Fundamental Rights of the Individual: An Analysis of Haqq (Right) in Islamic Law Mohammad H. Kamali Despite the ubiquitous Occurrence of the word huqq in the works of classical jurists, a precise definition has never been articulated. Earlier re- ligious scholars have relied on its literal meaning, while modem scholars have tried to provide a comprehensive definition. This essay looks into the definition of haqq and ascertains, on a selective basis, some aspects that have engendered controversy and debate. It also discusses the ten- dency in Islamic law to place greater emphasis on obligations than on rights. I have attempted to develop a perspective on this and have, in the meantime, ad&essed the suggestion by westem commentators that the Shari'ah does not recognize rights, but only obligations. The answers given are partly the outcome of my reflections based on nearly a decade of intermittent research on basic rights and liberties in Is- lamic law. I have tried to advance an understanding of this basic and yet complex juridical issue and have related my analysis to the ongoing de- bate on the general subject of human rights. An adequate understanding of haqq in Islamic law q u i r e s looking into sseveral related themes, and my attempt to do this has enabled me to identify the roots of what I re- gard to be a petsistent misunderstanding of Islamic law on this subject. Mohammad H. Kamali is a professor of law at the International Islamic University, Kuala Lumpur, Malaysia The author acknowledges the assistance of the Social Sciences and Humanities Research Council of Canada for a research grant in 1984 that facilitated his one year of research on "Fundamental Rights of the Individual in Islamic Law." The present essay has utilized much of the data collected during that period. This paper was presented in the Public Lec- ture Series of the Kulliyyah of Laws, International Islamic University, Kuala Lumpur,. Malaysia, 16 February 1993. Kamali: An Amlysis of Right (Ifuqq) in Jslamic Law 341 Western commentators generally hold that Islam does not recognize the idea of an individual having inherent rights, fundamental or otherwise. For Schacht (1970), "Islamic law is a system of duties, of ritual, legal and m o d obligations, all of which ate sanctioned by the authority of the same religious command." Gibb (1955) opines that "the Islamic theory of Government gives the citizen as such no place or function except as taxpayer and submissive subject." This line of argument is taken further by Siegman (1964), who states that "no such abstractions as individual rights could have existed in Islam . . . In such a system the individual cannot have rights and liberties . . . he has only the obligation." Rights and duties in Islamic law originate in the Qur'an and the au- thentic Sunnah of the Prophet. The juristic manuals often speak of h u h shur'c a term that signifies a ruling, usually communicated in the form of a command or a prohibition, that regulates the conduct of a rnukaUaf (a legally responsible individual). Such a ruling may convey a variety of concepts, including legal rights and obligations. There may be an ap- parent pmpensity in the nature of such a communication, and in the lan- guage in which it is conveyed, towards obligations rather than rights. A closer examination, however, reveals that a mere propensity in the style of communication does not have a negative effect upon the substance and validity of rights in the Shari'ah. A teal understanding and analysis of the language of the Qur'an and Sunnah confirm that Islam has its own view on this type of ding and on its allied subjects of rights and duties. In the Qur'an and the Sunnah, no formal distinction is made between fundamental and other rights, or between constitutional and ordinary law. This is also indicative of a certain outlook in expounding the juris cor- pus of the law, the some materials of the Shari'ah reflect the unitarian influence of tuwhfd (uhity in some and origin of all knowledge) and a tendency to stay away from approaches that may interfere with this prin- ciple's holistic and unitarian philosophy. As the Shari'ah adheres to the overriding authority of divine revelation, the sense of mission and duty to God and society acquires, admittedly, a certain prominence in the con- cept of Bukm (hereinafter defined as ruling) over the idea, so to speak, of an individual's right or claim on Gad. The issue is essentially that of the pattern of relations between the Lawgiver and the recipient of law, one that is inspired by the ideals of unity and integration rather than the duality of their respective interests. Modem consthtional law, and consti- tutionalism as such, champions the rights of the citizen when dealing with the ever-expanding power of the state. This latter factor was, on the whole, viewed as a menace to individual rights and liberties. Islamic law, on the other hand, does not ptoceed from a condition of conflict between the individual's respective rights and interests and those 342 The Amencau Journal of Islamic Social Sciences 103 of the state, for implementing the Shari'ah saW1es the basic purpose of the state's existence, which includes the rights of the individual. In doing so, both the individual and the state obey the Shari'ah and gain the pleasure of God. Thus the duality of interest often envisaged in modem constitutions does not present the same picture in the Islamic theory of government. Islamic law operates on the premise that God commanded humanity to act, or not to act, towards Him and other people in certain ways. The individual must worship and obey Him, as there is no room for anything other than submission to His will. However, God has ex- pressed His will and d e c e and has thereby bestowed upon human beings certain rights as an expression of His grace. Commentators who deny the place and teality of rights in the Shari'ah have shown no awareness of this pefspective and have advanced a superficial discouse that confuses a certain outlook maintained by Islam on rights and duties with the af- firmative substance of the Shari'ah on this theme. Over the centuries, Muslim jurists and scholam have spoken of the virtues of submitting to the will of God and obeying His decree and law. In spite of this, however, they have never hesitated to speak of the indi- vidual's rights as well as the safety and sanctity of his/her life and prop- erty. They were equally adamant in stating that the ultimate objective of the Shari'ah is to tealize the interests and benefits of humanity. In other words, they do not doubt the centrality of individual rights to the whole concept of God's ruling. They were admittedly somewhat less elaborate in advancing theories concerning the definition and philosophy of law, but that was probably due, in part, to an attitude of piety and un- questioning submission to the will of God. It seems that some commentators feel that this general outlook signi- fies a negation of the very idea of right. This bias in favor of obligation over right can be found in varying degrees in almost any legal system, and Islamic law is no exception, for obligation has a stronger foundation than right and carries a binding force that is lacking in the concept of right. But the reality, existence, and significance of right in Islamic law is undeniable; it is merely the form in which concepts are communicated, a certain view on the same reality, rather than a denial of that reality. Meaning and Definition Although the primary meaning of haqq is "established fact" or "reality" (d rnawjki al fhbit), in the field of law its dominant meanjng is "truth" or "that which componds to facts." Both meanings are equally prominent, so much so that some lexicographers (Lane 1865) consider the second meaning to be the primary one. In the context of law, "right," Kamali: An Analysis of Right (Huqq) in Islamic Law 343 "power," and "claim" signify other equally prominent meanings. Some writes add "beneficene and public good" (a1 khuyr wu a1 mashhuh) (Hammiid 1987). And, lastly, huqq means "law" as in "faculty of law" (kullQut a1 huqCq), which is synonymous with kuUQut a1 qdnCn. Yuqq occurs frequently in the Qur'an and is often used to imply cer- tainty and proof of values, rewards, promises, and punishments. According to a1 $iibh- (1972), theE are at least six different Qur'anic usages of this term, but the general underlying concepts m certainty and proof (a1 thubCt wu a1 wujCb). In Qur'anic terminology, haqq is inter- changeable with duty (wdjib). Although haqq can mean a right as op- posed to an obligation (Qur'an 51:19), the Qur'an does not distinguish either as the dominant meaning. Occasionally, huqq denotes the Muslims' ultimate victory and salvation as a certain outcome (Qur'an 10:103; 30:47). In addition, it can mean in the cause of justice (bi a1 wq) and the truth (a1 haqq) (Qur'an 2:42). These and similar usages lead a1 Bb-y (1973) to conclude that haqq is inextricably linked with justice and be- nevolence ( ' d l wu ihdn) and that they are the ultimate values sought wherever haqq appears in the Qur'an. And finally, huqq is sometimes used with the intention of en- couraging a certain come of conduct. In a hadith recorded by Muslim, Abii Hurayrah namted that "a Muslim has a right (Mq) over other Mus- lims in six mattels . . ." (i.e., to return hisher greeting, accept his/her invitation, give sincere advice, etc.), all of which are moral rights. In order to emphasize their observance, however, they are referred to as huqq. This would also serve as an example of the concept of moral, as opposed to legal, rights in Islam. Classical jurists did not articulate a juridical definition for haqq, but rather relied on its linguistic meaning (a1 Z a q Z 1967).' They may have done so, as al Khafif (1945) opines, because the word is clear and vem- tile and because its juridical usage often comes close to its literal mean- ing. A somewhat vague definition appeam in Ibn Nujaym's Buhr a1 E'iq, where it is defined as "the entitlement of a person to a thing'' (a1 haqq md yastahiqquhu a1 rujul). Ibn Nujaym, however, gave an accurate definition of the right of ownership: "an exclusive assignment" (ikhtisa &jiz) (Ibn Nujaym [d. 970 AH] 1894; a1 MuwsC'uh ul Fiqhouh 1989).' An exclusive claim or assignment in favor of the right-bearer is a basic ingredient of the general concept of haqq, and it is in this respect 'The tendency to rely on the literal meaning is also seen in d M m P 'oh a1 Fiqh@oh (1989) where the article on huqq (vol. 18) does not even contain a definition of this term. * This definition is also quoted by a1 Muwsu'oh a1 Fiqh@oh (1989). 344 The American Journal of Islamic Social Sciences 103 distinguished from permissibility (i-). The right of ownezship is a typical example of haqq as an exclusive assignment.. Fredom of move- ment, on the other hand, may be given as an example of haqq in the sense of permissibility, as it is an advantage to which people are gener- ally entitled. As a dt, no exclusive claim is established in favor of anyone in particular (a1 D&- 1984). Langatudi (1991) states that in con&& to Sunni jurisptudence, Shi'i fiqh advocates the following definition: "Huqq is a power, whether ma- terial or spiritual, that the law has pnted to a person over another per- son, over property, or over both."3 He says furthet that every right must have at least one of the following three attributes: a) It can be waived (isqiif) by the right-beareq b) it can be tde r r ed to another party; and (3) it can be inherited, even without the expressed will of the right-bearer (ibid.). Other scholars have provided the following definitions. M G (1954) defines haqq as "a benefit (mw-) which the Lawgiver has granted to the individual, or the community, or both." Two points stand out in this definition and both are questionable: the equation between right and benefit and the fact that wq is not a goal in itself but rather a means to a certain benefit that it serves to obtain. For al Khafif (1945), haqq is "what is proven by the Shari'ah for the benefit of man." This definition considers rnwhlzuh to be the ultimate goal of h q q but, unlike the pre- vious definition, does not equate the latter with the former. However, this definition also suffers from c e b weaknesses, one of which is that only a real person, as opposed to a corporate petsonality, can have a right.. Moreover, it precludes rights that are for the benefit of other parties and not of the right-beam as such (i.e., the right of guardianship, which is proven for the guardian but contemplates the benefit of the wad [al Dalini 19841). According to Abii Sinnah (1971), haqq is "that which is established in the Shari'ah (hum mii thabu&fiul shat') for a human being, or for Allah, over someone else." This definition also precludes the possibility of a corporate (hukma person posesing a haqq. All of these definitions recognize four essential quirements of wq: 1. It is something proven or established by the authority of Shari'ah: tangible goods ('uyn), d m c t (mmfu'uh), a particular act (i.e., the right to delivery of goods bought), a certain forbearance to which the right relates (i.e., a neigbor's right not to be annoyed), a concept or ?he author refers to al TaWWik Bulghaf ul Fuqz71 @. 3) and to al Na'-hi's Munyat uf Tdib (vol. 1, p. 41). Kamali: An Analysk of Right (IJaqq) in Islamic Law 345 2. 3. 4. attribute (i.e., consultation in government affairs), or guardianship over minors. The right-bearer (s&b a1 haqq) may be an individual or God. As noted earlier, some of these definitions do not envisage any rights for a corporate personality (i.e., an entity having a common interest [ma$Wuzh mushtarakah] and financial capacity [dhimmah rndijwh]). Another distinction is that a corporate personality has a collective or common intenxt that is separate from and unable to merge into a pri- vate or individual i n t e e The corporate person must have the capa- city to incur financial liability and rights. Examples of the corporate person are the state, a charitable foundation (wm, and the national treasury (bay d m d ) . The latter meets both of the above conditions, for it manifests the common interests of the community and, in this connection, incurs such rights as receiving the estate of a person who died without leaving a legal heir, becoming a party to disputes, and incurring financial liability (i.e., the remuneration of tax collectors). The mukallaf (legally responsible petson) to whom the huqq applies is bound by a duty to respect it. Examples of this are the wife's right to maintenance by her husband and the community's recognition of the owner's right over his/her property. For a right to exist, there must be affirmative permidon (idhn) in the Shari'ah or, failing that, there must be no prohibition against it. All of these requirements must be met simultaneously for a huqq to be recognized as such (ibid.; a1 Mawsfi'ah d Fiqhouh 1989). As defined by a1 DaritG (1984), haqq is "an exclusive appropriation or power over something, or a demand addressed to another party which the Shari'ah has validated in order to realize a certain benefit." This definition's use of the term "exclusive appropriation" (iwltisiis) precludes all that is merely permissible (mubdult). A right must also be validated by the Shari'ah, which precludes a mere factual-but invalid-appropria- tion (i.e., a thief's possession of stolen items). A right may be exclusive to God or a human being, to real persons or corporate persons. This defi- nition further views a right as the means to a benefit. In other words, they zve not identical. For example, a right-bearer entitled to conclude a con- tract of sale may not use the right to earn interest (rib@ or to harm another person or the community by hoarding (ihtikiZr), for both practices aTe forbidden. The benefit pursued by baqq is thus distinguishable from haqq itself and can be identified separately. It is a benefit (maslahah) 346 The American Journal of Islamic Social Sciences 103 only when it coflslsf~ * of an exclusive assignment, for, objectively speak- ing, a benefit unrelated to anyone in particular is not h q q . Nevertheless, it seems that haqq in Islamic law is essentially goal- oriented (ghi'zjvzh) and normally contemplates a benefit (mu.yZahh). For example, if it is used in a way that violates the benefit upon which it is predicated, the right has been abused. According to a1 ShiiGbi ([d. 790 AH] n.d.), "the acts that the Shari'ah validates are not the goals in them- selves, but the meam to certain other objectives. These are the benefits (masdih) in whose pursuit the acts have been validated in the first place." Thus in spite of the fact that rights and benefits are essentially individualist concepts, they ate ultimately subservient to a set of higher values. In the case of justice ('adl), which is viewed as a principal bene- fit, the= is the possibility that following a Shari'ah-oriented policy (siyd- sah shar'ouh) could tesult in cases where justice under the law might not be consonant with the greater benefit or interest4 The Shari'ah, =- vealed to the Prophet as a mercy and a benefit to humanity, has as its ultimate goal the benefit and intetest of that same humanity. According to al 'hi& ([d. 631 AH] 1982), the jurists have reached consensus (2jhUi') on this point. Furthermore, reason also leads one to the same conclusion. Power (su&uh) established by virtue of huqq may be over a person (i.e., custody of a pemn or a child) or an object (i.e., a legal heir's right to a share of his dead relative's estate). Due to the overriding influence of benefit an b q q , the right-bearer does not have unlimited power in ex- ercising hifier right. The right to life, for example, is sacrosanct and may not be subjected to aggression by others or by oneself. Similarly, a pmperty owner may not destroy his/her property for no useful purpose, as this would violate the basic objective of God and the benefit upon which it is founded. The norm in the Shari'ah is that rights and obligations do not exist unless there is evidence to suggest otherwise. Such a norm is termed "original absence of liability" (hrd'at aZ dhimmah aZ u.yZ@uh), by which is meant a p ~ ~ ~ ~ p t i o n that can only be overmled by positive evidence. The only exception to its application noted here appears in the case of those natural rights (aZ huqEq aZfi@ouh) that come into being without 'It is re+ that during a public audience with his officials, 'Umar ibn al u @ b heard a , who had flogged the defendant without c81se. claim was established and the &$ordered just retaliion. At this point, one of the Canpanions observed that the M a t i o n so decreed might achieve retributive jus- tice. but that it would not be m harmony with the cOllSideratioflS of good polic and the genexal interest to flog a ovemor in front of a large audience. 'Umar a g r d and the tssue w8s settled through L c i a l compensation. 'evance against the governor of E Kamali: An Analysis of Right (Ijuqq) in Islamic Law 347 legal cause: the rights to life, freedom, equality, and having a mother do not depend on any cause othet than the mete fact of a person's birth. Hence no othet evidence is needed to validate them (Abii Sinnah 1971; Ibn Nujaym [d. 970 AH] 1894). The direct causes (a1 asbib a1 mubtTshirah) of haqq may be sum- matized as follows: Shari'ah rulings ( h u h shar'o; cunttact ('uqd); uni- lateral commitment (iltizcrm); inheritance (wircfthah); a lawful act (ulfi'l a1 mashni') such as hunting, reclaiming banen land, or acting as a cata- lyst W C l i ) ; and the violation of anothet's tight (a1 t a ' d f i 'ah b q q a1 ghuyr), which may cmte a right to compensation on the part of the aggrieved patty (Abii Sinnah 1971). H q q and Hukm The scholars of wCl al_Fqh discuss haqq and its varieties undet the general subject of Shati'ah rulings ( h u h shar '0, a category that contains a broad variety of concepts, including commands, prohibitions, and petmissions originating in the Qut'an and the Sunnah. In wziZ aZ)qh, h u h is defined as a communication from the Law- giver concerning the conduct of the rnukallaf (legally competent petson) and consisting of a demand (something obligatoty [wdjib] ot pmhibited [ h a r h ] ) , an option (takhytr), or an enactment (wad') (A1 MuwsC'ah ul Fiqhrjuh 1989; Hammiid 1987).' This definition is broad enough to en- compass and subsume haqq in almost all of its varieties. A demand is usually communicated either as a command or a pmhibition. When com- municated in emphatic and decisive terms, the fotmet is known as wdjib and the lattet as hardm. If the command is not uttetly emphatic, the former is classified as recommended (rnadCb) and the latter as teprehen- sible (rndmih). An option allows the individual to choose, and the result- ing ruling is known as neuttal (mubib), as it is neither obligatory nor fotbidden. An enactment is an objective exposition of a ruling's q u i r e - ment(s) that enacts something as a cause, a condition, ot a hindmce to something else. This eflsuTes that the relevant Shati'ah d i n g is applied propetly: its cause ('illah) is present, all necasaty conditions (shurCt) a~ fuifilled, and there is nothing to hinder its enfotcement (Kamali 1991). The fact that haqq is usually subsumed undet the genetal subject of Shati'ah d ings is significant insofar as it suggests that right, in Islamic law, origbtes dinxtly or indirectly in cleat Shati'ah injunctions (A1 ?hejiCqahd', on the other hand, define hukm as a ruling arrived at by a mujtahid based on the evidence in the sources and gene& Shari'ah principles cotlcerning the con- duct of the mukal&f(yamm&d 1987). 348 The American Journal of Islamic Social Sciences 103 Muwsc'uh ul Fiqhoah 1989). Not all scholars agree with this statement. For example a1 -wi, quoted in a1 Zaqii (1968), defines huqq as an established d i n g ( h u h yuthbit), thereby ignoring a) the difference be- tween cause and effect, b) the fact that a ruling is, by definition, a com- munication fmm God, and c) that the haqq in question is the result of that patticular communication and not the communication itself. The Shati'ah has also been used to validate contracts, wills, and agteements of legally competent persons, as well as to create tights and obligations. As noted earlier, a ruling (bh) has a wider scope than a tight (haqq), as the former is not confined to regulating relations among indi- viduals (the main theme of the latter), but also regulates relations between an individual and God. This latter relation is often subsumed under the jutistic concept of the tight of God (haqq AZkZh). In reality, however, the tight of God is more of a ruling than a tight. It therefore seems that every tight found in Islamic law is a ruling, but that not evety ruling is neces- sarily a tight. This can be seen in the case of an enactment that expounds upon a cettain aspect of a h u h tukZz3 (a d i n g of commission) but may not create a tight or an obligation (a1 Khafif 1945; a1 Dm-ni 1984). All Shati'ah rulings, as a1 Shiitibi ([d. 790 AH] n.d.) points out, have a de- votional (ta'abbudi) aspect, which means that no such ruling is totally devoid of God's tight. Essentially the same idea is expressed by a1 Qatifi ([d. 684 AD] n.d.), who states that the= is no human tight in total iso- lation of God's tight. Scholars of wzil ul3qh have discussed huqq, in a more specific man- ner, under ma&-mfih (the subject matter of rulings). Here it is defined as the act or conduct of a mllkallafas specified by the relevant communi- cation fmm the Lawgiver. To qualify as the subject of a ruling, the for- bidden or obligatory conduct required must a) be identifiable, as opposed to vague or ambivalent, so that the person to whom it is addressed can ascertain what is requited, b) be within hisher ability to perform (an im- possible tight or obligation cannot be demanded), and c) originate in an authoritative soutce: the recognized sources of the Shati'ah. These same scholars have used the tetm mukahf to refer to bearers of both tights and obligations (a1 Datini 1984). This tetm, as well as its other derivative, namely tukZg, incline towards the idea of obligation rather than tight. Such usage may give the impression that mukallafcan only refer to the bearer of obligations. This would result in a specious conclusion, however, as muhllaf has been used to tefer to beaters of both tights and obligations, for in both cases the individual is the recipient of a d ing . The basic unity of tight and duty in the case of a ruling can be seen in the definition of a1 Z a q H (1967) that defines )uzqq "as an exclusive as- Kamak An Analysis of Right (Ilaqq) in Islamic Law 349 signment established by the Shari'ah in the fotm of power (sultah) or commission (taklzJ)." The author has evidently defined 4uzqq from the perspective of h u h , which is why the definition does not t.ecOgnize a cleat division between power and commission-baqq can consist of either. A d i n g of the Qut'an or the Sunnah may thus consist of commu- nication that grants someone a cettain power or conveys a demand (tak- 1zJ) in respect to a particular coutse of conduct. A d i n g may consist of a power (when viewed from the vantage point of a right-beater) or of an obligation (when viewed from the position of the patty of incidence). Islamic law seems to emphasize ruling rather than right. This might be because of its conveyed awareness of the relationship of all law to the Lawgiver. For example, one hadith states that "the blood, property and honor of a Muslim are forbidden to hisbet fellow Muslim (Muslim here is interchangeable with human being)." Even though it appatently con- veys a prohibition, it obviously speak of the basic rights to life, per~onal dignity, and ownership, thereby endotsing numerous Qut'anic proclama- tions on the sanctity of these values. If this type of discourse is compared with a modem constitution, it will be noticed that while the latter premises its basic rights on the inter- est of the right bearer, the Shari'ah tends to stress the rights and interests of others. A right comes from a ruling that, in tutn, is communicated in such a way that the right-bearer is not its sole owner and agent-both God and the community have a stake in it. To say that this hadith creates only obligations is a one-sided interpretation, for it affirms rights to life and property for everyone while at the same time placing evetyone under a comsponding obligation to respect the same tights for others. While a modem constitution states that such basic rights as life and the acqui- sition of property belong to evetyone, the same ideas in an Islamic context would likely be conveyed with a slight difference of emphasis: the lives and properties of everyone are sacrosanct and cannot be vio- lated. In both instances, the purpose is to create basic rights and coms- ponding obligations. The difference is perhaps in the fotmet's emphasis on the individual and the latter's objectivity of basic values. Some scholars of uszil a l j q h , for instance Sadt a1 Shati'ah ([d. 774 AH] 1909), have spoken of such public tights as "freedom, honor, and ownership" (a1 hurrgah wa a1 'ismah wa a1 rncilikzyah) as basic rights of every human being. Others consider the right of ownership as a basic right and an "exclusive appropriation" (ikhtisa hcijiz). Many rights in Is- lamic law fall into the category of so-called duty-oriented tights. Al- though Muslim jurists do not use this classification, the tendency in Is- lamic law to unify right and duty under the single concept of h u h and then seek a balanced orientation of both under the general concept of 'ad1 350 The American Journal of Islamic Social Sciences 103 QuStice) are indicative of an emphasis towards integration For example, a father's right to discipline his child is, in reality, a duty combined with a certain measure of authority, as is a guardian's right to ensure that the prospective spouse is a suitable and equal match for his/her ward (ka- fir'ah) (a1 DarW 1984). Varieties of Hqq Islamic law divides mahh-m fih (that which is related to rulings [ h u h ] ) into two main categories: haqq Alhh (the right of God or public rights) and haqq a1 'abd (the right of the individual or private rights). An individual's act or conduct can consist of the right of God, the right of the individual, or a combination of both. This latter right can be waived by the right-bearer, whereas the former cannot. As it is beneficial to the community at large, it is not amenable to waiver, reconciliation, or com- promise. The right of God is, in other words, a public right and differs from the right of the individual in that its enforcement is a duty of the state. It is also a part of the general concept of bisbah (enjoining good and preventing evil) in the sense that anyone may demand its enforce- ment and adjudication in court, for it does not depend on instituting a particular claim. Enforcement of a private right is, on the other hand, up to the individual, who may or may not demand it. This distinction be- tween rights, made by Muslim jurists at an early stage, had no parallel in Roman law (Ibn a1 Qayyim [d. 751 AH] n.d.; Abii Sinnah 1971; Lan- garudi 1991). The ulema have subdivided these rights even further (Kamali 1991), which shows that, on the whole, Islamic law recognizes private rights as a prerogative of its beam. With the exception of a few basic rights, as noted above, rights in general do not inhere in the person of their bearers, in the community's independent will, or in its government in total iso- lation from Shari'ah rulings. In essence this is the Ash'ari and the AkhEri Shi'ah view, which asserts that rulings, rights, and obligations originate in Shari'ah alone. As a result, human reason cannot cmite basic values, rights, and obligations independently of the ShariYh6 Jurists have also elaborated a three-fold division of haqq consisting of permissive (a1 haqq a1 mubdh), imperfect (d haqq a1 thtibit), and per- %e Mu'tazilah claimed that human reason provides a valid basis for ~ l ingS , whereas the M M & adopted a middle position. The majority of ulema tend to subscribe to the fanner, whereas the ljanafis favor the latter (Kamali 1991). Kamali: An Analysis of Right (Yaqq) in Islamic Law 35 1 fect right (a1 haqq a1 mu’akkad).7 This division has been discussed mainly in the context of ownership, but its basic appmch may be of wider applcation. In the case of permissive right, the right-bearer is en- titled to act or not to act, for the law neither commands nor forbids him/her to do so. An example of this is the individual’s right to own property. Until this right is exercised, it is considered a liberty. It only be- comes a perfect right after the purchase or acquisition of an object or the receipt of it as a gift or an inheritance. An imperfect right falls between permissive and perfect rights and becomes operative when a person could acquire a perfect right through the exercise of his/her unilateral will. For instance, if a person has received an offer to buy an object, an imperfect right is created in his/her favor. If he/she putchases that object, the imper- fect right tums into a perfect right that can be enforced by the Shari‘ah. Both permissive and imperfect rights are weak in the sense that they cannot be sold, inherited, or used to form the basis of a claim for com- pensation (Qamiin). The Nlikis hold that imperfect rights are inhetitable. Thus the legal heits, according to Miliki law, inherit their deceased rela- tive’s option of acceptance (khiyiir ul qubl2). A perfect right entitles the right-beater to an exclusive advantage. A correlative obligation, which must be respected by the community, is also created as a result. A perfect right is inheritable and provides a valid basis for a claim to compemtion (Ibn ‘ibidin [d. 1252 AH] 1966; a1 Qariifi [d. 684 AH] n.d.). Huqq can be subdivided further in terms of enforceability: religious- moral (dinz] and juridical (qudd’i). The former, although validated by the Shari‘ah, cannot be proven or enforced by a court. To illustrate this, if someone possesses a piece of property for fifteen years (the Hanafis and Klikis say ten years), ownedip is established in his/her favor (dhl a1 yud). Thus while the ml owner has the moral right and is the actual owner, the court cannot do anything about it. Similarly, if a debtor denies a creditor’s right to repayment and the latter is unable to prove his/her case in court, the court cannot enforce the creditor’s right. Most of the rights of God (i.e., ‘ihiuZt, kuJlirtit) am in this category. As no one is ex- pected or authorized to demand their enforcement, they are basically un- justiciable, despite the fact that the judge is vested with discretionary powers (tu‘zfr) to discipline those who seriously neglect them. Rights without a particular party as the right-bearer, such as a religious endow- ment (wm for the poor and the indigent, also fall into this category. Juridical rights, on the other hand, are susceptible to pmof at the be- hest of the right-bearer, and a Shari‘ah court has the power to adjudicate ‘For a similar classification of right in western law, see Cunon (1979). 352 The American Journal of Islamic Social Sciences 103 them. Some examples of this right are the creditor's right to demand re- payment from a debtor and a wife's right to maintenance by her husband (A% Sinnah 1971; al MawsU'ah al Fiqhzyah 1987). Conttary to the asssettion of western commentators that the Shari'ah recognizes no separation between law and religion, there is evidently such a recognition as regards matters of haqq. Legal rights and duties are iden- tified and separated from their purely religious counterpatts. A parallel separation is found in the more general concept of !zukm (ruling), as the Shari'ah distinguishes between moral (recommendable [mandGb], repre- hensible [ m h - h ] , and permissible [mubah]) and legal (obligatory [wiijib] and forbidden [hardm]) categories. The central featm of this division is to clarify what is legally enforceable and what is only moral advice. The thtee elements in the moral category are considered advice, with mubdh being neutral and rnad-b and mukrUh serving as its subvarieties, and as such are not legally enforceable. The two elements in the legal category enjoy a much more limited scope of activity. Therefore, to describe the Shari'ah as a "religious law" or "a system of religious duties" and to assert that it recognizes no separation between law and religion is not in line with the technicalities of Islamic legal thought. The Shari'ah is in unison with religion in matters of belief, ' ibddt, and in commitment to basic values, yet it clearly recognizes a functional separation between law and religion on an extensive scale. A Glance at the Qur'an In the Qur'an, textual rulings (ahhim) are generally add& to indi- viduals and the Muslim community. Both groups are commanded, per- suaded, encouraged, discouraged, warned, and prohibited in a language that is vemtile and not necessarily confiied to the juristic style of a legal code. Qut'anic legal injunctions are normally in the form of commands and prohibitions. This is also the main area in which rights and obliga- tions are created either directly or by indication. The other three cate- gories of rulings, which are essentially nonlegal, may create moral rights and responsibilities that, in turn, may provide a basis for ijtihad and the subsequent development of a moral right or value into a legal right. Qur'anic rulings occur in a variety of forms. For example, the ruling on the right to privacy consists of a deffitive injunction: "0 believers! Enter not houses other than your own until you have asked leave and saluted the inmates. If you find no one therein, do not enter until you are given permission" (Qur'an 24:27). Here a negative right is created in favor of the occupants of the house not to be disturbed by strangers. As they have exclusive right (i.e., ownership) to the house they occupy, they Kamali: An Analysis of Right (iYuqq) in Islamic Law 353 can r e h permission to those seeking to enter. This right is known as an exclusive appropriation (ifitis& hrsjiz). The text thus creates a basic right to privacy within the framework of a prohibitive ruling. This ruling is also addnxsed to the community of believe=, which might signify a certain orientation of the Islamic concept of right in that direction. This Qur'anic ruling is further substantiated by its provisions concem- ing suspicion and espionage, which entail accessories or accessory rights, to the principal right of privacy: "0 believers, avoid most of suspicion, for suspicion in some cases is sin . . . and spy not, nor backbite one another. . . surely Allah is Merciful (49: 12)." The text conveys a decisive ruling on the illegality of espionage and gives a clear indication that only some forms of suspicion may be justified and tolerated. Espionage is a concrete activity that can be proven by evidence and is therefore a proper subject for a ruling, but suspicion is not. This is why the Qur'anic lan- guage leaves mom for flexibility. Moreover, a reasonable suspicion based not on malice but on the prevention of criminal activity or evil may be permitted on a restrictive basis. The fact that the Qur'anic ruling on pri- vacy and espionage occurs in the form of prohibition could be because it creates a negative right and also in order to add emphasis, for a pro- hibitive ruling is generally more emphatic than an affirmative command. Furthermore, the Qur'anic proclamations that 'We bestowed dignity on the progeny of Adam" (17:70) and "Kill not a soul which God has made sacrosanct save in the cause of justice" (17:33) embody the funda- mental rights of an individual to life and personal dignity. We read futther: "Whosoever killed a person . . . it shall be as if he had killed all mankind, and who so gave life to one, it shall be as if he had given life to all mankind (530). The right to pers~nal dignity is further substan- tiated by the Qur'anic prohibition of slanderous accusation ( q d j ) (24:3) and "let not one people deride another people . . . and defame not your own people, nor call one another by (insulting) nick-names" (49:ll). On the right to work and lawful earning, the Qur'an says: "Men have a right to what they have earned and women are entitled to what they have earned" (4:32) and "0 believers, spend of the lawful and pure sub- stances you have earned and of the tesources We have in store for you in the earth" (2:267). On the same subject, one reads: "and when the prayer is finished, disperse in the land and seek of God's bounty" (62:lO). Worshipers are not to spend any more time in the mosque than required by the specified prayer, they are encouraged to work and earn a living. The Qur'an and the S m a h support the concept of private property: "And devour not each others' property wrongfully unless it be through lawful trade and your mutual consent" (4:29; see 2:188). Lawful trade, work, and transactions of mutual consent are thus recognized as principal 354 The American Journal of Islamic Social Sciences 103 means of aquiring wealth. Wealth obtained through lawful means is not reprehensible. On the contrary, it maintains just the opposite: "Say! Who has forbidden the adomment of life which God has provided for His ser- vants? Say they ate for the believers in this life" (7:32). The Qur'an validates fteedom of movement, especially when used to pteserve the integrity of one's faith and conscience (4:97; 8:72). Migm- tion (hijrah) and travel in the cause of righteousness forms the theme of many Qur'anic passages and its merit is generally emphasized. In fact, all freedom of movement, regardless of its ultimate objective, is allowed: "He it is who has made the earth subservient to you, so travel in its tracts and benefit from its bounty" (67: 15). The Qur'anic declaration that "there shall be no compulsion in religion" (2:256) is equally unequivocal on the normative validity of religious freedom in Islam. Nowhere does the Qur'an provide a list of basic rights and liberties or formally distinguish such categories as fundamental and ordinary rights. The Qur'anic style of legislation sometimes results in the relevant text not behg self-evident and explicit, as it may lay down only a bmad principle rather than a concrete ruling. This is why it is often in need of interpretation and ijtihad Qur'anic concepts are also conveyed in the linguistic form of an in- junctian, while only imparting a recommendation or permission. The pre- cise evaluation as to whether a specific linguistic command bears a juridi- cal obligation, a recommendation, or a mere permission, or whether the text validates a right or an obligation having legal import, am determined by the text's language and the Shari'ah's general principles and goals. A perusal of the Qur'an's legal contents (uhkrsm) indicates that the text is not always categorical concerning the evaluation (i.e., obligatory, recommended, permissible, reprehensible, or forbidden) of its dings. Only occasionally does it speak in terms of obligatory or forbidden, while the internedate three categories are not specified as such, but are often undetstood fmm the language of the text or extraneous evidence. The scale of five values is basically a juristic construct of thefuquhi', for one does not find categorical affirmation for it in the Qur'an and the Sunnah. Thus the categories 8tp: in many ways open-ended and subject to interpre- tation. Likewise, detehning whether a d i n g repmxnts a right of God, a right of the individual, or a combination of both is often a matter of in- terpretation. One rnujrahid may conclude that a certain right is a right of God, while anofher may be able to justify classifying it as a right of the individual. Their conclusions may also differ in the degree of emphasis assigned to one or the other of these rights. Although the fuquhii ' have spoken at length about the classification of rights, their expositions still leave mom for research. For example, K d An Analysis of Right (Haqq) in Islamic JAW 355 how can this a m be related to madem constitutional law? It is gratifying to note that some development has taken place. Individual authors, com- mittees, and confemces have, in recent decades, attempted to product a model constitution or bill of rights basad on Islamic law (Azzam 1981). 'Ihey have generally spoken in positive t e r n on virtually the entitt range of basic rights. The fact, however, that dinct govcmment participation has been lacking in nearly all resulting proclamations has Jcft the cxetcise largely themetical and wanting as mgatds a getleral ~ ~ n ~ ~ n s u s . Human Rights and Dignity Human rights are a manifestation af hwnan dignity and justice, as they are predicated MI attaining these objectives. Rights may be pro- prietary or petsonal, utilitarian or moral, but they almost always relate to the dignity of the individual and his/her quest for a just social order. Con- stitutiatlal pmlamations of thc rights of citizens are gmrally ~ f k c t i v e of a society's u n n m i w t to the individual'rr dignity and value. Such expressions, whether national chartem or inlematjohal dec- larations, an: tainted with their pmpcments' cultural values and traditioner. Like other cultural traditione, thc Wcst hm msintained a coltajn human rights perspective that is not always tqmwntative of other culaueS. The Univeml Declaratim d Human Rights, founded MI the w-rn d mainly liberal protestant traditions, is nqptr&d as less than u n i v d , for it is biased in favor of wadern values. "It is a fact" as one author ob- a very partial dialop among the cultures of the wmld" (Panibr 1982). Human rights ate thus c o m p d to a window tkrwgh which a particulat culture envisages a just ordm for its individuals. Such a view b m e s objeetionsble when earpollsled with a claim b exclusivity. "he w-rn view dhwnen rights d to dmmvldge that Conccrming the substance: d rights. A traditional Cbnfuda9 for example, might 8&e tkis imw of &r and d g k 8% B q d m of "good Tke western trdkicm poeits fFeeQm in order to avdd the wtcomr: of twk. "Nothing d d be mote impmtmt h o w ~ & ' w PsnSkkrat pints out "than to umelenscore anB defend the dignity of tke human pmm" (ibid.), To tab dignity 4 judw as p l s would mi& w approack b eludes go= vecy itnplortatrt aspeds mkkd to an indlviduarl. Pmemmpb, strvcd "that the predent day fonnulston of Human RSghts is the f M t of thae am and have ts be El p l d i t y d windowe, Yiaione, and g e n s w v e s mannetg" The west itself f&EsSes rights, wklb Islam v d w obli@m. despotism while Llam empkasizes vittuc: and dignity tknough tllMal &d- human flghb, forth? ormcetpt of dghtirs M l y 8 namow Ocw that p- inthec!asedM* wkskdrc :d#d who bears thsd-? 356 The American J o d of Islamic Social Sciences 103 As regards the guardianship of a minor, is parenthood a right or a duty? Apart from the conceptual difficulties of maintaining the binary division between right and duty, the aggressive defense of individual rights may have negative or unjust repercussions on othem, as rights are not neces- sarily an individual’s concern and premgative. The need for consensus in many traditions, instead of majority vote, is based precisely on the cor- porate n a t m of human rights. In addition, there seems to be no consetlsus on the exact meaning of democracy as a political system. “No form of government,” as Enayat has pointed out “can be entitled to the epithet democratic” without being predicated on several principles and values respected by its people, such as a sound recognition of the worth of all human beings, their equality before the law, and respect for law and order in society (Enayat 1982). The Qur’anic declaration on an individual’s dignity (17:70) is so vividly objective that it makes human dignity one of the Shari‘ah’s cardi- nal objectives. As a major Qur’anic theme, references to human dignity occur in a variety of contexts. The Qur’an elevates humanity to a rank higher than the angels and honors it by the trust of being appointed vice- gerent (khaZij%h) of God on earth (2:30-4). The angels were told to pros- trate before Adam, the archetypal human being. This moral latitude of humanity is then complemented with a reference to the physical nobility of its origin: ”Surely We have created man in the best mould (955). Another passage (33:72) affirms humanity’s competence and trust- worthiness in the eyes of God. Furthermolr., God has subjected “whatever is in the heavens and whatever in the earth (4513) to humanity. And lastly, one could hardly overestimate the Qur’an’s emphasis on the sanc- tity of human life, as it equates the enormity of killing one innocent indi- vidual to the destruction and massacre of all humanity (532). Such evidence in the Qur’an and elsewhere has led Qutb (1954) and a1 Sibl‘i (1960) to conclude that dignity is a natutal right belonging to every individual. An individual is not honored for personal attributes or status in society, or for racial or tribalist distinctions, but because he/she is a human being. As both authors say, dignity is therefore the absolute right of everyone. H q q and ‘Ad1 The Shari‘ah tends to integrate right and obligation into the broad concepts of haqq (right) and h u h (ruling). A balanced implementation of rights and duties is, in turn, governed by Qur’anic standards of justice, as haqq is inextricably linked with ‘adz (justice) in the Qur’an. In fact, ”justice” is one of the Qur’anic meanings of haqq. Obviously, justice in Kamali: An Analysis of Right (Huqq) in Islamic Law 357 any legal system is concerned with the correct implementation of rights and duties. But the question here is over an organic integration of right and duty into justice, something unique to the Qur’an and thus distin- guishing the Islamic unitarian approach from other legal systems. As earlier stated, the Shari‘ah does not seek to eliminate the distinc- tion between rights and obligations or to emphasize their duality and divi- sion (the familiar pattern of a modem constitution). In the Qur’an, right and duty merge into justice so much so that they become, in principle, an extension of one another. It was noted earlier that h u h (ruling) sub- sumes both rights and obligations. The relationship between ruling and justice is also one of means and ends: a ruling is the means towards jus- tice, while the fulfillment and realization of huqq in its dual capacities of right and obligation is predicated upon justice. Islam thus seeks to estab- lish justice by enforcing Shari‘ah rulings which, in turn, is expected si- multaneously to mean the proper fulfillment of rights and duties. The Qur’an’s pervasive emphasis on justice proves that it is both a cardinal Islamic objective and a major Qur’anic theme. To stress this, the Qur’an declares justice to be the ultimate goal of religion, prophethood, and divine revelation, the very core and essence of Islam itself: “We sent Our Messengers with clear signs and sent down with them the Book and the measure in order to establish justice among people” (57:25). The phrase “Our Messengers’’ suggests that justice has been the goal of all divinely revealed religious guidance throughout human history. The thrust of this emphasis is on objectivity and universality in its standards: ”0 be- lievers! Stand out firmly for justice as witnesses to God, even if it be against yourselves, your parents and relatives and whether it be against the rich or poor“ (4: 135); ”And let not the hatred of a people swerve you from the path of justice“ (5:s); and “when you judge among people, you judge with justice” (458). The Qur’an also enjoins Muslims to be just to- wards non-Muslims, especially those who are not oppressors and who have not committed acts of aggression against them (60:8).* 9ullah (1991) tried to ascertain a ceaain priority in the Islamic value and belief structure. If there were three such values of absolute priority, these would be tuwhiii (oneness of God), risdluh (prophethood), and ‘udl (justice). He said that this scale’s order of iority had been deliberated by himself, in his capacity as chief justice of Pakistan, anfone of the other judges of the Pakistani supreme court. They agreed that as justice has such a high profile in the Qur’an, it should precede prophethood. Thus justice is a fundamental right of everyone This view is found in Mu‘tazili theological doctrines. Their creedal formulation of the five principles (wd ul WIumsuh) placed justice after oneness: tuwhiii (oneness of God); ‘udf (justice); uf wu‘d wu uf wu‘iil (belief in future reward and punishment); uf rnunzilah bayn ul rnanzilatqn (belief in the intermediate phase between Islam and dis- belief and, accordingly, between paradise and hell); and his& (commanding good and forbidding evil) (Abii Zahrah 1977). (cont.) 358 The American Journal of Islamic Social Sciences 103 Qur’anic standatds of justice ttanscend all disctimination. This high level of objectivity could hatdly be sustained in a situation of bipolarity between tight and obligation, for emphasizing one ovet the othet would likely compromise the objectivity of justice. A comptehensive approach to justice tequires rights and obligations to be integtated into the essence of justice. At present, many modem constitutions teflect a genetal acceg tance of this binary division and a commitment, in varying degrees, to putsue one ot the othet. ‘The Qut’an’s unitatian approach is to view tights and obligations as naturally integtal to justice while subsidiary to the es- sence of justice. Moreovet, justice and tight are not identical, for if they were, justice could be waived, like a pemnal a right, by one who had a claim to it. The Qur’anic view of justice is more objective than that and is conceptually free of the bias that a tight might entail in favot of its beam (‘Imihh 1989). Islam’s approach to balancing the right of God and the tight of the individual is objective in the sense that it seeks to p t o b t the i n t e e of both the individual and the community undet the umbrella concept of jus- tice. Cantmy to the philosophical orientations of individualism, libetal- ism, and socialism, the Shari‘ah does not seek to stress one ovet the dher. ’”he philosophy of Islam is justice, and this quires an integtated and unitarian approach towards tights and obligations (al Dathi 1984). Within the general framework of justice, the ptecise adjustment of tights and obligations in favot of one ot the othet may be open to othet i n t e e , for example considetatiom of public policy and public benefit (mu&&), insofat as they temain in hatmony with the Qur’anic value ftamewotk. Stressing rights ot obligations would thus be acceptable only if it would prove beneficial and reflective of an integrated apptoach to justice, gteater refinement in ijthd, and better accommodation of legiti- mate social aspirations. In sum, rights and duties in Islam are unified in the concept of bukm. This unity, in turn, is teflected in the Qut’anic concept of justice and has as its otigin the belief and philosophy of taw@. Establishing a correct balance between tights and duties is a function of changing social condi- tions and their accommodation undet the broad umbrella of ijtihad, which may advance fresh perspectives on the ideals of justice and promote em- ciency in its administtation. (amt.) When we in ‘ad& Quknr, Saqg, and.@*ib, there remains no & p i o n to a functional distinction between rights and their &vision into various categones depending on the nature of a particular right and the weight and character of amrmative evidence found in its suppott. the basic unity of Kamali: An Analysis of Right (Ifuqq) in Islamic Law 359 Rights and Fundamental Rights The origin of fundamental rights is traceable to seventeenth- and eighteenth-century European writets, particulatly Locke's and Rousseau's works on natural law, and the economic theory of laissez-faire. Vague and imprecise notions of natural rights were transfeed to the Americas by European immigtants, where they were refined and artkulated in the American constitution and its subsequent amendments. American judges continued to expound upon and refme them. Their work then influenced the constitutions of various European states and Japan after both the Fitst and the Second World War. In 1948, the General Assembly of the United Nations approved a list of about thirty human tights, which included the mote important fundamental rights and liberties (Munit 1975). The distinction between fundamental and other rights is subject to change in both content and attributes, for it reflects the values and out- look of a particular society at that particular stage in its histotical and cul- tural development. In westem jurisprudence, for example, Blackstone did not mention fteedom of speech while discussing personal liberties, and the classic passage on fteedom of the ptess occurs in his section on wrongs and libel. The nearest he came to mentioning ftee speech was in his "Right of Persons," when he mentioned the right to petition the king or the Houses of Parliament for redtess of gievances (Barendt 1985). In his classic study of the constitution, Dicey acknowledged that En- glish law took little notice of such concepts as freedom of speech and liberty of the press. He thus wrote that "freedom of discussion is . . . in England little else than the right to write or say anything which a jury, consisting of twelve shopkeepets, think it expedient should be said or written" (Dicey 1964). The implications of this for the publication of mi- nority and unorthodox opinions were almost totally ignored. Writers on modem constitutional law have identified several methock that can be used to distinguish fundamental rights fmm other tights. The most obvious one, in the context of western law and also perhaps in the constitutions of Muslim countties, is to refer to the constitution and as- cettain whether the right in question is expressed and recotded as such. In countries where the constitution is unwritten, fundamental rights can still be identified by reference to the rules, conventions, and judicial pre- cedents that may have identified cettain rights as of primary impottance to the legal system's structure and content? ?or example, in English law the rights to vote and to issue a writ of habeas corpus are both fundamental rights "as a matter of practice and history," as they are necessary for the proper working of the constitution (Bridge et al. 1973). 360 The American Journal of Islamic Social Sciences 103 To designate a right as fundamental often means that the coutt views it as politically essential to the existence of society or essential to indi- viduals and their sense of dignity and self-respect. Thus there are two often overlapping types of bdamental rights: those based on human dig- nity and those based on social policy considerations. For example, we re- spect a pemn's right not to be killed, as well as to privacy and of speech, as a matter of principle. We respect rights designed to maintain political integrity, such as the freedom of assembly and press, as a matter of social policy. If a right is respected on principle it may be restricted only for very compelling reasons, whereas a right founded on social pol- icy may be overridden or changed on grounds of social and political de- sirability. A certain ranking may be ascertained in each category: the right to life may have priority over privacy, or the right of a police officer to carry weapons may be seen as an ordinary social utility right when com- pared to the freedom of assembly and press. When rights in the first category conflict with those in the second, it seems proper that the court favor the former, for it would seem that social and political utility should not be bought at the price of respecting individuals (Murphy 1984). A legal right may be called fundamental when it embodies, in legal form, an essentially moral right or value. Moral rights are often deemed fundamental when the underlying moral principle(s) are judged as funda- mental principles of the moral system in question. Western jurisprudence has thus entertained different philosophical views (i.e., utilitarian, indi- vidualist, and the social contract theories of law) when trying to ascertain the law's basic value structure and what it may regard as fundamental to the system and therefore entitled to enjoy a greater order of priority.'o Most of these theories may have aspects in common with the influ- ences that determine the Shari'ah's approach to evaluating rights. Muslim jurists have almost unanimously considered the public interest (mas- Zahah) as an objective and a philosophy of the Shari'ah. The public interest is strongly utilitarian, notwithstanding the fact that in Islam it is subservient to a set of divinely ordained values." Another commonality is rights founded in the fundamental principles of morality. The principal difference here, however, is that the Shari'ah subscribes to the overriding authority of divine revelation as the determinant of basic moral and legal values. A right is considered fundamental by the Shari'ah if it is founded in the clear injunctions and basiclprimary principles of the Qur'an and the "Bridge (1973) expounds upon the theories of Kant, Kelson, Hart, and Rawls on the philosophy of law. "For a discussion of m&.?uh, see Kamali (1988). Kamali: An Analysis of Right (Huqq) in Islamic Law 361 Surmah. Although it makes no categorical pmnouncements that identify fundamental rights as a sepatate category, the Qur'an does contain a set of princip es that is reiterated and upheld in the Sunnah and the consen- tem. These tenets and principles tend to have an overriding influence and permeate almost every level and development of Islamic legal thought. A formal distinction between fundamental and other rights in the Shai'ah can be made by referring to the Qur'an itself. Rights founded on clear Qw'anic injunctions (i.e., life, pmperty, privacy, movement, justice, persanal dignity, honor, equality before the law, and of parents over chil- dren) may be classified as fundamental legal rights. The Qur'an also ex- pounds certain norms and principles that give the Shari'ah its distinctive identity and tend to have a g m t influence on its rules and doctrines. Thus such Qur'anic principles as bisbah (promoting good and preventing evil) umcinuh (trust), istiwlkif (vicegerency), and tu'ciwun (cooperation) may well pmvide textual authority for identifying many fundamental rights, whether of the individual, the community, the environment or whe- ther it be within or beyond a state's territorial boundaries. The Qur'an contains principles substantiated by the Sunnah, such as the removal of hardship (ruf ul huruj). The Sunnah itself deals with many other themes in almost every a m of the law. These may or may not directly embody a fundamental right, but may well provide authority for identifying a particular right as basic and fundamental. The Qur'an and the Sunnah further provide authority for each of the five essential values: life, religion, intellect, pmperty, and lineage. Many of these norms and principles have been identified and articulated by Muslim jurists as legal maxims (quwci'id kuZZzjwh) that express the Shari'ah's objectives on an impressive variety of themes. These maxims could be used as guide- lines for an Islamic theory of fundamental rights." In his study of human rights and fundamental freedoms in the Arab Middle East, Luca (1975) concluded that "the Koranic text has a stronger hold on the mind of the Arabs than declarations contained in their f o m l constitutior~~." It would be no exaggeration to pmject the substance of this statement onto other Muslim countries and then to proceed on the as- sumption that the w a n has a profound influence on the thoughts and conduct of all Muslims. The Qur'an can best be characterized as a stable some of authority and influence that is partly open to interpretation, but sus of sc d lars. As such, they are fundamental to Islam and its legal sys- '*Some effolt has already been made by individuals and organizations, such as the ulema of Egypt and Pakjstan and the I s h c Council of Ewpe, but there is scope for further research to enhance both the range aad value identification of fundamental rights in the Shari'ah. 362 The American Journal of I s M c Social Sciences 103 having definitive injunctions and a basic value ~ t ~ c t u r e that cantlot be al- tered. This continuity of values is the dominant feature of the Qur'an. It then follows that the basic concept of fundamental rights and their identi- fication in the Qur'an and Sunnah a ~ e acceptable and recommended, insofar as this articulates the essentials of the Shari'ah in this area. It also gives them a concrete expression that could be used as a basic indicator of the place of a particular right, norm, or principle in the general frame As for d d e r a t i o n s of public intetest, the ulema have devised a --fold classification: essential (&rrir@dt), complementary (@i@dt), and desirable (@fn@dt) interests. Essential public ink- are defined as those that are essential to life and in the absence of which the normal social order would collapse. These ink- are life, digion, intellect, property, and lineage. A minority opini" adds a sixth one-dignity ('ir&-which the majority opinion subsumq under "life." These must be protected at all cost, as a society cannot affo to expose them to danger and collapse. To prdect them, and to promo r and develop them further, is a basic duty of govemment in Islam. Next in this order comes the com- plementary interests, which are followed by the desirable inte- and embellishments. These categories are often intenelated, open to value judgment, and tend to vary in reference to the circumstances in which they are evaluated. For example, a complementary intetest in one setting may well belong to a higher or a lower class of interests in another. The means and methods of protecting these esential values may differ ac- c o t d i n g t o c ~ ces, but their basic structure is not changeable. Some write= have drawn a parallel between the essential interests (uZ rna-ZiQ aZ &rtir@uh) of Islamic law and fundamental rights (d huqtiq al u$Z@uh) of modem constitutional law. '1- (1989) makes perhaps the most explicit attempt. He is inclined to equate the idea of necessity with that of essential rights and to suggest that the recognition of a basic value structure in the Shari'ah would justify all measUtes designed to pro- tect these values and facilitate their proper development. There is thus no objection to telminology or classification, for regardless of their designa- tion, the Shari'ah advocates them and validates their protection. This is a slightly diffemt perspective than the majority scholarly opinion. The general approach is to ascertain the place and validity of each right in the Shri'ah's soutces in a normative capacity as values in their own right, rather than having them viewed as extensions of a par- ticular jutistic doctrine. Pethaps the threefold classification of rnwdih can be utilized as a basis of classifying fundamental rights and liberties along similar lines What all of this serves to illustrate is that the= is no shortage of basic Shari'ah authority in support of these rights. work of Qur'anic values. K d An Analysis of Right (I/oqq) in Islamic Law 363 There is already a legacy of experience and precedent in constitution making available in contempomy Muslim countries. This legacy is often predicated on the binary division of rights and liberties into corrstitutional and ordinary. But since constitutionalism as a movement is a western phenomenon that was closely imitated by postcolonial and newly emerg- ing Muslim states, the experience tends to lack any attempt to forge a link with the indigenous Islamic heritage. The foreign origin of this ex- perience does not necessarily proscribe or make the endeavor repden- sible, but it does imperil the task of coherence and integration. In fact, re- taining or formulating many such elements in light of the Shari‘ah’s guidelines is distinctly desirable, for this would develop harmony and co- herence in the legal and cultural experiences of contempora~ Muslims. Conclusion It seems that many aspects of haqq in Islamic law were developed in the absence of a clearly articulated definition. However, it is also clear that Muslim jurists articulated, at an early stage, a definition for Qukm sharY (Shari‘ah ruling) and all of its various cornp~nents.’~ This essay has shown the ulema’s tendency to subsume hzqq under the wider con- cept of lu&n. The availability of a clear definition for h u h may have retarded progress on one for haqq and may also have encomged the ten- dency to subsume one under the other. H u h also exhibits a closer af- finity with obligation (WLfjib) than does haqq. Right and duty are, of course, correlated even if they are not mimr images of each other. Al- though rights and duties are not always comlative, in that one can exist without the other, noncomlative rights and duties are nevertheless spe- cific exceptions of marginal, rather than central, significance.’* The analysis presented in this paper supports the relative prominence of h u h and wdjib over haqq in Islamic law. But this has never meant that the latter could be relegated into insignificance, nor has it detracted the ulema from paying exclusive attention to developing its various as- pects: causes (mhb), varieties and classifications, its uses and abuses are the I f d i m (the Lawgiver), m & h j i % (subject matter of e), mu& E m ‘ulayh (the party of incidence), and the h u h itself. “Although the correlative nature of rights and duties is a much debated subject in jurisprudential literature, it seems that a duty can exist independently of a right. This might be true of Islamic law, for many obligatoxy duties that can be classifierl as ‘ihia!& a~ not necessarily predicated on a particular right. Similarly, duties related to criminal law, whether Islamic or western, are rmposed on membas of society, none of whom have concomitant rights @ias 1976). On the other hand, a right seems to be more dependent on a duty, thus making duty appear as the stmnger or more independent unit of this duo. 364 The American Journal of Islamic Social Sciences 103 (isti'ma-l a1 @q and ta'assuf j? kti'mil a1 huqq), fulfillment of right (istrJE' a1 haqq) and termination of right (inqidi' a1 @q)." I also de- veloped a certain view on the relationship of @q with 'ad1 under the unitarian influence of tawhrd and have, in the same light, discussed the recognition of fundamental rights as a separate category in Islamic law. Western jurists are divided on the relative significance of right vetsus duty. Hohfeld (1964) was not the first to recognize "right" as a very am- biguous term, but he elaborated upon this theme to a much greater extent than did his predecessors. Right is an advantage and, as such, a general concept when compared to duty, which is specific. A person having a duty must be told specifically, not in general terms, what he/she may or may not do. But a right to life and property, statable as it is, is very gen- eral and may be correlated with a long list of duties. To correlate a right to a specific duty is therefore not always self-evident, as this relationship, certain as it is, can be either clear and immediate or diluted and remote. With this in the background, western thinkers have advanced two theories, one that advocates the relative primacy of rights as the origin of duties and another that is known as the redundancy of rights: "Whether we speak of rights or duties is at the end of the day merely a matter of perspective or style since nothing extra is conveyed by using instead of duty the language of right."16 "Being a right against" can be seen as "hav- ing a duty towards" without in any material sense detracting from or denying the substance or the two-party relationship of either. It is perhaps due to the corresponding relationship, or correlativity, of right and duty that recognition of one requires a corresponding recognition of the other. References Abii Sinnah, A4mad F. "Nazariyat a1 Baqq." In A1 Fiqh a1 I s l i m i A s a a1 Tashrf, edited by M*mmad T. 'Uwaydah. Cairo: Matiibi' a1 Ahrsim a1 Tijlriyah, 1391/1971. Abii Zahmh, Mubarnmad. Tiri lh a1 Madhihib a1 Islimzjah. Cairo: DZr a1 Fikr a1 'Arabi, 1977. A1 ',&midi, Sayf a1 Din. A1 Ihkxim jT UsGl a1 Ahkxim. Vol. 3., 2d ed., edited by 'Abd a1 Razziq 'Afifi. Beirut: a1 Maktab a1 IslGmi, 1402/1982. "For details, see al Sanhiiri (1954): I, 35 ff; Abii Sinnah (197 1): n. 7, at 175 ff; M M "For details, see Stoljar (1984). (1954): n.14 at 211 ff; and al ZmqS (1967): n.8 at ID, 15 ff. Kamali: An Analysis of Right (Ilaqq) in Islamic Law 365 Azzam, Salem, ed. Universal Islamic Declaration of Human Rights. Lon- A1 W - y , Mdpmmad. A1 Isldm fi Hall M a s W l a1 Mujtama 'at a1 Is- Barendt, Eric. Freedom of Speech. Oxford: Oxford University Press, Bridge, J. W. et al. Fundamental Rights. Landon: Sweet & Maxwell, Calverley, E. E. "Ha&" In 7 7 ~ Encyclopedia of Islam. Vol. 3. New Edi- CutLon, L. B. Jurisprudence. Plymouth, U.K.: Macdonald & Evans, 1979. a1 DarirG, F a ~ L A1 Haqq wa Ma& SultrSn a1 Dawlah. 3d ed. Beirut: mas, R. W. Jurisprudence. 4th ed. London: Buttenvorths, 1976. Dicey, A. V. Introduction to the Study of the Law of the Constitution. loth ed. London: Macmillan, 1964. Enayat, Hamid. Modern Islamic Political Thought. London: Macmillan, 1982. Gibb, H. A. R. "Constitutional Organisation." In Law in the Middle East, edited by M. Khadduri and H. Liebesney. Washington, DC: The Middle East Institute, 1955. B a w d , A4mad J. Hurrgat a1 Ra'y ~7 a1 Mayddn a1 Siyd3L Cairo: Diir a1 Wafa', 1987. B a w d , A4mad Z. "Ghadli's Juristic Tteatment of the Shari'ah Rules in a1 Mustasf." The American Journal of Islamic Social Sciences 4, no. 2 (December 1987): 158-77. Hohfeld, Wesley. Fundamental Legal Conceptions. New Haven: 1964. Ibn 'Abidin, Mul.mnmad A. Ifd3hQat Radd a1 Muhtdr 'ald Durr a1 Mukhtdr. Vol. 4, 2d ed. Cairo: Mustafa al mi a1 Halabi, 1386/1966. Ibn a1 Qayyim. I'kfm a1 Muwaqqi'in, vol. 1, edited by M&ammad M. al-Damashqi. Cairo: IdZrat a1 TiWah a1 Mrn-riyah, n.d. Ibn Nujaym, Zayn a1 'Abidin. A1 Bahr al Rd'iq Sharh Kanz a1 Daqd'iq. Vol. 18. Cairo: a1 Matba'ah a1 'Ilm-yah, 1311/1894. 'ImZrah, Muhammad. A1 Isldm wa Yuqiq a1 Insdn: Oarirdt Zci Yuqiq. Cairo: DZr a1 Shurijq, 1409/1989. Kamali, M. H. "Have We Neglected the Shari'ah Law Doctrine of Mas- lahah?" Islamic Studies 27 (1988): 287-304. __--- . Principles of Istamic Jurisprudence. 2d ed. Cambridge, U.K: The Islamic Texts Society, 1991. a1 Khafif, 'Ali. A1 Haqq wa a1 Dhimmah. Cairo: Maktabat Wahbah, 1945. don: Islamic Council of Europe, 1981. kfmqah al Mu'cisirah. Beirut: Diir al Fib, 1393/1973. 1985. 1973. tion. Leiden: E. J. Brill, 1971. Mu'assasat a1 Ridah, 1404/1984. Lane, Edwatd W. Arabic-English Lexicon. Book 1, part 2. London: Wil- liams and Northgate, 1865 (reissued in 1978 by Islamic Book Centre, Langamdi, Muhammad J. Maktabha-e Huquqi dar Huquq-e Islam. Teh- ran: Kitabkhana-e Ganj-e Danish, 13701 199 1. ha, C. ”Discrimination in the Arab Middle East.” In Case Studies on Human Righrs and Fundamental Freedoms. Vol. 1, edited by W. A. Veenhoven. The Hague: Martinus Nijboff, 1975. A1 Mawsfi‘ah a1 Fiqhyah. Vol. 18. Kuwait: Widrat a1 Awqiif wa a1 Shu’iin a1 IslBm-yah, 1409/1989. Murk, Muhammad. Constitution of the Islamic Republic of Pakistan 1973: A Commentary. Lahore: Law Publishing Company, 1975. Murphy, Jeffrie G. An Introduction to Jurisprudence. Tofowa, NJ: Row- nan and Allanheld, 1984. M K , M-mmad Y. A1 Fiqh a1 Isldml: Cairo: E r a1 Kutub a1 Ya- dithah, 1374/1954. Panikkar, Raimundo. ”Is the Notion of Human Rights a Western Con- cept?” Interculture 17, no. 1 (March 1982). Al Q d , Shim al Din. Kitdb a1 Furziq. Vol. 1. Cairo: DBr a1 Kutub a1 ‘Arabiyah, n.d. Qutb, Sayyid. A1 ‘Adduh a1 Ijtimci‘ijuh jT al Ishim. 4th ed. Cairo: ‘ki a1 BEbi, 1373/1954. A1 $BbiM, ‘Abd a1 R&man. Mu&i&rtitfial Shun-ah a1 IshQah. n.p., 1392/ 1972. Al Sanhk-, ‘Abd a1 R-q. M a s a i r a1 Haqq fl a1 Fiqh a1 IskTmt: Cairo: Ma‘had li a1 Dir5Gt a1 ‘Arabiyah a1 ‘Aliyah, 1954. $adr a1 SharT‘ah (‘Ubayd All& a1 Ehkhiir‘i). A1 Taw&. Vol. 2. Cairo: Mah‘at DLr a1 Kutub a1 ‘Arabiyah a1 Kubri, 1327/1909. Schacht, Joseph. “Law and Justice.’’ In The Cambridge History of Islam, edited by P. M. Holt. Cambridge, UK: Cambridge University Press, 1970. A1 ShEtibi, Abii IsGq I. A1 Muwdfaqdt jT Usiil a1 Shun-ah, edited by ‘Abd All* Diriz. Vol. 2. Cairo: A1 Matba‘ah a1 R m - y a h , n.d. A1 Sibii‘i, Mustafa. Ishtirdkzjvzt a1 Iskim. 2d ed. Damascus: Diir a1 Qawm-yah, 1379/1960. Siegman, Henry. ”The State and Individual in Sunni Islam.” The Muslim World 54 (1964). Stoljar, Samuel J. An Analysis of Rights, Wiltshire, UK: Macmillan, 1984. a1 Zae, Mustafa A. A1 Madkhal a1 Fiqhial ‘ imm. Vol. 3. Damascus: Zullah, Muhammad A. “The Application of Islamic law in Pakistan.” Ad- Islamabad, Pakistan). DBr al Fib, 1967. dress by the chief justice of Pakistan, 6 September 1991.