Despite the ubiquitous occurrence of the word haqq in the works of classical jurists, a precise definition has never been articulated. Earlier religious scholars have relied on its literal meaning, while modern scholars have tried to provide a comprehensive definition. This essay looks into the definition of haqq and ascertains, on a selective basis, some aspects that have engendered controversy and debate. It also discusses the tendency in Islamic law to place greater emphasis on obligations than on rights. I have attempted to develop a perspective on this and have, in the meantime, addressed the suggestion by western commentators that the Shari'ah does not recognize rights, but only obligations.
The answers given are partly the outcome of my reflections based on nearly a decade of intermittent research on basic rights and liberties in Islamic law. I have tried to advance an understanding of this basic and yet complex juridical issue and have related my analysis to the ongoing debate on the general subject of human rights. An adequate understanding of haqq in Islamic law quires looking into several related themes, and my attempt to do this has enabled me to identify the roots of what I regard to be a persistent misunderstanding of Islamic law on this subject.
Western commentators generally hold that Islam does not recognize the idea of an individual having inherent rights, fundamental or otherwise. For Schacht (1970), "Islamic law is a system of duties, of ritual, legal and mod obligations, all of which ate sanctioned by the authority of the same religious command." Gibb (1955) opines that "the Islamic theory of Government gives the citizen as such no place or function except as taxpayer and submissive subject." This line of argument is taken further by Siegman (1964), who states that "no such abstractions as individual rights could have existed in Islam . . . In such a system the individual cannot have rights and liberties . . . he has only the obligation."
Rights and duties in Islamic law originate in the Qur'an and the authentic Sunnah of the Prophet. The juristic manuals often speak of hukm shar’i a term that signifies a ruling, usually communicated in the form of a command or a prohibition, that regulates the conduct of a mukalaf (a legally responsible individual). Such a ruling may convey a variety of concepts, including legal rights and obligations. There may be an apparent pmpensity in the nature of such a communication, and in the language in which it is conveyed, towards obligations rather than rights. A closer examination, however, reveals that a mere propensity in the style of communication does not have a negative effect upon the substance and validity of rights in the Shari'ah. A teal understanding and analysis of the language of the Qur'an and Sunnah confirm that Islam has its own view on this type of ding and on its allied subjects of rights and duties.
In the Qur'an and the Sunnah, no formal distinction is made between fundamental and other rights, or between constitutional and ordinary law. This is also indicative of a certain outlook in expounding the juris corpus of the law, the some materials of the Shari'ah reflect the Unitarian influence of tawhid (uhity in some and origin of all knowledge) and a tendency to stay away from approaches that may interfere with this principle's holistic and unitarian philosophy. As the Shari'ah adheres to the overriding authority of divine revelation, the sense of mission and duty to God and society acquires, admittedly, a certain prominence in the concept of hukm (hereinafter defined as ruling) over the idea, so to speak, of an individual's right or claim on Gad. The issue is essentially that of the pattern of relations between the Lawgiver and the recipient of law, one that is inspired by the ideals of unity and integration rather than the duality of their respective interests. Modern constitutional law, and constitutionalism as such, champions the rights of the citizen when dealing with the ever-expanding power of the state. This latter factor was, on the whole, viewed as a menace to individual rights and liberties.
Islamic law, on the other hand, does not proceed from a condition of conflict between the individual's respective rights and interests and those of the state, for implementing the Shari'ah satisfies the basic purpose of the state's existence, which includes the rights of the individual. In doing so, both the individual and the state obey the Shari'ah and gain the pleasure of God. Thus the duality of interest often envisaged in modern constitutions does not present the same picture in the Islamic theory of government. Islamic law operates on the premise that God commanded humanity to act, or not to act, towards Him and other people in certain ways. The individual must worship and obey Him, as there is no room for anything other than submission to His will. However, God has expressed His will and d e c e and has thereby bestowed upon human beings certain rights as an expression of His grace. Commentators who deny the place and reality of rights in the Shari'ah have shown no awareness of this perspective and have advanced a superficial discourse that confuses a certain outlook maintained by Islam on rights and duties with the affirmative substance of the Shari'ah on this theme.