The Viewpoint of Islam on the Criterion of Determining Right

By: Ayatullah Muhammad Taqi Misbah Yazdi
The question raised here is: What is the view of Islam in this regard? That is, if we want to attribute a theory to Islam in this connection, shall we say that Islam is advocating the positivist law school, the natural law school, or the rational law school? To answer this question within the given time is not an easy task, but we have to do so anyway.
One of the most fundamental differences between the Islamic perspective and the perspective dominant over the Western culture is regarding the realness or otherwise of values. According to the Islamic perspective, we have a set of real values which are not according to convention and contract. They are rather anchored in real interests and above personal tastes, contracts and conventions and even international treaties. Just as for example in medical issues, once a person is sick, in discovering the medicine for a disease, physicians make an agreement among themselves, forging a contract that from then on the said ailment shall be treated in a certain specific way. Are physicians like that? Or, are they looking for its real medicine? That is, whether we know it or not, there is a material which is very effective in eliminating the sickness. And the task of the medical researchers is to discover the relationship and not merely to arrive at a consensus among themselves. They do not create relationship between medicine and treatment, between observance of the principles of hygiene and health nor do they sign a contract. Instead, by conducting different tests, they try to discover those relationships.
In the realm of values also, according to the Islamic perspective, there is a set of general, fixed and absolute values which are based on real affairs and are not according to contracts. We have to discover these general, fixed and absolute values through reason or another way (revelation). The pristine moral values are like so and they do not acquire value through a contract.
The same is true in the case of rights. In reality, rights discover the existing real relationships in the lives of people. The formulas, which can organize these relationships in such a way that the felicitous life of man is ensured, are real formulas that must be discovered. Of course, one of these formulas may, for example, consist of ten elements, nine of which we have to identify and one is unknown to us, and then to see where there is exception. It is because some of these relations and their organizing formulas are so complex and thus, to discover them is equally problematic.
Consider a person who has taken the trouble to plant a seed or seedling on land which does not belong to others. Then, through his efforts he has succeeded in making a fountain there from which he used to water the seed or seedling until it has finally turned into a fruit-bearing tree. This person has taken trouble during the different stages of planting, maintenance and watering until his efforts have borne fruit. At this point, an issue called “ownership” is raised. As this person has made an effort and produced a fruit or a fruit-bearing tree, the welfare of his life is that he has to benefit from it. Now, if another person takes this tree from him and does not allow him to benefit from it, there is no doubt that his right is trampled upon. From where has this right been acquired?
From the troubles he has taken in the process. In a relationship of this person with another person who wants to benefit from the product of his labor, if this relationship is organized in a correct manner such that both equally benefit from the product of labor of each other, in that case it will be a just relationship. It is because a right is established for each of them and alongside the right which each of them has, a duty is also established to respect the right of the other. This is a simple formula which can be expressed in this manner: Anyone who produces a thing has the right of ownership of it.
But the issue is not always as simple as such and in intricate social relationships one cannot easily make judgment. In the same example, if we add other factors, determining the rights will not be as simple as before. If we plant a tree in a neighboring house and this tree arbitrarily affects the house structure, deprives the house of the sun rays, or its branches and twigs penetrate into the house and occupy a space of the house, in this case to what extent do we have the right to benefit from this tree?
Here, a new relationship is raised which affects the determination of rights. It is true that with respect to this tree, we have taken trouble, but through which we disturb another person because under the existing situation, taking benefit from this tree gives injuries to another person, and these things must be taken into account in a bilateral dealing. The element of the first formula since I took trouble, it follows that I have the right to benefit from it alone is not enough. For, here a new issue is also raised and that is the complex links among those elements embedded in the right.
Sometimes, social relations are so intertwined and produce reciprocal relations that to organize which necessitates an intricate formula and to solve them is not easy. In cases where the relations are fixed and simple, by making use of our reason and taking advantage of the experience of a person or the experience of others and sometimes scientific formulas, we can easily arrive at an answer which can easily be accepted if we mention it in any academic gathering or explain it to any reasonable person. In these cases which are simple and basic legal issues, our intellect is capable of discovering the relationship between right and duty and through rational proof we can argue in establishing a right or duty. But once the relationship becomes complex, even the expert and well-experienced legalists will be stunned.
In some legal cases, we can see that for many years and centuries, the lawyers have discussed them and notwithstanding it, they have failed to arrive at a decisive conclusion. In any case, there are some cases in which to find the final solution and a clear answer which is explainable to everybody is very problematic, nay something which is nearly impossible. It is in these cases that we, in the parlance of our Islamic culture, say that the intellect here can not understand. But it does not mean that they cannot be understood. It rather means that through our usual and common reasoning and the conventional skills at our disposal, we cannot easily discover the relationship and identify the exact formula that completely specifies the effect of each of the factors.
In these cases, because of the complexity of the relationships as well as the multiplicity of the factors and the uncertainty of the coefficient effect of each of those factors, through their common intellect human beings cannot have a correct, certain and identical judgment. According to our Islamic culture, we believe that in such cases divine revelation should assist humanity. Seeking the assistance of divine revelation does not mean that it will say something which is contrary to our intellect. It rather means that the divine revelation will compensate the shortcoming of our rational understanding. If we have information about all things and can discover all factors and determine the extent of their effects, in these cases, we can understand by ourselves. However, owing to the deficiency of the conventional skills we have, we cannot exactly discover these factors and the magnitude of their effects, and specify the exact formula for them. At this juncture, we say that our intellect cannot grasp them, and God (through the revelation) should determine them.