January 14, 2013

Human Right between Islam and the West : Part 2



                                     بِسْمِ اللهِ الرَّحْمنِ الرَّحِيمِ


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.

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.