The General Principles of Human Rights in Islamic Law: Ustice - Equality - Liberty

By Dr. Bekim Hasani

The Australian Federation of Islamic Councils (AFIC) is proud to support Dr. Bekim Hasani's book; this is a welcome addition to the knowledge base of English readers.
Dr. Rateb Jneid, AFIC President

The Islamic Certification Council of Victoria (ICCV) proudly supports the great work produced in this book by Dr Bekim Hasani and urges Muslims and non-Muslims to read and understand the importance of human rights, which is set in the teachings of Islam, and how Islam established these rights from the first message in the Holy Qur'an - “read”.
Mohamed Koyu, ICCV Acting Head of Operations & Quality

This book provides a comprehensive explanation of human rights in Islam and will benefit both Muslim and non-Muslim communities in the west to understand Islam.
Naim Tërnava, Grand Mufti of Kosova

• Language: English
• Publisher: Xlibris AU
• Release date: Jul 22, 2021
• ISBN: 9781664106666

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Copyright © 2021 by Dr Bekim Hasani.

All rights reserved. No part of this book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage and retrieval system, without permission in writing from the copyright owner.

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Rev. date: 07/21/2021

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Editors: Nilufer Kurtuldu

Keysar Trad

CONTENTS

Foreword

Editor’s Note

Glossary of Arabic Terms

HUMAN RIGHTS BEFORE ISLAM

1. The Concept Of Human Rights

2. Human Rights In Ancient Civilizations

3. Human Rights And Islamic Civilization

4. Human Rights And Human Dignity

CHAPTER ONE

1. Individual Rights In Islamic Law

2. Social Rights In Islamic LAW

3. Solidarity Rights In Islamic Law

CHAPTER TWO

Introduction

1. Equality In The Infliction Of Punishments

2. Equality Before The Law

3. Equality In Civil Rights

4. Equality In Retribution

CHAPTER THREE

1. Signification And Significance Of Freedom

2. Freedom Of Thought And Expression

3. The Concept Of Freedom From A Political Point Of View

4. Religious Freedom

Bibliography

FOREWORD

People are equal like the teeth of a comb, there is no difference between an Arab and a non-Arab nor a white and a black person. – Hadith from Fawaid al Majum’ah of Shawkane

According to Islam, God (SWT) created humanity in the fairest and most perfect form for this world. Humanity has been distinguished from other living beings by being endowed with mind and intellect.

God honored humanity with many things and elevated them/us over other creation:

We have honored the progeny of Adam; provided them with transport on land and sea; given them for sustenance things good and pure; and conferred on them special favors, above a great part of Our creation (Al-Isra:70).

This God-given honor is the basis and source of human rights in Islam. Humanity is given this honour from the moment of inception until the moment of death and burial.

These rights have been in place since the creation of the first man, Adam, and are complemented by the revelation of the Quran revelated to the last Messenger of mankind, the Prophet Muhammad (pbuh). The sources proving the existence of human rights in Islam are: the Quran and the prophetic Sunna.

These rights in Islam are complete and unchanging and do not accept any shortcomings or failures. They are in accordance and harmony with human life and society. As these rights are sourced from the Quran and the Sunna of the Prophet, these rights will continue until the Day of Resurrection. A Muslim is obliged to respect these rights, as required by any Muslim society or country. Unfortunately, most Islamic countries, including Albania and Kosovo, ignore their responsibility in maintaining human rights, according to the teachings of Islam.

In this book, I endeavor to detail the evolution of human rights throughout; human history, the history of human rights in Islam, and the responsibilities of Muslims, in order to ensure that all of mankind are afforded these rights.

Dr. Bekim Hasani

EDITOR’S NOTE

At first it was so overwhelming reading through all the rights that people have over me, in so many situations, encompassed within all aspects of life, which I never knew about. From the rights of your neighbours to the rights you have as a child, up until your death, and even after you pass away. The shift in mindset came through when I realised how honoured and valued I was as an individual and as one of God’s creations. The minute detail that God had thought about and stated in the Holy Quran and through the traditions of the Prophet (the Sunnah), had left me in astonishment and great awe. I felt so protected and loved, created with such importance, that not only did people have such rights over me, but that I had rights, if not even more, over them. I was honoured with rights as an individual, as a child, a daughter, a sister, a partner, a mother, a neighbour and a member of a community and society. This enlightenment has already caused huge changes in my personal life. Being educated and informed about the rights and responsibilities I have towards others, encourages me to fulfil my part in providing cohesion within society. Being honoured with these rights in return, brings immense feelings of peace, love and harmony into my heart and soul. I pray that each and every one of you who reads this book full of absolute treasures, could gain such beneficial knowledge to help benefit you not only in this world and life, but see the blessings and rewards in the next life. This book truly sums up all aspects of rights which need to be given and received within ones’ lifetime in all of life’s encounters. Thus, a summary of life and how we could all honour and show respect to one another, whilst upholding justice, equality and liberty in society and personally in our own lives. I wish peace upon you all.

Nilufer Kurtuldu

GLOSSARY OF ARABIC TERMS

ʿAqiqa: the offering of a sheep in honour of a newborn, the sheep’s meat is distributed to friends, neighbours and the poor.

(pbuh): Alayhi Salam (Peace and Blessings Be Upon Him)

Fardh: Obligatory under Islamic teachings.

Fuqaha: Scholars of Islamic law/ fuqaha (Muslim jurists/ Islamic jurists)

Fiqh: Islamic jurisprudence

Hadith: A saying: a collection of traditions containing sayings or actions of the prophet Muhammad which constitute the major source of guidance for Muslims after the Quran

ʿIdda: period during which a widow or a divorcee cannot remarry

Jahiliyya: time of ignorance before the mission of the prophet Muhammad (PBUH)

Jibril: Angel Gabriel

Khitan: circumcision

al-Khulafaa al-Rashideen: The rightly guided Khalifs

La ilaha il-lall-llah: There is no God but Allah

Um: mother

(r.a.): May God be pleased with him

Shariah: Islamic way

Shirk: joining others with God

Sunnah (the Prophetic tradition)

SWT: Subhanahu Wa Ta’ala (A statement of praise and glorification of the Almighty)

Tayammum: the Islamic act of performing dry ablution using purified sand or dust

Umra: lesser pilgrimage

Waqf: endowment

Wasyya: will

Zakat: Obligatory Almsgiving

Zindiq: heretic

HUMAN RIGHTS BEFORE ISLAM

1. The concept of human rights

2. Human rights in ancient civilizations

3. Human rights and Islamic civilization

4. Human rights and human dignity

1. THE CONCEPT OF HUMAN RIGHTS

According to Islam, God (SWT) distinguished humanity from other creation. Humanity was given intellect, honour and rights from the beginning of day, to the end of night.

To better elucidate this topic in depth, this work will examine it through the following subheadings:

A. Etymological and terminological concept of human rights

B. The etymological concept of a human being

C. Terminological concept of a human being

II. Etymological notion and terminology of the word right

A. The etymology of the term right

B. The notion of right in the Islamic Law

C. The definition of right by the classical Muslim jurists

D. The definition of right by contemporary Muslim jurists

E. The terminology of the term right

I. Etymological and terminological concept of human rights:

Before broadly examining the concept of human rights, it is necessary to first address its principles linguistically.

Usus is the singular of the word asās, which means essence and foundation. In this context, the principle is the pillar of everything. From this concept, the following expression is derived: the principle of the idea, the principle of research and the essential principle of the system, which means the state’s constitution or rules of the company.¹

Regarding the concept of human rights, it could be said that there is a composition, as a genitive construction: The first has to do with the human being as the subject matter of rights, and the second has to do with the essence of human rights. Therefore, before the meaning of rights could be examined from an etymological and a terminological angle, the concept of human being should first be analyzed.

A. The etymological concept of human being

The word Insān corresponds to the Arabic word fiʿl ā n, its plurals are Nās, Unā s, anas and "ānus." There are various opinions from linguists about its etymology. According to Jawhari, the word Al-Ins means people. The singulars of this are insiyyun and anasiyyun,-- here the letter y replaces nūn, as found in the Qurʾānic verse: ...And give it as drink to those that We have created or numerous livestock and people. (Al-Furqan, 49)

There is also the word Anāsiyya, which is used similarly to how the words sayarifa and sayaqila are used. This is seen in the following passage: "Even the woman could be told the man (insān), and we cannot say to her (insāna) to distinguish her from the general understanding."²

According to al- Firuz Abadi, the word ins has been used to mean people as in humans, with the singulars being insiyyun and anasiyyun.³

According to Fayyoumi, the word Insān is derived from the word people, and is in a generic noun used for both men and women in its singular and plural forms. There was disagreement about its etymology, but an agreement regarding the addition of the letter Nūn was later achieved. According to the school of Basra, the word is derived from the word uns with hamza as its root, and the form fuʿlā n. In the Koofa school, this word derives from nisyān (forgetfulness), when hamza is added to the form afʿān. Its origin is insiyān, according to the form "fī ʿ ā lanīsyyān," and to its diminutive form.⁴

Nās is used in the plural as in the words Qawm and rahat,, meaning people and kin respectively, while the singular is Insān (Man) and is derived from the verb nāsa – yanūsu, which means hanging, moving. Nūs meaning fluctuation: nāsa - yanūsu - Nawasan: move and fluctuate, hanging, and the diminutive of which is nuways, which is used to refer to both people and jinn. In the Qurʾānic verse it is stated: "And I have not created people and jinn except to worship Me?" However, the use of Nās refers, most often, to people.

Indeed, the essence of such words, is to show that man was created from dust and derived from the father of all humans, Adam (pbuh), as in this context in the Qurʾān:

O mankind! if ye have a doubt about the Resurrection, (consider) that we created you out of dust, then out of sperm, then out of a leech-like clot, then out of a morsel of flesh, partly formed and partly unformed, in order that we may Manifest (Our power) to you. (Al-Hajj, 5)

B. Terminological concept of human-being

In the book, At-Taʿrifat, the author Al-Jurjani noted that a human is "a speaking animal,"⁵ i.e a creature which speaks and thinks. Human is the basis of the universe and the driving force.⁶ Human usefulness and the realization of this value are considered the main goals, and the culmination of these is what makes up the Islamic Law principles and its methodology.

The word Insān (Human being) and the words which are derived from it are found in the Qurʾān in 90 places;⁷ the word "an-nās" (singular insān, without prouncing it, literally) is found 241 times.⁸

The word Insān (Human-being) is repeated 65 times, and in most cases is used to refer to people in a general form rather than a specific person. For example, in the Qur’ān:

"And it is Allah’s Will to lighten your burdens, for humankind was created weak." (An-Nisa, 28)

We created man from sounding clay, from mud moulded into shape. (Al-Hijr, 26)

Verily the human-being is in loss. (Al-Asr, 2)

The word Insān (Human-being) is used to indicate groups of people individually, as noted in numerous Qurʾānic verses. This meaning fits with the general principle of the comprehensive meaning of the word Insān. This use is found in two versions:⁹

a) The first is to indicate a Muslim, such as in the Qurʾānic verse:

"And We have enjoined upon the human-being [care] for his parents. His mother carried him, [increasing her] in weakness upon weakness, and his weaning is in two years. Be grateful to Me and to your parents; to Me is the [final] destination. But if they endeavor to make you associate with Me that of which you have no knowledge, do not obey them but accompany them in [this] world with appropriate kindness and follow the way of those who turn back to Me [in repentance]. Then to Me will be your return, and I will inform you about what you used to do" (Lukman, 14-15)

The revelation in this verse, according to scholars,¹⁰ concerns Saʿd ibn Abī Waqqās (r.a.)¹¹, when his mother said to him: Did God order to do kind things? By God, I will not eat and I will not drink anything until I die or you disbelieve, and so, he had said, when they wanted to feed her, they opened her mouth with a stick and nourished her.¹² This case was revealed in the verse: And we have enjoined on the human-being (to be good) to His parents...

b) The second type of use of the word human-being is to indicate the unbeliever:

This term is used in the Qurʾānic verse: Does man not consider that We created him from a [mere] sperm-drop - then at once¹ he is a clear adversary? (Yasin, 77)

At-Tabari relates that the above verse, and what was revealed later, was concerning Aʿas bin Wail As-Sahmi. It was reported by Said ibn Jubayr, as narrated by Ibn Abbas (r.a.), that Aʿas bin Wail had gone to the Prophet (pbuh) with a broken bone¹³ and had asked: O Muhammad, is this claw going to be revived by God after that has been destroyed? The response had been: Yes, God will take your soul when you die, then will revive it, and then will push it into the fire of hell. And as well in the Qurʾānic verse: Does the human-being not consider that We created him from a [mere] sperm-drop - then at once he is a clear adversary?" (Yasin, 77)¹⁴

These two Qurʾānic verses: "No! [But] indeed, man transgresses Because he sees himself self-sufficient." (El-Alaq, 6-7), and the proceeding verses, had been revealed to the Prophet as reported by Abi Hurayra concerning Abu Jahl. Abu Jahl had sworn before his friends that he would punish Muhammad (pbuh) as he performed his prayers, whilst he was touching the ground, by wanting to push his neck towards the ground, however, he had failed to do this. Abu Jahl reported that he had turned away, seeking protection whilst pressing hard against his hands, as he had suddenly seen a ditch of fire, horror, and wings. The Prophet had said: If he were near to me, the angels would snatch him one organ after another. Hence, the above-mentioned verses and the verses which followed them, were revealed.¹⁵

Therefore, as noted above, the term Insān (Human-being) is used in the Qurʾān when a doubting human-being refuses to worship his Lord -- or does not worship enough. Further, it is used in hundreds of places in the Qurʾān to denote sound Muslims,¹⁶ and in these cases has a positive connotation, such as The believers, Muslims, pious, charitable, patient, sincere ... etc.

I. Etymological notion and terminology of the word right

A. The etymology of the term right

The etymology of the term al-haqq means the opposite of untrue. The plurals are: "ḥuqūq" or "ḥiqāq," and in Arabic: Ḥaqqa al-ʾamru, yaiqqu, Ḥaqqan and "Ḥuqūqan" means that a thing is done correctly and has been confirmed.¹⁷ According to Jawhari "al-haqq" (right), it is used in opposition to "al-bāṭil" (not right). The plural of "haqq" is "ḥuqūq."¹⁸

In the etymological sense, the word haqq is also used to indicate something strong, which cannot be denied,¹⁹ and the complete meaning of the word would be the opposite of injustice. So, haqq also has a sense of durability, and this aspect also denotes having strong and sustainable faith in human rights, which are the essence of Islamic teachings. This principle is essential in Islamic teachings and at the same time it implies the importance of a firm Islamic law, which is a command presented to Man from God or a duty imposed by one person onto another.²⁰

In al Qāmūs al-Muḥit, the term al-haqq is also used as a word for one of the names of the Lord of Majesty, or to refer to one of His qualities. It is also used in the Qurʾān to refer to wealth, property, undeniable existence, sincerity, death, and determination. The plural of al-haqq, in Arabic is, "ḥuqūq."²¹ Therefore, al-haqq means the issue of the existence of a confirmed matter; ²² a matter which cannot be denied.²³

B. The notion of right in the Islamic Law

Scholars have differences of opinion on the definition of the term right, as it is used in so many different ways and contexts.²⁴ As a result, it takes on different meanings when forming new notions of human rights.

C. The definition of right by the classical Muslim jurists

According to Shawkane, right is the principle of sustainability;²⁵ and according to Ibn Najim, it is what a human-being deserves. ²⁶

The Hanafi jurists use this definition in the context of their speech on rights related to sales.

D. The definition of right by contemporary Muslim jurists

According to Dr. Ahmed Fehmi the notion of right is defined as an issue, which is confirmed by Islamic laws, about the rights of person or God that others have to fully abide by.²⁷ Clearly, Fehmi views this notion linguistically as something stable and does not deny that his definition is influenced by the classical al-Usuliyyin scholars (who are jurists conforming to Islamic principles, also known as purists or fundamentalists). This group of scholars divided this notion into the rights that come from God and the rights that people give themselves through their laws, noting that this right is abided by in the Islamic law and it is for God or a person to maintain over another person.²⁸

According to Mustafa Az-Zarqa, right is when the Islamic law or Sharīʿa assigns specific power or duty.²⁹ This definition is broad in a general sense and here, the word specifications is used to indicate relations of dealing with all types of civil rights, religious rights, charity, educational rights, and authority.

According to Prof. Ali Al-Khafif, the right is an interest that has been earned by Islamic law,³⁰ and in this context, it means a financial benefit or educational interest, without any related risk.

According to the Jurist (Islamic scholar) Abdurrazaq Es-Sanhuri, it is a financial interest protected by law.³¹

Right in the Islamic Law,³² encompasses the fundamental basis for all Islamic legislation. Based on this principle, human rights in Islam are the rights bestowed by God (SWT); it is therefore the responsibility of the believer to ensure that these rights are maintained as best as possible, including worshipping and obeying Allah in accordance with the Islamic Law. This notion places high value on the Islamic concept of human rights, and as such, these rights are actually fundamental to ensure its practice. More importantly, when these rights are respected, ones’ status of worship becomes elevated. According to Islamic Law, such rights are obligatory religious duties, which must be performed. This position gives a person great responsibility before; God (SWT), themselves, society, and all of mankind. This concept also coincides with the etymological notion of right.³³

Based on this, human rights in Islam form the backbone of Islamic society, and are not seen as being only political or constitutional. These rights are not just a result of human-developed intellect during a certain period of time, nor are they only natural rights as stated in objective law, as observed by certain lawyers. According to Islamic teachings, these rights are religious obligations, which are the responsibility of the individual towards society. The individual in an Islamic society, lives with such rights and is so imbued with them that they become a part of his psyche, mind, and heart. He protects them, to defend himself, as he is performing a religious obligation. The individual has no right to abandon the application of their rights, as it would lead to the notion that they would be neglecting their own religious duties.³⁴

As was stated by Muadh bin Jabal:

"Once I was very close to the Prophet (pbuh), he called me: O Muadh! I replied: Yes, O Messenger of Allah. After a short moment he called me again: O Muadh! Again, I said: Yes, O Messenger of Allah. After a moment, the Prophet called me again: O Muadh! I replied: Yes, O Messenger of Allah. Then the Prophet asked me: Do you know what rights God has over His servants? I replied: Allah and His Messenger know best! The Prophet said: God has over His servants the rights to worship Him without associating anything in Him (or with him)! ³⁵

In a Hadith narrated by Abu Kareema, the Prophet (pbuh) said: Ensuring the comfort of a guest is the duty of every Muslim, whoever has a guest, he has an obligation that he can either fulfill or neglect. ³⁶

From all of this, it could be concluded that the meaning of the word ‘right’ encompasses materials, individuals, and social rights. God assigns and binds people to achieve and maintain rights in accordance with Islamic Law. The main purpose of the notion of human rights has to do with the obligations required of people in terms of the divine law. They must practice these in their lives, as it is expressed in the Islamic Law, and that neither man nor state has the right to denounce, interfere or reject such obligations, except in matters relating to the general benefit of society or the individual.³⁷

E. The terminology of the term right

The word Haqq (right) and its derivatives are found in the Qurʾān 288 times, in several suras and has multiple meanings:

Al-Haqq: Name of the names of God Almighty, because He is constant, exists by Himself and in this context, in verse 71 of Sura Al-Mu’minun, He said: "If the truth had been in accord with their desires, truly the heavens and the earth, and all beings therein would have been in confusion and corruption!"

Therefore, Exalted be Allah, the King, the Reality: there is no god but He, the Lord of the Throne of Honour! (Al-Mu’minun, 116)

Abu Al-Baqa says that among the names of His Majesty or His qualities - is al-Haqq, in the sense of firm in Being and His attributes, His kingdom, and He (Allah) certainly deserves such a unique quality by its own virtue.³⁸

Al-Haqq: To indicate The Prophet, as stated in the Qurʾānic verses: And Now They reject the truth when it reaches them: but soon shall They learn the reality of what They used to mock at. (Al-An’am, 6)

But (now), when the truth has come to them from Ourselves, They say, Why are not (Signs) sent to him, like those which were sent to Moses?" (Al-Qasas, 48)

Al-Haqq: Islam as a religion, which is the Truth and must be followed, as in this context:³⁹ Verily we have sent Thee In truth As a bearer of glad tidings and a warner: but of Thee no question shall be asked of the companions of the Blazing Fire (Al-Baqara, 119). Nor do they acknowledge the Religion of truth (Tawbah, 29).

Al-Haqq: The undisputed truth, as in the Qurʾānic verse: The companions of the Garden will call out to the companions of the Fire: We have indeed found the promises of Our Lord to us true: have you also found your Lord’s promises true? They shall say, Yes; but a crier shall proclaim between them: The curse of Allah is on the wrong-doers" (Al-A’raf, 44)

Al-Haqq: The Certainty as stated in the Qurʾānic verse: "And In heaven is your sustenance, As (also) that which ye are promised. Then, by the Lord of heaven and earth, This is the very truth, As much As the fact that ye can speak intelligently to Each other." (Adh-Dhariyat, 22-23)

Al-Haqq: Justice as stated in the Qurʾānic verses: And Allah will judge with (justice and) truth: but those whom they invoke beneath him, will not (be In a position) to judge at all. (Ghafir, 20)

Come not nigh to shameful deeds. Whether open or secret; take not life, which Allah hath made sacred, except by way of justice and law (Al-An’am, 151)

This because They went on rejecting the Signs of Allah and slaying His Messengers without just cause... (Al-Baqara, 61)⁴⁰

Al-Haqq: Sincerity, as stated in the Qurʾānic verse: (Allah) said: By the truth, and trugh I (only) speak." (Sa’d, 84)

Al-Haqq: Destiny and shared Desire, as stated in the Qurʾānic verse: "They said: