SHARIAH: Legacy of the Prophet:  The Role of Human Rights in Islamic Law

The Legacy of the Prophet:  The Role of Human Rights in Islamic Law

by Dr. Robert D. Crane

Part I:  The Legacy of Love, Truth, and Justice

      The legacy of the Prophet Muhammad is the revival of the essence of all religion.  He revitalized personal awareness and loving awe of God, which Muslims call taqwa, and a resulting commitment to truth and justice.  These two pillars of Islam and of every world religion reinforce each other.  The neglect of either one can result in extremism.  Without love and mercy, the pursuit of justice can result in cruelty and oppression.  And without the love of justice, one?s love of God is powerless in the world.

      The two basic philosophical principles of Islam are known as tawhid and mizan.  Tawhid refers to the concept that everything in the universe is interrelated with everything else in a coherent whole, and that this unity is the inevitable result of the Oneness of the Ultimate, the Creator of all, whom the Muslims refer to as Allah and the Christians call God.

      The second philosophical principle, known as mizan, comes from the first one.  Mizan means balance.  Since God created the universe as a balanced whole, a task of every human is to help perfect this balance by avoiding extremism.  When one over-emphasizes any one moral virtue or goal in life, one automatically becomes an extremist by neglecting the others.

A framework for maintaining balance in life is provided by Islamic law and is its very purpose.  This framework is a hierarchical system of human responsibilities and rights.  For example, one has a responsibility to defend one?s family and community, and one has an equal responsibility to respect individual human life.  Those who kill innocents in the alleged defense of their community clearly have lost balance.  This violates the design of Allah.  It is extremist and therefore immoral. 

The indignities of miserable poverty and cruel oppression can produce alienation, desperation, and extremism.  Unfortunately, Muslims have suffered more than their share of both these causes and effects in the world, but this is no excuse for the resulting extremism.  Regardless of how understandable it might be, extremism and the resulting violence is immoral. 

Extremism does not have to result from indignities, but it will unless there is a source and framework for hope.  The source must be spiritual, based on taqwa.  The framework must be a coherent body of human responsibilities and rights, based on a mutually reinforcing combination of divine guidance through revelation, wahy, and natural law, which Muslims call the sunnatu Allahi or signs of divine order in the universe.  Without this intellectual framework, people wander in an intellectual void, and this, in turn, can produce a spiritual malaise.

Over the long run, the most productive initiative by the still largely silent majority of Muslims in marginalizing Muslim extremists is to fill the intellectual and spiritual void that serves as an ocean in which the extremists can swim.  This initiative can provide the favorable environment needed for Muslims to ally with like-minded Christians and Jews in order to show that classical Islam and classical America are similar, even though many people do not understand or live up to the ideals common to both. 

Teaching and emphasizing that the founders of America and the great scholars of Islam shared the same vision is the best way to convince the extremists that their confrontational approach to the ?other? is not necessary. Recognizing this commonality of purpose in life is the only way to overcome the threat mentality of those who are obsessed with conspiracy theories and think only about their own survival.  Promoting an opportunity mentality of hope is the only way to convince the extremists that only those can truly prosper over the long run who can transcend their own self-centered interests in order to join with those who are no longer merely the ?other? but now are members of a single pluralist community.

Part Two: The Framework of Justice

      Justice is another word for the Will or Design of God.  It is also considered to be another term for the body of Islamic normative law.  These norms or general principles, according to Islamic thought, provide the intellectual framework to understand and address all of reality. 

In order to fill the intellectual void, Muslims need to emphasize the universal Islamic principles, known as the maqasid al shari?ah, which spell out precisely the human rights that some skeptics have asserted do not exist in Islam.  These maqasid, following the methodology instituted by the Prophet Muhammad and perfected in the architectonics pioneered six centuries ago by the master of the art, Al-Shatibi, are considered to consist of seven responsibilities, the practice of which actualize the corresponding human rights. 

The first one, known as haqq al din, provides the framework for the next six in the form of respect for a transcendent source of truth to guide human thought and action.  God instructs us in the Qur?an, wa tamaat kalimatu Rabika sidqan wa ?adlan, ?and the word of your Lord is perfected in truth and justice.?  Recognition of this absolute source of truth and of the responsibility to apply it in practice are needed to counter the temptations toward relativism and the resulting chaos, injustice, and tyranny that may result from de-sacralization of public life.

      Each of these seven universal principles is essential to understand the next and succeeding ones.  The first three operational principles, necessary to sustain existence, begin with haqq al nafs or haqq al ruh, which is the duty to respect the human person.  The ruh or spirit of every person was created by God before or outside of the creation of the physical universe, is constantly in the presence of God, and, according to the Prophet Muhammad, is made in the image of God.  This is the basis of the intimate relationship between God and the human person as expressed in the Qur?anic ayah, ?We are closer to him than is his own jugular vein.?

      This is also the basis of the prayer offered by the Prophet and by countless generations of Muslims for more than a thousand years: Allahumma, inna asaluka hubbaka wa hubba man yuhibbuka wa hubba kulli ?amali yuqaribuni ila hubika, ?O Allah!  I ask You for Your love and for the love of those who love You.  Grant that I may love every action that will bring me closer to You.?

At the secondary level of this principle, known as hajjiyat or requirements, lies the duty to respect life, haqq al haya.  This provides guidelines in the third-order tahsinniyat for what in modern parlance is called the doctrine of just war.

      The next principle, haqq al nasl, is the duty to respect the nuclear family and the community at every level all the way to the community of humankind as an important expression of the person.  This principle teaches that the sovereignty of the person, subject to the ultimate sovereignty of God, comes prior to and is superior to any alleged sovereignty of the secular invention known as the State. 

This principle teaches also that a community at the level of the nation, which shares a common sense of the past, common values in the present, and common hopes for the future, such as the Palestinians, Kurds, Chechens, Kashmiris, the Uighur in China, and the Anzanians in the Sudan, has legal existence and therefore legal rights in international law.  This is the opposite of the Western international law created by past empires, which is based on the simple principle of ?might makes right.?

The third principle is haqq al mal, which is the duty to respect the rights of private property in the means of production.  This requires respect for institutions that broaden access to capital ownership as a universal human right and as an essential means to sustain respect for the human person and human community.  This principle requires the perfection of existing institutions to remove the barriers to universal property ownership so that wealth will be distributed through the production process rather than by stealing from the rich by forced redistribution to the poor.  Such redistribution can never have more than a marginal effect in reducing the gap between the inordinately rich and the miserably poor, because the owners in a defective financial system need not and never will give up their economic and political power.

      The next three universal principles in Islamic law concern primarily what we might call the quality of life.  The first is haqq al hurriya, which requires respect for self-determination of both persons and communities through political freedom, including the concept that economic democracy is a precondition for the political democracy of representative government.

The secondary principles required to give meaning to the parent principle and carry it out in practice are khilafa, the ultimate responsibility of both the ruled and the ruler to God; shura, the responsiveness of the rulers to the ruled, which must be institutionalized in order to be meaningful; ijma, the duty of the opinion leaders to reach consensus on specific policy issues in order to participate in the process of shura; and an independent judiciary.

The second of these last three maqasid is haqq al karama or respect for human dignity.  The two most important hajjiyat for individual human dignity are religious freedom and gender equity.  In traditional Islamic thought, freedom and equality are not ultimate ends but essential means to pursue the higher purposes inherent in the divine design of the Creator for every person.

The last universal or essential purpose at the root of Islamic jurisprudence, which can be sustained only by observance of the first six principles and also is essential to each of them, is haqq al ?ilm or respect for knowledge.  Its second-order principles are freedom of thought, press, and assembly so that all persons can fulfill their purpose to seek knowledge wherever they can find it.

This framework for human rights is at the very core of Islam as a religion.  Fortunately, this paradigm of law in its broadest sense of moral theology is now being revived by what still is a minority of courageous Muslims determined to fill the intellectual gap that has weakened the Muslim umma for more than six hundred years, so that a spiritual renaissance in all faiths can transform the world.