The Development Of The Concept Of Human Rights
Ayatullah Muhammad ‘Ali Taskhiri
To avoid any possible ambiguity, which might occur in discussing this issue, all relevant terms should be first defined. It is evident that the issue in question finds deeper overtones when it is discussed in legal terms, especially if this concept is to correspond with international criteria.
The Relation between two Philosophical and Social Issues
In point of fact, for one who wishes to study the concepts of the Universal Declaration of Human Rights, it might seem strange to encounter these termss repeatedly without having any explanation for the truth of their intended meanings.
What is right? Who is this human person we are speaking of? What is the inherent dignity of man? What is meant by human family, fraternity, equality, friendly relationship, human morale and the likes?
This ambiguity becomes clear when we realize that this Universal Declaration is meant to be concerned with man’s life regardless of philosophical aspects. It is due to the impact of capitalistic tendencies that this issue discusses social problems aside from philosophical issues, alleging that there is no connection between these two whereas we presume there is a logical relationship between these two issues (social and philosophical). Ideology no matter of what nature it is gains root in realities and man does not know what he should be unless he figures out who has entity and what the necessities of truth are.
This concept is recognized when we presume that man believes in the divinity of the Almighty and agrees that Allah has sent the holy Prophet and his manifest faith, Islam for the guidance of mankind. Having acquired knowledge of this issue, man will face two choices: he either embraces the Islamic ideology and organizes his affairs on a basis prescribed by it or casts off his past thoughts after acquiring certitude. Yes, if man conceives materialistic ideas in his mind, he will have vicarious ideologies and different gods before him, each one of which draws him to his own direction,
“Indeed, We have struck for the people in this Qur’an every manner of similitude; haply they will remember.”
(Surah az-Zumar 39:27)
Hence, he will find no justification for his inclinations towards any ideology whatsoever. The late Ayatullah Mutahhari, the celebrated Muslim sage, states,
“The function of ideology is to create conceptions about the world. Ideology is practical philosophy and the conception of speculative philosophy. And practical knowledge is based on a certain kind of speculative philosophy.”
Martyr Sadr states:
“The social side of life is associated with the facts of life not properly manifested, save for the time when it is laid upon a basis which explains its existence, facts and limits; the capitalistic system has lost this basis, resorting to tricks, deception or impatience. Besides, the social side of life is blockaded, and the social issue is studied in isolation.”
The study of the Universal Declaration of Human Rights shows that this point is totally ignored while it frequently talks about the terms mentioned above. At all events, we should first know what is right and who is the human person so that we can recognize the changes in human rights in a logical manner.
When we refer to the root of the word right, we realize that the minimum implication of the word is that it is not liable to any change. Hence, only the Almighty is right and knows no change. The news corresponding with facts is right; there is no change in it. Despite the futile claims of the relativists, this concept is realistic and there is no place for mental considerations thereof. However, based on this, the concept of consideration is removed and this term has taken its place. It is used in social and individual relations. Thus, social rights should be based on the following two elements:
I They should emanate from realism.
2. They should have religious and common agreement so that social life may be organised.
It may be said that the first factor is per se sufficient to prove truth but the social reflection causes the second actor to exist. Thus, right is a natural constant need around which consideration legally exists.
However, we cannot view man as a material being created by nature and shaped by the environment. According to Durkheim, what gives shape to man is nothing but social reflexes. According to Freud, man is the product of his complexes. Marx holds that man is a socio-economic product. According to Barkley, man is the product of mental beliefs. Other material ideas are similar.
Considering these opinions, one cannot possibly talk about the rights of such a man. Can we talk about the rights of iron, wood and water? Therefore, it is necessary for us to believe that man is totally different from other things, has his capabilities and inherent motivations, which he seeks under ceratain circumstances. Besides, he goes through the stages of growth and development as pre-planned. It is only under such circumstances that one can conclude that equal rights may be derived.
With a brief interpretation we must first believe in human innate disposition so that we may be able to talk of the concepts of human rights, justice, dignity, equality and human spirit. If we do not believe in this pure Islamic concept, man’s innate disposition, it would be meaningless to talk of self-evident concepts, morality, and motivations.
Thus, there must exist a certain criterion about man so that he can develop his spiritual faculty and go beyond his Self. Hence, the man for whom one can consider rights is one naturally endowed with inborn elements. These elements have a certain procedure and if man goes beyond them, he will lose his human attributes:
“Be not as those who forgot God, so He caused them to forget their souls-those, they are the ungodly;”
(Surah al-Hashr 59:19)
“They are like cattle; nay, rather, they are further astray.”
(Surah al-A’raf 7:179)
If man is treated in a manner contrary to his essence, that treatment will be inhumane. For example, we see that when Pharaoh weakened his people and deprived them of their rights, he was criticised for the injustice he did to people.
“Thus did Pharaoh persuade his people to make light [of Moses] and they obeyed him; verily they were a transgressing people.”
(Surah az-Zukhruf 43:54)
Pharaoh took away the natural values and rights of people, and so their rights were violated. With the violation of their rights, the people become a transgressing people, a people who exceed the bounds of their humanity.
Thus, we come to understand man and it is not possible to discuss human rights or the issue of declarations of rights unless on the basis of the understanding of human nature. Rights that cannot be realized through materialistic thought.
In the light of what we have come to know by the previous discussion, human rights may be said to be the natural conditions innately needed by man in order to proceed on his natural course of evolution towards perfection. On this basis, human rights go beyond what is allowed by others who have discussed rights, so that it must include such things as the right to worship, to be religious, the right to observe the desires of one’s own nature as a creature of God, and the right to attach oneself to true religions.
Rights are the basis for important religious discussion of the need for prophets. Surely, religion has done a favor to man, and surely Allah is the source of favor and mercy for the raising of the prophets was both necessary and a favor.
Criteria for Recognizing Human Rights
So far such criteria as customs, reason, law, religion, corruption, pleasure and pain, emotions and the interpretation of justice have been discussed each of which is taken to be the source of rights or an element of the source of rights, or of their appearance or necessary conditions for their appearance. Before determining the proper criteria of rights, two conditions should be mentioned.
First, what has been mentioned is the concept of man and his rights. Second, the criteria for rights must be universal and impartial with respect to color, race and social status or else the connection with human development and what is essential in human nature will be broken off. Which criteria can indicate that man’s natural and constant needs are essential to man and will allow for this development? The only factor we can find is the human conscience in the general sense, which includes both conscious awareness and natural conscience.
Even if we limit ourselves to moral conscience, which is something everyone feels, we will be able to discover the principles of human rights without any doubt, although there may remain differences about how they are to be implemented and applied. There are cases which the moral conscience of man is certain. Conscience is able to uncover detailed features of rights. On the other hand, if conscience is ignored, we will be left with the idea of man as nothing more than his body and will have no standards by which to discover the essence of humanity. A body without conscience has no humanity; it is like a piece of wood for which there can be no question of rights.
Let us then turn to the question of what conscience is. Perhaps we cannot provide a sound proof or demonstration to convince those who would deny its existence but it is through the conscience that we discover the basic grounds for all knowledge. Also, it is through conscience that we recognize good and evil accepted by all and are able to erect the social structures founded on such recognition.
Perhaps those who have written the Universal Declaration of Human Rights have employed the innate elements of conscience, but unconsciously isolated the issue of rights from that of conscience. It is conscience which emphasizes that some things are good or bad, some actions just or unjust. Conscience affirms the right to life, the right of freedom, and the right of human dignity and equality with regard to race or color. These are recognized by conscience as general human rights.
Likewise, conscience is able to recognize more specific rights of mothers, the rights of women and of men and of nations. There are two ways to come to understand the ramifications of rights. First, one may study and observe all human behavior in detail, so that the conscience may make judgements where appropriate. It may be practically impossible to carry out such a study in the detail necessary to understand the common features of humanity, and the needs arising under specific circumstances. Second, one may seek the guidance of religion. Religion provides directions for the human intellect so that he may discover the secrets of the enchanting system of being and the Absolute Perfect Being who created this existence and guides it.
This Absolute Being innately rich and aware, extant and subtle, has raised the prophets in accordance with His mercy to provide a religion, to make evident the detailed features of social rights as an optimal way to realize the development and perfection of mankind. But if someone rejects religious beliefs or seeks to let the inner essence of man suffice as a guide, the shortcomings that ensue will prevent him from a logical understanding of human rights and morality.
The Historical Course of Human Rights
It is generally accepted that religion and man’s moral conscience have had a profound impact on the course of human rights through history-even at the level of myths.
The late Ayatullah Ja’fari has pointed out that it is obvious that the aim of human relations is to create a practical respect for human rights in the minds of the progressive thinkers, and this is why we see some such expressions appear in the form of moral or legal considerations and others as cultural factors common among different nations and races. (1)
George Sabyan states that in general, the Greeks of the fifth century BC believed that natural rights are constant and eternal, whereas man and his conditions are changeable; so, if we could discover this constant and unchangeable law, and make it cohere with human life, man’s activities would become logical and reasonable and evil and corruption would be diminished. In the light of this view, perfection would consist in adherence to the natural eternal law. The aim of this theory may be summarized as a search for the eternal among the changing and for unity among multiplicity. (2)
If we review the theories of philosophers and historians throughout history, we will encounter numerous expressions that manifest these features. In the same manner, Cicero emphasizes the fact that rights or laws are not based on the imagination, but on an eternal natural justice inherent in the human conscience. (3)
Historians and students of law have tended to ignore the influence of Islam over a prolonged period which continued up to the eighteenth century when the French jurists issued the Declaration of Human Rights of 28 August, 1789 which reflected the French constitution of 3 September 1791. After that they neglected the guiding light of Islam that provides the best detailed laws for man in the exalted teachings of the holy Qur’an and the noble traditions of the holy Prophet.
The light of Islam was the basic foundation for all approaches to the laws among the Muslims. The recent Cairo Declaration of Human Rights in Islam is merely a well-written form of that fundamental law. The historical and legal foundations for a proper understanding of human rights are to be found in the verses of the Qur’an such as these:
“And indeed, We have honored the children of Adam.”
(Surah al-Isra 17:70)
“O you men! Surely We have created you of a male and a female and made you tribes and families that you may know each other; surely the most honorable of you with Allah is the one among you most careful of his duty.”
(Surah al-Hujurat 49:30)
“He who murders a person it is as if he had murdered all mankind and he who saves a human life it is as if he had saved a whole nation.”
(Surah al-Ma’idah 5:32)
In addition to such verses, the traditions attributed to the great prophet and His Progeny have also had a deep influence on Islamic thought. However, if we want to study the recent course of legal thought, we must admit that the French declaration has had a tremendous impact although it also makes use of the British Universal Declaration of Human Rights and the American Declaration of Independence of thirteen colonies which had been composed thirteen years earlier.
In article one, it enunciates the right to freedom and equality, article two, the right to freedom, ownership, security, and defence against oppression, article three, granting people’s rights, article four, emphasis on non-belligerent personal freedoms, article five, granting the right to elimination inflicting injury, article six, the recognition of the participation in formulating laws for everyone, article seven, the right to equality before the law and impartiality of job, article eight, the declaration of prohibition of illegal punishments, article nine, the emphasis on justifying the convict until he is pronounced guilty, article ten, the freedom of opinion, article eleven, the freedom of expression, article twelve, the idea of guaranteeing the right to form armed forces, article thirteen, the legality of demanding tax for supporting the needs of this organization, article fourteen, the granting of the right of the supervision of people over professions, article sixteen, the credit of the societies that do not approve human rights, and emphasizing the principle of separation in societies in which there is no constitution, article seventeen, the illegality of confiscation of properties unless it is to the benefit of the common people.
Finally, after the Second World War, on December 17, the Universal Declaration of Human Rights was approved by the United Nations; in general, 48 member states accepted it and the communist countries (Russia, White Russia, Ukrain, Chekslovakia, Yuguslavia, and Poland), South Africa and Saudi Arabia refused to accept it.
Universal Declaration of Human Rights and the Cairo Declaration of Human rights in Islam: A Comparative Study
The articles set forth in the two declarations may be compared in the following way:
The Universal Declaration of Human Rights and the Cairo Declaration of Human Rights in Islam
Unfortunately, the Universal Declaration of Human Rights does not regard any relation between the reality and the society while the Islamic declaration has placed emphasis on this relation. Thus, it is logical in itself and the principles set therein.
The Universal Declaration proposes the following principles in its preamble:
1. The recognition of the inherent dignity and of the equal and inalienable right of all people as the foundation of freedom, justice, and peace in the world
2. The barbarous acts resulting from the official recognition of human rights
3. The advent of a new world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want as the highest aspiration of the people
4. The essentiality of preserving human rights so that they may not have recourse to rebellion against aggression and tyranny.
5. The essentiality to promote the development of friendly relations between nations and better standards of life
6. The promotion of universal respect for and observance of human rights and fundamental freedoms
7. The need for achieving a common understanding of these rights and freedoms
What is the inherent dignity of man? Is it innate? If such is the case, how can we propose this declaration before a world teeming with material thoughts contrary to the theory of innateness? What are the features distinguishing barbarous acts from human behavior? Can we come to an optimistic criterion without believing the theory of human development? Has there been any study on human desires to clarify that the desires are limited to freedom of expression and opinion and freedom from want and poverty? Is it right to limit the human desires for the freedom of expression? Are not the surface and the deep structure mixed up? Can we say that human desires should be derived from the necessary needs?
If such is the case, we shall say: does not man tend to come to the full understanding of the absolute being manifested through the general study of the history of man? Besides, is this man’s desire at stake of a multidimensional moral system? Where has it been talked of? Does letting individual freedoms not lead to the destruction of a large portion of the moral system?
Thus, a researcher cannot understand the relation between the surface structure and the deep structure concerning other principles set forth in the universal declaration of human rights but he can understand through other statements such as the essentiality of having recourse to rebellion against tyranny and oppression or the necessity of promoting friendly relations.
This declaration was proposed after the Second World War and the domination of the world’s great powers in which the US emerged victorious with the least material and spiritual loss while Europe was left fatigued. Proposing its philosophical history based on revolutionary theories, communism expanded its influence and its ideology instigated the common people.
While the world’s enthusiasm decreased for the new order and the man’s dream came true for the realization of his aspirations, all this required a humanitarian motto so that the US could introduce itself as the pioneer of peace and order in the world and extend its domination to the far reaches of the entire world. They thought that they could encourage people by granting them illusionary rights and freedoms. The General Assembly of the United Nations proposes the idea of equal vote between the United States and Burma while the domination of the superpowers is actualized through the right of veto. Undoubtedly, however, it was a great movement for the international confession to human rights. It is a case which cannot be denied despite its numerous shortcomings.
The Islamic Declaration of Human Rights
When we study the preamble, we realize that the relation between the two issues is so logical that it enables us to conclude the following principles easily:
1. Belief in the Almighty God and His attributes (creation, blessings, generosity, viceroydom, granting the earth to man, and love). All these are thoughts, which constitute the belief in the Almighty God, and human rights, enable us to enjoy all these rights.
2. The second article of the Islamic declaration states that Islam is the true religion for all mankind. It is the religion of breaking from the bonds; it is a religion of equality and justice. It combats all kinds of corruption and injustice and discrimination. The scholar should understand these important principles(the right to cooperation, the right of freedom, the right to rebel against tyranny)
3. Belief in the oneness of God (worshipping only the almighty God)
4. Islam protects religion, life, reason, property, decency and children.
5. The role of the Islamic civilization is introduced as the best people that have created a civilization for all mankind, a civilization binding the world to the hereafter and to knowledge and religion.
6. Belief in man’s participation in protecting human rights
7. Belief in man’s increasing need to protect religion
8. Belief that fundamental rights are parts of religion and protecting it is worship and being fanatic is considered wrong and each individual is as well as the conununity is responsible towards it. This is the foundation of individual and social responsibilities for the full realization of the principles set therein.
These are the firm foundations of the rights set forth in the Islamic Declaration of Human Rights and as we said before, these constitute the basis of human rights.
The Shortcomings of the Islamic Declaration of Human Rights
We believe that this requires reevaluation; so we shall point out the shortcomings in the hope that they will be removed:
1. The necessity of pointing to the divine attributes as the first principle including knowledge, power and life and these are important facts for understanding these rights; Islam attempts to confer these divine attributes on Muslims and particular rights are derived thereby.
2. The third principle mentioning divine unity should be placed before the second, which discusses Islam as a universal religion, and after the first, which discusses divine attributes. This ordering would seem more logical.
3. The fourth principle should be integrated within the third one and it should be shown how these particular rights are related to divine attributes. Islam offers a universal plan for the promotion of man: that is, for drawing him closer to God by conferring upon him attributes which are perfectly characterized by divinity. Hence, the program of Islam and the rights it advances for humanity are best understood in terms of the divine attributes.
4. The preamble to the Islamic declaration of human rights should be supplemented by a discussion of Islamic law and morality and their objectives.
5. It is fit to propose this declaration as truly universal for given the Islamic understanding of the essence of man, his innate needs and its realism about the human condition, there should be no doubt or hesitation about the fact that Islamic rights are capable of meeting the needs of all human beings anywhere in the world.
A Comparative Study
Before we embark on making a comparative study of the two declarations, we should pay attention to the principles set forth in the two declarations. Before understanding these rights, we have to state that the ordering of the principles is different in them. However, the important point lies in the ordering of the principles set forth in the Islamic declaration, which are effected in a more correct manner. This shows how perfect it is. On the other hand, some of these rights can be referred to particular and public cases. However, the inclusion of any principle in the declaration should be for the sake of the importance they attach to it.
Common Points In The Two Declarations
We can express the common points in the following way:
Both declarations lay emphasis on the right to life, freedom, security, rejection of torture and unjust punishment and ill treatment. They also agree on the right to hygiene, social services, respectable life and the prohibition of detention and exile exceeding the crime. They both emphasize on the social position of individuals and providing them with the best standards of life.
The two declarations stress that man is born free and cannot be held in captivity. Everyone are equal in rights, endowed with conscience and reason and should act in a spirit of brotherhood.
The two declarations emphasize on the equal rights of men and women in dignity and the necessity of having a proper social status for both men and women. Also, marriage between men and women should take place with the full consent of both parties and that the family is the fundamental unit of the society. Women have the right to enjoy the protection of the government and the society. It is also necessary as implied by the two declarations to provide the security of person, property, personality and family at internal and international level.
Also, the two declarations place stress on the education whose goal is to promote the personality of all the conununity members. Also, the consent of the parents in every affair is expressed in the two declarations.
The two declarations stress that human being is born free and no one can put him on slavery. All persons are legally equal and possess intellect and conscience (this is not a legal issue) and they shout cooperate on the bases of brotherhood.
The two declarations lay stress on freedom of thought and opinion and expression. They both claim that man has the right to enjoy the material and spiritual interests of any literary works of which he is the author. They have the right to choose any religion they desire. They have the right to enjoy freedom of thought as long as it does not hurt anyone. They have the right to a legal personality and freedom of movement and residence. They can seek political asylum provided that they have not committed a non-political crime.
The two declarations state that people are free to choose their own profession and that no one has the right to impose on others what they cannot do. The workers have equal wages and have the right to enjoy the advantages in time of unwilled unemployment, illness, physical mutilation, old age and celibacy.
The two declarations state that people are to be presumed innocent as long as their crime has not been proved. Crime is a personal matter and everyone has the right to have a just tribunal and the punishment is to be detennined by law.
Also, the two declarations agree on the prohibition of despotism and believe that any individual has the right to participate in the government. Equality should be realized before the law and the people should be allowed to take claims establish to the just courts. There is also the right to organize charity organization.
Finally, the two declarations emphasize that every human person is responsible to protect these rights and freedoms and must strive for promotion no one has the right to interfere in the freedom of others and cannot take advantage of them for his personal and social benefit.
Differences Between The Two Declarations
The difference between the two declarations can be explained in the following way:
1. The Islamic declaration makes a distinction between the dignity (which man acquires due to his being a human) and the acquired dignity (derived in the course of spiritual development). This is an important point ignored in the universal declaration of human rights. Thus, we consider it imperfect in this regard and believe that conscience makes a distinction between a great sage like Avicenna and an ordinary person w'ho has left nothing useful behind.
2. The Islamic declaration stresses the point that people are the servants of the Almighty God: This shows the perfect concept of this equality in dignity. Besides the relation of dignity in all aspects of life, all the servants of the Almighty are close to God and are equal in His eyes. However among the people there exists a spiritual competition to approach God through self-making by medium of opinion, true faith, virtuous acts effective in the realization the divine justice. However, the universal declaration has been incapable of understanding this relation.
3. The concept noted above may be seen in article two of the Islamic declaration. Life is a gift granted by the Almighty and consequently, its legal value has increased. Hence, it must be guarded and protected.
4. The human dignity must be protected even after death. For instance, Islam claims that slaughtering dogs is unlawful. The secret of this affair lies in moral principles.
However, there is no mention of these things in the universal declaration and this is its major shortcoming and the world attempted to eliminate this fault by an augmentation to the Geneva convention.
5. Article eight of the Islamic declaration places stress on the fame of man, a point stated in the universal declaration with the difference that in the Islamic declaration it is applicable after death as well, by protecting his corpse and grave.
6. The two declarations stress on family as the fundamental unit and the state and the community should defend it in every possible way, every man and woman have the right to found a family and limitations such as color, race and so on cannot prevent them from this. However, in this regard, there are differences between the two declarations which may be mentioned as follows:
A) The Islamic declaration believes that marriage is the foundation of family whereas there is no mention of it in the universal declaration.
B) The universal declaration regards equal rights for men and women which include alimony and divorce and such matters whereas the Islamic declaration makes a distinction between these affairs and emphasizes that women have certain rights which are in proportion to their duties and responsibilities. Women have financial independence, have the right to preserve their names and origins forever and the family expenses are on the shoulders of husbands.
C) The Islamic declaration stresses on the social responsibilities of the state and the elimination of impediments in the way of marriage whereas there is no mention of it in the universal declaration.
D) Another difference is that religion is not mentioned in the universal declaration whereas it is mentioned in the Islamic declaration. It stresses the fact that religion is necessary for the realization of the union between wives and husbands, otherwise all the hopes pinned on family are nullified.
7. The Islamic declaration stresses the rights of parents and relatives.
8. In the field of education, the Islamic declaration stresses that this is essential in all aspects of life whereas the Universal Declaration stresses that this should be free, not compulsory but it has suggested equal related issues for the rest of others.
9. The Islamic Declaration limits the goals of education to the development and balance of personality, and stregthening belief in God and respect for the necessary rights of others whereas the universal declaration stresses the most perfect limits of personality and strengthening of respect for the rights of others and preparing the ground for protection of understanding and human aspirations and sacrifice and respect for opposing views and development of kindness and efforts for protection of peace.
10. Article 10 of the Islamic Declaration deals with the first and the last feature of man, which is religion. As a result, it is natural that it keeps aloof any kind of exploitation, for it means alienating man from himself. Hence, the Islamic declaration suffices to article 10, which prohibits exploitation. This is because Islam has a clear attitude towards this issue stated in this article. Atheism is not only the going from the human realm into the animal world, it is even worse than that. On the other hand, the Universal Declaration places stress on the freedom of religion and opinion; this shows a substantial difference in the two declarations. We do not propose to show the right attitude of Islam but to emphasize that the Universal Declaration distinguishes the legal issue from the philosophical one and we are extremely opposed to this.
11. To article 11 of the Islamic declaration, is opposed to article four of the Universal Declaration of Human Rights and with blatant differences. The aforementioned article in the Islamic declaration claims that man is born free. Hence, it obviates any sort of slavery, oppression, and exploitation of him. It believes that freedom springs from servitude to the Almighty and the divine servitude as imagined by the ignorant people are not aimed at proving the divine nature and He is needless of all. This servitude means breaking away from all kinds of slavery towards others. However, the universal declaration only rejects the slavery and servitude without stating the main reason or clarifying the relation between man and God.
12. What distinguishes the Islamic declaration is the negation of all kinds of exploitations, the placing of stress on freedom and self-determination and the supporting of other nations. The universal declaration has not dealt with it at all. It shows the weak points of the universal declaration.
13. Another characteristic feature of the universal declaration is that it does not refer to the acceptance of any particular nationality, for it has one of the issues, which have resulted in the breaking asunder of the nations.
14. Although the two declarations refer to the right of occupation, the Islamic declaration demands the workers to work conscientiously as it has demanded of the state to mete out justice to those workers whose rights have been violated.
15. Article 14 of the Islamic Declaration emphasizes on the right of income but it demands it to be lawful and this clearly shows the rejected ways while it places emphasis on the prohibition of usury. However, there is no mention of it in the universal declaration.
16. Article 15 of the Islamic Declaration places stress on the necessity of legality of possession. It insists that possession should not hurt others. When we study the expanse of the nature of loss which per se involves numerous social losses, we come to realize how far the the Islamic interpretation is exact and how far it loathes the capitalistic misuse of this right for hurting the rights of others and economy and looting and plundering their wealth.
17. Another feature of the Islamic declaration is considering the morality as human right stated in articles 17. As opposed to this, the Universal Declaration in article 29 states that morality brings about certain limitations for individuals to enjoy freedom. Considering the statement, within the democratic realm at the end of this article, we conclude that morality is the freedom of others not the sublime moral concepts. Be that as it may, this does not approve a human right entitling man to enjoy a healthy atmosphere in which he can develop his spiritual life.
18. The Islamic Declaration prohibits the placing of others under scientific or medical experiments unless it is without danger.
19. Article 20 of the Islamic Declaration prohibits the torturing and illtreating of others. This is of considerable importance while it is ignored in the Universal Declaration.
20. Some might think that the Universal Declaration has advantages for it expresses absolute freedom of expression for others. However, we believe it to be a fault, for we can never allow the statement of issues, which might offend against the morality of people and the society. Offense against sacred things is far worse than offense against individuals. Hence, the limiting of it in the Cairo Declaration (using the sentence,“in a way that is not against lawful principles”
) is closer to the human spirit. And this is clearly stated in paragraph three of article 22.
21. Another feature of the Islamic declaration is that man has the right to bid others to good works and enjoin others to avoid evil. And this places stress on the responsibility the Declaration puts on all the community members. In the Cairo Conference, many agreed on this issue but there were some others who insisted on its elimination from the declaration.
22. In the Islamic Declaration there is an interesting reference to the fact that leadership is a deposit the violation of which is unlawful. There is no such a thing in the Universal Declaration of Human Rights although we find that it was a necessity that the public situation in which the Islamic Shari’ah belives in leadership should be pointed out.
23. Another difference between the two declarations is that the Islamic declaration views things from an Islamic perspective while the Universal Declaration limits all individual’s freedoms as opposed to the freedoms of others.
24. The Islamic Declaration states that Shariah is the only source of reference while there is no source of reference in the universal declaration.
Albeit, there are other differences which are beyond the scope of this article including the time when the word freedom is mentioned it generally refers to limited responsibility or responsible freedom within the confines of religion and this per se is a guarantee which stops freedom from turning into a destructive force.
The Shortcomings of the Universal Declaration of Human Rights
The shortcomings of the Declaration of Human Rights can be summarized as follows:
1. The isolation of legal and social issues from philosophical ones
2. The lack of logical order between the preamble and the articles set forth therein
3. The lack of differentiating between the human dignity and the dignity acquired through virtue and good works
4. Ignoring some aspects of life such as fetus and respect -for corpses and destruction of sources of humanity.
5. Ignoring morality in conflicts
6. There are some articles which have not been clearly dealt with (such as equal rights of men and women for ever, or the changing of one’s religion)
7. Ignoring the rights of parents
8. Ignoring the negation of exploitation
9. Ignoring the individual rights in a moral atmosphere
10. Absolute license for freely expressing one’s opinions
Human Rights in the Past and in the Present Times
Although this might be a minor discussion by virtue of the fact that we have bypassed our main discussion, we deem it a basic discussion which shows the rejection of the law itself in the Universal Declaration of Human Rights and the Cairo Declaration of Human Rights in Islam. There is no binding guarantee predicted for the exercise of the articles enunciated in the two declarations. Besides, none of the countries signing them have committed themselves to exercise them.
The Universal Declaration as a sublime goal common among the nations of the world has been agreed upon not by as a binding case. As Mrs. Roosevelt, the president of the commission on human rights states,“The declaration is not an international agreement and is not binding but a collection of rights directly associated with man and the realization of them is regarded meet throughout the world.”
Thus, the declaration turns into a set of moral rights. Sadly, the Islamic Declaration is like this. The preamble to the Universal Declaration begins in a way, which is binding as it is stated in the Tehran Conference,(4)“The Member States of the Organization of Islamic Conference do all the necessary measures set forth in this declaration.”
However, in the nineteenth conference of foreign ministers held in Cairo, some of the Islamic countries decided to eliminate secularism. They had claimed that they would accept the declaration if it accorded with the rules of their country. However, this is a big contradiction, for Islam may not be accepted unless it is limited.
Has the Universal Declaration been effective? There is no doubt that the Declaration has encountered many problems in putting the principles into practice. However, the main fault lies in the formulators of this declaration or that their power or the slogans they have chanted have caused them to pronounce themselves as the defenders of this declaration and the articles set forth therein; here, the western countries are in mind.
They (the western countries) tear nations into pieces, loot and plunder what they have and speak of human rights. That is why they consider Israel as a democratic country whereas the countries that do not follow the west are accused of antagonizing human rights. Talk of these things is sad especially when we consider the right of veto and the great countries enjoy this right and thus violate the human rights. However, this discussion entails another field which is not our present concern.
We beseech the Almighty to give us hope and ability to step in His cause.
Appendix 1: Universal Declaration of Human Rights [1948]
Preamble
Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,
Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people,
Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law,
Whereas it is essential to promote the development of friendly relations between Nations,
Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom,
Whereas Member States have pledged themselves to achieve, in cooperation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms,
Whereas a common understanding of these rights and freedoms is of the greatest importance for the full realization of this pledge,
Now, therefore, The General Assembly Proclaims this Universal Declaration of Human Rights as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.
Article 1
All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.
Article 2
Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, color, sex, language, religion , political or other opinion, national or social origin, property, birth or other status.
Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it is independent, and trust, non-self-governing or under any other limitation of sovereignty.
Article 3
Everyone has the right to life, liberty and the security of person.
Article 4
No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.
Article 5
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
Article 6
Everyone has the right to recognition everywhere as a person before the law.
Article 7
All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.
Article 8
Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.
Article 9
No one shall be subjected to arbitrary arrest, detention or exile.
Article 10
Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.
Article 11
1. Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defense.
2. No one shall be held guilty of any penal offence on account of any act or omission, which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed .
Article 12
No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honor and reputation. Everyone has the right to the protection of the law against such interference or attacks.
Article 13
1. Everyone has the right to freedom of movement and residence within the borders of each State.
2. Everyone has the right to leave any country, including his own, and to return to his country.
Article 14
1. Everyone has the right to seek and to enjoy in other countries asylum from persecution .
2. This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations.
Article 15
1. Everyone has the right to a nationality.
2. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.
Article 16
1. Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.
2. Marriage shall be entered into only with the free and full consent of the intending spouses.
3. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
Article 17
1. Everyone has the right to own property alone as well as in association with others.
2. No one shall be arbitrarily deprived of his property.
Article 18
Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.
Article 19
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.
Article 20
1. Everyone has the right to freedom of peacefol assembly and association .
2. No one may be compelled to belong to an association.
Article 21
1. Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.
2. Everyone has the right of equal access to public service in his country.
3. The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.
Article 22
Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.
Article 23
1. Everyone has the right to work, to free choice of employment, to just and favorable conditions of work and to protection against unemployment.
2. Everyone, without any discrimination, has the right to equal pay for equal work.
3. Everyone who works has the right to just and favorable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection .
4. Everyone has the right to form and to join trade unions for the protection of his interests.
Article 24
Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.
Article 25
1. Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
2. Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.
Article 26
1. Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.
2. Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.
3. Parents have a prior right to choose the kind of education that shall be given to their children.
Article 27
1. Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
2. Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.
Article 28
Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.
Article 29
1. Everyone has duties to the community in which alone the free and full development of his personality is possible.
2. In the exercise of his rights and freedoms, everyone shall be subject only to such limitations are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.
3. These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.
Article 30
Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.
Appendix 2: The Cairo Declaration Of Human Rights In Islam
“O mankind, We have created you male and female, and appointed you races and tribes, that may know one another. Surely the noblest among you in the sight of God is the most godfearing of you.”
(Surah al-Hujurat 49:13)
The Member States of the Organization of the Islamic Conference,
Reaffirming the civilizing and historical role of the Islamic Ummah which god made the best nation that has given mankind a universal and well-balanced civilization in which harmony is established between this life and the hereafter and knowledge is combined with faith; and the role that this Ummah should play to guide a humanity confused by competing trends and ideologies and to provide solutions to the chronic problems of this materialistic civilization.
Wishing to contribute to the effort mankind to assert human rights, to protect man from exploitation and persecution, and to affirm his freedom and right to a dignified life in accordance with the Islamic civilization.
Convinced that mankind which has reached an advanced stage in materialistic science is still, and shall remain, in dire need of faith to support its civilization and of a self motivating force to guard its right;
Believing that fundamental rights and universal freedoms in Islam are an integral part of the Islamic religion and that no one as a matter of principle has the right to suspend them in whole or in part or violate or ignore them in as much as they are binding divine commandments, which are contained in the revealed books of god and were sent through the last of his prophets to complete the preceding divine messages thereby making their observance an act of worship and their neglect or violation an aboininable sin, and accordingly every person is individually responsible for their safeguard.
Proceeding from the above-mentioned principles, declare the following:
Article 1
(a) All human beings form one family whose members are united by submission to God and descent from Adam. All men are equal in terms of basic human dignity and basic obligations and responsibilities, without any discrimination on the grounds of race, color, language, sex, religious belief, political affiliation, social status or other considerations. True faith is the guarantee for enhancing such dignity along the path to human perfection.
(b) All human beings are God’s subjects and the most loved by Him are those who are most useful to the rest of His subjects and no one has superiority over another except on the basis of piety and good deeds.
Article 2
(a) Life is a God-given gift and the right to life is guaranteed to every human being. It is the duty of individuals, societies and states to protect this right from any violation, and it is prohibited to take away life except for a Shari’ah prescribed reason.
(b) It is forbidden to resort to such means as may result in the genocidal annihilation of mankind.
(c) The preservation of human life throughout the term of time willed God prescribes a duty of by Shari’ah.
(d) Safety from bodily harm is a guaranteed right of human corpse. It is the duty of the state to safeguard it, and it is prohibited to breach it without a Shari’ah-prescribed reason.
Article 3
(a) In the event of the use of force and in case of armed conflict, it is not permissible to kill non-belligerents such as old man, women and children. The wounded and the sick shall have the right to medical treatment; and prisoners of war shall have the right to be fed, sheltered and clothed. It is a duty to exchange prisoners of war and to arrange visits or reunions of the families separated by the circumstances of war.
(b) It is prohibited to fell trees, to damage crops or livestock, and to destroy the enemy’s civilian buildings and installations by shelling, blasting or any other means.
Article 4
Every human being is entitled to inviolability and the protection of his good name and honor during his life and after his death. The state and society shall protect his remains and burial place.
Article 5
(a) The family is the foundation of society, and marriage is the basis of its formation. Men and women have the right to marriage, and no restrictions stemming from race, color or nationality shall prevent them from enjoying this right.
(b) Society and the state shall remove all obstacles to marriage and shall facilitate marital procedure. They shall ensure family protection and welfare.
Article 6
(a) Woman is equal to man in human dignity, and has rights to enjoy as well as duties to perform; she has her own civil entity and financial independence, and the right to retain her name and lineage.
(b) The husband is responsible for the support and welfare of the family.
Article 7
(a) As of the moment of birth, every child has rights due from the parents, society and the state to be accorded proper nursing, education and material, hygienic and moral care. Both the fetus and the mother must be protected and accorded special care.
(b) Parents and those in such like capacity have the right to choose the type of education they desire for their children, provided they take in to consideration the interest and future of the children in accordance with ethical values and the principles of the Shari’ah.
(c) Both parents are entitled to certain rights from their children, and relatives are entitled to rights from their kin, in accordance with the tenets of the Shari’ah.
Article 8
Every human being has the right to enjoy his legal capacity in terms of both obligation and commitment, should this capacity be lost or impaired, he shall be represented by his guardian.
Article 9
(a) The question for knowledge is an obligation and the provision of education is a duty for society and the state. The state shall ensure the availability of ways and means to acquire education and shall guarantee educational diversity in the interest of society so as to enable man to be acquainted with the benefit of mankind.
(b) Every human being has the right to receive both religious and worldly education from the various institutions of education and guidance including the family, the school, the university, the media etc, and in such an integrated and balanced manner as to develop his personality, strengthen his faith in God and promote his respect for and defence of both rights and obligations.
Article 10
Islam is the religion of unspoiled nature. It is prohibited to exercise any from of compulsion on man or to exploit his poverty or ignorance in order to convert him to another religion or to atheism .
Article 11
(a) Human beings are born free, and no one has the right to enslave, humiliate, oppress or exploit them, and there can be no subjugation but to God most-high.
(b) Colonialism of all types being one of the most evil forms of enslave, humiliate, oppress or exploited. Peoples suffering from colonialism have the full right to freedom and self-determination. It is the duty of all state and peoples to support the struggle of colonized peoples for the liquidation of all fonns of colonialism and occupation, and all states and people have the right to preserve their independent identity and exercise control over their wealth and natural resources.
Article 12
Every man shall have the right, within the framework of Shari’ah, to free movement and to select his place of residence whether inside or outside his country and if persecuted, is entitled to seek asylum in another country. The country of refuge shall ensure his protection until he reaches safety, unless asylum is motivated by an act which Shari’ah regards as a crime.
Article 13
Work is a right guaranteed by the state and society for each person able to work. Everyone shall be free to choose the work that suits him best and which serves his interests and those of society. The employee shall have the right to safety and security as well as to all other social guarantees. He may neither be assigned work beyond his capacity nor be subjected to compulsion or exploited or harmed in any way. He shall be entitled without any discrimination between males and females-to fair wages for his work without delay, as well as to the holidays allowances and promotions which he deserves. For his part, he shall be required to be dedicated and meticulous in his work. Should workers and employers disagree on any matter, the state shall intervene to settle the dispute and justice enforced without bias.
Article 14
Everyone shall have the right to legitimate gains without monopolization, deceit or harm to oneself or to others. Usury (riba) is absolutely prohibited.
Article 15
(a) Everyone shall have the right to own property acquired in legitimate way, and shall be entitled to the rights of ownership, without prejudice to oneself, others or to society in general. Expropriation is not permissible except for the requirements of public interest and upon payment of immediate and fair compensation.
(b) Confiscation and seizure of property is prohibited except for a necessity dictated by law.
Article 16
Everyone shall have the right to enjoy the fruits of his scientific, artistic or technical production and the right to protect the moral and material interests stemming therefrom, provided that such production is not contrary to the principles of Shari’ah.
Article 17
(a) Everyone shall have the right to live in a clean environment, away from vice and moral corruption, an environment that would foster his selfdevelopment and it is incumbent upon the state and society in general to afford that right.
(b) Everyone shail have the right to medical and social care, and to all public amenities provided by society and the state within the limits of their available resources.
(c) The state shall ensure the right of the individual to a decent living which will enable him to meet all his requirements and those of his dependents, including food; clothing, housing, education, medical care and all other basic needs.
Article 18
(a) Everyone shall have the right to live in security for himself, his religion, his dependents, his honor and his property.
(b) Everyone shall have the right to privacy in the conduct of his private affairs, in his home, among his family, with regard to his property and his relationship. It is not permitted to spy on him, to place him under surveillance or to besmirch his good name. The state shall protect him from arbitrary interference.
(c) A private residence is inviolable in all cases. It will not be entered without permission from its inhabitants or in any unlawful manner, nor shall it be demolished or confiscated and its dwellers evicted.
Article 19
(a) All individuals are equal before the law, without distinction between the ruler and ruled.
(c) The right to resort to justice is guaranteed to everyone. Liability is in essence personal.
(d) There shall be no crime or punishment except as provided for in the Shari’ah.
(e) A defendant is innocent until his guilt is proven in a fair trial in which he shall be given all the guarantees of defense.
Article 20
It is not permitted without legitimate reason to arrest an individual, or restrict his freedom, to exile or to punish him. It is not permitted to subject him to physical or psychological torture or to any form of humiliation, cruelty or individual to medical or scientific experimentation without his consent or at the risk of his health or of his life. Nor is it permitted to promulgate emergency laws that would provide executive authority for such actions.
Article 21
Taking hostages under any form or for any purpose is expressly forbidden.
Article 22
(a) Everyone shall have the right to express his opinion freely in such manner as would not be contrary to the principles of the Shari’ah.
(b) Everyone shall have the right to advocate what is right, and propagate what is good, and warn against what is wrong and evil according to the norms of Islamic Shari’ah.
(c) Information is a vital necessity to society. It may not be exploited or misused in such a way as may violate sanctities and the dignity of prophets, undermine moral and ethical values or disintegrate, corrupt or harm society or weaken its faith.
(d) It is not permitted to arouse nationalistic or doctrinal hatred or to do anything that may be an incitement to any form or racial discrimination.
Article 23
(a) Authority is a trust; and abuse or malicious exploitation thereof is absolutely prohibited, so that fundamental human rights may be guaranteed.
(b) Everyone shall have the right to participate directly in the administration of his country's public affairs. He shall also have the right to assume public office in accordance with the provisions of Shari'ah.
Article 24
All the rights and freedoms stipulated in this Declaration are subject to the Islamic Shari’ah.
Article 25
The Islamic Shari’ah is the only source of reference for the explanation or clarification of any of the articles of this declaration.
Sources
1. 'Allamah Muhammad Taqi Ja'fari, Research on Two Human Rights System: Islamic and Western, Tehran, Daftar-i Khadamat-i Huquq-i Bayn alMilali, 1991, p. 16.
2. George Sababin, The History of Political Theories, translated by Baha alDin Pazargad, Tehran, Amir Kabir Franklin, 1970, p. 77.
3. George, Philosophy of Law: A History, translated by Javad Awhadi, Tehran, 1957, p.67.
4. 'Allamah Muhammad Taqi Ja'fari, ibid, p. 50.; Hushang Muqtadir, Developments in the United Nations, Shiraz, University of Shiraz, 1979, p. 200.
Note
0%
Author: A Group of Scholars
