Theoretical Foundations of Human
Rights: Defining the Relation between Intra-Religious and Meta-Religious
Arguments
Seyed Sadegh Haghighat
One of the
most pivotal discussions on the theoretical foundations of human rights
concerns defining the relation between intra-religious arguments and
meta-religious ones. By meta-religious or meta-textual arguments it is meant
those theoretical and rational arguments that are invoked before reference to
textual sources of the religion. In contrast, intra-religious or textual
arguments directly relate to the very text; thus, so far as it concerns
religions, they take the form of narrative.
The main
question that may be considered as the second part of the present author’s
paper to the first conference (2001), is how these two categories of arguments
confront each other with respect to the issue of human rights and which one
takes precedence in the event of conflict. The focus of discussion in this
paper (as it addresses intra-religious arguments) is the religion of Islam;
however, some argumentations and propositions may be of general application.
The answer
to this question is first sought in the opinions of scholars and then, in line
with review and critique of such differing opinions, it is tried to verify the
hypothesis that human rights are originated in a combination of both
intra-religious and meta-religious arguments. In other words, human rights are
neither purely meta-religious phenomena nor purely intra-religious ones, but
instead, they are, in accordance with the explanation presented in the
conclusion to this article, based, in a special manner, on both groups of intra
and meta-religious arguments. A similar hypothesis has already been examined,
by this author, with respect to the relation between political philosophy and
political religion and their application to a specific subject (i.e. the
question of the distribution of power). (Haghighat 2002).
Meanwhile,
Abdollah Nassri has made a compromise between the two intra and meta-religious
methods in his discussion on man's expectations from religion: "There is a
third method for understanding the realm of religion. In this third method,
although the meta-religious method is the focus, the point is stressed that
through the intra-religious method, and in the light of reason, one can
establish the necessity of reference to religion in order to understand its
boundaries and scope. In fact, man’s inability to identify his ultimate good as
well his right path he should take to attain perfection, necessitates reference
to religion so that it would lead us to perfection through elaboration of the
details" (Nassri 35-36).
At his stage, the
meaning of right is briefly addressed: "Right means a power, capacity, or
privilege established through the law or legal rules for its holder, through
which people are enabled to impose their wills on others and require them to
observe it" (Modarres 26).
The core of the idea
of human rights is the proposition that man, by virtue of his/her being human,
avails of dignity and sanctity, and thus should be treated as inviolable (Perry
43). In this field, rights mean those rights that constitute the foundations of
the political and social system, not those rights that are morally binding on
people (Mojtahed Shabestari 2000, 203). Therefore, human rights comprise the
rights belonging to the human being since birth, by virtue of being human.
Human rights may be
conceived in two different ways. By the first conception, it is meant the
general notion of the rights relating and belonging to human beings (because in
this sense, human rights refer to natural rights which are known to be
ahistorical phenomena); while the second conception refers to modern human
rights enshrined in declarations on human
rights. Where mention is made of human rights in Islam and in other religions,
the first conception is intended, while where one speaks of the common points
and the differences between Islam and human rights, reference is made to the
second conception.
The idea of natural
rights existed in all religions, but the expression “human rights” is a product
of modernity. What is sought by the hypothesis presented in this paper is the
ideal human rights. Modern human rights are independent from (but not against)
religious values. Although the French Declaration of the Rights of Man and
Citizens includes a passing mention of God, the Universal Declaration of Human
Rights does not even contain such a reference to God.
Now prior to
introducing the main line of discussion,
we have to make the following assumptions:
Assumption 1: Human
rights have foundations; inasmuch as neutral and value-free science does not
exist, it is not likely that one can define rights for the human beings without
relying on certain foundations and presumptions. While Michael Freeman regards
human rights as having theoretical foundations (Freeman in Sharifi 41), some
scholars opine that if any theory should necessarily have a foundation, it may
lead to regressio ad infinitum. MacIntyre believes human rights
to be existing but non-provable phenomena (Ibid 45).
Assumption 2: Islam has human
rights of its own (human rights in the first sense).
Assumption 3: There are common
grounds between Islam and modern human rights, such as the right to life, and
the right of property.
Assumption 4: Islam differs in
certain points from modern human rights, including such issues as: corporeal
retaliation (qisas), succession rights for men and women, limitations on
freedoms enjoyed by followers of recognized non-Islamic religions as well as
the laws governing such people (Haghighat and Mirmoosavi 255-322). Difference
in rights may be attributed to difference in foundations. Islam gives
prominence to divine revelation and will, while in modern human rights, the
individual human being and his/her reason are regarded as the most prominent
(The Authors 94-99, 130-131, 161-162). The likelihood of full compatibility
between Islam - in any of its interpretations- and modern human rights appears
to be out of relevance.
Assumption 5: Religion and reason do
not confront each other. Rational evidence in the event of their validity may
serve as a kind of religious evidence (Javadi 41). The subject of this paper is
to define the relation between meta-religious and intra-religious arguments
with respect to the issue of human rights.
Assumption 6: Secularism and
modern human rights as a consequence, are non-religious but not against
religion. It is true that secularism and human rights are necessary companions,
but it cannot be held that they are hostile to religion (Nikfar 55). The
content of human rights is secular, not anti-religious (Mojtahed Shabestari
2000, 227). Religion in human rights of today, is a matter of personal concern,
rather than a matter of preference (Ibid 256).
With a view to
organizing the present paper, one may refer to the fact that in the opinion of
some thinkers, religion and human rights are in conflict and thus, they discard
the question of intra and meta-religious arguments. However, those who find no
conflict between the two, may base their discussion on the concepts of intra
and meta-religious arguments. Therefore, although some thinkers invoke both
categories of intra and meta-religious arguments, they usually settle
controversies over such issues as human rights, on the basis of a single
category (Ibid 230).
Based on the above,
this paper is presented in three basic sections each consisting of contrasting
interpretations on the respective issue. Making distinction among such
interpretations would contribute to better description of the subject, while it
is intended neither to exclude other interpretations than those explained in
each section, nor to deny the likelihood of overlapping. The most significant
limitation of this paper arises from the fact that due to elaboration on the core
subject of each section and its interpretations, there is little room for
detailed discussion of the respective arguments, and their analyses.
1-
Conflict between
Religion and Human Rights
The first
possibility that can be addressed in the discussion of the relation between
human rights and religion is their conflict and incompatibility. If human
rights could not be justified by religion, there would be no opportunity to
define the relation between intra and meta-religious arguments. The first five
interpretations that follow, can be regarded as meta-religious arguments, while
the last one refers to the very text of religion.
1-1
Interpretation 1:
If one subjects the
expression “human rights” to semantic analysis, the result would be the
discovery of rights which man enjoys by the mere virtue of his/her humanity and
not because he has adheres to a specific religion or because he obeys the
orders of God. Undoubtedly, here the conventional sense of right and not its
real sense (or the objective and external reality or even a conception truly
corresponding to reality). Right in the conventional sense, means a permission,
a transitive right (which may be invoked against others), and entitlement
(Soroush in Bastenegar 331-332). By introducing religion in the discussion on
human rights, the rights would transform into duties, and thus the main
objective of the discussion would become irrelevant.
The language of
religion is the language of duties. The term ‘right’ as it was used in the
decree issued by Imam Ali to Malik Ashtar did not bear the same sense as it has
today, because in that decree the main issue was the mutual obligations of the
ruler and the subject towards each other (Mojtahed Shabestari 2000, 204)).
Review and Critique
A kind of duality is
behind the above interpretation between
God and human being, as well as between rights and duties. If one considers
reason as the inside evidence and religion and divine revelation as the outside
evidence, and if the principle of correlativity between reason and religion is
accepted, the above distinction would become questionable. Whatever reason
understands serves as the path to discovery of religious obligations and the
rulings of the divine legislator, because he is the supreme reason. In
accordance with the theory of rational good and evil, right and duty
correspond. Motahari as well, had found out this companionship between rights
and obligations from Imam Ali's saying in Nahj ul Balaghat, Sermon 21 which
states that there is no right for man unless there is a duty on him/her
(Motahari 62-63). The following sections would serve as critiques to the above
interpretation.
1-2
Interpretation 2:
Since human rights
are the quest for the rights belonging to human being by the mere virtue of
his/her humanity, they avail of general scope and applicability. However, the
fact is that religion has become multifarious through the existence of
different uncompromising tastes of the individuals. Not only religions are
divided into divine and non-divine religions, but also the very religion of
Islam has always suffered from conflicts among its internal sects (known as the
seventy-two nations war).
Hermeneutic
discussions also relate to varying interpretaions of a single text based on
different presumptions. Thus, even if we take God’s existence for granted, his
rights cannot be established with certainty.
History has
witnessed innumerable developments made in religious ordinances and ideas by
clergies and religious leaders. Once, the Christian church used to incinerate
the deniers and heretics; and today, some Muslims do not tolerate the
participation of women in parliaments. That is the reason why such capricious
opinions cannot be relied as the bases for the rights of God and human rights,
so that people are invited or forced to observe them (Soroush 1983, 275-277).
The thirty-years war in Europe, as well as the
war between Muslim Shiites and Sunnites in certain periods of history evidence
this fact.
Review and Critique
The historical
evidence to the inefficiency of religious sects does not stand up to
theoretical scrutiny. Failure of the followers of a religion may have been due
to matters unrelated to religion, such as opposing tastes, profit- seeking, or
other human and non-human features. The scope of the present paper extends to
Islam the first ( the Qur'an and the Prophet’s tradition), as well as Islam the
second( the interpretaions thereof), but not Islam the third (the practice of
Muslims).
The variety of
interpretations in different religions does not prevent the believers from
their commitment to their fundamental beliefs. In classical hermeneutics,
understanding of the text as well as its central meaning is assumed. In the
ontological hermeneutics of Gadamer too, such assumptions are made with respect
to understanding of the text. Although Islam the second is not necessarily
Islam the first, there is no other way to understand the Qur'an and the
Prophet’s tradition but to systematize our methods, approaches, and
presumptions.
1-3
Interpretation 3
Since one cannot get
to ‘ought’ from ‘is’, the rights cannot be based on the potential talents and
the actual capacities of human beings, otherwise it would result in racism and
suchlike (Ibid 275). Thus, the criterion in establishing human rights would be
the mere fact of man’s humanity, not man’s belonging to a specific race,
religion, or similar boasts.
Review and Critique
The fallacy of this interpretation lies in its grouping
of religion with race, language, and nationality. Religion is the voice of God
heralding the annulment of racial or other like superiorities.
1-4
Interpretation 4
God’s existence as
well as his owning of certain rights having been presumed, He himself, is able
to defend and restore His rights with full force and authority. Defending human
rights is based on a moral imperative which is backing the oppressed and the
deprived whose rights have been infringed; this would not apply to God (Ibid
274).
Review and Critique
The fallacy of this
argument lies in its identification between the two meanings of ‘right’. The
rights of God against people does in no way indicate His need to such rights or
His incapacity to restore them.
1-5
Interpretation 5
Religion contains
universal ordinances, while the communitarianists as well as the post-moderns today, attend to regional
rights and cultures. Cultural relativists disregard the criteria derived from
outside sources, including religions (Freeman in Sharifi 40).
Review and Critique
Although religion
consists of universal laws and ordinances, it has also an eye on the temporal
as well as geographical application of such laws, as we will see later in this
paper. Neither all the laws of religion are of general applicability, nor all
political philosophers are particularists. Relativists compose only a portion
of the community of philosophers. While Milen speaks of human rights with a
view to different traditions, customs, community ethics, religions and
ideologies (Milen 62-70), Jack Donnely still persists on the absolute
universality of human rights (Donnelly 9-12).
1-6 Interpretation 6
Notwithstanding the
theoretical extra-religious argumentations, we may identify the points of
conflict between religions and human rights by refering to the very text of
religion. For example, Islam did not abolish slavey and does not recognize
equality between men and women, as well as between Muslims and non-Muslims
(Soroush in Bastenegar 335).
Review and critique
The fact that there
exists certain conflicts between western modern human rights and the divine
religions- including Islam- cannot be doubted. The Islamic human rights are
specific to this holy divine religion and should not be assimilated to and
assessed against human rights that were formed and developed on a bed of the
enlightenment era, as well as humanist and liberalist thinking, with the
expectation that they should exactly conform. However, the discussion whether
the above-mentioned examples are plausibility in Islam, requires further
pondering and review (Haghighat and Mirmoosavi 284-322).
2- Human Rights As
Meta-Religious Rights
Those who do not
regard human rights to be in conflict with religion, may rely in their
argumentation on meta-religious evidence. Thus, in identifying human rights,
they basically refer to rational arguments, and accord them priority in case of
conflict with textual evidence. Therefore, the argument revolves around the
idea that human rights are finally defined out of the scope of religion.
Soroush stresses the point that the discussion here is over the conflict
between religion and human rights which would not imply that religion does not
have any say of its own (Soroush in Bastenegar 339).
The following eight
interpretations, except the last one, rely on meta-religious evidence to
demonstrate the meta-religious character of human rights:
2-1 Interpretation 1
"Human rights
is not a purely religious and jurisprudential issue. It is a
theologico-philosophical, and beyond that, a meta-religious topic. This means
that the issue of human rights, like the discussion of good and evil,
determinism and free will, God, and the prophets, should be considered as prior
to the understanding and acceptance of religion, affecting this understanding,
and outside the scope of religion. Neither liberalism would be able to restore
human rights in their entirety, nor religion is totally unfamiliar with this
subject" (Soroush 1993, 281-82). The origins of the discussion on human
rights can be traced to the expectations of man from religion. On this basis,
the mandate of religion with respect to the rights of human being is confined
to defining general values.
Review and Critique
If human rights are
not entirely religious, and if on the other hand, religion is familiar
with the concept of human rights, one may conclude that human rights cannot be
regarded as an absolutely meta-religious issue. Thus, the boundary between the
intra-religious and the meta-religious arguments on the subject of human rights
must be identified.
It does not appear
that there be a convincing argument for avoiding reference to the inside of
religion on such issues as human rights. If God has made ordinances and
propositions in a general form with respect to human rights, wouldn’t this fact
be sufficient to justify reference to intra-religious arguments in order to
discover the extent of God’s ordinances and rulings on the issue?
There is no denying
that a major part of human rights stand outside the scope of religion. Even
those who invite us into the religion, set out their discussion with
meta-religious arguments (See: Javadi 89-126). The above interpretation does
not face any problem to this extent. However, it fails to show that the main
source of reference, especially in cases of conflict, would be meta-religious
arguments. If determination of the criteria and identification of details are
wholly left to human reason, it might be a likely cause of controversy and
conflict of ideas; in the same way that the conflict between socialists and
liberals has not been resolved in the whole course of history.
The boundaries of
man’s expectation from religion are drawn in the dialectic between
intra-religious and meta-religious arguments. Thus, one cannot finally resolve
the issue by resorting to a single pack of arguments.
2-2 Interpretation 2
"Things that
own a prior nature and substance cannot become inherently religious, because
one thing cannot simultaneously have two natures and two substances… Therefore,
there cannot be a science of sociology, for example, which is inherently
religious, or a philosophy which is basically Islamic or Christian. In the same
line, an inherently religious government is also impossible, unless by way of
incidental existence. And is it different from what the seculars claim?"
(Soroush 1997, 438-39).
By extending this
line of discussion to the issue of human rights, one may conclude that
‘religious human rights’ cannot exist otherwise that by way of external reality
or in a figurative way, which is accepted by seculars as well.
Review and Critique
In order to
characterize the above concepts as religious, it would not be necessary
to identify the nature of government and suchlike with religion. Their unity
with religion in the capacity of extrinsic existence would suffice, and this
fact would not render such unity and identification incidental.
In addition, it is of
little relevance whether human rights, or ethics are of an independent reality;
what matters is whether religion, in its own substance, has intermingled
with some kind of morality (and human
rights). The question is not the characterization of those concepts and issues
as religious issues. The point is whether the divine religion contains any
ordinances or recommendations on such issues (See: Larijani 1997, 57-59).
2-3 Interpretation 3
Similar to the the
second interpretation by those who believe in contradiction between religion
and human rights, some scholars have invoked the multiplicity of
interpretations from religion as the reason for the meta-religious feature of
human rights and the necessity of their meta-religious character:
"Which interpretation,
among many, of Islamic religious texts should serve as the basis for
determination of human rights? What do certainities of Islam mean? The fact
that the holy Qur'an contains ordinances is one thing, and the question if
those ordinances still bind Muslims today is another. Islam has neither
churches nor any dogma. Whatever the Islamic scholars say can only be regarded
as their opinions and not more. Metaphysical human rights belong to the heaven
and not to the earth. In practice, these heavenly human rights may lead to
brutal conflicts and blood-shedding" (Mojtahed Shabestariop.cit. 244).
Review and Critique
As already noted,
the concern of Mojtahed Shabestari is to present a system of human rights
capable of practical implementation. For this reason he avoids theoretical
discussions regarding the real world. In the event that we find any relation
between human rights and religion in our theoretical discussions, we have
achieved our objective in theory, be that enforceable in our time due to its reception
by the world, or postponed to some unknown future. Has Islam itself been
received by all the people of the world today? The religious character of human
rights would not require a violent interpretation of Islam and its imposition
on Muslims and non-Muslims alike.
2-4 Interpretation 4
The Ash'arites do
not believe in the objectivity of good and evil. Contrary to them, the Adlieh
(Mu'tazilis and Shiites) regard good and evil to be objective. Thus, whatever
is good in reality, God has ordered to be done. The validity of human rights is
intrinsic, and things that are good in their reality, can also be found through
intra-religious arguments. The point is that the validity of such rights is
intrinsic and not because they are religious.
Review and Critique
The good and evil
argument is basically accepted; doubting it would place us close to the
Ash'arites. However, one cannot deny the need to religious reasoning and
discussions by merely invoking this argument or the necesaary relation between
the rule of reason and the rule of religion. The objectivity of good and evil
is only valid with reference to their existence, not their actual discovery and
verification (Javadi 54). Therefore, in the discovery and verification of good
and evil, it would not be wrong for reason to seek help from religion and
identify rules (in respect of human rights as well as in other respects) that
approve findings of reason.
2-5 Interpretation 5
Being human is prior
to man's choice of a specific religion. Therefore, the rights arising from his
humanity take precedence over his religious rights (,if proven).
Review and Critique
The fact that man
avails of rights and priviledges by virtue of his humanity before he accepts a
specific religion cannot be doubted. However, this proposition would not imply
that human rights (as defined in humanist discussions) contradict divine rights
of God, and are prior to them. Thus the possibility remains that human being,
in his/her quest for rights, accepts a specific religion and thereby, refers
both to intra-religious and meta-religious arguments.
This applies if we
consider human being to be independent; but if his/her existence is identical
with relation rather than independence, the above argumentation might be
eliminated.
2-6 Interpretation 6
By invoking the
theory of social contract and natural rights, John Locke characterizes human
rights as non-religious. Natural rights shall mean the rights belonging to
human beings by virtue of the law of nature, such as the right to life, the right
to freedom, the right to property, and as Locke and his followers believe, the
right of participation in government. Although the theory of natural rights
dates back to before Christ, and thereafter to Ciceron, it was John Locke who
applied this theory to justify the success of the 1688 revolution in England. He
justified the right to property from a moral point of view because he regarded
it as the outcome of the owner’s labor, and classified it among the natural
rights (Abosaid 22-30).In his opinion, inasmuch as the basic law of nature is
preservation of mankind, any human legislation contradicting that law, would be
out of relevance and invalid (Mansoori 240-41). Human being possesses the right
to property in the state of nature; however, in order to protect this right, he
surrenders to social contract.
The natural rights
incorporated in the Universal Declaration of Human Rights include: the right to
liberty, the right to equality, the right of property, as well as certain
freedoms (Abosaid 31-2). No source, even a divine religion, may deprive men of
such rights. In Thomas Paine’s terms, all human beings are born free, and with
equal natural rights, and the rights belonging to the nature of human being
cannot be violated by man or by others.
Jamshid Momtaz poses
a criterion for identification of natural rights: if a rule of law exists
independent of the will of government, and thus cannot be abolished or
modified, even through constitutional legislation, because it is deeply rooted
in human morality and in the common sense of every reasonable human being, this
rule of law can be characterized as a natural law (Momtaz in Sharifi 9).
Review and Critique
The generality of
the origin of rights is not subject to question, while religion can be resorted
to as a source of their verification. The point is that there has been continuous controversy among the
proponents of natural rights in the course of history over the instances and
the extent of such rights. For eample, the rights to liberty and equality do
not appear to be readily compromised (Abosaid 33). These are the areas where
religion can adopt a more detailed function. True, if it is assumed that
certain instances of natural rights have already been discovered while they are
opposed by religious arguments, then the natural rights would take precedence.
As Dworkin points
out, sometimes the intrinsic and natural values would contribute to further
ambiguity rather than clarification of human rights (Perry 2-5). The cnterion
set by Jamshid Momtaz would not totally eliminate the ambiguity. Natural or
intrinsic rights have been invested in man by God, according to the divine
discretion, and are therefore dependent on His will. The rights of human being
correspond with his natural duty to attain human virtues. Therefore, along with
every natural right, there exists a natural duty restricting that right (Nasr
49).
2-7 Interpretation 7
Metaphysical human
rights (maintained by Mesbah, Javadi Amoli, and Ja'fari) do not qualify for
actual implementation. If the question were how, within our traditional
metaphysical sytem of philosophy, one may envisage rights for human being, this
would only be an effort to resolve a metaphysical problem.
The drafters of the
Universal Declaration of Human Rights sought a way to prevent violence and
oppression with sanctioned application to every human being. Today, many
philosophers as well as many people of the world cannot think metaphysically,
be it right or wrong (Mojtahed Shabestari 2000, 238-242).
Review and Critique
Two different issues
have to be dintinguished: the relation between human rights and religion, and
presentation of human rights acceptable to all. The first issue is of
theoretical nature and based on the organization of the present paper can be
answered in three different ways: the contradiction between human rights and
religion, their compatibility while the meta-religious arguments take
precedence, and their compatibility while the intra-religious arguments take
precedence.
The second problem
refers to practice and implementation. Its concern is to introduce human rights
that are equally enforceable in practice for both Muslims, and non-Muslims, as
well as believers and disbelievers in metaphysics. Mojtahed Shabestari deals
with the first issue while the present paper addresses the first problem only.
2-8 Interpretation 8
If we step inside
religion from outside, we can obviously witness the lack of rules and
propositions regarding human rights. This fact is proved by two considerations:
first, the religious jurisprudence (fiqh) cannot establish a system; it
is only able to answer general questions (Mojtahed Shabestari 1997, 52-62).
Religious jurisprudence is a backfront worldly science, dedicated to apparent
facts, with mean morality, consumer, minimal, affected by the social structure,
duty-centrist, and based on secret expediency (Soroush 1997). Second, those
rules relating to the scope of transactions and politics, are time-bound and
space-bound, limited by their specific circumstances. "The prophets struggled
neither for improvement of people’s level of welfare, nor for upgrading their
knowledge… Historians and religious scholars have alleged that 99 percent of the legal rules of
Islam are mere confirmation of the already existing rules. That is why we claim
that inequalities are incidental to Islam and are the product of the
circumstances prevailing at the time of the Prophet’s mission and in no way
reflect the absolute and transcendental values of human being. Thus, they can
be exposed to circumstantial reasoning of each era and be replaced by other
customs, practices, and values, while still satisfying the objectives of God's
law (Soroush in Bastenegar 342-343).
In the opinion of
Mojtahed Shabestari, instead of direct reference to the Qur'an and the practice
of the Prophet, it is initially necessary to make a distinction between the
objectives of religion based on their intrinsicness and incidentality (Mojtahed
Shabestari 2000, 266-271). He explains the historical nature of texts not only
by hermeneutics, but also through the philosophy of language. Language consists
of signs and symbols, which, contrary to myths, are experimental, temporal and
spacial concepts. Since language has a temporal as well as spacial form, texts
become historical and thereby, the concepts have their dates of birth and
expiry (Mojtahed Shabestari 2002).
Review and Critique
With respect to the
role of the elements of time and space in understanding of religion, Soroush
and Mojtahed Shabestari by applying a general argument believe the whole social
ordinances of Islam belongs to the time of their being laid down. This way of
treating the ordinances of religion may lead to seclusion of religion not only
in respect of the rules on Social ordinances, but also in relation with its rules
relating to worship. The eternality of Islam would require that the continuous
validity of Islamic rules (whether related to worship or transactions) must be
assumed, unless a collection of evidence demonstrate that a certain rule (such
as the one on heresy) or a group of them ( such as those relating to blood
money), were specific to the Arab community of their time (Haghighat 1995,
111-122). All we said about the Islamic jurisprudence further establishes the
necessity of its improvement and contributing to its efficiency, rather than
dispensing with it as inefficient.
3- The
Intra-religious Character of Human Rights
Here I analyze the
idea of those who believe that the issue of human rights is,
"primarily" settled within religion however, this idea does not bar
reference to meta-religious evidence. Thus, it would be likely that in the
discussion on human rights, the necessity of reference to religion is
demonstrated by invoking meta-religious evidence.
This group of
thinkers includes a vast range of ideas from the maximalists (who opine that
religion contains a relevant ordinance in every detailed subject), to those who
maintain that many of social affairs do not have necessary and mandatory
religious orders, and it is human being alone, who shall fill a specific social
arena with required rules and ordinances, however, with the aid of religion’s
general teachings.
3-1 Interpretation 1
The right to lay
down human rights belongs solely to God, because human rights cannot be defined
exclusively through custom and contract. Man suffers from limitations which
disqualify him for determination of human rights. He is in want of both a
comprehensive knowledge of the world and his own existence, as well as freedom
from the fetters of nature. On the contrary, God is the absolute being, and the
rights of every limited being, should be defined and allocated by the absolute
being (Javadi 89-113). Based on this proposition, human beings lack the
capacity to determine their own rights, let alone to invoke meta-religious
evidence against intra-religious arguments in this respect.
Review and Critique
This meta-religious
argumentation intends to demonstrate the necessity of reference to the inside
of religion on the subject of human rights (as well as other subjects). The
strength of this argument lies in the fact that it seeks to open a way for
reference to religion in such matters. However, it should be noted that:
First, this argument
does not deny that religion may contain only a few general propositions on the
issue, while leaving the rest to human reason. In such a case, the validity of
this right for human reason is derived fron the approval by God. The statement,
“human rights cannot be determined only through contract” (Ibid 89) implies
that human rights can be partially defined by contract.
Second, if one has
to accept all intra-religious evidence and arguments without reference to
rational judgement, then we would behave like Ash'arites. One who believes in
the intrinsic good and evil, but when it comes to proof, he limits himself to
merely textual and jurisprudential evidence, disregarding the role of reason in
this respect, he may be likened to the Ash'arites. Independent rational
deduction, though basically valid, are of little function in our jurisprudence.
"One of our shortcomings in the field of jurisprudential knowledge is that
our jurisprudence is more informed of intra-religious contents than the
meta-religious information" (Soroush in Bastenegar 340). As Modarresi
Tabatabaei has written, "Some recent Shiite scholars believe that reason
is a potential source for Shiite jurisprudence, meaning that although reason
can independently discover the jurisprudential ordinance and lead us towards
religious obligations, such an event is actually unprecedented" (Modarresi
12).
A
similar argument has been made by Seyyed Mohammed Bagher Sadr, "Although
we believe that following reason is permitted, no ordinance or law could be
found out which rests solely on the foundation of reason" (Al-Sadr 15).
3-2
Interpretation 2
Issues
such as human rights must be left for definition by hearenly sources, because
human beings are constantly affected by their particular environment,
instincts, knowledge, and interests. They are thus incapable of reaching
consensus on the content of human rights. Avecina has raised this argument to
prove the necessity of prophethood for human beings. If the human legislator is
a single person, the question arises who he is and what characteristics he has.
If there are multiple legislators, the problem of their being affected by
respective circumstances and non-achievement of consensus is raised (Javadi
100-102).
Human
beings are profit-seeking beings and we need special evidence to prevent them
from violation of others’ rights. Neither utilitarians nor believers in human
duties may present a comprehensive answer to the above question. On the other
hand, we cannot reach certainty on such theoretical issues like human rights
and political philosophy. It is for this reason that philosophers have been in
constant, controversy during the whole history- a controversy that has even
mounted through time. The final source of rights and obligations cannot be
human reason and positive laws. In this way, the necessity of reference to
divine orders on the issues such as the values, purpose of life and the world,
as well as method of living would be proved (Malekian 76-77). As Michael Perry
has noted, non-religious and secular interpretations of human rights lack
clarity, though it would not mean that all religious readings of human rights
are crystal clear (Perry 5-7). In his opinion, a secular reading of human
rights is impossible (Ibid 11). According to his viewpoint, the concept of
human dignity is basically approved by all religions and philosophies, but it is
only religion which can answer the question why we should love others and
respect their rights. It is the holy Bible that defines our realtions with our
brothers, sisters, and neighbors in detail (Ibid 16-19 and Matthew 25, 31-46).
Someone like Camus may claim that he loves other people without any religious
sense (Ibid 36). But the question is: on what basis? Are human morality and
emotions, precise and unchangeable through time?
In
a critique of Kant, Richard Rorty opines that we should replace divine concepts
with our culture. Maichael Perry who believes in the religious foundations of
human rights criticizes Rorty in this respect (Ibid 37-39).
Dworkin
is of the opinion that sanctitiy may be regarded as a non-religious matter. In
response, Michael Perry writes that it is the sanctity of life in the real
world and not in the minds of people which matters. Thus, if the Bosnian Muslim
tells the Serb, “life is sacred for me and you shall not invade my life”, the
Serb may respond, “it is sacred for you, but not for me!” (Ibid 25-26)
Review
and Critique
The
above reasons may prove intra-religious arguments, but in addition to the same
criticisms raised against the first interpretation being applicable here, it is
necessary to note that in the modern era, the society cannot be managed only on
the basis of obligations. The modern man seeks to discover the purposes and
interests lying behind the orders. Even a divine law must prove its effectivity
both in terms of theory and practice.
3-3
Interpretation 3
We
may extend the discussion to the issue of sanctions. Today, the human rights
debate is considered as a political instrument. Many of those who claim to
defend international peace and security as well as human rights, do not adhere
to their slogans in practice. Human rights codified by human beings would
suffer from lack of effective sanctions because they are constantly affected by
different tastes and interests. But if all human beings believe in God and the
prophets, and accept God as the final arbitrator, more sanction would be
guaranteed. A similar argument was raised in respect of the Interpretstion 7 by
the defenders of human rights based on meta-religious arguments.
Review
and Critique
Reference
to religion with respect to the issue of human rights seems to be justified.
However, this fact does not necessarily import that religion has sufficiently
addressed the issue of human rights. Besides, the issue of sanctions remains as
a problem even among the Muslims. "There are unfounded allegations regarding
the Islamin Declaration on Human Rights approved by the Committee of Ministers
of the Organization of the Islamic Conference in 1990 in Cairo. The Declaration makes mention of the
prohibition of torture while in the signatory states, torture is a normal practice!"
(Nikfar 59).
3-4
Interpretation 4
The
corollary of Islam’s eternity and comprehensiveness is that it has addressed
such important issues as human rights. This argument is based on reason, while
it is also reinforced by textual evidence. Imam Sadegh(P.B.U.H) says, “God has
enlightened every question in th Quran and I swear by God that he has not
neglected a single need of His servants” (Al-Koleini 59). “God has neither
permitted nor prohibited an act unless he has defined its boundaries like the limits
of a house… even though it is a minor issue such as the punishment for a
scratch or suchlike” (Ibid).
Review
and Critique
In
addition to the above-mentioned point I should refer to the fact that the
comprehensiveness of Islam and the Qur'an does not mean that all knowledge,
science, and industry can be found in Islam. The Qur'an has not left any matter
unattended so far as it concerns the guidance of human being. However, one
should not expect to find every physical and chemical formula, or the methods
of gardening and cooking in Islamic teachings (Bazargan).
3-5
Interpretation 5
Human
rights must necessarily originate in a divine source because if they are laid
down by the legislature of rulers and dictators, they can be reversed in the
same manner they have been enacted, while human rights, by definition, are the
rights belonging to human being in every circumstances which cannot be deprived
from him in any way (WAMY 50).
Review
and Critique
It
is not alleged that the rights are granted by human legislators or the rulers.
The question is whether human rights can be discovered with the aid of either
intra-religious or meta-religious evidence. This interpretation has mixed up
the fact with the proof.
3-6
Interpretation 6
The
contemporary era has witnessed multiplicity of rationality. It is said that
reason can exist in different types. Post-modernism directed its attack, in the
first place, against rationality downgrading reason from its sacred position,
and replacing it with multifarious reasons. They said that values are
identified by reason and thus there is no single code of morality. There may
exist more than one system of human rights (Soroush in Bastenegar 337).
Therefore, if the Chinese and the Third World
can have their respective human rights, we may also organize a specific human
rights system through reference to our religious culture.
Review
and Critique
This
interpretation can only be invoked by those who accept its basis, i.e.
relativism and pluralism. However, most believers of the world do not approve
of such relativity and thus, cannot resort to post-modern assumptions in
rejecting the universality of human rights and establishing specific human
rights systems. As noted by Michael Perry, if none of man’s moral rights are
absolute, fortunately some of his legal rights are so. No one has alleged that
all human rights are absolute (Perry 106).
3-7
Interpretation 7
as
the last interpretation in this section, one may directly refer to
intra-religious evidence in this respect. Direct reference to the Qur'an as
well as the practice of the Prophet indicates that numerous rights have been
defined for the human being independent of time and space. A woman was
condemned to divine punishment for having bound and starved a cat (Al-Hurr
al-Ameli 6). The letter by Imam Ali to Malik-Ashtar contains implications that
are timeless (Nahjul Balaghat, Letter 53). We are even responsible against the
earth and the cattle (Ibid, Sermon 166). How can then religion not specify our
obligations toward fellow human beings?
Critisizing
Soroush, Peyman writes: "incorrect definition of religion has caused some
persons to regard human rights and such values as knowledge, freedom and
justice to be meta-religious, while they are in fact, part of the very
religion. These persons either limit religion to divine revelation or
generalize a specific character of religion. The Qur'an provides for the right
to life (5:32), the right to freedom (17:36), the right to equality (41:10),
denial of birth and race priviledges (49:13), and for justice (5:5). What are
these provisions, if they are not religion? Yes, they can be admitted as
meta-jurisprudence, but not as meta-religious.
Review
and Critique
This
seems to be a secure ground for examining the relation between intra-religious
and meta-religious arguments. Therefore, the first step is to collect the
Qur'anic verses and religious texts relating to human rights. Then one should
examine to what extent they have been dependent on their specific time and
circumstance. As already noted, the fundamental principle in this respect, is
the everlasting character of religious ordinances and their independence from
time and space. In the next step, one should observe whether the remaining
rules are a complete system of human rights or a limited set of propositions on
the issue.
Conclusion
From
among the different interpretations of the above-mentioned three approaches,
one may deduce certain propositions in line with the stated hypothesis of this
paper:
1)
From theoretical point of view, having a system of Islamic human rights would
be possible in the sense that a system of human rights can be established which
at least resorts to Islamic presumptions. While applying the intra-religious
propositions on human rights, this system must not contradict with the
mandatory requirements of religion (Haghighat 2001).
2)
There is no general argument preventing us from reference to intra-religious
evidence. The reasoning made by the first and the second above-mentioned groups
does not seem sufficient in this respect. The unnecessary feature of the
religon’s view on the issue does not mean that it is devoid of rules on human
rights. The search of the juriprudentialist within the intra-religious texts is
due to the rational possibility of finding a relevent rule, whether it is
actually found or not (Larijani 1997, 88).
3)
Religion contains propositions on human rights. Soroush states that human
rights are not “purely” religious concepts (Soroush in Bastenegar 326). Thus,
they are somehow related to religious jurisprudence. Reference to religion
would demonstrate that cetain propositions of religion have a bearing on human
rights.
4)
Inasmuch as human reason is restricted by such considerations as
profit-seeking, we need religion and the divine revelation in certain areas
such as determination of the examples of human rights, the relation between
freedom, equality and justice, as well as the values, way of living, the
purpose of the world and the quality of life (Malekian 76-77).
5)
Meanwhile, the necessity of reference to religion would not mean that whatever
question raised by the human sciences and human rights can be answered by
religion. Religion is directed to guidance of human being, while it may
incidentally address other issues as well. The scope of such addressing can be
identified through reference to the inside of religion.
6)
In referring to religion, the basic assumption is the continuity and the
everlasting validity of the religious rules, although certain exceptions-
however numerous- may be identified as
time or space-bound (Haghighat 1995).
7)
If we ignore meta-religious evidence, although we have already accepted the
rational good and evil, we may be assimilated to the Ash'arites, because we
would have to exclusively follow the text in the capacity of discovery.
Rational principles have been extremely depleted in Shiite jurisprudence, and
their revival appears to be an imperative. Certain examples of human rights
are intelligible only through intuition
or human reason.
8)
Even if human rights cannot be organized through mere contract or human
reasoning (Javadi 89), one cannot totally ignore them. As noted by Carlos Nino,
intuition may also lead to determination of human rights (Nariman in Sharifi
88). Contract, custom, and human mind, especially when religion itself directs
us to their application, are among the sources of human rights.
Mojtahed-Shabestari
writes: "Why isn’t it possible that God, while Himself enacting the laws,
grant such right to human being which is a moral right distinct from the
intrinsic freedom of choice between good and evil? What contradiction would
result?" (Mojtahed Shabestari 2000, 255). In response to such negative
questions, one may say that there would be result no contradiction, especially
when the religion itself refers us to those sources. However, it should be born
in mind that reference to custom, contract, and the reasonable practice after
reference to the religion is distinct from direct denial of intra-religious
evidence in the first instance.
In
general, one may reject the statement that meta-religious evidence can dispense
with reference to divine texts, and that reference to intra-religious evidence
would necessarily mean the comprehensiveness of religion on the issue. With
respect to the question of human rights, the intra-religious and the
meta-religious evidence and arguments would stand in a linear relation; because
there is no prohibition against reference to divine texts on such issues, the
intra-religious evidence would indicate to what extent religion has addressed
the issue. This relation has been examined in other areas (like political
philosophy and political jurisprudence) in other writings (See: Haghighat
2001). The same can be done with respect to human rights by means of the above
criteria and in further details.
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