The Princeton Encyclopedia of Islamic Political Thought

rights

Rights exist de facto as social norms in any society with a minimum of social differentiation or hierarchy, whether such societies have developed concepts of rights or not. Premodern Islamic legal thought developed a concept of rights in a technical legal sense. Premodern Islamic political thought also recognized certain rights, though these are distinct from legal rights in the sense of specific, enforceable obligations. The extent to which premodern Islamic religious discourses contributed to modern rights discourses among Muslims is debatable, but the two trends reveal a complex and sometimes productive fusion of Islamic and Western notions of rights.

Legal Rights

Islamic law, like any sophisticated legal system, confers many different kinds of rights, such as those regarding property, the sanctity of the person, marriage, and access to courts. Such rights, like rights found in other legal systems, comprise privileges, claims, powers, and immunities, each of which has a correlative (no claim, duty, liability, and disability, respectively) and an opposite (duty, no claim, disability, and liability, respectively). For example, under Islamic sales law (buyū‘), a buyer’s right to rescind a sale upon visual inspection of the sales goods (khiyār al-ru’ya) includes the privilege not to purchase the goods—that is, the buyer has no duty to purchase the goods and the seller has no claim against the buyer for not doing so. It also includes the claim against the buyer to sell the goods if they meet the buyer’s approval upon such inspection, which entails the seller’s correlative duty to sell them to the buyer. The Islamic legal system also recognizes procedural rights of litigants in civil matters and of defendants in criminal matters, and these can have important substantive consequences. Such rights include the impartiality of the judge and of witnesses and in criminal matters the requirement that the court fully observe strict evidentiary rules and exculpatory doctrines.

Islamic law classifies certain kinds of claim rights, which imply a duty or liability on the part of someone other than the holder, under the term ḥaqq (pl. ḥuqūq; compare Hebrew ḥuqqīm, “laws,” as in Exodus 18:16, “God’s laws”). The word ḥaqq appears very frequently in the Qur’an in the sense of “truth” or “what is correct.” Sometimes it is also used in ways that are relevant to a concept of rights: it can refer to certain claims against believers for the performance of duties (Q. 2:180, 241, concerning bequests and divorce, respectively) and against their property (Q. 17:26; 51:19; 70:24, concerning claims of the poor to charity). In two closely related passages, it refers obliquely, in a prohibition against homicide, to the right to impose capital punishment (Q. 6:151; 17:33). It can also refer generally to the authority to engage in certain acts, though in such passages it is always used in a negative construction to indicate that the behavior in question was engaged in unlawfully or without right. For example, several persons or groups are said to have behaved arrogantly—in other words, contrary to God’s injunctions—without right or justification (Q. 7:146; 10:23; 28:39; 42:42; 46:20). Others are accused of having killed the prophets without right or justification (Q. 2:61; 3:21; 3:112; 3:181; and 4:155; see also 5:116; 7:33; and 11:79, which contain similar negative constructions in other contexts).

In post-Qur’anic Islamic law, ḥuqūq in the sense of claim rights fall into three distinct groups. Some of these rights are private (i.e., held by individuals); some are owed to God, being claims against humans to avoid matters that are divinely prohibited and to perform acts that are divinely commanded; and some straddle both categories. In regard to all three categories of rights or claims, judges have jurisdiction, on behalf of the state, to award recovery or punishment, as appropriate, depending on the right involved. As Ibn Rushd (Averroes, d. 1198) puts it, “It is widely agreed that the judge can rule in regard to any kind of right, whether it be a right of God or a right of individuals, and that he is the representative of the supreme political leader in that regard.” Private rights, or the rights of individuals (ḥuqūq al-ādamiyyīn or ḥuqūq al-‘ibād), generally arise where there has been a civil wrong, such as a breach of contract. They entitle the holder to seek recovery or redress through litigation. Such rights constitute claims against other private individuals. The rights of God (ḥuqūq Allāh) may be divided into two kinds: those that arise from violations of Islamic criminal law and those that reflect God’s claim against humans that they perform certain religious obligations. In the former case, God’s rights extend specifically to the small number of crimes described in Islamic law, especially those mentioned together with a specific punishment in the Qur’an, referred to collectively as ḥudūd (limits): theft (Q. 5:38); unlawful sexual intercourse (Q. 4:15–16; 4:25; 24:2); false or unsupported accusation of unlawful sexual intercourse (Q. 24:4); and “brigandage” (ḥirāba), a residual category that covers other transgressions against persons and property, especially outside of urban areas (Q. 5:33). Others that are implied by the Qur’an, mandated in prophetic tradition, or historically viewed as theologically serious violations of public order, such as wine drinking, apostasy, refusal to pray, and insulting the Prophet or his Companions, may be included here as well. The right in such cases is God’s claim against the defendant for corporal or capital punishment. Such punishment, even capital punishment, is thought by some to expiate the crime, which is considered to be a sin. The fact that the state has the right to enforce these criminal laws and so to inflict punishment on God’s behalf has suggested to some that these are public rights exercised by the state on behalf of the community. These divine public rights also resemble private rights to the extent that they arise from the commission of an offense.

The state also retains a right—strictly, a power—to inflict a lesser discretionary corporal punishment called ta‘zīr, which may not exceed the lowest of the prescribed ḥudūd-based corporal punishments. Such discretionary punishment may be meted out in cases where conviction for a ḥadd offense is impossible because of exculpatory doctrines or strict evidentiary requirements or for general transgressions of public order not addressed by the law. It is unclear whether this residual right to punish, in either case, inheres in the state or is exercised by the state on God’s behalf. Whether ta‘zīr is God’s right or simply the state’s exercise of a de facto power (entailing the perpetrator’s correlative liability for punishment), it owes its existence in part to the difficulty of obtaining criminal convictions under Islamic law. This difficulty could be characterized as a right of defendants that involves an immunity and a correlative disability on the part of the state.

In contrast to the claims of God that arise from behavior that God has prohibited, other claims of God pertain to the performance of religious obligations, behavior that God has mandated. In such cases God enjoys the right to expect positive compliance with the mandated conduct and thus has a claim right against believers, all other things being equal, for the successful performance of such acts. Although such divine claims may pertain to private worship, such as prayer, they are also connected with the public sphere, and the creation of appropriate conditions for their successful performance are thus viewed as the responsibility of the state, as in the case of the collection of canonical taxes (zakat), making provision for holding the Friday congregational prayer (ṣalāt al-jum‘a), infrastructural initiatives that ease or assist with the pilgrimage (hajj), or the prosecution of holy war (jihad). An individual’s failure to perform such obligations is not usually something over which courts have jurisdiction unless accompanied by public disavowal of the obligations themselves, which could subject the person in question to liability for ta‘zīr.

Whether a given obligation is classified as a duty pursuant to a right of God or of humans can have consequences. For example, in the case of zakat, whose proceeds are distributed to the needy, there is a disagreement over whether paying the tax is a religious obligation (and thus one of God’s rights) or a claim held by the poor against those with sufficient wealth (and thus a right belonging to humans). In the former case, as a religious obligation, the right could only be “enforced” against those otherwise endowed with the legal capacity to perform religious obligations in general: sane adults, but not, for example, minors. If the right is one that belongs to humans, then the restrictions related to the capacity to perform religious obligations would not apply, and a larger class of persons would be subject to the tax (e.g., minors).

The Islamic law of torts—jināyāt (offenses) or often simply diyyāt (blood money payments)—gives rise to rights that encompass both a private and a public or divine dimension. Private right holders in such cases (certain injured persons or heirs of victims of wrongful killing) enjoy a right to retaliation in serious cases and to compensation in less serious cases. The right of retaliation includes the power to waive infliction of equivalent physical harm or to accept compensation in lieu thereof. Such retaliation is generally carried out by the state in order to satisfy the private claim and also to satisfy the public claim against the defendant on God’s behalf, as well as to discourage resort to self-help and vigilantism.

Is there a coherent, even if latent, conception or philosophy of rights under Islamic law, whether such rights are designated as ḥaqq or merely de facto recognized under law? Since the ḥuqūq are viewed primarily as claims that, if proved, lead to the restoration of something, they do not fit easily within the “will theory of rights,” according to which an individual’s rights carve out a sphere of choices and freedom of action. It may be that they accord better with an interest or benefit theory, in which rights further the interests of, or benefit, their holders—for example, by restoring a claimant, after a wrong, to the previous status quo, but even this is difficult to decide with certainty. On the other hand, God—who is omnipotent, transcendent, and utterly self-sufficient—has neither interests nor a need for rights to enjoy absolute sovereignty, at least according to premodern Islamic theology. Nor does it seem reasonable to speak of God as a beneficiary of legal remedies. It has been noted that religious legal systems pose problems for the analysis of rights in terms of interests or will.

If the latent underpinning of rights in Islamic law is closest to an interest theory of rights, does that mean that there are “natural rights” in Islamic law? The question has become controversial in the field of Islamic studies. Islamic legal theory (uṣūl al-fiqh), both Sunni and Shi‘i, is highly positivist in the sense that answers to legal questions are grounded in specific passages in revealed texts (Qur’an, prophetic traditions). For Sunnis, rights and obligations are created by God and spelled out, in varying degrees of clarity, in texts sent down by God. The criterion for the validity of such rights is, for most Sunni jurists, simply their existence in or link with those texts. Shi‘is, however, inherited much of their theology from the early rationalist movement of the Mu‘tazilis, who held, as Shi‘i legal theorists do, that reason may be used to discover the law—a view that is at least compatible with a notion of natural rights. It has been argued that Islam in general, or Sunni Islam in particular, has neither a theory of natural law nor a theory of natural rights. Recent scholarship has begun to reexamine this claim. A. Kevin Reinhart argues, based on an examination of legal theory texts, that the existence of a range of views makes the question at least nuanced. Anver Emon, who reexamines Sunni legal theorists and expressly equates ḥuqūq al-ādamiyyīn with “interests,” argues that despite Sunni denials of the force of natural law arguments, juristic discretion rested on assumptions compatible with or even informed by ideas of natural law and natural rights.

Rights of Those Disadvantaged by the Law

Islamic law expressly recognizes that persons and other beings who lack full legal capacity or may be otherwise legally or socially disadvantaged—for example, the disabled, women, minor orphans, slaves, non-Muslims, and even animals—nonetheless enjoy rights. Such rights are not, however, necessarily defined as ḥuqūq or separately conceptualized as rights. Although the physically disabled are only rarely expressly disadvantaged by Islamic law, Muslim jurists did recognize that they were entitled to accommodations in many though not all instances in regard, for example, to religious obligations that otherwise presuppose full physical capability. However, according to Mawardi (d. 1058) in his treatise on government, physical disabilities do prevent otherwise qualified candidates from becoming or remaining caliph. Those with mental disabilities are precluded under Islamic law from engaging in financial transactions for their own protection, but the mentally retarded (ma‘tūh, as opposed to the insane, majnūn) are allowed to marry according to some modern fatwas. Perhaps these accommodations can be regarded as rights in view of modern legislation specifically conferring rights on the disabled such as the U.S. Americans with Disabilities Act or the UN Declaration on the Rights of Disabled Persons. Although women suffer from certain legal disabilities under Islamic law—a diminished capacity to testify, asymmetrical divorce rights, certain rules of ritual purity, diminished inheritance rights, and others—they also enjoy certain express protections under Islamic law. For example, even though rules of marriage and divorce disadvantage women in important respects, women enjoy specific rights as spouses, including the right to material support (nafaqa, which extends to food, lodging, and clothing). It has been argued that informal but consistent judicial cognizance of women’s disabilities under Islamic family law contributed to an increased willingness to enforce strictly those marital rights that women did have. Orphaned children, though lacking full legal capacity as minors, are protected against predations on their property by ethical injunctions in the Qur’an requiring fair dealing by their guardians (e.g., Q. 6:152). Slaves also enjoy certain rights even within the context of servitude, including the de facto ability to own property, the right to resist forced conversion to Islam, and the right not to be married to someone against their will. Non-Muslim subjects of Muslim-ruled states are generally considered protected persons (dhimmīs) and are, within certain limits, entitled to practice their religion without undue interference and free from forced conversion, in exchange for the payment of a special tax. Enforcement of such protections varied with political circumstances; conversely, dhimmīs could forfeit their protections by failing to observe the restrictions to which they were subject. Non-Muslims suffered other specific legal disabilities as well, such as being precluded from inheriting from their Muslim relatives according to Islamic inheritance law (though, according to some jurists, they could receive otherwise lawful bequests) or, in the case of men, from marrying Muslim women (though non-Muslim women could, under Sunni law, marry Muslim men). In light of emerging contemporary concerns about animals’ welfare, it is worth mentioning that the law also allowed for legal intervention in cases of animal mistreatment. This responsibility belonged to the muḥtasib, an inspector in charge of public health, safety, and morals whose jurisdiction extended to market practices and public works. Certain pietistic currents in religious thought and the depiction of apparently sentient animals in the Qur’an (e.g., sura 27, “The Ants”) also engendered reflection on whether human dominion over animals, though widely assumed to be divinely imposed, was justified.

Political Rights

Political rights as conceived by premodern Muslim thinkers involved limitations on state power and as such perhaps imply a will theory of rights, in contrast to the legal rights previously discussed. For the most part, such political rights did not involve participation in political decision making but instead rested on the idea that free subjects of Muslim-ruled states were entitled to two things: the application of Islamic law and otherwise to be left alone by the state. Government by rule of law, independent of an individual ruler’s whim, would contribute to the realization of a just social, legal, and political order. Conceptions of the rule of law were thus related to the full recognition, application, and enforcement of divine public and private ḥuqūq.

The “right” to live under a government that applied and enforced Islamic law was expressed early on as a result of disputes, including civil wars, over legitimacy of rule and attendant doubts about rulers’ claims to religious authority. Such doubts contributed in part to the emergence of private specialists in piety who gradually evolved into the separate class of religious scholars (‘ulama’), who focused, among other tasks, on the development of criteria for evaluating behavior in religious terms, for example, by systematically formulating theological criteria for salvation and the rules of Islamic law. The resulting bifurcation of temporal and religious authority led to a lowering of expectations in regard to rulers and a strengthening of the idea that the scholars’ discourse was the primary site of relevant concepts of ethics. It undoubtedly also contributed to the formulations of some ideas about limits on state (or the ruler’s) power. Several modern scholars (e.g., Noah Feldman, Wael B. Hallaq) have suggested that the distinctive relationship between the state and the clerical institution in premodern Islamic societies evolved, after early disappointments, into a system of checks on government, grounded in the scholars’ moral authority, that could perhaps be construed as further implying some individual political rights and even a kind of constitutional order.

As early as the mid-eighth century, the Iranian political advisor and litterateur ‘Abdallah b. al-Muqaffa‘ (d. ca. 756) noted the currency of the phrase “No obedience to any creature who is disobedient to the Creator” (lā ṭā‘ata li-makhlūq fī ma‘ṣiyat al-khāliq). The phrase was understood to mean that no obedience was required toward impious rulers, at least in regard to their impious acts, and thus expressed the idea that a ruler could be disobeyed, and perhaps deposed, on religious grounds. Although countertendencies urged obedience even to impious Muslim rulers under the theory that political stability could be more important than the adherence to principle, the phrase discussed by Ibn al-Muqaffa‘ implies increasing recognition of the zone between private conduct and state authority and of refinements in religious and ethical criteria for assessing the rectitude of state action.

There were generally four hallmarks of right rule, which entailed obedience to political authority: enforcement of criminal law (iqāmat al-ḥudūd), prosecution of jihad, preservation of sexual morality (furūj), and protection of private property (ḥurmat al-amwāl). These may be restated as rights: free Muslim citizens have the right to expect that government will enforce God’s law. This expectation may be related to concerns about personal or communal salvation, but one can imagine more specific concerns as well. For example, the protection of private property expresses the specific concern that the government will not unlawfully confiscate the private property of Muslims except according to law—this is the right to be free from unlawful misappropriation (ghaṣb) by political authorities. After all, the persons and property of free Muslims are inviolate (ḥarām) under Islamic law. Such inviolability (ḥurma) may be expressed as a right (either a privilege or an immunity for individuals) and its correlatives (either no claim or a disability on the part of the state). Such ideas accord well with a will theory of rights.

Against this background, it is possible to isolate some additional discrete ideas in Islamic legal and political thought that perhaps deserve the term “right.” Elites, especially scholars, claimed for themselves the right (and sometimes the duty) to provide ethical advice (naṣīḥa) to rulers. Indeed, according to one maxim, “Religion consists of the provision of sound advice” (al-dīn al-naṣīḥa). In addition, all subjects were, at least in theory, entitled to appeal directly to the ruler or his representative for the redress of wrongs (maẓālim). In regard to the enforcement of the law, limits were placed on the state’s ability to invade private property to make arrests for crimes of morality, in other words, those involving intoxicants, frivolous entertainment (e.g., music or dancing, in the view of the socially conservative), and sexual immorality. Jurists also sought to impose limits on the state’s power in regard to certain armed rebellions that had a plausible claim of theological support (ta’wīl). Such rules allowed the state to fight the rebels but required that property and even weapons be returned to rebels once order had been restored. This could be characterized as the rebels’ immunity from, and the state’s correlative disability in regard to, gross mistreatment exceeding the minimum force required to restore civil order.

Some Contemporary Notions of Rights

Modern conceptions of rights, which rest on the idea that individuals have inherent rights of various kinds, especially political rights consisting mostly of privileges and immunities against the state, are indebted to the American and French revolutions. In Muslim-ruled states of the early modern period, ideas of liberty and equality factored into a number of programs of constitutional reform, occasionally justified under principles of Islamic law. Throughout the 19th century, the greatest of the Muslim absolutist empires, the Ottomans, extended state power into the lives of individuals, bypassing those intermediary groups through which the Ottoman state had traditionally ruled and fostering ideas of social and legal equality, at least for males, and perhaps of individual duties and protections. The Tunisian statesman and reformer Khayr al-Din al-Tunisi (d. 1890) argued for constitutional liberties, portrayed as shari‘a-compliant, as part of a program of political and religiocultural renewal. The Iranian Constitution of 1906, which took aim against local autocratic government and external imperialist threats, established procedures for electing a representative assembly, including a right to vote for men of certain social classes. Although modeled on the Belgian Constitution of 1831, it was supported by Muslim clerics and required that legislation adopted by the assembly conform to Shi‘i interpretations of Islamic law. Such trends—in combination with experiences of colonialism, incipient nationalisms, projects of Islamic reform, modernization, modernity, and the emergence of the post–World War II world order that included international agreements enshrining individual rights under international law—all contributed to modern rights discourses in the Islamic world. It should be emphasized that not all such rights discourses are “Islamic,” though some are self-consciously so.

In the modern period, the term ḥaqq has come increasingly to translate the word “right” (and the French droit) in all the latter’s various connotations, so that the term’s semantic field has changed to some degree in Arabic. That change has affected usage within both secular and Islamic discourses on rights more generally. The semantic proximity of the Arabic word ḥaqq to the English word “right” is nonetheless suggested by the ease with which the Modern Standard Arabic phrase ḥuqūq al-insān (lit. “rights of the person”) translates to the English phrase “human rights.” The term figures prominently in the names of two of the oldest human rights organizations in the Arab world: the Palestinian human rights organization Al-Haq (al-Haqq) and the Egyptian Organization for Human Rights (al-Munazzama al-Misriyya li-Huquq al-Insan), both of which seek to ensure adherence to international standards of human rights and humanitarian law.

The internationalization and universalization of the concepts of rights—civil, human, and political—have also affected Islamic rights discourses. For example, in the 1990s a Saudi organization that protested against government policies called itself in English the Committee for the Defense of Legitimate Rights and in Arabic al-Lajna li-l-Difa‘ ‘an al-Huquq al-Shar‘iyya. In Arabic, the adjective shar‘ī is ambiguous and can mean “legitimate,” either in the sense of “according to law” or in the sense of “according to the shari‘a.” This ambiguity was useful in the group’s attempt to portray itself to a religious, Saudi constituency as urging the impartial application of Islamic law and to Western observers as a Saudi human rights organization. The term “rights” (ḥuqūq) apparently made sense to both audiences. In recent decades, too, movements to reform family law as it affects women have appealed simultaneously to international law and shari‘a as binding transnational standards mandating equality of treatment in domestic legal systems. Islamicizing constitutions have offered a particularly interesting arena for official rights discourses that deploy a language of both liberal and Islamic legitimacy. The preamble to the Iranian Constitution (Qanun-i Asasi) of 1979 (as amended in 1989), for example, speaks of women’s rights as human rights (ḥuqūq-i insānī-yi khud) and proclaims in Article 3.14 that a goal of the state is to secure the rights of all men and women (ta’mīn-i ḥuqūq-i hamah-yi jānibah-yi afrād az zan wa-mard).

The governments of some Muslim-majority states, aided in some cases by religious scholars, have also attempted to generate international human rights instruments that adhere to what are claimed as Islamic standards. These have been promulgated in response to international human rights discourses that expressly or implicitly call into question certain rules of Islamic law, such as those that expressly disadvantage women in areas of family law. These efforts have resulted in documents such as the 1981 Universal Islamic Declaration of Human Rights and the 1993 Cairo Declaration on Human Rights in Islam. The documents in question have not been adopted by any Muslim-majority country but seem instead designed to provide a rhetorically useful, politically advantageous, and theologically satisfying response to perceived competition from secularizing international human rights discourses. In such documents, as in Islamicizing constitutions, unqualified affirmations of rights are usually qualified by reference to unspecified Islamic principles so that the scope of the rights in question remains unclear. As Mohammed Arkoun has noted, such documents underscore a “very confused ideological situation” in which “the colonial fact poses problems for both the West and Muslim countries,” making it “difficult to speak to a Muslim audience today about the Western origin of human rights without provoking indignant protests.” Still, as Arkoun points out, the fact that such efforts are undertaken is itself potentially significant and could yet form part of a “critical reexamination and reworking of the concept of Truth-Right (al-ḥaqq) and of its foundations” in order to “go beyond the mimetic competition, essentially ideological, between traditional religion and civil religion.”