Centuries ago, Takfir (i.e., accusation of blasphemy or unbelief) turned into a phenomenon among Muslim sects. An Ash`ari would accuse a Mu`tazili of blasphemy, allegedly for denying the Messenger’s seeing of Allah, not recognizing Allah’s Attributes, and arguing for the creation of the Qur’an. At the other side, a Mu`tazili would accuse an Ash`ari of blasphemy, allegedly for disagreeing with the Prophet on monotheism, on the grounds that ascribing human attributes to Allah entails that there are others who share the same perfect attributes with Him.

Al-Ghazali wrote, “This dilemma was caused by ignorance of where to accept and where to deny. To subject a Shar`i text to reasoning without undermining it is something commendable in religion. However, it is falsehood to deny such reasoning outright and deem it nonsense; this is stark unbelief. Accordingly, an innovator in religion is not deemed unbeliever as long as such innovation is based on a sound interpretation of some religious text, corroborated with the fact that the apparent meaning of such text does not apply”.

The above, though disapproved by some scholars, places restriction on those who unreasonably use Takfir against others.

“In the book Jami` Al-Fusulyyin (Reconciler of Factions), At-Tahawi reported our fellow scholars as saying, ‘A person is deemed out of the fold of faith only when he denies what initially brought him into it. Thereupon, what is certainly proved apostasy shall be judged apostasy, and what is not certainly proved apostasy shall not be judged apostasy’. Evident belief in Islam cannot be nullified for doubt. After all, Islam has more priority; a mufti should not act to judge a Muslim unbeliever while judging a person forced to embrace Islam to be a true Muslim”.

These opinions are cited as a criterion to judge the cases discussed earlier. Some of these cases were judged to be unbelief, whereas they are not, in light of the above argument. For more details, see Jami` Al-Fusulyyin.

Also, as stated in Al-Fatawa As-Sughra (Minor Fatwas), “Unbelief is a grave matter; a believer cannot be deemed unbeliever so long as there is some aspect entailing the opposite”.

In Al-Khulasah (The Extract) and other books, it is explained, “If a case involves several aspects that entail unbelief but one aspect that excludes it, then the mufti should give preponderance to the aspect excluding unbelief, as a matter of thinking well of Muslims.” The book Al-Bazzaziyyah (Fatwas by Al-Bazzazi) elaborated more on this: “… unless the person proclaims an express will to do something that implies unbelief, in which case no justification can be pleaded”. Another book, At-Tatarkhaniyyah (Tatarkhani Fatwas), further stated, “Takfir shall not be based on uncertainty, as Takfir is the utmost of punishment, and thus it requires the utmost of offense — whereas uncertainty has no utmost”.

“To conclude, a Muslim shall not be judged unbeliever as long as his words can be interpreted as having a good implication or his unbelief is controversial, even if on the grounds of a weak narration. Accordingly, most of the sayings allegedly entailing Takfir shall not be judged as a reason for Takfir. I have decided never to give a fatwa of Takfir based on such sayings” [Al-Bahr (The Sea), redacted].

The same was stated in the book Tanwir Al-Absar (Enlightenment of Insights) as well as Ibn `Abidin’s commentary on it Radd Al-Muhtar (Answering the Confused). Explaining the saying: “… even if on the grounds of a weak narration”, Ibn `Abidin wrote, “Al-Khayr Ar-Ramli said, ‘… and even if the narration is reported by other than our school of jurisprudence. This is proved by requiring that what necessitates Takfir must be an object of consensus'”.

In Al-Fatawa (The Fatwas), Sheikh Al-Islam Ibn Taymiyyah stated, “Companions and all Muslim Imams unanimously agreed that not everyone who says something wrong, even if contradicting with the Sunnah, is necessarily to be judged unbeliever. Thus, using Takfir against whoever claims a wrong opinion is against consensus. Takfir is a matter of controversy, which is discussed in detail elsewhere. What is meant here is that no followers of a certain Sheikh or Imam are entitled to use Takfir against others. It is authentically narrated that the Prophet (peace and blessings be upon him) said, “If a man says to his brother, ‘O Unbeliever’, it shall definitely apply to one of them”.

With regard to human rights in the West as a universal principle, we are going to introduce their background and philosophy from a Western perspective through a Western writer. I will interfere with only some short and limited comments to draw attention to some useful points in comparison. This writer is called Asberon Eide, director and founder of the Norwegian Institute of Human Rights at Oslo University. He says about the initiative and crystallization of the declaration:

The first initiative to make human rights a universal principle was by the then American president Franklin Delano Roosevelt in his letter to the American Congress in January 1941. His initiative was amazing due to the comprehensive aspect he gave to human freedoms and due to his insistence on that these freedoms have to be enjoyed with all over the world. He said, “In the coming days, which we work to make safe, we are looking forward to a world founded on four human freedoms: first, freedom of speech everywhere; second, freedom of everyone  to worship God in his own way, anywhere in the world; third, freedom “to want”, which means– if translated into universal concepts- understanding and economic intelligence that secures for each country  a healthy and peaceful life for its population and everywhere in the world; fourth, freedom from fear which means- if translated into universal concepts- to reduce arms across the world to the degree and extent that no country will be able to commit transgression against any neighboring country anywhere in the world.”

He also said, “This is not a vision for thousand years away, it is a defined basis for a world that we can achieve for ourselves in our age and our generation.”

Then there was the Atlantic Declaration in August 1941 by President Roosevelt and the British Prime Minister Winston Churchill who reiterated the same commitments after few months. In the 1st of January 1942 representatives of the governments of many countries in the East and the West met in Washington to approve the UN Declaration. As the Allays in the Word War II, their goal was to decide the goals they were fighting for. The governments represented in the meeting declared that the goal of gaining victory over their enemy was to defend life, freedom, independence, and religious freedom as well as to preserve human rights and justice in their lands and in others’ lands.

In 1942 an international group of researchers and diplomats convened at an invitation from the American Institute of Law, which is a private institution in the United States specialized in collecting and making laws, to develop a formula for a possible declaration or a memorandum for international human rights. The cultures represented in this group were the American, the Arabic, the British, the Canadian, the Chinese, the French, the Nazi German, the Italian, the Latin American, the Polish, the Russian, and the Spanish. The group finished the program of the human rights memorandum in 1944, but it did nothing more at that time. This memorandum was the basic inspiration when the UN Human Rights Department headed by the Canadian John Humphrey prepared the first project of the International Declaration in 1947. Many other initiatives followed until the end of the World War II. One was presented by a Latin American country as a follow-up to an international conference held in Mitchaboltpk in Mexico early in 1945 between the two Americans over the problems of war and peace.

When the founding conference was held in San Francisco in 1945, many of the Latin American countries exercised pressure so that the Charter of the UN itself should include a memorandum on human rights. Of these memorandums was the one prepared by the group assembled by the American Institute of Law and presented by the representative of Panama.

It was decided then that the charter should include a statement concerning establishing a human rights committee and that this committee should undertake the task of developing a draft for the international standards in the field of human rights.

Article (55 )H from the charter states that the UN will enhance and monitor the international respect for human rights as well as the fundamental freedoms for all without distinction or discrimination on racial, sexual, linguistic or religious basis. In article (56) all the member countries pledged to exert joint or individual efforts to cooperate with the UN as determined in article (55).

The charter of the UN is an international treaty by which all UN member countries have by law to support respecting and implementing human rights and fundamental freedoms without any distinction or discrimination.

The human rights committee started its job in 1947 and the drafting committee represented different parts of the world. It consisted of delegations from Australia, China, France, Lebanon, the Soviet Union, the United Kingdom, and the United States of America. The first draft prepared by John Humphrey, director of Human Rights in the UN, was largely based on the work that had been continuing since 1942 which was accomplished by representatives from different cultures. The final formula was based on an adapted draft edited by the French Rene Kayan. It was presented in the summer of 1948 to the General Assembly of the UN which approved it with light modifications in the 10th of December 1948. The Declaration includes a wide range of human rights such as the rights related to one’s safety (right to live – freedom from torture and maltreatment- freedom from slavery and from arbitrary deprivation of freedom), the rights related to necessary procedures and just trials, freedom to work and to express and practice any creed, freedom of speech and media, freedom of movement and the freedom of forming associations (such as workers’ unions and syndicates) as well as political, economical, social and cultural rights. This is the widest range of human rights approved until now by any agreement, be it national or international. (Eide, Asberon: The Historical Significance of the International Declaration; al-Majallah al-Dawlyyah li al-`Ulum al-Ijtima`iyyah pp 19-21, issue 158, December 1998)

Comment: This was an interesting presentation by Asberon for such wonderful principles. But it cannot be hidden that the international rights crystallized in Roosevelt’s initiative in his letter to the Congress represented an American, and similarly European, concern regarding the conflict with the communist bloc which started to emerge on the eve of the defeat of the German Reich. It talked about reducing arms, which indicates that it is an initiative affected by the results and atmosphere of the war. Not only this, but it also attempted to ensure for the Allies a position that gives them the upper hand over the international affairs on ethical basis. With regard to the representatives of the cultures he talked about, it will be suitable to pose a question about the representation of the Islamic culture or rather the complete exclusion of the Islamic culture from these discussions, though there were independent Islamic countries such as Egypt and Saudi Arabia. We do not intend to cast doubt on the role of Lebanon which represented the Middle East through its representative Mr. Sharl Malik who was an experienced legist and a distinguished personality but his share of the Islamic culture was not as big as his awareness of the Western culture, to say the least. In Addition, though he was a prominent personality, he was not representative of a power that could be listened to in a discussion held by the victorious countries in the World War.

It is a declaration that is imposed retroactively on cultures that were absent such as the Islamic and Chinese cultures. We are going to talk about this later.

According to Subhy al-Mahmasany, the development of human rights in the West started with the Romans. The Roman law developed over 14 centuries; that is, since the establishment of Rome in the 8th century BC up to the death of Emperor Justinatius in the 6th century AD. Over this long history, the sources of legislation were many. Beside custom and tradition, there were laws issued by the state, the discretion of judges, and legists’ studies. The laws over the Roman period were issued by the king, the congress, different parliaments, or the Emperor.

Meanwhile, the discretions of judges played great role in the development of the Roman legislation; particularly, through the decrees of Alberito, judge of the judge, who contributed to promote the procedures and to inlay old civil law with some people’s rulings and hence to approve equality in rights between the classes of the population of the Empire.

Contribution was also made by Roman legists through their researches, explanations, and books; particularly, the famous five: Babinjnos of Homs, Olpejanos of Sur, Gaius, Paul, and Moudstinos.

Justinatius gave orders that these various sources should be recorded in six books. Thus they were collected with the title of “A Compilation of Civil Rights”. Most of the Modern European laws have been affected by the Roman legislation and adopted it as their basis.

Sporri Eide, however, holds the view that the most important stage in the development of human rights is such slow development that Europe witnessed in the form of intellectual conflict between different liberal and conservative ideas over four centuries. Moreover, the idea of human rights itself when used by the developers of the memorandums of 1947- 1948 expressed the concept of the modern age. They were preceded by older and narrower terms such as “natural rights”, “man’s rights” and “civil rights.”

We can trace the roots of the change that took place in world thought during the age of Renaissance which inaugurated rational discussions that growingly liberated themselves from the vagueness and ambiguity of the past centuries to bear glad tidings of an explosion in the scientific and intellectual creativity.

As for the political outlook, most of the debate focused on the concept of the social contract. In 1603, the Calvinist Johannes Altoseos of Holland, came out with the theory of consent as a necessary requirement for political links. This attitude was developed further later by others; particularly, by John Locke who came 80 years later. In the following years, the traditional theory of the natural law changed through adopting the theory of natural rights.

In 1651 Tomas Honz in his book the State or the Substance, Form and Authority of the Commonwealth: Clerical or Civil, meant to arrange a prescription for establishing an ideal state where peace and security are guaranteed. In this regard, he inserted the theory of “natural right” as opposed to “the natural law.” He had very pessimistic view with regard to the behaviors of human beings in their “natural state” before engaging in the social contract. His key principle was that people engaged in a social contract with one another because they thought that they can protect themselves better by giving all authority to a ruler.

The major development came with John Locke and his two treaties about the government. They were the motive behind the first memorandum of rights in 1688. He asserted the necessity of acceptance or consent as a basis for ruling and government. Human rights are equal and hence nothing can force an individual to submit to the authority of another except acceptance and consent. He obviously gave up the pessimism of Hobz; for, contrary to Hobz, he admitted that human beings are by nature free and equal and most of them abide by the natural law. Thus, the natural law constitutes and protects the rights of life, freedom, and property. It also requires man to fulfill his promises and commitments and to do his best to guarantee and secure others’ interests and welfare. We can also say that the differences between the concepts of Locke and those of Rousseau stirred conflicting concepts concerning human rights. There is a concept inspired by Locke’s thought and prevails largely over the Anglo-American world. It sees human rights, in essence, as freedom from the state. However, there is another concept that focuses on Rousseau’s thought and it largely spreads over Europe and Latin America. It not only sees human rights as freedom from the state but it demands rights from the state. This concept thus has a positive attitude toward the state as a means for general welfare.

The interaction between politicians and philosophers was shown also by Tomas Jefferson who found inspiration in Montesquieu and Locke’s ideas when he wrote the declaration of the independence of America. There is also the French Marquis de La Fayette who took part in the American Revolution in 1777 and was appointed as a major general. He had a big role in the army of Revolution against the English in the period 1777-1781 and when he returned to France in 1782, he was elected as a member in the Board of Classes in 1789. He was also one of those who developed the first draft of the declaration of human rights that was undoubtedly inspired by the declaration of the independence of America and by Rousseau’s works.

In 1791 the US approved the memorandum of rights attached to the constitution which had been approved in 1787. Part of the memorandum aimed at securing and guaranteeing the interests of the United Stated in the face of the federal authorities. Therefore, the first article included the classical human rights: freedom of religion, freedom of speech and journalism, freedom of meeting, the right to submit petitions to the government to alleviate sufferings. The fourth article was on the right of privacy and freedom from arbitrary arrest. The fifth and sixth articles were on issues related to the suitable procedures and just trials.

Many of these rights were already in the British memorandum for rights. The American memorandum went further but could not reach the French declaration of 1789 which comprehended more rights. Nevertheless, in comparison to the French declaration, we find that the American memorandum of rights was part of a constitutional document and therefore it was immediately binding on the legal side while the French declaration did not find a solid place in the French constitutional system for more than 150 years. It was asserted as a prelude for the French constitution in 1791. But this constitution disappeared in favor for the new constitution in 1972 which abolished the royal system. In fact, the French declaration did not find an outstanding place in the French positive constitutional law until the new constitution was approved in 1946.

Now after realizing all this, it could be said that it was Tomas Bin who crystallized the most comprehensive vision of human rights as a reaction to the gaps or shortcomings noticed by the Europeans at that time. In his book Human Rights, published in 1791 to defend the critiques of Redmond Burke concerning natural rights, he bypassed the resonant phrases of rights to analyze the reasons of anger and discontent in the European society besieged by despotic governments, the spread of poverty, and many, violent wars. In his analysis, he was supporting the democratic republic trend and was concerned with the procedures for the welfare of all and for providing relief for the poor, pensions for the aged, and education for all. He asserted that this should be achieved through imposing taxes. Thus, he supported rights that went away beyond all that was circulating in thought during those years.

Many in the Western world refused the idea of unchangeable, established rights. Others sought to confine them to the minimum which they called the civil rights; and they had many reasons. The reaction of the conservative trends, which gained strength because of the transgressions committed by the French Revolution, drove many to oppose the idea of equality between human beings. Moreover, social reformers have found that the limited concepts of civil rights were very restrictive.

As for the extremists, they saw that natural rights or civil rights are but a tool employed by the bourgeoisie in its struggle with the workers’ movements.

In Europe, the Austrian Chancellor Prince Mitring united and coordinated efforts to secure despotic suppression so that ruling dynasties could oppress the democratic and national movements. During the period between 1815 and 1848 he attempted to establish and support a chain of international alliances across Europe against democracy.

He considered the efforts that were done for democratic political change in the twenties and thirties of the past century in Italy, Spain, and Germany as unhistorical and unrealistic. He claimed that those who stand by the liberal side try to take from England the theories and ideas of freedom and equality which have no historical roots in the continent. He supported the heritage and class hierarchy not equality; for systematic, organic development was necessary. He said, “A people who cannot read and write cannot make proper constitutions.”

We can see the period between 1800 and 1945 as a long period or stage of conflict between those who sought to keep higher authority and better privileges and those who objected to this. In Britain, voices of objection to the natural rights were raised by many. Amond Burke was impressed by the developments of the revolution in France and expressed his objection to the idea of human rights and people authority. In his book Reflections on the Revolution in France, first published in 1790, and in his other succeeding books, he took to portray in black phrases the dangers he saw in democracy when the masses would rule unbound and unguided by the responsible leadership of the inherited Aristocratic class. He viewed that rational thinking and reflective projects that aimed at reestablishing the political structure cause destruction to the capabilities and financial and spiritual sources the society acquired with effort and difficulty.

On the contrary, he lauded what he considered as the virtues of the English constitution with its continuity and unsystematic growth with certain rights based on the status of the individual not on abstract and equal rights. The English acceptance of the hierarchy was a positive, not negative, quality in this view.

In terms of the philosophy of legislation and the theory of law, the nineteenth century witnessed strong emphasis on the positive philosophy. This was started by Jermy Pentam, founder of Pragmatism in Britain. Then this philosophy was widely developed by John Austin who attempted in is book Determining the World of Legislation in 1832 to point out the difference between law and ethics, which he considered to have gone overlooked due to the principles of natural laws. He crystallized the definition of law as a sort of commands issued by a ruler accompanied by threat of deterring punishment in the case of disobedience and noncompliance. This concept contradicts completely with the theories of natural law and natural rights.

Nevertheless, the margin of democracy was limited. If John Locke considered the consent of the subjects as one of his big concerns, it was actually landlords and proprietors who kept his mind busy, not the public.

Two different trends emerged among those who kept supporting the principles of the fundamental freedoms and natural rights: one supports freedom with independence and the other supports freedom with participation.

Independence from the state has been achieved through the tools that govern and chain it; that is, through dividing authority into legislative, executive, and judiciary in accordance with the opinions suggested by Montesquieu. These are the suitable procedures and basic guarantees for the freedom of the individual and the principle of non-retroactivity in criminal issues as well as freedom from torture and protection of properties in addition to the freedom of speech within some restrictions.

These in brief are the most important developments the West witnessed in the past and recently in the field of human rights as results of conflicts, real wars, and broad philosophical and legal argumentation. All these events and developments that accompanied it were purely Western and on the other bank of the Mediterranean Sea- or the other side as our forefathers called Anadausia and other neighboring countries of south Europe.

Our comment is that, for us as Muslims, many of these issues were clear-cut such as the guarantees related to judiciary system, the forbiddance of torture, and the protection of properties.

Unlike Montesquieu’s approach of complete separation between the three authorities, according to his famous phrase in his book the Spirit of Laws “Authority stops authority”, there is the principle of cooperation between authorities which the French legist Rene Thapa called the interrelation of authorities and which appeared in the judiciary system in the form of the attorney general who represents the position of the executive authority “the government” before courts. Besides, the possibility to dissolute the parliament by the president is another manifestation of the interrelation between authorities in the Western system.

Interrelation and cooperation between authorities to achieve justice in people’s life is closer to the Islamic concept. In addition, the legislative authority in the Western sense of absolute power to enact laws in all fields does not conform with the supremacy of the heavenly laws which gives man the right to legislate on the basis of ijtihad in certain fields that increases or decreases owing to the requirements of the shari`ah and the necessities and needs of life.

This valuable word that poets eulogized and wise men recommended and for which bloods have been shed is derived from the word “hurr (free)” which, according to the Arabs, is an antonym to “salve” denoting the person who has full control over his affairs. But he is also the person who has good manners; because the word “free” in Arabic –and language represents values- denotes the best of everything. It also indicates good work and favorable deed.

Tarafah said:

Let not your love be an malignant disease. This is not good from you, Mawyy.

Freedom for Arabs denotes also having perfect qualities.

Mukhees ibn Arta’ah al-Tameemy said:

I said to him: Avoid everything that may hold you blamable, for the free man is free.

Bashshar ibn Burd said:

He was placed at the summit of virtues by a soul that is free and deserves ample clarification

In the light of the linguistic definition we can deduce that freedom in the Arabic concept denotes release and possession of will but with righteous word and noble manner. No wonder that freedom could turn to be wrongdoing if it does not wear the garment of virtuous manners. Thus it becomes worthy of the words of the French Madam Rolland who said when she saw the violations of the French Revolution under the banner of freedom “O freedom! How many crimes have been committed in your name!”

Freedom is parallel to and matches equality. Therefore, the erudite scholar Ibn `Ashour considered it, in a sense, as a result of it in his book al-Maqasid where he underscored equality in the following way: Equality in legislation for the ummah (Muslim nation) takes in consideration people’s equality in creation and its ramifications on the basis of which distinction has no effect with regard to the welfare of the world. People are equal in terms of humanity “You all belong to Adam” and in terms of the right to live in this world according to natural disposition. Their difference in color, form, race, and home country should have no effect in this regard.

This gave rise to their equality in the fundamentals of legislation, such as the right to live known as the preservation of soul and the preservation of posterity, and in the means of living known as the preservation of property. Equality in legislation is a basic principle that never fails unless for the existence of an impediment. Thus to prove equality in legislation between individuals and kinds we do not need to look for a reason; for the absence of any impediment is enough. The Quranic address in the masculine gender comprehends women without any need to change pronouns and forms. The non Muslim’s equality to the Muslim in most of the rights is a basic principle- as expressed by the hadith that reads “They have [the rights] that we have and upon them are [the duties] that are upon us”- and is one of the objectives of the shari`ah.

Al-Taher ibn `Ashour approves the interrelation between freedom and equality as he considers the first as a result for the latter: “As equality is one of the objectives of the shari`ah, this necessarily entails that the individuals of the ummah should be equal in the way they deal with their personal affairs, which is a basic objective of the shari`ah known as freedom.”

Thus freedom is used as opposite to servitude which means inability to take decision.

The second meaning is to enable a person to deal freely with his personal affairs as he likes without objection.

Both meanings of freedom are intended by the shari`ah, for both are based on the human natural disposition. Both achieve the meaning of equality which has been established as one of the objectives of the shari`ah. He quoted as evidence the famous word of `Umar (may Allah be pleased with him) and he explained such freedom by being naturally free. From the first meaning appeared the famous fiqh rule that “the Lawgiver aims for freedom.” This is based on surveying the lawgiver’s attitudes that have indicated that one of the most important objectives of the shari`ah is to abolish slavery and to spread freedom. But the shari`ah observes graduation in treatment along with the preservation of the system.

Hence, Islam has combined between the objectives of spreading freedom and preserving the general system by giving the reasons of freedom supremacy over the reasons of slavery which it reduced to the minimum and prescribed treatment to the remaining. Islam abolished many of the reasons of slavery such as one’s selling of his children and enslaving the criminals as practiced by the Arabs and the creditors as practiced by the Romans and as found in the Solon’s Greek laws and in the Torah. In chapter 4 of the Kings 2, a woman came to complain for Prophet Elijah that her husband died and the usurer came to take two of her children for the debt. This indicates that enslaving people for debts was in the laws of Moses (peace be upon him).

Only enslaving war prisoners remained as reciprocal treatment. But many are the reasons of ending it. One of the avenues of spending Zakah-charity is to emancipate slaves. Emancipation has been made among the obligatory compensations. General exhortations have been issued to emancipate slaves and the treatment of the salve has been changed. Even bad treatment has been made a reason for obligatory emancipation.

Thus, surveying these procedures it becomes clear that the shari`ah aims at emancipating slaves. Muslims emancipated many slaves and from among them were masters, imams, scholars and masters of the recitations of the Quran (the great seven masters of the recitations of the Quran were freed slaves except two).

Over history there were incidents of collective emancipation as happened in Morocco in the 11th century during the reign of king Islam`eel of Morocco by a fatwa from scholars on the basis of the rule that “the lawgiver’s aims for emancipation.” (See in this regard al-Isteqsa fi Khabar al-Maghrib al-Aqsa.)

As for freedom in the second sense, it has many manifestations including freedom of speech, freedom of opinion and of practicing ijtihad, the principle of enjoining what is good and forbidding what is evil, and the thriving of different opinions.

In the first three centuries of Islamic history scholars spread their fatwas and schools of juristic opinions and each group supported their opinion with evidences. This never gave rise to bad feelings or rancor. Jurists themselves were keen to give opportunity to those who disagree with their opinions. Abu Ja`far al-Mansour offered to force people to adopt Malik’s book al-Muwatta’ to abide by it. He said, “O Malik! I would like to make copies of your books and send them to each country commanding them to act according to them and never to go beyond them.” Imam Malik said, “O Commander of the Believers! Do not do this, for other opinions have reached people and they heard other hadiths; and thus each group adopted what they received from among the different opinions of the Companions of the Messenger of Allah (peace and blessings be upon him) and others. In fact, it is difficult to turn them away from this. So leave people and what they have.”

This is a wonderful attitude that shows this imam’s keenness to preserve freedom of opinion and the practice of ijtihad. This attitude has made him issue a fatwa concerning the oaths of paying homage to the ruler that the divorce of the one under coercion is not enforceable. This incurred the wrath of the sultan upon him in addition to the punishment which he suffered but did not take back his opinion.

Mahmoud Ameen al-`Alim holds the view that freedom is actually a determination and a necessity because it is to have choice between possibilities. When it is a necessity and a determination, it also necessitates diversity, exchangeability, and open possibilities. Besides, it includes interactive relation between awareness, which is the result of interaction and interrelation between diverse necessities, and the external objective necessity. Therefore, freedom has two aspects: one is internal concerning its origin as a will based on internal interactive and interrelated necessities including motives, derives , inclinations, and the like whose interrelation gives rise to the manifestation of the will as an inevitable psychological and factorial phenomenon. But, at the same time, freedom has external aspect, which is to be aware of the necessities and to choose between them. In the external aspect it is an active process to control the external status quo in any form such as possession, direction, rejection, or the like.

The world has no single meaning for freedom. The meanings of freedom are closely related to the social system that produce them. Aristotle’s concept of freedom did not come from Aristotle’s mind but from the society that despised hand working. Rousseau formed the meaning of freedom on the basis of the collapse of feudal system and the rise of the capitalist system in the stage of monopoly and the meaning of freedom changed to a call for dissolution, degeneration, and loss of relation and direction.

Freedom and equality have been mentioned together in the International Declaration of Human Rights. So, their relation, as philosophy and politics showed, is worthy of discussion to serve as a background for these concepts in the law of human rights.

We can handle three meanings of the many that freedom has, according to some commentators of the declaration: one is that man enjoys a wide range of the available important choices [or opportunities].

Second is that man is independent from others in terms of his decisions concerning how to benefit from these choices.

Third is that man is free to determine his values and priorities and to live adhering to them.

Equality can be understood in the same way. Man can enjoy a wide range of the available important opportunities equally just as others and he is equally free to determine his values and priorities.

Freedom here is temporarily perceived- in the individual sense- as perceived by the Western liberal thought in the ninth century.

Mr. Subhy al-Mahmasany talked about responsible freedom saying, “Freedom is not chaos. It is restricted by others’ rights as well as by the public interest. Overall, the concept of freedom has never been constantly the same. It has differed much owing to people’s generations, circumstances, hopes, and ambitions.

Thus if we wan to define freedom in general, we can say that it is a permission to do something or to refrain from doing it without violating the rights of others or breaking the laws. Hence, as long as freedom is restricted by the law, it is relative and cannot be true unless the law is just or is restricted by a just constitution and targets the public system without turning to be despotism and tyranny.”

Concerning the balance between freedom and equality, al-Mahmasany views that establishing the rights of equality and freedom in the positive civil law was a result of an accurate balance between the individual’s interest and the society’s interest. On the one side, the individual inclines to freedom but this freedom may lead to inequality. Therefore, the interest of the society requires, on the other hand, that this freedom be restricted and that a minimum of equality be secured.

In other words, the history of human rights has been a constant effort to balance between freedom and equality, between the individual and the society, and between human values and social justice.

We may mention here some freedoms that people ask about:

First: It is not permissible in the shari`ah to detain someone or deprive him of his freedom without a legitimate right. The accused person is innocent until proven guilty. This is the position of the majority of jurists. One scholar, however, has set some restrictions to protect the interest of the society. According to his view, freedom should not be restricted in the case of unproven accusation except with regulations which he summarized in three categories of accused persons:

– a person who has good reputation and is not under suspicion should not be imprisoned or his freedom be restricted until the end of investigation as long as there is no strong evidence to his involvement in the crime.

– the person who has precedent crimes should be remanded until he is proven innocent.

– the person who is unknown should be detained until investigations are finished.

There is also the freedom of making contracts which is also established in the Islamic shari`ah. In a noble hadith we read, “Muslims are bound by their conditions with the exception of a condition that makes something lawful unlawful or something unlawful lawful.” This hadith is quite acceptable due to its supportive narrations as indicated by ibn Taymiyyah.

This freedom, in particular, entails the execution of the conditions of contracts. The universal principle dictates “A condition must be met as far as possible.”

Juristic schools differed over determining the conditions that are valid and those that are void or invalid. But the majority of jurists, including the Malikites and the Hanbilites, particularly Ibn Taymiyyah and ibn al-Qayyem, held the view that the basic principle with regard to contracts and conditions is their permissibility and validity with the exception of those which the Lawgiver explicitly mentioned as prohibited. Lengthy chapters were dedicated for this. Ibn al-Qayyem said, “The basic principle with regard to contracts and conditions is their validity with the exception of that which the Lawgiver declared as void and forbad from it. This is the correct opinion.” Then he repeated, “The basic principle with regard to contracts and transactions is their validity until an evidence to their invalidity and unlawfulness is established.”

Al-Mahmasany drew attention to the misuse of the right of freedom saying about demonstration, “Concerning the issue of demonstration, just like other issues, freedom could be misused. In reality we have seen, especially in democratic countries where freedoms are active, the demonstrations of workers and students take such big forms that resemble internal revolutions.”

He added, “If the purpose of the demonstration is mere refusal or the misuse of freedom to demolish the regime and the existing institutions away from the legitimate democratic ways or if the demonstrations is a sort of pressure practiced by the wild minority against the peaceful, mindful majority or if they are directed by foreign or suspected elements or if the purpose is to make crimes, riots, or illegal acts, in all these cases and the like demonstrations are no longer signs for healthy democracy or national maturity. They rather lead to lose active energies and valuable time through distracting them from procuring knowledge and from useful production and diverting them from understating the national and social responsibilities.”

In addition to the misuse of freedom he mentioned we see other sorts of misuse of the freedom of opinion and speech in the form of blatant declaration of disbelief and reviling of the religion.

Islam does not question people’s inner thoughts or what they have in their homes. But to spread apostasy on public by those who are called the fifth column or the agents of other civilizations goes against the general system in the Muslim society and has its suitable punishment in the Islamic penalties. I really wonder of those people who approve the criminality of speaking insolently against the president or the king or the government and do not criminalize speaking insolently against the Creator –exalted and majestic is He- which also represents insolence to more than billion persons.

Second: Freedom of speech sometimes becomes obligatory when it is a kind of calling others to goodness enjoining what is good and forbidding what is evil or if the purpose is to demand justice publicly. In a Quranic noble verse we read “So let there be of you on [united] community calling to all that is good and enjoining what is right and forbidding what is wrong. And it is these who are truly successful.”

In a noble hadith we read, “The best jihad (strive for the sake of Allah) is to say a word of truth before an unjust ruler.” In another hadith we read, “He of you who sees something wrong has to change it with his hand. If he cannot, let him do this with his tongue. If he cannot, let him do this with his tongue; and this is the weakest level of faith.” Acting upon this, many of the imams and leading scholars- including Malik and Ahmad in Hanbal- were reported to have been courageous and adherent to their creed and opinion in spite of the oppression and torture by those in authority.

Third: With regard to freedom of opinion, undoubtedly in Islam freedom of opinion has restrictions and methodological regulations as related to the given postulates and the approaches to reach the truth in addition to the necessity of sincere intention to achieve public benefit. Otherwise, it would turn to be fallacies, delusions, and selfishness. There are also ethical restrictions such as truthfulness in conveying the opinion and observing excellent manners when convincing others. The freedom we approve in this context is the one that has such regulations and restrictions.

Islamic teachings has established the freedom of speech not as a permissible right of the Muslim but as an obligation as well.

Due to the many strict demands concerning it, we can see it ranking as a necessity in the hierarchy of shari`ah objectives. It is a necessary objective of the shari`ah as some person said.

Finally, if legists and philosophers have not agreed on one concept of freedom and referred this disagreement to times and generations considering it something relative as the erudite scholar subhy al-Mahmasany said- and sometimes it is even a call for dissolution, degeneration, and disunity as Mahmoud al-`Ali said- freedom in Islam is governed by the major principles outlined by the Quran and the Sunnah according to which Muslim communities have to adapt themselves to find a suitable ground where freedoms can flourish, rights are protected, talents come forth, and creativity radiates in the context of civilizational religious values and the criteria of justice, fairness, reason and wisdom.

In the Quran, there are various clear and strong texts that have delineated the fundamentals of human rights. However, the first declaration that can be called so is the magnificent speech delivered by the Messenger of Allah (peace and blessings be upon him) in the Farewell Pilgrimage before about 120 thousands of his companions who gathered in `Arafat. In this speech, he laid the foundations of what can be called human rights. He declared the inviolability of bloods, properties, and honors and asked Allah and the people to bear witness to that. In this context, he has strongly forbidden inner fighting saying “Never shall you return after me [like] disbelievers striking the necks of one another.” He also recommended well treatment for women.

The essence of human rights can be summarized in two principles:

– Honoring, which is an established maxim for every human being just for being a human being. Almighty Allah said, “Yet very truly, We have so honored the Children of Adam: for We have carried them through the land and the sea. And We have provided them with all that is wholesome [in life]. And We have so favored them above most of what We have created with [such immense] favor.” [17:70]

– Equality, upon which Islam laid strong emphasis, as the Prophet (peace and blessings be upon him) said, “O people! Your Lord is one and your father is one. Neither an Arab has a merit over a non-Arab nor a non-Arab over an Arab nor a white person over a black one. You all belong to Adam and Adam was from dust.”

From these two principles begin all rights. Women have been given equal rights to those of men in terms of human honor- though this may vary for other functional reasons- and in terms of all forms of freedom. Man is originally free. This was best expressed in the words of `Umar, the Commander of the Believer “When have you enslaved people whereas they were born free?!”

Europeans had to wait for 1000 years later until Jan Jack Rousseau declared in his book The Social Contract that man is born free. But freedom of the individual in Islam should not bring harm to the society. Equilibrium between the individual and the society is the most critical issue in the principle of freedom. Freedom is guaranteed as long as it does not contravene the general system as in the cases of reviling the religion, cursing people, or making transgressions against their bloods or properties. However, there may be difference of opinion over determining the general system and its ethical dimensions as will be explained.

Islam is the religion of solidarity in the sense that it not only enjoins you to refrain from harming others but also enjoins you, as a religious and juridical duty, to prevent people from causing harm to each others and to do your best to aid people, save their lives, protect their properties, and defend their honor. If you do not do so, you will become sinful; and a case can be filed against you in courts demanding compensation from you because you did not save a person from fire, prevent a blind person from falling in an abyss, etc. This is called the right of aid and support. “Then what is with you that you do not fight in the path of Allah and for the [utterly] helpless.” [4:75]

In short, all fundamental human rights are found in Islam. Man is honored by Allah and has the right to be respected and not to infringe his privacy. “Nor shall you spy [on each other]. Nor shall you backbite one another.” [49:12] “O you who believe! You shall not enter houses, other than your own houses, until you take [welcome] permission and great their people with peace.” [24:27]

However, this is not confined to Muslims but extends to peoples from other religions as well. Al-Bayhaqy in his Sunan reported that the Prophet (peace and blessings be upon him) forbad from entering the houses of the People of the Scripture without their permission and from eating their fruits unless they give it out of themselves.

Islam secured for man that he should not be addressed in a way he dislikes. Almighty Allah said, “O you who believe! Men shall not scoff at other men. For those [whom they scoff at] may be better than them. Nor shall women [scoff] at other women. For those [whom they scoff at] may be better than them. Nor shall you slander each other. Nor shall you revile each other by [way of abhorrent] nicknames.” [49:11]; and that he shall not be punished for someone else’s crime “For no sin-laden soul shall carry the [sinful] load of another.” [17:15] Man is innocent until the opposite proves true and should not be punished retroactively.

Islam guaranteed for man the right of ownership and to make use of the things that are not possessed by anybody such as earth, seas, rivers, wild animal, and fish.

People are partners in water, fire, grass. It is not permissible to transgress the possessions of others. If one dies and leaves something, it goes to his heir. People share natural resources with justice and kindness. Selling, leasing, loaning, borrowing, trading, and giving gifts are lawful means of earning to the exclusion of unlawful means such as theft, usurpation, usury, deception and gambling.

The poor and the weak have rights in the society and thus it is not permissible to leave any of them exposed to danger. These rights guaranteed by both the shari`ah and the judicial authority.

Islam has also guaranteed for the traveler that the resident people should guide him, give him to eat, and give him out of the zakah-charity if he needs because he is a wayfarer.

It has guaranteed the parents’ right and has enjoined children- by the judiciary power- to spend on them if they are poor; and so is the case with close relatives.

These rights are many and hence they have made the Muslim community cohesive, harmonious, and consolidated. Islam has enjoined those in authority among Muslims to establish the fundamental human rights and has given them in return for this duty the right of obeying them. Almighty Allah says, “O you who believe! You shall obey Allah. And you shall obey the Messenger and those in authority among you.” [4:59]

Scholars have founded what they called the objectives of the shari`ah; that is, the meanings derived from the totality of shari`ah texts identifying the goals of the shari`ah and its targets in isolation from the texts. Abu Ishaq al-Shatiby delineated the injunctions of the shari`ah saying: They refer to the preservation of its objectives with regard to the people. These objectives do not exceed three divisions: first, to be necessary, second to be complementary, and third to be embellishing.

Those that are necessary are indispensable for the interests of the religion and of this world which, if missed, this world will not go right but will go with corruption, turbulence, loss of life, loss of deliverance and bliss and with ultimate clear loss.

These objectives include the preservation of all fundamental and economic human rights, but they exceed with other indispensable rights for man’s promotion and protection, which are the goals of human rights. The necessary objective can be interpreted to be the right to live, the right of ownership, and the right to from a family in addition to the right of preserving reason, the right of practicing religion, and the right to preserve posterity.

Al-Shatiby pointed this out saying: The ummah (Muslim nation), rather all religions, has agreed that the shari`ah aims to preserve the five essentials: religion, souls, posterity, property, and reason.

Al-Ghazali said:  Man’s feeling safe for himself, property, and honor is a condition for the obligation of acts of worship.

The complementary objective can be translated as man’s right to have education, house, and other rights that lift the hardship of life and secure honorable living. Almighty Allah says, “Nor has He placed on you any [undue] strain.” [22:78]

The embellishing objective aims at giving life beauty and fun and enjoying wholesome things, as Almighty Allah says, “Say: Who is it that has prohibited the adornments of Allah, which He has brought forth for His servants, and the wholesome things of [His] provision?” [7:32]

These objectives set the foundation of an integrated and balanced outlook for human rights accompanied with the duty of both the society and the individual to secure and protect them as a religious responsibility as well as a legal and juridical one; that is, they are not just admonitory but biding- this is the advantage of law.

Some of us may see that this definition is close to the concept of the natural state or the natural law from which human rights derive their legitimacy and comprehensiveness as seen by some philosophers.

We can summarize the basic principles of human rights in Islam in the following points:

1. Establishing the state on the idea of shura (consultation) starting with the choice the ruler and paying homage to him to continue ruling under the obligation of abiding by shari`ah rulings.

2. Enforcing the principle of legitimacy through the state executive authority and the judicial authority to protect the rights from all sorts of aggression or transgression and hence to prevent assault, taking captives and revenge.

3. Declaring the principle of equality between people, abolishing the system of classes and the habit of boasting with lineage and families, and establishing honor on the basis of piety alone; that is, on the basis of true faith accompanied by righteous work.

4. Establishing general freedoms on top of which come the sacredness of souls, honor, and properties along with housing, freedom of religion and opinion, freedom of work, and freedom of education as an obligatory right. It is a duty upon the society and the individuals to cooperate to preserve these rights.

5. Freedom of ownership accompanied by the obligation of social justice achieved through the imposition of zakah-charity and other duties on the properties of the rich for the sake of the underprivileged and the needy through the system of maintenance.

6. Freedom of making contracts and the obligation of fulfilling them and the freedom of trading and transacting accompanied by the restriction of preventing usury, ghabn (unfair pricing), monopolization, gharar (hazardous sale of uncertainty), and coercion and the exclusion of wills and the obligations of inheritance.

7. Fair treatment of women by giving them the right of inheritance, ownership, and discretion together with the basics of honor and equality in rights and duties and establishing marriage on cordiality and mercy. The wife has been given the right of dowry as a sort of honor for her and as discouraging from divorce without excuse. Polygamy was restricted with the condition of just treatment. Marriage of shighar (exchange of daughters or sisters for marriage with no mandatory gift to a bride from her groom), temporary mirage, and burying female babies alive are practices that have been prohibited.

8. Regulating penalties and distinguishing between the public right or the right of Almighty Allah and the personal right and distinguishing between legal penalties prescribed by the shari`ah and other penalties that are not prescribed but left for the discretion of the judge known as ta`zeer in addition to regulating the conditions of the crime of murdering and deliberate injuries and determining blood money and compensations.

9. Setting the foundation of international law of relations exhorting peace and brotherhood and the obligation of fulfilling covenants disallowing aggressive war and allowing defensive war for the sake of repelling aggression against religion, home, and holy places, preserving the freedom of religion, and helping the wronged person even if he is non Muslim.

10. Freedom of expression known as enjoining what is good and forbidding what is evil. This freedom is bound by the dictates of responsibility, for Islam considers the consequences of deeds and words. Thus, there is no freedom of speech to curse others or to disseminate harmful values in the society- it is responsible freedom.

11. The right of the poor and the weak in economic protection. Almighty Allah says, “Thus they feed with food- despite their own desire for it- the indigent, and the orphan, and the captive [of war]” [76:8] and “Moreover, in their wealth was a rightful share [of charity] for the beggar and the destitute.” [51:19]

12. The right of people in fairness and justice. Almighty Allah says, “O you who believe! Be ever upright for [the sake of] Allah, bearing witness [to truth] with [impartial] justice. Therefore, let not detestation [for some people] induce you to be unfair. [Rather,] be fair! For to do so is, indeed, closer to the fear of Allah. Therefore, fear Allah! Indeed, Allah is all-aware of all that you do” and [5:8] “And whenever you judge between people, you shall judge with justice.” [4:58]

13. The right of people on each other to cooperate and have mutual assistance. Almighty Allah says, “Rather, you shall help one another to virtuousness and to the fear of Allah. But you shall not help one another to sin and to aggression.” [5:2] Others’ right of justice was not known before Islam. Islam was the first to acknowledge these rights regardless of sex, race, ethnicity, or religion.

The Gracious Quran speaks about just cooperation that is based on the principle of freedom and the supremacy of the society “Say: O People of the Scripture! Come to an equitable word between us and you: That we shall not worship other than Allah. And we shall not associate anything in [our worship of] Him. And we shall not take one another as lords apart from Allah.”[3:64] explaining this verse Muhammad ibn `Amr al-Razy (544-606/1149-1209) said, “‘An equitable word’ indicates justice and fairness between all of us in terms of worshipping Allah equitably.” This means that there should be no extravagance or hegemony of one group over the other. All people enjoy freedom and equality before Allah, the One and Only God of all the people.

14.  The right to refuse prohibited things; that is, the right not to be forced to commit things prohibited by the shari`ah. The noble Messenger said, “No created being should be obeyed in disobedience of the Creator.” Almighty Allah said, “He said: The promise of My covenant shall not extend to the wrongdoers.” [2:124] By virtue of this, no ruler can enact the lawfulness of something prohibited or detrimental to people’s interests. The juristic rule is that “the ruler’s management of the subjects is bound by serving their interest.” Similarly, it is not for a powerful state or nation, even if it is a Muslim one, to impose things that cause harm to the interests of small countries.

15. Protecting properties. Almighty Allah says, “Moreover, you shall not consume one another’s wealth by false means, nor proffer any of it to [bribe] those in authority, in order to sinfully consume a portion of people’s wealth- while you know [it is wrong].” [2:188]

16. Preserving human dignity and honor. Almighty Allah says, “O you who believe! Men shall not scoff at other men. For those [whom they scoff at] may be better than them. Nor shall women [scoff] at other women. For those [whom they scoff at] may be better than them. Nor shall you slander each other. Nor shall you revile each other by [way of abhorrent] nicknames. Woeful is the ungodly name after attaining faith” [49:11] and “O you who believe! Shun much suspicion. For, indeed, certain kinds of suspicion are sinful. Nor shall you spy [on each other]. Nor shall you backbite one another.” [49:12]

17. Protecting private life. Almighty Allah says, “O you who believe! You shall not enter homes, other than your own homes, until you take [welcome] permission and greet their people with peace. That is best for you- so that you may become mindful [of the benefit of Allah’s commandments]. But if you do not find anyone therein, then do not enter them until permission is given to you. Moreover, if it is said to you: Turn back! then turn back [and do not persist]. That is purer for you.” [24:27-28]

Human rights in Islam enjoy the privilege that the wise Lawgiver gave them a divine source, a sacred essence, and a rational characteristic. They are established by the Creator’s will and derived from His religion. They are beyond whims and are secured forever.

Dr. Khayyat maintains that human rights fall within the divine appointment of man as a successor. The covenant of succession includes his rights and duties and there is harmony and synchronization between individual’s rights and public interest. Each right for the individual includes a right for God- i.e., for the society- though priority is given to God’s right in the case of conflict. These rights includes the five necessities of the shari`ah; namely, the preservation of religion, reason, soul, posterity, and property.

Perhaps the most important mainstay for human rights in the shari`ah is the independence of the judiciary; for the judge’s only reference is to the shari`ah and his conscience.

This independence is shown by the brief message sent by `Umar, the commander of the believers, (may Allah be pleased with him) to Mu`awiyah ibn Abu Sufyan, the governor of Syria and Palestine telling him that “You have no authority over `Ubadah ibn al-Samit.” `Ubadah was sent by the Caliph as a judge for Palestine. `Umar, thus, put an end for the governors’ interference in judiciary.

Here is another message sent by the Caliph `Umar ibn al-Khattab to Abu Mosa al-Ash`ary establishing the rules of judiciary that secure rights:

“Judgeship is a firm obligation and a followed methodology. So you should comprehend what is submitted before you; for it is useless to speak with a truth that is not enforceable. Treat people equally in terms of how approach you, how you face them, and how you judge between them so that no noble person should wish for your unjust inclination and no weak person should despair of your justice. Evidence is upon the claimant and vow is on the one who denies. Reconciliation between Muslims is permissible except that reconciliation that renders the unlawful lawful and the lawful unlawful. Whoever claims an absent right or evidence give him respite with fixed date, for this way you give the best excuse and clarify the blindness of the issue. No sentence you passed one day and then you revised it and was guided to the right opinion should prevent you from returning to the truth. The truth is old and nothing renders it void. Returning to the truth is better than going forward with falsehood. Muslims are trustworthy with one another with the exception of someone known for false testimony or someone whipped in penalty for a crime or a person whose credibility is under suspicion due to his alliance or relation to another. Almighty Allah is aware of the secrets of people and He has concealed the reasons of their falling under penalty unless with clear evidences and oaths. You should thoroughly comprehend that which is submitted before you and is not in the Quran or the Sunnah and then apply analogy.

Be aware of similar cases and look for what you see as the best in the sight of Allah and closer to the truth. Beware of anger, anxiety, boredom, feeling hurt by people and seeking to be remembered by the disputants. Judging in favor of the truth is a reason for deserving the reward of Allah and for having good remembrance among people. Hence, he who is sincere to the truth, even against himself, Allah will sufficiently take care of what is between him and the people. He who adorns himself with that which is not within himself will be disgraced by Allah. Allah does not accept from a person except that which is sincerely for Him. What do you think of the reward of Allah in His near provision and the treasures of His mercy?! Peace be upon you together with the mercy of Allah.”

Ibn al-Qayyem al-Jawziyyah said, “This message is great and scholars received it with approval and established upon it the rules of judgeship and testimony. The ruler and the mufti (jurist counselor) are more needful to reflect on and learn it.”

During the Abbasid period and in the end of the second century of Hijrah the caliph kept himself away from appointing judges as he entrusted this judiciary. Al-Rasheed appointed Abu Yousof as a judge and entrusted him to appoint judges in other countries and thus judiciary had some sort of administrative independence.

Office of the ombudsman can be considered an advanced means to protect human rights; particularly from the injustice of the authorities. It was established by al-Mahdy in the second half of the second century of Hijrah. It received people’s complaints even against high officials. Al-Mady and his successors up to the period of al-Muhatady (255 AH) used to dedicate one or two days a week to sit and listen to people’s complaints against those in authority as well as others.

Military justice was formed during the Mamluki period after expelling the crusaders from Syria by the end of the seventh century. This judiciary was for settling disputes among the soldiers. In Damascus there were two military judges.

After this quick survey over human rights in Islam, we shall focus on four key issues due to their importance in the current dialogue over human rights in Islam to see in the light of the shari`h and under the shade of the Western philosophy the prejudice against the Islamic shari`ah. We are going to dedicate four chapters for these issues: the first chapter will be about the status of women, the second about freedom and equality, the third about shura(consultation) and democracy, and the forth about Islamic criminal laws and human rights.

A historical glimpse over criminal laws:

Since the dawn of history, man has lived a social life that necessitated organizing his relations with others through establishing rules that have a binding nature and must be respected in order to control aggressive instincts and the desires for debauchery “And [by] the soul and Him who fashioned it and informed it with [consciousness of] its wickedness and its righteousness!” [91:7-8] There is no society, no matter how backward or developed, degraded or advanced it may be, that has not such a kind of rules whose reference could be a divine law revealed by the Creator (exalted is He) to His messengers and prophets to establish justice and set the balance of straightforwardness “Very truly, We have sent Our messengers with clear [and miraculous] proofs. And We sent down with [each of] them a Book [to guide their people], along with the [just] balance, so that people might establish justice.” [57:25]

The reference could be customs and traditions or the wisdom of the sages and the theories of the philosophers such as the Hammurabi Code and the Roman systems and laws which constitute the basis of the modern European laws.

Out of His grace on this Muslim nation, which received the final divine law, Almighty Allah granted it such as system that is complete and comprehensive in its fundamentals and accurate in its detailed rulings. It has organized human life in the most superb way and set it in the best order. Rights have been guaranteed, duties have been determined, justice firmly rooted and spread wide, and the truth has grown deep.

One of the most important of these systems is the criminal law that has guaranteed a safe life and protection for the society against the evils of criminality together with a rehabilitation of the criminal himself. Therefore, the penalty of each crime suits its consequences on the society and balances the degree of harm it causes for the individual and the society in a wonderful sequence and graduation through a system that never transgresses or does injustice. The shari`ah is broad in its horizons and concepts, clear in its declaration, firm in its well established texts, and continuous and developing in its objectives.

Its broadness is clear in the saying of Almighty Allah “And We have sent down to you the [Quran as a revealed] Book to make all things clear.” [16:89]. Clarity of the declaration is manifested by the prophetic declaration in the Farewell Pilgrimage “Indeed, your bloods, your properties, and your honors are as sacred for one another as the sacredness of this day…”

Scholars of the ummah (Muslim nation) have honestly interpreted and expressed this in their definition of crime when compared with its Western definition. Law defines it as “Every offense for which the law prescribes a punishment”, whereas Muslim jurists define it as “Every aggressive act against a soul, religion, reason, honor, posterity, or property.” Felony is “every prohibited act done against a property or a person.” [Radd al-Muhtaar by Ibn `Abdeen]

Ibn Qudamah, a hanbilite scholar, defined it as “Every aggressive act whether against a property or a person.”

The definition of the jurists identifies the goal of prohibition, which is the protection of soul, property, honor, and reason. It establishes the theory of criminality without referring to the law but to the nature of the act in order to protect the five necessities without the protection of which the social system cannot be consistent.

Punishment in the Islamic shari`ah

The punishment of the crimes has been accurately organized in distinguished groups according to the seriousness of the crime, the nature of the punishment, and the relation of the punishment to the affected side, be it an individual or the entire society.

They divided it into three kinds: retribution, hudud (sing. hadd, fixed punishments for certain crimes), and ta`zeerat (unfixed punishment administered at the discretion of the judge).

1.                  Retribution is to do with the criminal as he did with the victim. It is often used for killing the killer, wounding the person who wounded another, and cutting off the same organ he cut off from the other. It is a punishment for every crime against body, soul, or organ. Retribution is the right of the victim. He can forgo it if he wills; or else he can get it. This is what is called the personal right, though the ruler still has the right to punish in another way.

2.                  Hadd is a punishment prescribed as a right of Almighty Allah or of a human being and cannot be forgone except in cases of necessity or times of turmoil as al-Qurtuby stated. Such prescribed punishments are six, though there is difference of opinion concerning the penalty of accusing someone of illicit sexual intercourse, which al-Shafi`y regards as a personal right.

3.                  Ta`zeer is a punishment not specifically prescribed by the shari`ah and becomes due, as a right for Almighty Allah or for a human being, for a committing a sin that usually has no prescribed hadd or an atonement. It is one of the rights of the ruler and he is authorized to estimate it, according to the opinion of the majority of the Malikites, the Shafi`ites and the Hanbilites and the correct opinion in the school of Abu Hanifah. But he can also forgo it. Thus, it depends, with regard to its execution or non-execution and its severity or alleviation, on bringing benefits and warding off harms.

Rights are distinguished. Sometimes the right is for Almighty Allah and can be called the right of the ruler as called by Ibn Rushd, the grandson; and this cannot be forgone if it is a hadd. Sometimes it is the right of a human being who can forgo it. Sometimes it wavers between the two sides and thus scholars differ over it. Sometimes the two rights overlap in the same case such as in the case when a muharib (someone who wages war against the Muslim community) takes someone’s property. There is another three-folded division based on how to identify the side of the right.

Positive laws usually distinguish between the two sides: public right and personal right. On this they established the civil case filed by the affected person to demand compensation for the harm and the case of public right filed by the general persecutor to protect the society.

But, through detailing the kinds of crimes and penalties, the purified shari`ah has asserted the element of legislative consistency and stability represented in the shari`ah penalties which provide eternal protection to the universal necessities in a way that suits the eternal human necessity.

It also has laid emphasis on the side of flexibility, development, and adaptation with different environments in the form of ta`zeerat, not only through prescribing no maximum or minimum for the punishment but also through getting those in authority involved in executing or non-executing the punishment on the basis of seeking public interest not on the basis of mere whims.

Some of the fair legists in the West noticed the element of consistency and stability and the element of flexibility and development in the shari`ah and thus they lauded it, as the Italian legist Dr. Onzicuanzabto did in his book “Islam and the policy of the Allies” in the first half of the twentieth century when he said, “The Islamic shari`ah is accurate and stable in form and nevertheless it suits the status quo. Its development does not diminish its value and effectiveness. For long centuries it has fully sustained its vitality and flexibility.”

The criminal justice system that balances between the right of the individual and the right of the community is what distinguishes the shari`ah from the Western systems that cry for the criminal and waste the right of the society with its thousands of individuals.

There is difference of opinion concerning the ethical outlook that begets law or that the law is supposed to serve. Besides, the theory of public order in the legal sense differs in the Islamic system from the Western one as we pointed out.

In addition to its strong concern about the safety of the society, the purified shari`ah provides firm guarantees for the individual not only through the principle of warding the punishment off in case of doubt, which applies to hudud; particularly with regard to crimes against ethics and the pure rights of Allah, but it also provided guarantees on the level of juridical procedures and the means of proving proofs. It has disallowed the judge to judge based on his own knowledge and sets as a condition that the witnesses have to be trustworthy and that their number has to be more than two in certain ethical issues. Moreover, it gives excuse to the accused person to discredit the witness when necessary. It prescribes taking oaths and in some cases makes it firmer. It disregards the confession of the person under coercion and only regards confession with free will and choice. It has also set special conditions for the person who assumes the post of a judge including knowledge, piety, honesty, and straightforwardness in addition to other conditions known in the writings on judiciary and judgeship.

Having presented the above divisions concerning the punishment and its demander, there is a third division based on the nature of the crime given by ibn Rushd, the grandson, in his bookBidayat al-Mujtahid where he divided it into five kinds: crimes against bodies, souls, and organs, crimes against chastity; crimes against properties; crimes against honor, crimes against shari`ah prohibitions concerning food and drink. He said that these are the crimes that have punishments prescribed by the shari`ah. I do not think that I need to delineate the rulings of crimes and the cases that necessitate hadd and the cases where ta`zeer is prescribed. I feel that mentioning the main principles suffices for mentioning the details and mentioning the definition suffices for giving descriptions and numbers; for all this can be known from the books of fiqh and Islamic rulings.

It is well known that the crime is a result of disobeying Almighty Allah and contravening His command, whether this is accompanied by committing an aggression against a human being or not. Any aggression against others is a disobedience to Allah but the opposite is not necessary. There could be an act of disobedience that involves no aggression against anyone else, such as leaving out an obligation and drinking alcohol. But, in fact, this protects the society through preserving upright manners without which violence prevails and malice grows.

In certain crimes severe punishment is prescribed; these are called “crimes that require the application of hudud“. In the shari`ah, we distinguish between crimes that require hudud and crimes that require ta`zeer. The former are limited and determined by the Lawgiver, while the latter are unlimited. The Lawgiver may provide a ceiling for the punishment, as in the case of the crime of highway robbery, and may not leaving it to the discretion of the judge to consider the conditions that require alleviating or toughening the punishment and to treat each case individually, as in the case of stealing stealthily a property whose owner did not keep it properly or seizing it by force, which is considered as a theft crime according to shari`ah jurists.

Moreover, toughening the punishment was met by rigidity of the means to establish the proof as in some crimes- namely illicit sexual intercourse- four eyewitnesses are required. Moreover, if a person made a confession and then wanted to take it back or fled from the court, he should be left. Therefore, some scholars assert that the intent is to give threat only.

Warning is a known principle even in the Western laws. Thus, the judge cannot judge on the basis of his knowledge, for personal conviction is not enough. There must be decisive means to establish the proof so that judge remains away from the claim of injustice. Thus, even if he saw a person stealing, he cannot issue a sentence against him unless with his confession or with a convincing witness.

In fact, the issue of criminalization is relative as Western jurisprudents admit.

On which basis an act could be considered a crime?

The elements of ethics, public order, and social denunciation constitute the basis of criminalization. In his book the Criminal Law: General Introduction, the French legist Jack Bradley admits the difficulty of defining crime in a social and ethical way saying, “Criminalizing an act results from the lawgiver’s conviction that this act is unforgivable by the public opinion and thus it deserves a tougher punishment.” He further said, “It is the right of the society to punish those who disturb its peace. Only few authors denied this, while the majority of philosophers admit the right of the community to make punishment.”

Talking about ethics, he said, “There is an intimate relation between the ethical rule and the legal rule. The history of criminal law mostly shows that it is the conduct that shocks the good manners of the individual or the society that is punishable, such as committing a transgression against religion, life, or property.”

The French legist Tun Carison said, “Law and ethics can be drawn as two intersecting circles that have a common space and at the same time have special areas for each one of them.”

The author remarks that the law does not criminalize lying or things that are between the person and his Lord. He agrees with the social manners related to man’s duties toward his fellow beings, for unfulfilling them is criminalized by the criminal law.

In his book Criminal Law, DeCock said, “With regard to direct infringement of the social order, such as making transgression against religion or public affair, the reaction is associated with each society, be it a tribe or a state.” [p 26-27]

He further said, “The criminal law represents the society’s denunciation of the committed act, which justifies punishment.” The article (29) of the Human Rights Charter makes its application related to the consideration of ethics and public order. Thus, when we apply these punishments, we apply our ethics and respond to our societies that differ from other societies. Why then do they deny what they allow for themselves?

A word remains concerning death sentence and life sentence. We may here borrow the words of Dr. Ibraheem al-Marzouqy who said, “Both death sentence, with the psychological horror it causes, and life sentence, with the bodily suffering it causes, are still applied in many countries. Accordingly, it could be said that the rule of ‘the minimum treatment of the prisoner’ has not been decided yet with regard to all kinds of tough punishment. It could be concluded that the criterion of ‘the minimum’ of legal punishment- in terms of lessening the psychological and bodily suffering for the punishable person- is not a real criterion because it does not provide enough deterrence to guarantee necessary security and protection for the society. The proof for this is the escalation, in kind and number, of the crimes committed in such countries that do not apply bodily punishments on the criminals. As such increase in crime means increase in the threat directed to the safety and stability of the society, those people have to choose between deterring punishments to defend public interest and sacrificing such interests and leaving criminals to destroy the society as they like. Hence, hesitancy expressed by some countries regarding the abolishment of bodily punishments can be justified by protecting the security of their peoples. No legal system can be accused of cruelty when it takes the side of public interest, because the benefit achieved by the law through this preference is far greater than some due harms of the punishment that the criminals suffer as a just result of what they committed.”

In another place of his book al-Marzouqy made a comparison between the results of applying the Islamic shari`ah and those of slacking in its application saying, “Therefore, we find that the rate of crime is dreadfully high in modern societies and thus the number of victims increases and so do the violations and contraventions of human rights. This in turn leads to diminishing the rights and restricting the freedoms that people should enjoy.”

In this context, it should be noted that the number of the cases of major crimes where hududare executed in the KSA, for example, is so little that it reflects the low rate of crimes; particularly when compared by the rate of committing such crimes in some other Muslim and non-Muslim countries.

The relative increase of the rate of crimes in the countries that slacken in the application of the Islamic shari`ah only indicates the weakness of the element of deterrence in the imposed punishments and the failure to apply the punishments that suit the danger of the crimes. In return for every crime committed, an individual or collective right is violated. Hence, when the application of the law deters the criminals, this safeguards rights and freedoms. This at least justifies such punishments that may seem apparently harsh.

When the law fails in form, spirit, and application to achieve deterrence, it fails also to protect personal and collective rights and fails in turn to protect public interest. Accordingly, a question rises about the avail of such laws and systems and what need people have for its fuss? This applies to many of the modern laws and its successive crippling adjustments without significant benefit.

The Islamic legislation creates safe and stable societies that are sure to protect their rights, and this refutes the claims about the harshness of the Islamic penal system. If such allegations are not considered malicious, they are at least not based on objective basis.

The ultimate end and sublime goal of the criminal law is to reduce crime to preserve man’s rights of life and security, protect his property, and safeguard his posterity. These right have not been sufficiently observed in the positive criminal law, while the preservation of such rights is the criterion of its success.

As the Islamic legislation has unrelentingly combated any transgression against these rights through the application of severe punishments, it has also left some doors open for the perpetrators of some major crimes to make amends. This obviously indicates that the prescribed punishment aims basically at reforming the offender and the welfare of the society.

These doors, to which we shall indicate, represent the highest level of observing human rights, conforming with man’s nature and natural disposition, and respecting his privacy. They are:

First: There is a rule that repentance remits some of the due hudud, as in the case of the punishment of hirabah (unlawful warfare), before arresting the criminal to exhort him to amend himself and to protect his blood and property. Almighty Allah said, “Except for those who return penitently before you gain power over them. Know, then, that Allah is most forgiving, mercy-giving.” [5:34] This is a legislative exoneration that a criminal can demand in court.

According to some scholars, repentance remits the penalty of theft. In the view of some other scholars, it remits other penalties that are considered rights of Almighty Allah. But repentance does not remit people’s rights.

Repentance has incomparable effect in the Islamic criminal law. It is a way paved by the Lawgiver to reform the society and to rehabilitate the deviant; for, through it, he can regain his civil rights.

Repentance remits ta`zeer as well. Al-Qarafy mentioned, with regard to the difference between hadd and ta`zeer, that “Ta`zeer is remitted by repentance; I know no disagreement in this regard. But hudud are not remitted by repentance according the most correct opinion. Almighty Allah said, “Except for those who return penitently before you gain power over them.” (5:34)

Though they agreed that the penalty of hirabah is remitted by repentance before arresting the perpetrator because Almighty Allah said, “Except for those who return penitently before you gain power over them”, scholars differed regarding the remission of hadd by repentance

The opinion of the majority is that it does not remit hadd. This is the position of `Ata’ and a group of scholars. But some of the Shafi`ites maintain that it does remit the hadd of theft because Almighty Allah said, “As for the male thief and the female thief, cut off their hands as a recompense for what they have earned, [and] as a chastisement of deterrence from Allah. And Allah is overpowering, all-wise. But whoever repents after his wrongdoing, and sets things aright, then, indeed, Allah shall grant him repentance.” [5:38-39] This opinion is attributed to al-Shafi`y; and other hudud were made analogous to it.

Al-Qarafy summarized this analogy saying, “Disbelief is the greatest evil and hirabah is greater in evil than fornication. Nevertheless, these two great evils are remittable by repentance. Thus, that which affects the remission of a higher crime is worthier to affect the remission of a lower one. This is a strong question that supports the opinion that hudud should be remitted by way of repentance through making analogy with this agreed upon ruling as a fortiori.” Then he attempted to give answers for it.

Al-Qurtuby said, “As for those who drink [alcohol], those who fornicate, and those who steal, if they have repented, set things aright, and become know for this and then they were brought before the ruler, he should not apply the prescribed penalty to them. But if they were first brought before him and then they claimed repentance, they should not be released.”

Ibn al-Qayyim said:

“With regard to considering the repentance of the committer of hirabah before arresting him to the exclusion of other perpetrators, it should be said: Where is such discrimination in the texts of the Lawgiver? He rather explicitly mentioned the consideration of the repentance of the committer of hirabah before arresting him either to draw attention to the consideration of the repentance of others as a fortiori- for if repentance remits the penalty of hirabah in spite of the severity and transitivity of its harm, it is a fortiori that repentance should remit other lower penalties. Almighty Allah said ‘Say to those who disbelieve that if they desist [from disbelief], what they have done shall be forgiven them.’ [8:38]

The Prophet (peace and blessings be upon him) said, “Whoever repents from a sin is like the one who has no sin.” Almighty Allah has made hudud as punishment for those who commit crimes and lifted both shari`ah and fatal punishment from the repentant. There is no shari`ahor fatal punishment at all for a repentant. In Saheeh al-Bukhary and Saheeh Muslim we read the hadith reported by Anas who said, “I was with the Prophet (peace and blessings be upon him) when a man came to him and said ‘I committed a crime that deserves the application of hadd, so apply it to me’, and he (the Prophet) did not ask him about it. Then the Prayer was called for and he prayed with the Prophet (peace and blessings be upon him). When the Prophet (peace and blessings be upon him) finished the Prayer, the man came to him and repeated his words, whereupon he said, ‘Have you not prayed with us?’ He said, ‘Yes.’ He said, ‘Indeed, Almighty Allah has forgiven you your sin.'”

So, as this person came declaring his repentance on his own without being summoned, Allah forgave him and the punishment of the crime he confessed was not applied to him. This is one of two opinions on this is issue and is one of the two opinions reported from Ahmad, and this is the correct one.

If it is said that Ma`iz and the Ghamidiyyah woman came to him and the punishment was applied to both of them, it will be said that there is no doubt that they came as penitent and there is no doubt that the penalty was applied to both of them and this was used as evidence by the proponents of the other opinion.

I asked our sheikh about this point and the purport of his answer was that the punishment is a purifier of the sin and the repentance is a purifier. But these two persons chose to be purified through the penalty over being purified through repentance only and they refused but to be purifed with the hadd. So the Prophet (peace and blessings be upon him) responded to their choice. But he recommended the choice of being purified by repentance over being purified by the hadd. He said concerning Ma`iz, “Would you have left him to repent so that Allah may grant him repentance?” Were it obligatory to apply the punishment after repentance, it would not be permissible to let him go. The ruler has the choice either to let him go, as he said to the confessing perpetrator “Go; for Allah has forgiven you”, or to apply the penalty, as he applied it to Ma`iz and the Ghamidiyyah woman who chose to apply it and refused but to be purified through it. Therefore, the Prophet (peace and blessings be upon him) sent them away many times but they refused except to have it applied to them. This approach is middle between the approach of those who maintain that it is not permissible to apply it after repentance at all and the approach of those who maintain that repentance has no effect at all on remitting it. If you reflect on the Sunnah, you will find it indicative of this middle position. Allah knows best.

As for the ahadith, there are many; and some of them apparently indicate generality with regard to the ethical crimes that include no personal right. Islam exhorts witnesses to conceal the affairs of the accused person and discourages taking cases to the court. In al-Muwatta’Malik reported that Hazal came and mentioned that a man committed fornication whereupon the Prophet (peace and blessings be upon him) said, “O Hazal! Should you have concealed his affair, that would have been better for you.”

Therefore, al-Kamal ibn al-Humam said, “It is undesirable to give testimony concerning a crime with a hadd penalty, because concealing such an affair is recommendable unless in the case of a person known for debauchery.”

Second: There is difference of opinion whether a non-Muslim is remitted from the punishment for ethical crimes that involve no personal right.

In his commentary, Ibn `Abdeen said, referring to Sharh al-Siyar, “He also mentioned that if amusta’man (non-Muslim who is given a pledge of security to reside temporarily in a Muslim country) in our lands has committed a punishable crime, he should only be punished for that which involves a right for a human being, such as retribution and the crime of accusing chaste people with fornication”.

This seems to be a sort of respect for his religious conviction, which makes him deem this deed lawful, and a fulfillment of the pledge of security. This is a degree of tolerance unfound in any positive law; namely, to give the foreigner more rights than the citizen.

Scholars have opinions and detailed discussions concerning this issue that should be revised in their references. Consequently, if the Islamic treatment is taken into consideration in terms of its comprehensiveness represented in not taking crimes to courts in principle, and the command to conceal such affairs, and the effect of repentance, and the difficulty of establishing the proof, the fuss raised about the harshness of Islam concerning crimes against ethics will change from finding it strange to finding it admirable and from shrinking to feeling honorable; and we will realize that the severe punishment is a threat to the criminal and a protection to the society.

There are quick clues to show how much the Islamic legislation surpasses the man-made laws with regard to being lenient to man, attempting to amend the criminal through repentance, and fighting dissolution in principle by fixing a threatening punishment that is applicable only in a rare and public case when the crime represents an aggression against the community.