SIMILARITY, NO AND EQUALITY, YES
We have already said that in respect of the family relations and the rights of man and woman, Islam has a special philosophy of its own which is quite different from what was the practice, 1,400 years ago as well as what is practised today.
We have also said that it is not a debatable point whether man and woman are equal or not, as human beings, and whether their family rights should or should not be of equal value. From the Islamic point of view they are both human beings and, as such, enjoy equal rights.
The point which is worth considering is that man and woman, because of the sex difference, are dissimilar in many respects. Their very nature does not want them to be similar. This position demands that they should not be similar in respect of many rights, obligations, duties and retributions. In the West an attempt is being made at present to make their rights and obligations uniform, and to ignore their natural and innate differences. There lies the difference between the Islamic view and the Western system. In our country, the point at issue between the supporters of Islamic rights and the supporters of the Western system, is the question of uniformity and similarity of rights and not that of equality of rights between man and woman. Equality of rights is only a label which has been wrongly attached to this Western gift.
The present writer, in his writings and speeches, has always refrained from using this false label and has never condescended to give the name of equality to what is actually the theory of similarity of rights. The pre-2Oth century Europe is a clear example of injustice to woman. Till the beginning of the 20th century the woman of Europe was deprived of human rights, both practically and legally. She had rights neither equal to, nor similar to, those of man. It is during the past decades that, as the result of a hasty movement, more or less similar rights have been granted to her, but she has not yet been able to secure equal rights in conformity with her natural position and physical and spiritual needs. If woman wants equality of rights and domestic happiness, she must discard the idea of similarity of rights. That is the only way of establishing cordiality between man and woman. In that case, man will not only accept her equality of rights, but will also be willing to give her, in some cases, more rights without any question of deceiving her.
Similarly, we do not claim that in a Muslim society woman actually enjoys rights equal to those of man. We have often said that it is essential that the position of woman should be reviewed, and the abundant rights which Islam has granted her and which throughout history have been denied to her, should be restored to her. Anyhow, we must not blindly imitate the Western way of life, which has produced catastrophic results in the West itself. What we claim is that non-similarity of rights between man and woman, within such limits as are required by the disparity between their natures, is more in keeping with justice. It meets the requirement of natural rights better, ensures domestic happiness better and pushes society forward on the path of progress better.
It may be remembered that we claim that natural justice demands that, in certain cases, there should be a dissimilarity between the rights of man and those of woman. Being related to the philosophy of rights, this question has a hundred percent philosophical aspect. It is also connected with the principle of justice and equity, a cardinal principle of Islamic law and Islamic scholasticism. It is the principle of equity that has brought into existence the doctrine of conformity between reason and Divine law. According to the Islamic or at least the Shiah jurisprudence, if it is proved that equity demands that in a certain case the law should have a particular form, that very form will be the legal form irrespective of any other argument to the contrary, for according to the basic teachings of Islam the law must, in no case, infringe natural justice and basic rights. The Muslim scholars, by expounding the principle of equity, laid the foundation of the philosophy of rights, though following some unhappy historical events they could not continue the good work started by them. It was the Muslims who, for the first time, paid attention to the question of human rights and the principle of equity, and set them forth as original and self-existing principles unaffected by any contractual law. The Muslims were the pioneers in the field of the inherent natural rights.
But it was so destined that they could not continue their work and ultimately, after eight centuries, it was further developed by European intellectuals and philosophers, who appropriated the credit for it. The Europeans brought social, political and economic philosophies into existence, and acquainted the individuals, societies and nations with the value of life and human rights.
In our opinion, apart from historical reasons, there was a psychological and regional reason too, which prevented the Muslim-East from pursuing the question of inherent rights.
It is one of the differences between the spirit of the East and that of the West. The East is enamoured of morals and the West of rights. The man of the East is more sentimental and believes that he should be forgiving, chivalrous and philanthropic. But the man of the West thinks that as a human being he should know and defend his rights and must not allow others to violate them.
Humanity needs morals as well as rights. Humanism is concerned with both rights and morals. Neither of them alone is the criterion of high human qualities.
Islam has had and still has the big distinction of simultaneously paying attention to both the morals and the rights. In Islam sincerity, forgiveness and virtue are sacred moral qualities. At the same time consciousness of one's rights and the preparedness to defend them, are also equally sacred and human.
Nevertheless, the Eastern spirit has been dominant with the Muslims, and consequently, though in the beginning both morals and rights engaged their attention, gradually the field of their activity became confined to morals.
Anyhow, at present we are concerned with the question of rights which may also be a philosophical question and needs to be dealt with at length. It is more closely related to the real meaning of justice and the true nature of rights - justice and rights which existed even when there was still no law in the world, and whose meanings cannot be changed by any law.
Montesquieu says: "Before laws were made by man, just human relations were possible on the basis of the laws which governed the relations among all existing things. It was the existence of these relations which led to the framing of laws. To say that prior to the framing of laws by man no just or unjust order existed to regulate human relations is tantamount to saying that before a circle is actually drawn its radii are not equal".
Herbert Spencer says: "Justice is interwoven with something other than feelings, namely the natural rights of human beings. We must respect the natural rights so that justice may have a practical existence".
Most of the European intellectuals are of the view that all declarations of human rights have been derived from natural rights. In other words, the theory of natural rights has assumed the form of the declarations of rights.
As we know, Montesquieu, Spencer etc. have said the same thing about justice as the scholastic philosophers of Islam have said about the rational basis of good and evil and the principle of equity. Among the Muslims there have been scholars who have denied the existence of inherent rights and maintained that justice was contractual. Similarly, among the Europeans also this belief has existed. The English philosopher, Thomas Hobbes denied justice as a reality.
DECLARATION OF HUMAN RIGHTS IS A PHILOSOPHY AND NOT A LAW
It is ridiculous to say that as the Universal Declaration of Human Rights, which guarantees equality of rights between man and woman, has been ratified officially by the Parliament of a particular country, men and women of that country are supposed to have equal rights.
After all, it is not within the jurisdiction of the Parliament of any country to ratify or reject the text of the Declaration, for its contents, not being of such contractual nature, do not fall within its legislative authority.
The Universal Declaration deals with the inherent, inalienable and indefeasible rights of the human beings and, as claimed by the Declaration itself, these rights are an integral part of human dignity and have been determined by the powerful hand of nature itself. In other words, these rights have been granted to human beings by the same source which gave them intellect, will and dignity.
If it is so, the nature of the contents of the Declaration is such that a human authority can neither lay them down nor do away with them. Then how can the question of their ratification by a legislative body arise?
In fact, the Declaration of Human Rights is a philosophy and not a law. As such, it should be ratified by the philosophers and not by the legislators. No Parliament can, by debating and voting, lay down a philosophy. Otherwise, why should a bill enunciating Einstein's theory of relativity or the theory of the existence of life on some other planets not be introduced in some Parliament and passed by that august body? In reality, a natural law cannot be passed or rejected like a contractual law. To pass a natural law will be tantamount to the passing of a law to the effect that the grafting of a pear-tree on an apple-tree will be successful, but on a mulberry-tree it will not be successful.
Whenever any declaration of rights is issued by a group of philosophers, every nation should refer it to its own thinkers and philosophers, and if it is approved by them only then all members of that nation are bound to abide by its provisions as extra legal facts. The legislative authority will also be bound not to enact any law which is inconsistent with them.
But other nations will not be bound to observe them as long as it is not proved, according to their own view, that such a right exists in nature. Further, as this question is not subject to test and trial, it does not require any such equipment or laboratory etc. as may be available to the Europeans only. It is a question of philosophy whose tools are the brain, reason and an argumentative power.
Even if some other nations are compelled to follow the majority of other nations in the matter of logic and philosophy and do not feel that they are competent enough to do any philosophical thinking themselves we Muslims must not follow their example. We have shown in the past that we are highly capable of dealing with logical and philosophical questions. Why should we follow others today?
It is amazing that while the Muslim intellectuals attach so much importance to the principle of justice and inherent rights and accept as religious law, without any hesitation and without any further argument, all that stands to reason, today things have deteriorated to such extent that we want the members of a legislative body to ratify the acknowledgement of human rights!
PHILOSOPHY CANNOT BE PROVED BY FILLING COUPONS
More ridiculous than this is to try to decide the question of human rights by arranging the opinion polls of young boys and girls. Is it sensible to print coupons and ask young boys and girls to fill them, to find out what is the nature of human rights and whether they are of one or two kinds?
Anyhow, we want to study the question of woman's rights in a systematic and philosophical way, and in the light of inherent human rights. We would like to see whether the principles, which demand that all mankind should enjoy inherent and God-given rights, make it necessary or not that man and woman should have the same position in respect of their rights. We request the intellectuals, the thinkers and the lawyers of our country, who may be the only competent authority to express an opinion on such questions and to look into our arguments with a critical eye. We shall be highly obliged if they make authoritative comments in their favour or against them.
To deal with this question, it is necessary first to discuss the basis of human rights. The rights of man and woman will be discussed subsequently. In this context, it will not be out of place to refer briefly to the liberal movements of the past few centuries, which have led to the idea of equality between the rights of man and woman.
A BRIEF GLANCE AT THE HISTORY OF WOMEN'S RIGHTS IN EUROPE
The talk of human rights began in the 17th century. The writers and thinkers of the 17th and the 18th centuries, with great perseverance, gave publicity to their ideas about natural and indefeasible rights. Jean-Jacques Rousseau, Voltaire and Montesquieu belong to this group of thinkers and writers. The first practical result of the spread of their ideas was a long-drawn struggle between the rulers and the people of England. In 1688 the English people succeeded in making the King agree to grant them certain political and social rights advanced by them in the Charter, known as the Bill of Rights.
Another outstanding result of the spread of these ideas was the American War of Independence against England. Thirteen English colonies in North America revolted, following the imposition of heavy taxes, and eventually gained their independence. In 1776 a conference was held in Philadelphia which issued the Declaration of Independence. Its preamble said: "We hold these truths to be self-evident that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among them are life, liberty and the pursuit of happiness. That to secure these rights, governments are instituted among men, deriving their justice power from the consent of the governed; that whenever any form of government becomes destructive of these ends, it is the right of the people to alter or abolish it, and to institute a new government, laying its foundation on such principles and organising its powers in such form, as to them shall seem most likely to effect their safety and happiness".
As regards what is known as the Declaration of Human Rights, it was issued after the French Revolution. It contains certain universal principles which are considered to be an integral part of the French Constitution. The Declaration consists of a preamble and 17 clauses. The first clause says that all human beings are born free and remain free throughout their life. They are equal to one another in the matter of rights.
In the 19th century new developments took place and new ideas emerged in the field of human rights in economic, social and political matters. These resulted in the emergence of socialism, participation of the workers in the profits, and the shifting of the government from the hands of the capitalists to the labour.
Up to the beginning of the 20th century all discussions on human rights were centred upon the rights of the people versus the governments, or the rights of the labouring classes as against the employers and the landlords.
In the 20th century, the question of the rights of woman vis-a-vis those of man cropped up. It was only in the beginning of the 20th century that Britain, which is known as the oldest democracy, recognised the equality of rights between man and woman. Though the United States had, in general terms, recognised human rights in the 18th century in the course of the Declaration of Independence, yet universal suffrage was granted only in 1920. France also extended suffrage to woman only from the 20th century.
Somehow or the other in the 20th century large sections of people throughout the world came to support a deep change in the relations between man and woman, from the viewpoint of rights and obligations. According to them the purpose of social justice could not be achieved by change in the relation between the nations and between the workers and the employers and capitalists so long as the relations of man and woman with regard to their rights were not considered.
That is why the preamble of the Universal Declaration of Human Rights, issued by the United Nations in 1948, says:
"Whereas the peoples dignity of individual and equality of rights between man and woman...."
The crisis caused by the development of machines in the 19th and the 20th centuries, and the consequent pitiable condition of the workers, especially the female workers, focused the attention on the plight of woman and that is why attention was paid to the question of their rights. A historian says: "As long as the governments did not pay attention to the plight of the workers and the behaviour of their employers, the capitalists did whatever they liked. The mill-owners used to employ women and children at very meagre wages and, as their working hours were too long, most of them suffered from various diseases and died at a young age".
This was the brief history of the Movement for Human Rights in Europe. As we know, all those clauses of the Declaration of Human Rights, which are new to the Europeans, had been visualised by Islam 14 centuries ago, and some Arab and Iranian intellectuals in their books have made a comparative study of the teachings of Islam and the provisions of these declarations. There still exists some difference between certain parts of these declarations and what Islam has taught. This is an interesting subject. For example, Islam accepts equality between the rights of man and woman, but it does not accept similarity or uniformity of their rights.
