Last update: 2018-06-12 16:51:26
Islamic religious law, the shari'a, in its essential principles is not based on the historical experience of a society or a community it has divine origins. This fact shelters it from human will, passions and desires, given that it is not a product of a clash between the interests of the individual and the interests of society. Islamic religious law, which has celestial origins, corresponds to human nature. Its foundations, in fact, are based on what is required by the unchanging nature shared by all men. In particular, it meets the need for justice. However, within these fixed principles and established norms is to be found enough to assure its development. This law, in fact, is fixed as regards its foundations (usul) but it is in evolution as regards its practical implementation (furu'), precisely because it does not ignore those always new situations in relation to which the advance and the evolution of life require the issuing of a legal judgement. This means that religious law is connected with what we may call 'the right to the Shariatic interpretive (ijtihad) endeavour', a principle that allows the interests of the religious community to be met; this principle expresses a living rational, as well as religious, need. The contemporary debate on human rights, their foundation and their application, constitutes a privileged field in which to engage in this interpretative endeavour for the usefulness (maslaha) of the religious community, a usefulness which, as is known, represents one of the sources of Islamic legislation. Dr. Hamid Rabi', in his unprecedented study L'Esperienza islamica e la teoria dei diritti dell'uomo: indicazioni metodologiche ('The Islamic Experience and the Theory of Human Rights: Methodological Indications') stigmatises the uncritical acceptance of Western categories. 'We need', he states, 'to reconsider the concept of human rights, not because it is erroneous but because it is not absolute'. Dr. Rabi' here raises certain methodological questions, such as the question of the use or non-use of concepts that are current in the present epoch and the question of the universality of human rights and their connection with Western culture. The field of inquiry is complicated by the fact that one is not dealing with a theoretical, academic, analysis. In this analysis it is necessary to be careful not to apply the Western model immediately. For example, instead of asking whether in a given culture the concept of human rights exists, it is necessary to try to see how certain universal aspirations are concretely translated into different cultures. Not to do this would run the risk of falling into one of the following four positions, all of which are the outcome of an absent exposition of the theoretical foundations that underlie the use of the term 'human rights'. 1. The position that denies in a decisive way the existence at a theoretical level of the concept of human rights in Islam and links them to the influence of the West. This current observes, in particular, that the term 'human rights' is very recent and forgets to look for analogous or similar phrases in the Islamic tradition. 2. The position that denies the existence of human rights in the concrete history of Islam and chooses periods of especial authoritarianism to support a thesis which, if examined closely, appears to be extremely partial. 3. The position that affirms the existence of a concept of human rights in Islam but one that is limited and incomplete. This position does not distinguish well between the ideal level and the practical level and leaves the question of the origins of this lack unanswered. Is this absence contained in the revealed texts or in their application? 4. The position that affirms a total consonance between Islam and human rights, as a result of which nothing remains to be done but to embellish the enunciation of human rights with verses of the Koran and sayings of the Prophet. This last position, although animated by good intentions, has the defect of not addressing the question within a specific theoretical and philosophical framework. At the most, it confines itself to emphasising the resemblances between the Western vision and the Islamic vision. In reality, if there are analogies, there are also differences (abortion, homosexuality) and indeed some Arab and Muslim states take as a pretext for their lack of commitment in the field of human rights specifically the difference between the West and the Islamic vision in the field of human rights. In my view it is thus necessary to place the analysis of human rights within an Islamic methodological framework. The foundation of human rights in Islam is the dignity of man as the vicar of God on earth. In the Koran God says: 'Behold, I will put my Vicar on earth' (II, 30). There can be no doubt that this appointment as the vicar of God on the earth expresses human dignity to the highest degree. God gave man an upright path, the elements that help him to perform the task entrusted to him, and amongst these is reason, on which depends the taking on of legal obligations. The contract of 'vicariate' is based on observation of the rights of individuals and others: man, in fact, comes into the world with the charge of being a vicar with a view to promoting civilisation and the preservation of life: 'It is He who made you be born from the earth and on the earth you will have your dwelling place' (XI, 61). A second fundamental point in the Islamic vision of human rights is that God is the source that establishes rights and duties. He who believes in the one God attributes to Him a greatness and an exaltation without peers. Once this is granted, all peoples are similar, given that they are all creatures and servants of God. The struggle for equality and justice thus receive a better and more secure foundation when they are traced back to God. To establish that rights come from God does not mean the narcotising of human feelings or justifying submission, resignation and abandonment. On the contrary, it means elevating the status of human rights, linking them to faith and making this last the guardian, protector and promoter of human rights. The Koran condemns racism, upholds freedom of opinion and does not combat the existence of other religions but only possible attacks that may come from these against Islam. Islam does not know a class of priests who exercise their authority over people. Religion exhorts people continually not to be satisfied with doing what is right but to strive to grow always in generosity and good. Connected Duties The concept of a 'right' always also involves the concept of 'duty' for man: the duty to know it, the duty to implement it, and the duty to defend it. Rights and duties are thus intimately connected. Duties are personal or social but social duties become personal and binding for the individual when they are threatened. Muslim scholars of the foundations of rights have distinguished in the past between the 'rights of God', that is to say what is connected with general usefulness, and the 'rights of the servant [of God]', namely what is connected with particular and private usefulness. The rights of God and the rights of the servant determine, therefore, the rights of society and the individual [cf. 'Abd al-Raziq al-Sanhouri, Masadir al-haqq fi al-fiqh al-islami 'The Sources of Law in Islamic Jurisprudence', Jami'at ad-Duwal al-'Arabiyya, 1954, I, pp. 14ss]. Here it should be observed that in the Islamic vision of society pre-eminence is given to the value of justice, to which are subordinated equality and freedom, which, instead, Marxism and liberalism hold to be the supreme ends of society. The concept of a right can usefully be illuminated by the method of the general ends of the Law. What do we mean by a 'right'? The Imam Ab Ishaq al-Shatibi (m. 790/1389) states that the whole of divine law envisages certain ends which are divided into three categories: (1) necessary ends; (2) useful ends; and (3) optional ends. The necessary ends that the Law envisages are five in number: the preservation of religion, of the person, of lineage, of reason, and of goods. These ends concern the individual and society. They are connected with each other and revolve around the rights of God. To these principles are connected certain general norms that complete an upright understanding of these ends and provide them with a limit, such as 'no reciprocal injury' or 'respect your own rights and the rights of other people' Divine Legislator As has already been observed, the concept of 'usefulness' to the community (maslaha) is fundamental in religious law. Some scholars speak of this concept with shame and embarrassment, almost as though it were a justification for every deviation from the Law. However, uprightly understood, usefulness (maslaha) covers the two elements of reform (islah) and convenience (salahiyya). It coincides with what the divine Legislator intended for His servants: the preservation of faith, of people, of minds, of lineages, and of goods. Specifically for this reason, the idea of interest (maslaha) in its living intertwining and its essential interaction with the idea of the ends of the Law, if taken seriously, achieves speculative, methodological and research results of great value. This is the method of finalistic reasoning which allows the deduction of specific Sharaitic norms in the light of the general principles of the law, forming thereby a better basis for ambiguous categories such as custom and tradition and state of need, all of which are subsidiary sources of Islamic law. There are two limits within which the concept of usefulness (maslaha) operates: 1) it must not be in contrast with the sources, that it to say the Koran, the tradition of the Prophet and upright analogy. 2) It must be connected with the general ends of the law in the established order. Indeed, usefulness (maslaha) does not have the same status as the Koran, tradition and analogy. It is not a source upon which one can build legal judgements but represents the total meaning obtained from a set of particular judgements deduced from Sharaitic sources. The total meaning is indicated by the general objectives of the Law, whereas the particular judgements which are built upon are taken from Sharaitic sources. Certain clarifications are called for: 1. The five objectives of the Law listed above should be understood in hierarchical order. They are followed by the useful and optional elements. In the case of conflict, the necessary elements are preferred to the useful elements and of all the ends the preservation of faith has primary importance. 2. The general precedes the particular. For this reason, it is licit to preserve the minds of people from deviation from the faith to the detriment of the freedom of opinion of the individual. Indeed, the damage derived from not preserving people from deviation is greater than that derived from neglecting freedom of expression, although both these elements belong to the sphere of useful ends. 3. It is necessary to consider the estimated effect, whether immediate or future, of an action on the external environment. In applying these principles one obtains a way by which to classify fundamental rights from an Islamic perspective, creating thereby a 'scale of usefulness'. The theoretical premise that has been expounded allows the adequate provision of a foundation of human rights at both a theoretical and a practical level. What is the influence of this method at the level of international relations? As a general rule it excludes no field, including international relations and relations with non-Muslims. This vision, in fact, is connected with the Islamic religious community and with its cultural mission and its dogmatic and moral role. The correlation between the rights and duties of man to achieve general and total ends (in various fields and at different levels) assures respect for one's own rights and the rights of other people and of the community and allows the implementation of human rights, which find their specific centre in the profession of monotheism. Some human rights come within the necessary ends of religious Law (for example, life), others come within the useful ends. To connect general freedoms and human rights with the ends of general legislation means to extend these rights to everything that is material and moral, to every aspect of human life, embracing its political, economic, social and cultural diversification. These are only brief indications which bear witness to the possibilities that the model of ends offers to justify human rights, theoretically, within an Islamic perspective.