Session Twenty-Seven, The Second Stage: Examining Whether Dignity Constitutes a Source of Rights

Session Twenty-Seven

The Second Stage: Examining Whether Dignity Constitutes a Source of Rights — Law: The Source of Rights — Definition of Natural Law — Definition of Natural Rights — Characteristics of Natural Rights

February 15, 2025

The Second Stage: Examining Whether Dignity Constitutes a Source of Rights

The first stage of our discussion has come to a close; the first stage concerned the foundations of inherent human dignity. We spoke of this at length and in detail. The second stage concerns whether inherent dignity can constitute a source for a particular right or privilege for the human being, or not. After this, we must turn to the proofs of inherent human dignity; much of what we shall say in the discussion of the proofs, admittedly, overlaps with what we have already said regarding the foundations. Perhaps, in one respect, we ought to have taken up the discussion of the proofs first, so that, once the foundations and proofs had been examined and inherent dignity thereby established, we could then proceed to this question of whether inherent dignity constitutes a source of rights and privilege for the human being. In any case, in keeping with what we had promised, we now wish to answer this question: given that it has been established that the human being possesses inherent dignity, broadly speaking, does this dignity create for him a particular privilege and right, or not? By this is meant that such rights must be preserved under all circumstances; that, except in a case where they come into conflict with the public interest—in which case they may be restricted on account of that conflict—no one may nullify or divest them. This is an important discussion. In order to answer this question, it is necessary that I first explain, by way of introduction, the root of rights—that is, where rights, in general, originate. We must then explain the categories of rights, and only then arrive at an answer to this question.

Law: The Source of Rights

“Rights” (ḥuqūq) is the plural of “right” (ḥaqq), meaning an advantage, a superiority, a particular enjoyment of some privilege; the root of rights lies in law. Law, in turn, is of two categories: either positive law or natural law. That a right comes to belong to someone—for instance, the right to life, the right to self-defense, the right to property, or, say, the right to vote and the right to stand for election—all of these are rights whose root lies in law. We have two types of law: either positive law or natural law. What, in the first place, does “law” mean?

Law is a set of general rules that applies uniformly to a series of matters; this may, in some cases, be confined to a particular domain, or it may have a broader scope and range. I shall pass over these matters quickly and not dwell on them at great length. One category of law is positive law, and the other category is natural law.

1. Positive law refers to those regulations and general rules that are enacted and laid down by some group or institution; now, this “group,” as we call it, may be a parliament, may be an organization, or may be the Lawgiver (Shāriʿ)—that is, God Himself performing this act.
2. Opposite positive law, we have natural law; there is considerable discussion and disagreement concerning natural law. In order to clarify the meaning of natural law, and to establish its relation to natural rights, which we shall discuss afterward, I must offer an explanation. Positive law is the source of a series of positive rights; natural law is the source of a natural right or natural rights. There is disagreement as to whether “natural right” and “natural rights” denote one and the same concept or two distinct ones; we shall set that disagreement aside.

In any case, natural law is distinct from natural right; we may say that natural law is the source of natural right. Some, admittedly, maintain the reverse—that is, they say that natural right is the source of natural law. But the correct view is that natural law is the source of a natural right.

Definition of Natural Law

Consider, for instance, the law we call the law of gravity. The law of gravity means that anything possessing weight is drawn toward the earth; the earth possesses a force called gravity, such that if you release something from a height, it falls to the earth. Now suppose an engineer wishes to design a plan and erect the skeleton of a building, placing walls and a roof upon it. All engineers and architects, in designing a building’s plan and architecture, take the law of gravity into account. They accordingly design the roof in such a way that it is not adversely affected by the law of gravity, so that the building’s roof does not collapse upon anyone. No one has enacted the law of gravity anywhere; rather, it governs nature itself. Now, it is true that its discovery occurred at a particular point in time, that its formulation took a certain shape, and that difficulties and disputes arose in establishing it; yet everyone has accepted it. All designers and engineers, when they wish to undertake some task, take this into consideration. We have, for instance, an engineering regulatory organization that prepares regulations for construction and communicates them to everyone; the regulation that this organization designs becomes positive law—a group of people has sat down and written something. Yet these laws have certain roots; I mention this by way of illustration. The law of gravity is one of those principles that governs the positive regulations of this institution, and which everyone, in one way or another, observes.

Let us now turn to another domain, the one bearing on our actual discussion. With respect to natural law, there is considerable discussion and disagreement; whether we have a natural law at all or not, what the definition of natural law is, what the scope of natural law is—a great deal of discussion has taken place on these questions. This is a longstanding and ancient discussion. Differing perspectives exist regarding natural law. Some theistic philosophers or medieval theologians, for instance, have defined natural law as follows: the law in which divine providence is reconciled with human freedom. Or, for instance, some have said that natural law is none other than the rulings of practical reason—such as that every good deed ought to be pursued and every evil deed prevented. Or, for instance, that natural law consists of all the rulings of the innate disposition (fiṭrah) that the human being apprehends; every ruling that the human being apprehends through his innate disposition is a natural law.

If we wish to define natural law concisely, it is a law that the innate disposition and nature of all human beings apprehends; there is disagreement as to what matters constitute the instances of natural law. Those who speak of the rulings of practical reason, and those who speak of that in which divine providence is reconciled with human freedom, likewise disagree with one another regarding its instances. But, broadly speaking, those propositions and statements that the human being comprehends by virtue of his own nature and innate disposition, independent of any belief, inclination, or religion, constitute natural law. In general, the source of social order and of the laws that human beings enact is precisely this natural law—that is, those rules that are consonant with human reason and innate disposition. When we bring reason and innate disposition into the discussion, this means something comprehensible to the human being qua human being; the Muslim comprehends it, the Christian and the Jew comprehend it, and the denier of God and the atheist comprehend it as well. Natural laws, then, are, in fact, those rules that the human being qua human being comprehends, and which are consonant with his innate disposition and nature, with belief, religion, geography, color, and race having no bearing on it whatsoever. If we were to say that it consists of the rulings of practical reason, then the sole ruling of practical reason would be the goodness of justice and the badness of injustice; now, some others … have also cited the obligation to return a trust, the obligation to express gratitude to a benefactor, and the necessity of repaying a debt—all of these being but branches and offshoots of that single general rational ruling. The goodness of justice and the badness of injustice thus constitutes natural law—a law that the innate disposition of every human being pronounces upon.

I am not, for the moment, attempting to offer a precise definition of natural law. I have noted that perspectives differ here, that interpretations are numerous, and that disagreement exists; but, broadly speaking, we may say that natural law consists of those rules that all human beings, qua human beings, comprehend.

Definition of Natural Rights

Natural law has become the source of a series of rights for the human being, called natural rights. My saying that natural law has become, or becomes, the source of rights termed natural rights is itself a matter of discussion. Indeed, the very question of natural rights has been raised from ancient Greece and ancient Rome down to the present day; according to some authors, it has a history of some 2,500 years—it may well have been raised even earlier, but this is the extent reflected in the writings and books available to us. There exists a considerable distance between denial and affirmation on this matter; those who denied it held one view, and those who affirmed natural rights held another. It has undergone significant developments; these disagreements existed from the time of Plato, Aristotle, and Socrates in ancient Greece, and likewise in Rome, and various interpretations have been offered of it. The common understanding of natural rights, irrespective of one’s acceptance or rejection of the concept, is that natural rights are rights affirmed for the human being by virtue of his being human, or, in other words, for the human being qua human being. There are several matters we must address here concerning natural rights: first, what natural rights fundamentally are, and what the definition of natural rights is. We shall then offer some indication of the disagreement among Muslim and non-Muslim thinkers concerning natural rights; I shall, admittedly, present these only in summary form, for there is a great deal of discussion as to what these thinkers say and what the points of disagreement among them concern. We shall then turn to a discussion of the proof of natural rights, and ask what evidence, if any, we have that the human being possesses a natural right. We must then, finally, offer some indication of the scope of natural rights.

In any case, natural rights are rights that human beings in general possess by virtue of the law of nature. That is, if, for instance, natural law requires that the human being qua human being not be subjected to injustice, or that justice be observed with respect to him, he thereby comes to possess a right—called, for instance, the right to life, the right to freedom, the right to respect and to the honoring of his personhood; these must be fully preserved with respect to the human being. Every sound intellect and every innate disposition pronounces that the human being possesses these rights; that he can own property, that he can choose freely, that he can choose by his own will and choice; all of these are rights that are the offspring of that law and that arise from the rulings that the human innate disposition pronounces. Natural rights, then, are, in fact, that category of rights affirmed for the human being by virtue of human innate disposition and human nature, with no difference whatsoever among human beings in this respect. The human being, by virtue of being human, always possesses these rights.

Characteristics of Natural Rights

These rights possess certain characteristics; this is precisely the point of distinction between natural rights and positive rights, which are the offspring of positive law. Several characteristics are cited for them, which I shall set out briefly.

1. That these rights are eternal and everlasting—that is, since they are affirmed for the human being qua human being, they have always existed and will exist forever.
2. That they are not subject to change, and cannot be altered.

Question:

Response: This is the principal rule governing these rights; but should these very rights come into conflict with the public and collective interest, then, at that point, they may be restricted, and society is permitted, in that case, to restrict them. If, however, the matter concerns punishment and penalty, it takes on an altogether different character. … You have conflated the natural with the constitutive (takwīnī) … That is, no one can say, “I have granted you this,” or, “I am taking this from you.” When we say a right is eternal, we mean that it has existed from the beginning, and that no one has instituted it; when we say it is everlasting, we mean that no ruler or state can say, “I am stripping human beings of the right to life.” You ask, then, what becomes of the matter of punishments, retribution (qiṣāṣ), execution, and penalty? We reply that this right, at the point where it would entail the divestment of others’ rights, simply does not exist there in the first place. That is, the very reason that grants the human being this right—telling him, “you have the right to remain alive”—stipulates that this right holds only on condition that you do not seek to divest others of their lives. … Suppose some Western scholar, or some Western human-rights advocate, says that you are divesting someone of the right to life; … set aside the disagreement over instances; we are not, here, concerned with disagreement over instances at all. When we say this right is eternal, we mean that no one has granted it and no one can take it away; the human intellect and innate disposition itself possesses this comprehension.

3. The third characteristic is that these rights subsist by virtue of themselves (qāʾim bi-al-dhāt); that is, our task is to discover them, not to enact them. They are independent and do not subsist by virtue of any institution or legislating individual; God has placed this within the existence of the human being. In the words of Martyr Muṭahharī, every natural capacity that the human being possesses is itself the document (sanad) of a natural right; he says there is no need to search for further proof—it suffices that we turn to the book of creation and look upon the world of creation, and we shall apprehend it there. The capacity that the human being possesses is, in itself, the document of a natural right for him. We, in fact, identify and discover natural rights; we do not enact them.
4. There is a further characteristic, which, admittedly, derives its meaning from the first characteristic—namely, being everlasting and eternal—and that is that these rights are not subject to time and place. That is, they do not change with a change in time or place; the right itself does not change, though the manner of its exercise may change. In every era, this exercise may take a different form, yet the right itself undergoes no change across the ages.
5. A further characteristic that has been cited is that of universality (farāgīr būdan).

It may be, of course, that some of these characteristics are merely other expressions of the same underlying rights as one another: stability, immutability, permanence, the absence of restriction to time and place, independence and self-subsistence …