In the Name of Allah
The Beneficent, the Merciful
Almighty the Prudent says in His holy Book: ...Nay he has brought them the truth. And should the truth follow their low desires, surely the heavens and the earth and all those who are therein would have perished... (230:70,71)... And Allah the Exulted is true.
The subject of our discussion is the origin of rights. Before entering into discussion of the subject matter it is essential to explain the meaning of right and its usage.
Right, justice and its synonyms are the most sacrosanct words which enjoy highest sanctity and special elegance of meaning in all the human societies. One can hardly come across a person who would like to introduce himself as the supporter of falsehood and oppression and oppression and opposed to justice and the right. The most tyrant persons and governments proclaim to be true and just in order to deceive the people. They want to cover the ugliness of their aggressive tyrant deeds under the beautiful mantle of justice and truth. The affinity of these two meanings becomes clearer when justice is defined as dispensation of right to the rightful.
The search for truth and justice is considered as the mother of all social values. The precept of virtue of right and justice is an evident rational dictum. Inclination and ambition for these are considered as a part of man s lofty temperament. So is the precept of vices of oppression and fallacy an evident rational dictum. Dislike for these is also a part of human nature.
Islamic culture also attaches significant importance to these terms. These have repeatedly been referred to in the Holy Qur'an and the sayings of the holy Prophet (S.A.) and the members of his household (A.S.) which indicate the importance of this matter in the system of Islamic values.
Let us however, impress upon the fact that the word right has various usages but all of these do not relate to our subject matter. For instance, the word right means permanent being, or the statement according to facts or a promise about something which would certainly happen, etc.
Therefore, truth in relation to Almighty Allah also does not relate to our subject matter. If the search for justice and right is part of human nature it cannot be related to acquaintance and worship of Allah and the existence of one cannot be derived from the other. Some have tried to do so to arrive to such conclusions but they have only confused between its ethical meanings and philosophical conception.
The other point is that the limitations for usage of right in legal discussions is much narrower than its expanded use in ethical and religious discourses, discussions are held on the rights of Allah over man and even the rights of man over Allah. But as far as the legal concept is concerned it exclusively relates to the relationship between man and man. On the other hand, the word rights is used in at least two different meanings as far as its usage by the lawyers is concerned. The one relates to reservations and privileges granted to individuals or groups of persons which should be honored by others and should not be violated or encroached upon by any one. The other meaning is the code of laws whose observance is obligatory. These may provide privileges for certain persons or prescribe obligations for others. These can also be laws describing conditions regarding the correctness of agreements and contracts. The word rights the correctness of agreements and contracts. The word rights in the second sense is very much similar to the term social laws.
However, these two meanings are not entirely alienated to each other, because all legal laws are connected in one way or the other with the right of individuals or the society. If it grants a right to somebody it necessitates and obligation for the opposite side. In case it provides obligations for all it would mean provision of reciprocal duties for all. As a result of this every one will have a reciprocal right on the other. As a matter of tact, such general laws are dissolved into minor laws each of which guarantee a special right or obligation.
To put this in one sentence, it can be said that rights and duties are interrelated and the enactment of one necessitates the provision of the other.
Similarly, the enactment of laws such as those providing details and conditions for entering into agreements and contracts and similar other laws provide both rights and duties accruing from such agreements and contracts.
As mentioned earlier the search for ones rights is a lofty sacrosanct human value so much so that it is considered to be the mother of all other social values. But the word right by itself does not represent anything or a deed in particular. It cannot precisely specify its meanings. For instance, the meaning of justice can be specified only when a right is stipulated in advance so that its restoration to its owner is considered as the applicability of justice.
In other words the concepts of rights of rights and justice are not substantial concepts which could be obtained by the realization of its instances and may not need rational considerations and comparisons. A particular move or action cannot always be considered as illustrative of right and justice nor can another type of move or deed can always be considered as unjust and oppressive. In certain given circumstances, even beating, injuring and killing may be considered as a case of right and justice. For example, if it was a case of reprisal or legal punishment. Hence the legality or illegality of such actions depends on the fact whether it was done as a reprisal or punishment or committed as and original act without the other party which is beaten, wounded or killed, having committed a crime. So long as such considerations and comparisons are not made, the outward act cannot be defined as right and justified or illegal and cruel.
Hence, the most fundamental issues of the philosophy of rights is as to what is the origin of rights? What is the basis determining the rights and obligations of persons in varied conditions?
In other words what is the source of segregating the titles of rightful and the wrong. Just and unjust? What considerations and distinctions should be carried out to distinguish between these titles?tles?
Some may say that instances of right and justice can be recognized through wisdom and natural instinct. Every wise person knows that snatching a piece of bread from a hungry orphan child is cruelty and its restitution a justice. On the whole depriving an owner of his property. Whatever it may be, or aggression on any ones life and honor is cruel and unjust, but consumption from ones own property and protection of ones own life and dignity is rightful and just.
But such replies are the outcome of simplicity and lack of in-depth-thinking of scientific and philosophical issues. Anyone who has that least acquaintance with legal matters can quote many instances wherein identification of right and wrong would not be as simple as that. In many a cases, even the most talented judges of the world get confused while they are required to deliver their judgment. There are abundant instances wherein distinguished legislators of the mankind cannot express a decisive opinion or expressly identify between the right and the wrong.
Therefore, if there are clear, definite and specific instances of right and just for the common man, undoubtedly there are many ambiguous and doubtful cases wherein it is not every specific rules and complex formulae. It is about these rules and formulae that we have to endeavor and find them out.
Having dealt with superficial and simplistic views, we come across a deep-rooted difference between the lawyers. The question is whether right and justice have a real essence of their own which needs to be discovered and identified, or such matters are subject to conditions and agreements, for instance, situations which do not have any real essence and rational basis. On the contrary they are dependent on agreement. In cases where there are supportive and overall agreements it is considered that human wisdom and conscience would realize them. In case where such overall agreements do not exist, there is a need for enacted laws so that peoples right and duties are determined through them.
Such a tendency existed since long amongst the Sophists who believed that right and justice, as well as all other moral and legal matters were subject to public opinion. Their most well known aim is that man is the standard of everything. From the writings related to Plato it appears that the major portion of Socrates discourses with Sophists related to moral and legal subjects.
But this tendency declined with the flourishing of the philosophies of Plato and Aristotle. They could not get any renowned supporter for many a centuries. It was only after the renaissance and particularly during the days of Hume, the famous septic British philosopher that this way of thinking came to surface with fresh prestige and dignity. Gradually the number of people contributing to this philosophy increased. Presently the historical and positivist schools of law, which have attained significant reputation in international legal circles, are more or less, fed through this source.
In reply to those who contribute to this tendency, it may be said that if rights did not have rational and realistic base, the relationship of contradictory and antithetical laws with the welfare and well being of the people should have been uniform, whether people liked these laws or adopted laws other than these. Innumerable experiences in addition to ones reason and wisdom indicate that many of the enacted laws have been to the disadvantage of society. Legislators have realized their mistakes after sometime and resorted to set them right. This is the best witness to the fact that irrespective of people’s inclination and despite lawmakers’ views, real interests and essence do exist which may occasionally be in line with enacted laws and at times opposed to it.
But this summary reply is not sufficient to remove all doubts which arise in this regard. It is necessary that at least the most important of such doubts should be examined and dealt with.
