448

 
Anahtar Kelimeler: Karşılaştırmalı hukuk, kavramsal tarih, İslam ve insan hakları,
İslam hukuku, İslam hukuk felsefesi, hukuki oryantalizm, doğal hukuk, doğal haklar,
insan hakları felsefesi, insan hakları tarihi
vii

December 2022, 237 Pages
In this thesis we explore the problem of the contested grounds of human rights in Islam
and the West. While we live in an era in which human rights are at the center of our
global moral discussions, human rights have been challenged for their bias in
Eurocentric ethics and anthropologies. At the same time human rights were secularized
in the twentieth century and divorced from their historical theological underpinnings,
without being supplanted by any viable philosophical alternative. This has left modern
human rights philosophically ungrounded and in need of a theory of justification. The
current “crisis of human rights” has instigated new scholarship on the philosophical
grounds of human rights, especially in Christian and Jewish ethics. The Islamic legal
tradition is notably absent from this debate. Research on Islam and human rights
almost exclusively focuses on a “narrative of conflict” and lacks a sustained
engagement with classical Islamic law (fiqh) and legal philosophy (uṣūl al-fiqh). Both
Orientalists and human rights lawyers have claimed Islam has no conception of human
rights and is merely a “duty-based system”. This thesis moves beyond the reductionism
of legal Orientalism and approaches Islamic law discursively as a legal-philosophical
tradition that can make worthwhile contributions to contemporary philosophical
debates. Through the frameworks of comparative legal studies and conceptual history
(Begriffsgeschichte), this thesis traces premodern human rights discourses in medieval
and early modern Islam and the West. In doing so, we explore how human rights were
conceptualized, justified and grounded, and how they may speak to our current moral
concerns today.
viii
Key words: Comparative law, conceptual history, Islam and human rights, Islamic
law, Islamic legal philosophy, legal Orientalism, natural law, natural rights,
philosophy of human rights, history of human rights
ix
DEDICATION
Dedicated to my wife and two sons, Zehra, Yusuf Safa and Faruk Taha.
In loving memory of my late grandmother Theodora Quax-van Ee (d. 2012).
x
ACKNOWLEDGEMENTS
It is related in the Islamic tradition that he who does not thank people indeed is not
thankful to God.1 I am thankful first and foremost to my family, who have supported
my endeavors all these years. I thank my dear wife Zehra, and my two beloved sons
Yusuf Safa and Faruk Taha. Without your care and sacrifice this dissertation would
not have come to fruition. You have enabled me to fulfill a dream and have been part
of that dream. Words simply do not suffice in expressing my debt and gratitude to you.
Thank you for being in my life and by my side.
I also thank my parents, Yvonne and Dirk Hoogendoorn, my brother Martijn Vlug and
his family, and my grandmother Maria Molenbroek, who have supported me
throughout the years with their love and encouragement. Thank you for your patience,
and your many visits to Istanbul. I am deeply grateful for your support. I also thank
my wife’s family, especially my parents-in-law, Güllizar and Fehmi Ünver, for their
continuous support and prayers. I thank Tolgahan Yasin Çetinkaya, Mehmet
Doğanbaş, İsa Özler, Marc Koudijs, and Arnold Yasin Mol for their continuing
friendship.
Special thanks go to Prof. Dr. Recep Şentürk, my PhD supervisor and mentor, who has
provided both intellectual and spiritual guidance over the years. Prof. Dr. Şentürk went
out of his way to support me in innumerable ways, and I am forever indebted for his
support and advice throughout the years. Special thanks also go to the other PhD
committee members, Prof. Dr. Mürteza Bedir and Dr. Önder Küçükural. Both have
been of tremendous support and have offered critical feedback and invaluable advice
during the writing process of this thesis. I am grateful for their patience and
encouragement along the way. In addition, I thank the external committee members
Prof. Dr Necmettin Kızılkaya and Dr. Ercüment Asil for their indispensable advice. I
also thank the PhD students in my cohort for their support, friendship, any many warm
memories of our PhD Colloquia, drinking Turkish çay at the Özbekler Tekkesi in
Üsküdar.
1 “Lā yashkuru Allāh man lā jashkuru al-nās”, related by Abū Dāwūd al-Sijistānī, Sunan Abī Dāwūd
(Jamʿiyyat al-Maknaz al-Islāmī, 2008), 4811.
xi
Over the years, I have benefitted from many academic institutions and the precious
teachers and students there. I’m especially thankful to Prof. Dr. Yaser Ellethy and Prof.
Dr. Nelly van Doorn-Harder, who supervised me at the Faculty of Religion and
Theology of Vrije Universiteit Amsterdam (VU Amsterdam), an amazing intellectual
environment that was formative in many ways. I also thank my cohort-students – and
now professors in their own right – Dr. Razi Quadir and Dr. Yusuf Çelik for their
continuing friendship throughout the years.
I’m also thankful to Prof. Dr. Jon McGinnis and Prof. Dr. Tony Street, who supervised
me during the ‘Intellectual Encounters of the Islamicate World’ program at the
Institute of Islamic Studies of Freie Universität Berlin’s Department of History and
Cultural Studies. I will never forget the great research colloquia we had in Cordoba
and Berlin and the amazing students I met there. I also thank Prof. Dr. Hinrich
Biesterfeldt, Prof. Dr. Sara Sviri, and Prof. Dr. Krisztina Szilágyi.
During my eight-year stay in Istanbul, I had the honor of studying in the PhD program
at the Alliance of Civilizations Institute of Ibn Haldun University. I’m very thankful
for the great teachers I had there, such as Prof. Dr. Alparslan Açıkgenç, Prof. Dr.
Tahsin Görgün, Prof. Dr. Heba Raouf Ezzat, Prof. Dr. Ercüment Asil, Prof. Dr. Önder
Küçükural, and Dr. Nagihan Haliloğlu. It was a truly formative period. A student could
also not wish for a more inspiring environment to study in, first at the Yenikapı
Mevlevihanesi Campus, and later at the historic premises of the Süleymaniye Mosque.
I’m especially thankful to Prof. Dr. Halil Berktay from whom I learned many valuable
lessons as a Teaching Fellow.
During my stay in Istanbul, I also had the opportunity to study the traditional Ottoman
curriculum of Islamic sciences at the Istanbul Foundation for Research and Education
(ISAR Vakfı). This program has been fundamental to my intellectual development and
provided me with the essential tools to access the rich Islamic intellectual tradition.
I’m grateful for having studied with so many extraordinary teachers there. I express
my gratitude to all the ISAR scholars and all the great students I met there. Special
thanks go to Prof. Dr. Mürteza Bedir, Prof. Dr. Cüneyd Köksal, Prof. Dr. Necmettin
Kızılkaya, Prof. Dr. Hasan Hacak, Dr. Mesut Erzi, and Dr. Ahmet Aktaş.
xii
I am also thankful to several academic institutions for generously supporting me at
various stages of researching and writing this thesis, either financially or through
providing accommodation and research facilities. These are Netherlands Institute in
Turkey (NIT) for granting me their NIT Fellowship, Ibn Haldun University and the
Türgev Foundation for generously providing a full scholarship throughout my PhD
studies, Freie Universität Berlin for travel grants to Cordoba and Berlin, the Islamic
University of Applied Sciences Rotterdam (IUASR) for providing an inspiring work
office during my stay in the Netherlands, the ISAR Foundation for travel grants to
Atlanta and Amman, and a year-long PhD-completion grant during the final stages of
writing this dissertation. I especially thank Prof. Dr. Ercüment Asil for having arranged
an office to work at the historic Özbekler Tekkesi in Üsküdar (and my dear brother Dr.
Mesut Erzi for having shared that office). I cherish the times I was privileged to spent
there. Finally, I thank the ISAM Library in Istanbul for having allowed access to their
excellent research facilities and for having provided an inspiring working space
throughout the years of my stay in Istanbul.
Jeroen Harun Vlug
Istanbul, 2022
xiii
TABLE OF CONTENTS
ÖZ ................................................................................................................................................... v
ABSTRACT ..................................................................................................................................... vii
DEDICATION .................................................................................................................................. ix
ACKNOWLEDGEMENTS ................................................................................................................... x
LIST OF ARABIC TRANSLITERATIONS ............................................................................................. xv
INTRODUCTION .............................................................................................................................. 1
1.1. The Contested Grounds of Rights: Problems and Questions ....................................................... 2
1.2. Methodological Concerns ........................................................................................................... 7
1.2.1. Conceptual History: A Begriffsgeschichte of Rights ............................................................ 7
1.2.2. Comparative Law: Beyond Functionalism ......................................................................... 10
1.2.3. The Problem of Legal Orientalism ..................................................................................... 15
1.3. The Structure of This Thesis ...................................................................................................... 19
CHAPTER I ..................................................................................................................................... 23
THE CRISIS OF MODERN HUMAN RIGHTS: FROM UBIQUITY TO CONTESTATION ............................ 23
1.1. The Global Rise of the Modern Human Rights Regime ............................................................. 24
1.2. Two Challenges to Modern Human Rights ................................................................................ 28
1.2.1. The Problem of Diversity ................................................................................................... 29
1.2.2. The Problem of Justification ............................................................................................. 34
1.3. Current Scholarship on Justificatory Grounds ........................................................................... 39
1.4. Conclusion ................................................................................................................................. 45
CHAPTER II .................................................................................................................................... 50
THE ISLAM AND HUMAN RIGHTS DEBATE: A TAXONOMY OF PERSPECTIVES ................................. 50
2.1. Islam and Human Rights: Contemporary Practices and Responses .......................................... 51
2.2. The Conflictual Perspective: Presentism and Orientalism ......................................................... 54
2.3. The Apologetic Perspective: Reactionism and Anachronism .................................................... 58
2.4. The Discursive Perspective: Traditionalism and Revivalism ...................................................... 61
2.5. Conclusion ................................................................................................................................. 65
CHAPTER III ................................................................................................................................... 67
FROM LEX NATURALIS TO IUS NATURALE: RIGHTS DISCOURSES IN THE WESTERN LEGAL TRADITION
..................................................................................................................................................... 67
3.1. Coming to Terms with Rights: Modern Legal Perspectives ....................................................... 68
3.1.1. Conceptual Clarity: Taking Rights Language Seriously ...................................................... 68
3.1.2. Rights and Jural Relations: The Hohfeldian Framework .................................................... 70
3.1.3. The Question of Enforceability: Moral Rights versus Legal Rights .................................... 73
3.2. A Conceptual History of Rights in the Western Legal Tradition ................................................ 77
3.2.1. Rediscovering the Greco-Roman Heritage: The Emergence of Medieval Canon Law ....... 78
xiv
3.2.2. The Medieval Natural Law Tradition: Ius and Dominium .................................................. 81
3.2.3. Early Modern Natural Rights: Separating Ius from Lex ..................................................... 85
3.3. Conclusion ................................................................................................................................. 94
CHAPTER IV .................................................................................................................................. 98
THE HERMENEUTICS OF ḤUQŪQ: RIGHTS DISCOURSES IN THE ISLAMIC LEGAL TRADITION ........... 98
4.1. Lost in Translation: Towards a Conceptual History of Rights in Islam ...................................... 99
4.2. Islamic Law and Legal Language: What’s in a Name? ............................................................ 101
4.3. Rights Discourses in Medieval and Early Modern Islamic Juridical Literature ........................ 112
4.3.1. Taklīf and Dhimma: Moral Responsibility and Legal Personality .................................... 116
4.3.2. Ahliyya: The Islamic Concept of Legal Capacity .............................................................. 121
4.3.3. Ḥuqūq Allāh and Ḥuqūq al-ʿIbād: The Public-Private Rights Dichotomy in Islamic Law .. 123
4.4. Conclusion ............................................................................................................................... 129
CHAPTER V ................................................................................................................................. 132
FUNDAMENTAL RIGHTS IN PREMODERN WESTERN LAW: LIFE, LIBERTY AND PROPERTY ............. 132
5.1. Fundamental Rights as Basic Goods ....................................................................................... 133
5.2. Precursors to the Lockean Rights Scheme: From Self-Preservation to Human Worth ............ 134
5.2.1. Grotius and the Law of Nations ...................................................................................... 134
5.2.2. Hobbes and the Right to Self-Preservation ..................................................................... 137
5.2.3. Pufendorf’s Theory of Sociability .................................................................................... 139
5.3. Locke and the Rights to Life, Liberty, and Property ................................................................. 142
5.4. Conclusion ............................................................................................................................... 145
CHAPTER VI ................................................................................................................................ 148
FUNDAMENTAL RIGHTS IN PREMODERN ISLAMIC LAW: ʿIṢMAʾ, ḤURRIYYA AND MĀLIKIYYA ....... 148
6.1. Grounding Ḥuqūq in Public Benefit and Human Dignity ......................................................... 148
6.1.1. The Rights Theory of Maṣlaḥa ............................................................................................. 150
6.1.1. The Rights Theory of Karāma ............................................................................................... 152
6.2. Exploring Fundamental Rights in Islamic Law ......................................................................... 155
6.2.1. The Right to Life .............................................................................................................. 156
6.2.2. The Right to Freedom ..................................................................................................... 158
6.2.3. The Rights to Property and Ownership ........................................................................... 159
6.3. Conclusion ............................................................................................................................... 164
CONCLUSION .............................................................................................................................. 167
Beyond Mauritian’s Thin Consensus: Reopening the Dialogue on Grounds .................................. 168
Islamic Human Rights Studies: An Emerging Field? ....................................................................... 171
From Whence Human Rights? Disentangling a Contested Concept .............................................. 173
Islamic Rights Discourses: Giving the Islamic Legal Tradition Its Due ............................................ 176
Comparing the grounds and scope of human rights in Islam and the West .................................. 179
Final Remarks ................................................................................................................................ 185
REFERENCES ............................................................................................................................... 187
xv
LIST OF ARABIC TRANSLITERATIONS
1
INTRODUCTION
“Any translation into one’s own present implies a conceptual history.”
Reinhart Koselleck2
“To compare requires seeing two things as whole and complete, then brought into
juxtaposition and relationship.”
Jacob Neusner & Tamara Sonn3
In this thesis we explore the problem of the contested grounds of fundamental rights
in Islam and the West. We inhabit an era in which human rights values have never
been so widely accepted as the “moral language” of our age. At the same instant,
however, their philosophical grounds remain highly contested. What are rights
exactly? How can we justify them? And who is allowed to have them? These questions
remain unresolved and different cultures and civilizations tend to answer them
differently. Two major problems that challenge the modern concept of rights that
inhere in all human beings are claims to universality and the charge of
“ungroundedness”. In an effort the universalize modern human rights they were
secularized during the eighteenth century. But their premodern theological and
philosophical grounds were never replaced with anything new. Without proper
justifications, some have claimed human rights do not exist at all. This conundrum has
been at the center of the modern crisis of human rights.
In order to attempt to answer some of these questions, this thesis explores the grounds
of rights in the Islamic and Western legal traditions. How have these premodern
traditions attempted to answer these questions? And how can we learn from them
today? Using conceptual history and conceptual analysis, we aim to bring clarity to
the highly ambiguous concept of rights. And through the methods of comparative law
2 Reinhart Koselleck, The Practice of Conceptual History: Timing History, Spacing Concepts, trans.
Todd Samuel Presner et al. (Stanford, California: Stanford University Press, 2002), 21. For the
original German, see Reinhart Koselleck, “Sozialgeschichte und Begriffsgeschichte”, in
Sozialgeschichte in Deutschland, Vol. 1, eds. Wolfgang Schieder and Volker Sellin (Göttingen:
Vandenhoek und Ruprecht, 1986), 90.
3 Jacob Neusner and Tamara Sonn, Comparing Religions Through Law: Judaism and Islam (London:
Routledge, 1999), 1.
2
and comparative religion we attempt understand how these legal traditions differ and
were they have common grounds.
1.1. The Contested Grounds of Rights: Problems and Questions
The theoretical and philosophical grounds of human rights is an emergent field of
inquiry attracting scholars from legal history, legal philosophy, comparative law, and
religious studies. We live in a global era of rights, in which “rights talk” is the
dominant international ethical language, the “moral lingua franca” of our
contemporary era.4 Particularly after World War II, with the promulgation of the
Universal Declaration of Human Rights (UDHR) in 1948, fundamental rights
principles have become increasingly embedded in our national legal systems, in our
constitutions, in regional human rights instruments, in the burgeoning field of
international human rights law, and in an array of subsequent human rights
conventions and declarations.5
Yet, despite the apparent ubiquity and consensus about the importance of fundamental
rights, the grounds of rights remain highly contested. In fact, there is no consensus on
justificatory grounds, which is a main reason why this discussion – which is deeply
philosophical in nature – was evaded during the drafting of the UDHR.6 The
contestation over grounds is after all in direct contradistinction to the universalizing
tendency of the modern human rights regime, which is catered towards consensus. The
language of modern human rights in the twenty-first century was therefore deliberately
“secularized” to dissociate it from premodern religious rights discourses. Medieval
and early modern discourses on natural law and natural rights had been deeply imbued
4 Johannes Morsink. Inherent Human Rights: Philosophical Roots of the Universal Declaration
(Philadelphia: University of Pennsylvania Press, 2009), 1.
5 Mashood A. Baderin and Manisuli Ssenyonjo, “Development of International Human Rights Law
Before and After the UDHR”, in International Human Rights Law: Six Decades after the UDHR and
Beyond, eds. Mashood A. Baderin and Manisuli Ssenyonjo (Farnham, Surrey and Burlington, VT:
Ashgate, 2010), 8-12.
6 Johannes Morsink, The Universal Declaration of Human Rights: Origins, Drafting, and Intent
(Philadelphia: University of Pennsylvania Press, 1999). Morsink mentions that the drafters of the
UDHR strove to use a language that accommodated different ideologies and worldviews in a
“tremendous drive toward universality”, 21.
3
with the Christian theological Weltanschauung, thus endangering the envisioned
“universality” of modern human rights.7
In absence of commonly accepted grounds, various religious traditions and world
views – be they Buddhist, Hindu, Christian, Jewish, Islamic, or otherwise – have
justified modern human rights in different ways.8 Non-religious scholars have
similarly attempted to ground rights in secular humanism and other secular outlooks.9
Some critics, such as the well-known neo-Thomist philosopher Alasdair McIntyre,
have argued that modern human rights have no grounds at all, and hence they do not
actually exist; that they in fact are akin to belief in “witches and unicorns” or in an
earlier elaboration by the early nineteenth-century utilitarian and positivist legal
philosopher Jeremy Bentham “nonsense upon stilts”.10 In short, the perceived
“ungroundedness” of the modern human rights discourse has become a major
philosophical problem.
The debate around the contested grounds of rights has prompted contemporary
scholars to look for inspiration in premodern rights discourses to conceptually
substantiate and justify modern human rights. Especially scholars working from the
framework of Christian and Jewish ethics have been prolific in this regard.11 There is
now a bulk of literature grounding human rights in premodern Christian notions of
divine love (agápē) or human createdness in the image of God (imago Dei), such as in
7 This process of secularization in fact already started in the eighteenth century, and perhaps even
earlier, see Michael Freeman, Human Rights (Cambridge and Malden, MA: Polity Press, 2017), 28.
8 For various attempts to ground human rights in different religious traditions and worldviews, see
John Witte, Jr. and M. Christian Green (eds.), Religion and Human Rights: An Introduction (New
York: Oxford University Press, 2012).
9 The most elaborate attempt for a secular grounding of human rights is arguably found in Ari Kohen,
In Defense of Human Rights: A Non-Religious Grounding in a Pluralistic World (Abingdon, Oxon
and New York: Routledge, 2007).
10 See Alasdair MacIntyre, After Virtue: A Study in Moral Theory (Notre Dame, Indiana: University of
Notre Dame Press, 2007), 69; Jeremy Bentham, “Anarchical Fallacies: Being an Examination of the
Declarations of Rights Issued During the French Revolution”, in The Works of Jeremy Bentham, Vol.
II, ed. John Bowring (Edinburgh: William Tait, 1843), 501.
11 See for example John Finnis, “Grounding Human Rights in Natural Law”, The American Journal of
Jurisprudence 60, no. 2 (2015): 199-225. Finnis grounds human rights in the Catholic Thomist natural
law tradition, as represented by the medieval legal thought of Thomas Aquinas (1225-1274). For an
example of grounding human rights in Jewish ethics, see David Novak, “The Judaic Foundation of
Rights”, in Christianity and Human Rights: An Introduction, eds. John Witte Jr. and Frank S.
Alexander (Cambridge: Cambridge University Press, 2010), 47-53.
4
the works of the contemporary Calvinist philosopher Nicholas Wolterstorff, to give
but one example.12
Notably, an earnest exploration of the rich premodern Islamic legal tradition with its
own distinctive “rights talk” is largely missing from the debate on justificatory
grounds. Contemporary scholarship on Islam and human rights has mostly remained
limited to the “question of compatibility”: does the Islamic legal tradition conform to
modern universal human rights standards?13 The logic of conflict in Islam and human
rights scholarship has led to a stereotypical paradigm of “an Islamic culture necessarily
at odds with international human rights norms”.14 Regrettably, these debates are
oftentimes tainted by either historical illiteracy or apologetics. Modern human rights
scholars often lack the historical-Islamicist training and corresponding hermeneutical
apparatus needed to seriously engage the premodern Islamic juridical tradition, which
was written mainly in – sometimes impenetrable – medieval classical Arabic.15 The
field is furthermore cumbered by a stubborn case of legal Orientalism16, up to the point
that some orientalist scholars have claimed that there exists no conception of
individual rights and liberties in Islamic law at all.17
As such, the field of Islam and human rights is “acting out of character” when
compared to similar scholarship on premodern religious legal traditions and the
question of the justificatory grounds of rights. What is lacking in the debate, it could
12 The primary expounder of the Christian ethical concept of agápē as ground for human rights is
Nicholas Wolterstorff, Justice: Rights and Wrongs (Princeton, New Jersey: Princeton University
Press, 2008), 98-104 and 285-310. For an example of the concept of imago dei as a ground for human
rights, see Adrian Long, Paul and Human Rights: A Dialogue with the Father of the Corinthian
Community (Sheffield, England: Sheffield Phoenix Press, 2009).
13 See for example Ann Elizabeth Mayer, “Universal versus Islamic Human Rights: A Clash of
Cultures or a Clash with a Construct?”, Michigan Journal of International Law 15, no. 2 (1994): 307-
404; Ruud Peters, “(In)compatibility of Religion and Human Rights: The Case of Islam”, in Human
Rights and the Impact of Religion, eds. Johannes A. van der Ven and Hans-Georg Ziebertz (Leiden:
Brill, 2013), 75-98.
14 Mayer, Universal versus Islamic Human Rights, 308. (Emphasis mine.)
15 Heiner Bielefeldt, for example, admits to “lacking the language skills needed to explore the sources
written in Arabic, Persian, Turkish or Urdu”, see his “Muslim Voices in the Human Rights Debate”,
Human Rights Quarterly 17, no. 4 (1995), 587, fn. 2. This however does not withhold the author from
making major claims about the Islamic legal tradition.
16 Regarding legal Orientalism, see Wael B. Hallaq, “On Orientalism, Self-Consciousness and
History”, Islamic Law and Society 18 (2011): 387-439.
17 See Henry Siegman, “The State and the Individual in Sunni Islam”, The Muslim World 14 (1964):
22-24. This assumption is often perpetuated in contemporary scholarship on the topic. See for
example Norman Doe, Comparative Religious Law: Judaism, Christianity, Islam (Cambridge:
Cambridge University Press, 2018), 373-377.
5
be argued, is an engaged and honest historical inquiry into the classical Islamic legal
tradition, taking into consideration its own indigenous legal reasoning, legal language,
legal epistemology, and legal anthropology.18 With this thesis we aim to enrich the
scholarly debate around Islam and human rights – moving beyond the mere question
of (in)compatibility – by engaging the premodern Islamic legal tradition in a much
more sustained manner than has been done so far, much like the work that is already
being done in contemporary human rights scholarship on premodern Christian and
Jewish legal and ethical traditions in this regard.19
This study capitalizes on the newly emerging scholarship on the grounds of human
rights debate, which explores premodern conceptions of fundamental rights in the
context religious ethics, law and moral philosophy. This type of scholarship is
instigated by two concerns: (1) the growing realization that the modern human rights
discourse did not simply blink into existence after World War II, but is the product of
specific (and contested) historical genealogies in earlier rights traditions, such as
medieval and early modern natural law and natural rights, and (2) the foray into
premodern religious and legal traditions in the face of the crisis of ungrounded modern
human rights, in search for fresh perspectives on modern human rights justifications.
Along this line – and in conversation with – this recent trend of scholarship, this thesis
too focuses on premodern conceptions of fundamental rights, albeit bringing the
Islamic legal tradition into the conversation. In doing so, this thesis brings premodern
Islamic and Western rights discourses into sustained conversation with one another
within a comparative and historically engaged framework, taking both the Western
and Islamic legal traditions seriously. While this study is situated in the field of
comparative law and legal history proper, we hope it will also be of interest to scholars
working in the fields of political and moral philosophy, theology and religious studies,
international human rights law and legal ethics.
18 On Islamic legal language, see Wael B. Hallaq, Sharīʿa: Theory, Practice, Transformations (New
York: Cambridge University Press, 2009), 87-92.
19 For an excellent collection in this regard, see John Witte, Jr. and Frank S. Alexander (eds.),
Christianity and Human Rights: An Introduction (New York: Cambridge University Press, 2010).
6
This thesis pursues the debate on the ground of human rights along the axis of three
lines of questioning:
(I) What are fundamental rights conceptually?
(II) How are fundamental rights theoretically justified?
(III) Who is practically included in the scope of fundamental rights?
I. First line of questioning: What are fundamental rights conceptually?
The concept of rights is notoriously ambiguous. Rights can be claim-rights, privileges,
powers, or immunities. In addition, various terms are uncritically used and conflated
when speaking about rights in the Western legal tradition, such as human rights,
natural rights, and natural law. Similarly, there is confusion about what the correct
terminological correlative of rights is in the Islamic legal tradition. Some have claimed
the Islamic tradition has no concept of individual rights. That it is a “duty-based”
system. Another conundrum is the difference between moral and legal rights. This is
hotly debated in modern human rights scholarship. But premodern Western and
Islamic legal traditions also have disparate views on the moral and legal dimensions
of rights.
II. Second line of questioning: How are fundamental rights theoretically justified?
Legal scholars, theologians, and political philosophers have entertained different
rights theories to justify rights. Some have accorded it to human nature and capacity,
others to human dignity and worth, others yet have appealed to notions of public
benefit and sociability. Justifications have been given on the ground of both reason
and religion. Scholars have also discussed the question of how rights are hierarchically
prioritized (rights triage). Which rights are more fundamental than others in order to
promote basic human dignity and societal flourishing?
III. Third line of questioning: Who is practically included in the scope of fundamental
rights?
7
Modern human rights are generally considered to be universal. All humans have them
based on their mere humanity. This conception has been criticized in modern
scholarship as overly idealistic, unattainable and unenforceable. At the same time,
premodern legal traditions had different notions of what it means to be a human and
who is included in humanity, particularly when it comes to women, children,
indigenous peoples, and cultural/religious minorities. Who is included in the scope of
fundamental rights? To whom are they ascribed?
1.2. Methodological Concerns
This thesis is guided by several methodological concerns. These all relate to the lines
of questioning in the described research questions above. An important part of this
thesis is dedicated to disambiguating the concept of rights in the Islamic and Western
legal traditions. The concept is known for its conceptual ambiguity and is discussed
on various levels, both in the fields of modern legal studies and in legal history. For
this inquiry, the methods of conceptual history and conceptual analysis are utilized.
Furthermore, this thesis is comparative in nature. It deals with two distinct legal
traditions that are embedded in premodern religious cultures that have similarities and
differences. In order to guide this comparative analysis, this thesis makes use of
methodological insights from the field of comparative law. Lastly, this thesis is acutely
aware of the problematics of legal Orientalism in the study of Islamic law and legal
theory. Hence, a section is dedicated to the pitfalls and challenges of legal Orientalism.
1.2.1. Conceptual History: A Begriffsgeschichte of Rights
This thesis aims to move the field forward by engaging the contemporary debate on
the grounds of fundamental human rights from a conceptual historical and comparative
legal framework. A conceptual historical approach to this study is called for because
of the notoriously inherent conceptual ambiguity of the concept of “rights” and its jural
correlatives (such as privileges, powers, and immunities).20 This is especially the case
20 George W. Rainbolt, The Concept of Rights (Dordrecht: Springer, 2006), xi. The ambiguity of the
concept of rights is most famously – and perhaps most exhaustively – addressed by Wesley N.
Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning and Other Legal Essays,
ed. Walter Wheeler Cook (New Haven: Yale University Press, 1919), 35-64.
8
with the concepts that are germane to this study, such as “natural law”, “natural rights”
and “human rights”. These concepts that are often uncritically and problematically
conflated in scholarship.21
The methods and theoretical framework provided by conceptual history
(Begriffsgechichte), developed by the German historian Reinhart Koselleck (d. 2006)
and others, hand us the necessary tools that will assist us in disentangling the concept
of rights and to simultaneously trace the semantical changes and transformations the
concept has undergone in different historical periods and linguistic contexts.22 Also
utilized here is the conceptual analysis of rights derived from the school of analytical
jurisprudence, particularly the Hohfeldian framework for analyzing rights.23
Conceptual history as Begriffsgechichte – as opposed to say the conceptual methods
of the Cambridge School – arose in Germany in the second part of the twentieth
century as a dedicated field of study. Conceptual history sprang from discussions
surrounding the lexicon project of Geschichtliche Grundbegriffe.24 It is concerned
with the idea that concepts are important to study and should not be taken at face value.
Concepts can attain different meanings over time and undergo semantical changes.
Similarly, different languages and cultural contexts may use different words to express
the same meaning. It also works the other way around; the same word can be used in
different languages and cultures but have very different – sometimes even opposite –
meanings. A case in point is the concept of our English word “civilization”. In German
the word used is Kultur, while in English and Francophone contexts civilization or
civilisation are used. In the German context Kultur – corresponding to its English and
Francophone correlatives – is used to refer to such things as Bildung, high culture, art,
science, and intellectual development. The German Zivilisation, on the other hand, is
21 David Boucher, The Limits of Ethics in International Relations: Natural Law, Natural Rights, and
Human Rights in Transition (New York: Oxford University Press 2009), 3 and 12-13.
22 James J. Sheehan, “Begriffsgeschichte: Theory and Practice”, The Journal of Modern History 50,
no. 2 (1978): 312-319; Reinhart Koselleck, The Practice of Conceptual History: Timing History,
Spacing Concepts (Stanford, California: Stanford University Press, 2002).
23 For an elaboration of the Hohfeldian framework for analyzing rights, see Chapter III.
24 For a good overview of the historical background of conceptual history, see Kai Vogelsang,
“Conceptual History: A Short Introduction”, Oriens Extremus 51 (2012): 9-24.
9
used to refer to cultural decadence and superficiality, a total opposite meaning of
Kultur.25
Conceptual history is concerned with the disambiguation of key concepts
(Leitbegriffe). These concepts play a central role in specific discourses, are
multilayered, and have multiple meanings (vieldeutig).26 The concept of human rights
– certainly in our contemporary age – is such a key concept. It is used in the context
of global modern discourses on human dignity and justice, and despite – or perhaps
because – disputations over its content and application, it is ubiquitous and
widespread. But there is also much confusion over its meaning. Scholars disagree over
the content of the concept of human rights, its conceptual history, its relation to moral
and/or legal dimensions of the law, its similarities and/or dissimilarities regarding
earlier expressions in natural rights and natural law, and so on.
The aim of conceptual history is – among other things – a “critical conceptual history
of the present”.27 That is, instead of taking a concept like rights for granted, it is
interested in dissecting and disambiguating its multiple meanings and layers.
Conceptual history also speaks in this regard about what Koselleck called ‘saddletime’
(Sattelzeit). That is, the time in which key concepts take on their contemporary
meanings. For human rights, arguably, this time is represented with the promulgation
of the United Declaration of Human Rights in 1948, which represents a new phase in
the universalizing language of rights.28 Conceptual history takes into consideration the
longue durée histories of key concepts and looks at how concepts are used in language
and change over time.29 This proves especially necessary in the case of the concept of
rights, which has conceptual incarnations in the medieval and early modern periods.
25 Norbert Elias wrote extensively on this in his The Civilizing Process: Sociogenetic and
Psychogenetic Investigations, trans. Edmund Jephcott, eds. Eric Dunning, Johan Goudsblom, and
Stephen Mennell (Malden, MA and Oxford: Blackwell Publishing, 2000, originally published in
1939), 9-30. On the concept of Bildung, see Koselleck’s essay “On the Anthropological and Semantic
Structure of Bildung” in Koselleck, The Practice of Conceptual History, 170-207.
26 Jan-Werner Müller, “On Conceptual History”, in Rethinking Modern European Intellectual History,
eds. Darrin M. McMohan and Samuel Moyn (New York: Oxford University Press, 2014), 84.
27 Müller, On Conceptual History, 87.
28 On the history and meanings of human rights, see Chapter I.
29 The longue durée approach was introduced by the French Annales School of history, see Fernand
Braudel, “History and the Social Sciences: The Longue Durée”, trans. Immanuel Wallerstein Review
(Fernand Braudel Center) 32, No. 2 (2009): 171-203.
10
Conceptual history is also increasingly used in comparative studies. Moving beyond
national conceptual histories, many scholars now speak of “entangled histories” or
“global conceptual history”.30 The realization here, is that concepts travel
transnationally and are applied in different national, cultural, and religious contexts.
The central concern in comparative conceptual history is to explore how concepts
travel, how they are transmitted and translated, and what happens when concepts
“move between different kinds of modernities and their associated temporalities”.31 In
terms of the not unimportant matter of translation, comparative conceptual history is
tasked with “investigating the prehistory of the translation, comparing meanings of
concepts in different textual contexts, and following the trajectory of the concepts in
its new surroundings, the adaptions, contestations, and possibly rejections and countertranslations”.
32 This concern is pertinent not only to the study of concepts in the
premodern Western legal tradition, in which ius as the Latin word for “rights” had very
different connotations in Stoic Roman law, medieval Catholic natural law, and early
modern Lockean natural rights theories.33 It similarly counts for the classical Islamic
legal tradition and modern Islamic legal culture, which uses modern translations from
international human rights law such as ḥuqūq al-insān and classical juridical terms
such as ḥuqūq al-ādamiyyīn, ḥuqūq al-ʿibād, ḥuqūq al-makhlūqāt, and so forth.34
1.2.2. Comparative Law: Beyond Functionalism
This study is legal-historical but also comparative in nature. Therefore, it makes use
of the methodological insights from comparative law. In doing so, this thesis moves
beyond the hitherto dominant functionalist method in comparative legal studies.
Functionalist scholarship has been highly criticized in recent years for accommodating
Eurocentrism and legal imperialism. It has been taken to task for focusing mainly on
the Anglo-American and Romano-Germanic systems of law, at the expense of non-
30 See for example Margit Pernau, “Whither Conceptual History? From National to Entangled
Histories”, Contributions to the History of Concepts 7, No. 1 (2012): 1-11.
31 Müller, On Conceptual History, 88.
32 Margit Pernau, Whither Conceptual History?, 7.
33 See David Boucher, “Transition from Natural Rights to the Culture of Human Rights”, in
Multiculturalism, Identity and Rights, eds. Bruce Haddock and Peter Sutch (London and New York:
Routledge, 2003), 196-213.
34 See Anver M. Emon, “Ḥuqūq Allāh and Ḥuqūq al-ʿIbād: A Legal Heuristic for a Natural Rights
Regime”, Islamic Law and Society 13, No. 3 (2006): 325-391.
11
Western legal systems.35 To remedy some of these problems, this thesis employs the
more legal-pluralist methodological approaches of conceptual and hermeneutical
comparative law.36 As such, this thesis additionally aims to contribute to the field of
comparative law, by engaging the rich classical sources of the Islamic legal tradition
in a comparative framework.
In comparative legal studies, four general aims are differentiated. These are (1)
comparative law as an instrument for learning and knowledge, (2) comparative law as
a study of legal evolution and categorization of “legal families”, (3) comparative law
as a means for improving domestic law, and (4) comparative law as a method for
harmonization (for example in the case of EU-law).37 The aims most germane to our
study are aims one and two. That is, knowledge about the issue of rights in the Islamic
and Western legal traditions and the comparative study of the development of rights
discourses in both traditions in relation to the modern human rights regime. The issue
of “legal families” is of no interest to this thesis. And in fact, the whole concept of
legal families has been criticized. Ultimately, the aim is “to get a better understanding,
at this deeper level, of the similarities and differences amongst different legal concepts
and regulations”.38
For a long time, the functionalist method – developed by German legal scholars
Konrad Zweigert and Hein Kötz – has been dominant in comparative legal studies.39
The basic assumption of the functionalist method is that all legal systems of the world
basically attempt to solve the same legal problems, even though the specifically used
rules and concepts may be different. The functionalist method is premised upon the
key idea – the praesumptio similitudinis – that these legal systems ultimately solve
legal problems in a similar way. Functionalists in comparative law focus on the
“function” of legal rules and how they practically impact societies. These functions
35 Mark van Hoecke, “Methodology of Comparative Legal Research”, Law and Method (2015): 2 and
9; Nora V. Demleitner, “Combating Legal Ethnocentrism: Comparative Law Sets Boundaries”,
Arizona State Law Journal 31, No. 3 (1999): 739-755.
36 Oliver Brand, “Conceptual Comparisons: Towards a Coherent Methodology of Comparative Legal
Studies”, Brooklyn Journal of International Law 32, No. 2 (2007): 405-466; Oliver Brand, “Language
as a Barrier to Comparative Law”, in Translation Issues in Language and Law, eds. Frances Olsen,
Alexander Lorz, and Dieter Stein (Hampshire and New York: Palgrave Macmillan, 2009), 18-34.
37 Mark Van Hoecke, ‘Methodology of Comparative Legal Research’, Law and Method 12 (2015), 2.
38 Van Hoecke, Methodology of Comparative Legal Research, 16.
39 Konrad Zweigert and Hein Kötz, An Introduction to Comparative Law (New York: Oxford
University Press, 1998, third edition).
12
are the so-called “common denominator” – the tertium comparationis – that is
compared across legal systems.40 It looks at the practical side of the law and how
different societies and legal cultures deal differently with a specific set of legal and
social problems. These might be in the sphere of criminality, social and civil relations,
marriage, inheritance, economic transactions, and so forth. The functionalist approach
attempts to comparatively analyze these disparate legal approaches in search of what
would presumably be the “best” answer to the problem at hand. Hence, functionalism
is sometimes also called the “problem-solution approach”.41
Yet, because of the “evaluating” task functionalism has set for itself, it can be seen as
highly problematic. For this and other reasons, the functionalist method has been
increasingly criticized in recent years. It has been called the bête noir of comparative
law.42 In some of its forms, it has been accused of “social engineering” and being
“overly progressive and activist”.43 Functionalism has also been criticized for its
alleged Eurocentrism. Functionalist comparative legal studies have focused almost
entirely on comparing Euro-American legal systems, at the neglect of non-Western
legal systems.44 Eurocentrism is of course found in other academic disciplines as well.
However, it seems particularly abundant in comparative legal studies.45 It is therefore
that the prominent American jurist Karl Llewellyn (d. 1962) stated “Nowhere more
than in law do you need armor against that type of ethnocentric and chronocentric
snobbery–the smugness of your own tribe and your own time: We are the Greeks, all
others are barbarians”.46
We see this, in fact, in many examples in comparative legal studies. A case in point is
the comparative law classic by legal scholars René David and John E. C. Brierley,
Major Legal Systems in the World Today (1985), which includes a chapter on “Muslim
Law”. In this work Islamic law is presented as static, monolithic, outmoded, passive,
40 Brand, Conceptual Comparisons, 409-410.
41 Zweigert and Kötz, An Introduction to Comparative Law, 43-44.
42 Ralf Michaels, “The Functional Method of Comparative Law’” in The Oxford Handbook of
Comparative Law, eds. Mathias Reimann and Reinhard Zimmermann (New York: Oxford University
Press, 2019, second edition), 346.
43 Michaels, The Functional Method of Comparative Law, 366.
44 Brand, Conceptual Comparisons, 414.
45 We see similar critiques in the study of Islamic law. See the Section 1.2.3. on legal Orientalism.
46 Cited in Demleitner, Combating Legal Ethnocentrism, 742. (Emphasis by the author.)
13
and incapable of adapting to “modern times”. In addition, the West is presented as a
legal model for emulation:
Since its development was arrested in the tenth century, the fikh as a body of
law is manifestly incapable of adapting to modern societies. It does not
anticipate certain institutions seemingly necessary in these societies. While
many of its rules were probably quite adequate in their own time, today they
seem outmoded and sometimes even shocking. The inability of the fikh to adapt
to modern ideas and conditions has thus created a problem, particularly in those
countries with a Muslim majority which have abandoned their passive attitude
and have looked since the last century to western nations as a model, attracted
not only by their material prosperity but by their political ideas and moral
concepts as well.47
An alternative to functionalism would need to go beyond the critiques of Eurocentrism,
by taking into consideration an appreciation for the complexity of Islamic legal
language and legal culture. Because, with the comparison of Western and non-Western
legal systems also comes the problem of translatability. Legal sources might be in
different languages, particularly when we look at premodern legal traditions, such as
Latin for the canon law of the Catholic Church and Arabic for classical Islamic
jurisprudence. Indeed, language can prove to be a major barrier and obstacle for any
meaningful comparative legal study that deals with non-Western legal traditions, be
they Chinese, Russian, Islamic, or otherwise.48 Language thus becomes an important
methodological consideration. Comparative legal scholar Mark Van Hoecke stresses
that a good reading knowledge of the indigenous legal language is essential for
comparing Western and non-Western legal systems and cultures.49 In other words, a
superficial reading based on secondary sources only will simply not do, as too often is
the case in comparative legal studies involving the Islamic legal tradition. The
reductionism of the functionalist simplistic “problem-solution approach”, according to
some scholars, is the reason why language has often been “sidelined” in comparative
legal studies.50
47 René David and John E. C. Brierley, Major Legal Systems in the World Today (London: Stevens &
Sons, 1985, third edition), 465.
48 Oliver Brand, “Language as a Barrier to Comparative Law”, in Translation Issues in Language and
Law, eds. Frances Olsen, Alexander Lorz, and Dieter Stein (Hampshire and New York: Palgrave
Macmillan, 2009), 18.
49 Van Hoecke, Methodology of Comparative Legal Research, 4.
50 Brand, Language as a Barrier to Comparative Law, 31.
14
Given the fact that there is no agreement over methodology in comparative law, the
most often used strategy in choosing a methodology today is to let the aim and question
of the research guide which methods could be best utilized. In doing so, different
methods are often combined that complement each other.51 In our case, the aim of the
research is comparative in nature, and we are guided by the questions on the concept,
justification, and scope of rights. It is also legal-historical, as it compares two
premodern legal traditions, the Islamic and Western legal traditions, as they took shape
before the advent of the modern human rights regime. Two methods seem to serve
particularly well for the purposes of this study, the method of “Conceptual
Comparisons” and the “historical method”.
The method of Conceptual Comparisons operates, other than functionalism, on the
assumption that the conceptual structure employed by legal systems in important for
ordering legal understanding. In addition, it assumes from the outset that “impurities
in the comparative act” can – and very well might – occur. That is, it works on the
understanding that the comparative scholar cannot escape his/her own biases and
preconceived notions of their own legal culture and education. The approach of
Conceptual Comparisons also takes the legal cultures of non-Western legal systems
seriously, by using the domestic classifications and categorizations of the legal system
under study as the point of departure.52 An important part of the method of Conceptual
Comparisons, hence, is the initial step of conceptual orientation, and the subsequent
step of defining and differentiating properties of the legal phenomenon.53 Then follows
a second phase of systematic comparison. This second phase consist of (1) a
descriptive stage, which has various modes of describing the legal phenomena, (2) an
identification stage, which focuses on identifying differences and similarities, and (3)
an explanatory stage, which accounts for the divergences and resemblances. These
legal phenomena are also called comparanda, i.e., those phenomena that are to be
compared. It the case of this study those comparanda are “rights” in the Islamic and
Western legal traditions.54
51 Van Hoecke, Methodology of Comparative Legal Research, 1.
52 Brand, Conceptual Comparisons, 435-436.
53 Brand, Conceptual Comparisons, 439-443.
54 Brand, Conceptual Comparisons, 453-457. Ideally, there would also be a fourth stage, which
focuses on “contextuality”. That is, the study of how the legal phenomena under study function in
15
The historical method in comparative legal studies, on the other hand, focuses on the
origins and intellectual history of legal concepts, legal rules, legal reasoning, legal
epistemology, and so forth. The historical method goes well with the third stage of the
method of Comparative Concepts, as historical analysis has especially strong
explanatory power.55 It can help explain if certain legal phenomena developed in
parallel or if they had a common ancestry, for example. It also looks at the aims and
objectives of the law in each historical legal culture. The historical methods analyze
similarities in past legal systems but might also focus on differences in terms of
evolutions and development in those legal systems.56 Both inquiries are relevant to the
study of rights and how they developed in the premodern Western and Islamic legal
systems.
1.2.3. The Problem of Legal Orientalism
A third theoretical and methodological concern is more germane to Islamic studies
proper, and the study of Islamic jurisprudence in particular, which has found
expression in that field of historical scholarship that has come to be known as legal
Orientalism.57 Legal Orientalism is a scholarly paradigm that tends to study Islamic
jurisprudence through the lens of Western law, imposing its legal conceptions and
language upon Islamic legal culture, without taking into consideration the
particularities of the Islamic legal paradigm. Legal Orientalism is not merely applied
to the study of the Islamic legal tradition. It is, in fact, a broader field that extends to
other non-Western legal traditions as well, such as the Chinese, Hindu, or Buddhist
legal traditions.58
their respective socio-economic, historic, and cultural contexts. This, however, falls beyond the scope
of this thesis.
55 Brand, Conceptual Comparisons, 455.
56 Van Hoecke, Methodology of Comparative Legal Research, 19.
57 See Wael B. Hallaq, Restating Orientalism: A Critique of Modern Knowledge (New York:
Columbia University Press, 2018).
58 See for example, Teemu Ruskola, Legal Orientalism: China, the United States, and Modern Law
(Cambridge, Massachusetts, and London, England: Harvard University Press, 2013); Hilary
McGeachy, “The Invention of Burmese Buddhist Law: A Case Study in Legal Orientalism”,
Australian Journal of Asian Law 4, No. 1 (2002): 30-52; Carol G. S. Tan, “On Law and Orientalism”,
Journal of Comparative Law 7, No. 2 (2013): 5-17.
16
A study on the Islamic legal tradition – in singular or in comparison with other legal
traditions – cannot but take account of the Orientalist legacy in historical Islamic legal
studies. Orientalism is defined as “the process by which the ‟Orient” was, and
continues to be, constructed in European thinking”.59 For Edward Said (d. 2003), it
was of course much more than merely a process of “knowing the East”, so to speak.
And indeed, it was more than that. Said thought of Orientalism as a mode of thinking
that differentiates – at the ontological and epistemological level – between the East
and the West (i.e., the Orient and the Occident).60 For Said, Orientalism – or Orientalist
scholarship rather – was not an individualist endeavor. It was something
institutionalized, part of a larger picture. He argued that by researching the Orient,
writing about it, judging it, evaluating it, educating other people about it, and so forth,
Western scholars actually tried to dominate the Orient. To use this knowledge, so to
say, for political purposes and to assert power over the Orient.61
Said’s work would have tremendous impact on various scholarly domains, such as
Oriental studies, Area Studies, Middle Eastern Studies, Near Eastern Languages and
Civilizations, and so forth. Throughout the 1990s and beyond, an awareness grew in
academia regarding Western modes of approaching the study of the “Orient” and its
implications. However, despite how immensely influential Said’s work on Orientalism
would become in subsequent decades, he spent almost no attention to Orientalism in
legal studies. That is, to the study of the Islamic legal tradition from within the
Orientalist framework. What is more, Said tended to minimalize the role of law in the
academic Orientalism. Himself being a scholar of literature first and foremost, he
seems to have been especially in interested in a particular – and limited – set of literary
works by Orientalist scholars of the eighteenth and nineteenth century. Other than that,
Said merely allotted a “symbolic significance” to the juridical dimension of Islam.62
This seems to have been a clear sense of oversight. The oversimplified, and often
unsound, evaluations of non-western legal systems by European legal historians and
59 Bill Ashcroft, Gareth Griffiths, and Helen Tiffin, Postcolonial Studies: Key Concepts (Abingdon,
Oxon, and New York: Routledge, 2013), 184-185.
60 Edwards Said, Orientalism (London: Penguin Books, 1978), 2.
61 Said, Orientalism, 3 and 12. (Emphasis by the author.)
62 Hallaq, Restating Orientalism, 18. Hallaq mentions that Said only references “law” twice in his
Orientalism. Also, it was not indexed as a noteworthy concept in his study of European Orientalist
scholarship, see page 275 (fn. 34).
17
philosophers pre-date the emergence of legal Orientalism as a professional field of
academic inquiry. Many examples could be cited of instances of premodern or early
modern “legal Orientalism”, even in the context of what some consider to be the
“precursors” to comparative legal studies in the West, such as Montesquieu (d. 1755)
and G. W. F. Hegel (d. 1831). For example, Montesquieu, in his 1748 work De l’esprit
des lois [The Spirit of the Law] – seen by many as a pioneering work in comparative
law – systematically portrays “Eastern” legal systems (such as in Ottoman Turkey or
Safavid Persia) as despotic, brutal, and extravagant.63 The human subjects of this type
of “Oriental despotism” Montesquieu calls “lazy, subject to slavery, and in a state of
violence”. Western legal systems, on the other hand, are portrayed as “active,
industrious, and free”.64 The religion of Islam is to be blamed for the despotic state of
affairs in the “Orient”, according to Montesquieu. Islam “speaks only by the sword”.
Also, it “deprives people of their will” and “induces laziness”.65
G. W. F. Hegel, in his attempt at comparative law, divides the legal systems of the
world into an Oriental, Greek, Roman and Germanic Realm. He argues that the legal
systems of the Oriental Realm, which he lumps together as one ‘inwardly undivided’
and static monolith, are undergirded by a Weltanschauung that is based upon
patriarchy and theocracy in which the ruler is “a high priest or a god”, and in which
religion and religious commandments are equated with the constitution and legislation
of the state.66 Oriental legal and political systems are, in his analysis, based on
despotism, lawlessness, superstition and what he calls the “accidents” (Zufälligkeiten)
of personal power and arbitrary rule.67 In such legal cultures, Hegel poses, “the
individual personality has no rights and disappears altogether”.68 Hegel’s comparison
of the world’s legal systems – which is informed by his philosophy of world history –
is deeply teleological.69 For him an imperfect principle of personal individuality first
arises in the Greek Realm, which subsequently develops into a more evolved idea of
63 Michael Curtis, Orientalism and Islam: European Thinkers on Oriental Despotism in the Middle
East and India (New York: Cambridge University Press, 2009), 80.
64 Curtis, Orientalism and Islam, 84.
65 Curtis, Orientalism and Islam, 87.
66 G. W. F. Hegel, Elements of the Philosophy of Right, ed. Allen W. Wood, trans. H. B. Nisbet
(Cambridge: Cambridge University Press, 2008, originally published in 1820), 377.
67 Hegel, Elements of the Philosophy of Right, 378.
68 Hegel, Elements of the Philosophy of Right, 377. (Emphasis mine.)
69 For Hegel’s philosophy of world history see his Lectures on the Philosophy of World History
(originally published in 1837 as Vorlesungen über die Philosophie der Weltgeschichte), which was
published posthumously and based on his lecture notes on the topic.
18
private persons that are equal and enjoy formal rights in the Roman Realm.70 The
climax in this tripartite development Hegel reserves for the Germanic Realm, which
represents a secular realm that is based on the “companionship of free individuals” and
in which the “rationality of rights and law” reigns supreme.71
From these examples it may thus be clear that legal Orientalism was widespread, both
in premodern and contemporary scholarship on the Islamic legal tradition. It is
therefore that Islamic legal historian Wael B. Hallaq, in his recent work Restating
Orientalism, made great efforts to move beyond – and build upon – Said’s 1978 classic
critique of Orientalism, as broadly understood. Norman Calder, another prominent
Islamic legal historian, similarly stated that Western scholarship on Islamic law was
almost never objective. Nor was it really reflective of Islamic legal culture and the
values and norms it expressed in its own historical and social context. More often, he
argued, Orientalist scholarship was imbued by their own values and norms.72 In other
words, Western scholarship on Islamic law often was a reflection of the researcher,
rather than the researched.
Admittedly, one must note the diversity of methods in contemporary Oriental studies,
as well as a certain diversity in subsequent scholarly output. Orientalism, as a
paradigm, however “has shaped and constrained not only the questions that legal
Orientalists ask but also the answers that they give”.73 Hallaq, in this regard, speaks of
the issues of topical selection and problem-identification which impacts “the scholarly
question-framing-and-answer-giving”.74 Orientalist scholars of the Islamic legal
tradition, when looking for the “law” in Islamic law, look to identify those aspects of
the tradition that fit explicitly Western legal conceptions. This process of topical
selection “forced the Islamic ‟legal” tradition into a particular mold, isolating Qurʿānic
70 Hegel, Elements of the Philosophy of Right, 378-379.
71 Hegel, Elements of the Philosophy of Right, 379-380. It should be noted here that for Hegel the socalled
‘Germanic Realm’ encompassed much more than the modern nation of Germany itself, as it
includes England, Scandinavia, France, Italy, Spain, Portugal and several Eastern European nations.
Hence, his Germanic Realm might be more properly equated with the Western Realm. See Hegel,
Elements of the Philosophy of Right, fn. 2 of § 358, 479.
72 Norman Calder, “Law”, in History of Islamic Philosophy, eds. Seyyed Hossein Nasr and Oliver
Leaman (Abingdon, Oxon and New York: Routledge, 2001), 979.
73 Wael B. Hallaq, “On Orientalism, Self-Consciousness and History”, Islamic Law and Society 18
(2011): 390.
74 Hallaq, On Orientalism, Self-Consciousness and History, 390.
19
morality from ‟law””.75 One of the consequences of this approach was the artificial
separation between “law” and “morality”, while in the Sharīʿa tradition, morality and
law sometimes conflate. Instead, there is an absence of treating the Islamic sacred
scripture, the Qurʿān, as it functioned in Islamic legal culture, namely as a “moral
blueprint” and a “substrate” on which the law rests and from which law is derived.76
Legal Orientalism significantly distorts the nature of the Sharīʿa by reducing it to a
construction of “Islamic law” that is embedded in the Western Weltanschauung.
Legal Orientalism’s construction of “Islamic law”, Hallaq rightly points out, is mostly
not an intentional project, but a product of our own cultural biases. He writes:
Legal Orientalism’s paradigm does not always consciously intend or not intend
to include or exclude. It just ontologically functions in this manner, more often
unconsciously, because it is thus constituted by its own programmatic cultural
presuppositions (in this case about the separation between “law” and
“morality”) as well as by the imperatives of the thought-structure that sustains
it.77
The scholarly critiques of legal Orientalism teach us to take into consideration the
alterity and particularity of Islamic legal culture as consisting of its own legal
epistemology, legal anthropology, legal norms, legal language and legal reasoning.
Those who are interested in comparative law, comparative legal history and human
rights studies research would do well to absorb these critiques in order not to fall into
the trap of simplistic reductionism or faulty comparison.
1.3. The Structure of This Thesis
This thesis consists of six chapters. The first two chapters are literature reviews on two
debates that are germane to the concerns of this research: the question of justificatory
grounds and the debate on Islam and human rights. In Chapter I, we explore the
literature surrounding the debate on the philosophical grounds of modern human
75 Hallaq, On Orientalism, Self-Consciousness and History, 415.
76 Hallaq, On Orientalism, Self-Consciousness and History, 416.
77 Hallaq, On Orientalism, Self-Consciousness and History, ibid. (Emphasis by the author.) Also see
his “Groundwork of the Moral Law: A New Look at the Qurʿān and the Genesis of the Sharīʿa”,
Islamic Law and Society 16 (2009): 239.
20
rights. This chapter first deals with the rise of modern human rights after World War
II and proclamation of the Universal Declaration of Human Rights (UDHR) in 1948.
It then deals with the subsequent global emergence of the modern human rights regime
as the new “moral lingua franca” of the contemporary age, and its gradual acceptance
throughout the second half of the twentieth century, with the promulgation of the
International Bill of Human rights in the 1970s, the rise of human rights activism, and
the legalization of human rights in domestic legal systems, regional human rights
instruments, and international law. The chapter then surveys the so-called “crisis of
human rights literature”, which deals with two major challenges to the modern human
rights regime: claims to universality in the face of religious and cultural diversity and
the “ungroundedness” of secularized modern human rights. These challenges have
instigated debates about multiple groundings of human rights – both from a religious
and secular perspective – which opens new venues of inquiry on the justificatory
grounds of rights. Chapter II engages the “Islam and human rights debate” and offers
a taxonomy of perspectives based on a survey of the literature. These are: (1) the
Conflictual Perspective, (2) the Apologetic Perspective, and (3) the Discursive
Perspective, respectively. The chapter situates this study in the third perspective and
offers new inroads into Islamic human rights studies.
The following two chapters, Chapter III and Chapter IV, are conceptual histories of
rights discourses in the Islamic and Western legal traditions. Chapter III first offers
perspectives from modern legal studies and analytical jurisprudence on the concept of
rights. It deals with the inherent – and frequently debated – conceptual ambiguity of
the term. The Hohfeldian framework for analyzing rights and its jural relations
(privileges, powers, and immunities) is discussed. We end this section of Chapter III
regarding modern legal studies with an exploration of the question of enforceability
and the moral and legal dimensions of rights. The remainder of the chapter is a
conceptual history of Western rights discourses (ius, pl. iura), starting from the
rediscovery of the Greco-Roman legal heritage in twelfth-century Europe, the tensions
between Germanic Volksrecht and Roman law (“leges barborum” and “leges
Romanae”), the unification of the European legal system in the twelfth century, the
emergence of the medieval natural law tradition through Aquinas and the canon law
jurists, and the early modern natural rights theorists, such as Grotius and Locke. It
traces the gradual transition of rights language from natural law (lex naturalis) to
21
natural rights (ius naturale). This chapter ends with the period of the Enlightenment
and the “age of rights declarations” before the emergence of modern human rights.
Chapter IV is a conceptual history of rights in the Islamic legal tradition. It first deals
with the problem of translatability, Islamic legal language, and the so-called “prison
of language”. It also explores a practical case of legal Orientalism in Kevin Reinhart’s
application of the Hart-Dworkin framework to “evaluate” Islamic law. The first
section of Chapter IV ends with an exploration of the language of the Islamic jurists
(fuqahāʾ) and the linguistic (lughawī) and technical (iṣṭilāḥī) terminology of sharīʿa
and fiqh. The rest of the chapter is a conceptual history of Islamic rights discourses
(ḥaqq, pl. ḥuqūq) as expressed in medieval and early modern Islamic juridical
literature. It subsequently deals with early Islamic law and the heritage of late
antiquity, the formation of the classical schools of law, and the concepts of moral
responsibility (taklīf), legal personality (dhimma), legal capacity (ahliyya), and the
private-public rights hermeneutic (ḥuqūq Allāh wa ḥuqūq al-ʿibād). This chapter ends
with the advent of modernity and the age of legal reforms.
The final two chapters are explorations of fundamental rights in the Islamic and
Western legal traditions. The exploration and comparison are limited to the rights to
life, freedom, and property. Every study needs a scope and both traditions have
multiple rights schemes that are considered as basic to human dignity and societal
flourishing. In addition, not all fundamental rights have equivalents in each tradition
(for example, the Western legal tradition knows no right to the protection of honor, as
does the Islamic legal tradition). Both John Locke and Abū Zayd al-Dābūsī take these
three rights as fundamental, which make these comparanda suitable for conceptual
comparison. These three rights are certainly not the only fundamental rights, but they
suffice for a comparison between both legal traditions in terms of the content,
justification, and scope of rights.
Chapter V first explores the concept of fundamental rights as a basic area of human
concern. In doing so, it builds on the enumeration of “basic goods” for human and
societal flourishing in Thomas Aquinas and John Finnis. It then deals with the issue of
“rights triage”, which is the question of prioritizing certain rights over others. What
follows is an exploration of the content, justification, and scope of the rights to life,
22
liberty, and property in the early modern natural rights tradition, building mainly on
the theories of Hugo Grotius, Thomas Hobbes, Samuel von Pufendorf, and John
Locke. The chapter ends with an evaluation of the scope of rights regarding women,
slaves, minorities, and indigenous peoples.
The final chapter of this thesis, Chapter VI, explores conceptions of fundamental rights
in the Islamic legal tradition. It does so by first exploring a similar framework for
fundamental rights as a basic area of concern for human and societal flourishing,
building upon the framework of the “objectives of the law” (maqāṣid al-sharīʿa). It
then elaborates on two main classical theories of rights in the Islamic legal tradition,
the theory of public benefit (maṣlaḥa), as espoused by scholars such as Abū Ḥāmid al-
Ghazālī and Abū Ishāq al-Shāṭibī and the theory of human dignity (karāma), as
elaborated mostly by the jurists of the Ḥanafī school of law, such as Abū Zayd al-
Dabūsī and Abū Bakr al-Sarakhsī. The chapter then explores the rights of the
protection of life, freedom, and property in Islamic jurisprudence from the perspective
of the four major Sunnī schools of law. This chapter similarly ends with considerations
regarding the scope of rights in relation to women, slaves, and minorities.
The conclusion of the thesis has four parts. It first briefly summarizes the main findings
of the study. Then it engages in a comparison between the conceptual histories of rights
in the Islamic and Western legal traditions. After that it compares the justificatory
grounds and scope of rights in both traditions. Finally, we end this section with some
conclusory remarks and suggestions for further research.
23
CHAPTER I
THE CRISIS OF MODERN HUMAN RIGHTS: FROM
UBIQUITY TO CONTESTATION
“At the end of the twentieth century there is not a single nation, culture, or people
that is not in one way or another enmeshed in human rights regimes.”
Johannes Morsink78
“Yes, we agree about the rights, but on condition that no one asks us why.”
Jacques Maritain79
This chapter offers a succinct overview of the triumphant emergence, subsequent
spread, and current ubiquity of the modern human rights regime after World War II,
and its increasing embeddedness in national legal systems and the international legal
and political order (Section 1.1.). It then problematizes the global rise of modern
human rights through the exploration of two major challenges to the modern human
rights regime; the so-called “crisis of modern human rights”.80 These are (1) the
problem of claims to universality in the face of cultural and religious diversity and (2)
the philosophical problem of the “ungroundedness” of secularized modern human
rights and the varying debates surrounding justificatory grounds (addressed in Sections
1.2.1. and 1.2.2. respectively). The debate on the philosophical grounds of modern
human rights has given an impetus to new research over the past decade, which can be
categorized into three main currents of scholarship.81 An overview of these scholarly
currents is given in Section 1.3. The final section (Section 1.4.) summarizes the
findings and address how they are germane to the core concerns of this thesis.
78 Johannes Morsink, The Universal Declaration of Human Rights: Origins, Drafting and Intent
(Philadelphia: University of Pennsylvania Press, 1999), x.
79 Jacques Maritain, Human Rights: Comments and Interpretations (New York: Columbia University
Press, 1949), 1.
80 Anthony J. Langlois, “Human Rights in Crisis? A Critical Polemic Against Polemical Critics”,
Journal of Human Rights 11, No. 4 (2012): 558-570.
81 A commitment to human rights requires a moral vision of the world and the regulation of human
conduct and interpersonal relations. The objective of a philosophy of human rights is to offer
“rationally coherent arguments in support of a commitment to human rights”. See Andres Fagan,
“Philosophical Foundations of Human Rights”, in Handbook of Human Rights, ed. Thomas Cushman
(Abingdon, Oxon: Routledge, 2012), 19-20.
24
1.1. The Global Rise of the Modern Human Rights Regime
We live in a global age of rights, in which “rights talk” is the dominant international
ethical language. It is – so to speak – the moral lingua franca of our contemporary
era.82 The late historian Bruce Mazlish (d. 2016), in his wonderfully written book The
Idea of Humanity in a Global Era, speaks of the rise of a “new awareness of common
humanity” in the twentieth century.83 Obviously, there had been earlier iterations of
common humanity. Many of these – at least in the Euro-American West – found their
intellectual roots in Enlightenment thinking, with its appeal to common human reason
and dignity.84 They found their expression in various eighteenth-century rights
declarations, such as the English Bill of Rights (1689), the American Declaration of
Independence (1776) and the French Declaration of the Rights of Man and of the
Citizen (1789). However, the “natural rights” espoused in these declarations – and with
it, their conception of a “common humanity” – was deeply antithetical to the social
realities of slave-ownership and the slave-based economies of the Euro-American
West.85
What differentiates the modern twentieth-century era of rights from its earlier
iterations, according to Mazlish, is Humanity with a capital “H”. The “rights of men”
of the eighteenth-century rights declarations – humanity with a small “h” – had not
included slaves, women, indigenous peoples, and the like. Humanity with an “H”
encompassed – at least in theory – the whole of the human race; men and women,
freemen and slaves, Western and non-Western peoples alike. The new conception of
Humanity was also more cosmopolitan in nature, in the sense that its scope was not
limited to a certain nation (England, America, France). Humanity with an “H” was,
Mazlish argues, “a newly conceptualized form of social integration, going beyond that
82 Johannes Morsink, Inherent Human Rights: Philosophical Roots of the Universal Declaration
(Philadelphia: University of Pennsylvania Press, 2009), 1. Also see David Boucher, The Limits of
Ethics in International Relations: Natural Law, Natural Rights, and Human Rights in Transition
(New York: Oxford University Press, 2009), 11. Boucher calls human rights the “lingua franca of the
international order”.
83 Bruce Mazlish, The Idea of Humanity in a Global Era (New York: Palgrave Macmillan, 2009), 20.
84 The idea of human dignity was especially pronounced in the work of the Enlightenment philosopher
Immanuel Kant (d. 1804). See Oliver Sensen, Kant on Human Dignity (Berlin and Boston: De
Gruyter, 2011).
85 Ritchie Robertson, The Enlightenment: The Pursuit of Happiness (New York: HarperCollins
Publishers, 2020), 764.
25
of other bonds in the shape of tribal, regional, or national loyalties”.86 It was this new
sense of “common humanity” in the twentieth century, which developed in tandem
with the emergence of the new human rights discourse after World War II. With it
came also new moral and legal conceptions of human dignity and rights, and a new –
more inclusive – sense of who is included in the concept of “Humanity”.87 These new
moral and legal conceptions came to be framed in the language of human rights and
used to mediate individual moral claims to juridical recognition.88
Political theorist Johannes Morsink, the foremost scholar working on the UDHR –
arguably the most paradigmatic human rights document in the twentieth century –
mentions that in our contemporary times, there is hardly any country that is not in some
way or another embedded in human rights, be it in their national legal system or
constitution or in relation to international agreements.89 However, this was certainly
not always the case. It was a gradual process of increasing acceptance and
incorporation. The adoption of the earlier mentioned eighteenth-century rights
declarations did seem to have had a role in preparing the way – so to speak – for a
broader acceptance of the idea of human rights, albeit more at the local level.90 At the
same time, up until the 1940s human rights proponents were still fighting for
legitimacy. It was World War II, and in its wake the Nazi atrocities, that would form
the impetus to reach a new consensus about universal human rights.91 It was only with
the promulgation of the UDHR by the United Nations in 1948 that the human rights
discourse truly became internationalized.92
In the second half of the twentieth century, human rights would increasingly become
integrated into the international legal order. Human rights principles became codified
86 Mazlish, The Idea of Humanity in a Global Era, 3.
87 Mazlish, The Idea of Humanity in a Global Era, 20.
88 Jean Porter, “From Natural Law to Human Rights: Or, Why Rights Talk Matters”, Journal of Law
and Religion 14, No. 1 (1999-2000): 95. For a critical stance towards the modern rights discourse in
the political domain, see Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse
(New York: The Free Press, 1991).
89 Morsink, The Universal Declaration of Human Rights, x.
90 Mashood A. Baderin and Manisuli Ssenyonjo, “Development of International Human Rights Law
Before and After the UDHR”, in International Human Rights Law: Six Decades after the UDHR and
Beyond, ed. Mashood A. Baderin and Manisuli Ssenyonjo (Farnham, Surrey and Burlington, VT:
Ashgate, 2010), 3.
91 Morsink, The Universal Declaration of Human Rights, 36-91.
92 Baderin and Ssenyonjo, Development of International Human Rights Law Before and After the
UDHR, 3.
26
and embedded in domestic legal systems, international law, regional human rights
systems, and subsequent human rights instruments, charters, and conventions.93
International human rights law has been one of the fastest growing areas of
international law of the past century.94 While the UDHR itself had not been legally
binding, in the 1970s and 1980s several legally binding covenants would be adopted
and enforced under the auspices of the United Nations international human rights
treaty, such as the International Covenant on Civil and Political Rights (ICCPR) and
the International Covenant on Economic, Social and Cultural Rights (ICESCR) in
1976. Together with the UDHR, these would become known as the ‘International Bill
of Rights’.95 Based on a survey on the influence of the UDHR in the early 1990s,
international law scholar Hurst Hannum observed that in the post-World War II period
as many as fifty international human rights instruments make explicit or implicit
reference to the UDHR and at least twenty-six nations directly refer to the UDHR in
their constitutions.96 In fact, every single state in the world has ratified at the minimum
one international human rights treatise.97
Human rights activism also seems to have played a major role in the gradual
acceptance and growing ubiquity of human rights as an international moral standard.
Human rights advocacy groups have worked towards a greater credibility of human
rights from early on. Sometimes in the background, and increasingly more often
visible and vocal. Already during the interbellum transnational human rights groups
developed that started to advocate for a “global bill of human rights”, such as the
Fédération Internationale des Droit de l’Homme (1922) and the Académie
Diplomatique Internationale (1926), both in France.98 Human rights organizations,
such as Human Rights Watch and Amnesty International, played a major role in the
global spread and institutionalization of the modern international human rights regime
93 Hurst Hannum, “The Status of the Universal Declaration of Human Rights in National and
International Law”, Georgia Journal of International and Comparative Law 25, No. 1-2 (1995): 289.
94 Thomas Buergenthal, “The Evolving International Human Rights System”, The American Journal
of International Law 100, No. 4 (2006): 783.
95 Baderin and Ssenyonjo, Development of International Human Rights Law Before and After the
UDHR, 8-12.
96 Cited in Morsink, The Universal Declaration of Human Rights, xi.
97 Baderin and Ssenyonjo (2010), Six Decades After the UDHR and Beyond, 11.
98 Michael Freeman, Human Rights (Cambridge and Malden, MA: Polity Press, 2017), 38.
27
after the collapse of the Soviet Union and the end of the Cold War in 1991.99 As stated
in their respective statutes, both organizations strive for the acceptance and
implementation of human rights on a global scale. Amnesty International, for example,
describes itself deliberately as a “global community of human rights defenders” with
the ultimate vision of “a world in which every person enjoys all of the human rights
enshrined in the Universal Declaration of Human Rights and other international human
rights instruments”.100 Human Rights Watch’s long-time executive director Kenneth
Roth similarly stated that, from its inception, the human rights group’s intention was
always to “go global”, supported by sufficient time and funds to enable it to do so.101
Contemporarily, the human rights discourse is still very much at the forefront of public
debates on human dignity and societal flourishing. Human Rights Watch’s recent 2022
annual report on the current state of affairs of human rights in over hundred countries
– arguably one of the largest annual surveys of global human rights conditions – shows
how the deployment of human rights language plays a major role in addressing
violations of human dignity and atrocities against humanity worldwide.102
Despite its seeming global success after World War II, the modern human rights
regime has been under pressure at the beginning of the twenty-first century. It has
caused some scholars to speak in terms of “the end of human rights” and “rescuing
human rights”.103 The predicaments of modern human rights has given rise to what
some have called the “crisis literature” of human rights.104 Human rights are critiqued,
for example, for having been used to the political advantage of geo-political powers,
99 Peter Slezkine, “From Helsinki to Human Rights Watch: How an American Cold War Monitoring
Group Became an International Human Rights Institution”, Humanity: An International Journal of
Human Rights, Humanitarianism, and Development 5, No. 3 (2014): 365.
100 https://www.amnesty.org/en/wp-content/uploads/2021/05/POL2010452019ENGLISH.pdf
(accessed February 24, 2022). Also see, Tom Buchanan, “The Truth Will Set You Free: The Making
of Amnesty International”, Journal of Contemporary History 37, No. 4 (2002): 575-597.
101 Slezkine, From Helsinki to Human Rights Watch, 345.
102 Human Rights Watch. World Report 2022: Events of 2021 (New York: Seven Stories Press, 2022).
103 See for example, Costas Douzinas, The End of Human Rights Critical Legal Thought at the Turn of
the Century (Oxford: Hart Publishing, 2000); Hurst Hannum, Rescuing Human Rights: A Radically
Moderate Approach (Cambridge: Cambridge University Press, 2019); Asım Cüneyd Köksal, “İnsan
Haklarının Felsefi Krizi: İslâmî Bir Perspektif”, Marmara Üniversitesi İlahiyat Fakültesi Dergisi 58,
no. 58 (2020): 25-67.
104 Anthony J. Langlois, “Human Rights in Crisis? A Critical Polemic Against Polemical Critics”,
Journal of Human Rights 11, No. 4 (2012): 559. See for example, C. A. Gearty, Can Human Rights
Survive? (Cambridge: Cambridge University Press, 2006); Geneviève Souillac, Human Rights in
Crisis: The Sacred and the Secular in Contemporary French Thought (Lanham: Lexington Books,
2005).
28
under the guise of military or humanitarian “interventions”.105 Historian Michael
Ignatieff has critiqued modern human rights along similar lines, targeting especially
overzealous human rights activism.106 Marco Duranti pointed to the misuse of the
modern human rights discourse as a vehicle for European Christian conservatism.107
Other authors point to the failures of modern human rights litigation in supra-national
courts, such as the European Court of Human Rights, which systematically get rejected
or pushed back into the sphere of national courts.108 The recent critical contributions
of the so-called “crisis literature” has in the recent decade pointed to the fact that the
modern human rights movement is “replete with paradoxes” and “use and abuse”.109
Some of these will be explicated in the sections below.
1.2. Two Challenges to Modern Human Rights
When surveying the scholarship on modern human rights, one encounters two major
problems that challenge human rights on different levels. The first challenge is the
problem of cultural and religious diversity in the face of claims that human rights are
universal and hence should be accepted and implemented in all nations of the world,
regardless of their specific historical, cultural, and religious contexts. The second
challenge is related to the first problem, but much more fundamental to the ontological
existence of human rights. This is the problem of justification: the reality that modern
human rights are philosophically grounded in different ways. Or as some scholars have
argued, the absence of any philosophical grounds at all: also called the
“ungroundedness” of modern human rights. Both problems are a major conundrum for
the modern human rights regime and have recently instigated new scholarship and
fresh perspectives on the role of human rights in our era.
105 Langlois, 559.
106 Michael Ignatieff, Human Rights as Politics and Idolatry (Princeton and Oxford: Princeton
University Press, 2001).
107 Marco Duranti, The Conservative Human Rights Revolution: European Identity, Transnational
Politics, and the Origins of the European Convention (New York: Oxford University Press, 2017). In
the regard also see, Samuel Moyn, Christian Human Rights (Philadelphia, Pennsylvania: University
of Pennsylvania Press, 2015).
108 June Edmunds, Human Rights, Islam and the Failure of Cosmopolitanism (London and New York:
Routledge, 2017), 47.
109 Langlois, 560 and 564.
29
1.2.1. The Problem of Diversity
The UDHR, a founding document for the modern human rights regime, represents a
universalist human rights outlook. In its Preamble it states that the UDHR is a
“common standard of achievement for all peoples and all nations”. From this we can
clearly grasp the universalizing nature of post-World War II rights language. The
Preamble also alludes to the promotion and spread of these principles throughout the
world. Hence, not only does the UDHR use this universalizing language, but it also
has an almost evangelizing hue to it, in which the clear objective is the furthering of
the rights principles stated in its various articles throughout the nations of the world.110
Yet, despite its claims to universality, the UDHR has been criticized over time as being
overly Eurocentric in nature. Already before its promulgation in 1948 the American
Anthropological Association (AAA) issued its critical statement regarding the UDHR
and the principles espoused in it in 1947.111 In it, the AAA expressed its concern over
the universalism adopted by the new human rights approach of the late 1940s – vis-àvis
earlier rights declarations, that were rather limited to citizens of certain nationstates
– at the expense of cultural particularities. The main challenge to the drafters of
the UDHR, the AAA contended, was to draw up a declaration that was at once
universal in its language, as well as not a statement of rights that merely reflected the
values and norms of the Western worldview, or at least that predominated in societies
in the West.112 The rights that are meant for all human beings in our era cannot, and
should not, be a reflection of just one culture of the world population, the AAA
asserted.113 In its rather damning criticism, the AAA referred in its Statement to
Western colonialist and imperialist tendencies to suppress alternative cultural values
in places were Western powers held domination over non-Western peoples and in a
sense asserted their values over them for economic gains. The drafters of the UDHR
should not, the AAA meant to say, fall into a mode of thinking that was reminiscent
of the mission civilizatrice, when non-Western peoples were invariably seen as
110 United Declaration of Human Rights (https://www.un.org/en/about-us/universal-declaration-ofhuman-
rights, accessed December 8, 2022). (Emphasis mine.)
111 Executive Board, American Anthropological Association, “Statement on Human Rights”,
American Anthropologist 49, No. 4 (1947): 539-543.
112 AAA, Statement of Human Rights, 539.
113 AAA, Statement of Human Rights, 543.
30
“inferior”, “backward”, or “primitive” as a justification for imperial conquest.114
Instead, the Statement proposed, the drafting of a new twentieth-century “rights of
man” declaration should (1) give due consideration to respect for cultural differences,
(2) acknowledge that there are no objective standards for evaluating different cultures,
and (3) explicate that the formulation of “standards and values” and “moral codes” are
products of specific cultural modes and, in that sense, detract from any claim to
universal applicability.115 The underlying cultural relativism of the AAA Statement
should be obvious to anyone reading it, which has been duly critiqued.116 The AAA
has, in fact, slowly but steadily moved towards embracing human rights advocacy in
the second half of the twentieth century, especially since the 1990s.117 This example
shows, however, how the new post-World War II human rights claims to universality
were contested from the outset.118
Despite the UDHR’s claim to universality, many prolific rights theorists and historians
in the West have argued that the modern idea of human rights ultimately stems from a
genealogy that is historically grounded in the Western Weltanschauung. That is to say,
the Western intellectual tradition is imagined by these scholars to being uniquely
equipped (destined even) – both philosophically and morally – to have functioned as
the birthing ground of our modern conceptions about human rights. Several ‘histories
of human rights’ have been put forward, that trace back the idea of human rights to the
Greco-Roman world of Late Antiquity, particularly in Stoic thought, others have
grounded it in the works of medieval Christian natural law and early modern natural
rights theorists, such as Thomas Aquinas (d. 1274), Hugo Grotius (d. 1645), Thomas
Hobbes (d. 1679), Samuel von Pufendorf (d. 1694), and John Locke (d. 1704).119
114 AAA, Statement of Human Rights, 540.
115 AAA, Statement of Human Rights, 541-542.
116 I do not further address the problematics of the cultural relativism of the anthropology of the early
twentieth century, as this has, with various degrees of success, been done elsewhere. See for example,
Wilcomb E. Washburn, “Cultural Relativism, Human Rights, and the AAA”, American
Anthropologist 89, No. 4 (1987): 939-943.
117 See Karen Engle, “From Skepticism to Embrace: Human Rights and the American
Anthropological Association from 1947-1999”, Human Rights Quarterly 23, No. 3 (2001): 536-559.
118 The Statement’s harsh tone must also be read, as rightfully noted by Engle, in the historical context
in which it was written. This was in a time when colonialism was still rampant and colonized peoples
were by-and-large believed to be biologically and culturally inferior. At that, the AAA statement
could be read as an expression of anticolonialism and antiracism. See Engle, From Skepticism to
Embrace, 539.
119 See, for example, C. Fred Alford, Narrative, Nature, and the Natural Law: From Aquinas to
International Human Rights (Palgrave Macmillan 2010); John Finnis, “Grounding Human Rights in
Natural Law”, The American Journal of Jurisprudence 60, No. 2 (2015): 199-225; David Boucher,
31
Others yet have proposed a strictly modern post-World War II, or even post-Cold War,
origin of the idea of human rights.120 Invariably, all these histories have in common
that the genealogy of human rights is based in a decisively Western – and thus not
universal – historical experience.121
The prominent legal historian and medievalist Brian Tierney (d. 2019) might serve as
a good example of expressing the concept of human rights as singularly and uniquely
Western. Tierney mentions that the very concept of rights that inhere in the human
being, that is, rights that all humans have simply because they are humans, is a Western
invention. The thought that these kinds of rights should be cherished and safeguarded
is something, according to Tierney, that could only follow from cultural patterns that
have a Western genealogy. More than that, Tierney argued that rights conceived as
such – that is, as an explicitly Western notion of human rights – should be incorporated
into the other cultures of the world. Especially into traditional religious cultures that
are culturally other than – and perhaps even antithetical to – the West.122 Here we can
observe a similar universalizing and evangelizing tendency.
Others similarly claim universal human rights as a solely Western phenomenon.
Samuel P. Huntington, for example, stresses the uniqueness of Western civilization as
embodying the values of Christianity, pluralism, individualism and the rule of law,
ideas that are expressed and embedded in its legal and social institutions.123 Citing the
American historian Arthur M. Schlesinger Jr., Huntington claims the West as the
ultimate wellspring of human rights values, such as democracy, individualism, liberty,
and so for. These political and cultural concepts are Western in nature, or have a
Western cultural origin, he argued. They can never spring forth from non-Western
“The transition from natural rights to the culture of human rights”, in Multiculturalism, Identity and
Rights, eds. Bruce Haddock and Peter Sutch (London and New York: Routledge, 2003), 196-213.
120 See Samuel Moyn, The Last Utopia: Human Rights in History (Cambridge, Massachusetts and
London, England: Harvard University Press, 2010).
121 A more extensive overview of the conceptual history of rights in the Western legal tradition is
given in Chapter III of this thesis. These examples merely function as an illustration of the
particularism of modern ‘universal’ human rights histories.
122 Brian Tierney, “Dominion of Self and Natural Rights Before Locke and After”, in Transformations
in Medieval and Early-Modern Rights Discourse, eds. Vipri Mäkinen and Petter Korkman (Dordrecht:
Springer, 2006), 173. (Emphasis mine.)
123 Samuel P. Huntington, The Clash of Civilizations and the Remaking of the World Order (New
York: Simon & Schuster, 1996).
32
culture. And if we do find them, they must somehow have been embraced due to the
West.124
Jack Donnelly and others already pointed out that some cultures attempt to monopolize
the human rights discourse, as one can arguably see in the cases of Tierney and
Huntington, by claiming the sole origin of human rights and the unique site for their
promotion and protection.125 This narrative of human rights history seems a-historical
and exclusivist. In addition, the idea that the Western world is somehow responsible
for the “assimilation” of Western rights concepts in the ‘traditional religious cultures
of non-western societies’ – as mentioned by Tierney – is reminiscent of the old mission
civilizatrice, mentioned earlier, which is aimed at universalizing a single culture at the
expense of others.126 As the Turkish sociologist and human rights scholar Recep
Şentürk aptly mentioned:
All universal cultures in the world make some provision for universal human
rights (albeit in their own terms), and the emanating discourses and paradigms
are incommensurable. It would be contrary to universalism to claim that only
our culture provides for the guarantee of universal human rights, and that all
remaining world cultures cannot. Claiming monopoly on human rights
discourse is but another form of subduing the rest of humanity to our cultural
superiority with the very claim that we are equals – which our culture, but not
theirs, establishes. That is just another subtle way of saying we are still not
equals.127
While some degree of present-mindedness undergirds all historical inquiry, it becomes
problematic when it distorts that history. In what might be seen as one of the most
prominent recent histories of human rights, Lynn Hunt argues that modern human
rights stem from the Enlightenment and the democratic age of revolutions.128 Hunt’s
124 Huntington, The Clash of Civilizations, 311. (Emphasis by the author.)
125 Jack Donnelly, Universal Human Rights in Theory and Practice (New York: Cornell University
Press, 2013) 75- 92.
126 For the ideological implications of the colonialist European civilizing mission, see Bruce Mazlish,
Civilization and its Contents (Stanford, California: Stanford University Press, 2004), 20-48. For an
analysis of some of the problematics of the civilizational discourse utilized by Huntington and others,
see my article “Approaching the Study of Civilization: Norbert Elias’s View”, International Journal
of the Asian Philosophical Association 12, No. 2 (2019): 179-194.
127 Recep Şentürk, “Sociology of Rights: Inviolability of the Other in Islam between Universalism and
Communalism”, in Contemporary Islam: Dynamic, Not Static, eds. Abdul Aziz Said, Mohammed
Abu-Nimer and Meena Sharify-Funk (New York: Routledge, 2006), 29.
128 Lynn Hunt, Inventing Human Rights: A History (New York: W.W. Norton & Company, 2007).
33
account places human rights firmly in the modern West, first proclaimed by
eighteenth-century American and French revolutionaries, and ultimately leading to the
Universal Declaration of Human Rights in 1948. Samuel Moyn, rightly points to the
problematics of Hunt’s deeply teleological view of human rights history.129 Hunt
envisions the emergence of modern human rights in the West as a historical “cascade
of rights”, deterministically and triumphally leading to their emergence in twentieth
century Euro-America.130 Moyn, in turn, argues that modern human rights only
genuinely became a global concern after the 1970s, when the human rights discourse
was claimed by Eastern European dissidents of Communist regimes and the liberal
and anti-Communist left.131
While it can be strongly argued that Lynn’s teleological conception of human rights
history as a “cascade of rights” is ultimately flawed, it is equally unconvincing to
assume that human rights are a uniquely modern concept.132 It is true that a major shift
occurred in rights thinking during the twentieth century, and after World War II the
human rights discourse reached unprecedented levels of global acceptance and
institutionalization.133 Claiming the inherent (Western) modernity of human rights,
however, would amount to a crude form of presentism that does not allow for the
possibility of premodern human rights thinking.134 However, there are identifiable
premodern human rights concerns and claims in all world cultures and religions, which
have been expressed differently in various historical contexts and languages. This is
exemplified by the many attempts of scholars and adherents of different world
129 Samuel Moyn, Human Rights and the Uses of History (London and New York: Verso, 2014), 7-12.
130 Hunt, Inventing Human Rights, 212.
131 Moyn, Human Rights and the Uses of History, 15. Also see Moyn’s The Last Utopia, where he
makes a more elaborate argument for the recent origins of the human rights discourse (see footnote
59).
132 Both Chapters III and Chapter IV of this thesis are dedicated to premodern conceptions of rights in
the Western and Islamic legal traditions, respectively.
133 See Section 1.1. of this chapter on the global rise of the modern human rights regime.
134 Historical presentism projects modern understandings of phenomena, in this case modern human
rights, unto instances in the historical past, distorting them in the process. On presentism in historical
scholarship, see John Tosh, In Pursuit of History: Aims, Methods and New Directions in the Study of
History (Abingdon, Oxon: Routledge, 2015, sixth edition), 161-162; François Hartog, Presentism and
Experiences of Time, trans. Saskia Brown (New York: Columbia University Press 2015); Steven
Seidman, “Beyond Presentism and Historicism: Understanding the History of Social Science”,
Sociological Inquiry 53, No. 1 (1983): 79-91. For a critique of anti-presentism, see Carlos Spoerhase,
“Presentism and Precursorship in Intellectual History”, Culture, Theory and Critique 49, No. 1
(2008): 49-72.
34
religions to ground human rights in their respective intellectual traditions.135 The
multifarious grounds of human rights do not undermine their importance or relevance,
rather they might make the case for human rights and their promotion around the world
stronger. Hence, it is warranted that this thesis discusses the contribution of Islamic
civilization and legal thought to the global rights discourse.136
1.2.2. The Problem of Justification
Parallel to the scholarly debate on the universality of modern human rights and the
problem of cultural and religious diversity, the inquiry into the philosophical
grounding of rights also emerged as a second major point contestation. Part of the
conundrum of modern human rights is that they are philosophically ungrounded. The
drafters of the UDHR had deliberately avoided the use of premodern rights language,
such as “natural rights”, given the severe critiques it had received in the eighteenth and
nineteenth centuries, from philosophers such as David Hume (d. 1776), Jean-Jacques
Rousseau (d. 1778), Immanuel Kant (d. 1804) and Jeremy Bentham (d. 1832).
Bentham, especially, would become famous for his expression that natural rights are
nothing more than “nonsense upon stilts”.137 But the secularizing philosophies of
Hume, Rousseau and Kant would also deal an intellectual blow to premodern,
especially Hobbesian, notions of natural rights.138 From the eighteenth century
onwards, the concept of rights was slowly but steadily secularized and divorced from
its theological and philosophical underpinnings.139 The older conception of “natural
rights” was rejected in the modern human rights framework. However – and strikingly
– they were not replaced by any other philosophical alternative.140 Because of this, as
135 For examples from several world religions, including indigenous religious traditions, see John
Witte, Jr. and M. Christian Green (eds.), Religion and Human Rights: An Introduction (New York:
Oxford University Press, 2012).
136 For an overview of current scholarship on the justificatory grounds of human rights, see section
1.3. of this chapter.
137 Bentham’s literal words are: “That which has no existence cannot be destroyed - that which cannot
be destroyed cannot require anything to preserve it from destruction. Natural rights is simple nonsense:
natural and imprescriptible rights, rhetorical nonsense, nonsense upon stilts”. See John
Bowring (ed.), The Works of Jeremy Bentham, Vol. 2 (London: Simpkin, Marshall & Co, 1843), 501.
Also see, Jeremy Waldron (ed.), ‘Nonsense upon Stilts’: Bentham, Burke and Marx on the Rights of
Man (London and New York: Methuen, 1987).
138 Richard Tuck, Hobbes (Oxford: Oxford University Press, 1989), 95-97.
139 Freeman, Human Rights, 28-29.
140 Freeman, Human Rights, 43. Also see, John Tasioulas, “Taking Rights out of Human Rights”,
Ethics 120, No. 4 (2010): 647-678.
35
human rights scholar James Griffin points out, the modern concept of human rights
has become “nearly criterionless”.141 This brings about somewhat of a paradox: while
modern human rights as a moral and legal discourse are well-established in
international law and legal systems, human rights as such are not – or according to
some scholars cannot be – theoretically founded.142
From its inception, the drafters of the UDHR had also evaded the question of
justificatory grounds, being well aware of the intellectual threats it could possibly pose
to the universalist ambitions of the project of modern human rights after the Second
World War.143 The drafting committee of the UDHR had consisted of people with a
wide variety of ideologies and worldviews that could only reach a measure of
agreement by avoiding any explicit mention of religious and philosophical
commitments. The text of the UDHR therefore is notoriously vague in wording.144 The
amount of success the UN would subsequently have in arriving at some form of
consensus over a body of human rights norms was arguably due to its avoidance of
questions regarding their philosophical justifications.145
The Catholic natural law philosopher and neo-Thomist Jacques Maritain (d. 1973),
even though not a committee member himself, was heavily involved in discussions
surrounding the drafting of the UDHR and its propagation after it was promulgated by
the General Assembly in 1948.146 His outlook represents the general tenure – and
excitement perhaps – that emanated from the twentieth-century project of modern
human rights. Driven by the atrocities of World War II, Maritain believed in the
absolute necessity of global humanity to reach an agreement on universal moral
141 James Griffin, On Human Rights (Oxford: Oxford University Press, 2008), 14-15.
142 Michael Freeman, “The Philosophical Grounds of Human Rights”, Human Rights Quarterly 16,
No. 3 (1994): 500.
143 Johannes Morsink, The Universal Declaration of Human Rights: Origins, Drafting, and Intent
(Philadelphia: University of Pennsylvania Press, 1999). Morsink mentions that the drafters of the
UDHR strove to use a language that accommodated different ideologies and worldviews in a
“tremendous drive toward universality”, 21.
144 Freeman, Human Rights, 47. For several interesting word-by-word discussions among the UDHR
drafters on the avoidance of questioning the justificatory grounds of human rights, see Mary Ann
Glendon, “Foundations of Human Rights: Unfinished Business”, The American Journal of
Jurisprudence 44, No. 1 (1999): 1-3.
145 Freeman, Human Rights, 63.
146 William Sweet, “Jacques Maritain and the UDHR”, in Christianity and Global Law, ed. Rafael
Domingo and John Witte, Jr. (Abingdon, Oxon and New York: Routledge, 2020), 165-168.
36
standards.147 He was aware, however, of the philosophical problem at hand. He points
out that the whole project of giving justificatory reasons for rights is problematic,
because it will divide people, rather than bring them together. In an almost relativist
wording, Maritain mentions that people firmly believe in their own truths and are very
hard to persuade otherwise. People are simply inclined to hold to what is dear to them
in terms of values and norms and these values and norms are ultimately based in their
own worldview. Any justificatory grounds for human rights values and norms can thus
be fundamentally different – or even opposite – and will not help to bring people
together.148
Maritain thus acknowledges that as long as people with wholly different worldviews,
based on different religious and moral convictions, cannot be in agreement, there will
always be conflicts between peoples, how they see the world and what they find the
best way of living in it. Hence, there will also always be conflicts about the reasons
that are used regarding how fundamental rights for human beings are to be
grounded.149
In Maritain’s assessment, the division in the debate on the philosophical grounds of
human rights is based on two main positions: one that embraces “natural law” as a
basis for human rights, and one that rejects it. The first group, based on natural law
reasoning, argues that human beings are endowed with fundamental and inalienable
rights that inhere in nature and are the source of social life and the rights and duties
that stem from that. The second group argues that no such thing as a “natural law” that
precedes societal arrangements exists. For them, rights develop historically and are a
product of society. Rather than being a set of unchanging and “eternal” pre-societal
rights that are both fundamental and inalienable, in this second group rights are
conceived of as being “variable and in constant state of flux”.150
147 Deborah Wallace, “Jacques Maritain and Alasdair MacIntyre: The Person, the Common God and
Human Rights”, In The Failure of Modernism: The Cartesian Legacy and Contemporary Pluralism,
ed. Brendan Sweetman (Catholic University of America Press, 1999), 132.
148 Maritain, Human Rights, 1.
149 Maritain, Human Rights, 3.
150 Maritain, Human Rights, 5.
37
According to Maritain, however, philosophical grounds for human rights are not
essential for reaching the pragmatic goal of practical agreement on a set of rights
commonly held to be basic and fundamental for human dignity and societal
flourishing. Maritain asks how we might accomplish the common intellectual task of
bringing people together on an intellectual level if those same people have different
worldviews and corresponding social and religious values and norms that can
sometimes be conflictual. In the answer he gives, Maritain employs the pragmatism of
common practical ideas (or “common principles of action”) that might be reached
“spontaneously”, and not on the basis of agreement over “the same conception of the
world, of man and of knowledge”. For Maritain, despite disagreements over the “why”
and “wherefore” of human rights, these different systems of thought arrive at similar
conclusions regarding prescribed rules of human behavior. They are, he maintains,
very similar – at least in a practical sense – in different eras and world cultures.151
Maritain thus seems optimistic that practical consensus can be reached if we if we
leave our endeavor of theoretically and philosophically justifying the rights for all
human beings. Instead, he argues, we should be contended with merely naming them
and setting forth lists of human rights that we all find important.152
Maritain’s naïve pragmatism is problematic in various regards. First, he seems to
contradict himself when he describes the two main positions (pro and contra “natural
law”) that – in his interpretation – divide the grounds of rights debate. He mentions for
example that surely the rights that are seen as basic for one group of people might not
be the same for another group of people. They may in fact be very different.153 The
thin consensus on rights on which the drafters of the UDHR depended would prove
elusive in the future.154 Richard McKeon (d. 1985), another major philosopher who
was instrumental in formulating the UDHR and its rights language, foresaw that
reaching future agreement over the actual interpretation of the agreed upon set of rights
principles, reconciling tensions between conflicting rights, integrating new rights, and
151 Maritain, Human Rights, 2-3.
152 Maritain, Human Rights, 6.
153 Maritain, Human Rights, 6. Maritain uses the word “primitive rights” in the original text, but does
not seem to mean rights that are in some way “less developed”. Primitive rights in this instance are
used in the meaning of “basic rights”. That is, a subset of rights that are fundamental to the “condition
of society’s very existence”, more so than other (secondary) types of rights.
154 Mary A. Glendon, “Knowing the Universal Declaration of Human Rights”, Notre Dame Law
Review 73, No. 5 (1999): 1162.
38
the subsequent implementation of the rights would prove to be problematic.155 In
addition, he predicted that the different understandings of the meanings of rights betray
a different view of man and society – indeed of reality – which might be an incentive
for some groups to advance their own “special interests”.156 As the scholar Elinor
Gardner would aptly put it:
Not only is an agreement on universal rights insufficient to guide action (the
problem of implementation), but it is also subject to abuse (the problem of
interpretation). Vastly conflicting agendas can be supported by reference to the
rights found in the UDHR.157
Secondly, Maritain’s minimalist requirement of “spontaneous” practical consensus
has left many, quite justifiable so, unsatisfied. Its intellectual exiguity is perhaps all
the more striking, given Maritain’s central role in the drafting of such a foundational
human rights document as the UDHR, which after all makes the weighty claim of
being the “common standard of achievement for all peoples and all nations” which
deserved universal “recognition” and “observance” by humanity.158 Significantly,
Maritain continued to propagate the position that a Christian-inspired natural law
theory was the only “true and solid” foundation for human rights in his other published
works. He hoped, in fact, for a “deeper unity among people based on natural law
principles and Christian inspiration”.159 Maritain’s pragmatic minimalism surrounding
155 Mary A. Glendon, Knowing the Universal Declaration of Human Rights, 1156. McKeon was part
of the so-called “Philosopher’s Committee” of UNESCO, which would play a major part in
influencing the public discourse on human rights around the time of the promulgation of the UDHR.
See Mark Goodale, “The Myth of Universality: The UNESCO ‘Philosopher’s Committee’ and the
Making of Human Rights”, Law & Social Inquiry 43, No. 3 (2018): 596-617.
156 Mary A. Glendon, Knowing the Universal Declaration of Human Rights, 1157.
157 Elinor Gardner, “Nature and Rights: The Meaning of a Universal Agreement on Human Rights”, in
Reading the Cosmos: Nature, Science, and Wisdom, ed. Giuseppe Butera (Washington, DC: The
Catholic University of America Press, 2012), 224. Also see, Rebecca Adami, “Intersectional
Dialogue: Analyzing Power in Reaching a Universal Declaration of Human Rights in 1948 on
Conflicting Grounds”, Journal of Human Rights 17, No. 3 (2018): 357-366.
158 The UDHR would also come to form the “legal baseline” of modern international human rights
law, even though the declaration was not binding in and of itself. See, Baderin and Ssenyonjo, Six
Decades After the UDHR and Beyond, 3 and 5.
159 Wallace, Jacques Maritain and Alasdair MacIntyre, 132-133. Also see Miguel Vatter, “Politico-
Theological Foundations of Universal Human Rights: The Case of Maritain”, Social Research 80, No.
1 (2013): 233-260. In some of his works, Maritain approaches the debate of the philosophical grounds
of human rights from the perspective of Catholic Thomist natural law theory. See for example,
Jacques Maritain, Natural Law: Reflections on Theory & Practice, ed. William Sweet (South Bend,
Indiana: St. Augustine’s Press, 2001).
39
the drafting of the UDHR and his own philosophical insistence on Christian natural
law as the only valid basis for human rights thus seem to be somewhat at odds.
The problematics of Maritain’s lack of interest in philosophical groundings in the
context of drafting the UDHR has also been pointed out in scholarship. Gardner, for
example, argues that the set of rights promulgated in the UDHR is not a list of practical
conclusions, as Maritain claims, but a set of abstract principles and universal moral
claims that “obscure fundamental disagreements about human nature”. Without
foundational consensus on human nature, Gardner claims, abstract principles cannot
sufficiently guide practice and hence – echoing the critique of Alasdair MacIntyre –
are “open to both reinterpretation and outright rejection”.160 Human rights, according
to Gardner, are to be understood as “moral rules” that serve as a guideline for human
conduct, and hence they refer to some conception about what is good and moral.
Without a shared moral foundation there is only a surface consensus with no deeper
philosophical agreement (a “consensus of moral platitudes”). This is not sufficient to
guide human action, as there is no means against which moral rules can be measured,
for example in cases when such moral rules are in conflict.161 In a very similar vein,
Alasdair MacIntyre argues that the rights language proposed by the UDHR tends to
“short-circuit and block genuine dialogue about moral standards”.162
1.3. Current Scholarship on Justificatory Grounds
In line with the authors mentioned above, the legal and political historian Richard Tuck
similarly laments the lack of philosophical scholarship on the concept of rights, in his
paradigmatic work on the history of rights in the Western legal tradition Natural Rights
Theories (1979). One of the reasons he puts forwards, is that “the language of rights is
difficult to use straightforwardly”.163 While the language of rights remains allusive –
as will become abundantly clear throughout this thesis164 – philosophical scholarship
has made some progress since Tuck published his work in 1979. There has in fact been
160 Gardner, Nature and Rights, 215.
161 Gardner, Nature and Rights, 224.
162 Wallace, Jacques Maritain and Alasdair MacIntyre, 134.
163 Richard Tuck, Natural Rights Theories: Their Origin and Development (Cambridge: Cambridge
University Press, 1979), 1.
164 The debate surrounding the language of rights will be addressed in the conceptual history of rights
in the Western and Islamic legal traditions provided in Chapter III and IV, respectively.
40
somewhat of a resurgence of philosophical scholarship on rights in the recent decade,
especially in the field of the justification and grounding of rights.165
Current scholarship on the philosophical grounds of human rights is broadly divided
into four currents. The first current maintains that human rights have no grounds and
should therefore – at least on philosophical grounds – be rejected (often in favor of
other conceptions of morality and ethics). This line of reasoning is very much in tune
with the earlier Burkian and Benthamian critiques of the eighteenth century, aimed at
the premodern notions of “natural rights”. Bentham, we have already mentioned
above. The conservative philosopher Edmund Burke (d. 1797), on the other hand,
called natural rights a “useless metaphysical abstraction” and rejected the universalism
of natural rights claims in the face of cultural and national diversity.166 This current of
scholarship is perhaps best represented by the contemporary neo-Thomist philosopher
Alasdair MacIntyre, who argues that human rights do not exist and are alike to “belief
in witches and unicorns”.167 MacIntyre is particularly critical of the notion that human
rights, or any other of its premodern incarnations, are “self-evident truths” that we can
know “intuitively”. However, self-evident truths, MacIntyre argues, do not exist.
Hence human rights are mere fictions.168 MacIntyre’s account of human rights has
stirred a lot of debate, some of which is quite critical. Philosopher John Tasioulas, for
example, has lambasted MacIntyre for adopting too critical a stance towards human
rights based on scant reasoning, and also for not recognizing the possibility a
philosophical grounding in Aristotelian virtue ethics (both MacIntyre and Tasioulas
being neo-Aristotelians).169 MacIntyre has also been criticized for his inadequate
historical analysis of rights discourses.170 In seems, in fact, that MacIntyre’s own views
on the prospects of grounding human rights have somewhat evolved over time, since
165 See for example Rowan Cruft, S. Matthew Liao, and Massimo Renzo (eds.), Philosophical
Foundations of Human Rights (New York: Oxford University Press, 2015); John Tasioulas, “Towards
a Philosophy of Human Rights”, Current Legal Problems 65, No. 1 (2012): 1-30.
166 Freeman, Human Rights, 32-33.
167 Alasdair MacIntyre, After Virtue: A Study in Moral Theory (Notre Dame, Indiana: University of
Notre Dame, 2007, third edition), 69.
168 MacIntyre, After Virtue, 69-70.
169 Alasdair MacIntyre, “What More Needs to Be Said? A Beginning, Although Only a Beginning, at
Saying It”, Analyse & Kritik 20 (2008): 272. Cf. Mark D. Retter, “The Road Not Taken: On
MacIntyre’s Human Rights Skepticism”, The American Journal of Jurisprudence 63, No. 2 (2018):
189-219.
170 Christopher James Wolfe, After Rights: A Response to Alasdair MacIntyre’s Critique of Rights
(unpublished dissertation, Claremont Graduate University, 2014).
41
the publishing of his 1981 book After Virtue, in favor of a possible philosophical
grounding in neo-Aristotelian virtue ethics.171
A subset on this line of reasoning is the relativists position of philosophers such as the
late Richard Rorty (d. 2007), who did not accept any foundational grounds for human
rights on the assumption that there are no grounds for any type of conviction.172 This
assumption is of course due to Rorty’s post-modern pragmatism that is critical of one
and all truth claims, as espoused in his 1979 work Philosophy and the Mirror of
Nature.173 As opposed to MacIntyre, however, Rorty does allow for a justification of
human rights in notion of sentimentality. This notion is rooted in the idea that human
atrocities – “human rights violations” – are mostly due to considering others as “subhuman”
(or “quasi-human”). By manipulating human sentiments through so-called
“sentimental education” people become better acquainted with each other – and each
other’s suffering – and through the experience of empathy expand their references to
“our kind of people” and “people like us”.174 Even human rights scholar Jack
Donnelly, who like Rorty, holds a deeply relativist position that is critical to
foundational appeals for grounding human rights, thinks that human rights, like all
other social practices, require justifications. He says, for example, that theoretical and
philosophical justification for human rights is necessary, even though the debate on
them might be highly controversial. Donnelly also does not believe it is impossible to
give such justifications.175
The second current of scholarship maintains that for human rights to be justified, they
must ultimately be grounded in religion and religious values. Arguably, the most
articulate proponent of the current that argues for the religious grounds of human rights
is the American Calvinist philosopher and theologian Nicholas Woltersdorff.176 A
171 Alasdair MacIntyre, What More Needs to Be Said?, 272.
172 Freeman, Human Rights, 64.
173 Richard Rorty, Philosophy and the Mirror of Nature (Princeton and Oxford: Princeton University
Press, 2018).
174 Richard Rorty, “Human Rights, Rationality, and Sentimentality”, in On Human Rights: The Oxford
Amnesty Lectures 1993, eds. Stephen Shute and Susan Hurley (New York: Basic Books, 1993), 122-
123. Also see, José-Manuel Barreto, “Rorty and Human Rights: Contingency, Emotions and How to
Defend Human Rights Telling Stories”, Utrecht Law Review 7, No. 2 (2011): 93-112.
175 Jack Donnelly, Universal Human Rights in Theory and Practice (New York: Cornell University
Press, 2013), 22-23.
176 His most elaborate account is found in Nicholas Wolterstorff, Justice: Rights and Wrongs
(Princeton and Oxford: Princeton University Press, 2008).
42
proponent of reformed epistemology, Woltersdorff argues that there is no adequate
secular grounding for human rights. If human rights are to be grounded, it can only be
a theistic grounding.177 Secular accounts of human rights, in Wolterstorff’s
understanding, are all “capacity accounts”, i.e., accounts that single out the human
capacity for rational agency as a basis for human dignity. This capacity is however
shared by some higher mammals (and is thus not uniquely human). Opting for more
complex forms of capacity, such as the capacity to organize your life, set future goals
and systematically works towards those goals is also problematic, since some human
beings do not have this capacity, such as people who have some kind of brain disorder
or a form of dementia.178 What then, Woltersdorff asks, is a uniquely human feature
that all human beings have, and other mammals do not have, upon which human
dignity and worth than can based? Wolterstorff argues that the basis for human dignity
and worth inheres in the uniquely human feature offered by the Christian theistic view
that humans resemble the “image of God” (the imago Dei). As such, they are in a
loving relationship with God. And God’s love for human beings is both eternal and
includes all the people he created.179 Wolterstorff boldly theistic justification for the
rights of all human beings, typical for those who adhere to the Christian reformist
epistemological school, has found proponents as well as detractors.180 Similar religious
accounts – theistic or non-theistic – have been given by adherents of different religious
worldviews.181
177 Nicholas Wolterstorff, “Can Human Rights Survive Secularization?”, Villanova Law Review 54,
No. 3 (2009): 411-420. Wolterstorff does not think there never might be a secular grounding in the
future, nor does he preemptively reject such a grounding if there would be one. In fact, towards the
end of his article, he mentions that ideally there would be religious and non-religious groundings of
human rights that all humans could equally embrace, see pages 417 and 420.
178 Nicholas Wolterstorff, Can Human Rights Survive Secularization?, 414-415.
179 Nicholas Wolterstorff, Can Human Rights Survive Secularization?, 418-419.
180 For several (secular and religious) critiques of Wolterstorff’s account, see for example David
Redmond, “Against Wolterstorff’s Theistic Attempt to Ground Human Rights”, Journal of Ethics and
Social Philosophy 12, No. 1 (2017): 127-134; Paul A. Macdonald, Jr., “Grounding Human Dignity
and Rights: A Thomistic Response to Wolterstorff”, The Thomist: A Speculative Quarterly Review 82,
No. 1 (2018): 1-35; Richard J. Bernstein, “Does He Pull It Off? A Theistic Grounding of Natural
Inherent Human Rights”, Journal of Religious Ethics 37, No. 2 (2009): 221-241; Jordan Wessling, “A
Dilemma for Wolterstorff’s Theistic Grounding of Human Dignity and Rights”, International Journal
for Philosophy of Religion 76 (2014): 277-295.
181 See for example, Damien Keown, “Are There Human Rights in Buddhism?”, in Buddhism and
Human Rights, eds. Damien V. Keown, Charles S. Prebish and Wayne R. Husted (Richmond, Surrey:
Curzon Press, 1998), 15-41; Summer B. Twiss, “Confucian Values and Human Rights”, in Human
Rights and Responsibilities, eds. Joseph Runzo, Nancy M. Martin and Arvind Sharma (Oxford:
Oneworld Publications, 2003), 283-300; David Novak, “The Judaic Foundation of Rights”, in
Christianity and Human Rights: An Introduction, eds. John Witte, Jr. and Frank S. Alexander
(Cambridge: Cambridge University Press, 2010), 47-63
43
The third current of scholarship seeks a secular grounding for human rights. A
prominent scholar writing on secular grounds – and to my knowledge to only one to
have dedicated a full monograph to its study – is political theorist Ari Kohen.182
Kohen’s main argument is based on the idea of a political overlapping consensus
between the different cultures of the world – embodied by the UDHR – that gives rise
to human dignity and collective human rights. Following Richard Rorty, Kohen rejects
the idea the any human quality, such as “human nature”, can function as a ground for
human rights.183 Instead, the idea of cross-cultural overlapping consensus, much along
the lines of John Rawls (d. 2002), functions as a justificatory ground for human
dignity.184 The drafting of the UDHR represents, according to Kohen, differs
substantially from all earlier rights declaration. Pre-World War II rights declarations
were largely national affairs, while the UDHR was cosmopolitan and cross-cultural.
Kohen admits that many groups were not present at the deliberations surrounding the
drafting of the UDHR in the late 1940s, such as many post-colonial African states and
indigenous peoples from around the world.185 But the drafting process, he argues, was
“highly inclusive” and “persuasive”. Also, after the promulgation of the UDHR,
international human rights institutions became increasingly inclusive and many
conventions and declarations were promulgated in favor of women, indigenous
peoples, and children, among others. The UDHR, Kohen argues, could therefore be
seen as an ideal example of a Habermasian “democratic deliberative process” whereby
it has de facto achieved a “justificatory status”.186 Hence, Kohen states the people of
the world are in agreement with regards to the values and norms that are embedded in
the UDHR, even though they might have conflictual ideas about many other things. In
Kohen’s understanding, the human rights laid out in the UDHR are universal and can
be found in all world cultures. The consensus or agreement he observed is a reasonable
182 Ari Kohen, In Defense of Human Rights: A Non-Religious Grounding in a Pluralistic World
(Abingdon, Oxon: Routledge, 2007). Kohen, like Wolterstorff, is accepting of the idea that religious
and secular groundings for human rights can exist side by side.
183 Ari Kohen, “A Non-Religious Basis for the Idea of Human Rights: The Universal Declaration of
Human rights as Overlapping Consensus”, in Handbook of Human Rights, ed. Thomas Cushman
(Abingdon, Oxon: Routledge, 2012), 267.
184 Kohen, A Non-Religious Basis for the Idea of Human Rights, 270.
185 Kohen, A Non-Religious Basis for the Idea of Human Rights, 271.
186 Kohen, A Non-Religious Basis for the Idea of Human Rights, 272-273.
44
foundation to justify human rights in a manner that is not religiously inspired.
Overlapping consensus in this regard at least is secular in nature, and not religious.187
The fourth current of scholarship is a sort of mid-position between the second and third
currents. This is an intermediate position that seeks complementarity between secular
and religious grounds. Indeed, both Wolterstorff and Kohen both admit to the potential
complementarity of secular and religious foundations, even though they might prefer
– and forcefully argue – for either one position.188 However, there are also scholars
who embrace the complementarity of religious and secular justifications at the
outset.189 One such case, is theologian Richard Harries, who argues that ideas like
human rights and human dignity are ultimately grounded in the religious traditions of
the world – he specifically names Christianity, Judaism, and Islam – while also
embracing the idea of secularized “positive human rights” as a historically constructed
concept established by the law.190
Troels Nørager, also a theologian, similarly seeks a mid-ground between, what he
calls, “rigid” pro-secular or pro-religious justifications for human rights.191 After a
comparative study of two human rights scholars that fiercely argue for either religious
or secular groundings, Nicholas Wolterstorff and George Kateb respectively, Nørager
proceeds to point out several “common grounds” between the two scholars, such as
the shared conviction that human rights should be defended and theoretically
grounded, the characteristic of their theories as “dignity-based”, and the
acknowledgement that an undue focus on human rights might lead to egocentrism and
individualism.192 Nørager laments the “marked opposition” between the theistic and
secular positions and offers a “third” way, namely “metaphysical openness to
transcendence and ultimate meaning, pointing to an acknowledgement that we are
embedded in something larger than ourselves”. This position, Nørager argues, can
187 Kohen, A Non-Religious Basis for the Idea of Human Rights, 273.
188 See footnote 177.
189 See for example, Lisa Sowle Cahill, “Rights as Religious or Secular: Why Not Both?”, Journal of
Law and Religion 14, No. 1 (1999-2000): 41-52.
190 Richard Harries, “The Complementarity Between Secular and Religious Perspectives of Human
Rights”, in Does God Believe in Human Rights? Essays on Religion and Human Rights, eds. Nazila
Ghanea, Alan Stephens, and Raphael Walden (Leiden and Boston: Martinus Nijhof Publishers, 2007),
20 and 24-27.
191 Troels Nørager, “Theistic or Secular Grounding of Human Rights? Human Dignity according to
Nicholas Wolterstorff and George Kateb”, Studia Theologica 68, No. 2 (2014): 100-121.
192 Nørager, Theistic or Secular Grounding of Human Rights?, 113.
45
included both theism and the “religious atheism” espoused by Ronald Dworkin in his
book Religion without God, without “forcing us” to choose between the religioussecular
divide.193
And thus, we return to Maritain, who as representative of the post-World War II
modern human rights discourse had advocated a disengagement with inquiries into the
“basis and philosophical significance of human rights”, striving instead to achieve
universal consensus by the mere “statement and enumerations” of human rights.194 As
shown in our discussion above, this approach has proven to be not only problematic
philosophically, but also outdated. Current scholarship problematizes the
ungroundedness of modern human rights and is by-and-large committed to the
question of justificatory grounds. Because, as Gardner put it, “so long as we put aside
the question of foundations, our use of human rights instruments will remain fraught
with [...] difficulties”.195 Hence, we could summarize, based on the succinct overview
of current scholarship presented above (and the general discussion in this chapter), that
a case for grounding fundamental rights can – and should – be made. And there is no
viable reason at all, that Islamic attempts to ground fundamental rights should not be
part of this endeavor.
1.4. Conclusion
In this chapter we have surveyed current debates surrounding the so-called “modern
crisis of human rights”. We have seen that human rights have gained tremendous
support in the second half of the twentieth century. This was not a given when the
UDHR was promulgated in 1948. However, after World War II the modern human
rights discourse steadily grew into the “moral lingua franca” of our contemporary
world. The decades after the UDHR – which in and of itself is not legally binding –
saw human rights gradually integrated and legalized in domestic legal systems,
regional human rights instruments, international law and subsequent charters and
conventions, such as the ICCPR and ICESCR, which together with the UDHR make
193 Nørager, Theistic or Secular Grounding of Human Rights?, 116-117. See Ronald Dworkin,
Religion Without God (Cambridge, Massachusetts and London, England: Harvard University Press,
2013).
194 Maritain, Human Rights, 6.
195 Gardner, Nature and Rights, 228.
46
up the International Bill of Human Rights. Human rights activism played a major role
in the modern human rights regime “going global”. Today, not a single nation in the
world is not in some way enmeshed in human rights principles.
At the same time, modern human rights have come under increased pressure at the
start of the twenty-first century. Some scholars have hailed this period as a “crisis of
human rights” and asked if this may entail the “end of human rights” and if human
rights can – or should – be “saved”. Main critiques are the political misusages of
human rights for military and humanitarian “interventions”, the overzealousness of
human rights activism, and the failure of human rights litigation in supra-national
courts, such as in the ECtHR. The modern human rights discourse is said to be “replete
with paradoxes” and instances of “use and abuse”. In addition, two major challenges
confront the modern human rights regime: the problem of cultural and religious
diversity in the face of human rights claims to universality and universal applicability,
and the problem of the absence of any philosophical justifications for human rights
(the ‘ungroundedness’ of modern human rights).
The critique of universality had early iterations in the (in)famous Statement on Human
Rights by the American Anthropological Association (AAA). The new human rights
discourse of the 1940s strived for universality; to be a “common standard of
achievement for all peoples and all nations”. The AAA warned for this new discourse’s
inherent Eurocentrism, especially in the wake of the European colonialist legacy that
was still very much alive in the 1940s and 1950s. The universality of modern human
rights was further problematized by Eurocentric historical accounts of human rights,
be they rooted in Greco-Roman Stoicism, medieval natural law, or early modern
natural rights discourses. Human rights have been expounded by several prominent
scholars as “distinctly Western in origin” and emphatically not of “Asian, African, or
Middle Eastern origin”. These accounts also retain something of the old colonialist
mindset of the mission civilizatrice.
On the other side, to claim human rights as a purely modern phenomenon is a crude
case of historical presentism. Indeed, the discourse of human rights experienced a
major shift in the twentieth century towards secularization, universalization, and
globalization. But the historical roots of the modern human rights regime – however
47
contested they may be – are beyond doubt. Moving beyond a-historical, exclusivist,
and presentist historical accounts of human rights, this thesis operates under the
understanding that all human cultures, contemporary and historical, make some
provisions for human rights, albeit on the grounds of their own specific world views
and reasoning. As such, it is warranted – necessary even – to include the contributions
of Islamic civilization and legal thought in the global rights discourse.
The problem of justification rose to the surface during the drafting of the UDHR and
its subsequent promulgation in 1948. The conundrum has its historical roots, however,
in the eighteenth century. After the scattering critiques of the early modern natural
rights theories of the sixteenth and seventeenth centuries – such as those of Grotius,
Hobbes, Pufendorf, and others – the idea of human rights was gradually secularized.
Once the theological and philosophical foundations of natural rights were removed,
they we not replaced with any viable alternative. Modern human rights, as envisioned
by the drafters of the UDHR, were essentially “ungrounded” and “criterionless”. Those
involved in the drafting of the UDHR – such as Maritain – were clearly aware of this
conundrum. Conflicts over the justificatory grounds might have endangered the
“universalizing” project of modern human rights and risk any attempt at global
consensus. Hence, a strategy was chosen of “thin consensus” based on “spontaneous”
practical and – ultimately – naïve pragmatism. To reach practical consensus we need
to move away from discussions over justifications, it was argued, towards a mere
listing and enumeration of rights. Maritain was optimistic about reaching consensus,
assuming that the world’s cultures would by-and-large come to accept the same list of
rights, despite their multiple justifications.
Maritain’s approach can be criticized on numerous accounts. First, we can observe
several seeming contradictions, such as that he himself at times mentioned doubt that
supporters and distractors of natural law reasoning could come to agreement over
rights. Or that he remained a staunch proponent of Christian natural law justifications
of human rights, despite his advocacy pragmatic minimalism. Furthermore, his
minimalist requirement of superficial “thin consensus” did not anticipate future
problems of the actual interpretations of rights, reconciliation of conflicting rights,
integrating new rights, implementation of rights, and the advancement of “group
interests” and political abuse.
48
Maritain’s approached also lacked intellectual rigor and was ultimately based on a
“consensus of moral platitudes”. Human rights – understood as moral rules – derive
from some idea of what it means to be “good” or “moral”. In the absence of any deeper
philosophical understanding of the morality of human rights, they cannot genuinely
guide human action, nor would there be a means to evaluate moral rules. Also, to evade
any discussion on justificatory grounds makes a genuine dialogue on underlying moral
standards nearly impossible.
The challenges to modern human rights discussed in this chapter have prompted
scholars from various disciplines – law, social science, history, theology, philosophy
– to reignite the inquiry over the philosophical grounds of human rights. Contemporary
scholarship on justificatory grounds revolves around four main currents of scholarship,
which can schematically be presented as follows:
Currents of Grounding Human Rights Scholarship
Current: Justificatory Ground: Proponent:
No grounds None, sentimentality &
empathy
MacIntyre, Rorty
Religious grounds Divine love, imago Dei Woltersdorff
Secular grounds Cross-cultural overlapping
consensus, democratic
deliberative process
Kohen
Religious & secular
grounds
Human dignity & historical
construction, metaphysical
openness to transcendence &
ultimate meaning
Harries, Nørager
Figure 1: Currents of grounding human rights scholarship
The first current is the argument that modern human rights have no grounds and cannot
be theoretically justified (MacIntyre, Rorty). The second current is the argument that
only religious or theological foundations are warranted to justify human rights
49
(Woltersdorff). The third current is the position that secular justifications may be found
to ground human rights (Kohen). The fourth and final current is a mid-way position
that holds that both secular and religious groundings are possible and can be held
concurrently (Harries, Nørager). Given the sustained critique of the first current, it
seems hard to hold any conception of human rights if one believes they cannot be
philosophically justified in some way. In fact, even relativists such as Rorty and
Donnelly hold – albeit in distinct ways – that human rights need some kind of
justification. Kohen’s case for secular grounds in “cross-cultural overlapping
consensus” seems difficult to sustain, given the similarities it bears with Maritain’s
idea of a “thin consensus”. Kohen’s argument is thus subject to the same objections.
A mid-way position of justifying grounds in both theological and rational grounds,
however, seems to most promising approach. In fact, as will be argued in chapters IV
and VI, the Islamic rights hermeneutic seems to provide such an answer.
50
CHAPTER II
THE ISLAM AND HUMAN RIGHTS DEBATE: A
TAXONOMY OF PERSPECTIVES
“It seems beyond question that many tensions between traditional Islamic norms and
international human rights standards exist.”
Heiner Bielefeldt196
“Islam has laid down some universal fundamental rights for humanity as a whole”.
Abū al-Aʿlā al-Mawdūdī197
Publications on human rights and Islam are copious and very diverse in nature.
Scholars have written on the subject from the perspectives of law, social sciences,
philosophy, history and theology. All have interesting offerings to bring to the table.
The field of Islamic Human Rights Studies, however, is still in its infancy. It lacks a
common methodology due to its inherent interdisciplinarity.198 It also lacks a sense of
direction as to where the field should be going in the future. Often, scholars from
different fields seem to be talking past each other, instead of with each other. Part of
the reason is the disparity in scholarly demands according to each different subfield.199
While lawyers of modern international human rights often lack the hermeneutical
skills needed to meaningfully engage the classical Arabic sources of medieval Islamic
jurisprudence, Islamicists and Islamic Studies scholars often lack the training needed
to grasp the concerns of modern international human rights law. Both are arguably
needed in order to move the field of Islamic Human Rights Studies forward.
196 Heiner Bielefeldt, “Muslim Voices in the Human Rights Debate”, Human Rights Quarterly 17, No.
4 (1995): 587.
197 Abū al-Aʿlā al-Mawdūdī, Human Rights in Islam (Lahore: Islamic Publications, 1977), 8.
198 Some have critiqued interdisciplinarity for lacking a coherent approach. It is “neither here nor
there”. However, some themes – Islam and human rights arguably being one of them – cannot but be
studied in an interdisciplinary and comparative manner. For a critical appraisal of interdisciplinarity,
see Jerry A. Jacobs and Scott Frickel, “Interdisciplinarity: A Critical Assessment”, Annual Review of
Sociology 35 (2009): 43-65. For a slightly older but still helpful overview of the debate, see Garry D.
Brewer, “The Challenges of Interdisciplinarity”, Policy Sciences 32, No. 4 (1999): 327-337.
199 See Garry, The Challenges of Interdisciplinarity, 335.
51
In this chapter we explore the literature on the so-called “Islam and human rights
debate”. In doing so, we offer a taxonomy of perspectives on Islam and human rights
research, which will help in evaluating the state-of-the-art of the field. Also, it will
assist in situating this study in the broader field of Islamic Human Rights Studies. The
perspectives under discussion are thus (1) the Conflictual Perspective, (2) the
Apologetic Perspective, and (3) the Discursive Perspective. The various approaches
are aimed at distinguishing intellectual tendencies and modes of thinking. Hence, they
cut through the Muslim/non-Muslim-divide.
2.1. Islam and Human Rights: Contemporary Practices and Responses
Before we delve into the three trends of scholarship mentioned in the introduction of
this chapter, it would serve well to briefly mention other types of scholarship that fall
beyond the scope of these three trends proper. The first type considers Muslim
responses to the emergence of the modern post-World War II human rights regime,
often in the form of alternative Islamic rights declarations, such as the Universal
Islamic Declaration of Human Rights (UIDHR) of 1981 and the Cairo Declaration of
Human Rights in Islam (CDHRI) of 1990.200 The second type concerns monographs,
edited volumes, and journal articles that focus on mainly on two topics. One of them
focuses on contemporary implementations – or violations – of human rights in the
modern “Muslim world”.201 They will be mentioned here only briefly to give a sense
of the broader field on Islam and human rights research.
In the first type of research on Islam and human rights, the focus is on evaluating either
responses to the United Declaration of Human Rights (and its later two Conventions)
200 For an overview of Islamic human rights declarations, see Abdul Azeez Maruf Olayemi, Abdul
Majeed Hamzah Alabi, and Ahmad Hidayah Buang, “Islamic Human Rights Law: A Critical
Evaluation of UIDHR & CDHRI in Context of UDHR”, Journal of Islam, Law and Judiciary 1, No. 3
(2015): 27-36.
201 What entails the “Muslim world” is a contested issue. Since the dissolvement of traditional Islamic
states in the advent of European colonialism, Islamic legal systems were by-and-large supplanted by
European legal codes. Modern incarnations of Islamic law in several post-colonial states do not
necessarily reflect traditional Islamic legal culture. As such, there has been a “disruption” in the
Islamic legal tradition after 1800. For a discussion on modern incarnations of Islamic law and
governance, see Wael B. Hallaq, The Impossible State: Islam, Politics, and Modernity’s Moral
Predicament (New York: Columbia University Press, 2013). For a discussion on the contested idea of
the ‘Muslim world’ as a monolith, see Cemil Aydin, The Idea of the Muslim World: A Global
Intellectual History (Cambridge, Massachusetts and London, England: Harvard University Press,
2017).
52
or the promulgation of alternative Islamic rights declarations. Scholar of comparative
religion Jacques Waardenburg, for example, discusses the abstention from voting on
the UDHR of Muslim countries such as Saudi Arabia, certain Arab Gulf States, and
Mauretania. He also discussed – or summarizes rather – various subsequent Islamic
rights declarations, such as the Saudi memorandum concerning Human Rights in Islam
(1970), the Organization of Islamic Conference’s Wāthiqa ḥuqūq al-insān fī al-islām
[Document on Human Rights in Islam] (1980), and the Islamic Council of Europe’s
Universal Islamic Declaration (1981).202
Waardenburg also discusses – albeit rather briefly – some of the differences and
similarities between Islamic rights declarations and the UDHR, such as regarding
notions of freedom and equality.203 Waardenburg laments the depiction of some
commentators of modern Muslim alternative rights declarations as a sign of “religious
fanaticism”. According to him, these are authentic protests against violations of human
dignity and “a call for a transcendent source of justice, when mundane justice has
failed and human dignity is violated in so many ways”.204
In the second type of scholarship, focus is laid on contemporary practices in what is
considered the “Muslim world” as a measuring rod for evaluating to what extend Islam
is in sync with modern human rights concerns. A case in point is Mahmood
Monshipouri’s Human Rights in the Middle East, which deals with contemporary
human rights practices and implementations in Muslim majority countries.205 It deals
with case studies of human rights practices and/or violations in Saudi Arabia, Iraq,
Iran, Egypt, Turkey, Palestine, the UAE, and other Muslim-majority countries. The
book seems to have a broadly liberal outlook and does not significantly depart from a
universalist approach to international human rights law standards.
Ruud Peters, in his analysis of human rights practices in modern Muslim-majority
countries, argues that many of the basic premises in modern human rights thinking are
202 Jacques Waardenburg, “Human Rights, Human Dignity, and Islam”, in Islam: Historical, Social,
and Political Perspectives, Jacques Waardenburg (Berlin: De Gruyter, 2002), 167-173.
203 Waardenburg, Human Rights, Human Dignity, and Islam, 175-179.
204 Waardenburg, Human Rights, Human Dignity, and Islam, 184.
205 Mahmood Monshipouri (ed.), Human Rights in the Middle East: Frameworks, Goals, and
Strategies (New York: Palgrave Macmillan, 2011).
53
guaranteed in modern national legal systems that are (in part) inspired by Islamic law.
Most countries in which Muslims are a majority provide for religious liberty, for
example. And people adhering to different religions are in principle not discriminated
against by law. In some case, such as laws surrounding family matters or succession
law for gender equality has not always been reached in all cases. However, major
improvements have been made regarding the legal position of women. In addition,
most Muslim-majority countries have endorsed the international human rights
covenants that have been promulgated over the years.206
In Waardenburg’s estimation violations of human rights in Muslim majority countries
happed despite, not because of Islam. He says:
It is not Islam, however interpreted, that is the reason for such degradations of
human existence. I would say, on the contrary, that it is thanks to their
particular religious faith, their Islam, that so many Muslims are still aware of
their human dignity and live accordingly. They formulate human rights the way
they do and certainly are keen to communicate with men and women of good
will everywhere who also defend universal human rights and strive to uphold
human dignity, our humanity.207
On a similar note, Heiner Bielefeldt argues that the violations of basic rights – such as
arbitrary detentions, violent maltreatment, and persecution for political reasons– are a
feature of many countries, be they Muslim majority countries or not. These should not
be seen, he argues, as having a specifically Islamic rationale. Islam should not be
blamed overall, even if these practices occur in some countries where adherents to the
religion of Islam are the most dominant among its citizens.208
206 Peters, (In)compatibility of Religion and Human Rights, 80-81. That being said, some Muslim
countries have stipulated restrictions on said international human rights covenants in light of Sharīʿa
principles.
207 Waardenburg, Human Rights, Human Dignity, and Islam, 184. On a similar note, Elisabeth Mayer
writes: “Islam itself is not the cause of the human rights deficiencies in the Middle East. Human rights
abuses may be every bit as pervasive and just as severe in countries where Islamic law is in abeyance
and religious impulses are suppressed as in countries where it figures, at least officially as the legal
norm. One must recognize that, depending on the political context, supporters of Islamization may
easily turn out to be the victims of rights violations committed by secular regimes, and the violations
of their human rights must be taken as seriously as any other rights violations”. See Ann Elizabet
Mayer, Islam and Human Rights: Tradition and Politics (Boulder, Colorado and Oxford: Westview
Press, 2007), xvi.
208 Bielefeldt, Muslim Voices in the Human Rights Debate, 595.
54
Irene Oh, in her global survey of Muslim responses to human rights violations,
mentions that people living in nations where Muslims are a majority are equally
worried about human rights violations that might occur in their respective countries or
in the “Muslim world” at large, and this does not seem to be in contradistinction to
their adherence to Islamic values.209 In other words, Muslims by-and-large, see no
conflict in condemning human rights violations and their personal Islamic beliefs.
However, more germane to the concerns of this study or not contemporary practices
but scholarship on modern human rights and the classical Islamic legal tradition. To
this scholarship we now turn.
2.2. The Conflictual Perspective: Presentism and Orientalism
A large bulk of contemporary scholarship on Islam and human rights focuses on the
idea of the inherent incompatibility of Islamic law with universal human rights
principles. The claim is often made that Islamic law does not recognize any notion of
individual and inalienable human rights.210 Even if it does, it is – at most – as a
correlative to duties. The basic point of departure here, is the assumption that Islam is
fundamentally a “duty-based” legal system. One can find examples of this abundantly
in Orientalist scholarship of the second half of the twentieth century, such as in the
works of Joseph Schacht (d. 1969).211
But the Orientalist trope is also perpetuated in contemporary scholarship. The
contemporary legal scholar Norman Doe, for example, in his recent study on
Comparative Religious Law (2018), mentions:
Human rights do not constitute a distinct category in traditional Islamic
jurisprudence. Rather than that of a right (haqq), the focus of Islamic law is on
duties (taklif) – duties towards God and duties towards others – and, therefore,
209 Irene Oh, “Islamic Conceptions of Human Rights”, in Handbook of Human Rights, ed. Thomas
Cushman (Abingdon, Oxon: Routledge, 2012), 255.
210 See for example, Henry Siegman, “The State and the Individual in Sunni Islam”, The Muslim
World 54, No. 1 (1964): 23. Also see, Ann Elizabeth Mayer, “Universal versus Islamic Human
Rights: A Clash of Cultures or a Clash with a Construct?”, Michigan Journal of International Law 15,
No. 2 (1994): 321.
211 Joseph Schacht, An Introduction to Islamic Law (Oxford: Clarendon Press, 1982), 11.
55
for some scholars, to the extent that they exist, human rights are correlative to
duties.212
The Conflictual Perspective in research on Islam and human rights tends to focus on
the so-called “compatibility question”.213 Instead of a thorough engagement with the
Islamic legal tradition on its own terms, this trend of scholarship engages Islamic law
and jurisprudence from the vantage point of liberal ethics and uses international human
rights law formulations as a “measuring rod” to evaluate if Islam is compatible with
secular-liberal modernity. In that sense this approach is “presentist”.214 It approaches
the study of Islam and human rights with the assumption that Islamic legal culture is
by nature inherently antithetical to values and norms espoused by the human rights
discourse.215 In other words, it tends to focus on the so-called “narrative of conflict”.216
In his article, Bielefeldt sums up the “areas of conflict” that according to him lay at
the root of the Sharīʿa-human rights divide. Overall, he argues, problems arise in terms
of emancipatory principles, which according to Bielefeldt is a modern invention, not
present in the premodern Islamic tradition. The main points of contention, Bielefeldt
says, are the legal status of women, restrictions on religious liberty, and various types
of corporal punishment.217 Ruud Peters enumerates a similar list of “contentious
issues”. These are criminal law, religious liberty and legal equality. Comparing
premodern classical Islamic law with modern universal human rights standards in this
way however, he argues, is an “anachronistic operation”.218
212 Norman Doe, Comparative Religious Law: Judaism, Christianity, Islam (Cambridge: Cambridge
University Press, 2018), 373.
213 Dominic McGoldrick, “The Compatibility of an Islamic/Shariʿa Law System or Shariʿa rules with
the European Convention on Human Rights”, in Islam and English Law: Rights, Responsibilities and
the Place of Shariʿa, ed. Robin Griffith-Jones (New York: Cambridge University Press, 2013), 43.
214 For an account of presentism and its perils in historical scholarship, see Carlos Spoerhase,
“Presentism and Precursorship in Intellectual History”, Culture, Theory and Critique 49, No. 1
(2008): 49-72; Richard Reid, “Past and Presentism: The ‘Precolonial’ and the Foreshortening of
African History”, Journal of African History 52 (2011): 135-155.
215 Mayer, Universal versus Islamic Human Rights, 308. Also see Heiner Bielefeldt, “‟Western”
versus ‟Islamic” Human Rights Conception?: A Critique of Cultural Essentialism in the discussion on
Human Rights”, Political Theory 28, No. 1 (2000). At page 102 Bielefeldt says: “one can hardly deny
that the relationship between Islam and Human rights is complicated and raises a number of
problems”.
216 See Nathan C. Funk and Abdul Aziz Said, “Islam and the West: Narratives of Conflict and Conflict
Transformation”, International Journal of Peace Studies 9, No. 1 (2004): 1-28. A primary example is
of course the now fairly outdated, but still influential, book of Samuel P. Huntington, The Clash of
Civilizations and the Making of the New World Order (New York: Simon & Schuster, 1996).
217 Bielefeldt, Muslim Voices in the Human Rights Debate, 595-601.
218 See Peters, (In)compatibility of Religion and Human Rights, 77-80.
56
In listing his perceived points of contentions Bielefeldt does provide some nuance and
historical background. He mentions, for example, that historically non-Islamic
minorities were for the most part granted religious liberty and equal rights as
citizens.219 In addition, he mentions how some of the corporeal punishments stimulated
in classical medieval Islamic jurisprudence historically did not play a major role in
societies under Islamic rule.220
One of the most prominent writers in Western scholarship on Islam and human rights
is Ann Elizabeth Mayer. In her scholarship on Islam and human rights over the past
decades Mayer perpetually portrays the classical Islamic legal tradition as
incompatible with modern international human rights norms. In her 2007 article The
Islam and Human Rights Nexus, for example, she alludes to the rules and regulations
stipulated in the Islamic law surrounding the position of women in Islam. These rules
and regulation, according to Mayer, show a “pattern of legal discrimination against
women”. 221 She maintains, based upon her interpretations of Islamic law as it pertains
to gender equality, that the rulings and regulations of classical Islamic law regarding
women conflict with the basic principles of “modern secular legal systems and human
rights norms”.222
In the eyes of Mayer, Muslim scholars who want to take the Islamic legal and
intellectual tradition seriously are “reactionary ideologues” that are “committed to the
rules set forth in medieval jurisprudence”. She accuses them of entertaining “ossified
jurisprudential methodologies and narrow mindsets” and “sclerotic modes of
analysis”. Mayer also accused them of conspiracy thinking, in terms of seeing human
rights activism as some kind of evil conspiracy conducted by Western powers to
subdue, contaminate and ultimately rule over the Islamic world.223 At the same time
Mayer applauds explicitly feminist and reformist trends of Islamic thought, which she
labels as a “pattern of resistance”, “fresh modes of thinking”, and “new feminist
219 Bielefeldt, Muslim Voices in the Human Rights Debate, 598.
220 Bielefeldt, Muslim Voices in the Human Rights Debate, 612.
221 Ann Elizabeth Mayer, “Law and Religion in the Muslim Middle East”, The American Journal of
Comparative Law 35, No. 1 (1987): 141.
222 Mayer, Law and Religion in the Muslim Middle East, 141.
223 Ann Elizabeth Mayer, “The Islam and Human Rights Nexus: Shifting Dimensions”, The Muslim
World Journal of Human Rights 4, No. 1 (2007): 7-8.
57
critiques”.224 We see similar selective support for particular modernist modes of
Islamic activism in the work of Heiner Bielefeldt, who on that same note applauds
“liberal Muslim intellectuals”, “liberal reformers” and a “new hermeneutic
approach”.225
Interestingly, the only Muslim scholar Meyer critiques by name in het 2007 article is
Mashood Baderin, who has explicitly stated to be against what he calls “blind
conservatism”. In his work on Islam and human rights he mentions a rather nuanced
approach to the discussion: “while legal conformism (taqlîd) is not in itself an
undesirable practice, it must be distinguished from blind conservatism that does not
allow for reflective and contextual application of classical precedents”.226
In Mayer’s analysis, contemporary Muslim practices and modern responses to human
rights give every reason to belief Islam is antithetical to human rights values. For
example, in her analysis of the Cairo Declaration on Human Rights in Islam (1990),
she mentions that when measuring the Cairo Declaration to the “standards” of the
International Bill of Human Rights, she found that “the deficiencies are revealed to be
both serious and extensive”.227 In addition, referring to Samuel P. Huntington’s clash
of civilizations thesis, Mayer mentions that such Islamic alternative rights declarations
“would support Huntington’s assumption that human rights do not fit into Islamic
culture”.228 In another article Mayer mentions that Muslim responses to human rights
conventions have strengthened the impression in her the Islamic worldview by nature
conflicts with the values espoused by human rights, and are indeed in opposition to
them.229
What is often missing in the Conflictual Perspective in Islam and human rights
scholarship is a contextualized historical study of the Islamic legal system and a
224 Mayer, The Islam and Human Rights Nexus, 7-8.
225 See Bielefeldt, ‟Western” versus ‟Islamic” Human Rights Conception?, 108 and 110.
226 See Mashood A. Baderin, International Human Rights and Islamic Law (New York: Oxford
University Press, 2003), 39.
227 Mayer, Universal versus Islamic Human Rights, 347. For an analysis of the Cairo Declaration, see
Abdullah al-Ahsan, “Law, Religion and Human Dignity in the Muslim World Today: An Examination
of OIC’s Cairo Declaration of Human Rights”, Journal of Law and Religion 24, No. 2 (2008): 569-
597.
228 Mayer, Universal versus Islamic Human Rights, 347.
229 Mayer, The Islam and Human Rights Nexus, 5.
58
thorough engagement with the classical Arabic juridical sources of Islam. For
example, Mayer says about al-Mawdūdī – whom we will treat in the next section –
that he “utilized Western examples and precedents to prop up the legitimacy of shari‘a
rules that restrict human rights. [...] However, such Western-inspired rationales are
utterly irrelevant from the standpoint of Islamic jurisprudence and would play no role
in any rights scheme that was actually based on Islamic sources”.230 It is perhaps ironic
that Mayer accuses al-Mawdūdī of a lack of engagement with the classical Islamic
legal tradition, while she herself makes no use of any Arabic sources in her own work.
2.3. The Apologetic Perspective: Reactionism and Anachronism
The second approach to the question of Islam and human rights is the Apologetic
Perspective. This approach claims that universal human rights were instigated by Islam
from its inception in the seventh century. It uses a defensive tone and, often, makes a
caricature of its Western counterpart. This type of literature is characterized by
accusations of Eurocentrism and imperialism, while at the same time presenting Islam
as the more superior civilization. As some scholars have observed, human rights as a
political and legal project are utilized and instrumentalized as a means to prove or
show the supremacy of the Islamic worldview vis-à-vis the Western worldview.231
A case in point is the work of the reformist and modernist scholar Abū al-Aʿlā al-
Mawdūdī (d. 1979).232 In his Human Rights in Islam he accuses “the West” of
civilizational arrogance. In his work al-Mawdūdī accuses those who live in the West
of cultural arrogance. In his understanding, the West tends to ascribe all that is virtuous
and good in the world to themselves. All the is virtuous, helpful and effective in the
world is somehow due to the capacities and talents inherent in Western culture.
Without the West, the non-Western world would be living in darkness and blindness.
230 See Ann Elizabet Mayer, Islam and Human Rights: Tradition and Politics (Boulder, Colorado and
Oxford: Westview Press, 2007), 71.
231 Oh, Islamic Conceptions of Human Rights, 262. Oh rightfully mentions that many of these
responses were articulated in the context of postcolonialism and, in fact, often coincide with the end
of Western colonial states in the second half of the twentieth century. Hence, they should be
understood in this historical context.
232 See Roy Jackson, Mawlana Mawdudi and Political Islam: Authority and the Islamic State
(Abingdon, Oxon: Routledge, 2010).
59
Basically, al-Mawdūdī charges, the West tends to perceive itself as the pinnacle of
civilization, while the rest of the world is basking in barbarity.233
After a description of historical and contemporary human rights violations at the hands
of the West, al-Mawdūdī purports that the whole idea of universal rights stems from
Islamic civilization. He says, for example, that the right to life ultimately originates in
Islam. It is Islam who have presented this value to humanity. In that same vein, he
asserts the supremacy of Islamic notions of liberty and free expressions, compared to
similar notions that dominate in Western societies and cultures.234 In his section on
“Freedom of conscience and conviction” al-Mawdūdī elaborates on the issue of
religious freedom. But he does so rather selectively. He makes no mention, for
instance, of the contested issue of apostacy and does not engage the classical Islamic
legal tradition in this regard.235 Al-Mawdūdī also seems to make a historical caricature
of premodern Western notions of international law and the laws on warfare:
In the days when Islam came into focus the world was completely unaware of
the concept of humane and decent rules of war. The West became conscious of
this concept for the first time through the works of the seventeenth century
thinker, Grotius. But the actual codification of the ‘international law’ in war
began in the middle of the nineteenth century. Prior to this no concept of
civilized behaviour in war was found in the West. All forms of barbarity and
savagery were perpetrated in war, and the rights of those at war were not even
recognized, let alone respected.236
Towards the end of his discussion on Islamic conceptions of universal human rights –
interspersed with negative evaluations of Western counterparts – al-Mawdūdī
described the civilizational superiority of the Islamic rights scheme with a tone of
triumphalism. He asserts that fourteen centuries ago, Islam brought civilization to
mankind. Before that nations and tribes were basically in a perpetual state of war.
Instead, Islam brought the rule of law and stability to human societies. Al-Mawdūdī
233 Al-Mawdūdī, Human Rights in Islam, 11.
234 Al-Mawdūdī, Human Rights in Islam, 15 and 28.
235 Al-Mawdūdī, Human Rights in Islam, 29-30. For more on apostacy in classical Islamic
jurisprudence, see Rudolph Peters and Gert J. J. de Vries, “Apostacy in Islam”, Die Welt des Islams
17, No. 1-4 (1976-1977): 1-25. Also see Bielefeldt, ‟Western” versus ‟Islamic” Human Rights
Conception?, 104. Bielefeldt calls al-Mawdūdī’s approach a “superficial and uncritical ‟Islamization”
of human rights”.
236 Al-Mawdūdī, Human Rights in Islam, 35.
60
mentions he finds inspiration in the realization that for all of the triumphalism of the
West, and all of the claims to civilizational and scientific advance, the West was unable
to bring forth the legal and social frameworks based in equity and equality that were
brought forth by Islamic civilization all those centuries ago.237
Interestingly, and scholar Ruud Peters observed this as well, al-Mawdūdī made no
reference to the classical Islamic legal tradition at all in his work on human rights.238
Nowhere does he cite the classical jurists of Islam and their juridical literatures. He
merely cited disparages verses from the Qurʾān and prophetic narrations (ḥadīth, pl.
aḥadīth). In his treatment of the conundrum of Islam and human rights, al-Mawdūdī
shows himself to be completely disconnected from the discursive legal and intellectual
tradition of Islam. In that sense, there is no real difference to speak of between the
Apologetic and Conflictual Approaches to Islam and human rights. Both seem to be
highly ideological, albeit at opposite directions of the spectrum. But more importantly,
both represent a discontinuity with the legal and intellectual tradition of Islam.
In addition, and this seems to be a fair critique, it is argued that al-Mawdūdī merely
harmonizes modern human rights concerns with traditional Sharīʿa-values. But he
does so in a manner that in no way addresses any of the contentious issues, such as
those mentioned by Bielefeldt above. In formulating his response to modern notions
of human rights, and how they relate to Islamic religious perspectives on human
dignity, al-Mawdūdī’s approach seems to be rather selective.239 To give but one
example, al-Mawdūdī mentions only color, race, language, and nationality in the
context of human equality. But he makes no mention of religious and gender
equality.240 On a more positive reading of al-Mawdūdī, however, Irene Oh argues that
despite al-Mawdūdī being conservative and vehemently against the West, he still
supported the idea of universal human rights, regardless of their perceived “Western
origins”. While al-Mawdūdī saw human rights, according to Oh, as a being perfected
237 Al-Mawdūdī, Human Rights in Islam, 39.
238 Ruud Peters, “Islamic Law and Human Rights: A Contribution to an Ongoing Debate”, Islam and
Christian-Muslim Relations 10, No. 1 (1999): 7-8.
239 See Bielefeldt, Muslim Voices in the Human Rights Debate, 603.
240 Al-Mawdūdī, Human Rights in Islam, 23.
61
by Islam, in al-Mawdūdī’s perception they endorse basic principles, such as
democracy, social coexistence, liberty of thought, and so forth.241
Al-Mawdūdī who wrote his work in 1977, is fairly early in his response to the
emerging modern human rights regime. He seems to be the first Muslim scholar to
have extensively written on the subject and is certainly the most cited scholar in
secondary literature on the topic.242 But he was certainly not sole in writing
apologetically about Islam and human rights, and several have followed in his
footsteps. And while these works seem to be more balanced – and more well-written
– the basic approach remains the same. A case in point is Maher Hathout’s In Pursuit
of Justice: The Jurisprudence of Human Rights in Islam (2006), which is a much more
elaborate and impressive treatment of the subject of Islam and human rights (written
in a staggering 485 pages), but remains by-and-large a collection of Qurʾānic verses
and prophetic narrations.243 Even though its tone is much less apologetic than the work
of al-Mawdūdī, it still fails to engage the classical Islamic legal heritage.
It must be said that citing these fundamental texts of the religious tradition is not
misplaced in and of itself. However, the question remains how these texts were utilized
and interpreted by the scholars of Islam. How were they historically contextualized
and what place did they have in the interpretative and hermeneutic tradition of classical
Islamic jurisprudence. The approaches we have discussed so far by-and-large seem to
have been lacking in this regard and therefore can hardly claim to have genuinely
engaged the Islamic legal tradition, let alone make generalizing claims about it.
2.4. The Discursive Perspective: Traditionalism and Revivalism
241 Oh, Islamic Conceptions of Human Rights, 261.
242 Al-Mawdūdī figures prominently, for example, in the work of Mayer, Islam and Human Rights, at
29, 65-66, 71, 73, and 81.
243 Maher Hathout, In Pursuit of Justice: The Jurisprudence of Human Rights in Islam (Los Angeles,
California: Muslim Public Affairs Council, 2006). Also see the work of Ibrahim Abdulla Al-
Marzouqi, Human Rights in Islamic Law (Abu Dhabi, 2000), which seems to be much more scholarly
in scope. For example, it has a chapter on Islamic legal theory (uṣūl al-fiqh) and makes use of
classical Arabic legal sources. However, it is not an academically published – let alone peer-reviewed
– work.
62
The Conflictual and Apologetic Perspectives described above might be criticized on
the grounds that they are simplistic and one-sided. On the one side, those who ascribe
to the Conflictual Perspective do not seriously engage or explore the rich Islamic legal
and intellectual tradition. Instead, they focus on a selection of peripheral scholars that
write in the contemporary period, such as al-Mawdūdī. Similarly, they tend to look at
extreme practices in Muslim majority countries as a measuring rod for perceived
Islamic stances towards the modern human rights discourse. On the other side,
apologists tend to entertain too simplistic of an approach that is often superficial. It
does not consider the complexities and intricacies of modern international human
rights law. In addition, in tends to reduce the modern human rights project as an
extension of Eurocentric imperialism. Lastly, it also praises Islam as the exclusive
herald of human rights to humanity.
Similar critiques have been voiced by Ruud Peters and Mashood Baderin. Peters, for
example, criticizes what he calls the “incriminating” and “apologetic” approach.244 For
Peters, Islamic law – like al premodern legal systems – cannot be expected to meet the
concerns of present-day people. To do so would be a crude from of presentism, since
the bulk of the Islamic juridical literature was formulated approximately a thousand
years ago. Peters argues that even eighteenth-century rights declarations proclaimed
in the West, such as France and America, were severely compromised as they did not
concern women, nor did they concern blacks. Eighteenth-century rights declarations
fundamentally endorsed only rights for men who were white. In addition, these rights
only counted for men who were free, as slavery was still fully endorsed and practiced
in these societies.245 Just as evaluating 200-year old declarations according to presentday
understandings would be rather meaningless, according to Peters, so would it be
to just classical Islamic jurisprudence according to modern international human rights
instruments.
Mashood Baderin similarly observes that a lot of the previous scholarship on Islam
and human rights was either religious apologetics or based on highly exclusionist –
and we might add Eurocentric – interpretations of international human rights law. This
arguably strengthens the Conflictual Perspective’s theory of incompatibility. Baderin
244 Peters, Islamic Law and Human Rights, 5-14.
245 Peters, Islamic Law and Human Rights, 6.
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rightly points out this is to the detriment to those aspects – and according to Baderin
there are many – of international human rights law and Islamic law that are in harmony
with each other or overlap in certain ways.246 As Waardenburg points out, scholars of
religion have allotted insufficient attention to notions such as justice – and I might add
human dignity – in the Islamic intellectual tradition.247
First, it might be helpful to consider that Islamic responses to the emergence of the
modern human rights regime are not monolithic. Not only are there Muslim intellectual
and theologians who wholly accept or reject modern human rights, as the Conflictual
and Apologetic Perspectives would have it. In fact, there is a wide variety of positions
in between that reflect the inherent plurality and openness of Islamic civilization. Irene
Oh sums the various positions up well in her survey of Islamic conceptions of human
rights. She points out that even though the idea of human rights has been critiques –
sometimes severely – by Muslim scholars in the modern era, the vast majority of them
have come to accept human rights values. Muslims scholars and intellectual form
different proclivities and schools of thought, ranging from more conservative to more
progressive or liberal, incline to accept the compatibility of human rights with the
Islamic worldview. However, they are also in agreement that there is a certain Western
partiality or bias in the way international human rights are interpreted and practiced.
What Muslim scholars disagree about, Oh argues, are their interpretive methods and
hermeneutics with regards to the Islamic intellectual tradition vis-à-vis the openness
or closeness to ideas from the West, including Western interpretations of human rights
values.248
What we see here, is a very nuanced view of the relationship between Islamic values
and human rights. The majority of Islamic intellectuals and theologians, by far, does
not wholeheartedly reject the idea of modern human of human rights but in fact
embraces it on its own terms on the basis or Sharīʿa values. Nor does it neglect the
Western or Eurocentric bias that often undergirds contemporary discussions on human
246 Mashood A. Baderin, International Human Rights and Islamic Law (New York: Oxford University
Press, 2003), 3.
247 Waardenburg, Human Rights, Human Dignity, and Islam, 183. For a notable recent contribution
that does engage the Islamic intellectual tradition, see Ramon Harvey, The Qur’an and the Just
Society (Edinburgh: Edinburgh University Press, 2018).
248 Oh, Islamic Conceptions of Human Rights, 261.
64
rights.249 In doing so, modern human rights are critically evaluated and not taken at
face value. In doing so, the community of Islamic intellectuals and theologians – rather
than a simplistic black-and-white bifurcation of rejection or acceptance – tend to
occupy a large margin of grey area between a continuum of either more progressive or
more conservative inclinations.
Based on these considerations, we might opt for a third approach. This approach we
might call the Discursive Perspective.250 It seeks to go beyond mere reductionist
presentism and defensive triumphalism and argues that it might be more productive to
treat the Islamic legal tradition as a lived discursive tradition, which takes into
consideration both its historical context and its internal diversity, continuity,
dynamism and potential for change. The legal tradition of Islam is characterized by
scholarly debates, both between contemporaries and between the historical generations
of scholars and jurists.251 It is characterized by legal plurality and debate about the
sound understanding and proper application of sources texts, within the hermeneutical
framework of Islamic law and legal theory.252 The Discursive Perspective thus
approaches the debate on Islam and human rights from the principle of openness.253
That is, it tries to avoid the two extremes of reducing Islamic law and human rights to
inherent conflict and incompatibility on the one side, and pure religious apologetics
on the other side. It treads the Islamic legal tradition as a lived tradition that is based
on hermeneutical openness and that approached the world from a perspective of
hermeneutical flexibility, that is provided by and imbedded in the interpretive
principles of Islamic legal and intellectual culture, and that’s strives towards social
stability, coexistence and basic rights for all human beings.254
249 These we have extensively discussed in chapter one of this thesis.
250 The idea of Islam as a discursive tradition stems from the work of Talal Asad, “The Idea of an
Anthropology of Islam”, Qui Parle 17, No. 2 (2009): 1-30.
251 Oh, 263.
252 Peters, 2013, 94.
253 For the idea of openness as an “open science”, see Recep Şentürk, “Toward an Open Science and
Society: Multiplex Relations in Language, Religion and Society – Revisiting Ottoman Culture”, İslâm
Araştırmaları Dergisi 6 (2001): 93-129.
254 Javaid Rehman, “Conflicting Values or Misplaced Interpretations? Examining the Inevitability of a
Clash between ‘Religions’ and ‘Human Rights’”, Does God Believe in Human Rights?, eds. Nazila
Ghanea, Alan Stephens, and Raphael Walden (Leiden and Boston: Martinus Nijhof, 2007), 83.
65
2.5. Conclusion
In this chapter, we have discussed three main perspectives on Islam and human rights
research. These approaches may be summarized as follows:
Main perspectives in Islamic human rights research
Perspective: Characteristics: Relation to Tradition:
Conflictual Presentist, Orientalist Discontinuous
Apologetic Reactionary, anachronistic Discontinuous
Discursive Traditionalist, revivalist Continuous
Figure 2: Main perspectives in Islamic human rights research
The Conflictual Perspective argues that Islam is inherently opposite to modern human
rights. It tends to focus on the so-called “narrative of conflict”. This approach is
presentist in nature, as it judges a premodern legal tradition according to modern
understandings of international human rights instruments. Thereby, it refuses to
understand Islamic law in its historical complexity and treats it as a monolithic and
static legal tradition. Apologetic Perspective, on the other hand, is defensive in nature
and argues that human rights have always existed in Islam, even before they emerged
in Western modernity. It lambasts the supposed Eurocentrism and imperialism of the
modern human rights project and exhibits a rather crude from of simplistic
triumphalism. Arguably, both approaches are unhelpful to genuinely shed light on the
question of how the Islamic law and modern interpretations of human rights might be
compared. Both approaches seem to lack a thorough engagement with classical Islamic
legal tradition on its own terms, taking into consideration both its historical context
and its internal diversity and complexity.
This thesis adopts a Discursive Perspective and seeks to go beyond the reductionism
and presentism of the Conflictual Perspective and the defensive triumphalism of the
Apologetic Perspective. It argues that it might be more productive to treat the Islamic
legal tradition as a lived discursive tradition, which takes into consideration both its
66
historical context and its internal diversity, continuity, dynamism and potential for
change. As such, it is guided by the principle of openness.
67
CHAPTER III
FROM LEX NATURALIS TO IUS NATURALE: RIGHTS
DISCOURSES IN THE WESTERN LEGAL TRADITION
“At the root of the disagreement over the language of rights is a question of moral
ontology.”
Oliver O’Donovan255
“Ius is a moral quality of a person, enabling him to have or do something justly.”
Hugo Grotius256
If we are to retrace the historical roots of the modern concept of rights and we want to
be able to identify rights discourses in premodernity, we need to have a sound
understanding what the concept of rights entails. What are rights according to different
legal thinkers, both historical and contemporary? The first section of this chapter
(Section 3.1.) delves into the concept of rights from the perspective of modern legal
studies. In this section we deal with the conceptual ambiguity of the legal concept of
rights, the Hohfeldian analytical framework of rights and its jural relations, and the
question of moral rights versus legal rights.
The second section of this chapter (Section 3.2.) gives an overview of various – often
contested – historical accounts of rights discourses in the pre-modern west. Making
use of methodological insights of conceptual history (Begriffsgeschichte), we compare
and contrast the different histories of rights discourses and evaluate the arguments
presented by some of the main authors in the field of the history of rights. This section
deals with the Greco-Roman heritage, medieval natural law, early modern natural
rights theory, and the Enlightenment age of rights declarations. In the final section
255 Oliver O’Donovan, “The Language of Rights and Conceptual History”, Journal of Religious Ethics
37, No. 2 (2009): 202.
256 Translated from Latin in Brian Tierney, The Idea of Natural Rights: Studies on Natural Rights,
Natural Law and Church Law 1150-1625 (Atlanta, Georgia: Scholars Press, 1997), 325.
68
(Section 3.3.) we offer our conclusions related to the concerns that are germane to this
thesis.
3.1. Coming to Terms with Rights: Modern Legal Perspectives
Before we attempt to elaborate on a conceptual history of rights in the Western and
Islamic legal traditions, we would do well to define what we mean by “rights” today.
Here, we are not so much concerned with the historical trajectories of rights discourses
and their semantical shifts throughout various historical epochs in corresponding
juridical literatures. Rather, we want to present an overview of the normative
definitions of rights as one would encounter them in the dominant scholarly literatures
of modern academic legal studies on the topic. This, we do with the aim of
“embedding” our conceptual histories of premodern rights in modern normative
understandings of rights, while also informing our historical inquiries into premodern
rights discourses in the subsequent chapters of this thesis.
3.1.1. Conceptual Clarity: Taking Rights Language Seriously
Rights language is deeply imbued with conceptual ambiguity. One of the reasons the
debate is so obscured is because several terms are used to convey the idea of rights.
Terms like “natural law”, “natural rights”, and “human rights” are often used
interchangeably in legal-historical and modern legal scholarship.257 And while these
terms might – or might not – be conceptually related, they are certainly not the same.
This uncritical conflation of terms might be the reason why some historians of rights
have pointed out that “the language of rights is difficult to use straightforwardly”.258
There is, as historian David Boucher mentions, a “lack of clarity about what separates,
and what unites, the natural law, natural rights, and human rights idioms”.259
257 See for example Brian Tierney, “Dominion of Self and Natural Rights Before Locke and After”, in
Transformations in Medieval and Early-Modern Rights Discourse, eds. Vipri Mäkinen and Petter
Korkman (Dordrecht: Springer, 2006), 173; And Jean Porter, “From Natural Law to Human Rights:
Or, Why Rights Talk Matters”, Journal of Law and Religion 14, no. 1 (1999-2000), 77. Porter
explicitly mentions “Throughout this paper, I treat the terms ‘human’ and ‘natural’ rights as
synonyms”, which is highly problematic as we shall see throughout this chapter.
258 Richard Tuck, Natural Rights Theories: Their Origin and Development (Cambridge: Cambridge
University Press, 1979), 1.
259 David Boucher, The Limits of Ethics in International Relations: Natural Law, Natural Rights, and
Human Rights in Transition (New York: Oxford University Press, 2009), 3.
69
The difficulties of rights language have not only been noted in legal history. Modern
legal scholarship has similarly lamented its abstruseness. In his legal tractate
Preliminary Treatise on Evidence (1898) the American legal theorist and scholar of
the common law, James Bradley Thayer (d. 1902) already complained of the
increasing complexity of modern legal language, and hence the increasing need to
clarify legal terminology and better discriminate between legal concepts that are often
all-too-easily conflated with one another.
In his treatise, Thayer stresses that how language is phrased is extremely important, as
legal culture develops and progresses into the future. Human societies are becoming
increasingly complex, and people are confronted with an ever-growing diversity of
issues and happenings in their lives. Hence, we need to be able to discriminate and
distinguish in our legal language, in order to accommodate these new developments.
Legal language, so to say, must constantly catch up to modern realities and
developments. In that manner, law and legal language is not that much different,
Thayer, argues, from other fields of knowledge and human intellectual inquiry, in that
conceptual clarity will help us understand these new realities better. In addition,
uncareful use of legal language might have damaging and detrimental effects on the
lives of people. Hence, we would do well to take “phraseology”, as he names it,
seriously.260
In the spirit of Thayer, contemporary legal scholarship stresses the pivotal role of legal
concepts in understanding and analyzing the law. The German legal philosopher
Dietmar vor der Pfordten, for example, notes that “conceptual analysis is crucial for
legal reasoning”. He also points out that an extensive inquiry into the formation and
interpretation of legal concepts “as they appear in their natural legal environment” is
necessary for a complete and sound understanding of their role in a given legal
system.261 This is why conceptual clarity is of the upmost importance when
260 Cited in Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applies in Judicial
Reasoning and Other Legal Essays (New Haven: Yale University Press, 1919), 35, fn. 25.
261 See Jaap C. Hage and Dietmar vor der Pfordten (eds.), Concepts in Law (Dordrecht: Springer,
2009), xi and 18-19.
70
investigating legal terminology, especially when it concerns a multilayered, malleable,
and ambiguous concept such as “rights”.262
In modern legal scholarship rights are commonly defined as “entitlements” or
“claims”. More precisely, it refers to the idea that individuals or groups of individuals
possess certain entitlements that in turn obligates others to both acknowledge and
respect those entitlements.263 Rights thus understood are the prerogative of a person or
group of persons – or other persons or groups of persons – to either perform or not
perform certain actions, or to be or not to be in certain states.264 One way of thinking
about rights – common mostly in legal philosophy – is along the lines of analytical or
normative aspects of rights. Normative aspects of rights have to do with the proper
content and distribution of rights, whereas analytical aspects of rights pertain to the
fundamental characteristics of rights and its jural relations with correlative concepts,
such as duties, privileges, powers and immunities.265 Normative aspects of rights are
further divided into substantive concerns and procedural concerns. Substantive
concerns focus on questions regarding the contents of rights, while procedural
concerns focus on questions regarding the determination of rights. That is, the question
of who decides to whom rights are allotted (i.e., who is encapsulated within the scope
of certain rights).266
3.1.2. Rights and Jural Relations: The Hohfeldian Framework
In the field of modern legal philosophy (especially in analytical jurisprudence) the
foundational work of the American jurist Wesley N. Hohfeld (d. 1918) has played a
major role. In his collection of legal essays, Fundamental Legal Conceptions as
Applies in Judicial Reasoning, Hohfeld developed a scheme for analyzing the jural
relations of rights. While Hohfeld’s typology of rights is most frequently used in
modern legal studies, it has also been fruitfully applied in legal history. Historian of
262 For an overview of modern usages, see George W. Rainbolt, The Concept of Rights. (Dordrecht:
Springer, 2006).
263 Peter Jones, Rights (Hampshire and London: The Macmillan Press, 1994), 1.
264 Leif Wenar (2021), “Rights”, in The Stanford Encyclopedia of Philosophy, ed. Edward N. Zalta
(2021) (https://plato.stanford.edu/archives/spr2021/entries/rights/, accessed June 14, 2022).
265 Matthew H. Kramer, “Rights in Legal and Political Philosophy”, in The Oxford Handbook of Law
and Politics, eds. Keith E. Whittington, R. Daniel Kelemen, and Gregory A. Caldeira (New York:
Oxford University Press, 2008), 414.
266 Kramer, Rights in Legal and Political Philosophy, 421-427.
71
medieval law Charles Reid, for example, eloquently applied Hohfeldian analytical
vocabulary to the medieval European canon law tradition.267
The problem at the root of the ambiguity of rights, says Hohfeld, lies in a certain
reductionism in which only certain types of jural relations are taken into consideration
at the expense of others. In his important work, Hohfeld decries reductionism and
simplification in the legal language surrounding right. Rights, he argues, consist of all
kinds of jural relations, and should not be merely reduced to rights and duties. This
would be an obstacle to conceptual clarity and transparent thinking about the law and
legal matters. The simplified reduction of the right-duty binary is inadequate to address
the complexities of legal relations and interests involving rights. It simply does not
help us, because words then remain vague and ambiguous. In that sense, Hohfeld
thinks, words such as “rights” can be “chameleon-hued”, in the sense that they can
have different meanings in different context, if we do not elaborate on its definitions
and various aspects that make up the whole.268
The originality of Hohfeld’s rights scheme lies in the realization that rights consist not
of one but a variety of jural relations.269 Hohfeld aims to be exhaustive in elaborating
the various jural relations that come into play when dealing with such claims between
people. The term “rights”, he argues, is indiscriminately applied to cover not only
claim-rights (or rights proper), but privileges, powers, and immunities as well.270 For
Hohfeld, rights in a narrow sense, are rights that correlate with duties. For example,
when X has a right against Y to not have his property violated, then Y has the
corresponding duty not to violate X’s property. A proper synonym for the term “right”,
he argues, would be a “claim”.271 Thus, someone has a “right” or “claim” over
someone else, and that person conversely has duties towards the rights-holder or
claimant. To specify these kinds of rights – i.e., claims that entail duties – they are also
sometimes called “claim-rights”.
267 see Charles J. Reid Jr., “The Canonistic Contribution to the Western Rights Tradition: An
Historical Inquiry”, Boston College Law Review 33, no. 37 (1991): 37-92.
268 Hohfeld, Fundamental Rights Conceptions, 35.
269 Duncan Ivison, Rights (Stocksfield: Acuman, 2008), 12.
270 Hohfeld, Fundamental Rights Conceptions, 36.
271 Hohfeld, Fundamental Rights Conceptions, 38.
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In order to further disambiguate the various usages of the term “rights”, Hohfeld
developed a rights typology that includes eight fundamental jural conceptions. Four of
these are a comprehensive general classification of legal rights in a generic sense.
These are claim-rights, privileges, powers, and immunities. The other four jural
conceptions are their respective correlatives classified in four legal burdens, namely
duties, “no-rights”, liabilities and disabilities. Some of these terms were neologisms
coined by Hohfeld himself, such as “no-rights”, which basically refers to the “absence
of duties”. Rights are the affirmative claims persons can have over other people, which
corresponds to the legal burden of a duty. Privileges, on the other hand, do not have
corresponding duties. Hence, their correlatives are no-rights or the “absence of
duties”.272 In the same vein as the example above, whereas X has the right that Y does
not violate his property, X has the privilege to freely use his own property. Privileges
are otherwise also called “permissions” or “liberties” in modern legal language.273 In
the narrow sense of the meaning, according to the Hohfeldian rights scheme, a right
without a corresponding duty is not a right proper, but a liberty.
Power refers to the legal ability (or “volitional control”) of a person to alter the legal
relations of other persons or of the person’s own legal relations. For example, in the
case when X extinguishes his own legal interests (also known as “abandonment”) and
then transfers his legal interests to Y, such as in the transfer of the ownership of
property. Or when X uses his legal power to create contractual obligations in others.
A person whose legal relations are altered due to the exercise of someone else’s legal
power, on the other hand, is under liability.274 Immunity refers to a person that is not
subject to the power of another person to alter the legal relations of that person who
has a right to something. In other words, when a person has immunity, that person’s
legal relations cannot be changed by the acts of any other person. Disability, lastly,
refers to those persons who cannot change the legal relations of other persons (i.e.,
they are under a disability).275
The Hohfeldian Rights Framework
272 Hohfeld, Fundamental Rights Conceptions, 35-50
273 Ivison, Rights, 11.
274 Hohfeld, Fundamental Rights Conceptions, 50-60.
275 Hohfeld, Fundamental Rights Conceptions, 60-64.
73
Jural
Opposites
Right Privilege Power Immunity
No-right Duty Disability Liability
Jural
Correlatives
Right Privilege Power Immunity
Duty No-right Liability Disability
Figure 3: Chart of the Hohfeldian Rights Framework (source: Hohfeld, Fundamental Rights Conceptions, 36).
In the Hohfeldian rights scheme, thus, powers stand in contrast to immunities in very
much the same way as rights stand in contrast to privileges. A right is one’s affirmative
claim against another, while a privilege is one’s freedom from the right or claim of
another. Similarly, a power is one’s affirmative control over the legal relationship of
another, while immunity is one’s freedom from the control (i.e., legal power) of
another with regards to one’s legal relations.276
In most instances, rights involve a “bundle of Hohfeldian elements”.277 For example,
regarding owning some kind of property (a house, a bicycle, or a book). If X owns a
certain type of property, he has the right not to be interfered by others in his possession
of the property. But X also has the privilege to use and enjoy his property in whichever
way he sees fit. He also has the power to temporarily rent his property out, to sell it,
or to give it away. At the same time, X has certain immunities against others with
regards to altering any of the legal relations he is involved in.
3.1.3. The Question of Enforceability: Moral Rights versus Legal Rights
Hohfeld’s rights scheme is based on a conception of rights as legal rights, although
some have argued his typology of rights can be equally applied to moral rights.278 The
distinction between the “moral” and “legal” dimensions of the law seems to be a
distinct development particular to Western legal history. This is in contradistinction to
the Islamic legal tradition, in which the Sharīʿa framework entertains no such
276 Hohfeld, Fundamental Rights Conceptions, 60.
277 Ivison, Rights, 12.
278 See Peter Jones, Rights (Hampshire and London: The Macmillan Press, 1994), 47-49; William A.
Edmundson, An Introduction to Rights (New York: Cambridge University Press, 2012, second
edition), 76-82.
74
dichotomy between the moral and the legal.279 The dichotomy is also distinctly modern
and did not exist in pre-Enlightenment Europe.280 It was only in the twentieth century,
that legal philosophers of the school of legal positivism have sought to make a strict
distinction between the “moral” and the “legal” dimensions of the law.
The critique on rights as moral rights extents back to Jeremy Bentham (d. 1832). In
his treatise on utilitarian philosophy and jurisprudence, Bentham laments the
“emptiness” of moral claims. What poses for “morality”, he argues, is more often
simply an expression of human appetites and passions, based in crude feelings such as
desire, egoism, viciousness and greed. In the end, they are flawed and unimportant.281
This critique on the morality of the law was extended by John Austin (d. 1859) and
reached its fullest expression, perhaps, in the works of the contemporary legal
positivist philosopher H. L. A. Hart (d. 1992).282 Austin was still very much connected
to earlier debates on the usefulness of moral theories embedded in the natural rights
tradition of theorists like Grotius and Pufendorf. These were writers of the so-called
“law of nations” genre of juridical literature, whom Bentham accused of a “confusion
of ideas” by mixing “positive international morality” (i.e., the law of nations) with
their own “vague conceptions of international morality as it ought to be” (i.e., the law
of nature).283 Hart similarly maintained that no necessary relation existed between
morality and the law.284
279 Wael B. Hallaq, “Groundwork of the Moral Law: A New Look at the Qurʿān and the Genesis of
Sharīʿa”, Islamic Law and Society 16 (2009): 239-279.
280 Hallaq, Groundwork of the Moral Law, 257.
281 Jeremy Bentham, An Introduction to the Principles of Morals and Legislation (Batoche Books,
2000, originally published in 1789), 95. (Emphasis by the author.)
282 John Austin, The Province of Jurisprudence Determined, ed. Wilfrid E. Rumble (New York:
Cambridge University Press, 1995, originally published 1832);
283 Austin, , The Province of Jurisprudence Determined, 160. At this point, it must be mentioned that
despite Austin’s strict separation between law and morality, he did in fact not deny that the content of
legal rules is not informed by morality. See Isabel Turégano Mansilla, “Reconstructing Austin’s
Intuitions: Positive Morality and Law”, The Legacy of John Austin’s Jurisprudence, eds. M. Freeman
and P. Mindus (Dordrecht: Springer, 2013), 299.
284 For a succinct elaboration of his theory, see H. L. A. Hart, “Positivism and the Separation of Law
and Morals”, in Essays in Jurisprudence and Philosophy, H. L. A. Hart (Oxford: Clarendon Press:
1983), 49-87.
75
Apart from the school of legal positivism, however, the vast majority of metaethical
theories that inform legal studies agree that moral rights do indeed exist.285 Our ideas
and beliefs about rights are shaped, at least in part, by the arguments of our moral
convictions.286 On this understanding, the distinction between the moral and legal
aspects of the law is artificial. In fact, Hart’s later student and successor, the legal and
political philosopher Joseph Raz, would come to accept that morality can be part of
the law. In his work he defends what he calls a “moderate” version of legal positivism
that endorses a “necessary connection between law and popular morality” (also called
“social morality”).287 Many contemporary legal scholars have come to hold the
position that it is a mistake to think of rights as primarily a “moral” or “legal concept”,
while in fact they are both.288 There has also been a resurgence in modern natural law
scholarship – despite its severe critiques in early modernity by the likes of Hume,
Bentham, and Kant – that argues for the intimate relationship between morality and
the law. A case in point is the work of John Finnis, who argues that modern human
rights should be grounded in moral precepts of the natural law.289
Some scholars assume that moral and legal rights are essentially the same.290 This
seems to be an oversimplification. A better way to thinks about it, perhaps, is that
moral and legal rights might – or might not – have the same subject, object, and content
(such as that a person has the legal and moral right to receive what they have paid for).
In this understanding, moral rights are implied by a moral rule system, while legal
rights are implied by a legal rule system.291 Another way of thinking about moral and
legal rights is genealogical in nature. This is the understanding that underneath the
very idea of legal rights lies a moral framework. In some sense, legal rights are ‘moral
285 Rainbolt, The Concept of Rights, 80. Some have even claimed that legal positivism – like logical
positivism – is effectively dead. For example, see Maurice Cranston, “Are There Any Human
Rights?”, Daedalus 112, No. 4 (1983): 6.
286 Ivison, Rights, 6.
287 Joseph Raz, The Authority of Law: Essays on Law and Morality (Oxford: Oxford University Press,
1979), 39 and 45.
288 Ivison, Rights, 1.
289 John Finnis, “Grounding Human Rights in Natural Law”, The American Journal of Jurisprudence
60, No. 2 (2015): 199-225. For an overview of recent scholarship, see George Duke and Robert P.
George (eds.), The Cambridge Companion to Natural Law and Jurisprudence (Cambridge:
Cambridge University Press, 2017).
290 See for example David Lyons, “The Correlativity of Rights and Duties”, Noûs 4, no. 1 (1970): 45,
fn. 3.
291 Rainbolt, The Concept of Rights, 77-78.
76
rights that find expression in legal form.292 As with positive legal rights, moral rights
can be subdivided into different categories, such as moral rights pertaining to a single
person, a specific group or people, or the moral rights of all human beings in all
situations.293 The latter group of moral rights seems to correspond well to our modern
conception of human rights.
The idea of moral rights remains of primal importance because it serves the double
role of establishing the function of government, which has the responsibility to protect
its citizen’s rights, and at the same time to limit the authority of the government when
it transgresses its citizen’s rights. Both functions need moral rights formulated
independently of governments because they ultimately decide how a government
should act in a particular situation. They must be moral rights because legal rights
spring forth from governments themselves. These legal rights, then, may be recognized
and enforced by the law but they ultimately have a “non-legal foundation”.294 Thus
natural moral rights – rights tout court – are transferred into a particular legal system
as “positive legal rights”, i.e., the rights that are enjoyed by citizens living under a
certain constitution or jurisdiction that are upheld by its courts.295 Rights as such – visà-
vis other types of moral claims – are sometimes described as aspiring to “institutional
embodiment” and “enforceability”.296 That being said, not all moral rights necessarily
ought to be legal rights. There are many examples of moral rights that arguably cannot
– should not – per se be legislated by law, such as that parents have a “moral right” to
be obeyed by their children or that the elderly have the “moral right” to be taken care
of in their old days.
Modern human rights are considered by many scholars as universal moral rights. Legal
philosopher John Finnis, for example, argues that human rights are “fundamental and
general moral rights”.297 Johannes Morsink, the primary historian of the United
Declaration of Human Rights, similarly refers to modern human rights as “more or
292 Ivison, Rights, 30.
293 Cranston, Are There Any Human Rights?, 10-11.
294 Jones, Rights, 45.
295 Cranston, Are There Any Human Rights?, 10-11.
296 Ivison, Rights, 7.
297 John Finnis, Natural Law and Natural Rights (New York: Oxford University Press, 2011), 198. It
should be noted here that Finnis uses the terms “natural rights” and “human rights” synonymously.
The “modern grammar of rights”, he argues, is simply a “contemporary idiom” for natural rights. The
problematics of the uncritical conflation of these terms is addressed in Section 3.2. of this thesis.
77
less abstract moral rights and principles”.298 But not all moral rights are human rights.
A distinction is to be made between human rights – as universal moral claims – by the
mere virtue of being a human being, and special moral rights that pertain to only some
human beings by virtue of particular properties, offices, or relations to other people
they have (such as the rights for children, the elderly, criminal defendants, or
citizens).299
3.2. A Conceptual History of Rights in the Western Legal Tradition
Various historical accounts have been given for our modern notions of human rights.
The genealogy of human rights remains highly contested. Some scholars argue that
premodern rights discourses started to develop in the medieval Christian natural law
tradition of Thomas Aquinas (d. 1274) and his contemporaries.300 Most commonly
though, the history of rights discourses as mature theories of rights is situated in the
early modern natural rights tradition that extends from Hugo Grotius (d. 1645) to John
Locke (d. 1704).301 In the eighteenth century, the theory of rights would find a new
form of expression in the idea of the “rights of man”. In this “age of rights
declarations” rights theories would be infused with Enlightenment ideas of human
dignity and inherent worth, such as in the works of Immanuel Kant (d. 1804).302 All
of these various rights discourses entail different “incarnations” of the idea of rights
and their histories relate to each other in complex ways.303 These historical accounts
have in common that the idea of modern human rights stems from Western civilization.
They argue that certain values and ideas in the Western weltanschauung somehow
uniquely prepared the world the emergence of the human rights regime in the West.
As such, they are Eurocentric in nature. The histories presented here should be
298 Johannes Morsink, The Universal Declaration of Human Rights: Origins, Drafting, and Intent
(Philadelphia: University of Pennsylvania Press, 1999), xi.
299 Joel Feinberg, “In Defense of Moral Rights”, Oxford Journal of Legal Studies 12, No. 2 (1992):
154.
300 See C. Fred Alford, Narrative, Nature, and the Natural Law: From Aquinas to International
Human Rights (New York: Palgrave Macmillan, 2010).
301 Knud Haakonssen, “Early Modern Natural Law Theories”, in The Cambridge Companion to
Natural Law and Jurisprudence, eds. George Duke and Robert P. George (New York: Cambridge
University Press, 2017), 76-102.
302 Lynn Hunt, Inventing Human Rights: A History (New York and London: W. W. Norton &
Company, 2007).
303 See the methodological reflections in the introduction of this thesis.
78
understood in light of our discussions on legal Orientalism and the realization that all
human cultures and societies have some expression of human rights.
3.2.1. Rediscovering the Greco-Roman Heritage: The Emergence of Medieval
Canon Law
Some legal historians, such as the late John M. Kelly (d. 1991), trace the Western legal
tradition back to the legal cultures of ancient Greece and Rome. In his view, the Greco-
Roman tradition belongs to a “more or less continuous European tradition” that
extends back from Aristotle to the medieval canon and civil law traditions of
Europe.304 However, to claim that the Aristotelian tradition is exclusively part of a
continuous Western legal tradition is historically problematic. Rather, the Greco-
Roman heritage – and its Aristotelianism – is a shared intellectual tradition, as it was
also inherited, criticized, developed, and eventually absorbed into Islamic
civilization.305 In addition, it was not until the twelfth century that medieval canon law
jurist “rediscovered” the Greco-Roman tradition. Often, this happened through Latin-
Arabic translations and commentaries written by Muslim scholars.306 Surely, the
Western legal tradition was influenced by both Judeo-Christian (i.e., Mosaic and
Christian Old Testament law) and Greco-Roman legal elements, but to claim a
continuous Western legal tradition that extents back to Greek Antiquity seems to be
an instance of “inventing Europe”.307
In fact, we can only really speak of a unified and distinct Western legal tradition from
the twelfth century onwards, which is where our inventory into Western rights
304 John M. Kelly, A Short History of Western Legal Theory (Oxford: Clarendon Press, 1992), 1.
305 Dimitri Gutas, Greek Thought, Arabic Culture: The Graeco-Arabic Translation Movement in
Baghdad and Early ʿAbbāsid Society (2nd-4th/8th-10th Centuries) (London and New York: Routledge,
1998).
306 See Charles Burnett, “Arabic into Latin: The Reception of Arabic Philosophy into Western
Europe”, in The Cambridge Companion to Arabic Philosophy, eds. Peter Adamson and Richard C.
Taylor (Cambridge: Cambridge University Press, 2005), 370-404.
307 The “invention of Europe” is a recurring theme in the self-consciousness and social imaginary of
the West. It entails a continual process of invention and reinvented of the European self-image and
imagination with every generation. It stems from a discourse that is engrained in what Gerard Delanty
calls “the West-East dualism and the corresponding counter-factualism of an ‘us’/‘them’ polarity”.
This line of reasoning contributes to the “us” and “them” binary that Otherizes Islam as the cultural
and intellectual other. Hence the need — at least from a legal comparative perspective — for a more
historically grounded approach to the Western legal tradition. See Gerard Delanty, Inventing Europe:
Idea, Identity, Reality (Hampshire and London: Macmillan Press, 1995).
79
discourses begins. As Harold Berman mentions in his seminal history of the Western
legal tradition, there was no unified legal culture to speak of before the twelfth century
in Europe. From the vantagepoint of a late medieval European legal scholar, the socalled
Germanic “folk law” (Volksrecht) must have appeared rather bleak. Berman
mentions:
In 1000 there was no professional legal scholarship. There was no class of
trained lawyers to act as judges, advocates, or advisers in ecclesiastical, royal,
city, manorial, mercantile, or other courts. There was no concept of law as a
body of principles, a corpus juris, in which diverse and contradictory customs
and laws were reconciled. There were no textbooks on law and no professors
to gloss them. There was no concept of law as an object of study distinct from
theology and philosophy; indeed, theology and philosophy were themselves
not yet conceived as distinct scholarly disciplines.308
Prior to twelfth century, Europe was ruled by highly localized traditions of Germanic
law. This was the so-called leges barbarorum or “laws of the barbarians” as later
European jurists – quite condescendingly – would come to call it (as opposed to leges
Romanae or the “Roman law”).309 The designation of Germanic legal culture as
“barbaric” was arguably part – as Norbert Elias would have it – of Europe’s own
imagined civilizing process.310
Europe before the twelfth century was a scarcely populated agricultural society and
legal traditions were mostly customary and local, inspired by elements of European
tribal and feudal culture. The rights discourse – if any – was not encapsulated in the
law or written down in juridical texts.311 They were an expression of local customs and
community values and not an expression of universal moral principles. Interestingly,
the coming of Christianity had almost no effect on the Germanic legal system. This is
308 Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition
(Cambridge, Massachusetts and London: Harvard University Press, 1983), 76.
309 Berman I, 53. This condescending narrative of Germanic legal culture is perpetuated in modern
scholarship. See for example Randall Lesaffer, European Legal History: A Cultural and Political
Perspective, trans. Jan Arriens (New York: Cambridge University Press, 2009). At page 123, Lesaffer
says: “Culturally speaking, the Germanic conquerors of the Roman Empire lagged behind the
Romans. They proved incapable of maintaining Roman civilisation or of replacing it with anything
worthy of the name. Europe entered an age of decline and disruption: the Dark Middle Ages”.
310 Norbert Elias, The Civilizing Process: Sociogenetic and Psychogenetic Investigations, trans.
Edmund Jephcott (Malden, MA and Oxford: Blackwell Publishing, 1994), 51-52.
311 Berman , Law and Revolution, 77.
80
in contradistinction to the coming of Islam to the Arabian Peninsula, which would
have major implications on the legal culture of that region.312 Christianity appealed to
the Germanic peoples, among other reasons, because it brought a new sense of
community that transcended Germanic tribalism. Indeed, Christianity changed the
worldview of Germanic tribes, but it was not particularly interested in reforming social
institutions such as the law. Germanic customs and traditions in a legal sense were
mostly perpetuated.313
It is only in the late eleventh century and early twelfth century – during what Berman
calls the “Papal Revolution” – that a unified and distinct Western legal tradition started
to take shape. This happened with the eventual papal supremacy over the entire
Western Church and its subsequent independence over secular European powers. This
instigated the development of professional courts, a body of legislation, legal
professions, legal literature and – most importantly perhaps – a new so-called “science
of the law”.314 That is, a separate scholarly discipline that systematically studied and
developed the law. An important part of the formation of the twelfth-century Western
legal tradition was the rediscovery of Roman law in the eleventh and twelfth
centuries.315 Especially those medieval jurists involved in the creation of the new
“science of the law” took an interest in reading and studying the Roman jurists of old,
such as the compendium of Roman juridical writings called the Digest.316 After the
fall of the Roman Empire in the fifth century, Roman law had all but disappeared in
northern and western Europe, except for a crude form of “vulgar Roman law” in a few
places in Spain, northern Italy and southern France.317 The rediscovery of Roman
juridical writings would be the intellectual impetus for the emergence of a distinctly
European legal tradition which came to be known as the ius commune, i.e., the civil
and canon law.318 Some rights historians have argued that it was among the medieval
312 See chapter four of this thesis.
313 Berman, Law and Revolution, 63-64.
314 Berman, Law and Revolution, 50.
315 Cary J. Nederman, “Rights”, The Oxford Handbook of Medieval Philosophy, ed. John Marenbon
(New York: Oxford University Press, 2012), 644.
316 Alan Watson (trans.), The Digest of Justinian, 4 Vols. (Philadelphia: University of Pennsylvania
Press, 1985).
317 Berman, Law and Revolution, 53.
318 Nederman, Rights, 644.
81
legal scholars that contributed to the new science of the law, that the first rights theories
– albeit in a rudimentary form – were developed. 319
3.2.2. The Medieval Natural Law Tradition: Ius and Dominium
Alasdair MacIntyre had claimed in the languages of the Middle Ages there is no
expressions to be found that resembles our modern notion of rights. That is, at least
until the fifteenth century. Not in any of the major languages of the world civilizations
of the time, be it Latin, Greek, Hebrew or even Arabic.320 MacIntyre seems mistaken
in his overgeneralizing claim. It has in fact been argued that claims to rights are
transhistorical and that they find expressions in all societies and cultures of the
world.321 Islamic civilization, arguably, had a discourse on rights (ḥuqūq) from its
inception in the seventh century, and in a more formalized form in the legal works of
early Muslim jurists, such as Abū Zayd al-Dābūsī (d. 1039).322 There seems to be some
truth to MacIntyre’s statement, however, if we specify his claim for the pre-medieval
Greco-Roman legal tradition. For example, Richard Tuck, following the work of the
French legal historian Michel Villey (d. 1988), mentions that the Roman jurists did
used the term ius (pl. iura), which would become associated with the meaning of
“right” or “rights” in the later European middle ages.323 But Roman legal scholars used
it in the more general sense of “what is always fair or good” (ius naturale) or “what is
best for all or most in a particular society” (ius civile).324 Similarly, one can come
across pre-medieval usages of the plural form of iura, such as in Psalm 119 of the Old
319 Richard Tuck, Natural Rights Theories: Their Origin and Development (Cambridge: Cambridge
University Press, 1979), 13; Oliver O’Donovan, “The Language of rights and Conceptual History”,
Journal of Religious Ethics 37, No. 2 (2009): 193.
320 Alasdair MacIntyre, After Virtue (Notre Dame, Indiana: University of Notre Dame Press, 2007,
third edition), 69.
321 See Michael Freeman, “The Philosophical Foundations of Human Rights”, Human Rights
Quarterly 16, No. 3 (1994): 507.
322 Abū Zayd al-Dabūsī, Taqwīm al-adilla fī uṣūl al-fiqh, ed. Khalīl Muḥyī al-Dīn al-Mays (Beirut:
Dār al-Kutub al-ʿIlmiyya, 2001), 417. See Chapter IV of this thesis for an elaborate discussion on
rights discourses in the Islamic legal tradition.
323 Michel Villey would publish extensively on the medieval origins of Western rights discourses
throughout the second part of the twentieth century. His works, all written in French, was an impetus
for English scholarship on the topic. See for example, Michel Villey and Michel Villet, “L'idée du
droit subjectif et les systèmes juridiques romains”, Revue historique de droit français et étranger 24
(1946-1947): 201-228.
324 Tuck, Natural Rights Theories, 8.
82
Testament, which talks about loving the “statutes” of God.325 However, these usages
actually did not refer to rights in their proper contemporary meaning (as in Hohfeldian
“claim-rights”). The so-called “statutes” (iura) of God are taught to people and
venerated by them, but they are not necessarily “possessed” by individual persons as
claim-rights would be, which led some to conclude that the ancients did not have a
separate language of rights.326
For a long time, it has been argued that the idea of natural rights was a modern
invention that was instigated by early modern natural rights theorists, particularly of
John Locke in the seventeenth century. Various arguments have now been made that
the idea of subjective natural rights is to be found – in a more or less developed sense
– in medieval juridical thought.327 The existence of rights discourses in medieval
European juridical literature indeed seems abundant. But which type of rights were
elaborated upon by medieval jurists – legal rights, natural rights, or human rights – is
much more contested.328 The existence of a juridical discourse on legal rights seems
rather straightforward, as there is ample textual evidence to be found.329 Many
discussions on rights seem to revolve around the issues of property and ownership
(dominium). The discussion was taken up by medieval Christian jurists and scholars
with regards to the issue of Church-owned property and the partaking – or not – of
religious clerics in property rights and ownership. This question even extended to the
pope, who as the highest authority of the unified Roman Catholic Church could have
some claim on church-property, albeit that his claim – if he indeed had one at all – was
also disputed by some medieval Christian scholars. The discussion also extended –
and this is perhaps much more relevant to our discussion on rights as natural or human
325 The NRSV translated iura not as “statutes” but as “decrees”: “All the wicked of the earth you
count as dross; therefore I love your decrees.”, Michael D. Coogan (ed.), The New Oxford Annotated
Bible: New Revised Standard Version (New York: Oxford University Press, 2010), 874.
326 O’Donovan, The Language of Rights and Conceptual History, 198.
327 The strongest case is perhaps that of Brian Tierney, The Idea of Natural Rights: Studies on Natural
Rights, Natural Law and Church Law 1150-1625 (Atlanta, Georgia: Scholars Press, 1997). Also see,
Annabel S. Brett, Liberty, Right and Nature: Individual Rights in Later Scholastic Thought
(Cambridge: Cambridge University Press, 1997). For a critical view of the position of Tierney and
Brett, see Jack Donnelly, Universal Human Rights in Theory and Practice (Ithaca and London:
Cornell University Press, 2013).
328 Jean Porter argues that many of the rights histories of the medieval period are actually talking
about legal rights but suggests that the scholastics of the period “did have the linguistic and
conceptual resources to develop a doctrine of natural rights”, see Porter, Natural Law to Human
Rights, 81.
329 Nederman, Rights, 644-645.
83
rights – to the property of the laity; were the laypeople able to have property rights and
ownership over their own properties? It is in this context, arguable, that the medieval
scholastics and jurist started to talk about rights in terms of “subjective” rights
(otherwise also called “personal” or “individual” rights), as distinguished from
“objective” rights.330
A case in point is the dispute surrounding the property rights of the Church and the
laity in the work, De Potestate Regia et Papali [On Royal and Papal Power], of the
Dominican friar and scholar John of Paris (d. 1306).331 In this work, John of Paris
discusses the idea of ownership regarding the “external goods” of laypeople. That is,
referring here to non-church owned properties. Over these, he argued, the laypeople
could and should have ownership and property rights (i.e., dominium). The Church –
not even the pope – had any property rights regarding the property of the laypeople. In
other words, John of Paris argues in terms of legal private rights for the laity. This was
opposed to properties owned by the Church, which he says are “community goods”.
These are owned by the Church in the sense that they administer and control these
properties for the benefit and use of the believers.332
Another example occurs in the fourteenth century discussion surrounding property
rights as dominium. The Italian Dominican theologian Silvestro Mazzolini da Prierio
(d. 1527) was heavily involved in theological and juridical disputes about what
property entails and who is deserving of property rights. He mentions that:
“Dominium, according to some people, is the same thing as ius. So that anyone who
has a ius in something, has dominium over it; and anyone who has a ius to the use of
something, has dominium in it, and vice versa”.333 In this passage the Dominican
scholar argues that property and rights used in conjunction means one has sovereignty
over it and that one has certain subjective (i.e., individual) rights over the property that
330 See Michel Villey and Michel Villet, “L'idée du droit subjectif et les systèmes juridiques romains”,
Revue historique de droit français et étranger 24 (1946-1947): 201-228;
331 See Gerson Moreno-Riaño, “John of Paris, Private Property, and the Study of Medieval Political
Thought”, John of Paris: Beyond Royal and Papal Power, ed. Chris Jones (Turnhout, Belgium
Brepols Publishers, 2015), 225-238.
332 Nederman, Rights, 646-649. It has been argued that John of Paris influenced John Locke’s theory
of property rights. See Janet Coleman, “Dominium in Thirteenth and Fourteenth-Century Political
Thought and its Seventeenth-Century Heirs: John of Paris and John Locke”, Political Studies 33
(1985): 73-100. For a more elaborate discussion on property rights in the Western legal tradition, see
chapter 5.
333 Translated from the original Latin by Tuck, Natural Rights theories, 5.
84
one owns. His opponents would argue the opposite, that dominium and ius are not
identical and that one does not have sovereignty over property, for example in the case
of an “inferior” versus a “superior” person in a relationship. To have both dominium
and ius, the other group argues, one must also have superiority in the relationship over
the other.334 The discussion on ownership and property rights would make up a good
deal of the discussions on rights in juridical and theological circles throughout the late
Middle Ages. While legal historian Richard Tuck and Michel Villey have identified
(rudimentary forms) of rights discussions in fourteenth century debates on property,
Brian Tierney has argued for an even earlier history of Western rights conceptions in
the canonistic jurisprudence of the late twelfth century, similarly surrounding the issue
of private property rights.335
The medieval theologian and church father Thomas Aquinas (d. 1274) is also often
referred to as a proto-natural rights thinker. In his magnum opus Summa Theologica,
Aquinas speaks of rights (ius) in the context of his discussion on justice.336 In doing
so, he remains close to the Roman legal definition of ius. Finnis, a contemporary
interpreter and expounder of neo-Thomist natural law theory, argues that the object of
the virtue of justice – Aquinas’ main topic in his treatise on justice – is rights.337 He
argues that justice, fairness and equity in the thought of Aquinas are fundamental to
his conception of basic rights. Basic rights, for Aquinas are just as important as duties.
Especially when concerning other human beings, duties are a “duty of justice”, which
corresponds in turn with the right-holders justified claim to a basic right.338
Notwithstanding Finnis’ contemporary neo-Thomist revisionism, Aquinas himself has
no explicit rights discourse in his Summa Theologica that can be understood as “rights
inhering in individuals”.339 Instead, he elaborates upon a discourse of “natural duties”.
Aquinas does seem to come close to elaborating some rudimentary ideas that resemble
334 Tuck, Natural Rights theories, 5-7.
335 Tierney, The Idea of Natural Rights, 43-77. Tierney is especially interested in canon juridical
writings surrounding the Decretum Gratiani, see Anders Winroth, The Making of Gratian’s Decretum
(Cambridge: Cambridge University Press, 2004).
336 Thomas Aquinas, The Political Ideas of St. Thomas Aquinas: Representative Selections, trans.
Dino Bigongiari (New York: The Free Press, 1953), 96-104.
337 Finnis, “Grounding Human Rights in Natural Law”, The American Journal of Jurisprudence 60,
No. 2 (2015): 214.
338 Finnis, Grounding Human Rights in Natural Law, 216.
339 Porter, From Natural Law to Human Rights, 84.
85
(subjective) rights thinking. For example, he develops a theory of property. But he
never wrote specifically about a “right” (ius) to property.340 Similarly, he elaborates
upon an idea of human freedom in terms of an “immunity” from the interference of
others, but he does not phrase it in terms of a “right to freedom” as could, for example,
be defended in a court of law.341
In the final analysis, thus, Aquinas seems to have remained loyal to an objective theory
of natural law (lex naturalis). Even though some elements of his thought have been
interpreted as providing some preliminary grounds, he does not actually propose a
subjective theory of natural rights. Titles one comes across in contemporary human
rights studies, such as C. Fred Alford’s Narrative, Nature, and the Natural Law: From
Aquinas to International Human Rights, thus appear to be somewhat misleading. It
seems a long stretch to argue from Aquinas to modern international human rights. And,
in fact, Alford does not come close to providing such an account.342 In sum, in the
medieval period as discourse seems to have developed around the issue of property
rights. But it is debated whether these are objective or subjective rights. Some
medieval scholars, such as Aquinas, where arguably really talking about something
else. And even if there were subjective rights, such as in the case of some canon law
jurists, these were for specific individuals or groups (the bishop, the pope, lords, the
laity, etc.).343 They were not “natural rights” that counted equally for everyone.
3.2.3. Early Modern Natural Rights: Separating Ius from Lex
Notwithstanding the debates regarding if medieval natural law theorists had a fullfletched
theory of natural rights, the early modern period is commonly recognized as
the starting point of Western natural right theory. It covers much of the seventeenth
century and stretches from the Dutch jurist and theologian Hugo Grotius (d. 1645) to
the British political philosopher John Locke (d. 1704), with important intermediary
contributions of both Thomas Hobbes (d. 1679) and Samuel von Pufendorf (d. 1694).
340 Tierney, The Idea of Natural Rights, 146.
341 Porter, From Natural Law to Human Rights, 86.
342 C. Fred Alford, Narrative, Nature, and the Natural Law: From Aquinas to International Human
Rights (New York: Palgrave Macmillan, 2010). See especially pages 21-48.
343 Michael Freeman, Human Rights (Cambridge and Malden, MA: Polity Press, 2017), 18.
86
This has also been called the period of “classical texts of rights theory”.344 The natural
rights discourse would only really reach its mature state with John Locke, who would
build upon and rework the ideas of Grotius, Hobbes and Pufendorf. This is why some
have considered him the first legal and political theorist in the Western legal tradition
to have espoused a mature theory of rights.345
Natural rights in this early modern sense are often portrayed as expressions of claims
and duties that human beings have by virtue of their mutual participation in an
objective moral order.346 Sometimes natural rights have been used interchangeably
with moral rights. This was particularly the case in the eighteenth-century rights
discourse. The “natural” here was contrasted with the “artificial”. Natural rights were
not perceived as something created by human beings but something eternally existent
and to be “discovered” in nature through the use of human reason.347
Natural rights have been defined in different ways. However, we can discern some
basic elements that are common to these definitions. In the concept of natural rights,
we find the idea that human beings have certain powers and liberties to do or not do
certain things. In doing so, they are the sole owner of their minds and bodies, and the
products or fruits produces by his mind and body. These in turn are his “private
property”. The idea of private property is furthermore justified on the grounds of
human individuality (you have these rights because you are a human individual).
These rights, then, are inalienable. No one can take them away from you. In principle,
not even the state.348
In the above definition, the idea of rights being something that individuals possess,
that inhere in “the individual human subject”, is especially important. As we will see
in our subsequent discussion, a major part of late medieval and early modern
discussions will evolve around the question if human beings have objective or
subjective rights. Another important development is the transition of thinking about
344 Tuck, Natural Rights Theories, 2.
345 Freeman 2017, 11.
346 Porter, From Natural Law to Natural Rights, 82.
347 Joel Feinberg, “In Defense of Moral Rights”, Oxford Journal of Legal Studies 12, No. 2 (1992):
153.
348 Nederman, Rights, 644.
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rights in the singular and in the plural, i.e., as a right being what is just and as a
particular set of claim-rights that people can possess.
Natural rights developed in an age of great political unrest in Western Europe. Hobbes
had written his Leviathan partly in response to the English Civil War (1642-1651),
while John Locke’s Two Treatises of Government was published right after the
Glorious Revolution (1688-1689). It is no wonder then, that early modern rights
theories developed in response to West-European political turmoil. The political
bearing of natural rights meant that, if they were violated by a government without due
process, no claim could be laid upon civil obedience: natural rights would come to
supersede any public rights imposed by political institutions.349 As such, early modern
natural rights theories seem to have been more a reaction to political realities, than
something which sprang forth from a particular moral or religious worldview, although
the underpinnings and justificatory grounds of early modern natural rights theories
would have both rational and moral-religious elements.
The “new” language of the early modern natural rights discourse would differ from
earlier medieval expositions of the natural law. Natural rights were a byproduct of the
origins of the emergence of the modern state in Europe.350 The “old” language of
Medieval natural law, as espoused by for example Aquinas and the canon lawyers, was
inspired by Roman natural law thinking and Christian ethics, embedded in a religious
worldview. The conception of natural rights in the early modern period changed the
medieval meaning of ius naturale from singular and objective to plural and subjective
(i.e., into individual rights). That is, it changed from the idea of an objective right (in
what is right and just) to subjective rights (rights that are personal entitlements of
claims).351 In addition, these were rights that individual human beings could possess,
that inhered in human beings.
As Samual Moyn points out the law of nature was something transcendent. Something
outside the realm of human perception, which in turn could be known rationally by
349 Nederman, Rights, 644.
350 Samuel Moyn, The Last Utopia: Human Rights in History (Cambridge, Massachusetts and
London: Harvard University Press, 2010), 21.
351 Freeman, Human Rights, 17.
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human beings. But the principal matter is that it was part of an objective natural order,
to which human beings would be subdued. Going against this objective order would
be against nature (contra naturam). 352 Natural rights, on the other hand, became a
plurality of rights (as opposed to mere “right”) that were subjectively enjoyed and
“owned” by human individuals.353
Hugo Grotius represents an important change in the rights language of the early
modern period. For many scholars, he symbolized the transition from medieval natural
law thinking to modern natural rights.354 For some commentators, Grotius’ theory of
natural rights exemplifies the starting point of the so-called “secularization” of modern
rights discourses. However, Grotius constantly refers to God and religious scripture
throughout his work. So, to seek the initiation of secularizing discourses in Grotius’
natural law doctrine might be somewhat of an exaggeration. In fact, when we read
closely Grotius’ De iure belli ac pacis [On the Law of War and Peace], we see him
constantly referring to God and the divine origins of his theory of the natural law. For
example, in his definition of the law of nature, Grotius mentions natural rights are
based on reason. Human nature, however, should also be morally consistent with the
commands and prohibitions of God, whom he calls the “author of nature”.355
Here, we read that Grotius believes that the law of nature – and the natural rights that
stem from it – has its ultimate source in the divine realm. In another place, Grotius
compares natural law to what he calls the “divine voluntary law”. Both types of law
originate from God, although, where natural law was promulgated by the mere fact of
the creation of the world itself, divine law is known by human beings through
revelation (which in the context of Grotius’ Protestant Christianity, is of course the
Bible).356 Grotius says about the divine law:
The divine voluntary law (as may be understood from the very name) is that
which is derived only from the will of God himself; whereby it is distinguished
352 Moyn, The Last Utopia, 21.
353 Moyn, The Last Utopia, 21.
354 Tuck, Natural Rights Theories, 58; Tierney, The Idea of Natural Rights, 316.
355 Hugo Grotius, The Rights of War and Peace: Book I, ed. Richard Tuck (Indianapolis: Liberty
Fund, 2005, originally published in 1625), 150-151.
356 Christoph Stumpf, “Hugo Grotius and the Universal Rule of Law”, in Morality and Responsibility
of Rulers: European and Chinese Origins of a Rule of Law as Justice for World Order (eds. Anthony
Carthy and Janne Nijman (Oxford: Oxford University Press, 2018), 189.
89
from the natural law, which in some sense, as we have said above, may be
called divine also. [...] God does not will a thing because it is just; but it is just,
that is, it lays one under an indispensable obligation, because God wills it.357
In this passage we read, not only that divine law is inspired by God because the “wills
it”, but we also see Grotius affirming the earlier passage that the natural “may be called
divine also”. In other words, both the natural and the divine law have transcendent and
metaphysical origins.
That being said, Grotius mentioned that the theory of natural law propounded in his
work would remain true in principle, even if we would not accept a transcendent divine
reality. He notoriously said, for example, that “what we have been saying would have
a degree of validity even if we should concede that which cannot be conceded without
the utmost wickedness, that there is no God...”.358 In this thought experiment Grotius
considers that if God would not exist – something he did not believe as a strict Calvinist
protestant – that natural law still would exist and could be known through independent
human reasoning. This idea would provoke new modes of thinking about natural
rights. It is statements like this, which ultimately entail that the natural law can be
known without any religious commitments. This inspired subsequent generations of
natural rights theorist to conceive of the possibility of a secular theory of natural
rights.359 That being said, these rights theorists did not seek to displace religiously
grounded natural rights theories, as the later drafting committee of the United
Declaration of Human Rights would attempt to do. These theories, rather, would exist
side by side without being mutually exclusive. Non-religiously grounded natural
rights, rather, were an attempt to make natural rights more universal, so that they would
find broader acceptance, beyond the scope of the Christian oikumene.
Again, Grotius is often seen as the instigator of modern natural rights theories. But
what exactly is the “modernity” of Grotius’ natural rights scheme is disagreed upon.
Some argue that in Grotius’ work “natural law” gradually moved to the background
and served merely as a ground from which natural rights are derived, while others
357 Grotius, The Rights of War and Peace: Book I, 164. (Emphasis mine.)
358 Translated from Latin by Brian Tierney, The Idea of Natural Rights: Studies on Natural Rights,
Natural Law and Church Law 1150-1625 (Atlanta, Georgia: Scholars Press, 1997), 318. (Emphasis
mine.)
359 Freeman, Human Rights, 22.
90
focus on his infamous if “there is no God” statement as a sort of pioneering statement
for a new secular-rationalist approach. Legal historian Brian Tierney has convincingly
argued that Grotius’ infamous statement was quite common in his early modern
intellectual milieu. He also showed that the natural law discourse and the natural rights
discourse remained firmly side by side throughout early modern natural rights
literature.360 In fact, as we will see, the natural law still figures prominently in John
Locke’s ideas about natural rights. So yes, we might speak of a shift in language. But
the shift was not as major as some have come to believe. The connection between the
two discourses seems to be much more continuous than is often suggested.361
In the rights discourse articulated by Thomas Hobbes rights are reduced to the singular
natural right of the survival of the individual.362 In this, Hobbes is very close to the
natural rights theory espoused by Grotius. But Hobbes seems to have been much
straightforward in his distinguishing between natural law and natural rights. In his
Leviathan, Hobbes explicitly differentiates the law as “lex” and right as “jus” (or ius).
In his explanation what the “law of nature” (lex naturales) is – i.e., general rules
derived from reason that facilitate self-preservation – Hobbes mentions how both are
conflated, while they or not the same. They should, therefore, be used separately.
Right, he says, relates to the freedom to do something, while law is limiting human
action.363
If the usage of reason is the hall mark of the “secularization” of natural law, then
Hobbes – himself having on multiple occasions being accused of atheism – might be
a better suited candidate, as opposed to Grotius, as the first “secularizing” natural
rights theorist. Be that as it may – and Hobbes did seem to use a more rationalizing
discourse – Boucher rightly argues that we must distinguish between the “the method
or means by which we come to know the natural law, and the grounds for our
obligation to follow it”.364 For all the natural rights theorists discussed here – be it
360 Tierney, The Idea of Natural Rights, 319.
361 Also see Boucher’s discussion in this regard, see David Boucher, The Limits of Ethics in
International Relations: Natural Law, Natural Rights, and Human Rights in Transition (New York:
Oxford University Press, 2009), 69-100.
362 O’Donovan, 197.
363 Thomas Hobbes, Leviathan, ed. J. C. A. Gaskin (New York: Oxford University Press, 1996,
originally published 1651), 86.
364 Boucher, The Limits of Ethics in International Relations, 74. (Emphasis mine.)
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Grotius, Hobbes, Pufendorf, or Locke – human reason is, partly or wholly, responsible
for knowing and understanding the natural law, but ultimately it is the divine that
obliges us to follow the natural law. This means that, not reason, but God is the source
of the natural law. And it is on the grounds of this divine origin that we are necessitated
to show dutiful obedience to the law.
Pufendorf would go on and revise and synthesize the natural rights theories of both
Grotius and Hobbes. Although Pufendorf is not much studied in our contemporary
times, he was by far the most read legal and moral philosopher of the seventeenth and
eighteenth centuries. Although his heritage would be overshadowed by the work of
Immanuel Kant (d. 1804).365 It is through Pufendorf that Locke would inherit the
notion of a sharp distinction – opposition even – between natural right (jus naturale)
and natural law (lex naturale).366 This would enable Locke to explore a richer rights
language in his own works than his predecessors. What would differentiate Pufendorf
from his predecessor Grotius, is that – while he accepted its basic veracity of Christian
divine revelation and its importance to the natural law – he acknowledged that it would
not be accepted as universal. Hence, Pufendorf was to use theological language to a
much lesser extent than Grotius did.367 Incidentally, he would also occupy the first
professorial position in the jurisprudence of natural law and the law of nations at
Heidelberg. This arguably contributed to the professionalization and secularization of
early modern natural rights language.
We can summarize that in the transition from the medieval period to early modernity,
there was a slow but steady shift of emphasis from the natural law (lex naturalis) to
natural rights (ius naturale). In addition, while there is an argument to be made that a
discourse on subjective rights started to form amongst the jurists of the medieval canon
law – especially surrounding the issue of property rights (in the sense of dominium) –
this discourse was rather minimalist and arguably even absent in main natural law
thinkers, such as Aquinas, who was still very much committed to an objective theory
of natural law. The early modern natural rights theorists, such as Grotius and
365 Boucher, The Limits of Ethics in International Relations, 9.
366 Michael P. Zuckert, Natural Rights and the New Republicanism (Princeton, New Jersey: Princeton
University Press, 1994), 192.
367 Boucher, The Limits of Ethics in International Relations, 96.
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Pufendorf, spoke much more explicitly and elaborately about rights as subjective (i.e.,
personal or individual) rights. Grotius, for example, clearly states about ius naturale
that it is a “Ius is a moral quality of a person, enabling him to have or do something
justly”.368 Pufendorf, on the other hand, speaks of a right (ius) in relation to power
over one’s actions (libertas), power over other people’s actions (imperium), power
over things one possesses (dominium), and power over other people’s possessions
(servitas).369 Both examples clearly show a usage of rights as subjective rights, in
which rights are understood as something you possess.
For Locke, natural rights theories take on a much more individualistic hue. He argues
that human beings are rational and have a personal obligation to know and observe the
law of nature. In order to fulfil these obligations human beings were born with a natural
state of freedom. At the outset of his Second Treatise of Government, Locke mentions
that human beings a born free and by nature they are in an inherent state of “perfect
freedom”. This freedom entails human acts to do or not do something, but it also entails
having possessions (or doing away with them). In doing so, according to Locke, no
one in principle has to have permission of any other human beings or take their
considerations into account.370
Locke’s stress on personal autonomy and freedom would be of influence on later
Enlightenment thinkers in the eighteenth century.371 However, Locke’s idea of liberty
was not unlimited. But being in this state of liberty, Locke argues, is not a state of
“uncontrollable liberty” for a human being to do what he wants. For example, he does
not have the liberty to harm himself. Nor does he have the liberty to harm other people.
People cannot, Locke argues, infringe upon the rights and freedoms of other people,
especially not in such as way that it would damage, hurt or wound them.372 In addition,
he mentions that the laws dictated by the laws of nature obliges all human beings and
that these laws can be understood rationally. In doing so, according to Locke, human
368 Translated from Latin in Brian Tierney, The Idea of Natural Rights: Studies on Natural Rights,
Natural Law and Church Law 1150-1625 (Atlanta, Georgia: Scholars Press, 1997), 325.
369 Boucher, The Limits of Ethics in International Relations, 99.
370 John Locke, Two Treatises of Government and A Letter Concerning Toleration, ed. Ian Shapiro
(New Haven and London: Yale University Press, 2003, originally published in 1689), 101. (Emphasis
mine.)
371 Lynn Hunt, Inventing Human Rights: A History (New York and London: W. W. Norton &
Company, 2007), 60-61.
372 Locke, Two Treatises of Government, 102-103.
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beings (and he explicitly mentions “mankind” as a whole) would see and come to
understand that human beings are equal in their rights to life, but also to basic health,
to freedom and liberty and to ownership and possession.373
So, while Locke’s use of natural rights language is much more clearly referring to
subjective rights (i.e., rights that are possessed by individual persons), it cannot be
qualified as merely individualistic. It has in fact been pointed out that there is
somewhat of a tension between the individualism of Locke’s rights theory and its more
social dimension, as he also often mentions the “collective good of society”.374 Human
beings being created as “rational” beings, according to Locke, would agree to live
under a government that was entrusted with honoring the law of nature and to promote
the public good.375 Therefore he argued that human beings are responsible for the
preservation of their lives (and the lives of others). He may not hurt himself and
likewise may not hurt other people. Nor may he infringe upon their basic rights to “life,
liberty, health, limb, or goods”.376
Locke’s rights theory has the seeds in it of the universalizing message that would
imbue later rights declarations and inspire the American Revolutionaries, such as
Thomas Jefferson, in their writing of the American Declaration of Independence.377 In
his Two Treatises of Government, Locke constantly refers to “all of mankind” being
born free, being equal, having fundamental rights to life, liberty, and property, and so
forth. Notwithstanding his seemingly universalizing message, Locke – like Grotius,
Hobbes, and Pufendorf – had all been implicated in slavery. In addition, the natural
rights discourse had been used to justify European colonialism of the indigenous
peoples of America.378 Locke himself had been co-author of the Constitution of
Carolina, which explicitly condoned slavery.379 It has in fact been argued that Locke
was more popular than Hobbes and Grotius, because Locke did not challenge slavery
373 Locke, Two Treatises of Government, 102.
374 Freeman, Human Rights, 25.
375 Freeman, Human Rights, 24.
376 Locke, Two Treatises of Government, 102.
377 Ronald Hamowy, “Jefferson and the Scottish Enlightenment: A Critique of Garry Wills’s
Inventing America: Jefferson’s Declaration of Independence”, The William and Mary Quarterly 36,
No. 4 (1979), 506-511.
378 Boucher, The Limits of Ethics in International Relations, 15 and 202.
379 David Armitage, “John Locke, Carolina, and the Two Treatises of Government”, Political Theory
32, No. 5 (2004): 602-627.
94
directly and was seen by the American revolutionaries as more conducive for their
state of affairs.380 Hence, there seems to be a clear tension in the universalizing
language of early modern rights theories on the one hand, and its limited scope with
regards to slaves – but also to women, minorities, and indigenous peoples.381
There is a significant change in the rights language used by early modern rights
theorists, such as Hugo Grotius (d. 1645) and John Locke (d. 1704), who still very
much move within the framework of natural rights and natural law, and eighteenthcentury
Enlightenment thinkers, such as Immanuel Kant (d. 1804) and G.W.F. Hegel
(d. 1831). The latter two develop a rights language that is not so much imbedded in
natural law thinking, but rather in the idea of human dignity and recognition .382 Both
Kant and Hegel, of course, work in the period after the excruciating critiques of natural
rights theory by the likes of Jeremy Bentham (d. 1832) and Edmund Burke (d. 1797),
who did not hold back any possible attempt to ridicule the idea of natural rights as
mere “nonsense upon stilts”.383
3.3. Conclusion
We have seen that rights are not a straightforward concept. It is an ambiguous,
malleable and multilayered concept. This has been recognized in both legal historical
and modern legal scholarship. A clear conceptual analysis of the concept of rights is
necessary. Also, it is necessary to analyze the rights discourse in its “natural
environment”. The most basic definition is that rights are entitlements or claims that
entail duties upon others. These entitlements need to be acknowledged and respected
by others. Hohfeld provided an exhaustive framework for rights and its jural relations.
When people talk about rights, they conflate many concepts. Claim-rights that have
corresponding duties are “proper” rights. Other corresponding concepts are privileges,
powers and immunities. These in turn have corresponding legal burdens: duties, ‘norights’,
liabilities, and disabilities. Rights almost always entail a “bundle” of these jural
relations that people enjoy simultaneously.
380 Lynn, Inventing Human Rights, 118-119.
381 We will return to some of these tensions in chapter V of this thesis.
382 Ivison, Rights, 94-5.
383 See Jeremy Waldron (ed), ‘Nonsense Upon Stilts’: Bentham, Burke and Marx on the Rights of Man
(London and New York: Methuen, 1987), 34.
95
Rights are often differentiated as “moral” and “legal” rights. The school of legal
positivism (Bentham, Austin, Hart) have argued to separate both dimensions of the
law. However, most modern legal scholars have come to accept the moral dimension
of the law, as do some legal positivists, albeit in a minimal way. To equate moral and
legal rights is an oversimplification. The conundrum is better thought of as the
underlying moral framework for legal rights. Moral rights are “expressed” in legal
form. Legal rights have a non-legal foundation in morality. Moral rights can be
individual, attached to groups, or the whole of humanity. The latter seems to
correspond to our modern notions of human rights. Moral rights are necessary to
protect citizen rights and to limit the authorly of governments.
The concept of natural rights is often conflated with either natural law or human rights.
This is problematic because they are not exactly the same and sometimes can even
have opposite meanings. The terms have different histories that relate to each other in
complex ways. These historical accounts are mostly Eurocentric and should be
understood in the context of legal Orientalism. One problem is the idea of historical
continuity between the Greco-Roman legal tradition and the medieval European legal
tradition. This seems to be an instance of “inventing Europe”, as Roman law
completely dwindled after the fifth century, when Germanic tribes conquered that
waning Roman Empire. We can only speak of a unified Western legal tradition after
the “papal revolution” in the twelfth century. In addition, the Greco-Roman tradition
is a shared intellectual heritage with Islamic civilization. Its rediscovery by Europe
was often through Arabic-Latin translations of Muslim works.
Around 1000 Europe had mostly local custom-based Germanic legal practices
(Volkrecht). There was no legal system in place, no legal professional class, no corpus
juris, no legal textbooks, and no “science of the law”. With the papal revolution and
the superiority of the Church over secular power, Europe developed its own tradition
of canon and civil law (ius commune). It also rediscovered Roman natural law.
However, MacIntyre’s observation that there were no rights discourses before 1400
might hold true, at least for Western Europe. The Roman jurists used ius as referring
to “what is always fair and good” (ius naturale) or “what is best for all or most in
society” (ius civile). Christian religious scripture also did not use ius in the meaning
96
of rights that are possessed by human beings (such as “statutes” of God in Psalm 119).
What we do see are proto-rights discourses surrounding the debates of Church property
and property in general, in which the laity are allotted certain subjective rights. But the
discussion between ius and dominium is far from settled. In addition, Aquinas – often
mentioned as a predecessor to human rights thinking – makes no mention of ius and
appears to be committed to an objective theory of natural law (lex naturalis).
A far more distinct shift in rights language we see in the early modern period, with
natural rights theorists such as Grotius, Hobbes, Pufendorf, and especially Locke. Of
these four, Locke is mostly seen as the scholar that for the first time developed a
“mature” theory of natural rights. In most accounts, Grotius is presented as the first to
have applied modern rational-secular modes of thinking about rights. This seems to be
an exaggeration, as his rights language is imbued with religious undertones. But his
though experiment in which he claimed that even “without God” the natural law would
still exist and be discovered, has inspired subsequent generations of natural rights
theorists to look for secular grounds. A big difference with the modern drafters of the
UDHR, is that early modern rights theorists did not seek to supplant the religious
underpinnings of natural rights. Both existed parallel to each other. They were used,
rather, the universalize natural rights and make them more acceptable to humankind.
Pufendorf has played a major role in this development, who was a great synthesizer
and popularizer of Grotius and Hobbes. Hobbes seems to be a better candidate as a
starting point for the secularizing and rationalizing trend in natural rights theorymaking.
He is also the first one to have made a strict distinction between law as “lex”
and right as “jus” (or ius), a distinction that was adopted by Pufendorf and Locke.
Of all four natural law theorists, Locke seems to have a much more elaborate rights
discourse. He also clearly stresses individuality and subjective rights that human
beings possess. His main claim is that all human beings are free in the state of nature
and are created as rational beings so they can fulfill their obligations. This stress on
autonomy and freedom would inspire later Enlightenment thinkers. But this freedom
is not unrestricted: you cannot harm yourself or others (in life, health, liberty,
possessions). Also, there seems to be a tension in his individualism and his attention
for the “collective good of society”. Rational beings, Locke argued, would agree to
live under a government that honors the law of nature and promotes public good.
97
Locke’s seemingly universalizing message – that is to a lesser extend also present in
the other natural rights theorists – has a downside. While frequently referring to “all
mankind” having fundamental rights, natural rights theorists were often involved in
slavery (or condoning slavery). Natural rights theory was also utilized to rationalize
European colonization over indigenous peoples. There thus seems to be a clear tension
between the universalizing message of early modern natural rights theories and their
limited scope regarding slaves, women, minorities, and indigenous peoples. The
eighteenth century represents a significant change, in which right theorist such as Kant
and Rousseau move further away from “religiously imbued” natural rights language,
towards a language grounded the language of human dignity and worth.
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CHAPTER IV
THE HERMENEUTICS OF ḤUQŪQ: RIGHTS
DISCOURSES IN THE ISLAMIC LEGAL TRADITION
“If concepts are defined by language, then language is not only the framework that
delimits concepts but also that which controls them.”
Wael B. Hallaq384
“The human is not created but a free person and in possession of the rights ascribed
to him.”
Abū Zayd al-Dabūsī385
In this chapter, we explore the concepts of “law” and “rights” in Islamic legal language
and culture through the framework of conceptual history (Begriffsgeschichte). I outline
the historical emergence of the Islamic legal system in the context of pre-Islamic late
antique Middle Eastern societies386 and the subsequent formation of the classical Sunnī
legal schools of Islamic law.387 We then present a survey of rights discourses (ḥuqūq)
384 Wael B. Hallaq, Sharīʿa: Theory, Practice, Transformations (New York: Cambridge University
Press, 2009), 2.
385 Abū Zayd ʿUbayd Allāh ibn Muḥammad ibn ʿUmar ibn ʿIsa al-Dabūsī, Taqwīm al-adilla fī uṣūl alfiqh,
ed. Khalīl Muḥyī al-Dīn al-Mays (Beirut: Dār al-Kutub al-ʿIlmiyya, 2001), 417.
386 The term “Middle Eastern societies” I take from Islamic historian Ira M. Lapidus, who defines
Middle Eastern societies as the complex of institutions and social patterns that were infused by the
constellation of lineage and tribal, religious and political structures of the Mesopotamian city-states
and empires of the third millennium BC. See Ira M. Lapidus, A History of Islamic Societies, 2nd
edition (Cambridge: Cambridge University Press, 2002), xix and 3-9. The idea of Islam as a religion
of “Late Antiquity” has gained prominence in scholarship on Islamic origins mainly through the
works of the historian Robert Hoyland. For a concise introduction to this idea, see Robert Hoyland,
“Early Islam as a Late Antique Religion”, in The Oxford Handbook of Late Antiquity, ed. Scott
Fitzgerald Johnson (New York: Oxford University Press, 2012), 1053-1077 (for a more thorough
discussion on this, also see paragraph 2.3.).
387 It should be noted that in this chapter (and throughout the thesis) I have chosen to limit my
historical overview of the Islamic legal tradition and its classical juridical literature to the dominant
mainstream Sunnī legal schools of law, thereby excluding (for now) the Shīʿa schools of law on the
account that they represent a separate legal tradition with an appreciably different historical outlook
and structure. Herein, I follow the approach of Wael B. Hallaq, who stated in his history of Islamic
legal theory that “No doubt they [i.e., the Shīʿa schools of law] stand on their own, and, like their
Sunnī counterparts, they demand an independent treatment. Thus no apology is in order for excluding
non-Sunnī legal theories”, see his A History of Islamic Legal Theories: An Introduction to Sunnī uṣūl
al-fiqh (New York: Cambridge University Press, 1997), viii. Also, historically the Sunnī schools have
been most dominant in the Muslim world. While due attention should be given to minority voices, this
delimitation facilitates the comparative framework of this thesis. For a similar justification, see Jacob
Neusner and Tamara Sonn, Comparing Religions Through Law: Judaism and Islam (London:
Routledge, 1999), 6-11. (For further elaboration, also see the methodological considerations in the
99
and relevant legal terminology in Islamic law (fiqh) and legal philosophy (uṣūl al-fiqh)
through the lens of medieval and early modern Islamic judicial literature and introduce
the basic terms and concepts that make up the Islamic ḥuqūq hermeneutic, such as
legal personality (dhimma), legal capacity (ahliyya), and the dichotomy between
public rights (ḥuqūq Allāh) and private rights (ḥuqūq al-ʿibād). Finally, we explore the
development of Islamic rights discourses in the era of early modernity in the context
of legal reforms before the emergence of the modern human rights regime.388
4.1. Lost in Translation: Towards a Conceptual History of Rights in Islam
We now turn to our endeavor to embark upon a conceptual history of rights in the
Islamic legal tradition. This immediately presents to us a major challenge, which is
primarily an issue of language. Or rather, of the delimiting nature of language. This is
especially the case in the context of a comparative analytical study, such as this thesis.
The trouble arises when we attempt to compare and contrast a legal concept such as
“law” or “rights” (and its historical trajectories) across legal cultures, while modern
manifestations of these concepts are firmly embedded in a Western linguistic context.
After all, any so-called “rights talk” in modern (mostly English) scholarship refers to
specific rights discourses that ultimately stem from linguistic genealogies in the
premodern West.389 Islamic legal historian Wael B. Hallaq points to the limitations of
introductory chapter of this thesis). An extensive introduction to the Shīʿa legal tradition is provided
in the monumental work of Devan J. Stewart, Islamic Legal Orthodoxy: Twelver Shiite Responses to
the Sunni Legal System (Salt Lake City: University of Utah Press, 1998).
388 In the final section of this chapter, I deal with relevant historical developments up until
approximately 1800, thus including only the Early Modern period. After the 1800s, with the rise of
industrial modernity and the advent of Western hegemony, the world changes so radically, as to
deserve a separate treatment. This is not included within the scope of this thesis, which deals primarily
with premodern rights discourses in Islam and the West. However, the rise of modern human rights
and Islam’s engagements with the modern human rights discourse are covered in chapters one and
two of this thesis, respectively.
389 There is some discussion on how far back Western historians trace the idea of “rights” in Western
legal history, with some opting for its genealogy tracing back to medieval natural law theology and
others to the natural rights tradition of Enlightenment thought. But the consensus among the vast
majority of Western historians is that the modern human rights discourse is rooted in premodern
Western thought. See, for example, C. Fred Alford, Narrative, Nature, and the Natural Law: From
Aquinas to International Human Rights (New York: Palgrave Macmillan, 2010); Jean Porter, “Natural
Law to Human Rights: Or, Why Rights Talk Matters,” Journal of Law and Religion 14, No. 1 (1999-
2000): 77-96; S. Adam Seagrave, “How Old Are Modern Rights?: On the Lockean Roots of
Contemporary Human Rights Discourse,” Journal of the History of Ideas 72, No. 2 (2011): 305-327.
A notable exception is of course Samual Moyn, who argues for a 1940s post-WO II (or even a 1970s
post-Cold War) genealogy of modern human rights, discontinuous from earlier historical rights
traditions. See Samual Moyn, The Last Utopia: Human Rights in History (Cambridge, Massachusetts
and London, England: The Belknap Press of Harvard University Press, 2010).
100
language – or what he calls the “prisons of language” – by remarking at the outset of
his monumental study of Islamic Law:
Our language fails us in our endeavor to produce a representation of that history
which not only spoke different languages (none of them English, not even in
British India), but also articulated itself conceptually, socially, institutionally
and culturally in manners and ways vastly different from those material and
non-material cultures that produced modernity and its Western linguistic
traditions.390
In other words, one cannot escape some amount of deformity when expressing,
explaining and interpreting a legal system in a language (English or any other
European language) that is alien to the indigenous legal culture and language from
which it historically sprang, which in this case is Islamic legal culture as mediated
through the vehicle of classical Arabic (al-ʿarabīyyat al-fuṣḥā).391 The act of
translation ultimately is, as the Italian expression goes, an act of treason (traduttore,
traditore).392 This refers to the troublesome – and often thankless – toil of the act of
translating across cultures. The translator (who is simultaneously always an
interpreter) is not merely transposing words from the original language into the target
language but must also do his or her best to communicate the connotated world of
ideas, cultural sensitivities and civilizational alterity to which the original work
belongs.393 This in most (if not all) cases is an endeavor set up for failure.394 However,
that by no means implies that Islamic legal culture is “untranslatable”. Nothing is
completely untranslatable, as Derrida famously claimed in his Monolingualism of the
390 Wael B. Hallaq, Sharīʿa: Theory, Practice, Transformations (New York: Cambridge University
Press, 2009), 1.
391 Islamic civilization was a multilingual civilization and other major Islamic languages produces vast
amounts of scholarship, such as Persian and Ottoman Turkish. The bulk of medieval and early modern
legal literature however remains mainly in classical Arabic. For a discussion on other languages being
‘Islamic’, see Kees Versteegh, “Can a Language be Islamic?,” Eurasian Studies 18 (2020): 5-25.
392 Literally: “The translator is a traitor”.
393 For the idea of civilizational alterity (or civilizational “otherness”), see Johann P. Arnason,
“Interpreting History and Understanding Civilizations,” in The Benefit of Broad Horizons: Intellectual
and Institutional Preconditions for a Global Social Science, Eds. Hand Joas and Barbro Klein (Leiden
and Boston: Brill, 2010), 167-184; Johann P. Arnason, Civilizations in Dispute: Historical Questions
and Theoretical Traditions (Leiden and Boston: Brill, 2013), 167-184.
394 See Gregory Rabassa, “If This Be Treason: Translation and Its Possibilities,” The American
Scholar 44, no. 1 (1974-75): 29-39. Some scholars of translation studies talk in this context about the
term “invisibility,” which refers to “the translator’s own manipulation of the translating language”
which in many cases results in “the ethnocentric violence of translation.” See Lawrence Venuti, The
Translator’s Invisibility: A History of Translation, 2nd Edition (Abingdon, Oxon and New York:
Routledge, 2008), 1-34.
101
Other, but the “untranslatable” to some extent always remains, which prevents us from
fully inhabiting “the language of the other”.395
Therefore, it is all the more important that we take into consideration the alterity and
particularity of Islamic legal culture as consisting of its own legal epistemology, legal
anthropology, legal norms, legal language, and legal reasoning.396 It is, in other words,
important to study Islamic legal culture though the interpretive and discursive tradition
from which it emerged.397 As the Islamic legal historian Norman Calder aptly stated:
“Understanding of the law is achieved through understanding of tradition, not through
independent or personal assessment of the meaning of revelation”.398 This
interpretative tradition we speak of was expressed in Islamic civilization through its
copious juridical literature. As Talal Asad argued, Islam is neither a “distinctive social
structure” nor is it a “heterogeneous collections of beliefs, artifacts, customs, and
morals” but it is a discursive tradition that revolves around certain foundational
texts.399 Thus, any attempt to genuinely understand the rights discourse in the Islamic
legal tradition cannot but engage the legal literary genres produced by the scholars of
Islamic law and jurisprudence (al-fuqahāʾ).
4.2. Islamic Law and Legal Language: What’s in a Name?
395 In his typical paradoxical style of continental philosophizing, Derrida mentions that “In a sense,
nothing is untranslatable, but in another sense, everything is untranslatable”, by which he points to the
fact that one can never fully “inhabit the language of the other”, i.e., one cannot ever fully grasp the
entirety of its meanings and connotations if one does not understand, speak and live it. See Jacques
Derrida, Monolingualism or The Prosthesis of Origin (trans. Patrick Mensah, Stanford, California:
Stanford University Press, 1998, originally published as Le monolinguisme de l’autre, Editions
Galilée, 1996), 56-7. Also compare the idea of “language as Habitus”, see Rey Chow, “Reading
Derrida on Being Monolingual,” in Enduring Resistance: Cultural Theory after Derrida, Eds. Sjef
Houppermans, Rico Sneller and Peter van Zilfhout (Amsterdam and New York: Rodopi, 2010), 193-
211.
396 For more in Islamic legal epistemology, norms, language and reasoning, see Hallaq (2009),
Sharīʿa, 78-92 and 100-110.
397 For the notion of Islam as a “discursive tradition”, see Talal Asad, “The Idea of an Anthropology
of Islam,” Qui Parle 17, No. 2 (2009): 1-30; Mohamed Amer Meziane, “Comparer les traditions
discursives: Islam et critique du symbolisme dans l’anthropologie de Talal Asad,” Socioanthropologie
36 (2017): 59-74; Ovamir Anjum, “Islam as a Discursive Tradition: Talal Asad and His
Interlocutors,” Comparative Studies of South Asia, Africa and the Middle East 27, No. 3 (2007): 656-
672.
398 Calder, Law, 994.
399 Asad, Anthropology of Islam, 20.
102
The construction of the term “Islamic law” is, at least to some extent, an invention of
Western Orientalist scholarship. While the term has found its way into modern Arabic
usage as al-qānūn al-islamī, the terms employed in classical Islamic juridical sources
are fiqh and sharīʿa.400 The transposition of a Western legal conception of “law” to an
Islamic legal framework can prove – and has in fact been proven – to be problematic.
It can, indeed, function as a vehicle for legal Orientalism. Legal Orientalism, as
pointed out in the introductory chapter, is a scholarly paradigm that tends to study
Islamic jurisprudence through the lens of Western law, imposing its legal conceptions
and language upon Islamic legal culture, without taking into consideration the
particularities of the Islamic legal paradigm.401 Being historically linked to European
colonialism, Enlightenment universalism and the imperialist mindset, legal
Orientalism as a “domination-based thought structure” is prone to induce and facilitate
so-called “epistemic violence”.402
A case in point is the chapter on “Law” in Jamal Elias’s Key Themes for the Study of
Islam, written by the scholar of Islamic religious studies A. Kevin Reinhart, who is
otherwise known for his excellent contributions to Islamic legal studies.403 Reinhart
explicitly frames “Islamic law” along the lines of Western legal philosophy, building
upon the legal interpretations of the well-known legal philosophers H. L. A. Hart (d.
1992) and Ronald Dworkin (d. 2013), representatives of the legal positivist and
interpretivist schools of Anglo-American legal studies, respectively.404 He mentions
that “Hart and Dworkin’s understanding of law is a standard one for philosophy of
400 Norman Calder, “Law”, in History of Islamic Philosophy, eds. Seyyed Hossein Nasr and Oliver
Leaman (Abingdon, Oxon and New York: Routledge, 2001), 980. We see modern titles bearing the
name, such as that of the 20th-century Muslim modernist thinker Sayyid Abū al-Aʿlā al-Mawdūdī (d.
1979), al-Qānūn al-islāmī wa ṭuruq tanfīdhihi [Islamic Law and Its Implementation] (al-Dār al-
Sāʿūdiyya, 1985), as well as modern works on specific branches of the law, such as constitutional law
or criminal law. See for example Aḥmad al-Awaḍī, al-Qānūn al-dustūrī al-islāmī [Islamic
Constitutional Law] (Amman: Maṭba‘at al-Azhar, 2007); and Majid Khadduri, al-Qānūn al-dawlī alislāmī:
kitāb al-siyar lil-Shaybānī (Beirut: al-Dār al-Muttaḥidah lil-Nashr, 1975), which is the Arabic
translation of his The Islamic Law of Nations: Shaybānī’s Siyar (Baltimore, Maryland: The John
Hopkins Press, 1966).
401 Wael B. Hallaq, “On Orientalism, Self-Consciousness and History,” Islamic Law and Society 18
(2011): 387-439. For an elaboration of legal Orientalism and its implication for this study, see the
methodological section in chapter 1 of this thesis.
402 Hallaq, On Orientalism, 400.
403 See A. Kevin Reinhart, “Law”, in Key Themes for the Study of Islam, ed. Jamal J. Elias (London:
Oneworld Publications, 2010), 220-244.
404 See H. L. A. Hart, The Concept of Law, 3rd edition (Oxford: Oxford University Press, 2012, first
published in 1961); and Ronald Dworkin, Taking Rights Seriously (Cambridge, Massachusetts:
Harvard University Press, 1977).
103
law, and to determine in what sense “Islamic law” is law, we may begin by examining
the sharīʿa-system within the Hart-Dworkin framework”, which he then proceeds to
do in the remainder of the chapter.405
For instance, he examines several books of fiqh (and comparative fiqh), such as al-
Ikhtiyār li-taʿlīl al-mukhtār [The Selection for Explaining the Selected] of the Iraqi
Hanafī jurist ʿAbd Allāh ibn Maḥmūd al-Mawsilī (d. 1284) and Bidāyat al-mujtahid
wa al-nihāyat al-muqtaṣid [The Beginning of the One Who Can Conduct Independent
Legal Reasoning (i.e. the master-jurist) and the End of the One Who is Limited (i.e.)
in knowledge of the sharīʿa)] of the Andalusian Muslim philosopher and Mālikī jurist
Abū al-Walīd Muḥammad ibn Aḥmad ibn Rushd, popularly known in Western
scholarship as Averroes (d. 1126).406 These works, Reinhart says, are not legal statute
books but read more like “discursive works with copious argumentation, alternative
views, and digressions”.407 In that sense, he concludes, they read rather like the
Talmud, one of the central legal-theological texts of Rabbinic Judaism, then the Public
Statutes of the State of New Hampshire and General Laws in Force, which is more
like a Bill of Rights.408 The chapter overflows with remarks that “show” how books of
Islamic law are not similar to legal statute books, as known in the West. They contain
matters of religious ritual (such as ritual ablution and prayer) and all kinds of “rules”
that are “recommended” or “discouraged”, things the Muslim “ought” and “ought not”
do, all of which however are not enforceable by law. These kind of “extraneous
matters”, Reinhart argues, belong more properly to the domain of morality and not
law.409 The latter point, reinforces Hallaq’s critique of artificially separating Islamic
law from its moral and ethical-religious worldview.410
Reinhart’s designation of the Hart-Dworkin framework as “standard”, and thus as the
ultimate measuring rod and criterion to judge the Islamic legal tradition, is deeply
problematic in light of our discussion of legal Orientalism. As the late historian of
405 Reinhart, Law, 224. (Emphasis mine.)
406 ʿAbd Allāh ibn Maḥmūd al-Mawsilī, al-Ikhtiyār li-taʿlīl al-mukhtār, 4 vols., ed. Shuʿayb al-
Arnāʾūṭ (Damascus: Dār al-Risāla al-ʿAlimiyya, 2010, 2nd edition); Abū al-Walīd Muḥammad ibn
Aḥmad ibn Rushd, Bidāyat al-mujtahid wa al-nihāyat al-muqtaṣid, ed. Mājid al-Ḥamdī (Beirut: Dār
Ibn Ḥazm, 2017).
407 Reinhart, Law, 225.
408 Reinhart, Law, 225.
409 Reinhart, Law, 225-234.
410 This also ties into our discussion of moral rights and legal rights (see section chapter 3).
104
Islamic law Bernard G. Weiss (d. 2018) mentioned, it is ultimately misleading to
simply equate the Islamic sharīʿa with “law”, as was done in the example we cited
above.411 While “law” in some sense is indeed part of the sharīʿa it can never be
equated with “law simpliciter”.412 Such a theoretical and methodological approach
does more to confuse and obscure, rather than clarify what the sharīʿa is and what
Islamic legal culture genuinely entails.
The forgoing inquiry on Orientalist intimations of the “law” in Islamic law begs the
question of how Islamic legal scholars, the fuqahāʾ, themselves defined sharīʿa and
fiqh. How where legality, legal norms and legal language expressed in the indigenous
Islamic juristic tradition? At the outset it must be stressed that the jurists and legal
theorists of Islam were very much aware of the linguistic intricacies and semantical
nuances of language, especially in the context of legal education. In fact, the study of
language has historically been central in legal training and has traditionally been part
of any treatise of Islamic legal philosophy (uṣūl al-fiqh).413 The Shāfiʿī jurist and legal
theorist Abū Isḥāq al-Shīrāzī (d. 1083), among others, counted knowledge of language
(lugha) and grammar (naḥw) as one of the prerequisites for being a jurisconsult (muftī)
who is certified to pronounce legal opinions (fatwā, pl. fatāwā), along with other
conditions such as comprehensive knowledge of the legal judgements (aḥkām)
stemming from the Qurʾān and the Sunna.414 Given the centrality of language in
Islamic legal scholarship, Weiss pointed out that the condition of linguistic
competency as a condition for attaining mastery of the law was perhaps most
developed in Islamic civilization, when compared to other legal cultures of the world.
In his 1984 article on the topic, he writes:
The importance of linguistic science as a tool of other sciences is perhaps in
none of mankind’s cultural traditions more fully recognized than in medieval
Islam. Particularly in the field of law the Muslim divines regarded the study of
411 Bernard G. Weiss, The Spirit of Islamic Law (Georgia, Atlanta: The University of Georgia Press
1998/2006), 17.
412 Weiss (1998/2006), The Spirit of Islamic Law, 8.
413 Šukrija Husejn Ramić, Language and the Interpretation of Islamic Law (Cambridge: The Islamic
Text Society, 2003), XIV. For a succinct survey of premodern Islamic legal and theological education,
see Hallaq (2009), Sharīʿa, 125-158.
414 Abū Isḥāq Jamāl al-Dīn Ibrāhīm ibn ʿAlī ibn Yūsuf al-Shīrāzī, al-Lumaʿ fī uṣūl al-fiqh, ed. Muḥyī
al-Dīn Dīb Mastū and Yūsuf ʿAlī Badawī (Damascus: Dār Ibn Kathīr / Dār al-Kalām al-Tayyib,
2016), 254.
105
language as an absolute requirement without which a would-be jurist could not
aspire to even a minimal degree of competence.415
The primacy of language is clear from the hierarchy of the sciences (ʿulūm) in classical
Islamic legal and theological education. Before endeavoring upon a study of the
“higher” Islamic sciences (al-ʿulūm al-ʿāliyya), such as Islamic law (fiqh), legal
philosophy (uṣūl al-fiqh), philosophical theology (kalām) and Qurʾānic commentary
(tafsīr), students were expected to first immerse themselves into a deep study of the
so-called “instrumental sciences” (al-ʿulūm al-āla). These entailed a systematic study
of morphology (ṣarf), grammar (naḥw), logic (manṭiq), rhetoric (balāgha),
argumentation theory (munāẓara), and philosophy of language (waḍʿ).416 This
educational curriculum was central in law schools and theological seminaries
(madāris, sing. madrasa) throughout the premodern Muslim world, up until modern
times.417 It was in many ways akin to the liberal arts and sciences tradition in the
medieval European scholasticism and was arguably at the root of the historical
development of the first universities in Western civilization, such as those in Oxford,
Bologna, and Salamanca.418
From the middle of the tenth century, Islamic scholars started to produce legal treatises
fully devoted to the genre of legal philosophy (uṣūl al-fiqh). Discussions on the theory
of the law had been written before but were scattered in various other literatures. It
was only then that uṣūl al-fiqh started to mature as an independent field of intellectual
inquiry. One of the first works (that has been preserved) is arguably al-Fuṣūl fī al-uṣūl
(The Resolutions in Juristic Principles) by the Ḥanafī jurist Abū Bakr al-Jaṣṣāṣ (d.
415 Bernard G. Weiss, “Language and Tradition in Medieval Islam: The Question of al-Ṭarīq Ilā
Maʿrifat al-Lugha”, Der Islam: Zeitschrift fur Geschichte und Kultur des Islamischen Oriens 61, No.
1 (1984): 91; cf. on Arabic philology, lexicography, syntax, and stylistics at the service of the legal
scholar, Weiss (1998/2006), 23.
416 For an early modern Ottoman example of this curriculum, see Aḥmad b. Muṣṭafā b. Khalīl
Ṭāshkubrī Zāda (also known in Turkish as Taşköprüzade Ahmed Efendi, d. 1561), Miftāḥ al-saʿāda
wa miṣbāḥ al-sayāda (The Key to Happiness and the Lamp of Lordship) (Beirut: Dār ibn Ḥazm,
1431/2010). For similar early modern examples in other places in the Islamic world, such as North
Africa, see Khaled El-Rouayheb, Islamic Intellectual History in the Seventeenth Century: Scholarly
Currents in the Ottoman Empire and the Maghreb (New York: Cambridge University Press, 2015).
417 See John Walbridge, God and Logic in Islam: The Caliphate of Reason (New York: Cambridge
University Press, 2011), especially 107-120.
418 For an argument for Islamic influences on the emergence of Western universities in the Middle
Ages, see George Makdisi, The Rise of Colleges: Institutions of Learning in Islam and the West
(Edinburgh: Edinburgh University Press, 1981).
106
981).419 A notable exception is the (much) earlier work done by the eponym of the
Shāfiʿī school of law, Muḥammad ibn Idrīs al-Shāfiʿī (d. 820), called al-Risāla, which
preceded al-Jaṣṣāṣ’s Fuṣūl no less than 161 years, albeit that no extant complete and
independent work of uṣūl al-fiqh was written between that span of time.420 These
juridical-philosophical treatises however were peppered with questions of linguistics
and semantics.421 Abū Isḥāq al-Shīrāzī, for example, whom we mentioned above,
spends several chapters on language-related postulates in his work al-Lumaʿ fī uṣūl alfiqh
[The Refulgence in Legal Theory]. Before delving into matters of legal
methodology proper, such as abrogation (naskh), consensus (ijmāʿ), and analogy
(qiyās), al-Shīrāzī delves into the linguistics related to the parts of speech (aqsām alkalām),
literal and metaphorical speech (ḥaqīqa and majāz), and linguistic analysis
from the point of view of language (lugha), custom (ʿurf), law (sharʿ) and analogy
(qiyās).422 Language, as broadly attested to by philosophers before and after the advent
of Islam, can be notoriously ambiguous.423 Hence, in order to understand as precisely
419 Abū Bakr Aḥmad ibn ʿAlī al-Jaṣṣāṣ, al-Fuṣūl fī al-uṣūl, Ed. ʿUjayl Jāsim al-Nashamī, 4 Vols.
(Kuwait: Wizārat al-Awqāf wa Shuʾūn al-Islāmiyya, 1994). For more on al- Jaṣṣāṣ, see Otto Spies,
“Al D̲j̲
aṣṣāṣ”, in The Encyclopedia of Islam, 2nd Edition, Vol. II, Eds. P. J. Bearman, Th. Bianquis, C.
E. Bosworth, E. van Donzel, W. P. Heinrichs et al. (Leiden: E. J. Brill, 1965), 486; Mevlüt Güngör,
“Cessâs”, in TDV İslâm Ansiklopedisi, Vol. 7 (Istanbul: Türkiye Diyanet Vakfı, 1993), 427-8;
Murteza Bedir, “Al-Jaṣṣāṣ (d. 370/981),” in Islamic Legal Thought: A Compendium of Muslim Jurists,
Eds. Oussama Arabi, David S. Powers and Susan A. Spectorsky (Leiden and Boston: 2013), 147-66.
There is some debate about a possibly even earlier text, namely Uṣūl al-Shāshī by a Hanifi jurist of
disputed identity, although this is contested by some. For more on this debate, see Youcef L. Soufi,
“‟Why Study Uṣūl al-Fiqh?”: The Problem of Taqlīd and Tough Cases in 4th-5th /10th-11th Century
Iraq,” Islamic Law and Society 28 (2021), 1-31: Jonathan Brown, The Canonization of al-Bukhārī and
Muslim: The Formation and Function of the Sunnī Ḥadīth Canon (Leiden and Boston: Brill, 2007),
186, fn. 121; Murteza Bedir, “The Problem of Uṣūl al-Shāshī,” Islamic Studies 42, no. 3 (2003): 415-
436.
420 Abū ʿAbd Allāh Muḥammad ibn Idrīs ibn Abbās al-Shāfiʿī, al-Risāla, ed. Muḥammad Kīlānī
(Cairo: Muṣṭafā Bābī al-Ḥalabī, 1969). For further discussion on the so-called gap period between al-
Jaṣṣāṣ’s Fuṣūl and al-Shāfiʿī’s al-Risāla, see the important contribution of Ahmet Temel, The Missing
Link in the History of Islamic Legal Theory: The Development of Uṣūl al-Fiqh between al-Shāfiʿī and
al-Jaṣṣāṣ during the 3rd/9th and Early 4th/10th Centuries (unpublished dissertation, University of
California, Santa Barbara, 2014); cf. Wael B. Hallaq, ‘Was al-Shafiʿi the Master Architect of Islamic
Jurisprudence?’, International Journal of Middle East Studies 25 (1993): 587-605.
421 Hallaq (2009), Sharīʿa, 73.
422 Abū Isḥāq al-Shīrāzī, al-Lumaʿ, 37-44.
423 The ambiguity of language has preoccupied the minds of the brightest human intellects, from the
Ancients, such as investigations into language by the Greek philosopher Aristotle (d. 322 BC) in his
collection of works Organon (and part of the Corpus Aristotelicum), until the so-called “linguistic
turn” in 20th-century Western philosophy, exemplified by Ludwig Wittgenstein (d. 1951), Richard
Rorty (d. 2007), and others. For a succinct overview, see Lyle Campbell, “The History of
Linguistics”, in The Handbook of Linguistics, eds. Mark Aronoff and Janie Rees-Miller (Oxford and
Malden, MA: Blackwell Publishers, 2003), 81-104. Cf. on linguistics in the Islamic tradition, Peter
Adamson and Alexander Key, “Philosophy of Language in the Medieval Arabic Tradition”, in
Linguistic Content: New Essays on the History of Philosophy of Language, eds. Margaret Cameron,
and Robert J. Stainton (New York: Oxford University Press, 2015), 74-99; Bernard G. Weiss, “ʿIlm
107
as possible what God, the Lawgiver (al-Shāriʿ), expected of human beings in order to
live the good life and flourish in this life and the hereafter, the jurists of Islam
developed intricate systems of hermeneutics delineating language that was “clear” or
“ambiguous”, that was “speculative” or “definitive”, and so on. The different schools
of jurisprudence would also develop different ideas about textual indication. Ḥanafi
scholars such as Abū al-ʿUsr al-Bazdawī (d. 1089) would, for example, differentiate
between four levels of textual indication: (1) explicit meaning (ʿibārat al-naṣṣ), (2)
alluded meaning (ishārat al-naṣṣ), (3) inferred meaning (dalālat al-naṣṣ), and required
meaning (iqtiḍāʾ al-naṣṣ).424 Shāfiʿī scholars such as Sayf al-Dīn al-Āmidī (d. 1233),
on the other hand, would differentiate only two levels of textual indication, namely:
(1) pronounced meanings (dalālat al-manṭūq) and (2) implied meanings (dalālat almafhūm).
425 The Muslim jurists also differentiated between words (wāḍiḥ) that are
“clear”, words that are “ambiguous” (mubham), words that are “general” (ʿāmm), and
words that are “specific” (khāṣṣ). The classifications of words into these various
categories would have major implications for their legal applications in the law.426
Another indication of the intimate familiarity of the jurists of Islam with language is
their minute attention for defining words. Almost every chapter in legal treatises start
with defining terms. Islamic scholars took great care to differentiate the linguistic
(lughawī) and technical (iṣṭilāḥī) meanings of legal concepts. To give but one example,
the Bosnian-Ottoman Ḥanafī jurist Ḥasan Kāfī al-Āqhiṣārī (d. 1615) in his primer on
Islamic legal philosophy Sharḥ Samt al-wuṣūl ilā ʿilm al-uṣūl [Commentary on The
Way of Attainment to the Science of Juristic Principles] goes into great detail
explaining the different definitions and layers of meaning of the word fiqh; a term
which has much broader connotations than its mere technical legal sense of “Islamic
al-waḍʿ: An Introductory Account of Later Muslim Philological Science”, Arabica 34, No. 3 (1987):
339-356.
424 Ḥusām al-Dīn Ḥusayn ibn ʿAlī ibn Ḥajjāj al-Sighnākī, al-Kāfī fī sharh Uṣūl al-Badawī, ed. Fakhr
al-Dīn Sayyid Muḥammad Qānit (Maktaba al-Rushd, 2001), 203.
425 Abū al-Ḥasan Sayf al-Dīn ʿAlī ibn Muḥammad ibn Sālim al-Saʿlabī al-Āmidī, al-Iḥkām fī uṣūl alaḥkām,
Vol. 3, ed. ʿAbd al-Razzāq al-ʿAfīfī (Dār al-Ṣamīʿī, 2003), 81. For an elaborate discussion on
the differences between Ḥanafi and Shāfiʿī intimations of textual indications, see Ramić (2003),
Language and the Interpretation of Islamic Law, 1-64.
426 For a succinct overview of these classifications and a comparison between especially the Ḥanafī
and Shafiʿī schools, see Šukrija Husejn Ramić, Language and the Interpretation of Islamic Law
(Cambridge: The Islamic Text Society, 2003).
108
law”.427 His treatment of the term includes linguistic analysis, technical legal analysis,
as well as historical conceptual analysis in which he analyzes how the meanings of the
word changed over time. Al-Āqhiṣārī details that the term fiqh initially had a much
broader meaning than what we now perceive as “Islamic law” in Islamic legal history.
Linguistically the term fiqh merely means “understanding” (fahm). It was only later
that fiqh became a technical term that became associated with legal judgements (ḥukm,
pl. aḥkām). In terms of the Sharīʿa, al-Āqhiṣārī evokes the famous explanation of fiqh
by Abū Ḥanīfa (d. 767), the eponym of the Ḥanafī legal school, that fiqh is “to know
regarding oneself what is for one and what is against one” (maʿrifat al-nafs ma lahā
wa mā ʿalayhā), which he explains refers to what is allowed and what is prohibited.428
This broader meaning, however, went well beyond the legal scope and incorporated
the allowed and disallowed in the realms of religious beliefs (iʿtiqādāt), theology
(kalām), and even spirituality (taṣawwuf). Only after this elaboration he comes to the
definition of fiqh as in the ‘science of legal judgments with regards to the Sharīʿa’.429
The linguistic (lughawī) meaning of term sharīʿa is a “path that leads to a water
hole”.430 Or, according to some sources, it is the road that leads riding camels (al-ibil,
pl. ābāl) to a source of running water (al-māʾ al-jārī), which is a striking metaphor
given the aridity and barrenness of the deserts of the Arabian Peninsula (and hence
perhaps an indication of its significance for early Muslim society).431 In the Qurʾān the
form “Sharīʿa” is used only a singly time.432 In verse 45:18-20 it speaks of a clear
“path” (sharīʿa) for the Muslims to follow and the revelation of the Qurʾān providing
insight (baṣāʾir), guidance (hudā), and mercy (raḥma) on this path:
427 Ḥasan ibn Tūrkhān ibn Dāwūd ibn Yaʿqūb al-Zīnī al-Būsnawī al-Āqhisārī, Sharh Samt al-wuṣūl ilā
ʿilm al-uṣūl, (Dār Ibn Jawzī, 2010), 332-343. Al-Āqhisārī’s Samt al-wuṣūl is itself an abridgement of
the widely studied treatise on Islamic legal philosophy Manār al-anwār fī uṣūl al- fiqh [The beacon of
lights in the principles of jurisprudence], by the famous early fourteenth-century Ḥanafī scholar Abū
al-Barakāt al-Nasafī (d. 1310), which was widely studied in Ottoman religious seminaries (madrasa,
pl. madāris).
428 See section 2.4. on the development of the classical Sunnī schools of law.
429 Al-Āqhisārī, Sharh Samt al-wuṣūl ilā ʿilm al-uṣūl, 68-72.
430 Nail Okuyucu, Fıkıh İlmine Giriş: Metinler Seçkisi (Istanbul: Ketebe Yayınları, 2019), 371; Talip
Türcan, “Şeriat”, TDV İslâm Ansiklopedisi, Vol. 38 (Istanbul: Türkiye Diyanet Vakfı, 2010), 571-572;
Weiss (1998/2006), The Spirit of Islamic Law, 17.
431 Okuyucu, Fıkıh İlmine Giriş, 371; Weiss, The Spirit of Islamic Law, 17.
432 The term Sharīʿa and its derivatives also prominently figure in the corpus of prophetic narrations
(ḥadīth, pl. aḥadīth). For examples, see Türcan, Şeriat, 571-572.
109
(18) Now We have set you [Muhammad] on a clear religious path (sharīʿa), so
follow it. Do not follow the desires (ahwāʾ) of those who lack [true] knowledge
– (19) they cannot help you against God in any way. Wrongdoers (al-ẓālimīn)
only have each other to protect them; the righteous (al-muttaqīn) have God
Himself as their protector (walī). (20) This [revelation] is a means of insight
(baṣāʾir) for people, a source of guidance (hudā) and mercy (raḥma) for those
of pure faith (li-qawmin yūqinūn).
In addition, derivatives of the word “Sharīʿa” (such as “shirʿatan”) have been used to
denote different “laws” and “paths” (minḥāj, pl. manāḥij) for the people of all divinely
guided religions. Such as for examples in verse 5:48, which speaks about God sending
a plurality of “scriptures” over time that provide the guiding laws for each particular
people. This plurality is then sanctioned by God by stating that he could have made all
of humanity into “one community” (ummatan wāḥidatan) but chose to not do so.
Instead, the Muslims are to “judge between them” according to the truth:
We sent to you [Muhammad] the Scripture with the truth (bi-l-ḥaqq),
confirming [all] the Scripture that came before and protecting it: so judge
between them (faḥkum baynahum) according to what God has sent down. Do
not follow their whims (ahwāʾahum), which deviate from the truth (al-ḥaqq)
that has come to you. We have assigned a law (shirʿatan) and a path (minhājan)
to each of you. If God had so willed, He would have made you one community
(ummatan wāḥidatan), but He wanted to test you through that which He has
given you, so race to do good (al-khayrāt): you will all return to God and He
will make clear to you the matters you differed about.
This verse is often discussed in juridical treatises in the context of the question of the
role of the divinely revealed laws from before the advent of Islam. This would have
practical implication on the law, since the answer to this inquiry – about which the
jurists differed in opinion – would determine the utilization, if at all, of pre-Islamic
monotheistic laws, such as those of Christianity or Judaism, on issues where the
Islamic law was silent.433
As a legal concept, the stand-alone term of Sharīʿa is not often elaborately discussed
in legal treatises. As a legal term its more widespread usage (as well as that of the form
sharʿ) seems to have occurred particularly after the eighth century. In one the early
433 For a discussion on this topic, see Hallaq, A History of Legal Theories, 115-117.
110
juridical text, the Risāla of al-Shāfiʿī (d. 820), the eponym of the Shāfiʿī school of law,
the word appears only once in its plural form (al-sharāʾiʿ).434 Instead, the jurists of
Islam seem to have been much more concerned with the idea of the Sharīʿa as a “body
of categorizations” regarding human action (al-aḥkām fī-l-afʿāl or al-aḥkām al-
ʿamaliyya), or in other words “Sharīʿa categorizations” (al-aḥkām al-sharʿiyya), such
as “prohibited”, “disliked”, “recommended”, “unlawful”, and so forth.435 In that sense
Sharīʿa encompasses and governs all human action (and interaction).436 It is a totality
of legal, moral, and ritual norms that “constitutes an entire way of life”.437 As Weiss
points out, the Sharīʿa might well be “the most comprehensive concept of Islam” and
indeed constitutes “the very core of Islam”.438 As a term that expresses the entirety of
Islamic values, it is stressed more even that the term dīn, which refers to the basic
notion of “religion”.439 It is for that exact reason that Muslim jurists never made a
distinction between the legal and moral dimensions of “Islamic law”, as was the case
in the legal positivism of the modern West from the eighteenth century onwards.440
The Islamic legal tradition differentiates between the Sharīʿa categorizations as such
(al-aḥkām al-sharʿiyya) and their understanding by the legal scholars of Islam
(fuqahāʾ), articulated in the science of fiqh. In fiqh the human being as a legal scholar
is its subject, while the subject of the Sharīʿa is God as Lawgiver (shāriʿ).441 In this
context, Weiss makes the further distinction between “law as an object residing in the
being of God” and “law as a construction of fallible jurists” (i.e., “Sharīʿa law” and
434 Türcan, Şeriat, 572. For the exact occurrence, see Muḥammad ibn Idrīs al-Shāfiʿī, al-Risāla, ed.
Aḥmad Muḥammad Shākir (Cairo: Maṭbaʿa Muṣṭafā al-Bābī al-Ḥalabī, 1939), 92.
435 Weiss, In Search of God’s Law, 1; Weiss, The Spirit of Islamic Law, 18. For a more elaborate
discussion on the Sharīʿa categorizations, see section 2.5.1.
436 This is why according to some contemporary scholars fiqh – the science that comes out of the
sharīʿa – could arguably be seen a “social science”. See, for example, Recep Şentürk, “Toward an
Open Science and Society: Multiplex Relations in Language, Religion and Society: Revisiting
Ottoman Culture”, İslâm Araştırmaları Dergisi 6 (2001): 93-129.
437 Weiss, The Spirit of Islamic Law, 8 and 17.
438 Weiss, The Spirit of Islamic Law, 16.
439 Türcan, Şeriat, 572. For an engaging exposition of the concept of dīn, see Rushain Abbasi, “Did
Premodern Muslims Distinguish the Religious and the Secular? The Dīn-Dunyā Binary in Medieval
Islamic Thought”, Journal of Islamic Studies 31, No. 2 (2020): 185-225. In light of our discussion on
legal Orientalism, it is worth pointing out that similar critiques exist on the use of the term “religion”.
For an excellent discussion on this, see Markus Dressler and Arvind-Pal Mandair (eds.), Secularism
and Religion-Making (New York: Oxford University Press, 2011), 5-24.
440 Hallaq, sharīʿa, 85. For an overview of legal positivism and its division of morality and legality,
see Brian H. Bix, “Legal Positivism”, in The Blackwell Guide to the Philosophy of Law and Legal
Theory, eds. Martin P. Golding and William A. Edmundson (Malden, MA and Oxford: Blackwell
Publishing, 2005), 29-49.
441 Weiss, Searching for God’s Law, 13.
111
“jurists law”).442 The science of fiqh thus refers to the academic endeavor of
“exploration, interpretation, analysis and presentation of the law, whether this takes
place in books, in schools, in the mind or in formal response to a specific question”.443
The science of fiqh is further divided into substantive law (furūʿ al-fiqh) and legal
philosophy (uṣūl al-fiqh), or the “branches of fiqh” and the “roots” (i.e., principles) of
fiqh.444 The Shafiʿī jurist al-Shīrāzī defines fiqh in his legal treatise al-Lumaʿ as
“knowing the rulings (aḥkām) of the Sharīʿa that are the way to legal reasoning (alijtihād)”.
445 The Ḥanafi legal scholar al-Āqhisārī, in his commentary on the legal
primer Samt al-wuṣūl refers to the known definition mentioned earlier.446 He adds to
that the legal definition: “to understand the subtle meanings (al-maʿnā al-khafī) that
relate to legal rulings (al-ḥukm)”. In a second, slightly more elaborate definition, alĀqhisārī
defines fiqh as: “the science of the legal rulings of the Sharīʿa with regards to
human actions (al-aḥkām al-sharʿiyya al-ʿamaliyya) as they are derived from their
detailed proofs (adillatihā al-tafṣīliyya)”.447 The other branch of fiqh, namely uṣūl alfiqh,
which could also be translated as the philosophy of the law, is defined as “the
science of the principles (qawāʾid) through which one can reach the rulings of the law
(i.e. al-aḥkām al-sharʿiyya) with a method of careful examination (ʿalā wajhi altaḥqīq)”.
448
442 Weiss, The Spirit of Islamic Law, 120.
443 Calder, Law, 981.
444 The Islamic legal genre of uṣūl al-fiqh is variably translated as “Islamic legal theory”, “Islamic
legal philosophy”, “principles of Islamic jurisprudence”, “theoretical jurisprudence” and the like.
Unfortunately, the argument that Islam knows no “philosophy of law” is still perpetuated in some
scholarship, which is an outdated perspective. The prominent Islamic legal historian Aaron Zysow, to
take but one example, has no hesitation comparing uṣūl al-fiqh to the works of Western legal
philosophers such as John Austin and Hans Kelsen, see Aaron Zysow, The Economy of Certainty: An
Introduction of the Typology of Islamic Legal Theory (Atlanta: Lockwood Press 2013), 1. In addition,
it is well- established in Western scholarship that there is no obvious distinction between legal
“philosophy” and “theory”. See for example Edmundson, who calls the distinction “evanescent” and
“arbitrary”, in Martin P. Golding and William A Edmundson (eds), The Blackwell Guide to the
Philosophy of Law and Legal Theory (Blackwell Publishing 2005). Also see recent contributions to
the discussion of legal philosophy in Islam in Peter Adamson (ed), Philosophy and Jurisprudence in
the Islamic World (De Gruyter 2019).
445 Al-Shīrāzī, al-Lumaʿ, 34 [maʿrifat al-aḥkām al-sharʿiyya allatī ṭarīquhā al-ijtahād].
446 See footnote 133.
447 Al-Āqhisārī, Sharh Samt al-wuṣūl ilā ʿilm al-uṣūl, 68 [al-wuqūf ʿalā al-maʿnā al-khafī alladhī
yataʿallaqa bihi al-ḥukm] and 70 [al-ʿilm bi-l-aḥkām al-sharʿiyya al-ʿamaliyya min adillatihā altafṣīliyya].
448 Al-Āqhisārī, Sharh Samt al-wuṣūl ilā ʿilm al-uṣūl, 72-73 [al-ʿilm bi-l-qawāʾid allatī yutawaṣṣala
bihā ilayhi ʿalā wajhi al-taḥqīq].
112
The juridical literature in the various legal sciences of fiqh described above took shape
in a variety of literary genres throughout the Middle Ages until early modernity (and
beyond). The main treatises of substantive law (furūʿ al-fiqh) dealt with themes related
to worship (ʿibādāt) and social transactions (muʿamalāt), such as marriage,
inheritance, contracts and obligations, taxes, property law, criminal offenses and the
like. These types of works eventually came to be subdivided into legal digests
(mukhtaṣar) and detailed explorations of the law (mabsūṭ).449 Works on legal
philosophy (uṣūl al-fiqh) dealt mainly with the basic proofs for legal rulings and the
principles for legal reasoning, but also dealt with such issues as legal personality
(dhimma), legal capacity (ahliyya), and rights (ḥuqūq). In addition, there were many
other legal genres, such as books on juristic biographies (ṭabaqāt) and legal responsa
(fatāwā). These literary genres make up the corpus of classical juridical source texts
in which the Islamic rights discourse was stipulated, analyzed and developed, which
will be explored in the next sections of this chapter and in Chapter VI of this thesis.
4.3. Rights Discourses in Medieval and Early Modern Islamic Juridical
Literature
Islamic law arose on the historical horizon of human history with the advent of the
religion of Islam and the prophetic message at the outset of the seventh century of the
Common Era.450 As a dynamic civilization infused with new ideas, modes of piety and
religious ethics, Islam brought a tremendous amount of intellectual and cultural
creativity and vitality to the seventh century Arabian Peninsula and beyond. At the
same time, Islamic societies where the inheritors of established frameworks of ancient
Middle Eastern civilizations, including modes of living and social arrangements, such
as family and tribal structures, agriculture, urban centers, market economies,
monotheistic religious ethics and bureaucratic empires.451 The sources of the
formation of the Sharīʿa however, were not a foreign intrusion. They were an internal
449 Treatises from the mukhtaṣar-genre would mostly serve as a teaching primer in a madrasacurriculum,
which would be a gateway to ever more advanced texts on the path of mastering a
particular school of law and becoming a jurist (faqīh) or jurist-consult (muftī), see footnote 120. For
an excellent overview on legal education in premodern Islam, see Hallaq, Sharīʿa, 125-158.
450 My usage of the term “Islamic law” hereon forward should be understood in the context of my
discussion of the term in paragraph 2.2.
451 Lapidus, A History of Islamic Societies, 3.
113
development. However, it was the case that Islam inherited certain pre-existing social
institutions, such as polygamy and slavery which broadly existed in human societies
in late antiquity. The institutions, however, Islam highly regulated and emancipated.452
From the formative period of the Islamic Schools of Law in the tenth century and
afterwards until the advent of modernity – and in its wake the rise of European
colonialism and imperialism – the Islamic legal tradition was able to flourish and
develop with remarkable consistency and continuity. This, it may be said, was due to
a plethora of reasons, some of which are religious in nature, while others are sociopolitical,
educational, or even economical in nature. Legal historian Norman Calder
remarks in this regard:
Islamic law, in the thousand years or so of its cultural dominance, was the
product of a highly sophisticated civilization. It was intimately related to an
educational system which was more or less homogeneous throughout all premodern
Muslim societies. Its long-term flourishing was due to the inherent
flexibility of a conceptual structure which served to describe revelation,
tradition and society.453
Wael B. Hallaq speaks in this regard about “a structural and systemic unity”, despite
cultural variety. He argues that in whatever geography of the vast stretches of the
Islamic world – be it in the Western parts of the Islamic world, such as the Maghreb,
or in the Eastern parts of the Islamic world, such as Central Asia – legal practices
shared many similarities. These included legal procedures, legal ethics, substantive
laws and more. There was a certain legal paradigm and ethic that was imbedded in
Quranic notions of justice, which focused on social stability on shared community. In
also included, Hallaq argues, despite its internal varieties, many similarities regarding
law, legal doctrine and the moral framework of a just society.454
The possibility of a specifically Islamic “rights talk” is often questioned in scholarship
on Islam and human rights.455 Some scholars claim there is no conception of individual
452 For the early history of Islamic law, see the elaborate discussions in Wael B. Hallaq, The Origins
and Evolution of Islamic Law (New York: Cambridge University Press, 2005).
453 Calder, Law, 984.
454 Hallaq, Sharīʿa, 16.
455 For an extensive survey of Islam and human rights scholarship, see chapter 2 of this thesis.
114
rights in the classical Islamic legal tradition and that it is merely a “duty-based
system”. Henry Siegman, for example, claimed – based on his analysis of Islamic
statehood – that “no such abstraction as “individual rights” could have existed in
Islam”.456 The Orientalist scholar Joseph Schacht (d. 1969) asserted about the Islamic
legal tradition that Islam was not revealed to humanity to bring a new system of law
but to educate human on how to conduct life in order to secure their afterlife.
Therefore, Schacht argues, Islamic law is a “system of duties” that consists of certain
religious rituals and obligations.457
The late scholar Bernard G. Weiss (d. 2018) had a somewhat more lenient view than
we have seen from older-generation Orientalists like Schacht and Siegman. He
stresses, for example, that Islamic law – through its various genres of legal literature
(fiqh-manuals, legal commentaries, fatwa collections, and so on) – does accord a “large
measure of freedom to human beings” and also “takes pains to safeguard their
legitimate rights”.458 In the end however, he supports Schacht’s view of Islamic law
as a “duty-based system” by arguing that Islamic law’s primary concern and emphasis
is not of rights and freedoms but on “duties and constrains”.459
These claims were made not only by Orientalists. Similar claims have been made by
Muslim scholars of modernist proclivity. The prominent Shīʿī Muslim human rights
scholar Abdulaziz Sachedina, for example, claims that mainstream Sunnī classical
jurisprudence never developed a systematic theory of natural law as a basis for the
“natural and inalienable rights of human beings”.460 According to Sachedina, only
Muʿtazilī and Shīʿī scholars developed the legal and theological doctrines regarding
human moral worth and moral agency that could serve as a basis for universal human
456 See Henry Siegman, “The State and the Individual in Sunni Islam”, The Muslim World 54, No. 1
(1964): 22-24.
457 Joseph Schacht, In Introduction to Islamic Law (Oxford: Clarendon Press, 1982), 11. In this
regard, also see N. J. Coulson, “The State and the Individual in Islamic Law”, International and
Comparative Law Quarterly (1957): 51-52; Joseph Schacht, “Law and Justice”, in The Cambridge
History of Islam, Vol. 2B, eds. Ann K. S. Lambton and Bernard Lewis (Cambridge: Cambridge
University Press, 1970), 541; Mohammad Hashim Kamali, Shariʿah Law: An Introduction (Oxford:
Oneworld Publications, 2008), 199-205.
458 Weiss (1998/2006), The Spirit of Islamic Law, 145.
459 Weiss (1998/2006), The Spirit of Islamic Law, 145.
460 Abdulaziz Sachedina, Islam and the Challenge of Human Rights (Oxford University Press, 2009),
91. For a different perspective on Islam and natural law, see Anver M. Emon, Islamic Natural Law
Theories (New York: Oxford University Press, 2010).
115
rights. In doing so, however, he completely ignored the Ḥanafī-Māturīdī legal
tradition, one of the major legal and theological schools of Sunnī Islam.461 In addition,
the assumed absence or inadequacy of an indigenous rights discourse in classical Sunnī
Islamic jurisprudence has prompted some reform-minded Muslim scholars to
incorporate Western human rights conceptions in order to radically adjust Islamic legal
tradition to modern times.462
Indeed, the presumed absence of the literal word of “right” (or a similar correlate) in
Islamic legal discourse – if for the sake of the argument we would agree this is the case
– does not imply the absence of the related idea or concept of rights.463 In fact, similar
claims have been made by historians about the Western legal tradition. Benjamin
Constant (d. 1830), the influential political theorist who would influence modern
liberal notions of liberty with his famous his 1819 speech The Liberty of Ancients
Compared with that of Moderns, for example, would state that the ancients had “no
notion of individual rights” and that the individuality of the ancients meant a complete
subjection to “the authority of the community”.464
So, what then, could be considered a “right” in the Islamic legal tradition? In the
following sections we consecutively discuss the basic ideas of moral responsibility
(taklīf), legal personality (dhimma) and legal capacity (ahliyya), which are necessary
elements for human beings to be considered “rights-holders” and enables them to
legitimately make claims upon other people. We then delve into the rights hermeneutic
of the so-called “rights of God” (ḥuqūq Allāh) and “rights of human beings” (ḥuqūq
al-ʿibād), which could be compared to the distinction of public and private rights in
the Western legal tradition.
461 See Ulrich Rudolph, Al-Māturīdī and the Development of Sunnī Theology in Samarqand, trans.
Rodrigo Adem (Brill 2015); Ramon Harvey, Transcendent God, Rational World: A Māturīdī
Theology (Edinburgh University Press, 2021). For a more general overview of these different Islamic
theological schools, see Tim Winter (ed), The Cambridge Companion to Classical Islamic Theology
(Cambridge University Press 2008).
462 See, for example, Ebrahim Moosa, “The Dilemma of Islamic Rights Schemes”, Journal of Law
and Religion 15, No. 1-2 (2000-2001): 185; Tariq Ramadan, Radical Reform: Islamic Ethics and
Liberation (New York: Oxford University Press, 2009).
463 Duncan Ivison, Rights (Stocksfield: Acumen, 2008), 4.
464 Cited in Ivison (2008), Rights, 3. Benjamin Constant made an astute impact upon the thinking of
political philosopher Isaiah Berlin and his dual conception of positive and negative liberty in the now
famous essay “Two Concepts of Liberty”. See Isaiah Berlin, Liberty: Incorporating Four Essays on
Liberty (New York: Oxford University Press, 2002). For an elaborate discussion on the (contested)
histories of Western notions of rights, see chapter 3 of this thesis.
116
4.3.1. Taklīf and Dhimma: Moral Responsibility and Legal Personality
Islamic law regulates human action and human relationships in its totality. It does so
by taking into consideration both the private sphere and the public sphere of human
life. Part of Islamic law are also offers regulations regarding worship and religious
rituals; the so-called five pillars of faith, mentioned by the prophet of Islam in a famous
narration (buniya al-islām ʿalā khams) and stipulated throughout the Qurʾān.465 These
are the testimony of faith (al-shahāda), prayer (al-ṣalā), the alms-tax (al-zakā), the
pilgrimage (al-ḥajj), and fasting (al-ṣawm).466 In addition, Islamic law categorizes
human acts on a continuum from being strictly obligatory to strictly forbidden. These
categorizations vary among the schools.467 But what the schools have in common is
the gradations between the two opposites of strictly obligatory (farḍ) and strictly
forbidden (ḥarām), such as merely permissible (mubāḥ), recommended (sunna), and
discouraged (makrū). The elements of rulings about worship, religious rituals and
human acts that are neither obligatory nor forbidden (but somewhere in between) have
prompted some Western scholars of Islamic legal history to comment that, strictly
speaking, these elements of “Islamic law” should not be considered “law” proper but
belong to the realm of morality.468 To do so, however, is maintaining an evaluation of
465 See Ibn Ḥajar al-ʿAsqalānī, Fatḥ al-bārī bi-sharḥ ṣaḥiḥ al-Bukhārī, Vol. 1, ed. Shuʿayb al-Arnāʾūṭ
and ʿĀdil Murshid (Beirut: al-Risāla al-ʿĀlimiyya, 2013), 106. For examples from the Qurʾān, see
verses 64:8, 20:14, 9:71, 2:197 and 2:185, among many others.
466 The testimony of faith is usually used in its dual form of ‘the two testimonies of faith’ (alshahadatayn),
referring to the testimony that God is one and that the Prophet Muḥammad is his
messenger (shahādati an lā ilāha illa allāh wa anna muḥammadan rasūl Allāh).
467 The Ḥanafī school, for example, would differentiate between obligatory acts (farḍ), unlawful acts
(ḥarām), necessary acts (wājib), recommended acts (sunna), permissible (mubāḥ), discouraged acts
(makrū), and voluntary acts (nafl) (with further subcategorizations, such as “somewhat
recommended”, “highly recommended”, etc.). See Ḥasan Kāfī al-Āqhisārī, Sharh Samt al-wuṣūl ilā
ʿilm al-uṣūl, (Dār Ibn Jawzī, 2010), 306-319. For categorizations in other schools, see for example
ʿAbd al-Wahhāb Khallāf, ʿIlm uṣūl al-fiqh, 2nd Edition (Cairo: Maktaba al-Daʿwa al-Islāmiyya, n.d.),
105-116.
468 Reinhart (2010), Law, 220-244; Weiss (1998/2006), The Spirit of Islamic Law, 17-23; Weiss
(2010), In Search of God’s Law, 2-8. In the latter work, Weiss admits that to speak of the Sharīʿa in
terms of the “law versus morality” dichotomy is to superimpose a language that is alien to the Islamic
Weltanschauung, as both dimensions that are nominally considered as ‘moral’ and ‘legal’ in Western
philosophy are combined in the Sharīʿa, see 6-7. The idea of strictly separating morality and law
gained ground in the West especially with the work of legal positivist John Austin, in which he says,
among other things: “Having determined the distinguishing marks of positive moral rules, I determine
the respective characters of their two dissimilar kinds: namely, the positive moral rules which are laws
imperative and proper, and the positive moral rules which are laws set by opinion”. See John Austin,
The Province of Jurisprudence Determined, ed. Wilfrid E. Rumble (New York: Cambridge University
Press, 1995), 15.
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the Sharīʿa that is grounded in legal Orientalism and does injustice to the Islamic
Weltanschauung and its moral religious-philosophical underpinnings.469
In the Islamic worldview God has created the universe and everything in it. God, being
the creator of all there is in existence (al-mawjūdāt kulluhā), is ultimately the Owner
(Mālik) and Legislator (Shāriʿ) of the world.470 But He also describes Himself as just,
merciful and bountiful.471 Hence, he bestowed upon humanity his bounties and
blessings and made them into caretakers of the earth (khalīfa).472 In the Qurʾān, God
described the moment before the creation of the earth, when he first created the souls
of human beings, and asked: “Am I not your Lord?” (alastu bi-rabbikum). To which
the souls of mankind answered: “Yes, we bear witness” (qālū balā, shahidnā).473 On
this basis God made a primordial covenant (mīthāq) with humanity, which includes
the fulfilment of rights and duties upon human beings.474 Other words that are used to
connotate similar meanings in the Islamic religious scripture are the Arabic synonym
for “covenant” (ʿahd) and several secondary words, such as “burden” (iṣr), “trust”
(amāna), and “promise” (waʿd).475 Especially the ideas of fulfilling God’s covenant
(ʿahd) and trust (amāna) figure dominantly in Islamic juridical literature, as we will
see in our discussion on legal personality (dhimma) and legal capacity (ahliyya). Both
terms are used in the Qurʾānic discourse in the meaning of “trust” and “covenant”,
referring to the characteristics of the believers as those “who are faithful to their trusts
and covenants” (alladīna hum li-amānātihim wa ʿahdihim rāʿūn).476 Some scholars
have argued that the “covenant terminology” in the Qurʾān also extents to meanings
such as aslama (a derivative of salām, i.e., “peace”) – as in “to enter a state of peace”
– and barāʾa (immunity or being released from obligations).477 These references
469 Hallaq (2009), Groundwork of the Moral Law, 239-279.
470 See Abū Ḥāmid al-Ghazālī, al-Maqṣad al-asnā fī sharh al-maʿanī asmā Allāh al-ḥusnā, ed.
Bassām ʿAbd al-Wahhab al-Jābī (Beirut: Dār Ibn Ḥazm, 2003), 140-141.
471 Qurʾān, 3:74, 62:4, 21:47.
472 Qurʾān, 2:30.
473 Qurʾān, 7:172.
474 The Qurʾān also refers to the concept of mīthāq as a “prophetic covenant” between God and the
prophets that he sent, such as Muḥammad, Nūḥ, Ibrāhīm, Mūsā, and ʿIsā. In that sense it mentions the
covenant of the prophets (mīthāq al-nabiyyīn), see Qurʾān 3:81, 33:7.
475 For an elaborate explanation of the idea of a divine covenant in Islam, see Joseph E. B. Lumbard,
“Covenant and Covenants in the Qur’an”, Journal of Qur’anic Studies 17, No. 2 (2015): 1-23; John
Wansbrough, Quranic Studies: Sources and Methods of Scriptural Interpretation (New York:
Prometheus Books, 2004), 8-12.
476 Qurʾān, 23:8, 70:32.
477 Qurʾān, 54:43, 9:1.
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offered the “locus probans” for the juristic theory of treaty making in Islamic legal
discourse.478
The Sharīʿa is thus fundamentally based on the idea of honoring the covenant with
God and the moral responsibility (taklīf) upon human beings that come with that.
Hence, to eliminate from the idea of “Islamic law” the moral foundations of the law,
is to deny the very religious and philosophical grounds of what law entails in the
Islamic Weltanschauung, which is to fulfill the covenant of God. In this regard, all
human beings in essence are held responsible under the law (mukallif), although legal
responsibility might be impeded upon due to various reasons, ranging from not having
reached the age of majority (bulūgh) to being mentally impaired (junūn).479 Both of
these are examples of human states in which human beings are unable to fulfil the
rights and obligations that are upon them. Other than that, human beings are subject to
the law and its stipulations. But it also makes them bearers of rights and duties (ḥuqūq)
and as such have the legal capacity (ahliyya) to be subject to legal relations, such as
entering into contracts, getting married, receiving or giving inheritance, paying
different forms of taxes, or litigating in courts in the case of criminal acts.480
To be a legal person is to be subject of rights and duties, or in other words to have the
“capacity for legal relations”.481 As opposed to a mere synonym to “human being”, as
Charles Taylor describes in his essay on personhood, the idea of a “person” plays a
role specifically in moral and legal discourse, as a “being with a certain moral status,
or a bearer of rights”.482 In that same way, human beings in Islam are perceived as
478 See Wansbrough, Quranic Studies, 11.
479479 For some of the legal conditions (shurūṭ) for a person to be considered morally responsible (almaḥkūm
ʿalayh), see Khallaf, ʿIlm uṣūl al-fiqh, 134-136.
480 We give more elaborate explanation of theories of legal capacity (ahliyya) and rights (ḥuqūq) in
the following two sections of this chapter.
481 Bryant Smith, “Legal Personality”, Yale Law Journal 37, No. 3 (1928): 283. For a critical view of
the term “legal personality”, see W. W. Geldart, “Legal Personality”, Law Quarterly Review 27, No. 1
(1911): 95. In which the author mentions the view: “legal personality is a phrase which has no
intelligible meaning: law is only concerned with legal capacity; we must not however think of legal
capacity as an attribute inhering in a personal subject, but as being itself the subject to rights and
duties”. Also, see Martin Wolff, “On the Nature of Legal Persons”, Law Quarterly Review 494, No. 4
(1938): 494-521.
482 Charles Taylor, Human Agency and Language: Philosophical Papers 1 (Cambridge and New
York: Cambridge University Press, 1985), 97. Underlying the idea of a human being as a legal person
that has a certain moral status, Taylor says, are certain “capacities”. We will delve deeper into the idea
of legal capacity within the Islamic legal discourse in the next section of this chapter.
119
rights-bearers, or rather bearers of ḥuqūq.483 The term dhimma in the fiqh-literature
corresponds largely to the concept of legal personality in modern law and refers to the
ground of existence (the raison d'être) of basic human rights and duties in Islamic
law.484 There is mention of the term dhimma in the sense of the “protection of God”
(dhimmat Allāh) in the early seventh-century Islamic treaty called the “Constitution of
Madina” (ṣaḥīfat al-madīna), which laid out the rights and duties of Muslim and non-
Muslim citizens of the city of Madina.485 According to scholarship, however, the term
dhimma was first used by the Ḥanafī jurist Abū Zayd al-Dabūsī (d. 1039) as a
philosophical grounding for a “legal person” who therefore has rights and duties.486
The linguistic (lughawī) meaning of dhimma is “promise” (al-ʿahd) because breaching
it requires condemnation (al-dhamm).487 The concept of dhimma occurs in the Islamic
religious scriptural sources, the Qurʾān and Sunna, in both its linguistic as well as in
its technical (iṣṭilāhī) legal meaning, albeit that in the ḥadīth-literature it is mostly used
in its linguistic sense.488 But even in the Qurʾān the term dhimma is used sparingly. In
various verses it is understood in its technical sense of a covenant (or treaty) and the
mutual duties that follow from it. In sūra 9:7-10, for example, God urges the Muslims
to honor to their agreements with the non-Muslims, as long as they reciprocate this
loyalty as well. It then reprimands the idolators (al-mushrikīn) of Mecca for having
breached a treaty with the Muslims, saying:
How could there be a treaty (ʿahd) with God and His Messenger for idolaters?
– But as for those with whom you made a treaty (ʿāhattum) at the Sacred
Mosque, so long as they remain true to you, be true to them; God loves those
who are mindful of Him. – (7) [How,] when, if they were to get the upper hand
over you, they would not respect any tie with you, of kinship or treaty
(dhimma)? They please you with their tongue, but their hearts are against you
483 In this account of legal personality, I focus on the natural personality (human beings) and not
juristic personality (charitable foundations and the like). For an account of juristic personality in
Islamic, see Mahdi Zahraa, “Legal Personality in Islamic Law”, Arab Law Quarterly 10, No. 3
(1995): 193-206.
484 Eyüp Said Kaya & Hasan Hacak, “Zimmet”, TDV İslâm Ansiklopedisi, Vol. 44 (Istanbul: Türkiye
Diyanet Vakfı, 2013), 424.
485 See R. B. Serjeant, “The ‘Constitution of Medina”, Islamic Quarterly 8, No. 1 (1964): 3-16. The
terms ʿahd and mīthāq however do not occur in the Constitution of Medina, see Wansbrough, Quranic
Studies, 9-10.
486 Eyüp Said Kaya & Hasan Hacak, “Zimmet”, TDV İslâm Ansiklopedisi, Vol. 44 (Istanbul: Türkiye
Diyanet Vakfı, 2013).
487 Nail Okuyucu, Fıkıh İlmine Giriş: Metinler Seçkisi (Istanbul: Ketebe Yayınları, 2018), 361.
488 Kaya & Hacak, Zimmet, 424.
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and most of them are law-breakers. (8) They have sold God’s message for a
trifling gain, and barred others from His Path. How evil their actions are! (9)
Where the believers are concerned, they respect no tie of kinship or treaty
(dhimma). They are the ones who are committing aggression. (10)
In the juridical sense, dhimma is defined in various ways. Some of the fuqahāʾ have
considered dhimma a quality (waṣf) and have defined it as “the quality that enables the
capacity in a person for having rights and duties” (ahlan lil-ījāb lahu wa ʿalayhi). Yet
others have considered dhimma as a person (dhāt), rather than a quality, and defined
it as “someone who has a covenant” (nafsun lahā ʿahd). However, according to all the
jurists of Islam, every human being is born with valid dhimma that capacitates them to
have rights and duties (al-insān yūlidu wa lahu dhimma ṣāliha lil-wujūb lahu wa
ʿalayhi), in contradistinction to other living creatures.489 Hence the Ḥanafī jurist Abū
Zayd al-Dabūsī, among many others, said in his legal-philosophical treatise Taqwīm
al-adilla fī uṣūl al-fiqh [The assessment of proofs in legal philosophy]: “When God
Almighty created man in order to enable him to bear His trust (amāna), He dignified
them with reason (ʿaql) and legal personality (dhimma), so that he would become
capable of fulfilling the rights and obligations incumbent upon him”.490
Although in juridical practice there are some distinctions between men and women,
Muslims and non-Muslims, slaves and free men, the basic principle in Islamic law is
that all human beings have dhimma and are thus proper subjects of the law, which is
also a basic requirement for legal capacity (ahliyya).491 Islamic law thus recognizes a
“human all-embracing dhimma”.492 From the outset of early Islamic law in the seventh
century and with the formation and formalization of classical Islamic law in the
centuries after that, legal personality was accorded by Islamic law to all human beings.
Woman, for example, also had full legal personality and as a result had equal access
to courts as men. In addition, they had economic power that translated into legal
autonomy.493 In this sense, as scholar of Islam Ruud Peters mentioned, there is a “deep
489 Nail Okuyucu, Fıkıh İlmine Giriş: Metinler Seçkisi (Istanbul: Ketebe Yayınları, 2018), 361.
490 Abū Zayd al-Dabūsī , Taqwīm al-Adilla fī Uṣūl al-Fiqh (Beirut: Dār al-Kutub al-ʿIlmiyya, 2001).
417. We will return to the centrality of the human intellect (ʿaql) in the matters of moral responsibility
(taklīf) and legal capacity (ahliyya) in the next section of this chapter.
491 Ruud Peters, “Islamic Law and Human Rights: A Contribution to an Ongoing Debate”, Islam and
Christian-Muslim Relations 10, No. 1 (1999): 10. See the next section for an elaboration of the
Islamic juridical theory of legal capacity (ahliyya).
492 Zahraa, Legal Personality in Islamic Law, 205.
493 Lapidus (2012), 270.
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fundamental level at which the Sharīʿa can be regarded as universal, addressing all
humankind and based on an essential equality of human beings”.494
4.3.2. Ahliyya: The Islamic Concept of Legal Capacity
The theory of legal capacity (ahliyya) in Islamic law emanates from the concept of
legal personality (dhimma).495 Legal capacity refers to the capability of a person to
engage in legal transactions. In term of its linguistic (lughawī) meaning, the term
ahliyya connotes with meanings such as authority, suitability, capacity and
competence. In Islamic legal theory it has come to be associated with the suitability of
a person to be subject to religious and legal judgements. As a term, hence, the word
ahliyya was a neologism coined by the Islamic jurists to connote a legal meaning,
although derivatives of its linguistic meaning can be found in the religious sources of
Islam as well.496
The human intellect (al-ʿaql) – or the human capacity for reasoning – plays a major
role in how the jurists of Islam conceptualized legal capacity. The human intellect has,
of course, been extensively discussed in Islamic theology (kalām) and other sciences
of Islam. The Shafiʿī scholar Abū Ḥāmid al-Ghazāli (d. 1111), for example, discussed
various levels and dimensions of the intellect in the chapter on “knowledge” (Kitāb al-
ʿilm) of his magnum opus the Iḥyāʾ ʿulūm al-dīn (Revival of the Islamic sciences).497
Al-Ghazālī mentions four types of intellect. The first type of intellect is a quality (waṣf)
that distinguishes human beings from other animals and through which they are able
to understand the theoretical sciences (al-ʿulūm al-naẓariyyā). He also calls this type
of intellect an “instinct” (gharīza) through which to grasp these sciences. Al-Ghazālī
explains this instinct as a “light cast in the heart” that helps prepare one to comprehend
things (nūr yaqdhifu fī al-qalb bihi yastaʿiddu li-idrāk al-ashyāʾ). He also criticizes
those that limit the intellect merely to axiomatic knowledge (al-ʿulūm al-ḍarūriyya).
The second type of intellect applies to knowledge that is manifested even in discerning
494 Peters, 10.
495 Hallaq, Sharia, 227; Zahra, Legal Personality in Islamic Law.
496 Ali Bardakoğlu, “Ehliyyet”, TDV İslâm Ansiklopedisi, Vol. 10 (Istanbul: Türkiye Diyanet Vakfı),
533.
497 Abū Ḥāmid Muḥammad al-Ghazālī, Iḥyāʾ ʿulūm al-dīn, Vol. 1 (Jedda: Dār al-Minhāj, 2011), 312-
320.
122
children (al-ṭifl al-mumayyiz), who are able to distinguish between that which is
possible (al-jāʾizāt) and this which is impossible (al-mustaliḥāt), such as that two is
greater than one or that one person cannot be in two places simultaneously. This, al-
Ghazālī mentions, is how (some of) the theologians (al-mutakallimīn) defined the
intellect (i.e., as relating to axiomatic knowledge), stressing once more that – while the
theological definition in and of itself is correct – it is faulty (fāsid) if the intellect in
the meaning of “instinct” (gharīza) is denied, while maintaining that only axiomatic
knowledge truly exists. The third type of intellect refers to knowledge that is reached
through experiences (al-tajārib) (i.e., empirical knowledge). And the fourth and final
type of intellect, al-Ghazālī says, refers to developing the powers (quwwa) of the
mentioned “instinct” to such a decree, that the intellect is able to understand the
consequents of matters (ʿawāqib al-umūr), so that a person would be able therewith to
defeat and subjugate his or her immediate desires (al-shahwa al-ʿājila). Al-Ghazālī
reiterates that this type of intellect too differentiates human beings from other types of
animals.498
However, for the jurists of Islam, what ultimately matters most with regards to the
human intellect is the capacity for judgement or discernment. The jurists of Islam
explain that legal capacity is dependent upon the human intellect (al-ʿaql).499 This
directly relates to the conception of taklīf or being mukallaf, i.e., having the moral and
legal responsibility to answer the divine address (khitāb) of God. Hence, legal rulings
(al-ḥukm al-sharʿī) are defined as the address of the Lawgiver (khitāb al-shāriʿ)
regarding the acts of the morally responsible (afʿāl al-mukallifīn).500 The two major
conditions for having taklīf are intellect (ʿaql) and majority (bulūgh), which in classical
Islamic law would be the age of seven.501 Hence, the age of maturity is also called the
“age of discernment” (sinn al-tamyīz). After having reached the age of majority,
human beings are considered to be able to responsibly use their intellect and hence
become legally responsible. Legal capacity in Islamic law is divided into two main
498 For a further elaboration of how al-Ghazālī relates these types of intellect to each other, see al-
Ghazālī, Iḥyāʾ ʿulūm al-dīn, 315-320.
499 Al-Āqhisārī, 370.
500 Khallaf, ʿIlm uṣūl al-fiqh, 100-101
501 Discernment is defined as when a child is able to eat, drink and clean himself or herself after
having used the bathroom without the assistance of an adult (i.e., independently). See Aḥmad ibn
Luʾlu ibn al-Naqīb al-Misrī, ʿUmdat al-Sālik, trans. Nuh Ha Mim Keller (Maryland: Amana
Publications, 1994), 109.
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categories, namely the capacity for having rights and duties (ahliyyat al-wujūb) and
the capacity to fulfill these rights and duties (ahliyyat al-adāʾ). And the capacity to
fulfill rights and duties is again subdivided in to “complete” ahliyya (kāmila) and
“deficient” ahliyya (qāṣira), as the person having legal capacity must have certain
qualities.
From the survey on the ideas of legal personality and legal capacity we can understand
that Islam indeed recognizes notions of inalienable and enforceable human rights that
are endowed in all human beings. These rights do not only extend to Muslims, but also
to non-Muslims. Ruud Peters elaborates on this in several of his articles on the
subjects. He affirms that legal personality is accorded to all human beings in Islamic
law, and not a particular group of people. He also mentions what he calls “proto-human
rights” regarding the dignity of human beings absolute and inviable. Islamic law takes
into consideration the factor of power in human relationships and restricts those in
power from exerting their power over other, while protecting that might have a weaker
position. For example, wives, children and slaves have certain basic rights protected.
Peters thus argues that Islamic law stresses such basic rights as the right to life en
religious freedom and the protection from bodily harm for all human beings, both
Muslims and non-Muslims.502
4.3.3. Ḥuqūq Allāh and Ḥuqūq al-ʿIbād: The Public-Private Rights Dichotomy in
Islamic Law
In the Arabic language the corresponding term to “right” is ḥaqq (pl. ḥuqūq), although
the term’s meaning in Arabic is much more multileveled and varied linguistically and
conceptually.503 In classical Arabic the term ḥaqq was used in a much more expansive
semantic field, encompassing the theological, moral and legal realms.504 Outside of a
strictly legal and juridical context it refers to the broader meanings of “truth” and
502 Ruud Peters, “(In)compatibility of Religion and Human Rights: The Case of Islam”, in Human
Rights and the Impact of Religion, eds. Johannes A. van der Ven and Hans Georg Ziebertz (Leiden
and Boston, 2013), 78. (Emphasis mine.)
503 For more on the Islamic concept of rights, see Mohammad Hashim Kamali, “Fundamental Rights
of the Individual: An Analysis of Ḥaqq (Right) in Islamic Law”, The American Journal of Islamic
Social Sciences 10, No. 3 (1993): 340.
504 Wael B Hallaq, “‘God Cannot Be Harmed’: On Ḥuqūq Allah/Ḥuqūq al-ʿIbād Continuum” in
Routledge Handbook of Islamic Law, ed. Khaled Abou El Fadl, Ahmad Atif Ahmad and Said Fares
Hassan (London and New York: Routledge, 2019), 69.
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“justice” and is associated with other important Islamic religious concepts, such as that
which is socially just (ʿadl), right (mustaqīm) and equitable (qisṭ).505 It is also one of
the names with which God refers to Himself in Islamic sacred scripture (al-Ḥaqq).506
In Islamic spirituality and moral psychology (tasṣawwuf, ʿilm al-nafs, al-fiqh alwijdānī)
ḥaqq is used to refer to such things as ḥuqūq al-nafs; the essential
requirements for the existence of the human self.507 Ḥaqq is also used to connote
reality, fact, true, authentic, genuine, sound, right judgment, rightness or correctness,
as opposed to opposite connotations, such as incorrect judgment or falsehood (bāṭil).508
In the plural form of ḥuqūq, however, the meaning was almost always grounded in an
idea of rights.509 In the legal sense of ḥuqūq, Arabic lexicographers have variously
given us meanings such as rights, entitlements, (legal) claims or “anything that is
owed”.510 In the classical Islamic legal literature ḥaqq is also used for those type of
rights that specifically belong to individual human beings. For these rights the Islamic
jurists used the terms ḥuqūq al-ādamiyyīn or ḥuqūq al-nās, which literally translated
as the “rights of man” or “human rights”. Sometimes these rights are also referred to
as the rights of servants (ḥuqūq al-ʿibād).511 These were claim-rights, such as the rights
to the inviolability of life or property. Conversely, these rights entailed the duty of
others not to infringe upon these rights. The protection of individual rights, which
belonged to the private sphere proper, was categorized by the Islamic jurists under
human rights (ḥuqūq al-ādamiyyīn).512 These incorporate the protection of rights
505 Hallaq, God Cannot Be Harmed, 67.
506 See for example, Qurʾān 22:62, 24:25, and 31:30.
507 P. Bearman et al, (eds.), “Ḥuḳūḳ”, in Encyclopaedia of Islam (second edition). For more on the
different usages of the human self (al-nafs) in Islam, see Sara Sviri, “The Self and Its Transformation
in Ṣūfīsm: With Special Reference to Early Literature” in Self and Its Transformation in the History of
Religions, eds. David Shulman and Guy G. Stroumsa (Oxford: Oxford University Press, 2002).
508 Edward William Lane, An Arabic-English Lexicon, Vol. 1 (Williams & Norgate, 1863), 607-608.
Ibn Manẓūr (d. 1311-1312) in his famous thirteenth-century Arabic lexicon Lisān al-ʿArab records
ḥaqq as “the opposite of falsity” (naqīḍ al-bāṭil), 939.
509 Hallaq, God Cannot Be Harmed, 64.
510 See Hans Wehr, A Dictionary of Modern Arabic, ed. J. Milton Cowan (Spoken Language Services:
1994, fourth edition, first published 1979), 224; Lane, An Arabic-English Lexicon, Vol. 1, 608.
511 The translation of “servants” here refers to the whole of humanity and creation, since in the
Islamic religious tradition the whole of creation worships and glorifies God (even inanimate objects),
see for example Qurʿān 17:44, 24:41, 51:56 and 30:26. Hence these Islamic human rights are
sometimes also called the rights of creation (ḥuqūq al-makhlūqāt), see Arnold Yasin Mol, “Islamic
Human Rights Discourse and Hermeneutics of Continuity”, Journal of Islamic Ethics 3 (2019): 191-
192.
512 Khaled Abou El Fadl, “Shariʿah and Human Rights”, in Routledge Handbook on Human Rights
and the Middle East and North Africa, ed. Anthony Tirado Chase (London and New York: Routledge,
125
against violations that are instigated between individual human beings, and in that
sense belong to the civil sphere. Islamic human rights (ḥuqūq al-ādamiyyīn) also
contained a category of so-called “unearned rights” (ghayri muktasab).513 These rights
can be seen as natural rights that are inalienable and inborn in every human being. The
jurist of the Ḥanafī school of law, for example, would count the fundamental rights to
life, liberty and property among these rights. These rights fall under human
inviolability (ʿiṣma) and inhere in all individual human beings.
The idea of Islamic human rights (ḥuqūq al-ādamiyyīn) is often coupled in Islamic
legal literature with the divine rights (ḥuqūq Allāh), as the Islamic religious worldview
also accords certain claims the Creator can make upon his creation.514 The term “divine
rights” might be easily misunderstood. The Islamic perception of God is that He is
omnipotent and self-sufficient, and hence in no need of anything, including “rights”.515
These rights generally pertain to public interests that cannot be claimed by any
individual in particular and hence must be administered by the state. Hence, human
beings are the ultimate beneficiary of divine rights. These are generally catered
towards the preservation of an orderly society and the benefit of human life, such as
public order and safety, infrastructure, markets and taxes levied upon the
population.516 Sometimes divine rights and human rights were mixed, and hence
needed considerable deliberation and legal interpretation (ijtihād) on the part of the
jurisconsult (mujtahid). Together human rights and divine rights represent a legal
heuristic that aims to clarify the Islamic scheme of rights and obligations within the
public and private sphere of human action.517
2017), 278; Reem A. Meshal, Sharia and the Making of the Modern Egyptian: Islamic Law and
Custom in the Courts of Ottoman Cairo (Cairo: The University of Cairo Press, 2014), 177-210.
513 Recep Şentürk, “Âdamiyya and ʿIsmah: The Contested Relationship between Humanity and
Human Rights in Classical Islamic Law”, İslâm Araştırmaları Dergisi 8 (2002): 47.
514 Mol, Islamic Human Rights Discourse and Hermeneutics of Continuity, 191.
515 See Umar F. Abd-Allah, “Theological Dimensions of Islamic Law”, in The Cambridge Companion
to Islamic Theology, ed. Tim Winter (Cambridge: Cambridge University Press, 2008), 237-257; Abū
Jaʿfar al-Taḥāwī, al-Aqīdat al-Ṭaḥawiyya, trans. Hamza Yusuf (California: Zaytuna Institute, 2007).
516 Mol, Islamic Human Rights Discourse and Hermeneutics of Continuity, 192-193.
517 For more details about ḥuqūq al- ādamiyyīn and related concepts, see Miriam Hoexter, “Ḥuqūq
Allah and Ḥuqūq al-ʿIbād as Reflected in the Waqf Institution”, Jerusalem Studies in Arabic and
Islam 19 (1995): 133-156; Baber Johansen, Contingency in a Sacred Law: Legal and Ethical Norms
in the Muslim Fiqh (Leiden: Brill, 1998), 190- 218; Anver M. Emon, “Ḥuqūq Allah and Ḥuqūq al-
ʿIbād: A Legal Heuristic for a Natural Rights Regime”, Islamic Law and Society 13, No. 3 (2006)
13(3): 325-391; Hallaq, God Cannot Be Harmed, 67-81.
126
After this brief survey, let us take a closer look to an early modern example of the
Islamic ḥuqūq discourse. The early modern Bosnian-Ottoman Ḥanafī jurist Ḥasan Kāfī
al-Āqhisārī (d. 1615), in his commentary (sharḥ, pl. shurūḥ) on his own juridicphilosophical
treatise on Samt al-wuṣūl ilā ʿilm al-uṣūl [The way of attainment to the
science of legal philosophy], succinctly explains the rights scheme of Islamic law.518
According to his categorization (tafṣīl) rights can be divided into four types: (a) rights
that belong purely to God, (b) rights that belong purely to human beings, (c) rights that
belong to both God and human beings in which the right of God predominates, and (d)
rights that belong to both God and human beings in which the right of human beings
predominates.519 Since latter two categories of rights involve the mixing of the rights
of God and mankind to various gradations, we might refer to them as “mixed rights I”
and “mixed rights II”, respectively. The first two categories of rights, on the other
hand, refer specifically and “purely” (khāliṣa) to the rights of either men or God. These
types of rights we might call “special rights”.
The first category of rights belongs purely to God (ḥuqūq Allāh khāliṣa) and is defined
by al-Āqhisārī as those rights that are related to public benefit (al-nafʿ al-ʿām).520 This
definition clarifies the easy misapprehension that these “rights of God” are for His own
benefit. This is not the case, since in the Islamic Weltanschauung God is free of any
need. The Qurʾān states “People, it is you who stand in need of God (antum fuqarāʾ
ilā Allāh) – God needs nothing (huwa al-ghanī) and is worthy of all praise”.521 The
rights of God go beyond the right to be worshipped as the Creator of “all things in
existence” (al-mawjūdāt kulluhā).522 These rights also refer to the prevention of public
harm. In contradistinction to the second category of rights, the rights of human beings
(ḥuqūq al-ʿibād), these rights are not connected to the infringement upon the rights of
518 Ḥasan ibn Tūrkhān ibn Dāwūd ibn Yaʿqūb al-Zīnī al-Būsnawī al-Āqhisārī, Sharh Samt al-wuṣūl ilā
ʿilm al-uṣūl, (Dār Ibn Jawzī, 2010), 332-343. Al-Āqhisārī’s Samt al-wuṣūl is itself an abridgement of
the widely studied treatise on Islamic legal philosophy Manār al-anwār fī uṣūl al- fiqh [The beacon of
lights in the principles of jurisprudence], by the famous early fourteenth-century Ḥanafī scholar Abū
al-Barakāt al-Nasafī (d. 1310), which was widely studied in Ottoman religious seminaries (madrasa,
pl. madāris).
519 Al-Āqhisārī, Sharh Samt al-wuṣūl ilā ʿilm al-uṣūl, 332-333.
520 Al-Āqhisārī, Sharh Samt al-wuṣūl ilā ʿilm al-uṣūl, 332.
521 Qurʾān, 35:15. Among other verses, also see 6:133, 29:6, 31:12, 39:7, 47:38.
522 Qurʾān 14:34, 51:56. of this thesis. For an explanation of God as Owner of “all things in existence”
(al-mawjūdāt kulluhā), see Abū Ḥāmid Muḥammad ibn Muḥammad al-Ghazālī, al-Maqṣad al-asnā fī
sharh al-maʿanī asmā Allāh al-ḥusnā, ed. Bassām ʿAbd al-Wahhab al-Jābī (Beirut: Dār Ibn Ḥazm,
2003), 140-141. For more on the Qurʾānic moral-legal framework of Islamic law, see section 6.4.2. of
this thesis.
127
an individual person, but they aim to protect the whole of human society. A case in
point, given by al-Āqhisārī, is the prohibition of sexual misconduct (zinā).523 If the
illicit sexual relations are mutually consented between two people, no individual rights
are infringed upon. There is however, according to Islamic ethical considerations,
societal harm, such as the spread of corruption and immorality in society or children
being born out of wedlock if sexual misconduct becomes widespread (and children
lacking legal protection as a consequence). These rights, in other words, are public
rights.
The second category of rights, on the other hand, belongs purely to human beings
(ḥuqūq al-ʿibād khāliṣa). These types of right do not relate to public benefit but to
specific interests (maṣlaḥa khāṣa) of human beings, and hence involve the
infringement upon private rights.524 The example given by al-Āqhisārī in this instance
is the inviolability of the property of other people (ḥurmat māl al-ghayr).525 Since in
this case we are dealing with private rights, the author explains, the owner of the
property (al-mālik) can also give permission to others to freely us or rent property, for
example. While on the other hand, no such permissibility is in order for those
committing sexual misconduct.526
The third category of rights (mixed rights I) belongs to both God and human beings,
in which the right of God predominates (ḥaqq Allāh fihī ghālib).527 The example given
here, is the punishment for slanderous accusations of sexual conduct (ḥadd alqadhf).
528 In this case there is, once more, a public harm that needs to be deflected.
But there is also a private interest, which involves the protection of the honor of the
victim. In this case, however, the right of God is predominant. In classical Islamic legal
practice, this means that in the circumstances of a court case the plaintiff cannot waive
his or her rights (i.e., the ḥadd punishment must still be exercised, even if the plaintiff
pardons the defendant).529
523 Al-Āqhisārī, Sharh Samt al-wuṣūl ilā ʿilm al-uṣūl, 332. The author also mentions in this regard the
protection of lineage (nasb, pl. ansāb).
524 Al-Āqhisārī, Sharh Samt al-wuṣūl ilā ʿilm al-uṣūl, 332.
525 Al-Āqhisārī, Sharh Samt al-wuṣūl ilā ʿilm al-uṣūl, 332. Property rights in the Islamic legal tradition
are extensively dealt with in chapter 6 of this thesis.
526 Al-Āqhisārī, Sharh Samt al-wuṣūl ilā ʿilm al-uṣūl, 332.
527 Al-Āqhisārī, Sharh Samt al-wuṣūl ilā ʿilm al-uṣūl, 332.
528 Al-Āqhisārī, Sharh Samt al-wuṣūl ilā ʿilm al-uṣūl, 332.
529 Al-Āqhisārī, Sharh Samt al-wuṣūl ilā ʿilm al-uṣūl, 333.
128
The fourth and last category of rights (mixed rights II) belongs to both God and human
beings, in which the right of human beings predominates (ḥaqq al-ʿibād ghālib).530 In
this case, again, both rights are infringed upon. Al-Āqhisārī offers the example of
murder (qiṣāṣ) or bodily violence.531 In the case of bodily violence or murder there is
a clear public harm for society at large, which necessitates the “freeing of the world
from corruption” (ikhlāʾ alʿālam ʿan al-fasād).532 In such a case the person who was
violently attacked or the relatives of the person who was murdered may demand
punishment or compensation in order to preserve their interests. However, they may
also waive their rights and pardon the perpetrator.533
The private-public dichotomy in the Islamic rights scheme
Category of
right:
Allocation of
right:
Private-public
dichotomy:
Example: Possibility
of pardon
Special rights
of God
God’s right
purely
Public rights Prohibition of
sexual
misconduct
(zinā)
No
Special rights
of Men
Men’s right
purely
Private rights Protection of
other’s property
(māl)
Yes
Mixed rights
I
God’s right
predominates
Public and
private rights
Punishment for
slanderous
accusations
(qadhf)
No
Mixed rights
II
Men’s right
predominates
Public and
private rights
Punishment for
murder (qiṣāṣ)
Yes
Table 1: The ḥuqūq scheme in Islamic law
530 Al-Āqhisārī, Sharh Samt al-wuṣūl ilā ʿilm al-uṣūl, 333.
531 Al-Āqhisārī, Sharh Samt al-wuṣūl ilā ʿilm al-uṣūl, 333.
532 Al-Āqhisārī, Sharh Samt al-wuṣūl ilā ʿilm al-uṣūl, 333.
533 Al-Āqhisārī, Sharh Samt al-wuṣūl ilā ʿilm al-uṣūl, 333.
129
Before the advent of modernity from the eighteenth century onwards, there was a
certain continuity and internal unity in the Sharīʿa and the Islamic legal outlook that
would cease to exist afterwards. Hallaq speaks in this regard of the “systematic
components of the Sharīʿa’ that produced its own legal episteme”. Despite – or perhaps
because – the Sharīʿa’s many cultural variations and a great capacity for adaption,
Islamic law and legal culture had always entertained “structures of authority and
discursive and cultural practices that did not change over time and space”.534 In other
words, the internal logic of the Sharīʿa and its overall legal-moral vision for human
dignity and societal flourishing was continuous and stable, but at the same time
possessed a dynamism and organicity that would eventually become lost in the modern
world, especially after 1800.535 This continuity was established and promoted
throughout the centuries through legal education, legal scholars, public legitimacy, and
political patronage, and communicated through the juridical, political and ethical
literatures of Islamic civilization.
4.4. Conclusion
In this chapter we have explored the ḥuqūq discourse in the Islamic legal tradition.
Before doing so, we have elaborated upon the challenges of doing a conceptual history
of Islamic rights schemes in the context of comparative legal studies. We have seen
that scholarship in Western languages – be it English, German, French, or otherwise –
linguistically delimits the Islamic Sharīʿa discourse in serious ways. In this context,
we have spoken about the so-called “prisons of language” and the problem of
(un)translatability of a legal tradition that is by-and-large expressed in medieval texts
written in classical Arabic (al-ʿarabīyyat al-fuṣḥā). More often than not – and this also
ties into our discussion of legal Orientalism in the introduction of this thesis – Western
scholarship has resulted in a “monolinguism of the Other”, in which the Islam and
Muslims are Otherized. Instead, we have argued for Islam as a discursive tradition,
534 Hallaq, Sharīʿa, 15.
535 For a discussion on some of the dramatic changes in the Muslim world and its effect on Islamic
legal developments, see Knut S. Vikør, Between God and the Sultan: A History of Islamic Law
(London: Hurst & Company, 2005), 222-253; Marshall G. S. Hodgson, The Venture of Islam:
Conscience and History in a World Civilization, Gunpowder Empires and Modern Times, Vol. 3
(Chicago and London: The University of Chicago Press, 1961), 176-248; Ira M. Lapidus, A History of
Islamic Societies (Cambridge: Cambridge University Press, 2002, second edition), 453-468; In
general, also see Part III, “The Sweep of Modernity”, in Hallaq, Sharīʿa, 357-499.
130
with its own internal logic and dynamism. Hence, any comparative study of the Islamic
legal tradition should involve a serious engagement with its own legal culture, legal
epistemology, legal anthropology, legal norms, legal language, and legal reasoning.
This can only be achieved by engaging the juridical literature of the classical scholars
of Islam (fuqahāʾ).
Furthermore, we have compared how English scholarship on the Islamic legal tradition
has framed “Islamic law” in comparison with how Islamic jurists defined fiqh and
sharīʿa. As a case study in legal Orientalism, we have analyzed Kevin Reinhart’s
application of the so-called Hart-Dworkin framework for evaluating Islamic law. We
have concluded that this approach is problematic because it does not engage the
Islamic legal tradition on its own terms. Instead, it uses the Western legal tradition –
and a thoroughly modern incarnation at that – as a “measuring rod” for Islamic “law”.
In doing so, it artificially separates the moral and legal dimension of the Islamic law
along the lines of the legal positivist perspective.536 Furthermore, we have given
several examples of classical Muslim jurists and how they defined central Islamic legal
terminology, such as sharīʿa and fiqh, based on the Qurʾānic moral-legal framework
set out in various genres of Islamic juridical literature, such as fiqh and uṣūl al-fiqh. In
doing so, we have also aimed to show the importance Islamic legal scholars gave to
the intricacies of language, and model that is arguable worthy of emulation for any
scholar, be they Muslim or non-Muslim.
After that we have explored in detail some examples of the rights discourse in the
medieval and early modern Islamic legal tradition. A survey of the historiographical
literature has shown that the Islamic legal tradition emerged as a legal tradition in the
seventh century and showed remarkable creativity and resilience. It inherited some of
the social institutions of the late antique world but developed by-and-large as an
independent legal tradition based on its own legal and religious sources. After its
formalization in the tenth century and afterwards through the formation of the classical
schools of Islamic law, the Islamic legal tradition remained more or less homogenous
throughout pre-modernity. Despite cultural variety in the various geographies to which
Islamic civilization spread, it exemplified a “structural and systemic unity”, that was
536 See our discussion of the moral and legal dimensions of the law in Chapter III.
131
maintained by a developed corpus juris, a class of legal scholars, and developed
curricula of legal education throughout the Muslim world.
Orientalist scholarship on Islam and human rights has differed on the question if the
Islamic legal tradition has its own “rights discourse”. Some have claimed that Islam
has no conception of individual rights and that it is a “duty-based” system. We have
seen similar claims in certain reformist trends of contemporary Muslim scholarship.
Our survey of Islamic juridical literature, however, shows that there is a rich rights
discourse in the Islamic legal tradition, that is often overlooked in contemporary
scholarship. The jurist of Islam from very early on developed conception of rights.
These ideas became formalized in the genres of fiqh and uṣūl al-fiqh during the
formation of the classical schools of Islamic law. As early as the tenth century, we see
elaborate discussions amongst the Muslim jurists about ideas of moral responsibility
(taklīf), legal personality (dhimma) and legal capacity (ahliyya). This conceptual
framework forms the basis for the rights hermeneutic of Islamic private and public
rights (ḥuqūq Allāh wa ḥuqūq al-ʿibād). In Islamic legal scholarship all human beings
are considered “rights-holders” and able to make claims on other people. In
contradistinction to the Western legal tradition, Islamic law allotted legal personality
to all human beings, including, women, children, slaves, and religious minorities. The
discourse of Islamic human rights (ḥuqūq al-ādamiyyīn) in classical Islamic
jurisprudence thus forms rich resource for “rights talk” regarding inalienable rights
and human dignity. Hence, the Islamic rights discourse was recognized as “protohuman
rights” by some scholars.
While the Islamic legal tradition was by-and-large consistent and continuous
throughout the pre-modern period, notwithstanding some cultural variations according
to geography and legal school – this drastically changed during the advent of
modernity after 1800 and beyond. With the rise of the hegemonic West and global
colonization, Muslim legal systems and legal education was slowly but steadily
dismantled. Modern incarnations of Islamic law in Muslim-majority countries are
often limited to family law as part of a mixed legal system with mostly elements of
European civil law.
132
CHAPTER V
FUNDAMENTAL RIGHTS IN PREMODERN WESTERN
LAW: LIFE, LIBERTY AND PROPERTY
“No one ought to harm another in his life, health, liberty, or possessions.”
John Locke537
“So God created man in his own image, in the image of God created He him.”
Genesis 1:27
In this chapter we explore fundamental rights in early modern natural rights theories, with a
special focus on the works of Grotius, Hobbes, Pufendorf, and Locke. These four natural
rights theorists belong to what has been called the “era of classical natural rights texts”. After
having explored the medieval and early modern rights discourses in Chapter III, here we
further explore what the rights theories of the natural rights theorists entail and which
justifications they had for their ideas.
In Section 5.1, we elaborate upon the idea of fundamental rights as “basic goods”. In the
Western legal tradition, we encounter the question of common goods often, such as in the
works of Aquinas. The underlying question is one of the basic concerns for human dignity
and life. In contemporary times, the neo-Thomist philosopher John Finnis has written about
common goods. In Section 5.2., we explore the ideas of Grotius, Hobbes, and Pufendorf
from the perspective of being precursors to John Locke, who – it is argued by many – is the
first one in the Western legal tradition to formulate a coherent and mature theory of natural
rights. Section 5.3. deals with the Lockean rights theory, and the final section summarizes
the findings and draws conclusions relevant to the key concerns of this study.
537 John Locke, Second Treatise of Government, ed. C. B. Macpherson (Indianapolis and Cambridge: Hackett
Publishing Company, 1980, originally published in 1690), 9.
133
5.1. Fundamental Rights as Basic Goods
Theories of rights identify a multitude of different rights for human persons. However, not
all rights are equal. Some rights are more fundamental than others in terms of how they
support and enable basic human dignity and societal flourishing. Rights function, so to
speak, in a hierarchy of rights in which some rights are primary, while others are less so.
Other rights might be secondary – or even tertiary – to fundamental rights. They are not
absolutely essential to human life and dignity. They are, rather, additional “embellishments”
or “adornments” to fundamental rights. Even in the modern human rights discourse not all
rights are equal. There is an observable hierarchy in which some rights are seen as more
fundamental than others. We speak in this regard for example of the notion of “rights triage”,
the practice of human rights organizations to prioritize certain rights over others based on a
variety of rationales.538
In the Western legal tradition – and there are equivalents in the Islamic legal tradition as
well539 – various scholars have proposed “basic sets” of rights. In medieval times, for
example, Thomas Aquinas (d. 1274) spoke of his “basic goods”. These were life,
reproduction, education, worship, social life, avoiding offence and shunning ignorance.540
The contemporary natural law philosopher John Finnis, on the other hand, enumerates the
basic goods of practical reflection, life, knowledge, play, aesthetic experience, sociability
(i.e., friendship), practical reasonableness, and religion.541 Arguably, human beings are
always concerned with these basic necessities of life, even though different perspectives
exists in terms of which goods are “basic goods”, i.e., which goods are basic to human
dignity and societal flourishing. And many – if not all – of these basic goods work in
conjunction with one another. The basic goods of sociability or religion cannot exist without
the basic goods of life and knowledge. Hence, Finnis argued, all these goods are “equally
fundamental”.542 Fundamental rights, understood as such, could be seen as “basic goods”.
538 Hurst Hamnum, Rescuing Human Rights: A Radically Moderate Approach (Cambridge: Cambridge
University Press, 2019), 161.
539 See Chapter VI.
540 For an elaborate discussion of basic goods, see Jean Porter, “Basic Goods and the Human Good in Recent
Catholic Moral Theology”, The Thomist: A Speculative Quarterly Review 57, No. 1 (1993): 27-49.
541 John Finnis, Natural Law and Natural Rights (New York: Oxford University Press, 2011), 81-96.
542 Finnis, Natural Law and Natural Rights, 92-95.
134
5.2. Precursors to the Lockean Rights Scheme: From Self-Preservation to
Human Worth
Many consider that Locke developed the first “mature” theory of natural rights, with his
espousal of the basic rights to life, liberty, and estate (or property). His predecessors do not
always yet have full-fletched rights theories. But they contribute important building blocks
to natural rights thinking, such as the separation between law (lex) and right (ius), which
gave Locke the opportunity to use a richer and more elaborate rights language. The also all
had in common the emergence of the modern state in Europe. In many ways their theories
can be seen as a response to political developments, rather than any intrinsic moral or
religious world view, as was the case for Islam.
In addition, there seems to be a tension in early modern rights language. On the one side in
is a universalizing trend, that wants to include “all mankind”. On the other hand, natural
rights theories have been used (including by Locke) to promote slavery, the usurpation and
colonization of the lands indigenous peoples in the American, and arguable the subjugation
of women and minorities in society. That being said, the impact of early modern natural
rights theory on the Enlightenment, the various declarations of the “rights of man” in the
eighteenth century, and – notwithstanding their secularizing tendency – modern human
rights as well.
5.2.1. Grotius and the Law of Nations
The right to the protection of life may take many forms and it is interpreted differently by
many authors. Narrowly defined it refers to the right “not to be killed” but in a broader sense
it also refers to the right “to live decently”.543 What is considered as decent and respectable
(productive, fruitful, comfortable, meaningful, etc.) is of course relative to different cultures
and religions. It can refer to such things as decent working conditions, a right to food,
clothing, housing, education, and so forth. The right to life in that sense is actually a
“comprehensive package of rights”.544 In modern legal terminology we often speak of a
543 Joel Feinberg, “Voluntary Euthanasia and the Inalienable Right to Life”, Philosophy and Public Affairs 7,
No. 2 (1978): 94.
544 Feinberg, Voluntary Euthanasia and the Inalienable Right to Life, 94.
135
“bundle of rights” in this regard. Here, we focus mostly on the fundamental right to the
protection of life in a narrower sense, as the right “not to be killed”.545
For our early modern natural rights theorists – the likes of Grotius, Hobbes, Pufendorf and
Locke – the classical meaning of the right to live would have indeed pertained to notions of
the effective termination of life, be it through suicide, homicide, capital punishment or in the
context of armed struggle and warfare.546 It as a “claim-right” in the sense that if X has a
right to life, then Y has a duty not to kill him or let him die when he could be saved without
being endangered themselves.547 In penal law it may pertain to the crime of murder of a
fellow citizen. But in modern international human rights law, more often than not, it pertains
to the protection of the lives of non-combatants and prisoners. These concerns were also
reflected in historical notions of the early modern law of warfare (jus in bello) and theories
of a just war (bellum justum), of which Grotius and other early modern natural rights
theorists were a major part.548
Grotius, of course, would become famous for espousing his idea of the “right to self-defense”
in his elaboration of the “international” law of nations. Grotius would argue – in his
elaboration of a natural rights theory – for the right to self-preservation as the only real right
human beings have (a notion Hobbes would share with him). Certainly, in a state of war, be
it on sea or land – the right to self-defense was primary. His conception of self-defense,
however, was also malleable since his natural rights theory has also been used justify
colonialism and “just war”.549 Grotius’ law of nations seems to have made great strides in
545 An exploration of the broader sense of the right to life would be far too extensive to attempt here. To give
but one example, the right to life according to French Human Rights League (a modern incarnation of the
French Declaration of the Right of Men and of the Citizen) includes: the rights of care for mothers, the rights
of children, the rights of women of freedom from exploitation and domination, the rights of the elderly, the
rights of the sick, the rights of invalids, the rights to work, the rights to leisure, the rights to fair pay, the
rights to medical care, the right to intellectual and artistic expression, the rights of maintenance for those who
cannot work, and so forth. Cited in Hugo Bedau, “The Right to Life”, The Monist 52, No. 4 (1968): 551.
546 Bedau, The Right to Life, 550. According to Bedau, not these natural law theorists, but actually the
English jurist Sir William Blackstone (d. 1780) wrote most extensively on the right to life in his
Commentaries on the Laws of England. Interestingly, it was the same Blackstone that would become the
main target of critique of modern legal positivists, such as John Austin. See I. G. Doolittle, “Sir William
Blackstone and His ‘Commentaries on the Laws of England”, Oxford Journal of Legal Studies 3, No. 1
(1983): 99-112.
547 Feinberg, Voluntary Euthanasia and the Inalienable Right to Life , 95.
548 Ove Bring, “Hugo Grotius and the Roots of Human Rights Law”, in Human Rights Law: From
Dissemination to Application: Essays in Honour of Göran Melander, eds. Jonas Grimheden and Rolf Ring
(Leiden and Boston, Martinus Nijhof Publishers, 2006), 131.
549 Mikki Stelder, “The Colonial Difference in Hugo Grotius: Rational Man, Slavery and Indigenous
Dispossession”, Postcolonial Studies 25, No. 4 (2022): 564-583.
136
terms rights for peoples. It included, for example, the prohibition of killing prisoners,
hostages, or innocent civilians, including woman and children. But European economy
being, certainly in large part, build upon colonialism and transatlantic slave trade, seems to
have been unable to extend his natural rights thinking indigenous peoples or those who ended
up slaves.
Grotius made no specific mention of right to the protection of life, as John Locke for example
would have done later.550 However, in his De jure belli ac pacis [On The Law of War and
Peace], in the chapter on Of Things Which Belong in Common to All Men, Grotius speaks of
the “rights common to all men”, which he distinguished from a “particular right” a person
may have.551 In this context, he Grotius speak about the preservation and protection of life,
almost in terms of the “basic goods” we discussed above. In one section Grotius mentions
the rights that a required by human life. He says:
We are not talking here of what is superfluous, and what serves only for pleasure,
but of such things as there is no living without, such as food, and cloaths, and
medicines.552
He is talking about the basic necessities of life (i.e., the right to life as defined in a broader
sense).553 These are rights that are owed common to all men, according to Grotius. Hence,
we should not withhold these rights from each other. Withholding human beings from these
“fruits of the earth that grow for all”, Grotius argues, is “contrary to the nature of human
society”.554 Since these are rights that are “common to all men”, they should also be extended
to those who are not citizens of the nation. This even counts in times of famine and shortage
of food supplies. Even in these times, Grotius says, “we cannot expel those foreigners we
have once admitted, but must [...] be sharers in a common calamity”.555 While selfpreservation
seems to be the core value of Grotius natural rights theory – and for that matter
that of Hobbes as well – he does seem to argue for a degree of sociability. In this sense,
Grotius seems to be a precursor to Pufendorf, who made sociability – contra Hobbes – the
550 Bring, Hugo Grotius and the Roots of Human Rights Law, 136-137.
551 Hugo Grotius, The Rights of War and Peace, Vol. II, ed. Richard Tuck (Indianapolis: Liberty Fund,
2005), 420.
552 Grotius, The Rights of War and Peace, Vol. II, 449
553 See Feinberg, Voluntary Euthanasia and the Inalienable Right to Life, 94.
554 Grotius, The Rights of War and Peace, Vol. II, 449-450.
555 Grotius, The Rights of War and Peace, Vol. II, 450.
137
core idea of his natural rights theory. However, inherent human dignity was never the
motivating factor behind Grotius’ deliberations.556
5.2.2. Hobbes and the Right to Self-Preservation
For Hobbes the right to life is not a claim-right, as in the state of nature there are no
corresponding duties. It is after all, the “war of all against all” (bellum omnium contra
omnes). Instead, he considers the right to defend one’s life as a “natural liberty”.557 In other
words, it is a liberty-right or a “privilege” in Hohfeldian terms.558 The basic right to selfpreservation
is of course at the root of Hobbes’ legal and political philosophy. Hobbes
explains in his Leviathan what he perceives to be the most fundamental and basic natural
right of human beings. He writes that the most basic natural right (jus naturale) every human
being has, is to use force to protect himself and preserve his own life. In doing so, Hobbes
argues, human individuals can basically use any means necessary to protect their own
beings.559
Thus, in the Hobbesian understanding, having the natural liberty-right to self-preservation
entails others are not at liberty to kill you.560 Hobbes is not as much concerned with the rights
to the protection of the lives of others. In Hobbes’ highly individualistic natural rights theory,
he prioritizes what in his view is the deeply imbedded psychological motive of human beings
to pursue their own self-interests and passions. One of the strongest passions and self-interest
human beings can experience, according to Hobbes, is fear of a violent death. It is fear of a
violent death that “activates” in individual human beings the natural right to do anything
necessary for the preservation of their own lives.561 It is in this context Hobbes talks about
the state of nature in which “every man is enemy to every man”. It is a life without security
and of “continual fear”. Worst of all, Hobbes states, is the “danger of violent death; and the
life of man, solitary, poor, nasty, brutish, and short”.562
556 Bring, Hugo Grotius and the Roots of Human Rights Law, 141.
557 Feinberg, Voluntary Euthanasia and the Inalienable Right to Life, 95.
558 For the Hohfeldian rights scheme, see Chapter III.
559 Thomas Hobbes, Leviathan, ed. J. C. A. Gaskin (New York: Oxford University Press, 1996, originally
published 1651), 86.
560 Feinberg, Voluntary Euthanasia and the Inalienable Right to Life, 96.
561 Gary Herbert, “Fear of Death and the Foundations of Natural Right in the Philosophy of Thomas
Hobbes”, Hobbes Studies 7 (1994): 57.
562 Hobbes, Leviathan, 84.
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However bleak Hobbes initial outlook for man, the natural state of human beings as the “war
of all against all” need not – should not – be perpetual, according to Hobbes. Because fear
of death is also the ‘passions that incline men to peace’.563 While in the state of war of all
against all, human beings have the right to all things to defend their lives by any means
necessary, even if that means killing another human being. As such there can never be any
security for men. Every should therefore, argues Hobbes, strife for peace. From this derives
his second rule of nature. This second rules entails that when other people are inclined to
peace (and hence lay down arms), so too a person should be willing to give up his basic right
to self-preservation for the greater good of all: which is peace, safety and stability. For the
purpose of the ultimate good, this second rule then seems to trump the first, as perpetual war
cannot be the eternal state of mankind.564
It is best, Hobbes argues, to strive for peace and enter a social contract with society and the
state, thereby exciting the state of nature. Even if this entails to give up (some of) your rights
to other people or to the state that governs you. In doing so, he cites the Biblical axiom
“whatsoever you require that others should do to you, that do ye to them”.565 The law of
nature – be it before or after entering the social contract – eventually has the same aim; that
of the preservation of life. But renouncing the state of nature – which inevitably leads to the
war of all upon all – and submitting to state sovereignty accomplished that goal better in
Hobbes’ view.566
But all being said and done, Hobbes’ theory is vastly different from the inalienable right to
the protection of life, as is would later be espoused by John Locke. Let alone, by Immanuel
Kant in the Age of Enlightenment or by Thomas Jefferson in the American Declaration of
Independence. What is present in the rights thinking of Hobbes is the explicit recognition of
a distinct human nature in mankind which is the ground upon which they can receive basic
personal rights. This idea is much more pronounced in Hobbes than it was in the canon law
563 Hobbes, Leviathan, 86.
564 Hobbes, Leviathan, 87.
565 Hobbes, Leviathan, 87. Also see 111, were Hobbes mentions “doing to others, as we would be done to” as
the summary of natural laws of ‘justice, equity, modesty, mercy’.
566 Renato Janine Ribeiro, “‟Men of Feminine Courage”: Thomas Hobbes and Life as a Right”, Hobbes
Studies 24 (2011): 46.
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jurists and theologians of the Middle Ages, such as John of Paris or Thomas Aquinas, as we
have seen in Chapter III.567
5.2.3. Pufendorf’s Theory of Sociability
Samuel Pufendorf is in many ways an inheritor of the natural rights theories stated by Grotius
and Hobbes in their respective works. Although he further developed and synthesized their
ideas and fundamentally disagreed on important points, especially with regards to Hobbes’
cynical evaluation of the state of nature as bellum omnium contra omnes. At the same time,
Pufendorf’s work is often recognized in modern scholarship as anticipating the modern
conception of human rights. For example, his idea of natural equality, it has been argued,
has been seen as affirming the idea of universal humanity and as a precursor to universal
human rights.568 This view is probably an overstatement. Pufendorf’s main concern was, as
political historian Heikki Haara mentions, to offer a “theory that would explain and justify
why individuals should obey sovereign state authority in order to maintain sociability and
political stability”.569
A close reading of some of his main legal and political works does show Pufendorf has a
rudimentary conception of subjective natural rights for human beings. But that does not seem
to be his main concern. Pufendorf argues that all human beings have the natural right to life,
body, chastity and liberty.570 In his De Jure Naturae et Gentium [On the Law of Nature and
of Nations], Pufendorf says:
This precept protects and orders us to hold sacrosanct, as it were, not only those
things that nature itself has immediately granted us, such as life, body, limbs, chastity,
simple esteem, and freedom; but its force is also understood to diffuse itself
567 See Gerson Moreno-Riaño, “John of Paris, Private Property, and the Study of Medieval Political
Thought”, John of Paris: Beyond Royal and Papal Power, ed. Chris Jones (Turnhout, Belgium Brepols
Publishers, 2015), 225-238; Jean Porter, “From Natural Law to Human Rights: Or, Why Rights Talk
Matters”, Journal of Law and Religion 14, No. 1 (1999-2000): 77-96.
568 See for example, Kari Saastamoinen, “Hobbes and Pufendorf on Natural Equality and Civil Sovereignty”,
in Natural Law and Civil Sovereignty: Moral Right and State Authority in Early Modern Political Thought
eds. Ian Hunter and David Saunders (2002), 189.
569 Heikki Haara, “Inclination to Self-Preservation and Rights to Life and Body”, in Rights at the Margins:
Historical, Legal and Philosophical Perspectives, eds. Virpi Mäkinen, Jonathan Robinson, Pamela Slotte,
and Heikki Haara (Leiden and Boston: Brill, 2020), 87.
570 Korkman, Life, Liberty, and the Pursuit of Happiness, 259.
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throughout all the institutions and agreements by means of which a man acquires
something, as if they would be plainly useless without it.571
Pufendorf’s usage of the term right as ius is classified into four categories. These are the
power over one’s own actions (libertas), the power over someone else’s actions (imperium),
the power over one’s property (dominium) and the power over someone else’s property
(servitus).572 However, it was only the first category, that of libertas, that Pufendorf truly
saw as an innate right that exists in human by nature. The other three categories – dominium,
imperium, and servitus – only come into existence through contractual arrangements.573 In
the sense of a subjective right (ius), Pufendorf thus sees libertas as an innate natural right,
because it does not entail a subjugation of a human beings “physical and moral personality”.
These entail his life, actions, honor, and reputation.574
But Pufendorf also argued there must be a “natural prima facie right to violent selfdefense”.
575 In that sense he seems very similar to Grotius and Hobbes. In his De officio
hominis et civis iuxta legem naturalem [On the Duty of Man and Citizen According to
Natural Law] he states that human beings possess natural reason. And this reason dictates
that he has certain natural freedoms and is not dependable upon others to justify his actions.
This human reason he possesses would also dictate – something that is commonly shared
amongst all human beings – that he must “strive to preserve his body and life and to repel
all that threatens to destroy them”, and do so by any means necessary.576
However, Pufendorf fundamentally disagrees with Hobbes’ conception on the state of
nature. Not the war of all against all is the basic state of nature, as Hobbes would have it, but
peace is actually the basic state of nature. In this regard, the most fundamental concept in
Pufendorf’s natural law theory is the idea of “sociability”. It refers to his idea that a life of
loneliness is not befitting for human beings as God endowed them with a nature that
571 Craig L. Carr (ed.), The Political Writings of Samuel Pufendorf, trans. Michael J. Seidler (New York:
Oxford University Press, 1994), 158. (Emphasis mine.)
572 Knud Haakonssen, Natural Law and Moral Philosophy: From Grotius to the Scottish Enlightenment
(Cambridge: Cambridge University Press, 1996), 40.
573 Knud, Natural Law and Moral Philosophy, 40
574 Knud, Natural Law and Moral Philosophy, 40.
575 Korkman, Life, Liberty, and the Pursuit of Happiness, 260.
576 Samuel Pufendorf, On the Duty of Man and Citizen According to Natural Law, ed. James Tully, trans,
Michael Silverthorne (Cambridge: Cambridge University Press, 1991), 117.
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promotes a safe and fruitful social life.577 Instead of war being the essential to social relations
in the state of nature, thus, Pufendorf argues that these essential social relations are actually
characterized by sociability; the fundamental human need for people to live and work
together in a state of safety and prosperity. In doing so, Pufendorf synthesizes Hobbes’ idea
of the essential need for self-preservation and Grotius’ idea of the inherent social nature of
human beings as the dual grounds for the idea of the natural law.578 However, for Pufendorf,
sociability is also a divinely imposed reality. He argues that human beings were created with
the “necessity” for leading a peaceful social life.579
However, the question remains how far Pufendorf’s plea for innate natural rights extend. At
the backdrop of his idea of sociability, Pufendorf argues that to be a political animal, to be a
“good citizen” people should give their natural rights in favor of broader society. In his On
the Duty of Man and Citizen, he states about the civil life:
In becoming a citizen, a man loses his natural liberty and subjects himself to an
authority whose powers include the right of life and death. At its command he must
do much he would otherwise avoid; and he must not do much that he would otherwise
powerfully desire to do. Again, in most of his actions he must take into account the
good of society, which often seems to conflict with the good of individuals. [...] By a
truly political animal, i.e., a good citizen, we mean one who promptly obeys the
orders of those in power; one who strives with all his strength for the public good,
and gladly puts his own private good second - one, in fact, who believes nothing to
be good for him unless it is also good for the state; one, finally, who is well disposed
to his fellow-citizens.580
In this passage Pufendorf argues that to be able to become a full citizen, one needs to wholly
give up one’s natural rights. Not the “good of the individual” counts anymore but the “good
of society”. To become as “political animal”, as Pufendorf has it, one needs to completely
submit to the authority of the state. This evaluation seems a far cry from Locke, who would
argue for civil disobedience of even rebellion, if the state would not honor the law of nature
and promote natural rights of human beings. In the final analysis, the “natural rights”
Pufendorf espouses emerge from the duties imposed by the natural law, rather than the duties
577 Petter Korkman, “Life, Liberty, and the Pursuit of Happiness: Human Rights in Barbeyrac and
Burlamaqui”, Transformations in Medieval and Early-Modern Rights Discourse, eds. V. Mäkinen and P.
Korkman (Dordrecht: Springer, 2006), 259.
578 Knud, Natural Law and Moral Philosophy, 42.
579 Haara, Inclination to Self-Preservation and Rights to Life and Body, 89.
580 Pufendorf, On the Duty of Man and Citizen, 132-133. (Emphasis mine.)
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that other people may have towards each other. For Pufendorf, rights are not yet a universal
moral ground from which stem natural rights that inhere in the human being. His theory is
still very much encapsulated in social conventions and authority relations (especially
regarding the state).581
5.3. Locke and the Rights to Life, Liberty, and Property
Locke further developed his ideas on the right to life based on the works of Grotius and
Hobbes. In doing so he extends the right to life not only to the preservation of the self, but
also to the preservation of the lives of others. In Grotius and Hobbes, we see that the right to
self-preservation is fundamental to their system of thought. In that sense, early modern
natural rights theory has a very minimalist morality. Still, they too were part of a larger
intellectual project of expanding and differentiating a natural rights discourse that sought to
distance itself from the earlier natural law scholars of the Middle Ages, as task in which they
would only party succeeded.582
In comparison the earlier natural rights theorists, Locke’s rights language is both much more
explicit and much more universalizing. For example, Locke explicitly states “though the
earth, and all inferior creatures, be common to all men, yet every man has a property in his
own person”, leaving no doubt he is talking about natural subjective rights.583 He explicitly
states human beings have certain natural individual rights, independent of a legislating state
or engagement in the social contract. Where Grotius and Hobbes would, first and foremost,
talk about the right of self-preservation – and that language is certainly not fully absent in
Locke – Locke would much more often talk about fundamental right for “all of mankind”.
For example, in his Second Treatise of Government Locke mentions that everyone must
preserve and protect his own life, according to natural reason. But when his own life is not
reasonably under direct threat, human beings should endeavor to protect and preserve the
lives of other human beings as well. In fact, Locke state, he must “preserve the rest of
mankind”. On the other hand, a person may not infringe upon the right to life of others or
harm them in any way. Furthermore, he explicitly mentions regarding the rights of other
581 Haara, Inclination to Self-Preservation and Rights to Life and Body, 89 and 97.
582 See Chapter III.
583 John Locke, Two Treatises of Government and A Letter Concerning Toleration, ed. Ian Shapiro (New
Haven and London: Yale University Press, 2003), 111. (Emphasis mine.)
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human beings “the preservation of the life, the liberty, health, limb, or goods of another”.584
Hence, we see that for Locke, no longer the focus is the right to self-preservation. One ought
to help preserve (protect, sustain, etc.) the whole of humanity, as much as one is capable to
do so.
Dissimilar to Hobbes – who believed human beings in the state of nature lived in the constant
flux of war and were devoid of any natural rights at all – Locke did believe humans in the
state of nature had certain fundamental and inalienable natural rights, such as liberty.
According to Locke, all human beings are born naturally free, and they are also born
rational.585 Locke defines liberty as freedom from other human beings in determining his
thought and actions. That is, to be able to govern himself, with the intervening of others in
any way. There is, however, the prerequisite of being able to use reason, as unguided reason
leads to “unrestrained liberty”. It is to “thrust him out amongst brutes, and abandon him to a
state as wretched”.586
In this passage, Locke stipulates that rationality is the basis for liberty. Because reason –
gifted to him by God – allows him to know and follow the natural law. Liberty, in Locke’s
conception, was however not unrestricted.587 To be free – or at liberty to do something – is
to be free of the earthly authority and superiority of other men. When there is no rule but the
rule of nature. What he means by that, however, is not what one of his advisories sir Robert
Filmer alludes to for everyone to simply do as he pleases. This, Locke argues, will only lead
to unlawfulness. Instead, men should freely rally under a government, in which there is a
commonly shared rule and legislative powers are in place with the consent of the people.588
Locke’s ideas on property rights are perhaps the most influential of his whole natural rights
theory. Locke actually uses the term “estate” much more frequently that “property”. For
Locke, property is not only what one can possess but also that which inheres in yourself. In
Locke’s understanding we acquire “ownership” over something by “mixing our labor with
them”.589 Locke argues, on theological terms, that God had “given the earth to the children
584 Locke, Two Treatises of Government, 102.
585 Locke, Two Treatises of Government, 125.
586 Locke, Two Treatises of Government, 126.
587 Locke, Two Treatises of Government, 102.
588 Locke, Two Treatises of Government, 109-110.
589 Lance K. Stell, “Dueling and the Right to Life”, Ethics 90 (1979): 15.
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of men”, that is to “mankind in common”.590 So everyone may freely use of its substance.
But for man to truly have possession over it, one must have added something to nature. As
an example, he mentions picking up acorns under an oak tree or picking apples from an apple
tree. By doing so, a person had “appropriated” them. That mere labor made them his. He
explains: “That labour put a distinction between them and common: that added something
to them more than nature, the common mother of all, had done; and so they became his
private right.591
In other words, something of a person’s own labor must be included in acquiring an object.
If this happens, that person acquires possession of this object.
The labour of his body, and the work of his hands, we may say, are properly his.
Whatsoever then he removes out of the state that nature hath provided, and left it in,
he hath mixed his labour with, and joined to it something that is his own, and thereby
makes it his property. It being by him removed from the common state nature hath
placed it in, it hath by this labour something annexed to it that excludes the common
right of other men. For this labour being the unquestionable property of the labourer,
no man but he can have a right to what that is once joined to, at least where there is
enough, and as good, left in common for others.592
Locke’s theory of property rights was also used, including by himself, to justify European
imperialism and colonialism. In addition, his attitude towards slavery was ambiguous, to say
the least. Locke had promoted the natural right of all human beings to have liberty. For him,
this was a fundamental right, as were the rights to life and property. And indeed, he did not
seem to condone the Aristotelian idea of natural slavery, in which the belief was that some
people by birth were intended to be slaves.593 But he did argue that those who resisted the
rights of European colonial settlers to cultivate the land – and thus acquire it as property –
did not short of conducting an “unjust war” against the Europeans and hence could be subject
to enslavement.594 In addition, Locke himself was heavily involved in slavery. For instance,
he was the co-author of the Constitution of Carolina, which explicitly condoned slavery. He
argues, for example, that all freemen should have “absolute power and authority of his negro
590 Locke, Two Treatises of Government, 111.
591 Locke, Two Treatises of Government, 112.
592 Locke, Two Treatises of Government, 111-112.
593 See Nicholas D. Smith, “Aristotle’s Theory of Natural Slavery”, Phoenix 37, No. 2 (1983): 109-122.
594 Michael Freeman, Human Rights (Cambridge and Malden, MA: Polity Press, 2017), 26.
145
slaves”.595 In doing so Locke flat-out contradict statements he made categorically
denouncing slavery.596 In addition, Locke had no conception of minority rights.597
5.4. Conclusion
In this chapter we explored the four fundamental rights theories of Grotius, Hobbes,
Pufendorf, and Locke. Before delving into these four natural law theorists, we discussed the
recurring issue of “basic goods’ in the Western legal tradition. Rights stand in a hierarchy
with each other and not every right is equal to others. Some are more fundamental to human
dignity and societal flourishing. The most basic human concerns were often discussed under
the rubric “basic goods”. For Aquinas these were life, reproduction, education, worship,
social life, avoiding offence and shunning ignorance, while for Finnis these are practical
reflection, life, knowledge, play, aesthetic experience, sociability (i.e., friendship), practical
reasonableness, and religion. These “basic goods” work in conjunction. One cannot do with
the other. Fundamental rights could be seen as basic goods.
Grotius, Hobbes, Pufendorf, and Locke belong to the era of “classical rights texts” and are
often seen as precursors to modern human rights. Of these four, only Locke seems to have a
more developed theory of rights. Those of Grotius, Hobbes, and Pufendorf remain
rudimentary and minimalistic. These three natural rights thinkers could be best understood,
arguably, as precursors to the ideas of Locke, who reworks and builds upon their ideas. But
the others make important contributions as intellectual predecessors, such as the separation
of law (lex) and right (ius), which allowed Locke the opportunity to use richer rights
language. Natural rights theories were often developed as a response to political
development. And not so much as an inherent development from within a religious or moral
framework, as is the case with Islam.
Also, there seems to be a tension in the “new” natural rights language. On the one hand, it
seems to emphasize a universalizing language, often addressing “all mankind”. On the other
595 Lynn Hunt, Inventing Human Rights: A History (New York and London: W. W. Norton & Company,
2007), 119.
596 In his answer to Filmer, Locke says for example: “Slavery is so vile and miserable an estate of man, and
so directly opposite to the generous temper and courage of our nation, that it is hardly to be conceived that an
Englishman, much less a gentleman, should plead for it”, See Locke, Two Treatises of Government, 7.
597 Freeman, Human Rights, 133.
146
hand, natural rights theories were used to justify slavery, land usurpation and colonization
of indigenous peoples in the Americas. That being said, the influence of early modern natural
rights theories on the later Enlightenment and eighteenth-century rights declarations seems
to be evident. Despite the secularizing tendency of modern human rights, natural rights
theories still have had their impact.
Concerns for the fundamental right of life were reflected mostly in early modern law of
warfare (jus in bello) and just war theories (bellum justum). In the law of nations, Grotius
played a major role. It was Grotius’ belief that the singular right human beings have, was
the right to self-defense and self-preservation. His law of nations made great strides in
development. For example, it helped forbid the killing of prisoners, hostages, and innocent
civilians (including women and children). However, his malleable conception of natural
rights theory was also used to justify colonialism and “just war”.
Grotius does not specifically mention the right to life explicitly but does talk about “rights
common to all” that include care for basic livelihood, such as food, clothing, and medicine.
“Foreigners”, once admitted, could not be withheld basic case. Even in times of famine. It is
at these times, Grotius argues, we need to share in “common calamity”. Be that as it may,
inherent human dignity does not seem to have been the motivating factor for Grotius’ natural
law theory.
For Hobbes, the main state of nature was one of the “war of all against all” (bellum omnium
contra omnes). Hobbes only espoused the liberty-right for self-preservation. Hobbes’ natural
rights theory is not concerned with the rights of others. He theory is therefore rather
individualistic. Hobbes prioritizes psychological motives, such as self-interest and passions.
The strongest passion of them all he argued, was the fear of violent death. This, he argued,
could not be a perpetual state, hence human beings must work towards peace. While Hobbes
did not explicitly elaborate upon subjective rights, he does acknowledge a distinct human
nature which is the ground upon which people can receive basic personal rights. This idea is
much clearer in Hobbes than his medieval predecessors.
Pufendorf inherits and synthesizes the natural law theories of Hobbes and Grotius, but he
disagrees on important points. He rejects die idea of the state of nature being bellum omnium
contra omnes. Pufendorf is often seen as a precursor to modern human rights. His idea of
147
“natural equality” is seen as an idea that is affirming universal humanity. This might be
somewhat of an overstatement. Pufendorf’s main concern seems to have been to articulate a
theory that could explain and justify why individuals should obey a sovereign state authority.
On a close reading of his work, Pufendorf does seem to have a rudimentary conception of
subjective rights. He divides ius in libertas, imperium, dominium, and servitus. But only the
latter actually counts as an innate natural right. These entail the natural right to life, actions,
honor, and reputation. In addition, Pufendorf introduces the idea of “sociability” as an
alternative to Hobbes. This is the idea that a life of loneliness is not befitting for human
beings as God endowed them with a nature that promotes a safe and fruitful social life.
Locke further developed his ideas on the right to life based on the works of Grotius and
Hobbes. In doing so he extends the right to life not only to the preservation of the self, but
also to the preservation of the lives of others. In comparison the earlier natural rights
theorists, Locke’s rights language is both much more explicit and much more universalizing.
He often refers to “all mankind”. In addition, he makes it very explicit that human beings
have individual subjective rights. His attention also moved away from the idea of “selfpreservation”
– although he does not desert it – to the preservation of other people. Opposite
to Hobbes, Locke did believe all people has natural rights in the state of nature. These are
the rights to life, liberty, and estate (or property). Human beings, according to Locke are
born free and rational, so that they can discover and obey the natural law. But liberty is not
unconditional. Locke’s right to property is a labor-based right. If someone’s labor mixes
with something (for example working the land) it becomes their property.
Locke does have several problems and tensions as a natural rights theorist. He himself
justified European imperialism and colonialism. Also, his attitude towards slavery was
ambiguous. He promoted the idea of universal natural freedom, but argued in some cases
that slavery was condoned. He also condoned the taking on indigenous lands using his laborbased
theory of property rights. Lastly, Locke had no conception of minorities.
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CHAPTER VI
FUNDAMENTAL RIGHTS IN PREMODERN ISLAMIC
LAW: ʿIṢMAʾ, ḤURRIYYA AND MĀLIKIYYA
“These rights of inviolability, liberty, and property are inborn.”
Muḥammad Abū Bakr al-Sarakhsī598
“Surely, We have honored the children of Adam.”
Qurʾān, 17:70
In this chapter we explore various fundamental rights in in the Islamic legal tradition. First
we look two distinct ways in which the jurists of Islam grounded rights: the theory of public
benefit (maṣlaḥa) and the theory of and human dignity (karāma). Then we explore several
examples of fundamental rights in Islam, particularly the inviolability of life (ʿiṣmaʾ al-nafs),
the right to freedom or liberty (ḥurriyya), and the right to ownership and property (milkiyya).
These are by no means all rights, but they are fundamental. Also, they are equally
emphasized in both Islamic rights theories. Finally, they compare well with similar
fundamental rights in the Western natural rights tradition, which lacks the Islamic “right to
honor”, to give but one example.
6.1. Grounding Ḥuqūq in Public Benefit and Human Dignity
Rights are grounded in various ways in the Islamic legal tradition. These grounds can be
based on religious and rational arguments. Hence, it has been said that “knowledge of the
law in Islam is what was seen as a happy synthesis between human reason and the divine
word”.599 Before the formalization of Islamic law with the formation of the classical legal
schools in Islam in the tenth century, Muslim scholars had extensive discussions about the
relation between reason and revelation. During the late eighth and ninth centuries two
distinct intellectual movements championed either reason or revelation. These were the
598 Abū Bakr al-Sarakhsī, Uṣul al-Sarakhsī, Vol. 2, ed. Abū al-Wafāʾ al-Afghānī (Beirut: Dār al-Kutub al-
ʿIlmiyya 2015), 334.
599 Wael B. Hallaq, Sharīʿa: Theory, Practice, Transformations (Cambridge: Cambridge University Press,
2009), 83.
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traditionalist movement (ahl al-ḥadīth) and the rationalist movement (ahl al-rāʾī). The first
movement had argued for a sole dependence on religious scriptural sources, the Qurʾān and
prophetic narrations (ḥadīth, pl. aḥadīth) and strict limitation of any form of rational
reasoning. The rationalist school, on the other hand, advocated for the use of discretionary
reason. While it also depended on the Islamic scriptural sources, it allowed for more
flexibility for the use of the intellect.600 By the end of the ninth century, however, the most
contentious issues were settled, and Islamic jurists generally combined both approaches in
some shape or form. This ended around the middle of the tenth century in is what could be
called the Great Synthesis between the traditionalist and rationalist approaches.601
From this Great Synthesis sprang two intellectual trends in Islamic legal thinking that could
be considered as “theories of rights”, in that they can give an account of claims and
entitlements based on the moral-legal framework of the Islamic Weltanschauung.602 In
addition, these rights theories provide criteria for the concept of a right and explain the
ultimate purpose that they serve.603 These are the rights theories of public benefit (maṣlaḥa)
and human dignity (karāma), respectively.604 The first public benefit-based theory seems to
be especially dominant in the Shāfiʿī, Mālikī, and Ḥanbalī schools of law, having been
developed by great scholars of these schools, such as Abū Ḥāmid al-Ghazālī (d. 1111), Abū
Isḥāq al-Shāṭibī (d. 1388), Shihāb al-Dīn al-Qarāfī (d. 1285), and Najm al-Dīn al-Ṭūfī (d.
1316). The second human dignity-based theory seems to be dominant amongst exponents of
the Ḥanafī school of law, who developed an elaborate theory of inviolability (ʿiṣmaʾ).605
600 The rationalist school should, however, not be misunderstood as “liberal” in the sense of unlimited use of
reason. It also had internal principles bases of religious guidelines.
601 Hallaq, Sharīʿa, 55-60 and 72.
602 Alon Harel, “Theories of Rights”, in The Blackwell Guide to the Philosophy of Law and Legal Theory,
eds. Martin P. Golding and William A. Edmundson (Malden, MA: Blackwell Publishing, 2005), 191-206.
603 David Frydrych, “The Theories of Rights Debate”, Jurisprudence 9, No. 3 (2018): 566-588.
604 Scholars Recep Şentürk and Muhammed Said Bilal offer more candidates that could be considered rights
theories in the Islamic legal tradition, such as the rights theory based on beauty (ḥusn) and ugliness (qubḥ),
proposed by the Ottoman statesman of Greek-Orthodox Christian background Sava Paşa (d. 1904), in his
French work Etude sur la Théorie du Droit Musulman. Another one is the rights theory based on juristic
discretion (iḥtiṣān) proposed, among others, by the Ottoman legal scholar and politician Seyyid Bey (d.
1925). Both of these theories, however interesting, are modern in nature and hence fall beyond the scope of
this thesis. Future research into post-1800 modern Islamic rights theories is certainly merited. See Recep
Şentürk and Muhammed Said Bilal, Human Rights in the Ottoman Reform: Foundations, Motivations and
Formations (Istanbul: Ibn Haldun University Press, 2020), 103-122.
605 Baber Johansen, “Der ʿiṣma-Begriff im hanafitischen Recht”, in Actes du 8 Congrès de l’Union
Européenne des Arabisants et Islamisants, Aix-en-Provence, septembre 1976 (Aix-en-Provence: Edisud,
1978), 89-108, republished in Contingency in Sacred Law, 238-262; Recep Şentürk, ‘İsmet’, TDV İslâm
Ansiklopedisi, Vol. 23 (Istanbul: Türkiye Diyanet Vakfı, 2006), 137-138.
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Examples of scholars who wrote on this theory are Abū Zayd al-Dabūsī (d. 1039) and Abū
Bakr al-Sarakhsī (d. 1090).
6.1.1. The Rights Theory of Maṣlaḥa
The early history of the theory of maṣlaḥa is not yet quite clear in scholarship on the topic.606
But generally accepted is that al-Ghazālī was the first legal scholar to have developed a
systematic articulation of the theory of maṣlaḥa.607 For al-Ghazālī, the issue of public benefit
was very much connected to the ultimate objectives of the Sharīʿa (maqāṣid al-sharīʿa).
Public interest (maṣlaḥa) had to be protected in accordance with the basic objectives of the
law, according to al-Ghazālī. In general, the theory of public benefit was applied in those
areas where the religious scriptural sources of Islam were silent. The ratio legis of the law
is determined based on (principled) rational reasoning and does not strictly deal with the
textual sources. Although it always had to be done in the “spirit” of the law.608 One of the
basic premises of the law is avoiding harm and promoting benefit, for both human life and
society as a whole.
The basic objectives of Islamic law, according to al-Ghazālī are the protection of life (alnafs),
religion (al-dīn), intellect (al-ʿaql), lineage (al-nasl), and property (al-māl).609 These
fundamental rights are essential for basic human dignity and societal flourishing. Hence,
they should be protected. The have come to be known as the five fundamental rights (al-
ḍarūriyyāt al-khamsa). They were seen as the indispensable necessities of human life and
societal flourishing. These five basic rights came to be accepted as the most fundamental
principles and objectives of the Islamic law, and hence would enjoy great acceptance
amongst all the schools of Islamic jurisprudence. However, the scholar al-Qarāfī – a major
jurist of the Mālikī legal school – argued that there was a sixth basic right, namely “the right
to honor” (al-ʿirḍ). The right of the protection of honor was originally subsumed under the
606 Felicitas Opwis, “Islamic Law and Legal Change: The Concept of Maṣlaḥa in Classical and
Contemporary Islamic Legal Theory”, in Shari’a: Islamic Law in the Contemporary Context, ed. Abbas
Amanat and Frank Griffel (Stanford, California: Stanford University Press, 2007), 65.
607 We see some earlier expression of the maqāṣid theory in al-Ghazālī’s famous teacher, Imam al-Ḥaramayn
al-Juwaynī (d. 1085), see Mohammed Hashim Kamali, Shariʿah Law: An Introduction (Oxford: Oneworld,
2008), 125.
608 Wael B. Hallaq, A History of Islamic Legal Theories: An Introduction to Sunnī uṣūl al-fiqh (New York:
Cambridge University Press, 1997), 89.
609 Abū Ḥamid al-Ghazālī, al-Musṭaṣfā min ʿilm al-uṣūl, Vol. 1 (Cairo: al-Maktaba al-Tijāriyya, 1937), 287.
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already existing basic right of lineage (al-nasl). However, al-Qarāfī argued that because
there was a different sharʿī punishment for slanderous accusations (al-qadhf) in Islamic law,
honor should be treated as a separate fundamental right that needs to be protected.610 Aside
from the five fundamental rights, al-Ghazālī also developed two additional levels of rights.
We could call these “secondary” and “tertiary” rights. These are the necessities (hājiyyāt)
and improvements (taḥsīniyyāt).611 These two levels of rights were not seen as fundamental
to human life and dignity, but they were important additional rights.
It seems that historically, al-Ghazālī’s model of maṣlaḥa was the most widespread amongst
Islamic legal scholars, while the models al-Shāṭibī and al-Ṭūfī failed to gain a large
following. While it is not yet completely clear why this is the case, one reason could be that
the models differ in terms of implementation. While maṣlaḥa plays a rather humble role in
the theory of al-Ghazālī, its role is much more substantial in the case of al-Shāṭibī, for whom
maṣlaḥa is almost a goal in and of itself. For al-Ghazālī maṣlaḥa is but a subset in legal
reasoning of other, more established legal instruments, such as legal analogy (qiyās). In his
implementation he stayed very closed to the revealed scripture. While for al-Shāṭibī, for
example, maṣlaḥa was a self-standing legal hermeneutical tool. For him, maṣlaḥa was a
source of law itself (and not just a subsidiary legal method) that could in some cases even
overrule textual sources.612 Al-Ghazālī’s model was thus somewhat more conservative, in
that it allowed for only slow and gradual legal change, while al-Shāṭibī’s model was in a
sense much more radical. In modern times, it seems that the theory of maṣlaḥa has gained
new ground and interest among Muslim scholars, especially those from the reformist school.
However, these maṣlaḥa theories differ quite radically from the earlier classical elaboration,
such as that of al-Ghazālī. Modern day maṣlaḥa approaches, for example, do not limit the
number of basic objectives of the law.613
610 Kamali, Shariʿah Law, 126.
611 The classification of the maqāṣid into the three levels of ḍarūriyyāt, hājiyyāt, and taḥsīniyyāt is attributed
to al-Juwaynī, see Kamali, Shariʿah Law, 125.
612 Opwis, Islamic Law and Legal Change, 68-71.
613 One modern interpretation of the approach of maqāṣid al-sharīʿa is that of the Tunisian reform-minded
scholar Ibn ʿĀshūr (d. 1973). See Muḥammad al-Ṭāhir ibn ʿĀshūr, Ibn Ashur: Treatise on Maqāṣid al-
Sharīʿah (London and Washington: The International Institute of Islamic Thought, 2006). For an overview of
modern applications of theory, especially with regards to modern human rights, see David L. Johnston,
“Maqāṣid al-Sharīʿa: Epistemology and Hermeneutics of Muslim Theologies of Human Rights”, Die Welt
des Islams 47, No. 2 (2007): 149-189.
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6.1.1. The Rights Theory of Karāma
The second rights theory has been largely elaborated by the jurists of the Ḥanafī school.
According to scholarship the Ḥanafī scholars had a more developed set of legal concepts
pertaining to the idea of legal personality (dhimma) and inviolability (ʿiṣmaʾ) than the other
schools.614 Hence, the rights theory of the Ḥanafī school tends to evolve around these
concepts. Ultimately, this rights theory is based on the idea of inherent human dignity and
worth (karāma). It was in fact, most probably, the eleventh century Ḥanafī jurist and legal
theorist Abū Zayd al-Dabūsī (d. 1039) who first elaborated the karāma-based theory of
rights.615 Al-Dabūsī, a central figure in the Ḥanafī school of law, in his highly sophisticated
and influential legal-philosophical treatise called Taqwīm al-adilla fī uṣūl al-fiqh [The
Evaluation of Evidences in Legal Philosophy], argues for the existence of fundamental rights
in Islam for all human beings by virtue of their humanity. In his work he mentions:
When God Almighty created man in order to enable him to bear His trust (amāna),
He dignified him with reason (ʿaql) and legal personality (dhimma), so that he would
become capable of fulfilling the rights and obligations incumbent upon him, and He
endowed him with the rights of inviolability (ʿiṣma), liberty (ḥurriyya) and property
(mālikiyya). [...] The human is not created but a free person (ḥurr) and in possession
of the rights ascribed to him. He established for him these honors (karamāt) and legal
personality (dhimma) in order to enable him to fulfill the divine rights.616
In this early classical text of Islamic jurisprudence, al-Dabūsī argues for the protection of
fundamental human rights, the term which he uses for this is ḥuqūq al-nās.617 These
fundamental rights, as we can grasp from this passage, are the rights to life, liberty and
property.618 Any contemporary scholar of the history of the modern human rights discourse,
perhaps in surprise, will be struck by some sense of recognition, as John Locke (d. 1704),
the renowned sixteenth-century philosopher and political theorist of the European
Enlightenment, famously argued for these very same three fundamental rights in his Two
614 Eyyüp Said Kaya and Hasan Hacak, “Zimmet”, in TDV İslâm Ansiklopedisi (Istanbul: Türkiye Diyanet
Vakfı, 2013), 427.
615 Kaya and Hacak, Zimmet, 424-423.
616 Abū Zayd al-Dabūsī, Taqwīm al-adilla fī uṣūl al-fiqh (Beirut: Dār al-Kutub al-ʿIlmiyya, 2001), 417.
(Unless otherwise stated, the translations from Arabic in this article are mine.)
617 Which is an equivalent for human rights (ḥuqūq al- ādamiyyīn), mentioned in Chapter IV.
618 Inviolability (ʿiṣmaʾ) in the context of Islamic legal terminology refers to the inviolability of both life and
property. Şentürk, İsmet, 137-138.
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Treatises of Government, albeit speaking of “estate” rather than property.619 This prompted
human rights scholar Michael Freeman to designate Locke’s work as the “first systematic
human-rights theory”, even though al-Dabūsī wrote more than six centuries earlier.620 Some
have therefore argued that Locke might have been indirectly influenced by al-Dabūsī, and
similar Islamic legal theorists, through the canon lawyers of the medieval Christian natural
law (ius naturale) tradition.621 While the intellectual and cultural influence of Islamic
civilization on medieval Latin Europe is beyond question, the specific claim of a possible
link between classical Islamic legal thought and Locke’s theory of rights needs to be further
substantiated with historical evidence. This, however, lays beyond the proper scope of this
thesis.622
In the passage cited here, al-Dabūsī argues that every single created human being is endowed
with intellect and legal personality. These are given to her or him in order to receive and
take responsibility for their inborn and God-given fundamental rights (i.e., the rights to life,
liberty and property) and their corresponding duties (i.e., not to infringe upon these same
rights in relation to other human beings). Human beings are all created free (ḥurr) in order
to be able to fulfill their responsibilities on earth. Without freedom and fundamental rights,
full human potential and flourishing cannot be reached. These fundamental rights are the
basis of human dignity and hence are called “honoring gifts” (karamāt) bestowed upon
human beings by God.623 The Ḥanafī jurist Abū Bakr al-Sarakhsī (d. 1090), who writes more
than half a century later and builds upon the works of al-Dabūsī, further corroborates the
three fundamental rights of life, liberty and property, spoken of by his predecessor. He
elaborates that these rights are inborn in every human being:
These rights of inviolability, liberty and property are inborn. No distinction is made
between those that are able to discern (i.e., adults) or not yet discern (i.e., children).
619 See the treatment of Locke’s natural rights theory in Chapter V.
620 Michael Freeman, Human Rights (Cambridge and Malden, MA: Polity Press, 2017), 11.
621 See Asım Cüneyd Köksal, “İnsan Haklarının Felsefi Krizi: İslâmî Bir Perspektif”, Marmara Üniversitesi
İlâhiyat Fakültesi Degisi 58 (2020): 25-67.
622 For Islamic influences on the Western legal tradition, see Chapter III.
623 Very little research has been done on this important Ḥanafī legal philosopher, even though he is copiously
cited in subsequent Ḥanafī legal works. In fact, many later Ḥanafī scholars build upon his work. See Murteza
Bedir, Early Developments of Ḥanafī Uṣūl al-Fiqh (unpublished PhD dissertation, University of Manchester,
1999).
154
Therefore, the legal personality that enables humans to receive fundamental rights
are established by birth.624
To demonstrate the universalist karāma-based Ḥanafī perspective on rights and human
inviolability, which is grounded upon the concept of ādamiyya (humanity), the example of
al-Marghīnānī, who’s legal treatise was to become the most central reference for legal
verdicts (fatwa) in the Ḥanafī school of jurisprudence warrants attention.625 In this passage
he critiques the position of al-Shāfiʿī, who is the eponym of another of the four Sunnī schools
of Islamic law, who argues that inviolability is grounded upon being a Muslim, and not by
virtue of humanity.626 Al-Marghīnānī rejects al-Shāfiʿī’s position and rather affirms that
inviolability is not attached to Islam but to the human person, as he argues:
Man is created with an intent that he should bear the burdens imposed by the law,
which men would be unable to do unless the molestation or slaying of them were
prohibited, since if the slaying of the person were not illegal, he would be incapable
of performing the duties required of him. The person therefore is the original subject
of protection, and property follows as a dependent thereof, since property is, in its
original state, neutral, and created for the use of mankind, and is protected only on
account of the right of the proprietor, to the end that each may be enabled to enjoy
that which is his own.627
The universalist karāma-based approach to an Islamic conception of human rights,
expressed by al-Dabūsī and others during the High Middle Ages, carried right into modern
times.628 To mention but a few examples, the nineteenth-century Damascene jurist ʿAbd al-
Ghanī al-Maydānī (d. 1881), famous for his detailed commentary (sharḥ, pl. shurūḥ) on one
of the major legal primers (matn, pl. mutūn) of the Ḥanafī school of legal thought, al-Lubāb
624 Abū Bakr al-Sarakhsī, Uṣul al-Sarakhsī, Vol. 2, ed. Abū al-Wafāʾ al-Afghānī (Beirut: Dār al-Kutub al-
ʿIlmiyya, 2015), 334.
625 See Sohail Hanif, A Theory of Early Classical Ḥanafism: Authority, Rationality and Tradition in the
Hidāyah of Burhān al-Dīn ʿAlī ibn Abī Bakr al-Marghīnānī (d. 593/1197) (unpublished PhD thesis,
University of Oxford, 2017).
626 For an overview of the four Sunnī schools of law, see Christopher Melchert, The Formation of the Sunni
Schools of Law, 9th-10th Centuries C.E. (Leiden and Boston: Brill, 1997).
627 Cited in Recep Şentürk, “Âdamiyya and ʿIsmah: The Contested Relationship between Humanity and
Human Rights in Classical Islamic Law”, İslâm Araştırmaları Dergisi 8 (2002), 47.
628 Here, I use the term “High Middle Ages” out of scholarly convention. The common periodization of
history into Antiquity, Middle Ages and (Early) Modernity, however, is an invention of sixteenth- century
European Renaissance scholars, mostly unsuitable for world historical purposes. In the context of Islamic
history, al-Dabūsī’s time would more accurately be called the “Earlier Middle Period”, in order to better
reflect the historical flow of time indigenous to Islamic civilization. See Marshall G. S. Hodgson, The
Venture of Islam: Conscience and History in a World Civilization, 3 vols. (Chicago: The University of
Chicago Press 1974).
155
fī Sharḥ al- Kitāb, mentions that human beings possess sanctity merely by virtue of their
existence (al-ḥurr maʿṣūm bi nafsihi).629 Another late scholar and jurist, Ibn ʿĀbidīn (d.
1836), in his marginal gloss (ḥāshiya) called Radd al-Muḥtār ʿalā Durr al-Mukhtār, which
became the most authoritative legal text for the issuing of legal verdicts (fatwa) in the late
Ḥanafī school, in a similar spirit, mentioned that all human beings enjoy the inviolability
and protection of their basic rights, be they Muslim or non-Muslim (al- adamī mukarram
sharʿan wa law kāfiran).630 It has also been suggested that major modern Islamic legal
reforms, such as the championing of equal rights for all citizens in the Ottoman Empire,
Muslims and non-Muslims, in the so-called Gülhane Hatt-ı Şerif [Edict of Gülhane] of 1839,
were inspired by the same trend of Islamic legal universalism.631 In line with al-Dabūsī, the
edict affirms fundamental rights for all human beings based on Islamic legal principles, such
as the rights of life, property, freedom of religion, protection of honor, education,
employment and due process. It writes: “All Muslim or non-Muslim subjects shall benefit
from these rights. Everyone’s life, chastity, honor and property is under the guarantee of the
state according to the Sharīʿa laws”.632
6.2. Exploring Fundamental Rights in Islamic Law
In order to have an idea of how fundamental rights a substantiated, we explore several
fundamental rights in Islam from the perspective of classical Islamic jurisprudence. With a
special focus on the right to the inviolability of life (ʿiṣmaʾ al-nafs), the right to freedom or
liberty (ḥurriyya), and the right to ownership and property (milkiyya). These are by no means
all of the rights that are Islamically considered as fundamental to human dignity and societal
flourishing. Indeed, the Islamic legal tradition is imbued with rights thinking.633 But these
rights are by consensus of the Muslim jurists fundamental, and they have been mentioned as
such by several prominent Islamic jurists as being particularly conditional for human worldly
629 ʿAbd al-Ghanī al-Maydānī, al-Lubāb fī Sharḥ al-Kitāb, Vol. 4, ed. Muḥammad Muḥyī al-Dīn ʿAbd al-
Ḥamīd (Cairo, 1963), 128.
630 Muḥammad Amīn b. ʿĀbidīn, Radd al-Muḥtār ʿalā al-Durr al-Mukhtār Sharḥ Tanwīr al-Absār, Vol. 5
(Beirut: Dār al-Kutub al-ʿIlmiyya, 1994), 58.
631 See Recep Şentürk, “Sociology of Rights: ‘I Am Therefore I Have Rights’: Human Rights in Islam
between Universalistic and Communalistic Perspectives”, Muslim World Journal of Human Rights 2, No.1
(2005) https://doi.org/10.2202/1554-4419.1030 (accessed December 25, 2022).
632 Cited in Şentürk, Sociology of Rights.
633 Anver M. Emon, “Ḥuqūq Allah and Ḥuqūq al-ʿIbād: A Legal Heuristic for a Natural Rights Regime”
Islamic Law and Society 13, No. 3 (2006) 13(3): 325-391; Wael B Hallaq, “‘God Cannot Be Harmed’: On
Ḥuqūq Allah/Ḥuqūq al-ʿIbād Continuum”, in Routledge Handbook of Islamic Law, ed. Khaled Abou El Fadl,
Ahmad Atif Ahmad and Said Fares Hassan (London and New York: Routledge, 2019), 67-81.
156
life and ultimately eternal salvation.634 Additionally, it fits particularly well the comparative
legal framework that is envisioned in this thesis, in particular with regards to Lockean
theories of rights.635
6.2.1. The Right to Life
The right to life is central in both the maṣlaḥa and karāma theories of rights. It is stated by
al-Ghazālī as one of the basic objectives of the Sharīʿa (maqāṣid al-sharīʿa) that should be
protected as a fundamental right.636 In addition, both al-Dabūsī and al-Sarakhsī state that the
basic inviolability of life (ʿiṣmat al-nafs) which should be protected.637 The right to the
protection of life is so central in the Islamic legal-ethical framework that killing a human
being (qatl al-nafs) is listed as one of the major sins (kabāʾir) a human being could commit,
for which one is to be punished in this life and the hereafter. In the Qurʾānic
Weltanschauung, after all, human beings were created to live on earth as the ultimate testing
ground. Killing a human beings would be in severe contradiction to the divine purpose of
human life on earth.638
The Shāfiʿī scholar Shams al-Dīn al-Dhahabī (d. 1348), who wrote one of the most important
works on enormities (i.e., major sins) in Islamic law, cited several scriptural sources that
prohibit the killing of human beings. For example, in sūra 4:93 it is mentioned:
If anyone kills a believer (muʾmin) deliberately, the punishment for him is Hell, and
there he will remain: God is angry (ghaḍiba Allāh) with him, and rejects him, and
has prepared a tremendous torment (ʿadhāban aẓima) for him.
If someone does kill another person by mistake, they must free a slave in addition to paying
for compensation for the relatives of the victim in question. That is, unless the victim’s
family is charitable in the matter and forgives the perpetrator.639 This Qurʾānic injunction
also extends to non-believers, as God warns to believers who they fight “in the way of God”
634 See footnote 581.
635 See the methodology section in the Introduction of this thesis.
636 Al-Ghazālī, al-Musṭaṣfā min ʿilm al-uṣūl, 287.
637 Al-Dabūsī, Taqwīm al-adilla fī uṣūl al-fiqh, 417; Al-Sarakhsī, Uṣul al-Sarakhsī, 334.
638 See Wael B. Hallaq, “Groundwork of the Moral Law: A New Look at the Qurʾān and the Genesis of the
Sharīʿa”, Islamic Law and Society 16 (2009): 263.
639 The sūra mentions other ways of compensations for different groups of people, such as people with whom
the perpetrator is at war or in a peace treaty with. See Qurʾān 4:92.
157
(fī sabīl Allāh). If their enemies offer them greetings of peace (salām) the believer should
not say “You are not a believer” (lasta muʾminan). Instead, the Muslims are expected to
commit to peace.
Al-Dhahabī also cited as a major scriptural proof that the right to life should be protected
the verse from sūra 5:32, which mentions:
If anyone kills a person – unless in retribution for murder or spreading corruption in
the land – it is as if he kills all mankind.
This sūra related the famous story of Cain and Able, also mentions in Christian scriptural
sources, in which one of the brothers kills the other brother, after which the murdering
brother becomes remorseful.640 Al-Dhahabī did not cite the remainder of the verse, which
entails that the opposite is also true: “While if any saves a life it is as if he saves the lives of
all mankind”. The verse also mentions an exception for ‘those who sow corruption on the
earth’ in order to achieve social strife (fitna). According to al-Ghazālī, based on maṣlaḥa
reasoning, there is no need to punish this person by killing him, even if there might be a
public benefit in doing so. In that regard, al-Ghazālī shows a type of “rights triage” in which
the right to protect human life and need to limit government violence outweigh public
benefit.641
Ibn Ḥajar al-Haythamī (d. 1566) similarly lists the killing of human beings, be they Muslim
or a non-Muslim subject of the Islamic state (dhimmī). And not only does the author mention
the killing of another person as sinful, but also the aiding of killing others (al-iʿāna ʿalā alqatl)
of others in killing, or even the striking (ḍarb) or frightening (tarwīʿ) of others as forms
of physical or psychological violence.642 Regarding non-Muslims living under protection of
a Muslim state al-Haythamī mentions it is forbidden to “kill him, rob him, rape his wife,
terrorize or frighten him”.643 The Ḥanafī scholar Ibn ʿĀbidīn similarly extends the protection
of the right to life to both Muslim and non-Muslim.644
640 For the Biblical equivalent, see Ellen van Wolde, “The Story of Cain and Able: A Narrative Study”,
Journal for the Study of the Old Testament 16, No. 52 (1991): 25-41.
641 See Anver M. Emon, “Natural Law and Natural Rights in Islamic Law”, Journal of Law and Religion 20,
No. 2 (2004-2005): 375.
642 Cited in Aḥmad ibn Naqīb al-Miṣrī, ʿUmdat al-sālik, trans. Nuh Ha Mim Keller (Beltsville, Maryland:
Amana Publications, 1994), 984.
643 Al-Miṣrī, ʿUmdat al-sālik, 986.
644 Ibn ʿĀbidīn, Radd al-Muḥtār, 58.
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6.2.2. The Right to Freedom
The right to freedom is approached from several angles. We limit ourselves here to the issue
of freedom as “natural freedom”. The bare fact that human beings are created free. Islam
knows no concept of being born into slavery, as Aristotle for example did.645 Aristotle
defended the idea of natural slavery. In his Politics, he mentions that there are some human
beings who are from birth marked out by nature as slaves.646 The natural state of human
beings in Islam is that they are born free. Hence, the Ḥanafī scholar al-Dabūsī mentioned
that human beings are not created “but a free person” (ḥurr). In addition, he mentioned
liberty or freedom (ḥurriyya) as one of the fundamental rights human beings have. These
rights are fundamental and necessary, argues al-Dabūsī, so that human beings can fulfil their
covenant, their “trust” (amāna), with God. This freedom is one of the honors (karamāt) God
has given to mankind by virtue of his human dignity and worth.647
Also, while slavery was prevalent in the late antique world, Islam had all its legal
mechanisms in place to emancipate slaves. Islamic law provided with unprecedented – some
would revolutionary – emancipatory incentives to free slaves. For example, the use of alms
for freeing slaves, the requirement of freeing slaves as expiation for committed sins, or the
encouragement of the contract of manumission (mukātaba), through which slaves could buy
their own freedom.648 In contradistinction to the conception of slavery in Western natural
law theory, slaves were not perceived as “property” but as human beings who also had legal
capacity (and thus rights). As Mona Siddiqui mentioned:
The fundamental basis of slavery is that slaves could not be mukallaf or legally
competent as they lacked the criterion of freedom. But this legal deficiency which
determined their social and personal status disqualified the slaves from certain rights;
absence of freedom did not however deny them fundamental human rights.649
645 Nicholas D. Smith, “Aristotle’s Theory of Natural Slavery”, Phoenix 37, No. 2 (1983): 109-122.
646 Smith, Aristotle’s Theory of Natural Slavery, 110.
647 Al-Dabūsī, Taqwīm al-Adilla fī Uṣūl al-Fiqh, 417.
648 Jonathan A. C. Brown, Slavery and Islam (London: Oneworld Publications, 2019), 82-84.
649 Mona Siddiqui, The Good Muslim: Reflections on Classical Islamic Law and Theology (New York:
Cambridge University Press, 2012), 65-66.
159
Some of these rights entailed rights to religious practice. Muslim slaves had the right to
perform all of their religious duties. And non-Muslim slaves could not be forced by their
slave masters to convert to Islam. Also, slaves had the right to marry, the right to life and
physical protection, and the right to property.650 This is in contradistinction to, again,
Aristotle, who argued that slaves have no rights. In fact, they are according to him “rightly
considered a part of his master’s body”. Also, there seems to be no emancipating mechanism
in the Aristotelian theory of slavery. A natural slave benefits from being a slave of a “proper
master”. Freeing a slave would “deny him such benefits”.651
6.2.3. The Rights to Property and Ownership
Property and ownership rights play an important role in the Islamic ḥuqūq hermeneutic and
are by consensus of the scholars of Islam seen as fundamental to basic human dignity and
societal flourishing. Both the rights theory based on public interest (maṣlaḥa) and the rights
theory based on human dignity (karāma) mention the protection of property (māl, pl. amwāl)
as a fundamental right. The Ḥanafī legal theorist Abū Zayd al-Dabūsī, for example, mentions
the right to property as enjoying inviolability (ʿiṣmaʾ) for all human beings.652 The Shafiʿī
and Mālikī scholars Abū Ḥāmid al-Ghazālī and Abū Isḥāq al-Shāṭibī, respectively, mention
property as one of the five fundamental rights (al-ḍarūriyyāt al-khamsa) in their theory on
public interest.653
Al-Shāṭibī’s definition of al-māl is that thing which is the subject matter of ownership, and
which is solely enjoyed by the owner (al-mālik), to the exclusion of others, and that was
legally acquired.654 The Shāfiʿī scholar Abū al-Ḥasan al-Māwardī (d. 1058), in his
compendium of comparative fiqh from a Shāfiʿī perspective al-Ḥāwī al-Kabīr, notes that
property is an individual human right (al-amwāl min ḥuqūq al-ādamiyyīn) that is integral to
the person (along with physical well-being and human dignity).655 The Ḥanafī jurist al-
650 Brown, Slavery and Islam, 93-98. There are some variations regarding these rights according to the
differences of opinion amongst the schools of law.
651 Smith, Aristotle’s Theory of Natural Slavery, 110-111.
652 Al-Dabūsī, Taqwīm al-adilla fī uṣūl al-fiqh, 417.
653 See, for example, al-Ghazālī, al-Musṭaṣfā min ʿilm al-uṣūl, 287.
654 Al-Shāṭibī, al-Muwāfāqāt, 14.
655 Abū al-Ḥasan ʿAlī ibn Muḥammad al-Māwardī, al-Ḥāwī al-kabīr fī fiqh madhhab al-imām al-Shāfiʿī
(sharh mukhtaṣar al-Muznī), Vol. 11, ed. ʿAlī Muḥammad Muʿawwaḍ and ʿAdil Aḥmad ʿAbd al-Mawjūd
(Dār al-Kutub al-ʿIlmiyya, 1994), 10; Cited in Emon (2004), Natural Law and Natural Rights, 338.
160
Āqhisārī similarly notes that the right to property is a human right.656 Ownership (milk) is
defined in Islamic law as the legal relation (ittiṣāl sharʿī) between a person and a thing,
which allows that person to freely use that thing and prevents others from using it.657 As
expressed in the fiqh-literature property as milk refers to so-called “real rights” or rights in
rem, as we know it from the Roman and modern civil law tradition.658
The fuquhāʾ also differentiated that which is not to be considered as property (māl) in the
sense of something that can be the object of legal transactions and to which, hence, no rights
could be attached. A similar division was made classical Roman law and contemporary civil
law in terms of res in commercio versus res extra commercium, i.e., the capability or
incapability of being subject to private juridical relations.659 Rather than a single category of
that which is “non-marketable” (i.e., that which is excluded from commercium) Islamic law
subdivides non-marketable property into a further classification, some of the most important
of which are things of which the sale is void (bāṭil), such as blood and animals that are not
slaughtered according to sharīʿa principles; things which are public property (milk al-
ʿāmma), such as air, water, public roads or charitable foundations (awqāf); and things that
have been lost, usurped or confiscated in some way and which cannot be expected to be
recovered, i.e., dead assets (māl al-ḍimār).660
The Qurʾānic revelation ultimately offers the moral-legal framework for property rights in
Islam. It is, as Wael B. Hallaq aptly mentioned, the groundwork of the moral law.661 The
ethics of property thus is ultimately grounded in Qurʾānic ethics. In the Qurʾānic
Weltanschauung God is “the Creator of the Heavens and the Earth” (Fāṭir al-Samāwāt wal-
Arḍ) who owns all that there is in the Heavens and Earth.662 He is the Sovereign Lord who
controls everything there is in creation, as stated in the following verse:
656 Al-Āqhisārī, Sharh Samt al-wuṣūl ilā ʿilm al-uṣūl, 332.
657 Okuyucu (2019), Fıkıh İlmine Giriş, 388.
658 Hasan Hacak, “Milk”, TDV İslâm Ansiklopedisi, Vol. (Istanbul: Türkiye Diyanet Vakfı, ), ; For the
concept of ‘rights in rem’, see Carl Wellman, Real Rights (New York: Oxford University Press, 1995).
659 Antonino Milazzo, “Res in Commercio and Res Extra Commercium: Reflections of Roman Jurists and
Categories of Modern Law”, İnönü Üniversitesi Hukuk Fakültesi Dergisi Özel Sayı 1 (2015): 257.
660 Joseph Schacht, In Introduction to Islamic Law (Oxford: Clarendon Press, 1982), 134.
661 Wael B. Hallaq, “Groundwork of the Moral Law: A New Look at the Qurʾān and the Genesis of the
Sharīʿa”, Islamic Law and Society 16 (2009): 239-279.
662 Qurʾān, 5:17, 6:12-14, 42:49. Also compare 57:5, in which the Qurʾān mentions that the “kingdom of the
heavens and the earth” belong to God (lahu mulk al-samāwāt wa-l-arḍ). The idea all property belonging to
God is also central in Christian canon law tradition, such as in the works of Thomas Aquinas, see Yiğit Sayın
et al., “Land Law and the Limits on the Right to Property: Historical, Comparative and International
Analysis”, European Property Law Journal 6, No. 1 (2017): 11.
161
God, holder of all control (Mālik al-Mulk), You give control (al-mulk) to whoever
You will and remove it (i.e., al-mulk) from whoever You will; You elevate whoever
You will and humble whoever You will. All that is good lies in your hand: You have
power over everything.663
While in the Islamic Weltanschauung property ultimately belongs to God, He is also
described in the Qurʾān as having decreed upon himself mercy (kataba ʿalā nafsihi raḥma)
and who has given of his bounties (faḍl) and provisions (rizq) from what He has created for
human beings to enjoy on earth.664 He is, according to the Qurʾān, the “Lord of infinite
bounty” (dhū al-faḍl al-aẓīm).665 In giving to mankind from what He has created, God calls
human beings “those who own” or “those who have control of things” (mālikūn).666 God,
in in other words, has given of His dominion to mankind, in the form of property and wealth,
albeit that men’s ownership is ultimately limited, indirect, and temporary.667 It is no wonder
then, that God speaks in the Qurʾān about mankind in terms of being “vicegerents” on earth
(khalīfa) and as “trustees” (mustakhlifīn).668 It is in this context, that we should understand
the remarks made by jurists of Islam, such as al-Dabūsī and al-Sarakhsī, that God has
bestowed upon humankind the rights to inviolability (ʿiṣmaʾ), freedom (ḥuriyya) and
property (mālikiyya).669
God also set the ethical boundaries for using the property and wealth that was given to
humankind. The Qurʾān warns, for example, not to consume the wealth of orphans (amwāl
al-yatīm), nor to entrust their wealth to those who are incapable (al-sufahāʾ).670 It warns
against stinginess on the one side and wastefulness on the other (in encourages moderation,
663 Qurʾān, 3:26. The term mulk here refers to all that exists in the universe and over which God has
dominion. God has given of His dominion to mankind, in the form of property and wealth, although men’s
ownership is ultimately limited, temporary and indirect, as stated in verse 40:16 in which God declares His
ultimate authority. See M. Sait Özvarlı, “Mülk”, in TDV İslâm Ansiklopedisi, Vol. 21 (Istanbul: Türkiye
Diyanet Vakfı, 2020), 538-539. Abū Ḥāmid al-Ghazālī, in his famous treatise on the Beautiful Names of
God, tells us that the “mulk” in Mālik al-Mulk refers to “kingdom” (al-mamlaka) while “al-mālik” here
refers to the “powerful one with complete and perfect power” (al-qādir al-tām al-qudra). He further
elaborates that “all things in existence” (al-mawjūdāt kulluhā) form “one kingdom” (mamlaka waḥida) and
God is the one who is king over it (mālik) and has power over it (qādir). See Abū Ḥāmid Muḥammad ibn
Muḥammad al-Ghazālī, al-Maqṣad al-asnā fī sharh al-maʿanī asmā Allāh al-ḥusnā, ed. Bassām ʿAbd al-
Wahhab al-Jābī (Beirut: Dār Ibn Ḥazm, 2003), 140-141.
664 Qurʾān, 6:12, ,17:30, 10:107, 36:33.
665 Qurʾān, 3:74, 62:4.
666 Qurʾān, 36:71.
667 See Özvarlı (2020), Mülk, 539. Cf. Qurʾān 40:16.
668 Qurʾān, 2:30,
669 Al-Dabūsī, Taqwīm al-adilla fī uṣūl al-fiqh, 417; Al-Sarakhsī, Uṣul al-Sarakhsī, 334.
670 Qurʾān 4:10, 17:34, 5:4.
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in other words).671 It also encourages human beings take good care of close relatives (alqurbā),
the poor (al-masākīn), emigrants (al-muhājirūn), and travelers in need (ibn alsabīl).
672 The Qurʾān exhorts the believers to be mindful of God while doing their trade and
acquiring wealth and to prioritize piety over wealth.673 It forbids any engagement in bribery
or interest (al-ribā) and obligate the alms-tax (al-zakā), and encourages to give in charity
(al-ṣadaqa).674 It prescribes men to take care of their parents and immediate family after
death by way of inheritance.675 It also lays down elaborate rules for contracts, loans, and
much as concerning wealth and property law.676 It is this moral-legal framework that would
be the paradigm from which the fuqahāʾ would develop their legal reasoning. And the
sharīʿa cannot be understood without its moral bearings.677
Women’s property rights were also recognized in Islamic law. The rights of ownership and
property are not only accorded to Muslim men in Islamic law. Women are equal to men with
regards to the law of property and obligations.678 The property rights of women were
acknowledged in the religious sources of the Qurʾān and Sunna. Also, there were various
ways in which women could become owners of property, such as through inheritance, dower,
and gifts. In contrast to prevalent practices in late antiquity, there were no legal restrictions
on a Muslim woman’s right to own or manage property. Muslim women had the right to
hold property in their own names and were not expected to contribute to the support of the
household, as men were. In Islamic law woman had important economic rights and could
come to court to enforce economic and marital rights. Men did have some legal norms that
were seemingly more advantageous to them. However, these were often tempered by
economic and social realities.679 In fact, women enjoyed economic rights and powers that
allowed them to participate and the social and economic world and through which they
gained a certain amount of independence and mobility.680
6.2.4. The Interconnectedness of Fundamental Rights
671 Qurʾān, 9:75-76, 17:29, 17:27, 7:31, 25:67.
672 Qurʾān, 24:22, 70:24-25, 51:19.
673 Qurʾān, 62:10, 9:24.
674 Qurʾān, 2:188, 2:278-279, 2:277, 2:280, 57:7.
675 Qurʾān, 2:180.
676 See, for example, Qurʾān, 2:282.
677 Hallaq (2009), Sharīʿa, 85 and 226.
678 Joseph Schacht, In Introduction to Islamic Law (Oxford: Clarendon Press, 1982), 126-127.
679 Lapidus, 184 and 189
680 Lapidus, 271.
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The jurists of Islam also mentioned that fundamental rights are hierarchically interrelated.
One cannot do without the other. Hence, they are fundamental (ḍarūrī). Al-Shāṭibī, for
example, mentions in his treatise on legal philosophy al-Muwāfāqāt that when deprived of
property (in the sense of wealth), human life cannot be sustained (law ʿudima al-māl lam
yabqa ʿaysh).681 This, obviously also works vice versa, since without the sustenance and
protection of human life nothing else can come to pass. Al-Shāṭibī’s statement, however,
shows the centrality of property rights in the framework of ḥuqūq hermeneutics. On a similar
note, the Qurʾān also often mentions the protection of property rights in the same context as
the protection of life, such as in sūra 4:29:
You who believe, do not wrongfully consume each other’s wealth (lā taʾkulū
amwālukum) but trade by mutual consent. Do not kill each other (lā taqtulū
anfusakum), for God is merciful to you.
In verse 17:31, in reference to the pre-Islamic custom of killing female children out of fear
of poverty, the Qurʾān states: “Do not kill your children for fear of poverty (imlāq) – we
shall provide for them (narzuquhum) and you – killing them is a great sin (khiṭʾan kabīran)”.
When describing the desired characteristics of the “servants of the Lord of Mercy” (ʿibād
al-Raḥmān), such as being pious, peaceful and humble (hawnan), the Qurʾān also mentions
“They are those who are neither wasteful (lam yusrifū) nor niggardly (lam yaqturū) when
they spend, but keep to a just balance (qawāman)”, nor do they “take a life (lā yaqtulū),
which God has made sacred (allatī ḥarram Allāh)” (25:67-68). Similar examples can be
found in the various collections of prophetic narrations (ḥadīth, pl. aḥādīth), such as the
narration on the Farewell Pilgrimage (ḥajjat al-wadāʿ) in which the Prophet said “Verily,
your lives, property and honor are sacred to one another” (faʾinna dimāʾakum wa
amwālukum wa aʿrāḍukum baynakum ḥarām). These examples, again, stress the
interconnectedness of fundamental rights in the context of basic human dignity.682
681 Abū Isḥāq al-Shāṭibī, al-Muwāfāqāt fī uṣūl al-sharīʿa, ed. ʿAbd Allāh Darrāz and ʿAbd al-Salām ʿAbd al-
Shāfī Muḥammad (2014), 14.
682 Narrated in various collections, such as al-Jāmiʿ al-ṣaḥīḥ of Muḥammad ibn Ismāʿīl al-Bukhārī (d. 870),
see Abū al-Faḍl Shihāb al-Dīn Aḥmad ibn ʿAlī ibn Muḥammad al-ʿAsqalānī, Fatḥ al-bārī bi-sharḥ ṣaḥiḥ al-
Bukhārī, Vol. 1, ed. Shuʿayb al-Arnāʾūṭ and ʿĀdil Murshid (Beirut: al-Risāla al-ʿĀlimiyya, 2013), 334. The
commentator al-ʿAsqalānī further explains that what is meant here is the “shedding of blood” (safk
dimāʾakum), the “taking of property” (akhdh amwālukum), and “the slandering of honor” (thalb aʿrāḍukum),
337.
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6.3. Conclusion
In this chapter we have explores two rights theories in the Islamic legal tradition. These
rights theories are grounded in both reason and revelation, based on the so-called ‘Great
Synthesis’ in the tenth century. This gave rise to a new Sunnī consensus, which entailed that
– despite minor variations – the schools agreed to harmonize the use of both scripture and
reason. The rights theory of Maṣlaḥa, exemplified by al-Ghazālī, taken public interest as its
basic ground. It is concerned with protecting the basic objectives of the law (maqāṣid alsharī
ʿa). It is also concerned with avoiding harm and promoting benefit for all humans and
for the whole of society. The basic right proposed by this theory are the protection of life
(al-nafs), religion (al-dīn), intellect (al-ʿaql), lineage (al-nasl), and property (al-māl). These
are the so-called ‘five fundamental rights’ (al-ḍarūriyyāt al-khamsa). The scholars of this
paradigm also developed “secondary” and “tertiary” rights. These are the necessities
(hājiyyāt) and improvements (taḥsīniyyāt).
The rights theory grounded in human dignity sand worth (karāma) seems to have been
especially prevalent amongst scholars of the Ḥanafī. From early on, in the tenth century, this
theory developed an elaborate right language surrounding the legal concepts of legal
personality (dhimma) and inviolability (ʿiṣmaʾ). It assumes that God bestowed human beings
with certain capacities and rights, so that they would be able to fulfill their “trust” with God
(amāna). In order to achieve that, human beings have been created by God with freedom,
human intellect, and legal personality. These are “honoring gifts” from God (dhimma). The
fundamental right proposed by this paradigm are the rights of inviolability (ʿiṣma), liberty
(ḥurriyya) and property (mālikiyya). These rights are “inborn” and established by birth. I.e.,
they are natural rights, and not acquired rights. In addition, these rights are based in common
humanity (ādamiyya). They thus include Muslims and non-Muslims. This theory seems to
have persisted throughout early modernity. Inspired by medieval Ḥanafī jurist, certain
modern age scholars from that school have affirmed the fundamental right inhering in the
person, be they Muslim or non-Muslim. The rights are thus possessed by human beings due
to their mere humanity. Some have claimed that modern Islamic reforms – such as the 1839
Edict of Gülhane – were (at least in part) inspired the this “universalizing” rights theory, as
it espoused similar rights to life, property, freedom, honor, education, employment, and due
process for all Muslim and non-Muslim subjects.
165
The right to life is central in both the maṣlaḥa and karāma-based rights theories. The killing
of human beings (qatl al-nafs) is seen in Islamic law as an “enormity” or “major sin”
(kabāʾir). Hence, human beings have inviolability of life (ʿiṣmat al-nafs). Life on earth is
seen as the ultimate “testing ground” in which humans might be able to fulfill their full
potential. The killing of human life goes against that divine purpose. Several Qurʿānic verses
explicitly forbid the taking of other’s lives (Q. 4:93). In addition, to killing Muslims or non-
Muslims under the protection to an Islamic state, aiding in killing, striking someone, or
frightening them are similarly disallowed.
The right to freedom is multilayered. One dimension is the issues of natural freedom. Islamic
knows no conception of “natural slavery”, as Aristotle for example espoused. The natural
human state in Islam is being born free (ḥurr). In addition, the right to liberty or freedom
(ḥurriyya) is one of the basic rights adopted and promoted in both Islamic rights theories.
Freedom is necessary, among other things, to be able to fulfill the covenant with God
(amāna). These freedoms were given to human beings as “honors” (karamāt), as a sign of
their inherent human dignity and worth. Slavery was prevalent in the antique world of Islam.
However, Islam introduced several revolutionary emancipatory mechanisms. Among these
are using alms for freeing slaves, freeing slaves as expiation for committed sims, and the
encouragement of the contract of manumission (mukātaba) to buy freedom. Slaves in Islam
are not property but can own property. Despite the deficient state of absence of freedom,
slaves were not denied basic human rights, for example to practice religion, to marry, and to
have their life and physical bodies protected.
The rights to property (māl) and ownership take up a central space in the Islamic ḥuqūq
scheme. They are often mentioned together with other rights, such as the right to live.
Scholars of both Islamic rights theories emphasize the right to property and that human
beings should enjoy full inviolability (ʿiṣmaʾ) of property. Islamic jurists from different
schools consider the right to property a human right (i.e., a private right). The right to
property is deeply imbued in the moral-legal framework of the Qurʾān. God is the Mālik al-
Mulk but also the “Lord of infinite bounty” (dhū al-faḍl al-aẓīm). Hence, God bestowed
human beings of his dominion of the world in the form of property and wealth. He calls them
mālikūn. Human beings are also considered vicegerents (khalīfa) and trustees (mustakhlifīn)
on earth. Therefore, human beings have the responsibility of consider the rights of the weak,
such as orphans, the mentally incapable, close relatives, the poor, emigrants, and travelers
166
in need. Furthermore, Islamic law is full of stipulations and guidelines regarding wealth and
property, for example regarding honoring contracts, abstaining from interest, paying the
alms-tax, and giving in charity. Special mention is made of women having property rights.
This chapter concluded with the issues of the interconnectedness of fundamental rights. One
often cannot go without the other. Scholars mention, for example, that is the right to property
in not respected, human life can also not be sustained. And the opposite is also true. In
addition, these fundamental rights are often mentioned in conjunction in the Islamic religious
sources. In other words, the fundamental rights seem to work in harmony towards the
establishment of human dignity and societal flourishing.
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CONCLUSION
This thesis addressed the conundrum of the contested philosophical grounds of modern
human rights. While we live in an era in which human rights are at the center of our
global moral discussions, human rights have been challenged in at least two regards.
Firstly, it has been challenged for its claim to universality, while depending in large
part on Eurocentric ethics and anthropologies. In the face of the world’s cultural and
religious diversity, calls have increasingly been made to rethink modern human rights
from a decolonial and cross-cultural perspective. This becomes imperative if human
rights are to remain a viable ethical discourse to address global justice, equality, and
human dignity. It becomes even more poignant with the recognition that the discourse
of human rights has been used (and abused) in the past to justify violent
“humanitarian” interventions and oppression towards the non-West, as Moyn and
others have elaborately documented in their respective works.
Secondly, modern human rights have been challenged for being philosophically
“ungrounded”. From the eighteenth century onwards, human rights – at least in the
West – were secularized and divorced from their historical theological underpinnings,
without being supplanted by any viable philosophical alternative. The engineers of the
modern human rights discourse in the twentieth century – such as the drafters of the
UDHR – evaded any debate on philosophical grounds in order to not endanger
consensus, driven in part – perhaps – by universalist ideals of cosmopolitan peace in
the wake of the atrocities of World War II. This has left modern human rights
philosophically “ungrounded” and hence subject to denial and rebuttal. MacIntyre and
others have for this very reason denied the existence of human rights, as Bentham had
done almost two centuries before. Modern human rights are thus in need of a “theory
of justification”. Without philosophical grounds, modern human rights may not
withstand the analogy of some of its critics: as something which is akin to belief in
witches or unicorns, or – indeed – nonsense upon stilts.
The current “crisis of human rights” has instigated fresh scholarship on the
philosophical grounds of human rights, drawing mainly on insights from historical and
contemporary Christian and Jewish ethics, as we have seen in the works of
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Woltersdorff and others. However, the Islamic legal and ethical tradition has been
markedly absent from this debate. Instead, Orientalists and human rights lawyers have
tended to focus on the “(in)compatibility question” of Islam and human rights. Instead
of approaching the Islamic legal tradition as a philosophically rich tradition, that might
have something interesting and worthwhile to offer in the debate on the philosophical
grounds of human rights, the debate is dominated by a “narrative of conflict”. The field
is cumbered by stubborn and reductionist stereotypes, instigated by early Orientalists,
such as Siegman and Schacht, and uncritically perpetuated in modern scholarship, such
as in the recent work of comparative legal scholar Doe. Such as that Islamic law has
no conception of individual human rights but is merely a “system of duties”. Or that
Islamic legal culture – to speak with Mayer and others – is necessarily at odds with the
conception of human rights. That it represents a legal tradition that is stale, monolithic,
intellectually bankrupt, and wholly incapable of addressing modern concerns about
human dignity and global justice.
Moving beyond such reductionist legal Orientalism, this thesis engages newly
emerging scholarship on the contested philosophical grounds of human rights, which
explores premodern rights theories in the context of religious ethics, law and moral
philosophy. Two main concerns guide these endeavors: (1) the growing realization
that the modern international human rights regime did not emerge ex nihilo in the wake
of World War II but is in part the product of (contested) historical genealogies in
premodern rights traditions, and (2) the exploration of premodern religious and legal
traditions in search of fresh perspectives on human rights justifications in the face of
the crisis of ungrounded modern human rights. This thesis pursued the debate on the
grounds of human rights (also known as fundamental or basic rights) along the axis of
three lines of questioning: (I) what are fundamental rights conceptually? (II) how are
fundamental rights theoretically justified? (III) who is practically included in the scope
of fundamental rights?
Beyond Mauritian’s Thin Consensus: Reopening the Dialogue on
Grounds
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To set the stage for this comparative study, we were obliged to analyze two sets of
discourses. The current debate on the philosophical grounds of human rights and the
debate on Islam and human rights. These two discourses are notably – and surprisingly
perhaps – disconnected in the current state-of-the-art of Islam and human rights
scholarship. In the “crisis of human rights” genre we find that the modern human rights
discourse is replete with political paradoxes, not the least of which are violent
humanitarian “interventions” in the name of human rights. But the deeper question is
philosophical in nature. If we are to have any human rights at all, how then can we
theoretically justify them? The drafters of the UDHR and intellectuals surrounding
them, such as Maritain, had tended to avoid this question. It would endanger a muchneeded
consensus towards cosmopolitan peace in the aftermath of Nazi violence.
Maritain was very much aware of the impossibility of reaching agreement on
philosophical grounds. Instead, he promoted a thin consensus that consisted of
enumerating lists of human rights people of different worldviews could hold dear,
avoiding the discussion on philosophical grounds altogether.683 We can conclude from
our historical analysis in chapter two that Maritain’s thin consensus was unable to hold
on the long run. Ultimately, human rights as positive legal rights imply an underlying
moral blueprint that is imbedded in certain ethical concerns and convictions about the
world and what good and evil is. If not, they are nothing more than a “consensus of
moral platitudes”, as one scholar aptly put it. Avoiding a discussion on the moral
standards underpinning human rights, is avoiding the very matter that guides human
action. It is thus no wonder philosophers and theologians who eventually see the
exigency of paying attention to the philosophical grounds of human rights.
We can distinguish four main currents in grounding human rights scholarship. The
first current argues human rights have no grounds and cannot be theoretically justified.
Human rights are, according to this current, metaphysical abstractions with no clear
epistemological or ontological basis. Hence, they should be abandoned altogether in
favor of other ethical or moral conceptions (MacIntyre, Rorty). The second current is
683 It is an interesting fact, that for all his intellectual diplomacy, Maritain had in fact very firm
convictions about what grounds would be best fitted to undergird this new twentieth-century
generation of human rights. For him, these convictions lay in the Christian natural law tradition,
especially as espoused by Aquinas. Throughout his life, Maritain would come back to this question in
various of his written works. A thoroughgoing scrutiny of these writings and how they may have
impacted the modern human rights discourse fall beyond the proper scope of this thesis and will have
to be conducted in future research.
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the argument that only religious or theological foundations are warranted to justify
human rights. Using the vehicle of reformed epistemology, this current examens – and
ultimately rejects – secular conceptions of human capacity and rational agency as
viable grounds. Human dignity, this current argues, is rather grounded in the idea of
unconditional divine love for all human beings, who are created in the imago Dei
(Woltersdorff). The third current is the position that secular justifications may be found
to ground human rights (Kohen). This current very closely follows the Rawlsian idea
of a cross-cultural overlapping consensus as a justificatory ground for human dignity.
Taking the UDHR drafting process as an example, this overlapping consensus is
achieved through a Habermasian democratic deliberative process. If this process is
inclusive and persuasive enough, it can achieve “justificatory status”. The fourth and
final current is a mid-way position that holds that both secular and religious groundings
are possible and can be held concurrently (Harries, Nørager). While the previous two
currents argue rather forcefully for either secular or religious groundings, the fourth
current stresses the complementarity of secular and religious foundations. Albeit under
the condition of metaphysical openness towards the ideas of transcendence and
ultimate meaning.
Given the sustained critique of the first current, it seems hard to hold any conception
of human rights if one believes they cannot be philosophically justified in some way.
Scholars like Tasioulas have rightly called out MacIntyre for his all-too-easy dismissal
of human rights, without engaging in any serious philosophical discussion about their
grounds. In fact, even relativists such as Rorty and Donnelly hold – albeit in distinct
ways – that human rights need some kind of justification. Kohen’s case for secular
grounds in “cross-cultural overlapping consensus” seems difficult to sustain, given the
similarities it bears with Maritain’s idea of a “thin consensus”. Kohen’s argument is
thus subject to the same objections. A mid-way position of justifying human rights in
both theological and rational grounds appears to be the most promising approach. The
Islamic ḥuqūq hermeneutic arguably provides such an approach, as it is grounded in
both rationality and scripture. This approach hence seems congruent with what Hallaq
has called the “happy synthesis between human reason and the divine word”. This
alludes to the tenth century Great Synthesis between traditionalist and rationalist
approaches in Islamic civilization, which also runs through the discourse of ḥuqūq in
Islamic law and legal philosophy.
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Islamic Human Rights Studies: An Emerging Field?
The current scholarly debate on Islam and human rights tends to focus on a “narrative
of conflict”. It excessively stresses the question of (in)compatibility, at the expense of
other – philosophically more interesting – questions, such as what the Islamic legal
and intellectual tradition could potentially offer in terms of the justificatory grounding
of modern human rights. A lot of research on this topic focusses on contemporary
human rights practices (or malpractices) in Muslim majority countries. As such, this
type of research looks at Islam as a lived and embodied religion – to speak in
anthropological terms – and not at the normative classical Islamic legal tradition. Other
studies look at Muslim responses to the modern human rights regime, for example
through the promulgation of Islamic rights declarations (such as the Cairo
Declaration). These too tend to not focus on the classical legal tradition as a body of
interpretative scholarship. These topics seem to be more properly addressed through
the discipline of anthropology and other social sciences, and not necessarily through
comparative legal history and philosophy. Scholars that do attempt to engage “Islamic
law”, such as Mayer, tends to focus on modernist Muslim thinkers such as al-Mawdūdī
(who was not a classically trained Islamic jurist in the traditional sense) or directly
engage Islamic sacred scripture (Qurʾān and ḥadīth), almost always through English
translations. This engagement necessarily remains superficial, since it does not address
the rich hermeneutical tradition of Islamic jurisprudence (fiqh) and legal philosophy
(uṣūl al-fiqh). Not in English, nor in its original classical Arabic. This thesis thus
contributes to an important lacuna in current Islam and human rights research.
Through the analysis of the current scholarly discourse on Islam and human rights, we
were able to develop a taxonomy of approaches to the question in Western
academia.684 The debate on Islam and human rights can be categorized into three main
standpoints: the Conflictual Perspective, the Apologetic Perspective and the
Discursive Perspective. (I) The Conflictual Perspective argues that Islam is inherently
684 For reasons of scope and delineation, this study has limited itself in chapter two to scholarly output
in English. The main point here is to address certain lacunae in current scholarship on Islam and
human rights in Western academia. We are aware of excellent research in Arabic and Turkish on the
topic. It is hoped these will be addressed in future studies.
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opposite to modern human rights. It includes versions of the argument that Islamic
values inherently contradicts Western values, assuming the latter undergirds the
modern human rights discourse (Mayer). It also includes versions of the argument that
the idea of individual human rights is wholly absent from the Islamic legal tradition.
Instead, it is perceived as merely a system of duties (Siegman, Schacht, Doe). This
approach is presentist and legal Orientalist in nature, as it judges the premodern
Islamic legal tradition through the vantage point of modern liberal-secular ethics and
uses international human rights formulations as a “measuring rod”. It also fails to grasp
Islamic law in its historical complexity and reduces it to a monolithic and static legal
tradition. (II) The Apologetic Perspective, on the other hand, is defensive in nature and
argues that human rights have always existed in Islam, even before they emerged in
Western modernity (al-Mawdūdī). It lambasts the supposed Eurocentrism and
imperialism of the modern human rights project and exhibits a rather crude from of
simplistic triumphalism. This approach can be highly selective in nature, stressing only
those points that can easily provide support for this perspective, while avoiding those
aspects of Islamic law that would require a more thoroughgoing discussion (such as
polygamy, corporal punishment, or inheritance law). In addition, this approach at times
caricaturizes and denigrates Western notions of human rights in order to assert Islamic
superiority. Interestingly, this approach often also merely refers directly to Islamic
sacred scripture (Qurʾān and ḥadīth), without engaging the hermeneutical tradition of
classical Islamic jurisprudence and legal philosophy.
Arguably, both approaches are unhelpful to productively enhance the scholarly
conversation between Islamic law and modern interpretations of human rights. Both
approaches seem to lack a thorough engagement with classical Islamic legal tradition
on its own terms, taking into consideration both its historical context and its internal
diversity and complexity. As an alternative, we propose (III) a Discursive Perspective
that seeks to go beyond the reductionism and presentism of the Conflictual Perspective
and the defensive triumphalism of the Apologetic Perspective. It argues that it might
be more productive to treat the Islamic legal tradition as a lived discursive tradition,
which takes into consideration both its historical context and its internal diversity,
continuity, dynamism and potential for change. As such, it is guided by the principle
of intellectual openness. Such an approach could arguably help us move away from a
rather disconnected engagement with Islam and human rights as somewhat separate
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entities to what might be called Islamic human rights research. By necessity, such an
approach would also have to adhere to the principles of interdisciplinarity, which
considers the prerequisites of acquiring the fundamental hermeneutical tools to
seriously engage the classical Islamic legal tradition (including classical Arabic) and
international human rights law.
From Whence Human Rights? Disentangling a Contested Concept
Human rights as a legal concept, we have seen, is far from straightforward. As
recognized in both legal historical scholarship and modern analytical jurisprudence,
the concept of rights is ambiguous, malleable and multilayered. Part of the confusion
has to do with the uncritical conflation of terms such as human rights, natural rights
and natural law. These might be connected in various ways but are not exactly the
same. In its very basic meaning, rights are entitlements or claims upon that entail duties
upon others. Utilizing the Hohfeldian scheme to our advantage, we can realize that
rights are not unitary but bundle of jural relations. It would be an oversimplification to
reduce jural relations to the ubiquitous right-duties bifurcation. Sometimes people
speak of rights while they in fact mean liberties (or privileges) that do not entail any
duties. They can also mean legal powers or immunities. In Hohfeldian terms, rights
are only “proper” rights if they have corresponding duties. Much has also been said
over human rights as moral or legal rights, which ties into debates of legal positivism
and its critics. Denying the existence of natural moral rights has been scrutinized over
past the years. A better way of thinking about the moral-legal dichotomy is to see legal
rights as having a non-legal foundation in morality. Legal rights are hence an
expression of moral rights. Ultimately, natural moral rights – such as human rights –
are necessary to protect citizen rights and limit the authority of governments.
A case has been made that legal concepts should be understood in their natural habitat.
Hence, we have looked at premodern rights discourses in the Western legal tradition,
some of which have been claimed to be directly linked to – or even the same as –
modern human rights. This is problematic in various ways, not the least of which are
historical and conceptual inaccuracy and the pitfall of Eurocentrism. In studying and
comparing various “human rights histories”, we conclude that most of them are
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Eurocentric in nature and sometimes have historical-methodological deficiencies.
Some scholars (Porter, Tierney) do not bother to give a historical account of human
rights. They simply use the terms human rights and natural rights – and explicitly so –
interchangeably. Tierney claims furthermore human rights are a singularly Western
invention that ought to be assimilated into non-Western cultures; a claim that we might
very well designate as a form of legal imperialism. Another problematic is the idea of
historical continuity of rights discourses between the Greco-Roman and medieval
European legal traditions. Maintaining such a stance seems to be a clear example of
“inventing Europe”. We can only speak of a unified Western legal tradition after the
Papal Revolution in the twelfth century. Roman law had completely dwindled after the
fall of the Western Roman Empire in the fifth century. Until the twelfth century Europe
was dominated by Germanic tribal legal traditions (Volksrecht). It had no legal system
in place, no legal professional class, no corpus juris, no legal textbooks and no
“science of the law”. It was not until Europe’s “rediscovery” of the Greco-Roman legal
heritage – instigated for a large part by Arabic-Latin translations of Muslim works –
that Europe developed its own tradition of canon and civil law (ius commune).685
Despite claims otherwise, we argue that human rights, natural rights and natural law
are not as similar as presumed by some. As we have seen in our analysis, Roman jurist
referred to rights (ius) as something that is good or fair (ius naturale) or what is best
for all or most in society (ius civile). The Roman usage thus does not resemble the idea
of claim-rights or entitlements that entail duties upon others, as in our contemporary
understanding. Nor does the usage of ius in Christian scripture refer to rights that are
“possessed” by individual human beings (such as the use of ius as “statutes” of God in
Psalm 119). What we do see are proto-rights discourses surrounding the debates of
Church property and property in general, in which the laity are allotted certain
subjective rights. But the discussion between ius and dominium is far from settled. In
addition, Aquinas – often mentioned as a predecessor to human rights thinking (Finnis,
Alford) – makes no mention of ius in the sense of subjective claim-rights and appears
instead to be committed to an objective theory of natural law (lex naturalis).
685 This thesis did not focus on possible influences of Islamic civilization on the development of
medieval European legal thinking. Although some progress has been made in this regard by scholars
such as Makdisi and others, we are convinced there is a lot more to be explored here. This too might
be subject to further scrutiny in future research.
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A far more distinct shift in rights language we see in the early modern period, with
natural rights theorists such as Grotius (d. 1645), Hobbes (d. 1679), Pufendorf (d.
1694), and especially Locke (1704). Of these four, Locke is mostly seen as the scholar
that for the first time developed a “mature” theory of natural rights. In most accounts,
Grotius is presented as the first to have applied modern rational-secular modes of
thinking about rights. This seems to be an exaggeration, as his rights language is
imbued with religious undertones. But his though experiment in which he claimed that
even “without God” the natural law would still exist and be discovered, has inspired
subsequent generations of natural rights theorists to look for secular grounds. A big
difference with the modern drafters of the UDHR, is that early modern rights theorists
did not seek to supplant the religious underpinnings of natural rights. Both existed
parallel to each other. They were used, rather, the universalize natural rights and make
them more acceptable to humankind. Pufendorf has played a major role in this
development, who was a great synthesizer and popularizer of Grotius and Hobbes.
Hobbes seems to be a better candidate as a starting point for the secularizing and
rationalizing trend in natural rights theory-making. He is also the first one to have
made a strict distinction between law as “lex” and right as “jus” (or ius), a distinction
that was adopted by Pufendorf and Locke.
Of all four natural law theorists, Locke seems to have a much more elaborate rights
discourse. He also clearly stresses individuality and subjective rights that human
beings possess. His main claim is that all human beings are free in the state of nature
and are created as rational beings so they can fulfill their obligations. This stress on
autonomy and freedom would inspire later Enlightenment thinkers. But this freedom
is not unrestricted: you cannot harm yourself or others (in life, health, liberty,
possessions). Also, there seems to be a tension in his individualism and his attention
for the “collective good of society”. Rational beings, Locke argued, would agree to
live under a government that honors the law of nature and promotes public good. We
can thus conclude that a distinct fundamental rights discourse developed with Locke
in late seventeenth and early eighteenth century. To what extent Locke’s theory of
rights resembled the inclusiveness and scope of modern human rights is another matter
altogether. To this question, we return to towards the end of this conclusion.
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Islamic Rights Discourses: Giving the Islamic Legal Tradition Its Due
Before analyzing the ḥuqūq discourse in the Islamic legal tradition we have addressed
the challenges of doing a conceptual history of Islamic rights schemes in the context
of comparative legal studies. We have concluded that scholarship in Western
languages – be it English, German, French, or otherwise – linguistically delimits the
Islamic Sharīʿa discourse in serious ways. In this context, we have alluded to the
problem of (un)translatability of a legal tradition that is by-and-large expressed in
medieval texts written in classical Arabic. Western scholarship on Islam has often been
tainted by legal Orientalism in which the Islamic legal tradition has been reduced to
stereotypes and Islam and Muslims have been Otherized as the “legal Other”. And
more significant perhaps, the Orientalist study of the Islamic legal tradition
straightjacketed the Sharīʿa into a constructed mold of “Islamic law” that divorced it
from its moral underpinnings. As a case study, we have analyzed the reductionism of
legal Orientalism in English scholarship on “Islamic law” in the Hart-Dworkin
framework used by Reinhart to evaluate the “law” in Islamic law.
Instead of applying legal positivism to Islamic law, we have shown how classical
Muslim jurists (fuqahāʾ) themselves defined Islamic legal terminology in various
genres of Islamic juridical literature. We have concluded that the classical Muslim
jurists were acutely aware of the intricacies and technicalities of language and even
utilized a kind of conceptual history (as we have shown through the example of the
term fiqh in the work of al-Āqhiṣārī). Classical Muslim jurists spoke of the Sharīʿa as
a body of categorizations regarding human action (al-aḥkām fī-l-afʿāl or al-aḥkām al-
ʿamaliyya), or in other words “Sharīʿa categorizations” (al-aḥkām al-sharʿiyya).
Islamic substantive law (fiqh) is variously defined as “knowing the rulings (aḥkām) of
the Sharīʿa that are the way to legal reasoning (al-ijtihād)” or “to understand the subtle
meanings (al-maʿnā al-khafī) that relate to legal rulings (al-ḥukm)”. A more elaborate
definition of fiqh is: “the science of the legal rulings of the Sharīʿa with regards to
human actions (al-aḥkām al-sharʿiyya al-ʿamaliyya) as they are derived from their
detailed proofs (adillatihā al-tafṣīliyya)”. The philosophy of the law (uṣūl al-fiqh) is
defined as “the science of the principles (qawāʾid) through which one can reach the
rulings of the law (i.e., al-aḥkām al-sharʿiyya) with a method of careful examination
(ʿalā wajhi al-taḥqīq)”. These discourses are firmly embedded in a the Qurʾānic moral177
legal framework. Hence, in the Islamic worldview, the legal dimension is not divorced
from the moral dimension.
Surveying the classical Islamic juridical literature, we have also seen that the Islamic
legal tradition has an elaborate indigenous rights discourse that is deserving of much
more scholarly attention, especially in the context of Islamic human rights research.
Very different from the Western legal tradition, Islamic law from its inception allotted
legal personality (dhimma) and legal capacity (ahliyya) to all human beings, including
women, children, religious minorities, and slaves. The jurists of Islam defined legal
personality as a quality that enables the capacity in human beings for having rights and
duties (ahlan lil-ījāb lahu wa ʿalayhi). Based on the primordial covenant (mīthāq) with
humanity, God allotted certain fundamental human rights to all humans, in order to
facilitate fulfilling the covenant and the rights and duties it entails. Human beings are
responsible under the law (mukallif), except for certain conditions (such as not having
reach the age of majority or being mentally impaired. Hence, human beings a subject
to the law and its stipulations but they are also them bearers of rights and duties
(ḥuqūq) and as such have the legal capacity (ahliyya) to be subject to legal relations.
For this reason, very early on in Islamic legal history, we see Muslim legal
philosophers such as al-Dabūsī (d. 1039) and others stating that God “dignified human
beings” with reason (ʿaql) and legal personality (dhimma), so that he would become
capable of fulfilling the rights and obligations incumbent upon him.
In our analysis, we have further shown – based on the classical Islamic juridical
literature – that the Islamic ḥuqūq discourse was further elaborated into the rights
hermeneutic of the so-called “rights of God” (ḥuqūq Allāh) and “rights of human
beings” (ḥuqūq al-ʿibād), which could be compared in some ways to the distinction of
public and private rights in the Western legal tradition. While the term ḥaqq and its
plural ḥuqūq has refers to various things, in the legal sense it has always refers to the
idea of rights. The “rights of man” or “human rights” – also called ḥuqūq al-ādamiyyīn
or ḥuqūq al-nās in the usage of classical Muslim jurists– in the legal sense, refer to
claim-rights and entitlements that entail duties upon other people (“proper” rights in
the Hohfeldian sense) that are bestowed on individual human beings. These rights can
be seen as natural rights that are inalienable and inborn in every human being. In some
schools of Islamic law – most notably the Ḥanafī school of law – the fundamental
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rights to life, liberty and property are among these rights. These rights fall under
human inviolability (ʿiṣma) and inhere in all individual human beings. The “rights of
God” or “divine rights” (ḥuqūq Allāh), are claims the Creator can make upon his
creation. God in the Islamic worldview, however, is not in need of any rights. He is
after all omnipotent and self-sufficient. The rights of God, rather, refer to certain public
interests that cannot be claimed by an individual and hence must be ministered by the
state. These are catered towards the preservation and benefit of human society, such
as public order and safety, infrastructure, markets and the administering of taxes.
Based on our analysis of the classical work on Islamic legal philosophy by al-Āqhisārī
(d. 1615) we have furthermore seen detailed elaborations of the Islamic ḥuqūq scheme
into various categories and subcategories, such as the special rights of human beings
(ḥuqūq al-ʿibād khāliṣa). These types of right do not relate to public benefit but to
specific interests (maṣlaḥa khāṣa) of human beings and hence involve the infringement
upon private rights, such as the inviolability of the property of other people (ḥurmat
māl al-ghayr). The special rights of God (ḥuqūq Allāh khāliṣa), on the other hand, do
not concern private rights but are related to public benefit (al-nafʿ al-ʿām), as stated
above. Examples have also been given of so-called “mixed rights”, which involve both
human rights and divine rights, such as in the case of slanderous accusations of sexual
conduct (ḥadd al-qadhf). These types of rights are “mixed rights” because they involve
the deflection of a public harm but also a private interest, which is the right to the
protection of the honor of the victim.
These findings counter the claim by Orientalists, such as Siegman and Schacht, or
modern comparative legal scholars, such as Doe, that Islam has no conception of
human rights and is merely a “duty-based system”. It also puts modern scholarship on
Islam and human rights from the perspective of international human rights law in a
wholly different perspective. Prominent scholars, such as Mayer, have made major
generalizing claims about the relation between human rights and the Islamic legal
tradition in their writings over the past decades. They have done so without any serious
engagement with the classical Islamic legal tradition, relying instead on English
translations of modernist thinkers, such as al-Mawdūdī.
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Based on our analysis of the classical Islamic legal tradition, we can conclude that
from its inception the Islamic legal tradition allotted basic human rights to all human
beings, facilitated through their legal personality (dhimma) and legal capacity
(ahliyya). These concepts were further theorized in classical juridical texts in Islamic
jurisprudence and legal philosophy from the tenth century onwards. The Islamic legal
tradition and its ḥuqūq discourse thus recognized an all-embracing dhimma that
incorporates the whole of humanity and affirms notions of inalienable and enforceable
human rights that are endowed in all human beings. This ḥuqūq discourse was
embedded in a legal tradition that emerged in the seventh century, formalized in the
tenth century, and remained more or less homogenous throughout pre-modernity.
Despite obvious cultural variety in the various geographies to which Islamic
civilization spread, it exemplified what Hallaq called a “structural and systemic unity”,
which was maintained by a developed corpus juris, a class of legal scholars, and
developed curricula of legal education throughout the Muslim world. It was only with
the advent of modernity, with the rise of the hegemonic West and global colonization,
Muslim legal systems and legal education was slowly but steadily dismantled. Modern
incarnations of Islamic law in Muslim-majority countries are often limited to family
law as part of a mixed legal system with mostly elements of European civil law.
Comparing the grounds and scope of human rights in Islam and the West
In two separate chapters we have analyzed classical texts on rights discourses in the
premodern Islamic and Western legal traditions, through the lens of three fundamental
human rights that are recognized by both traditions: expressed in Lockean terms as
rights to life, liberty and property (or “estate” rather) and in Islamic legal terms as the
inviolability of life (ʿiṣmaʾ al-nafs), the right to freedom or liberty (ḥurriyya), and the
right to ownership and property (milkiyya). We can conclude that both traditions have
a conception of what is called in modern legal scholarship “basic goods”. These are
the fundamental prerequisites needed for human dignity and societal flourishing. They
might by further divided into rights that are less fundamental. These are additional
“embellishments” or “adornments” to basic human rights. In the legal reasoning of
both traditions, we can observe the phenomenon of “rights triage”, the practice of
negotiating and prioritizing certain rights over others based on a variety of rationales.
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We find this in early medieval Western natural law thinkers, such as Aquinas (d. 1274).
Aquinas, about whom we have concluded that he lacks a theory of individual human
rights, did elaborate a list of basic good, namely life, reproduction, education, worship,
social life, avoiding offence and shunning ignorance. Contemporary natural law
philosophers, such as Finnis, tend to enumerate similar list, albeit formulated in the
language of modern human rights. For Finnis these are practical reflection, life,
knowledge, play, aesthetic experience, sociability (i.e., friendship), practical
reasonableness, and religion.
These “basic goods” in the Islamic legal tradition are framed in terms of the objectives
of the Sharīʿa (maqāṣid al-sharīʿa), the basic premise of which is the avoidance of
harm and the promotion benefit, for both individual human beings and society as a
whole. The basic objectives of Islamic law, according to Muslim jurists such as al-
Ghazālī (d. 1111) are the protection of life (al-nafs), religion (al-dīn), intellect (al-
ʿaql), lineage (al-nasl), and property (al-māl). A main difference between the Islamic
and Western legal conceptions of “basic goods” – at least through the lens of scholars
such as Aquinas and al-Ghazālī – is that Aquinas did not yet frame them in a theory of
individual and subjective human rights and its cognate legal concepts, such as legal
personality and legal capacity. This is interesting, since both wrote in medieval times,
Aquinas being slightly more towards the high end of the High Middle Ages. In al-
Dabūsī (d. 1034), we of course find an even earlier example of a fully articulated
theory of rights.
We have studied and compared several historical genealogies of human rights in the
Western legal tradition, only to find that Locke (d. 1704) is the first political and legal
philosopher that develops the language of a mature theory of rights, based in a clear
idea about the subjective nature of natural rights as being endowed in all human beings.
These are grounded in the law of nature and are – at least in principle – available for
the whole of humanity. The rights theories of earlier “proto-rights thinkers”, such as
Grotius (d. 1645), Hobbes (d. 1679) and Pufendorf (d. 1694), remain rather
rudimentary and minimalistic. These three natural rights thinkers could be best
understood, arguably, as precursors to the ideas of Locke, who reworks and builds
upon their ideas. But the others make important contributions as intellectual
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predecessors, such as the separation of law (lex) and right (ius), which allowed Locke
the opportunity to use richer rights language.
Concerns by Grotius and Hobbes regarding the fundamental right of life reflected
mostly early modern considerations in the law of warfare (jus in bello) and just war
theories (bellum justum). Both Grotius and Hobbes believed the right to self-defense
and self-preservation were the only human right that really mattered. In addition,
Grotius does not mention an individual right to life explicitly, but in terms of rights
that are “common to all”. Grotius natural law theory thus does seem to be grounded in
the idea of inherent human dignity, as we can observe with the jurists of Islam, but in
the idea of self-preservation.
The same can be said for Hobbes, for whom after all the main state of nature was one
of the “war of all against all” (bellum omnium contra omnes). In Hohfeldian terms,
Hobbes furthermore did not espouse a claim-right but a liberty right for selfpreservation.
Hobbes natural rights theory is not concerned with the rights of other
human beings. Instead, his theory is deeply informed by psychological motives, such
as self-interests and passions. Only the strongest passion of them all – the fear of a
violent death – could inspire human beings to give up their natural right to selfpreservation
and establish peaceful relations in an orderly society. Hobbes did
however, much clearly than his medieval predecessors, acknowledge a distinct human
nature as a ground upon which human beings can possess basic personal rights.
Pufendorf, another of Locke’s predecessors, inherits and synthesizes the natural law
theories of Hobbes and Grotius, while also disagreeing on some major issues, such as
the state of nature being bellum omnium contra omnes. Instead, he introduced the idea
of “sociability”, the idea a life of loneliness is not befitting for human beings as God
endowed them with a nature that promotes a safe and fruitful social life. While the
claim that Pufendorf’s idea of “natural equality” somehow anticipate human rights
conceptions of universal humanity seems somewhat overstated, he does seem to have
a rudimentary conception of subjective rights, among which are the natural right to
life, actions, honor, and reputation.
182
Locke, who worked based on these earlier proto-rights theorist, innovated rights
thinking in the West by extending the idea of the right to life, not only to the
preservation of the self, but also to the preservation of the lives of others. In addition,
Locke’s rights language is much more explicit and universalizing. Not only does he
constantly refer to the natural rights of “all mankind”, but he also makes very explicit
that human beings have individual subjective rights. In addition, Locke enlarges the
group of basic rights to the right to life, liberty and property. Human beings, according
to Locke are born free and rational, so that they can discover and obey the natural law.
But liberty is not unconditional. Locke’s right to property is a labor-based right. If
someone’s labor mixes with something (for example working the land) it becomes
their property.
The Islamic legal tradition, on the other hand, seems to have a much more elaborate
language for addressing the natural rights of human beings. Especially in the period
from the Middle Ages to the of modernity in 1800. This starts with the recognition of
the legal personality and legal capacity of all human beings, including women,
children, religious minorities, and slaves in early Islamic law. Very early on, at least
from the tenth century onwards, Muslim jurists developed mature theories of basic
human rights. These were grounded in various ways, but always balancing rationality
and sacred scripture. Especially after the end of the ninth century, when most debates
between the traditionalist movement (ahl al-ḥadīth) and the rationalist movement (ahl
al-rāʾī) had settled, and most Muslim scholars opted for a combination of both
approaches in some shape or form. This has also been referred to as the Great Synthesis
between the traditionalist and rationalist approaches.
Two main early theories of rights were based on the idea of public benefit (maṣlaḥa)
and human dignity (karāma), respectively. The rights theory of public benefit seems
to have been especially dominant in the Shāfiʿī, Mālikī, and Ḥanbalī schools of law,
having been developed by great scholars of these schools, such as al-Ghazālī (d. 1111),
al-Shāṭibī (d. 1388), al-Qarāfī (d. 1285), and al-Ṭūfī (d. 1316). The second human
dignity-based theory seems to be dominant amongst exponents of the Ḥanafī school of
law, such as al- Dabūsī (d. 1093) and al-Sarakhsī (d. 1090), who developed an
elaborate theory of inviolability (ʿiṣmaʾ). Of the two theories, the theory based on
human dignity seems to have developed slightly earlier.
183
The rights theory of Maṣlaḥa in grounded in public interest and concerned with the
basic objectives of the law (maqāṣid al-sharīʿa). It aims to avoid harm and promotes
benefit for all humans in society. In its most-used expression, the basic human rights
proposed by this theory are the protection of life (al-nafs), religion (al-dīn), intellect
(al-ʿaql), lineage (al-nasl), and property (al-māl). These are the so-called ‘five
fundamental rights’ (al-ḍarūriyyāt al-khamsa). The scholars of this paradigm also
developed “secondary” and “tertiary” rights. These are the necessities (hājiyyāt) and
improvements (taḥsīniyyāt).
The rights theory grounded in human dignity sand worth (karāma) developed an
elaborate rights language surrounding legal personality (dhimma) and inviolability
(ʿiṣmaʾ). As expressed by al-Dabūsī and al-Sarakhsī after him, this theory is based on
the idea that God has honored and dignified human beings, by bestowing upon than
human reason and the capacity to have rights and duties, so they may fulfil their “trust”
with God (amāna). These scholars explicitly mention the fundamental human rights
to the inviolability of life, freedom, and property, which are inborn and established by
birth, not acquired or endowed by the state, such as positive legal rights.
The right to life is central in both the maṣlaḥa and karāma-based rights theories, as the
killing of human beings (qatl al-nafs) is seen in Islamic law as an “enormity” or “major
sin” (kabāʾir). Hence, human beings have inviolability of life (ʿiṣmat al-nafs). Several
Qurʿānic verses explicitly forbid the taking of other’s lives (Q. 4:93). In addition, to
killing Muslims or non-Muslims under the protection to an Islamic state, aiding in
killing, striking someone, or frightening them are similarly disallowed. Islamic knows
no conception of “natural slavery”, as Aristotle for example espoused. The natural
human state in Islam is being born free (ḥurr). In addition, the right to liberty or
freedom (ḥurriyya) is one of the basic rights adopted and promoted in both Islamic
rights theories. Freedom is necessary, among other things, to be able to fulfill the
covenant with God (amāna). These freedoms were given to human beings as “honors”
(karamāt), as a sign of their inherent human dignity and worth. Scholars of both
Islamic rights theories emphasize the right to property and that human beings should
enjoy full inviolability (ʿiṣmaʾ) of property. Islamic jurists from different schools
consider the right to property a human right (i.e., a private right).
184
In our analysis we have seen that human rights have been grounded and justified in
various ways, both is the Islamic and Western legal traditions. We conclude from this
that many Eurocentric contemporary “histories of human rights” seem to uncritically
conflate different rights discourses, especially when it comes to modern human rights
and medieval and early modern natural rights. The claims of historical genealogies of
modern human rights in medieval natural law philosophers and Catholic canon lawyers
seems to be severely lacking. Especially when compared to the rich medieval ḥuqūq
discourses in Islamic juridical literature we have analyzed in this thesis, similar
discussions in medieval canon law and natural law philosophy – though intellectually
rich and philosophically interesting in many other ways – seem to be rather
rudimentary and minimalist when it comes to theories of human rights and their
justifications.
Additionally, there are major differences when it comes the scope of rights. Who is
included in the “human” of human rights? Here we see a few major paradoxes. In early
modern natural rights theorist, especially in the works of Locke, we can surely find a
“universalizing” trend towards a broadening of the conception of human rights and a
move away from the idea of individual self-preservation exemplified by his
predecessors Grotius and Hobbes. And the influence of early modern natural rights
theories on the later Enlightenment and eighteenth-century rights declarations seems
to be evident. Despite the secularizing tendency of modern human rights, natural rights
theories still have had their impact.
But there also seems to be a tension in the “new” natural rights language of the
seventeenth century. On the one hand, it emphasizes a universalizing language, often
addressing “all mankind”. On the other hand, natural rights theories were used to
justify slavery, land usurpation and European colonization of indigenous peoples in
the Americas. As argued by Peters, even eighteenth-century rights declarations
proclaimed in the West, such as France and America, were severely compromised as
they “applied essentially only to white free men, and not to women and black people”
and “slavery was still lawful”. Natural rights theorists, like Locke, were often
personally involved in slavery (or condoning slavery). Grotius’ law of nations made
great strides in development. For example, it helped forbid the killing of prisoners,
hostages, and innocent civilians (including women and children). However, his
185
malleable conception of natural rights theory was similarly used to justify colonialism
and “just war”. There thus seems to be a major tension between the universalizing
message of early modern natural rights theories and their limited scope regarding
slaves, women, minorities, and indigenous peoples.
In contradistinction to the Western legal tradition, Islamic law allotted legal
personality to all human beings, including, women, children, slaves, and religious
minorities. For example, while slavery was prevalent in the antique world of Islam, it
introduced several revolutionary emancipatory mechanisms. Among these are using
alms for freeing slaves, freeing slaves as expiation for committed sims, and the
encouragement of the contract of manumission (mukātaba) to buy freedom. Slaves in
Islam are not property but can own property. Despite the deficient state of absence of
freedom, slaves were not denied basic human rights, for example to practice religion,
to marry, and to have their life and physical bodies protected.
The discourse of Islamic human rights (ḥuqūq al-ādamiyyīn) in classical Islamic
jurisprudence thus forms rich resource for “rights talk” regarding inalienable rights
and human dignity. Hence, the Islamic rights discourse was recognized as “protohuman
rights” by some scholars. These rights are inborn and established by birth. I.e.,
they are natural rights, and not acquired rights. In addition, these rights are based in
common humanity (ādamiyya). They thus include Muslims and non-Muslims. This
theory seems to have persisted throughout early modernity. Some scholars have argued
that modern Islamic reforms – such as the 1839 Edict of Gülhane – were (at least in
part) inspired the this “universalizing” rights theory, as it espoused similar rights to
life, property, freedom, honor, education, employment, and due process for all Muslim
and non-Muslim subjects.
Final Remarks
In this thesis we have attempted to address the contemporary debates on the
philosophical grounds of human rights from the perspective of comparative legal
studies and conceptual history (Begriffsgeschichte), bringing the rich Islamic legal
tradition into the conversation. In doing so, it has endeavored to move beyond the
186
reductionist stereotypes of legal Orientalism and the “narrative of conflict” by taking
the Islamic legal tradition on its own terms, as consisting of its own legal language,
legal epistemology, legal norms and legal anthropology. Scholars working in the fields
of Islamic legal history and modern human rights lawyers have often been talking past
each other. Modern human rights lawyers frequently do not (or cannot) engage the
classical corpus of Islamic jurisprudence (fiqh) and legal philosophy (uṣūl al-fiqh), due
to a lack of the hermeneutical tools needed to engage this tradition. A tradition which
is mostly written in technical – sometimes impenetrable – medieval classical Arabic.
Islamic legal historians, on the other hand, often lack the juridical training in modern
law needed to address the modern human rights discourse. As such, current scholarship
is lacking the required sustained interdisciplinary cross-pollination needed to be able
to seriously and creatively engage the bodies of knowledge surrounding the philosophy
of human rights on the one hand, and Islamic jurisprudence and legal philosophy on
the other. This thesis cannot – of course – begin to claim to resolve such a vast
intellectual challenge. Instead, its aim has been infinitely humbler, which is to point
out some blind spots and shortcomings in current scholarship on Islam and human
rights. And too – perhaps – to open some potential pathways and possible strategies to
start reimagining such scholarship into the future. It is thus our hope that Islamic
human rights studies will flourish as a continued interdisciplinary scholarly dialogue
that is imbedded in the rich heritage of the Islamic intellectual tradition and can
genuinely and constructively contribute to contemporary pursuits of human dignity
and global justice.
187
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CURRICULUM VITAE
Personal Information:
Jeroen Vlug
Education:
2014-2022 PhD in Civilization Studies, Ibn Haldun University, Turkey
School of Graduate Studies, Alliance of Civilizations Institute
(Major in Islamic Civilization, Minor in Western Civilization)
2017-2019 MA in Islamic Intellectual History, Freie Universität Berlin, Germany
Department of History and Cultural Studies, Institute of Islamic Studies
2011-2014 MA in Religious Studies, Vrije Universiteit Amsterdam, Netherlands
Faculty of Religion and Theology, Center for Islamic Theology
(Two MA tracks: Islamic Theology, Sociology and Anthropology of
Religion)
2007-2011 BA coursework in Philosophy, Religious Studies, and Islamic Studies
2003-2009 BA in Media Studies, Amsterdam University of Applied Sciences
(Minor in Arabic Language and Culture)
Additional Certificates:
2014-2018 Theological Seminary Degree in Arabic and Islamic Studies, Istanbul
Foundation for Research and Education, Turkey
2016 Islamic Codicology Certificate, The Islamic Manuscript Association and
Cambridge University Library, United Kingdom
2015 Ottoman Calligraphy and Paleography Certificate, Yildiz Technical
University, Turkey
2014-2015 Turkish Language Certificate (C1), Fatih Sultan Mehmet Waqf University,
Turkey
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2005 Cambridge English Certificate, Amsterdam University of Applied Sciences,
Netherlands
Experience:
2021-current Researcher Migration, Movisie Institute, Netherlands
2014-current PhD Researcher and Teaching Fellow, Ibn Haldun University, Turkey
2020-current Executive Editor, Cross-cultural Human Rights Review, Vrije Universiteit
Amsterdam, Netherlands
2019-current Academic Editor, Plural Publications, Germany
2014-2017 Researcher Islam in the Netherlands, Euro-Islam.info, Harvard University’s
Islam in the West Project
Publications:
I. Journal Articles
Vlug, Jeroen, ‘Global Islam, Human Rights and Cold War Rhetoric: A Recent Intellectual
History of Islamic Rights Declarations’ (in progress).
Vlug, Jeroen, ‘Life, Liberty and Property: A Comparison of the Fundamental Rights
Theories of John Locke and Abū Zayd al-Dabūsī’ (in progress).
Vlug, Jeroen, ‘Hikmet-i Hukûk or La Philosophie du Droit? Debates on Natural Law and
Legal Reform among Late Ottoman Intellectuals’ (in progress).
Vlug, Jeroen, ‘Global History, Civilizational Analysis and the Concept of Confluence:
Case Studies of Greco-Arabic Logic and Byzantine Iconoclasm’, International Journal of
the Asian Philosophical Association (forthcoming in 2023).
Vlug, Jeroen, ‘The Islamic Pursuit of Human Dignity: Revisiting Fundamental Rights
Theories in Islamic Law and Legal Theory’, Cross-cultural Human Rights Review 2, no. 1
(2020): 23-48.
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Vlug, Jeroen, ‘Approaching the Study of Civilization: Norbert Elias’s View’, International
Journal of the Asian Philosophical Association 11, no. 1 (2019): 179-194.
II. Book Chapters
Vlug, Jeroen and Arnold Mol, ‘Human Rights and Islamic Reform’, in Oxford Handbook
on Islamic Reform, eds. Emad Hamdeh and Natana DeLong-Bas (Oxford: Oxford
University Press, forthcoming in 2023).
III. Book Reviews
Vlug, Jeroen, review of Islamic Law and International Law: Peaceful Resolution of
Disputes, by Emilia Justyna Powell, Journal of Islamic Studies (forthcoming in 2023).
Vlug, Jeroen, review of Comparative Religious Law: Judaism, Christianity, Islam, by
Norman Doe, The Maydan (forthcoming in 2023).
Vlug, Jeroen, review of Bid, vecht en heers: Regeren in overeenstemming met Allahs wet
ter hervorming van de herder en de kudde, by Machteld Allan, Tijdschrift voor recht en
religie (forthcoming in 2023).
Vlug, Jeroen, review of Human Rights, Islam and the Failure of Cosmopolitanism, by June
Edmunds, Journal of Islamic Studies 31, no. 2 (2020): 286-290.
Vlug, Jeroen, review of The Idea of the Muslim World: A Global Intellectual History, by
Cemil Aydin, Religious Studies Review 46, no. 1 (2020): 104.
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