In the Quran, there are various clear and strong texts that have delineated the fundamentals of human rights. However, the first declaration that can be called so is the magnificent speech delivered by the Messenger of Allah (peace and blessings be upon him) in the Farewell Pilgrimage before about 120 thousands of his companions who gathered in `Arafat. In this speech, he laid the foundations of what can be called human rights. He declared the inviolability of bloods, properties, and honors and asked Allah and the people to bear witness to that. In this context, he has strongly forbidden inner fighting saying “Never shall you return after me [like] disbelievers striking the necks of one another.” He also recommended well treatment for women.
The essence of human rights can be summarized in two principles:
– Honoring, which is an established maxim for every human being just for being a human being. Almighty Allah said, “Yet very truly, We have so honored the Children of Adam: for We have carried them through the land and the sea. And We have provided them with all that is wholesome [in life]. And We have so favored them above most of what We have created with [such immense] favor.” [17:70]
– Equality, upon which Islam laid strong emphasis, as the Prophet (peace and blessings be upon him) said, “O people! Your Lord is one and your father is one. Neither an Arab has a merit over a non-Arab nor a non-Arab over an Arab nor a white person over a black one. You all belong to Adam and Adam was from dust.”
From these two principles begin all rights. Women have been given equal rights to those of men in terms of human honor- though this may vary for other functional reasons- and in terms of all forms of freedom. Man is originally free. This was best expressed in the words of `Umar, the Commander of the Believer “When have you enslaved people whereas they were born free?!”
Europeans had to wait for 1000 years later until Jan Jack Rousseau declared in his book The Social Contract that man is born free. But freedom of the individual in Islam should not bring harm to the society. Equilibrium between the individual and the society is the most critical issue in the principle of freedom. Freedom is guaranteed as long as it does not contravene the general system as in the cases of reviling the religion, cursing people, or making transgressions against their bloods or properties. However, there may be difference of opinion over determining the general system and its ethical dimensions as will be explained.
Islam is the religion of solidarity in the sense that it not only enjoins you to refrain from harming others but also enjoins you, as a religious and juridical duty, to prevent people from causing harm to each others and to do your best to aid people, save their lives, protect their properties, and defend their honor. If you do not do so, you will become sinful; and a case can be filed against you in courts demanding compensation from you because you did not save a person from fire, prevent a blind person from falling in an abyss, etc. This is called the right of aid and support. “Then what is with you that you do not fight in the path of Allah and for the [utterly] helpless.” [4:75]
In short, all fundamental human rights are found in Islam. Man is honored by Allah and has the right to be respected and not to infringe his privacy. “Nor shall you spy [on each other]. Nor shall you backbite one another.” [49:12] “O you who believe! You shall not enter houses, other than your own houses, until you take [welcome] permission and great their people with peace.” [24:27]
However, this is not confined to Muslims but extends to peoples from other religions as well. Al-Bayhaqy in his Sunan reported that the Prophet (peace and blessings be upon him) forbad from entering the houses of the People of the Scripture without their permission and from eating their fruits unless they give it out of themselves.
Islam secured for man that he should not be addressed in a way he dislikes. Almighty Allah said, “O you who believe! Men shall not scoff at other men. For those [whom they scoff at] may be better than them. Nor shall women [scoff] at other women. For those [whom they scoff at] may be better than them. Nor shall you slander each other. Nor shall you revile each other by [way of abhorrent] nicknames.” [49:11]; and that he shall not be punished for someone else’s crime “For no sin-laden soul shall carry the [sinful] load of another.” [17:15] Man is innocent until the opposite proves true and should not be punished retroactively.
Islam guaranteed for man the right of ownership and to make use of the things that are not possessed by anybody such as earth, seas, rivers, wild animal, and fish.
People are partners in water, fire, grass. It is not permissible to transgress the possessions of others. If one dies and leaves something, it goes to his heir. People share natural resources with justice and kindness. Selling, leasing, loaning, borrowing, trading, and giving gifts are lawful means of earning to the exclusion of unlawful means such as theft, usurpation, usury, deception and gambling.
The poor and the weak have rights in the society and thus it is not permissible to leave any of them exposed to danger. These rights guaranteed by both the shari`ah and the judicial authority.
Islam has also guaranteed for the traveler that the resident people should guide him, give him to eat, and give him out of the zakah-charity if he needs because he is a wayfarer.
It has guaranteed the parents’ right and has enjoined children- by the judiciary power- to spend on them if they are poor; and so is the case with close relatives.
These rights are many and hence they have made the Muslim community cohesive, harmonious, and consolidated. Islam has enjoined those in authority among Muslims to establish the fundamental human rights and has given them in return for this duty the right of obeying them. Almighty Allah says, “O you who believe! You shall obey Allah. And you shall obey the Messenger and those in authority among you.” [4:59]
Scholars have founded what they called the objectives of the shari`ah; that is, the meanings derived from the totality of shari`ah texts identifying the goals of the shari`ah and its targets in isolation from the texts. Abu Ishaq al-Shatiby delineated the injunctions of the shari`ah saying: They refer to the preservation of its objectives with regard to the people. These objectives do not exceed three divisions: first, to be necessary, second to be complementary, and third to be embellishing.
Those that are necessary are indispensable for the interests of the religion and of this world which, if missed, this world will not go right but will go with corruption, turbulence, loss of life, loss of deliverance and bliss and with ultimate clear loss.
These objectives include the preservation of all fundamental and economic human rights, but they exceed with other indispensable rights for man’s promotion and protection, which are the goals of human rights. The necessary objective can be interpreted to be the right to live, the right of ownership, and the right to from a family in addition to the right of preserving reason, the right of practicing religion, and the right to preserve posterity.
Al-Shatiby pointed this out saying: The ummah (Muslim nation), rather all religions, has agreed that the shari`ah aims to preserve the five essentials: religion, souls, posterity, property, and reason.
Al-Ghazali said: Man’s feeling safe for himself, property, and honor is a condition for the obligation of acts of worship.
The complementary objective can be translated as man’s right to have education, house, and other rights that lift the hardship of life and secure honorable living. Almighty Allah says, “Nor has He placed on you any [undue] strain.” [22:78]
The embellishing objective aims at giving life beauty and fun and enjoying wholesome things, as Almighty Allah says, “Say: Who is it that has prohibited the adornments of Allah, which He has brought forth for His servants, and the wholesome things of [His] provision?” [7:32]
These objectives set the foundation of an integrated and balanced outlook for human rights accompanied with the duty of both the society and the individual to secure and protect them as a religious responsibility as well as a legal and juridical one; that is, they are not just admonitory but biding- this is the advantage of law.
Some of us may see that this definition is close to the concept of the natural state or the natural law from which human rights derive their legitimacy and comprehensiveness as seen by some philosophers.
We can summarize the basic principles of human rights in Islam in the following points:
1. Establishing the state on the idea of shura (consultation) starting with the choice the ruler and paying homage to him to continue ruling under the obligation of abiding by shari`ah rulings.
2. Enforcing the principle of legitimacy through the state executive authority and the judicial authority to protect the rights from all sorts of aggression or transgression and hence to prevent assault, taking captives and revenge.
3. Declaring the principle of equality between people, abolishing the system of classes and the habit of boasting with lineage and families, and establishing honor on the basis of piety alone; that is, on the basis of true faith accompanied by righteous work.
4. Establishing general freedoms on top of which come the sacredness of souls, honor, and properties along with housing, freedom of religion and opinion, freedom of work, and freedom of education as an obligatory right. It is a duty upon the society and the individuals to cooperate to preserve these rights.
5. Freedom of ownership accompanied by the obligation of social justice achieved through the imposition of zakah-charity and other duties on the properties of the rich for the sake of the underprivileged and the needy through the system of maintenance.
6. Freedom of making contracts and the obligation of fulfilling them and the freedom of trading and transacting accompanied by the restriction of preventing usury, ghabn (unfair pricing), monopolization, gharar (hazardous sale of uncertainty), and coercion and the exclusion of wills and the obligations of inheritance.
7. Fair treatment of women by giving them the right of inheritance, ownership, and discretion together with the basics of honor and equality in rights and duties and establishing marriage on cordiality and mercy. The wife has been given the right of dowry as a sort of honor for her and as discouraging from divorce without excuse. Polygamy was restricted with the condition of just treatment. Marriage of shighar (exchange of daughters or sisters for marriage with no mandatory gift to a bride from her groom), temporary mirage, and burying female babies alive are practices that have been prohibited.
8. Regulating penalties and distinguishing between the public right or the right of Almighty Allah and the personal right and distinguishing between legal penalties prescribed by the shari`ah and other penalties that are not prescribed but left for the discretion of the judge known as ta`zeer in addition to regulating the conditions of the crime of murdering and deliberate injuries and determining blood money and compensations.
9. Setting the foundation of international law of relations exhorting peace and brotherhood and the obligation of fulfilling covenants disallowing aggressive war and allowing defensive war for the sake of repelling aggression against religion, home, and holy places, preserving the freedom of religion, and helping the wronged person even if he is non Muslim.
10. Freedom of expression known as enjoining what is good and forbidding what is evil. This freedom is bound by the dictates of responsibility, for Islam considers the consequences of deeds and words. Thus, there is no freedom of speech to curse others or to disseminate harmful values in the society- it is responsible freedom.
11. The right of the poor and the weak in economic protection. Almighty Allah says, “Thus they feed with food- despite their own desire for it- the indigent, and the orphan, and the captive [of war]” [76:8] and “Moreover, in their wealth was a rightful share [of charity] for the beggar and the destitute.” [51:19]
12. The right of people in fairness and justice. Almighty Allah says, “O you who believe! Be ever upright for [the sake of] Allah, bearing witness [to truth] with [impartial] justice. Therefore, let not detestation [for some people] induce you to be unfair. [Rather,] be fair! For to do so is, indeed, closer to the fear of Allah. Therefore, fear Allah! Indeed, Allah is all-aware of all that you do” and [5:8] “And whenever you judge between people, you shall judge with justice.” [4:58]
13. The right of people on each other to cooperate and have mutual assistance. Almighty Allah says, “Rather, you shall help one another to virtuousness and to the fear of Allah. But you shall not help one another to sin and to aggression.” [5:2] Others’ right of justice was not known before Islam. Islam was the first to acknowledge these rights regardless of sex, race, ethnicity, or religion.
The Gracious Quran speaks about just cooperation that is based on the principle of freedom and the supremacy of the society “Say: O People of the Scripture! Come to an equitable word between us and you: That we shall not worship other than Allah. And we shall not associate anything in [our worship of] Him. And we shall not take one another as lords apart from Allah.”[3:64] explaining this verse Muhammad ibn `Amr al-Razy (544-606/1149-1209) said, “‘An equitable word’ indicates justice and fairness between all of us in terms of worshipping Allah equitably.” This means that there should be no extravagance or hegemony of one group over the other. All people enjoy freedom and equality before Allah, the One and Only God of all the people.
14. The right to refuse prohibited things; that is, the right not to be forced to commit things prohibited by the shari`ah. The noble Messenger said, “No created being should be obeyed in disobedience of the Creator.” Almighty Allah said, “He said: The promise of My covenant shall not extend to the wrongdoers.” [2:124] By virtue of this, no ruler can enact the lawfulness of something prohibited or detrimental to people’s interests. The juristic rule is that “the ruler’s management of the subjects is bound by serving their interest.” Similarly, it is not for a powerful state or nation, even if it is a Muslim one, to impose things that cause harm to the interests of small countries.
15. Protecting properties. Almighty Allah says, “Moreover, you shall not consume one another’s wealth by false means, nor proffer any of it to [bribe] those in authority, in order to sinfully consume a portion of people’s wealth- while you know [it is wrong].” [2:188]
16. Preserving human dignity and honor. Almighty Allah says, “O you who believe! Men shall not scoff at other men. For those [whom they scoff at] may be better than them. Nor shall women [scoff] at other women. For those [whom they scoff at] may be better than them. Nor shall you slander each other. Nor shall you revile each other by [way of abhorrent] nicknames. Woeful is the ungodly name after attaining faith” [49:11] and “O you who believe! Shun much suspicion. For, indeed, certain kinds of suspicion are sinful. Nor shall you spy [on each other]. Nor shall you backbite one another.” [49:12]
17. Protecting private life. Almighty Allah says, “O you who believe! You shall not enter homes, other than your own homes, until you take [welcome] permission and greet their people with peace. That is best for you- so that you may become mindful [of the benefit of Allah’s commandments]. But if you do not find anyone therein, then do not enter them until permission is given to you. Moreover, if it is said to you: Turn back! then turn back [and do not persist]. That is purer for you.” [24:27-28]
Human rights in Islam enjoy the privilege that the wise Lawgiver gave them a divine source, a sacred essence, and a rational characteristic. They are established by the Creator’s will and derived from His religion. They are beyond whims and are secured forever.
Dr. Khayyat maintains that human rights fall within the divine appointment of man as a successor. The covenant of succession includes his rights and duties and there is harmony and synchronization between individual’s rights and public interest. Each right for the individual includes a right for God- i.e., for the society- though priority is given to God’s right in the case of conflict. These rights includes the five necessities of the shari`ah; namely, the preservation of religion, reason, soul, posterity, and property.
Perhaps the most important mainstay for human rights in the shari`ah is the independence of the judiciary; for the judge’s only reference is to the shari`ah and his conscience.
This independence is shown by the brief message sent by `Umar, the commander of the believers, (may Allah be pleased with him) to Mu`awiyah ibn Abu Sufyan, the governor of Syria and Palestine telling him that “You have no authority over `Ubadah ibn al-Samit.” `Ubadah was sent by the Caliph as a judge for Palestine. `Umar, thus, put an end for the governors’ interference in judiciary.
Here is another message sent by the Caliph `Umar ibn al-Khattab to Abu Mosa al-Ash`ary establishing the rules of judiciary that secure rights:
“Judgeship is a firm obligation and a followed methodology. So you should comprehend what is submitted before you; for it is useless to speak with a truth that is not enforceable. Treat people equally in terms of how approach you, how you face them, and how you judge between them so that no noble person should wish for your unjust inclination and no weak person should despair of your justice. Evidence is upon the claimant and vow is on the one who denies. Reconciliation between Muslims is permissible except that reconciliation that renders the unlawful lawful and the lawful unlawful. Whoever claims an absent right or evidence give him respite with fixed date, for this way you give the best excuse and clarify the blindness of the issue. No sentence you passed one day and then you revised it and was guided to the right opinion should prevent you from returning to the truth. The truth is old and nothing renders it void. Returning to the truth is better than going forward with falsehood. Muslims are trustworthy with one another with the exception of someone known for false testimony or someone whipped in penalty for a crime or a person whose credibility is under suspicion due to his alliance or relation to another. Almighty Allah is aware of the secrets of people and He has concealed the reasons of their falling under penalty unless with clear evidences and oaths. You should thoroughly comprehend that which is submitted before you and is not in the Quran or the Sunnah and then apply analogy.
Be aware of similar cases and look for what you see as the best in the sight of Allah and closer to the truth. Beware of anger, anxiety, boredom, feeling hurt by people and seeking to be remembered by the disputants. Judging in favor of the truth is a reason for deserving the reward of Allah and for having good remembrance among people. Hence, he who is sincere to the truth, even against himself, Allah will sufficiently take care of what is between him and the people. He who adorns himself with that which is not within himself will be disgraced by Allah. Allah does not accept from a person except that which is sincerely for Him. What do you think of the reward of Allah in His near provision and the treasures of His mercy?! Peace be upon you together with the mercy of Allah.”
Ibn al-Qayyem al-Jawziyyah said, “This message is great and scholars received it with approval and established upon it the rules of judgeship and testimony. The ruler and the mufti (jurist counselor) are more needful to reflect on and learn it.”
During the Abbasid period and in the end of the second century of Hijrah the caliph kept himself away from appointing judges as he entrusted this judiciary. Al-Rasheed appointed Abu Yousof as a judge and entrusted him to appoint judges in other countries and thus judiciary had some sort of administrative independence.
Office of the ombudsman can be considered an advanced means to protect human rights; particularly from the injustice of the authorities. It was established by al-Mahdy in the second half of the second century of Hijrah. It received people’s complaints even against high officials. Al-Mady and his successors up to the period of al-Muhatady (255 AH) used to dedicate one or two days a week to sit and listen to people’s complaints against those in authority as well as others.
Military justice was formed during the Mamluki period after expelling the crusaders from Syria by the end of the seventh century. This judiciary was for settling disputes among the soldiers. In Damascus there were two military judges.
After this quick survey over human rights in Islam, we shall focus on four key issues due to their importance in the current dialogue over human rights in Islam to see in the light of the shari`h and under the shade of the Western philosophy the prejudice against the Islamic shari`ah. We are going to dedicate four chapters for these issues: the first chapter will be about the status of women, the second about freedom and equality, the third about shura(consultation) and democracy, and the forth about Islamic criminal laws and human rights.