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Freedom as a Human Right

Answered as per Maliki Fiqh by BinBayyah.net

This valuable word that poets eulogized and wise men recommended and for which bloods have been shed is derived from the word “hurr (free)” which, according to the Arabs, is an antonym to “salve” denoting the person who has full control over his affairs. But he is also the person who has good manners; because the word “free” in Arabic –and language represents values- denotes the best of everything. It also indicates good work and favorable deed.

Tarafah said:

Let not your love be an malignant disease. This is not good from you, Mawyy.

Freedom for Arabs denotes also having perfect qualities.

Mukhees ibn Arta’ah al-Tameemy said:

I said to him: Avoid everything that may hold you blamable, for the free man is free.

Bashshar ibn Burd said:

He was placed at the summit of virtues by a soul that is free and deserves ample clarification

In the light of the linguistic definition we can deduce that freedom in the Arabic concept denotes release and possession of will but with righteous word and noble manner. No wonder that freedom could turn to be wrongdoing if it does not wear the garment of virtuous manners. Thus it becomes worthy of the words of the French Madam Rolland who said when she saw the violations of the French Revolution under the banner of freedom “O freedom! How many crimes have been committed in your name!”

Freedom is parallel to and matches equality. Therefore, the erudite scholar Ibn `Ashour considered it, in a sense, as a result of it in his book al-Maqasid where he underscored equality in the following way: Equality in legislation for the ummah (Muslim nation) takes in consideration people’s equality in creation and its ramifications on the basis of which distinction has no effect with regard to the welfare of the world. People are equal in terms of humanity “You all belong to Adam” and in terms of the right to live in this world according to natural disposition. Their difference in color, form, race, and home country should have no effect in this regard.

This gave rise to their equality in the fundamentals of legislation, such as the right to live known as the preservation of soul and the preservation of posterity, and in the means of living known as the preservation of property. Equality in legislation is a basic principle that never fails unless for the existence of an impediment. Thus to prove equality in legislation between individuals and kinds we do not need to look for a reason; for the absence of any impediment is enough. The Quranic address in the masculine gender comprehends women without any need to change pronouns and forms. The non Muslim’s equality to the Muslim in most of the rights is a basic principle- as expressed by the hadith that reads “They have [the rights] that we have and upon them are [the duties] that are upon us”- and is one of the objectives of the shari`ah.

Al-Taher ibn `Ashour approves the interrelation between freedom and equality as he considers the first as a result for the latter: “As equality is one of the objectives of the shari`ah, this necessarily entails that the individuals of the ummah should be equal in the way they deal with their personal affairs, which is a basic objective of the shari`ah known as freedom.”

Thus freedom is used as opposite to servitude which means inability to take decision.

The second meaning is to enable a person to deal freely with his personal affairs as he likes without objection.

Both meanings of freedom are intended by the shari`ah, for both are based on the human natural disposition. Both achieve the meaning of equality which has been established as one of the objectives of the shari`ah. He quoted as evidence the famous word of `Umar (may Allah be pleased with him) and he explained such freedom by being naturally free. From the first meaning appeared the famous fiqh rule that “the Lawgiver aims for freedom.” This is based on surveying the lawgiver’s attitudes that have indicated that one of the most important objectives of the shari`ah is to abolish slavery and to spread freedom. But the shari`ah observes graduation in treatment along with the preservation of the system.

Hence, Islam has combined between the objectives of spreading freedom and preserving the general system by giving the reasons of freedom supremacy over the reasons of slavery which it reduced to the minimum and prescribed treatment to the remaining. Islam abolished many of the reasons of slavery such as one’s selling of his children and enslaving the criminals as practiced by the Arabs and the creditors as practiced by the Romans and as found in the Solon’s Greek laws and in the Torah. In chapter 4 of the Kings 2, a woman came to complain for Prophet Elijah that her husband died and the usurer came to take two of her children for the debt. This indicates that enslaving people for debts was in the laws of Moses (peace be upon him).

Only enslaving war prisoners remained as reciprocal treatment. But many are the reasons of ending it. One of the avenues of spending Zakah-charity is to emancipate slaves. Emancipation has been made among the obligatory compensations. General exhortations have been issued to emancipate slaves and the treatment of the salve has been changed. Even bad treatment has been made a reason for obligatory emancipation.

Thus, surveying these procedures it becomes clear that the shari`ah aims at emancipating slaves. Muslims emancipated many slaves and from among them were masters, imams, scholars and masters of the recitations of the Quran (the great seven masters of the recitations of the Quran were freed slaves except two).

Over history there were incidents of collective emancipation as happened in Morocco in the 11th century during the reign of king Islam`eel of Morocco by a fatwa from scholars on the basis of the rule that “the lawgiver’s aims for emancipation.” (See in this regard al-Isteqsa fi Khabar al-Maghrib al-Aqsa.)

As for freedom in the second sense, it has many manifestations including freedom of speech, freedom of opinion and of practicing ijtihad, the principle of enjoining what is good and forbidding what is evil, and the thriving of different opinions.

In the first three centuries of Islamic history scholars spread their fatwas and schools of juristic opinions and each group supported their opinion with evidences. This never gave rise to bad feelings or rancor. Jurists themselves were keen to give opportunity to those who disagree with their opinions. Abu Ja`far al-Mansour offered to force people to adopt Malik’s book al-Muwatta’ to abide by it. He said, “O Malik! I would like to make copies of your books and send them to each country commanding them to act according to them and never to go beyond them.” Imam Malik said, “O Commander of the Believers! Do not do this, for other opinions have reached people and they heard other hadiths; and thus each group adopted what they received from among the different opinions of the Companions of the Messenger of Allah (peace and blessings be upon him) and others. In fact, it is difficult to turn them away from this. So leave people and what they have.”

This is a wonderful attitude that shows this imam’s keenness to preserve freedom of opinion and the practice of ijtihad. This attitude has made him issue a fatwa concerning the oaths of paying homage to the ruler that the divorce of the one under coercion is not enforceable. This incurred the wrath of the sultan upon him in addition to the punishment which he suffered but did not take back his opinion.

Mahmoud Ameen al-`Alim holds the view that freedom is actually a determination and a necessity because it is to have choice between possibilities. When it is a necessity and a determination, it also necessitates diversity, exchangeability, and open possibilities. Besides, it includes interactive relation between awareness, which is the result of interaction and interrelation between diverse necessities, and the external objective necessity. Therefore, freedom has two aspects: one is internal concerning its origin as a will based on internal interactive and interrelated necessities including motives, derives , inclinations, and the like whose interrelation gives rise to the manifestation of the will as an inevitable psychological and factorial phenomenon. But, at the same time, freedom has external aspect, which is to be aware of the necessities and to choose between them. In the external aspect it is an active process to control the external status quo in any form such as possession, direction, rejection, or the like.

The world has no single meaning for freedom. The meanings of freedom are closely related to the social system that produce them. Aristotle’s concept of freedom did not come from Aristotle’s mind but from the society that despised hand working. Rousseau formed the meaning of freedom on the basis of the collapse of feudal system and the rise of the capitalist system in the stage of monopoly and the meaning of freedom changed to a call for dissolution, degeneration, and loss of relation and direction.

Freedom and equality have been mentioned together in the International Declaration of Human Rights. So, their relation, as philosophy and politics showed, is worthy of discussion to serve as a background for these concepts in the law of human rights.

We can handle three meanings of the many that freedom has, according to some commentators of the declaration: one is that man enjoys a wide range of the available important choices [or opportunities].

Second is that man is independent from others in terms of his decisions concerning how to benefit from these choices.

Third is that man is free to determine his values and priorities and to live adhering to them.

Equality can be understood in the same way. Man can enjoy a wide range of the available important opportunities equally just as others and he is equally free to determine his values and priorities.

Freedom here is temporarily perceived- in the individual sense- as perceived by the Western liberal thought in the ninth century.

Mr. Subhy al-Mahmasany talked about responsible freedom saying, “Freedom is not chaos. It is restricted by others’ rights as well as by the public interest. Overall, the concept of freedom has never been constantly the same. It has differed much owing to people’s generations, circumstances, hopes, and ambitions.

Thus if we wan to define freedom in general, we can say that it is a permission to do something or to refrain from doing it without violating the rights of others or breaking the laws. Hence, as long as freedom is restricted by the law, it is relative and cannot be true unless the law is just or is restricted by a just constitution and targets the public system without turning to be despotism and tyranny.”

Concerning the balance between freedom and equality, al-Mahmasany views that establishing the rights of equality and freedom in the positive civil law was a result of an accurate balance between the individual’s interest and the society’s interest. On the one side, the individual inclines to freedom but this freedom may lead to inequality. Therefore, the interest of the society requires, on the other hand, that this freedom be restricted and that a minimum of equality be secured.

In other words, the history of human rights has been a constant effort to balance between freedom and equality, between the individual and the society, and between human values and social justice.

We may mention here some freedoms that people ask about:

First: It is not permissible in the shari`ah to detain someone or deprive him of his freedom without a legitimate right. The accused person is innocent until proven guilty. This is the position of the majority of jurists. One scholar, however, has set some restrictions to protect the interest of the society. According to his view, freedom should not be restricted in the case of unproven accusation except with regulations which he summarized in three categories of accused persons:

– a person who has good reputation and is not under suspicion should not be imprisoned or his freedom be restricted until the end of investigation as long as there is no strong evidence to his involvement in the crime.

– the person who has precedent crimes should be remanded until he is proven innocent.

– the person who is unknown should be detained until investigations are finished.

There is also the freedom of making contracts which is also established in the Islamic shari`ah. In a noble hadith we read, “Muslims are bound by their conditions with the exception of a condition that makes something lawful unlawful or something unlawful lawful.” This hadith is quite acceptable due to its supportive narrations as indicated by ibn Taymiyyah.

This freedom, in particular, entails the execution of the conditions of contracts. The universal principle dictates “A condition must be met as far as possible.”

Juristic schools differed over determining the conditions that are valid and those that are void or invalid. But the majority of jurists, including the Malikites and the Hanbilites, particularly Ibn Taymiyyah and ibn al-Qayyem, held the view that the basic principle with regard to contracts and conditions is their permissibility and validity with the exception of those which the Lawgiver explicitly mentioned as prohibited. Lengthy chapters were dedicated for this. Ibn al-Qayyem said, “The basic principle with regard to contracts and conditions is their validity with the exception of that which the Lawgiver declared as void and forbad from it. This is the correct opinion.” Then he repeated, “The basic principle with regard to contracts and transactions is their validity until an evidence to their invalidity and unlawfulness is established.”

Al-Mahmasany drew attention to the misuse of the right of freedom saying about demonstration, “Concerning the issue of demonstration, just like other issues, freedom could be misused. In reality we have seen, especially in democratic countries where freedoms are active, the demonstrations of workers and students take such big forms that resemble internal revolutions.”

He added, “If the purpose of the demonstration is mere refusal or the misuse of freedom to demolish the regime and the existing institutions away from the legitimate democratic ways or if the demonstrations is a sort of pressure practiced by the wild minority against the peaceful, mindful majority or if they are directed by foreign or suspected elements or if the purpose is to make crimes, riots, or illegal acts, in all these cases and the like demonstrations are no longer signs for healthy democracy or national maturity. They rather lead to lose active energies and valuable time through distracting them from procuring knowledge and from useful production and diverting them from understating the national and social responsibilities.”

In addition to the misuse of freedom he mentioned we see other sorts of misuse of the freedom of opinion and speech in the form of blatant declaration of disbelief and reviling of the religion.

Islam does not question people’s inner thoughts or what they have in their homes. But to spread apostasy on public by those who are called the fifth column or the agents of other civilizations goes against the general system in the Muslim society and has its suitable punishment in the Islamic penalties. I really wonder of those people who approve the criminality of speaking insolently against the president or the king or the government and do not criminalize speaking insolently against the Creator –exalted and majestic is He- which also represents insolence to more than billion persons.

Second: Freedom of speech sometimes becomes obligatory when it is a kind of calling others to goodness enjoining what is good and forbidding what is evil or if the purpose is to demand justice publicly. In a Quranic noble verse we read “So let there be of you on [united] community calling to all that is good and enjoining what is right and forbidding what is wrong. And it is these who are truly successful.”

In a noble hadith we read, “The best jihad (strive for the sake of Allah) is to say a word of truth before an unjust ruler.” In another hadith we read, “He of you who sees something wrong has to change it with his hand. If he cannot, let him do this with his tongue. If he cannot, let him do this with his tongue; and this is the weakest level of faith.” Acting upon this, many of the imams and leading scholars- including Malik and Ahmad in Hanbal- were reported to have been courageous and adherent to their creed and opinion in spite of the oppression and torture by those in authority.

Third: With regard to freedom of opinion, undoubtedly in Islam freedom of opinion has restrictions and methodological regulations as related to the given postulates and the approaches to reach the truth in addition to the necessity of sincere intention to achieve public benefit. Otherwise, it would turn to be fallacies, delusions, and selfishness. There are also ethical restrictions such as truthfulness in conveying the opinion and observing excellent manners when convincing others. The freedom we approve in this context is the one that has such regulations and restrictions.

Islamic teachings has established the freedom of speech not as a permissible right of the Muslim but as an obligation as well.

Due to the many strict demands concerning it, we can see it ranking as a necessity in the hierarchy of shari`ah objectives. It is a necessary objective of the shari`ah as some person said.

Finally, if legists and philosophers have not agreed on one concept of freedom and referred this disagreement to times and generations considering it something relative as the erudite scholar subhy al-Mahmasany said- and sometimes it is even a call for dissolution, degeneration, and disunity as Mahmoud al-`Ali said- freedom in Islam is governed by the major principles outlined by the Quran and the Sunnah according to which Muslim communities have to adapt themselves to find a suitable ground where freedoms can flourish, rights are protected, talents come forth, and creativity radiates in the context of civilizational religious values and the criteria of justice, fairness, reason and wisdom.

This answer was collected from BinBayyah.net, which contains of feature articles and fatawa by world renowned ‘Alim, Sheikh Abdullah Bin Bayyah, from Mauritania.

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