January 14, 2013

Human Right between Islam and the West : Part 3


                                     
                                     بِسْمِ اللهِ الرَّحْمنِ الرَّحِيمِ

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.”

Wallahua'lam.

Source :
- Prof Tariq Ramadan ( Lectute of University Oxford )
- Dr Syakh Abdallah bin Bayyah ( Lecture of Abdul Aziz, Saudi Arabia )
- UN Human Right Department.