Laws

Human Rights in Islamic Legal Shari'ah Perspective

The issue of human rights and the protection of them remain to be one of the major themes of political, philosophical and legal discourse.1 Instead of being comprehensively criticized, the idea of human rights retains considerable popularity and growing importance. A substantial body of opinions acknowledges that there are such things as human rights and advocates that they ought to have legal protection. This view has from time to time, received expression in the form of general declarations of human rights which persons are supposed to have.

However, in order to address the issue of human rights effectively, it requires both the rhetorical affirmation as well as the best means of actual protection. This paper attempt to substantiate the idea of protection of human rights which constitutes a natural corollary of the doctrine of constitutional government of Islam, and in fact the protection of human dignity is divinely ordained. Thus, Shari’ah, as James Dudley puts it, provides a basis for analysis of Islamic rights practice as it traditionally defines many aspects of Islamic criminal, property, and family law.2 Furthermore, it also attempts to describe the substance of Islamic human rights and their significance in the context of cultural relativism.

At the outset it needs to be mentioned that in the first place Islam is a belief system established fully upon al-Haqq, which is the Qur’anic term for right.3 In addition al-Haqq also denotes one of the God’s most beautiful names or of His qualities, the Qur’an, antonym of false, Islam, fait accompli, truth, justice,property, ownership, everlasting existence (God) , death and determination.4 The essential characteristics of human rights in Islam are that they constitute obligations connected with the Divine and derive their force from this connection.

Human rights, as Abdul Aziz Sa'id asserts, are parts of one whole, namely , a universal dialogue of a unity of being separated by time, environment and experience. The present global system, however, he argues, is dominated by a Western attitude of cultural superiority that views human rights in its own theological and ideological context. What is right for the West is right for others.

This Western moral and philosophical posture projects a parochial view of human rights exclusive of the cultural realities.5 What hinders the developments of a universal conception of human rights, according to Said, may be ascribed to the lack of agreement of the sources of human rights, the absence of a philosophical common core as well as uncertainty about the content of the doctrine of human rights.6

In fact, the very conception of the organization of society differs from one culture to another. The West emphasizes individualism, the philosophy which views the individual as autonomous and possessed of rights above and prior the society. The modern Western tradition posits freedom in order to avoid the outcome of a despotic system. On the other hand, some of the third World traditions place more emphasis on obligations, and individual is conceived as an integral part of greater whole of a “group” within which one’s role and status are defined.7

S.Prakash Sinha delineates three elements which reflect Western values in the current formulation of human rights namely, the individual, not the family, is the fundamental unit of the society; the primary basis for securing human existence in society is through rights, not duties; and the primary method for securing rights is through legalism in which rights are claimed and adjudicated upon, not reconciliation, repentance, or education.8 Thus, according to Donnelly, one of the key differences between the modern Western and the non-Western approaches to human dignity is that the Western human rights approach puts more emphasis on individualism.9

In view of the philosophical foundation on which the human rights are predicted and the selective use of them, the concept of human rights invites an intensive discussion among the intellectuals of different cultural affiliations. In the Muslim world many attempts have been made at individuals and organizational levels to determine and declare what an Islamic content of the concept of human rights should be.10 In other words, such attempts are to advocate that in Islam, it takes different approach to human rights.

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