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The Source of Rights in Islam
By: Ayatullah Muhammad Taqi Misbah Yazdi
In the Name of Allah, The Beneficent, the Merciful Almighty the Prudent says in His holy Book: ...Nay he has brought them the truth. And should the truth follow their low desires, surely the heavens and the earth and all those who are therein would have perished... (230:70,71)...
And Allah the Exulted is true.
Preface
The subject of our discussion is the origin of ‘rights’. Before entering into discussion of the subject matter it is essential to explain the meaning of right and its usage.
Right, justice and its synonyms are the most sacrosanct words, which enjoy highest sanctity and special elegance of meaning in all the human societies. One can hardly come across a person who would like to introduce himself as the supporter of falsehood and oppression and oppression and opposed to justice and the right. The most tyrant persons and governments proclaim to be true and just in order to deceive the people. They want to cover the ugliness of their aggressive tyrant deeds under the beautiful mantle of justice and truth. The affinity of these two meanings becomes clearer when justice is defined as dispensation of right to the rightful.
The search for truth and justice is considered as the mother of all social values. The precept of virtue of right and justice is an evident rational dictum. Inclination and ambition for these are considered as a part of man’s lofty temperament. So is the precept of vices of oppression and fallacy an evident rational dictum. Dislike for these is also a part of human nature.
Islamic culture also attaches significant importance to these terms. These have repeatedly been referred to in the Holy Qur'an and the sayings of the holy Prophet (S.A.W.) and the members of his household (A.S.) which indicate the importance of this matter in the system of Islamic values.
Let us however, impress upon the fact that the word right has various usages but all of these do not relate to our subject matter. For instance, the word right means permanent being, or the statement according to facts or a promise about something, which would certainly happen, etc.
Therefore, truth in relation to Almighty Allah (SwT) also does not relate to our subject matter. If the search for justice and right is part of human nature it cannot be related to acquaintance and worship of Allah (SwT) and the existence of one cannot be derived from the other. Some have tried to do so to arrive to such conclusions but they have only confused between its ethical meanings and philosophical conception.
The other point is that the limitations for usage of right in legal discussions is much narrower than its expanded use in ethical and religious discourses, discussions are held on the ‘rights’ of Allah (SwT) over man and even the ‘rights’ of man over Allah (SwT). But as far as the legal concept is concerned it exclusively relates to the relationship between man and man. On the other hand, the word ‘‘rights’’ is used in at least two different meanings as far as its usage by the lawyers is concerned. The one relates to reservations and privileges granted to individuals or groups of persons, which should be honored by others and should not be violated or encroached upon by any one.
The other meaning is the code of laws whose observance is obligatory. These may provide privileges for certain persons or prescribe obligations for others. These can also be laws describing conditions regarding the correctness of agreements and contracts. The word ‘rights’ the correctness of agreements and contracts. The word ‘rights’ in the second sense is very much similar to the term social laws.
However, these two meanings are not entirely alienated to each other, because all legal laws are connected in one way or the other with the right of individuals or the society. If it grants a right to somebody it necessitates and obligation for the opposite side. In case it provides obligations for all it would mean provision of reciprocal duties for all. As a result of this every one will have a reciprocal right on the other. As a matter of tact, such general laws are dissolved into minor laws each of which guarantee a special right or obligation.
To put this in one sentence, it can be said that ‘rights’ and duties are interrelated and the enactment of one necessitates the provision of the other.
Similarly, the enactment of laws such as those providing details and conditions for entering into agreements and contracts and similar other laws provide both ‘rights’ and duties accruing from such agreements and contracts.
Presentation of the Issue
As mentioned earlier the search for ones ‘rights’ is a lofty sacrosanct human value so much so that it is considered to be the mother of all other social values. But the word right by itself does not represent anything or a deed in particular. It cannot precisely specify its meanings. For instance, the meaning of justice can be specified only when a right is stipulated in advance so that its restoration to its owner is considered as the applicability of justice.
In other words the concepts of ‘rights’ of ‘rights’ and justice are not substantial concepts, which could be obtained by the realization of its instances and may not need rational considerations and comparisons. A particular move or action cannot always be considered as illustrative of right and justice nor can another type of move or deed can always be considered as unjust and oppressive. In certain given circumstances, even beating, injuring and killing may be considered as a case of right and justice. For example, if it was a case of reprisal or legal punishment. Hence the legality or illegality of such actions depends on the fact whether it was done as a reprisal or punishment or committed as an original act without the other party which is beaten, wounded or killed, having committed a crime. So long as such considerations and comparisons are not made, the outward act cannot be defined as right and justified or illegal and cruel.
Hence, the most fundamental issues of the philosophy of ‘rights’ is as to what is the origin of ‘rights’? What is the basis determining the ‘rights’ and obligations of persons in varied conditions?
In other words what is the source of segregating the titles of rightful and the wrong. Just and unjust? What considerations and distinctions should be carried out to distinguish between these titles?
Some may say that instances of right and justice can be recognized through wisdom and natural instinct. Every wise person knows that snatching a piece of bread from a hungry orphan child is cruelty and its restitution a justice. On the whole depriving an owner of his property. Whatever it may be, or aggression on any ones life and honor is cruel and unjust, but consumption from ones own property and protection of ones own life and dignity is rightful and just.
But such replies are the outcome of simplicity and lack of in-depth-thinking of scientific and philosophical issues. Anyone who has that least acquaintance with legal matters can quote many instances wherein identification of right and wrong would not be as simple as that. In many cases, even the most talented judges of the world get confused while they are required to deliver their judgment. There are abundant instances wherein distinguished legislators of the mankind cannot express a decisive opinion or expressly identify between the right and the wrong.
Therefore, if there are clear, definite and specific instances of right and just for the common man, undoubtedly there are many ambiguous and doubtful cases wherein it is not every specific rules and complex formulae. It is about these rules and formulae that we have to endeavor and find them out.
A Basic Difference
Having dealt with superficial and simplistic views, we come across a deep-rooted difference between the lawyers. The question is whether right and justice have a real essence of their own which needs to be discovered and identified, or such matters are subject to conditions and agreements, for instance, situations which do not have any real essence and rational basis. On the contrary they are dependent on agreement. In cases where there are supportive and overall agreements it is considered that human wisdom and conscience would realize them. In case where such overall agreements do not exist, there is a need for enacted laws so that peoples right and duties are determined through them.
Such a tendency existed since long amongst the Sophists who believed that right and justice, as well as all other moral and legal matters were subject to public opinion. Their most well known aim is that man is the standard of everything. From the writings related to Plato it appears that the major portion of Socrates discourses with Sophists related to moral and legal subjects.
But this tendency declined with the flourishing of the philosophies of Plato and Aristotle. They could not get any renowned supporter for many a centuries. It was only after the renaissance and particularly during the days of Hume, the famous septic British philosopher that this way of thinking came to surface with fresh prestige and dignity. Gradually the number of people contributing to this philosophy increased. Presently the historical and positivist schools of law, which have attained significant reputation in international legal circles, are more or less, fed through this source.
In reply to those who contribute to this tendency, it may be said that if ‘rights’ did not have rational and realistic base, the relationship of contradictory and antithetical laws with the welfare and well being of the people should have been uniform, whether people liked these laws or adopted laws other than these. Innumerable experiences in addition to ones reason and wisdom indicate that many of the enacted laws have been to the disadvantage of society. Legislators have realized their mistakes after sometime and resorted to set them right. This is the best witness to the fact that irrespective of people’s inclination and despite lawmakers’ views, real interests and essence do exist, which may occasionally be in line with enacted laws and at times opposed to it.
But this summary reply is not sufficient to remove all doubts, which arise in this regard. It is necessary that at least the most important of such doubts should be examined and dealt with.
Reason for Deviation
Probably for us, the Muslims, who have been brought up in the environment of Islamic culture, it may be rather astonishing that a group of eminent law experts deny the reality of essence for right and justice and opine that they are subject to people’s views and taste. This tendency is in vague in contemporary legal circles of the world and has registered considerable numbers of supporters.
It may however be noted that, like other deviated ideas in different branches of philosophy and learning, this view did not come to surface extemporaneously nor did it spread or expand merely by chance. There are two reasons for this. Firstly, some invisible hands may have propounded and propagated certain psychological, sociological as well as legal and economic theories with a view to achieve their political and colonial motives. Secondly, Certain doubts might have been raised for which convincing replies could not be fond due to weak philosophical foundations. As these doubts and suspicions piled up, they caused a tendency for theories, doctrines and schools, which were of a deviated nature. Let it not be forgotten that most of the deviated thoughts came in vogue only when philosophy and meta-physics became weak and the place of deep thinking rationalism was taken by superficial sentimentalism.
However, what popularized this deviated tendency in lego-moral philosophy is the presence of a number of doubts and suspicions mooted by emporiums and positivism etc. and found appropriate social grounds for their acceptance.
A detailed examination of such doubts and suspicions and a description of statements and all pervasive disputes in regard to them cannot be discussed in this short paper. Therefore, I would only deal briefly with the most important doubts and provide replies to them. Thereafter we shall explain the acceptable views in regard to the origin of ‘rights’.
Investigation of Doubts
One of the doubts is as follow: There have been and still exist different system of laws. Each of these has been more or less effective in the realization of the objective, which is the maintenance of law and order in the society and relative security of peoples demand. Every society prefers its own system of laws. If people’s views and understanding undergo a change, the laws ruling the society are also altered. This has been witnessed in different countries of the world. These changes have also taken place even in legal systems that are divine and based on religion. This change takes place by nullification. If laws had a stable rational base such changes and alterations could not be justified.
In reply it must be said that:
Firstly: The legal system should not be considered as a totally independent system. Nor should its objective be considered as the maintenance of order and relative security of peoples demand. On the contrary, the legal system should be recognized as part of a comprehensive and value-oriented system; its object being the creation of a means for the realization of ultimate aim through a complete value oriented system.
In other words, social relations are only one of the many aspects of human life. The provision and regularization of these relations are a means to provide utmost possible perfection and eternal bliss to the largest possible number of people belonging to the society. Therefore, privilege laws should be enacted in such a manner that they are commensurate with the general objective of the value oriented moral system or at least it is not in contradiction with it. This is a fact, which has been neglected, in man-made legal systems resulting in separation of laws from religion and ethics.
Secondly: The claim that various legal systems are similar as far as the realization of approximate legal objectives is concerned is unrealistic and exaggerated. As mentioned earlier many a times the law makers themselves have realized their mistakes and worked to set them right. It is because the alteration of laws is not only due to change in views and peoples understanding.
Thirdly: Rational and realistic base for laws does not mean that all legal norms have stable and ever-lasting infrastructure. May be the change in certain realities and external conditions may result in alteration in some judicial laws. The nullification of divine laws in certain cases is one such instance. However, the question of the existence of a rational base for laws should not be mixed up with its permanency.
The other doubt is that a legal system comes to realization when the people of a society or at least some active and effective groups and sections of the society recognize the system. Till such recognition is achieved, it remains an idea in peoples mind or a few lines jotted on a paper. Therefore, the basis of laws is public opinion and their acceptance by people; even if an individual or group of persons in the beginning imposes these on them. However, the wishes of people and the views of individual and groups cannot be neglected and the laws are based on reality of essence independent of people’s views and understanding.
In reply it may be said that there is no doubt that the working of a legal system is based on its acceptance in the society. If the people as a whole, or their majority or their active and effective groups are opposed to a legal system and resist it strongly, the system can never be put into effect. However, the question is whether a legal system can be called just or oppressive without taking into consideration its acceptance or non-acceptance by the people? Can it be said that a people have accepted a just system and another people have submitted to an oppressive one? Can it be said that a system recognized by the people shall be just and that justice and tyranny are nothing but their acceptance or rejection by the people? Those who view right and justice as independent of people’s opinion and acceptance believe that a given legal system can be just even if people do not accept it. And naturally another given system, contrary to the first, shall be oppressive irrespective of its acceptance or otherwise by the people. The above statement cannot contradict and nullify such a view.
The other doubt is that legal laws are dictatorial and their essence is command and prohibition even if these are expressed in informative terms. This is evident from description of ‘rights’ bearing the essence of privileges or from description of enacted laws such as terms and conditions. It is obvious that dictated version could neither be verified nor denied. In such cases one cannot give consideration to facts. We have only to consider the wish of dictator based on negligence and permissiveness. In any case such commands have no other facts behind them except the wishes of the dictator.
In reply is to be said that we don not deny the dictatorial nature of legal terminology nor do we deny the dictatorial nature of informative compositions and also accept the: possibility of presentation of dictatorial compositions in the form of informative text. However, the question is that if such wordy and literary debates are set aside, one can say without any doubt that a particular law is in conformity with peoples interest and if enforced their real interests will be served. Similarly, conversely it can also be said that a particular law is against people’s interest, our purpose in saying that laws are in conformity with or against people’s ‘rights’ in nothing but what has been said above. If possibilities of such a comparison were denied it would only mean to dispute and refute the self-evident.
It becomes clear from the above that the existence of description by using dictatorial terminology and words of command and injunction relate only to a particular style of description which is selected to add to the stress laid on such commands. It also has the aspect of psychology and does not indicate any sign of dictatorship in its nature.
The other doubt is contractual substances and legal subjects consist of matters like ownership and companionship etc., which have no reality into consideration for legal methods, which include such substances. These are termed as correct if they are in conformity with provision and called incorrect, if not.
In reply it may be said that the above-mentioned matters are, although subject to credibility and contract and that there is no specific factuality in regard to them but it cannot be argued that these have been supposed and stated in an exaggerated manner. On the contrary, these are like mathematical and algebraically formulae which relate to the effects, fractions and sub-fractions of different factors and are taken into consideration as signs and symbols for particular behaviors and their effects; and that those behaviors and effects so formed on them bear a mark of identicalness and factuality. For instance, the term companionship is a symbol to indicate the state of the total behavior of two spouses in their family life, which is identified by certain limitations and restrictions.
Therefore, though legal terms are not by themselves indicative of any ocular realities yet they are not entirely alien to such factuality's. We may, therefore, describe the relationship of these matters with facts stating that the state of the actual relationship of mankind are the base and the infrastructure of such matters. In other words it can be said that legal and value matters are like two-faced coins, one side of which is indicative of their value and the other indicative of their factuality.
However, the motive leading to the acceptance of such matters or to consider them as borrowed from substantial and philosophical context is to facilitate their understanding like the motive in all other rational credibility's. For once it can also be like a motive, which leads to the usage of alphabets and brief signs in mathematical formulae. Therefore, we should not be tempted by the outward credence of legal methods; nor should we neglect the facts hidden behind them. While facts of physics and chemistry are related in the language of mathematics and through algebraically signs, these cannot be considered as devoid of correctness only because of these signs being contractual.
It may be recalled that in case of companionship and other credibility's accruing from contracts and agreements, acceptance of both the sides and their decision to observe particular types of behavior as well as the expression of this acceptance and decision form parts of a specific social expedience formula. Though all these are factual and non-contractual meters, the use of a particular word or the writing of a specified sentence or the performance of a particular action during the implementation of the contract may be forged and contractual matter, but the credence of this condition, in its own turn, is subject to real expedience and substance.
It is therefore, concluded that the creditability of legal substances cannot be considered as a reason for the absence of virtues and vices in the substance. Nor can it be said that there is no connection between the legal laws and the virtue and vices of the substance.
The other doubt is that legal methods, while conferring a right of someone emphatically or implicitly, confirm a duty for the opposite side. Therefore, all legal laws should be considered as containing the essence of must or obligation and the synonyms thereof. On the hand we know that such matters, for instance value essence, is different from real essence because real essence speaks of external affairs, and have descriptive aspect as against the matters of value essence which have instructive and obligatory aspect.
In view of these two prefaces, it becomes clear that legal laws cannot be considered as bearing realities and they cannot be derived from descriptive affairs. For instance, if the aim that man is born free and has the potential to select and adopt is taken into consideration, we cannot conclude that man must live free and the right of freedom for every man is intact. This is because one of the conditions for correct reasoning and deduction is that the result should not contain an essence in excess of the essences that form the axioms. Whereas descriptive passages do not contain terms like must but the instructive context for instance legal norms do consist such an essence.
It is, therefore, concluded that legal passages do not contain ocular realities, neither these are dried from descriptive happenings nor do they contain realities. Hence, legal laws cannot be considered as authenticated by ocular realities.
In order to clarify the reply to this doubt, two points should be kept in mind: Firstly, it is not the external things, which are meant to be the essence of realities on which depend legal laws. On the other hand it means the qualities which wisdom differentiates in things and persons and the relationship between them. This includes the relationship of passion and impression between the voluntary deeds of a man and the results accruing from them-whether material, worldly and social or spiritual, moral and otherworldly. Such a relationship is reality of essence; though it may not be related to external things. In other words the logical and metaphysical facts described with special philosophical essence are realities of essence. Therefore, the proposition that it is necessary to observe rules and limitations to maintain order in the society has of essence because the observance of limitations and rules is the cause for the maintenance of order and the existence of cause is necessary for the fulfillment of the effect-this necessity is iterated as analogical necessity in philosophical terms and considered as a reality of essence. It is because social order cannot be achieved in the ocular external world without the preservation and observance of laws. This proposition enjoys as much of reality of essence as mathematical and natural propositions. For instance the necessity of water for the growth of trees or the need to raise to the power of two the side of the square to find out its area.
The other point is that logical propositions contain unpronounced parts in addition to pronounced portions. This indicates the relative condition and is known as the essence of proposition in logical terminology. The unpronounced essence may be called as its aspect. It can even be treated as an essential element of the proposition. For instance it may be said that existence of living beings is feasible in celestial bodies. In fact the essence of feasible described the condition of relativity between the living beings and existence in celestial spheres and now it has taken an independent essence and become the predicate of the proposition.
Taking into consideration these two points, it becomes clear that legal propositions are in fact descriptive of the relationship of the causality between the various types of mans voluntary actions and the realization of the objectives of ‘rights’. Their soundness depends on the discovery of the complete formula of causation and the exact identification of its components, conditions and restrictions. But the discovery of such a complete formula is very difficult in consideration of multiplicity of factors and their variations and different types of restrictions, interests, mischief and shortcomings in all instances. This also results in creating many different points of views. If, however, one takes into consideration the necessity to contain the legal system within the whole value-oriented system also paying attention to moral objective, the difficulties inherent therein shall become obvious. Finally, one comes to the conclusion that human wisdom is so limited and his experiences so imperfect that these cannot present a perfect legal system, which can work to achieve eternal bliss and complete perfection. That is why the need for revelation and Divine law becomes obvious.
And now the problem regarding the deduction of the word must from the word to be will be solved in view of the second point. The propositions known as descriptive propositions consisting of the relation of causation shall guarantee analogical necessity which form the essence of the proposition and this is the essence of the guaranteed necessity in introducing analogy and appears in the form of must and obligation. Neglect of these logical subtleties has made some others feel that the deduction of value oriented and legal laws from descriptive propositions is not possible. However, it must be considered that the deduction of the need of effect depends on the realization of all the components of the total cause contrary to the existence of each of the cause factors, which are essential for the realization of the effect.
If in the preliminaries of analogy only one part of the total cause is included then the need for effect cannot be deduced from them. The sophistication obtained in the deduction of moral and legal propositions from scientific ones is due to the placement of a part of the cause instead of the total cause. The examination of these matters is not within the domain of this short paper.
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