Islamic Human Rights (Creative Outlook)

M. Akefi Ghazi[i]

Abstract

By no means human rights are denied in Islamic thought since with a brief glance at the Chapters 'Balad', 'Brightness', 'Alms'…and many verses embodied in koran's context one can conclude that a whole range of social duties namely, freeing the slave, feeding the orphan are imposed on man. Philosophically 'Resurrection' judgment day is one of the main pillars of Islamic faith on which man who has committed an atom's weight of good or evil shall be rewarded or punished. Therefore Islam is not careless about the social situation of people .In this article it is tried to explore the role of Islamic approach towards the modern human rights. However Islam as religion in general has been regarded as important factor due to improving human rights. Prior to uncovering of the Islamic view on the human rights in particular, it would be preferable to get acquaintance with the human rights in view point of Religion in general.

Introduction: 'Religion and Human Rights'.

 Human being possesses by virtue of being human, many rights irrespective of religions and beliefs. This is a common language of scholars and human rights advocates in our contemporary era. The general tendency today is toward universalism of human rights values, although it confronts the regional interests as well as state's sovereignty. Some abstract concepts such as religion, philosophy, morality and nature are much primitive than that the government or state. The latter makes rights by enacting while the formers are the sources of law. Speaking about the sources of law draws greater attention towards religion. Therefore, the question arises concerning the role of religion in generating human rights.

 Moreover, another dimension of the question is that by taking into account varied religions and ideologies across the world, the fully universal concept of human rights can not be suggested. In other words, ideological borders meaning the contradictory views of Jews, Christianity, and Islam will underline the human rights instead of political or governmental borders.

However, certain rights may not be derogated from the various cultures or religions. The rights to life and prohibition of slavery are considered among them. On the other side, religion may be considered as an original cause of human rights violations. Fairly as in the case of apostasy, conversion and blasphemy it can be highlighted the fact that religion has traditionally been sought to justify violations of human rights. It requires a universal effort to struggle against this kind of misuse of religion to improve the human rights situation of all human beings. Dealing with these problems and overcoming the difficulties, one has no option but to examine the main source of human rights i.e. religion from where states derive legal justifications as well as moral ones to urge for or against human rights.

First of all it should be noted that notwithstanding the principles which are introduced by religion, the term ‘human rights’ as such is not found in traditional scriptures of religions. But "All religions hold human beings sacred, and consider all of them equal whether it Old Testament, Bible, Koran or Bhagaved Gita". In fact, religion in total is universal to a common humanity, since the rights stem from a divine source. In addition, the interpreters and religious philosophers are trying to present such image of religion which is compatible with basic human rights prescriptions although religious texts, like all other ancient and historic texts are open to a variety of interpretations. Therefore contradictable interpretations may be brought on controversial subjects such as human rights. In the case of Islam also it is believed that "there is no single uncontested definition of Islam and its precepts". In this regard the theory of an intellectual who introduced the theory of “expansion and contraction of religious knowledge" is noticeable which made a lot debates around the matter by religious scholars".

As it is asserted, religious justifications are used as a repressive measure, even if the actual motive is political to violate human rights and its universal values. Considering the very meaning of human rights as those rights which every individual must have against the state or other public authorities by virtue of his being a member of the human family, irrespective of any other consideration it seems that human right and religion are located in one frontier and states in opposite side. Therefore, human rights values did not emerge to prevent the domination of religion though they are not in full compatibility with state’s authorities. Perhaps this is the reason why some writers suggest that idea of human rights, human dignity and the great liberties of speech and association are derived from certain kinds of religious views.

Islamic human rights

The phrase reflects some complicated and ambiguous concept in view of the contemporary human rights activists, who occasionally use ‘Human Rights and Islam’ in substitute, which means that Islam may or upon not be compatible with Human Rights values. Some writers may prefer ‘Islam and Human Rights’ pointing to this argument that human rights' values are not newly discovered by western civilization rather it had already been created and protected by Islam more effectively and older than Christian era. The pertinent question behind this inquiry has been; 'Did Islam contribute to customs of human rights'? Then the consequent question may occur to one's mind is, to what extent does Islamic concept of human rights differ from its universal counterpart?

The notion of human beings created in the image of Islam indeed bestows men and women with worth and dignity from which can reasonably flow the mechanism of a human rights.

 It should be noted that the moral principles of human rights are making coherent sense about the principles which govern the ways mankind treat one another whereas Islamic teachings are overflowing with moral instructions. However, historical and philosophical debates may be considered on whether Islam has a particular concept of human rights and whether Islamic law can be consistent with human rights framework?

 Basically the sources of Islamic law in general and the Islamic human rights as branch of this system are distinguished from international law and corollary universal human rights. Koran and the tradition of Prophet Mohammad make original sources of human rights in Islam.

 In the view point of Islam, law is not the product of the men because they are not capable of creating binding acts rather God, the creator of human being, knows expediency of his creatures better than any body else. However, on the other side article 38 of the ICJ statute recognizes some other sources of international law such as man-made law of conventions and treaties which are not derived from divine law. The matter is traced back to philosophically and jurisprudentially differences between these two systems.

According to Islamic thoughts, God is the only source of law and law is gifted to human beings as God deemed advisable to his creature. In case of need, the Contexts and intentions of God's book may only be interpreted by religious scholars. It should be noticed that although Muslims believed that the Koran is the truthful and ultimate word of God they also appreciate that this source has to be understood and applied through human interpretation that is 'ulama' religious scholars.

Secondly, the spirit of the human rights in the contemporary sense is the belief in the sacredness of human personality and inherent dignity of all members of the human family as the foundation of freedom, justice and peace in the world, which is commonly spoken in the international bill of human rights. This sacredness is supposedly universal and absolute and it has some consequences which means that certain choices should be made for all human beings and certain choices should be rejected for any of them without any discrimination as to race ,religion, sex, etc…Although in Koranic view the human being is accorded dignity and honored by God as the best creation in comparison to other creaturesyet Muslims are the Islamic 'Ummah' which God made. They believe, they are the best nation among other nations in the world. This superiority is arising from and rooted in religion. Therefore the people in the Islamic thoughts are divided into two groups, the believers who are "mo'men" and the infidels who are

Unbelievers'kafir' .

Essentially on the grounds of the mentioned characters, concept of human rights in Islam demonstrates many conflicts with its western or universal counterpart. Despite its conceptual difficulties, the issue of scope and extent of rights and freedoms are among debates. It seems that Muslims are currently partly divided among themselves on the question of what kinds of human rights protection is provided by Islam.

Although today some Muslim countries throughout the world have ratified international human rights covenants, still others resist joining international treaties such as ICCPR, ICESCR, CEDAW, CAT and UDHR. In spite of unstated political reasons, apparently decisions are based on the grounds that these human rights instruments did not acknowledge rights to be the gift of God and violated the Qur'an and certain common principles of all jurisprudential schools 'madhaheb' by for instance asserting the right to change one's religion, equity of men and women etc. Thus it seems that some extent of pessimism towards International human rights standards prevails among Islamic states. The skepticism due to international law in general and human rights in particular has no short history in Islamic countries as well as around the world. It is to be noticed the contrast of the Islamic notion of human rights with Christianity or Judaism?

As it is asserted, the opponents of UDHR adhere to the statement that the new concepts of human rights are brought out from the culture of non Islamic countries which could not be implemented in Islamic countries without trespassing shari'ah. This argument cannot be logically admitted by those who have deep knowledge in religious philosophy. For Islam as monotheistic faith is very akin to the two other main revealed religions. These three religions place a high premium on the sanctity of life, human dignity, and moral ethical values. As societal religion, Islam underlines that the rights, freedoms and welfare of the individuals should be determined in relation and proportion to the dignity of the community. Koran emphasizes on the responsibility of its followers and also cautions against unjust rule and arbitrary impositions as well as living in conflict with one another. It reads: “...so judge between them by what God has revealed, and follow not their vain, desires, diverging from the truth that comes to you…so strive as in a race in all virtues…”.

Koran does not recognize any kind of discrimination in the terms of racial, political, social, territorial division. If we juxtapose Islam with the rest two, we will see that nearly all are same in characters. For instance, all are theocentric, all believe that religion must play a major role in one’s life, all believe that morality is absolute and its rules are laid down in the Bible and Koran, all of them are idealistic not pragmatic and they believe in divine law rather human made law. Christ also preaches that his Kingdom is not of this world, and prepared his followers for admission to the kingdom of God. In fact the messengers of God are not dispatched to bring contradict perceptions of fight against each other. In view of Koran mosaic law was revealed to Moses and there was guidance and light. The same approach is due to the Gospel.

Islamic Human rights conventions:

Predominantly Islamic states have been criticizing the UDHR for its perceived failure to take into account the religious context of non-western countries. In their view the UDHR was a secular understanding of the Judaism and Christian traditions, which could not be implemented by Muslims without trespassing the Islamic law. Therefore a comprehensive response from at the first, Muslim thinkers to UDHR was the UIDHR (Universal Islamic Declaration of Human Rights) of 1981 published under Islamic Council of Europe and at the second Muslim states to that the CDHRI (Cairo Declaration on Human rights in Islam) of 1990 issued by the member states of the Organization of the Islamic Conference (OIC). CDHRI was adopted by 45 foreign ministers of the OIC to serve as guidance for the member states in the matters of human rights. Frankly speaking CDHRI should be regarded as the alternative to UDHR since it underlines its basis in accordance with shariah. According to article 25 of the CDHRI the Islamic law is identified as a sole source of legal regime. The Article stipulates: “The Islamic shari'ah is the only source of reference for the explanation or classification of any of the articles of this Declaration”. In addition Article 22 says:

“Everyone shall have the right to express his opinion freely in such manner as would not be contrary to the principles of the sharia”.

To sum up, considering the entire articles of CDHRI it can be concluded that those human rights which are in accordance with shari'ah could be recognized only by member states whatever they are vary from the right to hold public office, right to freedom of religion and right to financial independence of women in comparison to men. Accordingly, the key respects on which CDHRI diverges from the UDHR is adherence to Islamic Shari'ah.

The various interpretations on the Islamic thought in the course of debates can be easily comprehended by referring to the differences of the embodied provisions of the two Islamic Declarations on Human Rights. Both were issued in the name of Islam.

“The Declaration 'CDHRI' contains no explicit reference to the rights of non-Muslims, nor does it include a general right to freedom of thought conscience and religion as found in the international agreements". Whereas, the UIDHR reflects some how international Human rights values accepted by the Global Declarations.

Features of Islamic Human Rights:

By referring to the text of these non-binding declarations on the Islamic human rights, we find the different approaches to the reconciliation of Islamic human rights with international standards. Therefore the ipso fact result is that the features of the Islamic human rights should confine itself to narrow extent that could be accepted by at least majority of Islamic thinkers. Since there is no consensus on the matter of Islamic human rights, probably, this gap can pave the way for any kind of abuses of human rights in the name of cultural relativism or religious norms.

The key features centralized on the common Islamic stand, are as follows:

I. First of all, it should be noted that the philosophy of Islamic human rights law is based on the Theo-centric theory which the western perspective can be called anthropocentric. On the basis of this doctrine, man is not regarded as starting point of all thinking and action, yet he exists only to serve his creator and sustainer, the Supreme power. Therefore it constitutes the decisive distinction away from western attitude. As a result, an Islamic state would be an ideological state in which sovereignty of God is its starting point. Allah is alone the real law-giver and the authority of absolute legislation is vested in him. He alone is the source of all rights. Thus political representatives of the states are not eligible to determine the scope or the extent of quality and character of human rights.

II. Therefore, according to God-centric doctrine, man has only duties towards God and his fellow men to observe their rights. In other words human rights are born in the field of human duties. Consequently,it is believed that the concept of Human rights in its modern interpretation derives from western culture which emphasizes on rights in contrast to eastern civilizations, such as Islam. Duties are precisely regarded as laws, which restrain human actions within certain limitations forbidding some acts, enjoining others, and restraining the primitive liberty of man so as to make it as beneficial as possible either to the individual or to the society. While the duties are addressed to individuals it means that in opposite others have rights. Therefore individuals are not only object of law as it was understood under the traditional international law, which was defined as the law governing states. According to the doctrine in which rights are evaluated to duties, the person with less right should be more cautious as against those with more right. Thus citizens are divided into two portions, some of them regarded to have more duties to the others with none. Therefore those whom are considered with to have more duties to the government can be called the second class, they enjoy little rights in comparison to the first class. The first class is believers and the second are non-believers or Al-Dhimmihs.

III. In addition to division of people into believers and non-believers, we reach to the third feature of Islamic human rights. That is the doctrine of classification of citizens on the basis of belief. Along with it is fair to say that non believers enjoy some extent of rights not compatible to majority population of the Islamic society. In fact the extent and scope of rights and duties are defined on the basis of religion of the person who is subject or object of these rights. Although the two earlier features had theoretically challenged the international law philosophy, here in the third feature we confront a practical challenge between universal character of human rights and traditional Islamic law. In other words, human rights would practically be breached on the basis of this feature.

IV. The forth corollary feature which resulted from Theo-centric character of Islamic human rights is that conventions and treaties of human rights are not valid because the global entities are not authorized to draft laws in view of Islamic teachings. Not speaking so strong at least it should not be in contrary to Islamic law. Apart from the Islamic Declaration it is clear that non universal Declaration on the matter of human rights did acknowledge rights to be the gift from God contradicting the Islamic perceptions such as the right of conversion or freedom to profess any religion or right to any religion. According to this basis human rights cannot be prescribed as universal demand or order.

V. The fifth feature of Islamic human rights is that the human rights and its orders whatever it be or on any scale, whether with universal character or regional cannot restrict the sovereignty of Islam and its teaching since Islam is believed to be the greatest and nothing in the world is greater than this religion. This principle is called the rule of 'Iatila'. According to this doctrine sovereignty and reserved domain of Islamic territory is strictly protected against anything which may decrease it. Under the above facts the Islamic countries, among Asian states, stress the need to consider the notions of human rights values in their traditional regional culture and within the national sovereignty of states. This attitude was adopted in the Bangkok Declaration 1993 ahead of the Vienna world conference. Clearly this approach to human rights is contrary to the universality of the human spirit.

VI. The sixth feature of Islamic Human rights can be introduced through the role of man in the globe. According to Islamic thought man, though the Koran reveals in absolute terms including even disbelievers, is successor on behalf of God on the earth. Therefore man as the super creature even superior to Angels, enjoys full dignity and prosperity. His life, reputation, properties, security and belief should be respected by others including the government and authorities. On and from this point one can reach human rights’ definition in Islam meaning that human being as a successor of God on the earth should be regarded as an honorable creature with free will in his life to conduct everything fit for himself. Properly this argument is a base for those intellectuals and thinkers of Islamic states who believe in reconciliation of human rights with Islam. They believe that Islamic texts should be interpreted in accordance with the exigencies of time and place in any given society since the fundamental principles of Islam are grounded on the dignity of human being. This dignity enjoys so high precious in Islamic teachings that it is believed God has breathed into him of His own spirit.

VII. The seventh feature is that the concept of human rights and the specific term of that lacks précise equivalent in Islam, the same as it is not seen in the earlier legal texts of the western area. In Islamic jurisprudence, the rights in general are categorized into two scales; one is devoted to God known as hogoogol lah (The right of God) and the other is to individuals “hogoogon nass” (the right of people). Both should be undertaken by man as a duty. Wrongdoers under the first category are prosecuted under the obligation of Islamic state while the legal procedure of the latter is based on the decision of the injured people. Although some crimes against man such as deceit, bearing false witness, of an article of trifling value etc, sustain both features of rights in which there is also a breach of the divine law as well as the breach of man’s right. However, a lot of distinguished rights of Human being can be listed by referring to the texts of jurisprudence or be found out by examining the practice of Islamic states.

 Islam's contribution to Human Rights' values

Islamic jurists generally believe that valuable basic rights of contemporary human rights were loudly declared by Islam many centuries earlier than approval of UDHR or ICCPR etc. Even some of them believe that the Islamic human rights are more just and equitable laws than its equivalent in the western region. Because of its sanction which is guaranteed by religious entities on the order of God, Islam tries to make strong the human relation and brings the sense of co-existence and brotherhood in the society. In this line Individual dignity ranks high and every member of the community has the right to participate in social affairs or offices. This dignity applies to all human being wherever they are and what ever religion they belong to. In other words, human right in Islam has character of universalism. It should be noted that the first verse of revelation was related to the matter of conscience and education. So Islam called the attention of the people to this eminent vital necessity of our daily life: Koran says: "Proclaim! And thee lord is most Bountiful, He who taught the use of the pen, thought man that which he knew not".

It seems that the starting point of human rights in koranic view is the right of man to education, a right with universal character. It is very amazing while Muslim countries claim that the Islamic Human Rights values are universal. Meanwhile, they loudly attack the popular western notion that human rights are universal. However, by referring to tests and traditions of Islam we may classify the rights which Islam provides to human beings under two categories; At the first, the fundamental rights which Islam lays down for all human beings such as right to life, right to justice, right to property, right to freedom of movement, right to privacy and dignity.

 The second class of rights are considered towards specific group or society of human being due to their special need for protection such as children and women or due to their religions living under Islamic flag and sovereignty such as religious dissidents or dhimiz 'Ahl ol Ketab'. Therefore these rights include rights of non-Muslims, women's freedom of religion, freedom of conversion, right to equality etc.

Whatever the case be, God as the creator, sustainer and nourisher has given each man these rights and he is the only source that can gift the rights to all, not states nor authorities of government. Therefore it is perceived that these rights cannot be changed or abolished by others.

Role of Islam in development of Modern Human Rights

 Like other ancient nations such as Egyptians, Hindu and Babylonians Islam also has experienced practices which provide plenty of evidences which observed some form of law ,customs or moralities in its external relations with other neighboring nations which may fall under the collective name of our modern date 'the law of nations'. However some writers believe that ancient practices should not be regarded as representing contribution towards the evolution of international law. This view is in contrast with what has been presented by Nagendra Singh of the role of ancient India on the evolution of international law. The rise of Islam, with its universal call to men and the fact of neighboring with other civilizations necessarily raised the problem for the Islamic state as to how to carry out its peaceful as well as hostile relationships with non-Muslim states as well as with the tolerated religious societies within its own territory. Under this light the law of war 'jihad' such as rules and practices governing the termination of hostilities the conduct of the army in Enemy territory, peace negotiations and the matter of 'Aman' self conduct, right of prisoners of war etc, became the chief preoccupation of Islamic scholars which led to rise a new product of science in Islamic tradition called 'Siyar' meaning traveling in Arabic language. This particular division of Islamic Law developed by jurists to meet the need may be called the Islamic law of nations. Islam has tried to provide a legal system designing to maintain order and justice throughout the world society. Islamic law as a part of the Islamic religious law 'shari'ah' may be divided into four major branches:

(i) 'ibadaht' ritual worship;'haj','salat'

(ii) 'mu'amalat' transactions and contracts

(iii) 'ahkam and Iqa'aat' morals and discharges

(iv) 'uqubat/mojazat' punishments.

 Religious laws deal with many aspects of daily life including politics, contracts, family, and hygiene issues. So it is a way of belief and practice upon Koran as first source and Sunnah as the second one of Islamic legal system. It should be noted here that these sources need to be interpretated. The reason is that although all schools of Islamic jurisprudence depend on the passages of the Koran and the Hadith which narrate deeds and words of the prophet. The crucial differences between them originate from the different interpretations of the texts of the Koran and the Hadith, and from the secondary sources i.e. the juristic writings of eminent Muslim jurists, consensus 'ijma', analogical reasoning 'qiyas' and juristic preference 'Istihsan' in addition to creative and independent interpretation of legal sources 'ijtehad' which they use to solve religious and legal issues of the modern events. But as mentioned before in our discussion by Islamic law we consider the legal framework within which the public and private aspects of life are regulated for people including unbelievers 'koffar' living in a territory legal system based on Islamic principles 'Dar al Islam' and for Muslims living outside the area 'Dar al harb'. Islamic law is considered as one of the widespread legal systems of the world alongside common law and civil law. It had well known influence on the development of universal concepts of human rights values such as non-discrimination, freedom of religion, right to life.

 According to Koran all Prophets were human beings endowed with divine revelations and were sent by God to teach human kind. The Prophet Mohammed was sent as a messenger by "Allah" to complete the messages of previous prophets such as Moses and Jesus. The Koran recognizes Christianity and Judaism as revelations from God and calls for peaceful coexistence and dialogue with "people of the Book" such as Jews and Christians and other non-Muslims. Adherents of these religions 'People of the book' were treated better than non-believers although in a lower situation to Muslims. Even marriage between Muslim men and women from these people 'ahl al ketab' is permitted by Islamic jurisprudence. Isalmic jurists have written treatises on international law which was recognized as Siyar in Arabic tradition at that time. Mohammad bin Hassan al-Shaybani an Islamic scholar is among the pioneers in this movement. His book was an introduction to the law of nations and has been written on the subject in the 8th century. Other writers followed him with a number of treatises written on the matter dealing with both law of war as well as law of peace. These treatises covered the application of Islamic jurisprudence and Islamic military rules to international law and were concerned with several contemporary international law topics such as the Law of treaties, the treatment of diplomats, refugees and prisoners of war; the right of asylum, conduct on the combat zone, protection of women, children and non-combatant civilians, the ban of poisonous arms, and destruction of foe territory. Principal rules of Koranic teachings in this regard may be summarized as follows:

1-The principle of 'freedom of faith and religion'; In view of Koran there is no compulsion in religion because the right direction is distinct from errors therefore God is the guardian of those who believe and brings them out of darkness into the light ,Koran addressing to unbelievers says that you shall have your religion and I shall have my religion.One of the corollary results of this principal is that investigation of one's beliefs shall be prohibited which is considered by Iranian constitution.                                             

2-The principle of 'tolerance'; The Koran orders its adherents taking to forgiveness and enjoining good and turning aside from the ignorant.

 3-The principle of non-aggression; The Koran states that "and fight in the cause of God those who fight you, but do not transgress limits, God does not like aggressors/transgressors". Therefore legitimate war is only that of self defense and the killing of innocent civilians is a crime and aggression which the Koran prohibits.

4-The principle of peaceful settlement of disputes; In view of Koran peace is better than fighting. Individual, group and in the new world national quarrels are under this rule. Koran says: "And if two parties of the believers quarrel make peace between them". This duty is resulted because the believers are brothers and brothers should not engage in battle toward each other. In the next verse it continues that "The believers are but brethren therefore make peace between your brethren and be careful of your duty to God that mercy may be had on you".

5-The principle of pacta sunt servanda; Koran expressly refers to this principle in various verses confirming its important role to preserve peace and social security regardless of implementing scope whether inter mutual relation of individuals or among groups of society and states. In Koranic teachings contracts are known as 'Uqud' means obligations. Koran considers those who faithfully observe their trusts and their covenants as true 'momen' believer in God. Islamic law also introduced fundamental principles to the world on which later became the site for next structure of law such as equity and good faith, which was precursors to the concept of 'pacta sunt servanda' in civil law and international law.

 In the field of human rights Islamic jurists have introduced a number of advanced legal concepts which anticipated similar contemporary notions in the field. These included the notions of social security, the notions of human dignity, women's rights, privacy, juristic personality, equality before the law , judicial impartialityand many other rules that today are accepted as international human rights standards by international documents. However it can not be denied that these civil institutions have been in challenge by tremendous variety in the interpretations and implementations in Muslim societies in practice.

Conclusion:

Human Right comprises a body of values, rules and customs that have been created in the lapse of time by universal struggles. This complex has not existed suddenly like the invention of set of printing. Rather ancient civilizations such as Islam have played a significant role towards this universal concepts and principles. Human rights' values are not intellectual exudation of a special group or tribe, it is a mankind's achievement during centuries of ideal and aspiration. Typically it is possible to find out these values from context of Koranic chapters. Also it is much clear that none of the world's culture and religious values are completely compatible with modern human rights. For instance right of homosexual is not recognized by religions including Islam. With regard to some aspects of human rights Islam has brought ideas and issued percepts, which during the debates in the article examples of them briefly were noticed. By referring to Koranic verses strongly one can conclude that Islam not only is not opposite to human dignity but also contributed to improving the universal views on the promotion of human rights.