Session Twenty-Eight, The Second Stage: Examining Whether Dignity Constitutes a Source of Rights
Session Twenty-Eight
The Second Stage: Examining Whether Dignity Constitutes a Source of Rights — Perspectives on Natural Rights — The First Perspective: The Denial of Natural Rights — The Second Perspective: The Acceptance of Natural Rights — Natural Rights from the Standpoint of Muslim Scholars — The Difference Between the Western and Islamic Perspectives
February 16, 2025
Summary of the Previous Session
In the second stage, our discussion concerned whether dignity constitutes a source for certain rights belonging to the human being, or not. We noted that it was necessary to offer an explanation concerning rights, their categories, and their source; on this basis, we addressed the definitions of positive law and natural law. We then defined natural rights themselves and enumerated their characteristics.
The Statement of Martyr Muṭahharī
I shall cite a statement from Martyr Muṭahharī that, in a certain sense, encompasses both a definition of natural rights and an account of their characteristics—though not in a comprehensive or complete manner, since he was perhaps not directly engaged in setting out a definition and characteristics as such, but rather addressed this subject in passing. He states:
The human being, by the decree of creation and nature, and by his very innate disposition (fiṭrah), is possessed of a series of rights and freedoms; these rights and freedoms cannot be divested from any individual or people by any person or group, under any designation or name whatsoever; not even the possessor of the right himself can, of his own desire and will, transfer them to another or divest himself of these rights; and all people, whether ruler or ruled, white or black, wealthy or poor, are equal and alike with one another in respect of these rights and freedoms.
From this statement, which in a certain sense touches upon everything discussed in the previous session, it emerges that the more precise expression for natural rights is, in fact, innate or fiṭrī rights (ḥuqūq-i fiṭrī)—rights that arise from human innate disposition, from the very fabric of creation, from divine creation, and that are derived from the capacities that God has placed within the existence of the human being.
On this basis, those characteristics—namely, being necessary, being unchangeable, being eternal, being universal, and being self-subsistent (mustaqill bi-al-dhāt)—are embedded within these rights. We shall explain this further later: that, fundamentally, the entirety of penal law and the law pertaining to the punishment and penalizing of offenders rests upon this very foundation—that is, upon attention to human rights, and upon the fact that transgressors and aggressors are those who transgress against the rights of other human beings. If we insist upon universality, unchangeability, and eternality, this does not conflict with our establishing punishment and penalty for transgressors and those who encroach upon the rights of others, nor with our divesting some of these very rights from them.
Perspectives on Natural Rights
I shall now offer a general and brief survey of the perspectives that exist concerning natural rights. Two general perspectives exist concerning natural rights within the non-Islamic milieu. A parallel and equivalent disagreement exists among Islamic scholars as well. What I state here, I state by way of a broad overview; beneath these two perspectives, more particular disagreements exist among scholars.
Among non-Islamic thinkers in the West, one perspective has recognized natural rights and accepted them; although, among those Western scholars who hold to natural rights, disagreement exists as to their scope and breadth, a considerable number have accepted these rights. These thinkers, in every period, have sought to defend human rights. Opposite this, a number of others deny natural rights altogether.
The First Perspective: The Denial of Natural Rights
The coloring of the denial of natural rights grew stronger and more pronounced during the Age of Enlightenment in Europe; that is, from approximately the Renaissance period onward—the period that came to be known as the Age of Enlightenment—and afterward as well, a considerable body of thinkers emerged who held little belief in natural rights. The group conventionally termed “positivists” (those holding to positivism, verificationism, or empiricism) are, in fact, a group that, with respect to the quality of knowledge and cognition, rely chiefly on logical, mathematical, and empirical instruments, and who hold that the human sciences and the empirical sciences can be discovered only through these means; for them, this constitutes the sole path to knowledge and cognition. The root of this mode of thought—which places excessive reliance upon human reason—lay in the events that had occurred in the past under the Church and during the Middle Ages; this was, in fact, a revolt and an uprising against the episodes that had arisen under the dominion of the Church.
According to this perspective, there is, in general, no law whatsoever beyond positive law; and there will accordingly be no right other than those rights that arise by virtue of positive law. These thinkers regard rights, in general, as arising from a legal system dependent upon a particular society; according to this perspective, when the state and government, as a source and origin of law, enacts regulations, these must be observed in their entirety, and nothing can place a limit upon this positive law. The state can create a right just as it can remove it; and accordingly, the notion of the state’s transgressing against the rights of the people has no meaning, since the state is the source of all rights.
This perspective was especially influential, in the twentieth century, in the formation of fascism and Nazism; these movements chiefly emphasized the supremacy of positive law and promoted the theory of statism and the centrality of the state, holding that there is, fundamentally, no such thing as natural rights, and that natural rights cannot be established—that there exists no objective reality that can be pointed to or demonstrated. In their view, a law that cannot confront the offender and that lacks an enforcement mechanism is not, in fact, a law at all. Natural law, then, is not a law at all, since it cannot possess an enforcement mechanism. Only that law which the state enacts possesses an enforcement mechanism. Human rights, accordingly, are all the offspring of positive law, and we have no such thing as natural rights.
The Second Perspective: The Acceptance of Natural Rights
Opposite this, a broad spectrum of thinkers hold that we do have natural law. Some scholars have enumerated a list of some twenty natural laws, which constitute the source of natural rights. According to this perspective, the fundamental rights of humanity are, in fact, the source of positive laws; the validity of positive laws derives from these rights. In their view, were we not to affirm these rights for human beings, it is unclear what would become of humanity; were everything to be subject to the will of states and lawmakers, without regard for natural rights, this would lead to the destruction of humanity. The Universal Declaration of Human Rights, in the view of its drafters, was derived from these very natural rights; that is, they recognized these natural rights and articulated them in the form of an international instrument, in the shape of a declaration of human rights. The Universal Declaration of Human Rights, of course, is, in itself, according to Martyr Muṭahharī, a good thing, since it chiefly refers to these very natural rights; it pertains to innate rights and to the recognition of natural rights. Certain articles of this Declaration, admittedly, remain open to criticism, discussion, and objection. Among the natural rights, certain items are at times cited as natural rights that remain open to discussion; for the moment, we are speaking of the principle of natural rights and the necessity of recognizing this right; the question of the scope and domain of these rights is a discussion to which we shall turn later. The essence of these two perspectives on natural rights, then, broadly exists among Western scholars.
Question:
Response: No—it is not that its source is the innate disposition (fiṭrah) in that sense; natural rights are, rather, that category of rulings that human innate disposition and human practical reason comprehend—propositions that are consonant with, and in keeping with, innate disposition, and that are grounded in human nature and creation …
Natural Rights from the Standpoint of Muslim Scholars
A parallel to these two perspectives exists among Islamic scholars as well; if we wish to cite a parallel, within the Islamic milieu, to the two perspectives indicated above, we may point to the dispute between the Ashʿarites and the Muʿtazilites. The Ashʿarites deny the inherent goodness and badness of acts (ḥusn wa qubḥ-i dhātī) and hold that we cannot, fundamentally, characterize anything as good or bad prior to the Lawgiver’s enactment and the declaration of His judgment and opinion. Things and matters, in themselves, possess no goodness or badness, and entail no benefit or harm; rather, they come to be characterized by goodness or badness, and to possess benefit or harm, only when the Lawgiver designates them as good or characterizes them with the attribute of badness. On this basis, commitment to natural rights becomes problematic; for, apart from what the Lawgiver establishes as a right or duty for the human being, nothing else exists. If what is termed a “natural right” happens, in some fashion, to fall within the sphere of what the Lawgiver deems good (mā ḥassanahu al-Shāriʿ), we recognize it; whatever does not fall within this sphere of what the Lawgiver deems good is neither reckoned a right nor can be grounded in any law. The denial of the inherent goodness and badness of acts, and the denial of independent rational judgments (mustaqillāt-i ʿaqlīyyah), can thus, in the end, amount to a denial of natural rights—even if this implication has not been explicitly stated as such. As already noted, if we wish to find a parallel, within the Islamic milieu, to that dispute which has existed in the West since ancient times and continues to the present day, we may point to the dispute between these two schools. We even have, today in Europe, a modern school of natural rights that differs from earlier accounts; if these developments are traced, it becomes clear that these schools are not monolithic. We have, for instance, an empirical school of natural rights today; what, indeed, does the empirical school of natural rights mean? This itself remains open to discussion; since the time of Plato, various individuals have offered differing views … Indeed, some have even endeavored to show that the positivists—well known for their hostility toward natural rights—are nonetheless committed to a certain minimal core of natural rights. In a certain sense, then, we might say that perhaps no one exists who denies natural rights outright and altogether.
The same holds true within the Islamic milieu; that is, considerable attention has been given to the foundations of natural rights. Justice, for instance, is one of the fundamental foundations of natural rights. This has been the subject of extensive discussion among Islamic scholars and thinkers. Now, if someone addresses justice, can we say that he is thereby committed to natural rights? This is not necessarily so; an example of this is the position of the Ashʿarites, who hold that the statement “God cannot commit injustice” is incorrect, since it entails placing a limitation upon God. Whatever God does is, in itself, justice—even should we deem it injustice, and even should our reason recognize it as injustice. I am not here engaged in a critique of this perspective; I wish merely to note that many have addressed the foundations of natural rights without necessarily recognizing natural rights as such.
On the other hand, among those who have recognized natural rights, the question of the basis upon which they have grounded this recognition remains open to discussion. I noted that the dispute between the theologians and the Ashʿarites—the denial or affirmation of the inherent goodness and badness of acts, or, in other words, of independent rational judgments, and the rejection of this notion—can serve to illustrate the connection between this discussion and natural rights. That is, should a person hold to the rational apprehension of goodness and badness, or hold that rulings follow upon real benefits and harms, this can, in a certain sense, be conjoined with, or concurrent with, the acceptance of natural rights; it may serve as an indication of the recognition of natural rights, though not necessarily so in every case. Accordingly, the Muʿtazilites, who hold to this view, and the Imāmīyyah, who stand very close to them in this respect, may be counted among those who can hold to these rights. The Ashʿarites, however, necessarily stand at a considerable remove from these rights.
The Difference Between the Western and Islamic Perspectives
The fundamental difference between the two perspectives existing within the Islamic milieu, on the one hand, and the two perspectives indicated within the Western milieu, on the other, is this: Islamic scholars, in any case, regard themselves as obligated to secure the ratification of the Lawgiver for anything grounded in reason or in innate disposition. That is, even independent rational judgments, whose function is to discover a juridical ruling, in fact amount to obtaining confirmation and ratification from the side of the Sharīʿah. Independent rational judgments, from the standpoint of Islamic thinkers, can serve as a source for discovering the Lawgiver’s position. These thinkers maintain, however, that whatever ruling the Lawgiver has enacted was enacted with due regard to the inherent goodness and badness of the act in question, and with consideration of real benefits and harms. That is, things and matters, prior to their being legally enacted, possess, in and of themselves, certain benefits and harms, which the Lawgiver has likewise taken into consideration. Those who deny the inherent goodness and badness of acts, and who deny independent rational judgments and their necessary connection to juridical rulings, hold, by contrast, that no real benefit or harm exists, and that inherent goodness and badness have no meaning; such thinkers naturally seek to discover the Lawgiver’s ratification through some other means. In any case, both groups seek to discover and derive the Lawgiver’s position (now, we hold that we can discover the Lawgiver’s ratification by way of reason; they hold that this is not possible by way of reason)—yet, notwithstanding this disagreement, this overall perspective differs from the perspectives prevalent in the West. Western thinkers, in general, hold that reason itself, innate disposition itself, and creation itself show us this path, such that there remains no need whatsoever for the ratification and ratifying approval of a Lawgiver.
In any case, what is certain is that human innate disposition, creation, and nature, by virtue of the divine will, require that certain rights, privileges, and freedoms be affirmed for the human being.
The Discussion of the Coming Session
This has been a brief survey of these perspectives; we must also set out the proof for natural rights, specify its conditions, and indicate its scope. I hope that we shall be able to complete this discussion before the blessed month of Ramadan.