State University - Higher School of Economics

Professor

Ph.D. (Law)

The role assigned to individuals in their relationships with the State, the place of human rights and freedoms in the legal system, the concept of right in its correlation with law - all of these constitute criteria that predetermine identity of every legal culture and confer their specifics upon it. Moslem law is no exception.

1. Origins of the Islamic Concept of Human Rights

To understand the Islamic concept of human rights, one should start with the distinction made in Shari'ah between religious principles and legal provisions proper. The regulatory segment of Shari'ah comprises two basic groups of rules of conduct, one of which is related to religious worship, execution of religious duties by the faithful, while the other regulates their secular relationships.

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The former category of Shari'ah norms is naturally primarily reduced to obligations. It should also be noted that, in the fundamental Shari'ah sources, Quran and the Prophet's Sunna, these religious rules are set forth in a most comprehensive manner, which creates an outward impression of Shari'ah as a system of obligations, rather than individual rights.

As for the other category of norms, the rules of Moslems' secular conduct, Shari'ah demonstrates a predominantly different approach to these - the above said sources comprise very few concrete rules in this field, both obligations and rights, which appear to be balanced enough. A vivid example of this is the principle of freedom of commercial activities embodied in Quran - "Allah hath permitted trade and forbidden usury" (2:275), - in which the right to engage in entrepreneurship is opposed to just a single basic obligation, to avoid usury. Another example may be the right, specified by Sunna, to include in agreements whatever conditions except the ones that allow something forbidden by Allah, or forbid something permitted by Allah.

The basic Shari'ah principle in the sphere of secular relationships is not the prevalence of obligations but the concept of the man's submission to the will of Allah. According to modern Islamic thinking, the Western positivist concept based on understanding of law as formulated norms recognized by the State offers no universal and objective criterion, which might be laid in the foundation of a definition of universal rights and freedoms. It is only divine will, not subjected to the influence of human interests and desires, that may serve as this criterion. For Moslems, this will is expressed in Shari'ah.

Besides, Moslem lawyers point out that the fundamental feature of the Islamic concept of law is such that, whereas the Western

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natural right theory seeks for the roots of law in human nature and regards the man's subjective "natural rights" as a source of law, Islam, to the contrary, recognizes Shari'ah, the "divine law", as the source of human rights and freedoms.

Finally, as distinct from the Western liberal concept, which sees the main sense of formalizing human rights in their protection from encroachments from the State, Islam regards authority as a Shari'ah-related institute, which plays the key role in realization of its prescriptions, including the ones in the field of human rights and freedoms.¹

Submission to divine will also permeates the theory of right, developed in Moslem jurisprudence, which is defined as benefit that has been provided or is subject to provision by Shari'ah to a subject (individual or a group of persons), who may dispose of it within the limits that have also been set by Shari'ah. In elaborating a modern concept of human rights, Moslem jurisprudence also uses traditional concepts and categories. These, in particular, include classification of all rights into three categories - the ones belonging to Allah, provided to individuals, and mixed, which correspond to both divine and individual interests. However, as none of these may go outside the limits set by divine revelation, Moslem lawyers believe there may be no right in which at least a share would not belong to Allah.

Another concept based on religious criteria is classification of all human actions as to what is allowed or forbidden by Allah, or realization of Shari'ah prescriptions and restraint of what is forbidden in Shari'ah. "Prescriptions" are meant to include deeds and actions, the performance of which Allah imposed on the faithful as obligatory or approvable, whereas "forbidden" actions

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include everything that contradicts Shari'ah. Based on this understanding, Moslem jurisprudence divides all human actions into obligatory, approvable, allowed, denounced, and forbidden.

The general rule applied to the sphere of secular relationships is "permission constitutes the starting assessment of things and deeds". In other words, whenever Shari'ah offers no exact ruling on an issue, it is presumed to be allowed. In the sphere of the man's secular behavior, as opposed to religious activities proper, such situations definitely prevail.

In the modern Islamic theory of human rights, the principle of permission is widely applied in combination with the concept of "exclusive interests", which specifies that, on issues not regulated by Shari'ah, people's interests should be taken into account and should serve as the basis (source) of the legal norm aimed at satisfying them.

Simultaneously, the modern Islamic jurisprudence turns to the traditional concept of "Shari'ah objectives". In accordance with this concept, every right is evaluated, taking into account the values or interests which its utilization is supposed to realize. Classical Moslem jurisprudence refers to five such "objectives" - religion, human existence and its continuity (including protection of honor and dignity), intellect, and protection of wealth. These values are regarded in a hierarchy, with religion being the highest objective and wealth, a relatively lower one.

It appears, therefore, that the Islamic concept of right is in its highest level really subordinated to the religious concept. But this, firstly, does not at all mean dissolution of right in religion, and, secondly, this offers no grounds for a conclusion about prevalence of obligations over rights in Shari'ah as a legal system. The status of

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the individual in Shari'ah is based, in the first place, on the man's submission to the will of Allah, who specifies the man's rights, evaluates the man's conduct and, in the long run, gives the man his dues, inasmuch as he follows Shari'ah prescriptions. It is indicative that Islam, in designating the legally capable person, uses the term "mukallaf", i.e. "obligated", "accountable". This "obligation", or "accountability" means responsibility before Allah for not only execution of his duties, but also for appropriate utilization of rights afforded by Shari'ah.

Due to this, prevalence of obligations in the religious-ethical segment of Shari'ah should not be interpreted too widely and implicitly extended to its legal component, the Moslem law proper. In other words, submission to Shari'ah implies not only execution of obligations (of a primarily religious and moral nature) imposed on the man, but also an ability to act freely within sufficiently wide limits, and use individual rights (primarily in the sphere of secular relationships). It should be noted that the latter aspect of conduct is not at all regarded as inferior to the former.

Proceeding from the principle of Shari'ah's supremacy, Moslem scholars refer to about 70 verses in the Quran, devoted to human rights. These are believed to be based on principles of dignity and freedom, equality and justice.

The modern Moslem jurisprudence places special emphasis on the Quran's reference to the dignity of man and the exclusive position which man occupies among all things created by Allah. In particular, Moslem scholars refer to the words of Allah, who designated man as His successor, "I will create a vicegerent on earth" (2:30). Man is named in the Quran the most harmonious and attractive of the Maker's creations. This, in particular, may be seen

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in the reminder that Allah "has given you (human) shape, and made your shapes beautiful..." (64:3).

In contrast to other creations, man is endowed with yet another property, which he alone possesses, as "(Allah) Most Gracious... has created man, has taught him speech (and intelligence)" (55:1 - 4). Finally, the dignity of man, who occupies the highest position in the world, is expressed in its finite form in the following ayat, "We have honored the sons of Adam ... and conferred on them special favors, above a great part of our creation" (17:70).

In confirmation of these Quran prescriptions, Moslem legal scholars quote the Prophet and his associates. There is, for instance, a widespread legend which says that once, when a funeral was passing, Muhammad stood up as a mark of respect for the dead. Seeing this, people who were with Allah's Messenger were surprised and told him it was the funeral of a Jew. The Prophet responded, "Is he not a man?" It is also known that Caliph Umar bin al-Khattab told pilgrims, "I did not place my men over you to usurp on your life and property. Truly, I appointed them to be arbiters among you, affirming equality and justice.²

Moslem legal scholars refer to freedom as another origin and basis of human rights. In confirmation of this, they cite Quran's descriptions of the deeds of Allah, who gave people all that He had created, "It is He Who hath created for you all things that are on earth" (2:29), "And He has subjected to you, as from Him, all that is in the heavens and on earth" (45:13). There is also a famous aphoristic phrase of Khalif Umar bin al-Khattab: "When did you make slaves of people, for they were born free by their mothers!"

At the same time, according to Moslem scholars, freedom in Islam is primarily revealed not in the Moslem's outward conduct

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but in the width of his inner world, focused on communion with the divine will. In both material and spiritual manifestations, freedom in Islam is linked to fulfillment of a certain social function, it is confined within religious and moral boundaries which have been set by Allah and which protect the interests of the individual and society. "In Islam, nobody is free to disseminate corruption, sin or turmoil, because freedom may not cast the individual enjoying it into evil and degeneration, it does not allow him to do harm to others and imperil the society".³

The Moslem legal concept of freedom should be evaluated taking into account the above-noted general submission of the man to the will of Allah. The limits of freedom in Islam depend to a considerable extent on the degree of the man's assimilation of Shari'ah, especially as the leading role is assigned to the inner, moral and intellectual aspect of freedom. This attitude is determined by the essence of Shari'ah, which, on one hand, is viewed as a system of prescriptions established by divine revelation, and on the other hand, it allows of a sufficiently wide interpretation of these indisputable teachings and makes it possible to search for solutions of specific problems beyond their scope. Here, everything depends on the level of understanding of Shari'ah: the higher it is, the more room there is for independent reasoning. Whereas the few who have attained this knowledge enjoy the freedom of ijtihad, it is the fate of the majority to follow opinions of experts in Shari'ah. It is not by accident that Moslem scholars place a special emphasis on Islam's encouragement of the thirst for knowledge, whose attainment constitutes one of the criteria of distinction among people.

The latter aspect is directly related to another basis of human rights, emphasized by the Moslem legal theory, - equality, which is

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understood in the first place as the common ancestry of all people, going back to Adam. In confirmation of this, the following Quran phrase is cited, "O mankind! reverence your Guardian-Lord, who created you from a single person, created, of like nature, His mate, and from them twain scattered (like seeds) countless men and women" (4:1). This idea is expressed in the Prophet's dictum, "You are all from Adam, and Adam is from earth".

The common ancestry of all people does not preclude diversity of nations, the color of skin, and languages, but these differences are but a supplementary argument in favor of communication among people, rather than enmity among them: "O mankind! We created you from a single (pair) of a male and a female, and made you into nations and tribes, that ye may know each other..." (49:13).

The idea of equality is also to be found in a number of Hadiths. For instance, there is a well-known dictum of the Prophet, "All people are equal like the teeth of the comb". Practically every Moslem is also familiar with another saying of the Messenger, "O people! The nations before you went astray because if a noble person committed theft, they used to leave him, but if a weak person among them committed theft, they used to inflict the legal punishment on him. By Allah, if Fatima, the daughter of Muhammad committed theft, Muhammad will cut off her hand!".

According to Moslem scholars, the mentioned equality only means bestowal on all people of an equal right to belong to the mankind. In real life, however, people differ from one another in their language, the color of skin, race, wealth or social status. Islam, however, disregards these factors, establishing a single main criterion of distinction among people, which, however, serves as the ground not for disparagement of those deprived of this property, but, to the

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contrary, for a special respect for the ones possessing it. This property is the closeness to Allah, piety. This idea in its accomplished form is formulated in the Quran: "...Verily the most honored of you in the sight of Allah is (he who is) the most righteous of you" (49:13). A similar principle was proclaimed by the Prophet, too: "an Arab has no superiority over a non-Arab nor a non-Arab has any superiority over an Arab; also a Yellow has no superiority over a Black nor a Black has any superiority over a Yellow except by piety and good action".

Finally, Moslem jurisprudence regards justice as the last basis of all human rights. Special emphasis is placed on the fact that there are over fifty occurrences of various terms denoting "justice" in the Quran. It says, in particular, "Allah doth command you ... when ye judge between man and man, that ye judge with justice... Follow not the lusts (of your hearts), lest ye swerve, and if ye distort (justice) or decline to do justice, verily Allah is well-acquainted with all that ye do" (4:58, 135).

The Prophet's above-mentioned declaration that he is not going to spare even his daughter if she commits a crime is cited as an example of his allegiance to the principle of justice. A similar concept was expressed by Abu Bakr, who headed Moslems after the Prophet's demise and who, on becoming the first Caliph, said, "O people! In the name of Allah, the weak among you shall be strong with me until their rights have been vindicated; and the strong among you shall be weak with me until, if the Lord wills, I have taken what is due from them...". Moslem legal scholars also refer to an old maxim, "A just, though unfaithful, state will stand, whereas an unjust, though Islamic, state will rot away".

It is on the basis of these fundamental principles that the modern Moslem jurisprudence is elaborating specific human rights

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and freedoms.⁴ There is no doubt that a number of essential provisions of Shari'ah in this field differ from international acts on human rights. However, the modern Moslem jurisprudence does not stand still - it reflects the changes that are taking place in the world, which, by the way, corresponds to the underlying principles of Shari'ah itself.

It appears, therefore, that, despite a number of serious differences, the modern Islamic approach to human rights, on the whole, has something in common with modern Western standards.

2. Islamic and Liberal Views of Human Rights: Opposition and Dialogue

One should recognize existence of a sufficiently extensive concept of human rights in Islam. Its development became a relatively independent field of the modern Moslem legal thought. One should stress the role of juridical science, which acted as the leader in this process - it was able to elaborate its own approach to interpretation of provisions of the Quran and Sunna, translating them into the language of human rights and freedoms. Due to this, whereas the Shari'ah sources (which have to do with the objective right) primarily contain prescriptions of religious and ethical nature, legal structures and concepts play a more perceptible role in the field of specific rights (subjective right). This ambivalent status of human rights in their Islamic perception (on one hand, orientation to religious teachings; on the other hand, orientation to well-defined juridical criteria) leaves a lasting mark on the entire Islamic approach to human rights.

For all the ambiguous nature of the modern Islamic human rights theory, the balance of Shari'ah, Moslem legal theory and

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human rights legislation of Islamic countries, as well as regional acts in this field, effective in the Moslem world, basically corresponds to the natural right concept, though it does not outwardly seem to match it. In particular, as noted above, Moslem scholars believe that human rights, contrary to liberal perceptions, are not the source of law but, instead, originate from Shari'ah. But if one takes into account the fact that Islamic thought places Shari'ah itself above civil law, and many modern constitutions of Islamic countries proclaim Shari'ah as the main source of legislation, one would find fairly logical the perception of supremacy of Shari'ah-based human rights over national legislation or international legal acts.

The idea of sovereignty (supremacy) of Shari'ah and the close interrelation between human rights and its principles and norms is constantly emphasized by the modern Moslem legal thought. This should be taken into account in assessing the opinion that Shari'ah meets the requirements of every nation and matches the conditions of every historic epoch, because it was 14 centuries ahead of the West in recognizing and securing the basic human rights and freedoms, including some that are not even mentioned in international law (e.g. protection of honor and dignity of the dead).) This postulate enables some Moslem countries, without giving up their values, accept international (Western) standards of human rights, emphasizing that, with a few exceptions, they are well in line with the Islamic approach. Egypt, for instance, endorsed the Universal declaration of human rights when it was approved by the UN General Assembly.

This attitude is not, however, shared by part of the Moslem world, which insists on its own vision of human rights, focusing on

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ethic criteria and evaluation of every right from the perspective of its correspondence to Shari'ah. This manifests itself, firstly, in rejection by a number of Islamic states of the Western concept of human rights and international legal acts based on this concept. Secondly, even when international standards are recognized, Islamic states interpret them in their own specific way, imparting a different meaning to them. This is why the theory that all modern human rights and freedoms have been originally provided for by Shari'ah requires clarification, because Islamic thought proceeds from a perception of the legal status of the individual and the nature of relations between the individual and authorities, which differs from the modern Western concept of human rights. In other words, the coincidence between formulations of international legal acts on human rights and documents of similar nature approved by the Islamic world should not deceive anyone and lead to a conclusion about their agreement in substance, because outward identity conceals differences on the level of conceptual approaches.

Nevertheless, these differences should not be dramatized, either. It would be advisable to not simply criticize deviations of the Islamic human rights theory from internationally recognized norms, but try and understand the reasons for the specific Islamic vision of human rights, defining the trends and prospects of its further evolution.

In particular, in assessing this theory, one should bear in mind specifics of the Islamic way of life, peculiar features of the world outlook and legal consciousness prevailing in Moslem society. In other words, one should take into account the place that Islam occupies in both individual behavior and social life,

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acting as both religion and, at the same time, a system of legal and political principles and values. This is why Islamic perception of freedom, equality and justice do not coincide with their European understanding. This is true for not only general categories but also specific human rights and freedoms. One may cite, as an example, the right to education and information, freedom of scientific research and the attitude to knowledge in general - according to Islamic perception, it is not confined to a religious sphere, yet it implies, in the first place, assimilation of divine revelation - Shari'ah.⁶

As Islam is going to retain this role in future, the differences between the Islamic and Western approaches to human rights will be preserved, too. This does not mean, however, that these differences are going to remain unchanged. In particular, one of the features of the modern Moslem legal thought is not the categorical opposition of Shari'ah to international law but emphasis on the assertion that all human rights and freedoms specified in the latter have already been provided for by Shari'ah, which does not deny achievements of modern international legal culture, but only enriches it with human rights that are not known to the West. Besides, whereas in studying the nature, purpose and limits of human rights, the Islamic thought places emphasis on its different understanding of these, its interpretation of the legal substance of specific rights and freedoms is primarily focused on demonstration of similarity of Islamic criteria and international legal standards.

Moslem scholars may focus on one or the other of the above traits, which is yet another confirmation of the existence of two trends in development of the modern Islamic human rights theory

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- the orientation to cultural and civilization specifics, uniqueness of Shari'ah, which stands in opposition to other legal systems, and the movement along the road of globalization towards convergence of the Islamic legal thought with Western approaches to human rights.

Both of these trends are intertwined and often compete against each other, adding ambiguity to perception of human rights in the Moslem world. One of these trends may play a leading role in any specific country. Their correlation depends on the specific situation and, in the first place, on the level of influence of Islam on socio-political life, and that of Shari'ah, on the national legal system. Where this influence is deeper, there prevails, as a rule, a more conservative, orthodox interpretation of Islamic standards of human rights. In the countries that have assimilated the key elements of European political and legal culture, these standards get incorporated in liberal legal consciousness. In particular, Islamic countries possessing elective state bodies believe that enfranchisement of women complies with Shari'ah regulations, whereas in Kuwait it was Islamic argumentation that was until 2005 used to bar women from the electoral process.

It is practically everywhere in the Moslem world that one can observe a reflection, in one or another form, of international (Western) human rights standards in national legislation, and their more or less consistent realization. This is true even for countries that represent a kind of "bastions" of Shari'ah. For instance, several years ago, there emerged official structures in Saudi Arabia, supervising over enforcement of human rights in the activities of government agencies. This does not certainly indicate unconditional acceptance of internationally recognized human

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rights criteria by orthodox Islamic regimes, but this is a sign of their potential for evolution in this respect.

This adaptation is confined within certain limits, set by the fundamental provisions of Shari'ah and the values of Islam. The key role in defining these limits belongs to the classification of all Shari'ah regulatory provisions into three main groups. The first one includes the provisions of the Quran and the Prophet's Sunna, which secure human rights and freedoms in a strict and unambiguous form. They are not numerous, but it is these prescriptions that provide for principles and norms, which are in direct conflict with international law - they concern the right to life and capital punishment, polygamy and women's rights in general, freedom of conscience and recreance. Moslems view these rules as an expression of divine revelation, hence considering them eternal and unalterable, so there is little likelihood of their being adapted to the modern Western perception of human rights, even though this possibility cannot basically be ruled out.

Another category of Shari'ah's human rights provisions is different in that they specify general principles, allowing of different interpretation and diverse concrete implementation forms, rather than precisely formulated norms and rules. In interpreting them, the modern Moslem jurisprudence may follow the traditional doctrine or diverge rather far from it, conferring on them a meaning similar to modern perceptions of human rights. Women's political rights may serve as an example of this absolutely opposite interpretation.

Finally, there is a third group of Shari'ah prescriptions, into which one could arbitrarily group regulations formulated by the modern jurisprudence with respect to human rights that are not

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directly referred to in traditional sources. Introduction of these regulations may be substantiated in two different ways. Firstly, the Moslem legal concept of "exclusive interests" allows recognition of certain rights if they are not unequivocally rejected by Shari'ah and if they reflect real requirements of people. Secondly, the general principle of permission is applied to such regulations. It is clear that, in respect to the human rights that are not known to traditional Shari'ah, these two theoretical constructions open up for the modern Islamic thought an opportunity to identify solutions that may be similar to the Liberal approach.

Naturally, the Islamic human rights concept cannot without giving up its identity renounce the principles and norms unequivocally established by the Quran and Sunna, even though they may be few enough. But on other issues, related to most human rights and freedoms, its convergence with the Western perception is absolutely possible, even though this process may appear controversial. The main thing is this process is continuing, and the limits for convergence have not yet been attained. It may be said that the correlation of the Islamic and Western concepts of human rights corroborates and simultaneously refutes the well-known theory of a clash of civilizations.

Islamic thought, in its orientation to dialogue and mutual understanding, may well reckon on reciprocal moves from supporters of the liberal approach to human rights. Of course, in the event that the globalization concept permeating this approach is viewed as a call for taking into account national, cultural, religious and other peculiar features of various countries and regions, rather than an argument against civilization differences in favor of application (and quite often, imposition) of uniform standards.

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Cultural and civilization differences may and should be perceived not as denial of the universality of human rights, but as enrichment of the practice of their realization. Undoubtedly, cultural specifics of the Moslem world may not serve as justification for human rights violations, but they should be taken into account in elaborating truly universal standards. Otherwise, protection of human rights risks turning into its opposite. In particular, a headstrong imposition of European norms in a society based on different traditions may result not in satisfying the man's interests but, instead, in ruining his life and making him unhappy. What appears deprivation and inequality to a bearer of European culture may be viewed by a representative of the Islamic civilization as an absolutely natural and even commendable thing. And vice versa, the norms that a European associates with freedom and the right of choice, a Moslem may regard as a symbol of permissiveness, promiscuity and human indignity.⁷

It is important to draw a distinction between the two basic deviations of the Islamic perception of human rights from Western standards and the established practice of their realization in the democratic society. In the former case, the Islamic concept, adhering to formulations of human rights that are identical with the ones that are internationally accepted, imparts on them a different meaning - to be precise, adds its specifics to their understanding and realization, staying, however, within the framework of a legal approach and interpretation of the general sense of these rights. In the latter case, the Islamic theory of human rights is in direct conflict with international legal criteria. The theory itself explains this contradiction with the need to follow the will of Allah, which stands above all human regulatory acts.

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In the Moslem world, it is not hard to find instances of both possible deviations from the internationally recognized perception of human rights. It is important to regard this as a starting point towards a dialogue and mutual understanding, rather than a barrier to interaction and cooperation of cultures.

RA

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1. See Abdallah bin Abdel Mohsen al-Turki. Islam and Human rights. Example of the Kingdom of Saudi Arabia. Riyadh, 1996, p. 31, 42, 50 - 53 (in Arabic).

2. Cit. by Abdel Karim Zeidan. Person and State in Islamic Shari'ah. В. М., 1970, p. 67 - 68 (in Arabic).

3. Abdallah bin Abdel Mohsen al-Turki. Op. cit., p. 66.

4. See L. R. Sukiyainen, Islamic concept of human rights: theoretical foundations, trends and development prospects // Human rights: century results, trends, prospects. M., 2002.

5. Abdallah bin Abdel Mohsen al-Turki. Op. cit., p. 47; Muhammad Abdel Jawad Muhammad. Studies in issues of Shari'ah and law. Part 1. Cairo, 1972, p. 32 (in Arabic); Muhammad Salam Madkour. Introduction to Moslem law: history, sources, general concept. Cairo, 1969, p. 22 (in Arabic).

6. Abdallah bin Abdel Mohsen al-Turki. Op. cit., p. 64.

7. Abdallah bin Abdel Mohsen al-Turki. Op. cit, p. 32 - 33.

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