January 14, 2013

Human Right between Islam and the West : Part 4

                                  بِسْمِ اللهِ الرَّحْمنِ الرَّحِيمِ

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.

Wallahu a'lam

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