Alhassanain(p) Network for Heritage and Islamic Thought

NATURAL POSTULATES OF FAMILY RIGHTS

We have said that man enjoys a sort of innate dignity. The very nature of his creation has bestowed on him a number of inalienable and untransferable rights and freedoms. This is the spirit and basis of the Universal Declaration of Human Rights.

Islam and the philosophies of the East support this spirit. What is inconsistent with the basis of the Declaration, is the way in which the various systems of Western philosophy interpret the origin and nature of man.

It is evident that the only authoritative source of the knowledge of human rights is the great and valuable book of nature itself. Only by referring to the pages of this great book can we find out the rights which are really common to all mankind, and also ascertain the comparative positions of the rights of man and woman.

It is amazing that certain simple-minded people do not recognise this great source. According to them, the only reliable source is the body of those few world-dominating people who had a hand in drafting this Declaration. Though they themselves practically may not adhere much to its contents but others have no right to dispute. But we, in the name of these very human rights, believe that we have a right to differ. In our view, the only authoritative source is nature itself which may be regarded as a divine book.

We seek the indulgence of the readers, because we have to raise certain questions which are somewhat philosophical and apparently dry. They may even be boring to some readers. We might have avoided such questions, but the subject of the rights of woman is so closely related to them that it is not possible to leave them out altogether.

THE RELATIONSHIP BETWEEN NATURAL RIGHTS AND THE AIMS OF NATURE

In our view, natural and inherent rights have arisen from the divine arrangement according to which the creative machinery, keeping in view its aims, is pushing forward all existing things towards that state of perfection, the capability of which is already hidden in their very making.

Every natural capability is the basis of one natural right and, at the same time, a natural authority for the implementation of that right. For example, every human child has a right to learn and to go to school, but a lamb has no such rights. Why is it so?

It is because a child has the capability of learning and growing wiser, which a lamb lacks. The creative machinery has put the authority for this right within the structure of man, but not in that of sheep. Similar is the case with the right of thinking, voting and having free will.

Some people think that the theory of natural rights and the idea that nature has accorded any special rights to human beings are preposterous and selfish claims. In fact, there is no difference in regard to rights between human beings and non-human beings.

But that is not the reality. Natural capabilities are different. Nature has put every species of all that exists in a particular orbit, and it can prosper only if it moves within its natural limits. The Creator has done so purposely, and this arrangement is not the result of any chance.

The basis of the family rights, which is the point under consideration, should be looked for in nature, like that of all other natural rights. If we look at the natural capabilities of man and woman, we can easily find out whether they should or should not have similar rights and obligations. It should be remembered, as already pointed out, that the controversial point is the similarity of their rights and not the equality of their rights.

SOCIAL RIGHTS

The position of human beings, in regard to their social rights other than family rights, is not always the same. In certain cases they enjoy similar rights, but in certain others they have dissimilar, but equal rights. In the society elementary rights are common to all. Everybody, for example, has a right to utilise his or her talents, to work and take part in the competition of life, to be a candidate for a social post and to secure it by lawful means, and to show his or her practical and intellectual worth.

But this very equality of all in regard to elementary rights puts them in an unequal position with regard to acquired rights. For example, everybody has a right to work and take part in the competition of life, but, as far as the actual performance of work is concerned, all cannot acquit themselves equally well. Some are more capable and others are less. Similarly, some are more efficient and some are less. Again, some persons are more knowledgeable, more competent, more efficient and more suitable than some others. Naturally their acquired rights cannot be similar. To try to make their acquired rights as similar as their elementary rights will be nothing but sheer injustice.

The reason why all human beings have equal and similar rights is that a study of human affairs proves that nobody has been created a boss or a subordinate. Nobody is born a worker, an artisan, a teacher, an officer, a soldier or a minister. These various positions and grades are a part of acquired rights. Individuals have to acquire them in accordance with their ability, talent, effort and exertion.

Here lies the difference between the social life of human beings and that of such gregarious animals as bees The formations of the life of the latter are a hundred per cent natural. Various functions and duties have been distributed among them by nature itself. Some of them have been created chiefs, and others subordinates. Some of them are born as engineers, some as administrative officials and others as simple workers. But the story of the life of human beings is quite different.

That is why some intellectuals have entirely denied the old philosophical theory that man is social by nature, and have presumed that the human society is purely contractual.

FAMILY RIGHTS

This much was about non-domestic society. But what about domestic society? Do all the individuals in a domestic society also have a similar position in regard to their acquired rights, or is the case of the domestic society, which consists of wife and husband, parents and children and brothers and sisters different, and is there a special natural law in respect of domestic or family rights?

In this case there exist two presumptions. One of them is that the relations between wife and husband or between parents and children are like all other social relations. Their co-operation with one another is similar to that of a body of individuals, in national and governmental establishments. Such relations do not mean that some individuals inherently have any special position. It is only due to an acquired position that one is a boss and the other is a subordinate; one gives the orders and the other receives them; one has a higher monthly income and the other a lower. To be a husband or a wife or to be a father, a mother or a child also does not mean that everyone of them inherently holds a special position. It is their acquired status that determines their position in relations to each other.

The theory of the similarity of family rights between man and woman (wrongly called equality of rights) is based on this very presumption. According to this theory, man and woman take part in family life with a similar capacity, similar needs and similar inherent rights. Hence, their family rights also must be organised on the basis of similarity and likeness.

According to another presumption even their natural elementary rights vary. A husband as such has certain rights and obligations and a wife as such has certain other rights and obligations. The same is the case with a father, a mother and a child. In any case, the domestic society is quite different from any other social organisation. It is this presumption, on which the theory of dissimilarity of family rights between man and woman is based and which has been accepted by Islam.

Now let us see which one of the above two presumptions is correct and how we can determine its correctness.

NATURAL POSTULATES OF FAMILY RIGHTS

To arrive at the right conclusion, the readers may keep in mind the following points already discussed in the preceding chapter:

(1) Natural rights have emerged from the fact that nature has a definite aim and, keeping that aim in view, it has invested all living beings with certain capabilities, and has bestowed on them certain rights.

(2) Man as such enjoys certain rights known as human rights, which are not enjoyed by animals.

(3) To know natural rights and their characteristics, reference should be made to nature itself. Every natural capability is an authority for a natural right.

(4) All human beings, as members of a civil society, have equal and similar natural rights, but they differ in regard to acquired rights which depend on their work, accomplishments and participation in the competition of life.

(5) The reason why all human beings in a civil society have equal and similar natural rights is that a study of human nature has made it clear that none of them is born as a boss or a subordinate, as an employer or as an employee, as a ruler or as a subject or as a commander or a mere soldier. The case of man is different from that of such gregarious animals as bees. Formations of life of human beings are not constituted by nature, nor has nature allotted various jobs and posts to individuals.

(6) The theory of the similarity of the family rights of man and woman is based on the presumption that the domestic society is just like any civil society. All members of a family live with similar capabilities and similar needs. Nature has bestowed on them similar rights. The law of creation has not fixed for them any particular formation, nor has it allotted them different duties and different roles.

As for the theory of non-similarity of family rights, it is based on the presumption that the case of the domestic society is different from that of a civil society. Man and woman do not have similar capabilities and similar needs. The law of creation has placed them in dissimilar positions, and has visualised a distinct role for each of them.

Now let us see which of the two theories is correct, and why.

The issue can be decided easily if we use the criterion already mentioned and take into consideration the capabilities and needs of the two sexes, which form the natural authority for claiming natural rights.

IS THE FAMILY LIFE NATURAL OR CONTRACTUAL?

We have mentioned before that there are two views about the social life of man. Some believe that man is social by nature, whereas some others hold that social life is a contractual matter and this life has been chosen by man of his own accord under the influence of compelling factors. But these factors are external and not internal.

Anyhow, as far as the domestic life of human beings is concerned, more than one view does not exist. All agree that the domestic life is purely natural. Man is born domestic by nature. There can be no two opinions about this.

Even certain animals, like pigeons and some insects, which live in pairs, though they lead no social life at all, have a sort of conjugal life.

Hence, the case of domestic life is different from social life. Nature has taken measures to the effect that man and certain animals tend, by instinct, to lead a domestic life, form a family and have children.

The life of the ancient man, whether it has a matriarchal form or a patriarchal one, was always domestic.

THEORY OF FOUR PERIODS

In respect of ownership of property this fact is admitted by all that in the beginning the property was vested in the community and individual ownership was a later development. But that has never been the case with sex. The reason why ownership in the beginning had a socialistic aspect is that life at that time was tribal and the whole tribe formed one family. The members of the tribe, who lived together had joint-family sentiments. That is why the property was vested in the whole tribe. In the primitive society of the early periods there existed no law or custom which could determine the responsibility of man and woman to each other. It was only nature and natural feelings which made them adhere to certain duties and to respect certain rights. Even in these circumstances, they never indulged in unrestricted sexual relations. Those animals also which live in pairs, though they have no social and contractual law, observe the natural law of rights and obligations, and as such their sexual life is not unrestricted.

Mrs. Mehr Angiz Manuchehriyan in the preface of her book, "Comments on the Constitution and Civil law of Iran" says:

From a sociological point of view, the life of man and woman in different parts of the world is passing through one of the following four stages:

(1) Natural stage

(2) Stage of the domination of man

(3) Stage of the protest by women and

(4) Stage of the equality of rights between man and woman. She further says that in the first stage man and woman mix with each other without any restriction.

Sociology does not accept this view at all. What sociology recognises, at the most, is that it is customary among certain primitive tribes that several brothers jointly marry several sisters and all the brothers cohabit with all the sisters. The children belong to all of them, jointly. Another custom is that the boys and the girls, before they are married, have no restrictions. It is marriage alone which places restrictions on them. These are only two known customs. Anyhow, if there is any primitive tribe which goes beyond these limits and allows more unrestricted sex relations its case is exceptional and abnormal.

Will Durant in his book, "History of Civilisation", Vol. I, says: "Marriage is an invention of our animal ancestors. Among certain kinds of birds it appears to be a fact that each bird keeps itself confined to its mate. Among gorillas and orangutans contact between a male and a female continues till the new-born grows up. In many respects this contact resembles the relation between a man and a woman. Whenever a female tries to get close to another male, she is severely rebuked by its mate. The orang-utans of Borneo, live in families consisting of a male, a female and the young. It is usual, with the gorillas, that father and mother sit under the trees and eat fruit while their young ones romp on the trees around them. The history of conjugality is older than the appearance of man. There are few societies where conjugality does not exist. Anyhow, if one tries he may find a few of them".

What we mean to emphasise is that the family feelings are natural and instinctive with human beings, and are not a product of civilisation and habit. Many animals also instinctively have such feelings.

That is why, at no time in history have human males and females lived together without any restriction and restraint. Even those who claim the existence of financial communism in the primitive stages do not claim the existence of sexual communism.

The theory of the four periods of relations between man and woman is only a puerile imitation of the four periods of ownership, in which the socialists believe. They hold that in regard to ownership man has passed through four stages: the stages of primitive socialism, feudalism, capitalism and scientific socialism, which is a return to the primitive socialism on a higher level.

It is gratifying that Mrs. Manuchehriyan calls the fourth period of the relations between man and woman the period of equality in rights, and does not call it a return to primitive socialism. Here, she has not followed the example of the socialists, though she maintains that there is much in common between the fourth period and the first period. She says that the fourth period resembles the first period to a great extent, because, in both of them, man and woman live together without either of them exercising any authority or superiority over the other.

We are still unable to understand what she means exactly by saying 'resembles to a great extent'. If she means that during the fourth period all restrictions will gradually disappear and family life will be abrogated, then what she means by equality of rights, of which she is an enthusiastic supporter, is quite different from what the other supporters of equality of rights demand, and the idea may even be disgusting to them.

Now let us turn our attention to the nature of the family rights of man and woman. In this connection, we must keep two points in mind. One is whether or not the nature of woman is different from that of man. In other words, whether the difference between man and woman is confined to their r~ productive system, or goes deeper than that.

The second point is that in case there are other differences also, whether these differences are such that they do affect their rights and obligations, or they are of the kind of difference of race and colour, which have no connection with the nature of human rights.

WOMAN IN NATURE

As for the first point, we do not think that it is debatable. Everybody who has made some study in this respect knows that the differences between man and woman are not confined to their reproductive systems. The only question is whether or not these differences affect the determination of their rights and obligations.

The European scientists and investigators have thrown ample light on the first point, and their deep biological, psycho-logical and sociological studies have not left the least doubt about it. But what has not attracted enough attention of these scholars is the fact that the differences between man and woman affect their family rights and obligations, and place them in dissimilar positions with regard to each other.

The world famous French physiologist, surgeon and biologist, Alexis Carrel, in his very excellent book, 'Man, the Unknown Being' admits that, according to the law of creation, man and woman have been created differently, and that their differences make their rights and obligations different.

In this book he has included a chapter under the heading, Sexual Functions and Genetics". In it he says: "The testicles and the ovaries have vast functions. They not only produce male and female cells, the union of which brings a new human being into existence, but also secrete into the blood those fluids which give male and female characteristics to our feelings and to the tissues and organs of our body. It is the secretion of the testicles that generates boldness, zeal and recklessness. These are the same characteristics which distinguish a fighting bull from an ox. The ovary also affects the woman's being in the same way.

... The difference which exists between man and woman, is not related solely to the shape of their genital organs, or woman's having a uterus and giving birth to children and their special method of education, but is the result of a deeper cause. It emerges from the chemicals which the genital glands secrete into the blood.

It is owing to the disregard of this important point that the supporters of woman's movement think that both the sexes can receive the same kind of education and training and may undertake the same kind of education and training and may undertake the same professions and responsibilities. In fact, woman differs from man in many respects. Every cell of the human body and all the organic systems, especially the muscular system, are stamped with the mark of sex. The physiological laws also, like astronomical laws, are stable and unalterable. Human tendencies can have no effect on them. We have to accept them as they are. The women should try to develop their own talents and should advance in the direction which suits their innate character, without blindly imitating men. It is their duty to make a greater contribution than man, to the development of humanity. They should not take their duties lightly".

Carrel, after explaining the development of spermatozoon and ovum and the way their union takes place, points out that the existence of female is necessary for procreation, but not the existence of a male. He adds that pregnancy completes the body and the soul of a woman. In the end of the chapter he says: "We should not visualise for young girls the same way of thinking, the same kind of life and the same aspirations and ideals as we normally visualise for young boys. The education and training experts must keep in view the organic and psychological differences and natural functions of man and woman. Attention to this basic point is of the utmost importance for the future of our civilisation".

As you may observe, this great scientist lays stress on many differences between man and woman and believes that these differences place them in dissimilar positions.

In the following chapter also, we shall quote the views of the scientists on this point, and then we shall come to the conclusion in what respects man and woman have similar capabilities and needs, and hence should have similar rights and obligations, and in what respects they have dissimilar positions and hence should have dissimilar rights and obligations.

That part of the book will be most important for the study and determination of the family rights and obligations of man and woman.