the principal basis for protecting rights and liberties; it rises above the State and its organs, and there are protections to guard legitimacy.
1- The religious scruple (al-wāzi‘) is the internal safeguard:
Given that duty and right are defined in Islamic law, they are a duty both for the hereafter and in religion. Islam fosters conscience through the acts of worship (‘ibādāt), and builds on it. “…Perhaps some of you will be more eloquent in presenting their evidence than their brother, and so I judge in their favour granting something that is not theirs (i.e. he has no right to); indeed, it is a piece of hellfire, so he may take it or leave it”.
2- Edification on responsibility and social solidarity:
- In commanding good and forbidding wrongdoing, which is a duty and right on each individual, and is not moderated by [existing] public posts; [e.g.] enforcer of moral behaviour (muḥtasib), police… etc.
- The human being’s role as vicegerent is embodied in the responsibility of the collective of all Muslims (jama‘at al-muslimūn), and the necessity for existence of governing authority.
- Generalised enforcement of morals (ḥisbah) is the original state in Islamic law, i.e. it is the right of every individual, or rather his duty, in giving guidance and effecting change, whether directly affected or not, and also on individuals and rulers.
- The case for enforcement of morals (ḥisbah) relates to God, the Almighty’s rights, and is the concern of all people.
3. The collective exercise of commanding good and forbidding wrongdoing:
- The role of political, intellectual, juristic, and social collectives.
- The garden (saqīfah) of Banū Sā‘idah.
- Asharites, Mutazilites, and Brethren of Purity (ikhwān al-ṣafa).
- The schools of jurisprudence (fiqh).
- The obligation is to cooperate in those areas of agreement, and to give each other the benefit of the doubt in those areas of disagreement; manifesting unity in confronting the Muslim nation’s enemies, and in adversity; and conforming to the constitutional rules in the relationship of ruler with the ruled, i.e. the etiquettes of dispute and jurisprudence of disagreement.
- The authority for enforcing public morals (ḥisbah) is a guarantee for individuals in their exercise of public rights and freedoms, and the enforcer of public morals (muḥtasib) performs his duty on everyone, the Caliph, governors, and others.
- Public morals enforcement (ḥisbah) is a system to protect legitimacy in the Islamic State, and is a system of an administrative nature, yet incorporating some judicial elements; it is a system of prosecution, in addition to exercising judicial and also executive authority in some punishments (ḥudūd).
- It is different to the judicial system, even though it incorporates some of its features; is independent of the public complaints authority (wilayat al-maẓālim), even though it possesses some of its functions; is segregated from the executive, even if it adopts some of its methods; and is different to administrative justice, parliamentary commissioner, administrative prosecution, administrative oversight and public prosecution; indeed, the latter’s existence does not preclude establishing the public morals enforcement (ḥisbah) authority.
- Its effects are quickly and easily realised, consolidating public order, and securing public freedoms and individual rights.
Ordinary judiciary:
- Public complaints authority (wilayat al-maẓālim).
- Oversight ensuring respect for higher legitimacy.
- The higher rulings in Islamic law are exclusively those presented in the Noble Qur’ān and Prophetic tradition (Sunnah), whether related to constitutional, civil, or criminal regulation, or contemporary systems of constitutional rulings only.
- There is nothing to prevent having an ombudsman or oversight body to ensure respect for higher legitimacy, i.e. in that the results of creative juristic effort (ijtihād) and decisions do not violate the Noble Qur’ān and Prophetic tradition (sunnah).
• Islam’s precedence in recognising human rights and freedoms stipulated in the original sources of Noble Qur’ān and Prophetic tradition (requires no evidence. In the West, they speak of human rights declarations from fifty years ago, while we speak of fifteen centuries of these rights being robustly established; no researcher will have difficulty proving this.
• Similarly, comparing the vocabulary of human rights and freedoms in Islamic culture and texts and contemporary texts and treaties.
These are also in Islam’s favour... but
Does that mean that a Muslim enjoys more human rights and freedoms in his country than in the West?
• Comparing reality, no two persons will differ in that this is in the West’s favour, and if they [in the West] had studied Islam since antiquity, they would not have exhausted themselves in order to arrive at the same truisms expressed by its texts and legislation.
Despite this, they have greater concern to implement those things they secured through great difficulty, struggle, and bloodshed; in contrast, we [Muslims] are more negligent towards the guidance, true religion, and gifted mercy that reached us.
Economic rights:
• The right to ownership on the basis of work and considering it a social function
Social rights:
• Work is a religious duty; in wealth there is a defined right; and wealth is not sacrosanct if society is in need.
• The right to education (obligation); the right to health, housing, clothing, and establishing a family.
Political rights and freedoms:
• Power or authority is not part of Islam, but a function for its promulgation.
• There is no need for a text to establish the State, rather safeguards are what are needed for its founding on justice, guarding religion, facilitating worship of God, and harnessing people’s competences for material and spiritual progress.
• The faith and philosophical basis of government is:
- Belief in God, the Message [of Muḥammad], and the Day of Judgement.
- The human being is God’s vicegerent, and was granted intellect, will, freedom, and responsibility to be a civilising force on Earth (‘imārat al-arḍ), and establish justice, good, and freedom. Revelation came to assist him in realising the Divine project, which elevates the quality of life to achieve human happiness in this world and the hereafter.
- The Revelation’s cessation was a sign that human maturity was at its peak, as was mankind’s sovereignty as God’s vicegerent, and owner of authority on His behalf. The collective cannot manage this directly, but through the pledge of allegiance (bay‘ah) complying with Islamic law and institutionalised consultation; these represent the founding authority of the Islamic State (Rachid al-Ghannouchi).
- The head of state has the duty of protecting the Muslim nation (ummah), and its faith, and to abide by consultation (shūrah); his rights upon his people are to hear, obey, and advise.
Safeguards for freedom and ensuring absence of injustice and oppression:
• Higher legitimacy belongs to God, and is embodied in Islamic law. Rather than a single individual or entity, it is the Muslim nation (ummah) that acts as God’s vicegerent; hence, there is a restricted legislative power, especially in regards to wealth and human rights.
• The electorate has the remit for scrutiny of the consultative process, with appropriate edification on the same, and acceptance of the right to differ (the [issue of the] prisoners of war).
• Forbidding holding the authorities of wealth and government at the same time.
• An economy that rejects concentration of wealth, increases the number of owners and [redistributes wealth] through inheritance.
• Promoting the value of work, and the religious obligation of paying zakāh, and that in wealth there are rights other than zakāh.
• Edification and education.
• Respect for plurality, evidenced in the diversity of juristic opinion.
• The executive in the people’s service.
• The authority enforcing public morals (ḥisbah).
• The power of public opinion “And the three who were left behind…” (Sūrat al-Tawbah 118).
• Segregation of authorities; ‘Umar acting like the State Council; Abū Bakr assigned a piece of land, and requested that this [decision] be reviewed by ‘Umar.
• In Islamic jurisprudence, we find the terms, allowed (ibāḥah) and exemption (rukhsah) are commonly used interchangeably; public allowances (mubāḥ) are originally allowed, even though some [jurists] use the word, exemption.
• The term, allowed (ibāḥah), is used for those matters that have been granted exemption due to difficulty (mashaqah): [the rule being:] necessities (ḍarūrāt) convert the unlawful (maḥẓūrāt) into lawful.
• Dr Abu Sinnah says: “What is established for a person in the public permissibility of rights is because the definition of rights applies to him, and what is established for man in the general permissibility is an original right and strict ruling (‘azīmah), so Sharia makes it among the rights and restricts its use under the condition of safety, and makes the consequences of non-compliance with this condition a misuse of the right.”.
• The use of some terms, and defining their concept and effects in Islamic law: there are multiple usages of the word, right (ḥaqq).
• Defining an individual’s commitments, or what is due from him, towards another:
• Such as the right of the ruled upon the ruler, and the right of the ruler on the ruled, which is a public right.
• Personal rights in family relationships (right of husband and wife).
• The immutable matter “And it is ever incumbent upon Us to help the believers …” (Sūrat al-Rūm 47)
• Financial rights “…in their wealth there is a known right …” the right of inheritance “Allāh has granted [a defined portion of the deceased’s estate to] each individual having a right, hence, no bequest to an heir”.
• Humane, ethical rights: five [things] are an obligation upon a Muslim to his brother.
• Rights of: neighbour - companionship - brotherhood.
• The public right corresponding to a duty on people “grant the rights of the thoroughfare”.
• From the text inclusive of the meaning of rights: “Your Lord has right over you, your self has right over you, your family has right over you, so grant each right owner their right”.
• Making human rights an international issue allows a more progressive role for UN bodies and organisations to secure greater progress in protecting human rights under the auspices of international legitimacy, and with the sole standard of right, and not multiple standards and measures.
• Indeed, if Islam is against the aggression of one group of believers against another group of believers, in violation of God’s right or His servants’ rights; then Islam fights the aggressor until they return to God’s command, and if the aggressor group is subdued, then Islam repairs relations between both groups through fairness and justice, so as to preserve servant’s rights, and not through vain desires or corrupt standards, as God loves the just; such situations are not a pretext used to occupy [lands], deplete wealth and resources, or frustrate policies.
• We recognise that principles of human rights and freedoms are stipulated in the constitutions of East and West, and that the different declarations and conventions have been adopted in nations’ constitutions and laws.
• However, we find that the reality of practice in both East and West, and in our Arab and Muslim countries, is witness to many paradoxes and negatives, here and there, even with some positive examples in application, here and there.
• This reality motivates the world’s peoples to expend more efforts at the individual and collective level, as well as the level of States, government, and international bodies and organisations; on many occasions, the latter emphasise protecting human rights, liberties, and dignity, out of concern for democracy, but this contrasts starkly with reality, and in the contradiction between statute and practice; “let he who is without sin cast the [first] stone”.
Conflicting with reality.
Violating fact.
Alienated from fundamental principles.
• Human rights and freedoms are an issue.
• In Islam, the basis of sources of legislation on human rights and freedoms are the Noble Qur’ān and Prophetic tradition, followed by all the recognised sources, among which we highlight creative juristic effort (ijtihād). Indeed, as is known, creative juristic effort is disallowed in the presence of a text, yet the issues and questions, which Islam addressed through general principle and broad rule are open to creative juristic effort continuing to the Day of Judgement. The existence of a general principle and broad rule in an issue or question that changes with time or place, is permission granted to engage in creative juristic effort; indeed, it is a command to practise creative juristic effort using reason within the frame of the general principle and universal (kulliyah) rule, to secure public interests and objectives (maqāṣid); in this fashion, God’s Law remains valid for application at every time and place.
• When Islam stipulated honouring the human being, and caring for his rights and freedoms, it considered these as matters connected inseparably to his humanity; Islam’s duty is to preserve, protect, and defend these, and ensure respect from individuals and State.
• Islamic law is unlike jurisprudence (fiqh); the former is the working domain of scholars.
• The gap between texts and reality in the first generation, and early centuries [of Islam] was not as great as in this time, and its [pressing] need for creative juristic effort (ijtihād).
• Attention must be granted to Islamic law objectives (maqāṣid), i.e. jurisprudence of maqāṣid.
• Jurisprudence of public interests (maṣāliḥ), where scholars must adopt the methodology of seeking ease and avoiding hardship, in that “difficulty attracts ease”; “… and He does not intend to lay any hardship in religion upon you” (Sūrat al-Mā’idah 6).
• Being knowledgeable is not in being strict, as anyone can do this quite well, but knowledge is in the exemption granted by the dependable scholar.
• The original state of things is allowance, and God has detailed what He has prohibited for you… and has made lawful what is beyond that.
• There is nothing to prevent benefiting from experiences outside Islamic history and geography; indeed, acquiring wisdom is the believer’s pursuit.
- The woman's share of inheritance.
- The man having exclusive right to divorce, and his right to have more than one wife (polygamy).
- The woman’s testimony.
- He prevents her from contacting her family.
• God’s system in Islamic law balances the man’s right to divorce; this is the system by which the wife may ransom herself to escape a marriage (causing her detriment), where she is constantly unhappy, by paying her husband money followed by a judge ruling divorce.
[Legal treatment of non-Muslim citizens:] The dhimmah doctrine:
• Dhimmah denotes a historical contract, referring to the legal administrative mechanism by which a non-Muslim acquires legal place and status in the Islamic State. However, it does not in itself reveal the content of this contract and reality of such status. The content was defined by the Messenger, peace be upon him: “they are entitled to what we are entitled to, and bear the same burden as we do”, and his statement drawing Muslims attention to the necessity of respecting this rule: “whoever harms a dhimmī has harmed me”.
• State constitutions replaced the old dhimmah contract (citizens are equal in law – discrimination among them is disallowed).
• We do not defend Islam, but hope that our reality rises to the level of human rights and liberties stipulated by Islam.
• Not wrongdoing is worse than oppression, and nothing is more laudable than justice.
• The human rights crisis lies in the bloated “ego” that constitutes the wall around the self, leading to escalating conflict in the clash and friction between many bloated “egos”.
• Human rights must be protected based on ethical and principled fundamentals.
• The books of Islamic jurisprudence (fiqh), Islamic good governance (al-siyāsah al-shar‘iyyah), or other Islamic law disciplines, do not contain a chapter dedicated specifically to human rights; each right is addressed in its topical context.
• Studies dedicated to the right (ḥaqq) clarify the basis of all rights.
• Studies on the ruling of choice (al-ḥukm al-takhyīrī) clarify the basis of liberties.
• Studies on the ruling of obligation (al-ḥukm al-iqtiḍā’ī) clarify the basis of duties; this is unique to Islamic law (sharī‘ah).
| Note: This text was published in the following book: Symposium on Human Rights in Islam: held at Al-Furqān Islamic Heritage Foundation, London 26-28 April 1999CE (10-12 Muharram 1420AH). Al-Furqān Islamic Heritage Foundation, London, pp.113-164, translated into English. 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. |
