The Origin of Rights

All praise is due to Allah, Lord of all the worlds. And may the blessings of Allah be upon our master, Muhammad, and his pure family, especially the Imam of our time. May Allah hasten his reappearance and place us among his helpers and supporters.

Allah the All-wise has said in His Holy book:

بَلْ جَاءَهُمْ بِالْحَقِّ وَ أَكْثَرُهُمْ لِلْحَقِّ كَارِهُونَ  وَ لَوِ اتَّبَعَ الْحَقُّ أَهْوَاءَهُمْ لَفَسَدَتِ السَّمَاوَاتُ وَ الْأَرْضُ وَ مَنْ فِيهِنَّ بَلْ أَتَيْنَاهُمْ بِذِكْرِهِمْ فَهُمْ عَنْ ذِكْرِهِمْ مُعْرِضُونَ

Rather he has brought them the truth, and most of them are averse to the truth. Had the truth followed their desires, the heavens and the earth would have surely fallen apart [along] with those who are in them … (23:71,72)

Introduction

The topic of our discussion is the origin of rights. Before delving properly into the topic, it is first necessary to expand upon the meaning and usages of the word haqq[1].

Haqq, justice, and their synonyms have a special spiritual sanctity and beauty. That is why they are among the most valued words within all human societies. This is to the extent that perhaps not even a single human can be found who describes themself as a supporter of falsehood and injustice and an opponent of haqq and justice. Even the most oppressive individuals and governments – in order to fool the people – raise the banner of justice and attempt to drape the ugliness and lowliness of their oppressive and tyrannical acts in the beautiful clothing of haqq and justice. The close relation of these two words becomes quite clear once justice is defined thusly: giving every haqq to whomsoever it belongs[2].

Seeking haqq or desiring justice is said to be the mother of all social virtues. The fact that haqq and justice are good is something the intellect instinctually attests to[3]; in the same manner, the intellect instinctually attests to falsehood and injustice being bad. Just as the inclination towards haqq and justice is of the lofty fitri[4] attributes of humans, so too is the distaste for falsehood and injustice.

These words also have a special value in Islamic culture. Their widespread usage in the Holy Qur’an and the traditions of the Holy Prophet (saw) and of his Ahl al-Bayt (as) clearly shows the extreme importance Islam gives to these concepts.

Here, it is important to note that the word haqq has several meanings, many of which are not related to the topic of our discussion. For example, haqq has been used in the meaning of “an immutable existence”, “a statement that is in accordance with reality”, and “a promise whose occurrence is definite”.

Haqq when it is used to refer to Allah is not relevant to our topic. Even if we say desiring haqq and seeking justice are fitri attributes of humans just like awareness of God and worship of God, they are still two different meanings of haqq. One cannot be derived from the other, and those who have attempted to do so have confused the ethical meaning of haqq[5] with it’s philosophical meaning[6].

The next point is that the usages of haqq in the discipline of law is more limited than its usages in ethics and religion. For example, in discussions of ethics, there is talk of God’s haqq on humans and even humans’ haqq on God; whereas, in law, haqq is limited to relations between humans. Furthermore, the word haqq is used in at least two meanings in the field of law. One meaning is the specific rights and benefits given to an individual or group which others must respect and cannot violate. The other meaning is much broader and encompasses the entire collective of law: rights of individuals or groups, responsibilities in accordance to those rights, and conditions required for certain laws to come into affect (such as the conditions for the validity of a contract or agreement). Haqq, in this second meaning, is practically the same as “social laws”.

However, the second meaning, in all it entails, can in reality be linked back to the first meaning. All social laws in one way or another have a relation to the rights of a person or the rights of society. Further, if a law comes in the form of specifying a right for one party, it necessitates a specific responsibility for the other party. On the other hand, if it comes in the language of specifying responsibilities for some party, it necessitates giving a right to the other party. This holds true even in the case of a law that specifies a responsibility for everyone; in such a case, the law establishes a responsibility that every individual has in relation to others, therefore also establishing a right that each person has on the other. In reality, such general laws are resolved into individual laws, each of which establish a specific right or responsibility.

In brief, haqq (in this meaning: rights) and responsibilities necessitate each other; the establishment of one necessitates the establishment of the other.

In the same vein, laws that define conditions such as the stipulations and divisions of contracts do so on the basis of the rights and responsibilities that come about when a contract is carried out in accordance with those conditions.[7]

A Closer Look at the Issue

As previously explained, the desire for haqq is one of the lofty and divine values, to the extent that it is known to be the mother of all social values. However, the concept of haqq, on its own and without looking at additional factors, doesn’t indicate any specific thing or action, nor can it precisely point out its instances. The concept of justice is similar in its lack of automatic specificity; the instances of justice are only specified and known when a right has previously been specified, and, by giving that right to its owner, an instance of justice is created.

In other words, the concepts of haqq and justice aren’t mahuwwi[8]. They cannot be acquired through conceptualization of their instances; rather, they require intellectual reasoning and comparison. It also isn’t the case that an action is always an instance of haqq and justice and that another is always an instance of nahaqq[9] and injustice. Even hitting, injuring, and killing – dependent on the circumstance – can be instances of haqq and justice; such as if they occur under the auspices of qisaas[10] or other legal consequences. Therefore, classifying these types of actions into haqq or nahaqq requires discerning whether they were carried out with a legal justification or if they were done without provocation. Until the context is considered and compared, these external actions cannot be classified as haqq and justice or nahaqq and injustice.

This lack of internal specificity of the concepts of haqq and justice, due to being one of the most central issues within the Philosophy of Law, leads to many fundamental questions: What is the origin of rights? How and by which criterion are the rights and responsibilities of individuals specified? What are the concepts of haqq and nahaqq, of justice and injustice abstracted from? Which considerations and comparisons are required so that these concepts can be abstracted?

It could be argued that the instances of haqq and justice can be understood by a pure intellect and an untarnished conscience. For example, every intelligent person knows that snatching a piece of bread from an orphaned, hungry child’s hands is injustice; on the other hand, returning that piece of bread would be an example of justice. As a general principle, stealing what belongs to another or attacking someone’s life and family would be injustice and nahaqq. On the other hand, utilizing one’s own personal wealth and preserving one’s life and the lives of one’s family is haqq and justice.

However, this manner of approaching the issue arises from oversimplification and a lack of proper depth in intellectual and philosophical thought. Even a cursory awareness of issues dealing with rights is enough for one to be able to bring up several examples where specifying haqq and nahaqq is not so simple. There are cases in which even the most intelligent judges remain confused in which direction to judge; just as there are many situations where competent lawmakers cannot give a sure opinion on a general law or precisely point out what is haqq and what is nahaqq.

So, even if there are instances of haqq and justice that are clear and certain for the general populace, without a doubt, there are also many unclear and doubtful cases in which separating haqq from nahaqq is not in everyone’s ability and needs precise frameworks and intricate formulae. That is the center of our discussion: the existence of such frameworks and formulae and how to discover them.

A Foundational Difference

Analyzing the topic in depth requires answering another fundamental question: Do haqq and justice have an objective reality that needs to be discovered and understood? Or is it the case that these concepts are the result of agreements and conventions, that they are contractual concepts, having no objective reality or rational basis? In the case that these concepts are built upon conventions, if such convention was subconsciously accepted and universal, it would be said that a person’s pure intellect and conscious has understood these concepts. However, in the case that such convention was not universal, there would be a need for positive laws[11], based upon which rights and responsibilities would be specified.

For a long time, sophists have been of the view that haqq and justice and in fact all ethical and legal concepts are subordinate to the opinions of people. In fact, this view might be the clearest application of their precept that the criterion of all things is mankind. From what can be gathered from writings attributed to Plato, an important portion of Socrates’s debates against the sophists centered on this issue of ethical and legal concepts.

However, due to the popularity of Plato’s and Aristotle’s philosophies, this perspective lost its prevalence. For several centuries, there was no well-known defender of this view – until after the Renaissance. In particular, Hume, an English sceptic philosopher, presented this view in a novel manner and caused it to reenter the arena of philosophical thought. It steadily gained more supporters to the extent that the Historical School of Jurisprudence[12] and the concept of legal positivism[13], which have notable popularity within legal gatherings around the world, more or less trace their origins to that spring of thought.

The main problem with this view is that if rights have no rational basis, then contradictory laws should be equivalent with respect to what is good and beneficial for people, regardless of whether people prefer one law or one contrary to it. However, in addition to the intellectual fallacy within this argument, experience shows that many positive laws result in harm for society. After a period of time, lawmakers themselves realize their mistakes and move forward to correct them. This is the best evidence that, regardless of the desires of the people and the opinions of lawmakers, true benefits have an objective reality which may be contrary to the positive laws favored at a certain time.

This is the main criticism to their claim; however, this concise argument is not sufficient to answer all doubts raised in this field. It is necessary at the very least to analyze and refute the most important of these doubts.

The Reason for Their False View

It might be strange for us Muslims who have been raised within the culture of Islam to see that a group of great legal thinkers deny that haqq and justice have a reality unto themselves and rather are subordinate to the views and leanings of the people – especially given that this view is represented in legal gatherings around the world and now has a great number of followers.

It should be noted that this school of thought, like other false views in the various branches of philosophy and knowledge, was not simply improvised, nor did it grow through chance. Unseen hands encouraged certain views in psychology, sociology, law, and economics to advance their own political and colonial agendas; however, these political motivations on their own do not explain the popularity of such ideas. Rather, doubts brought up in relation to these ideas were not adequately answered, and these doubts, when combined with one another, caused tendencies towards false views, doctrines, and schools of thought. It should not be forgotten that most of these false ideas became popular in one particular area of the world when philosophy and metaphysics was on a downward trend and the central position of rational reasoning as the ultimate judge of reality was relinquished to the superficial understanding of the five senses.

Empiricism, positivism, and other materialistic philosophies introduced serious doubts about the objectivity of reality, creating fertile grounds for the acceptance of such false views in the field legal and ethical philosophy.

It is clear that an in-depth analysis and critique of these doubts with relevant quotations is not suitable for a paper of this brevity. Therefore, below is a collection of only the most important of these doubts and their answers, followed by an explanation of the correct view on the origin of rights.

Analysis of Some Doubts

1. Various different legal structures have existed throughout history. Each of these structures has been more or less effective in reaching its goal: establishing order and stability in society and, to a degree, providing for the wants of the people. Every society prefers its own legal system. If the inclinations of the people were to change, the laws ruling over society would change. This change can be witnessed in various countries of the world; even religious and Divine legal systems have had changes in the form of abrogation of divine laws. This constant evolution of laws supports the idea that laws are not grounded in an objective reality, for if laws were to have an unchanging, rational basis, these differences and changes would not occur.

In response, the following can be said:

Firstly: A legal system should not be perceived as a completely independent and separate system with a limited goal of establishing order and, only to a degree, providing for the wants of the people. Rather, a legal system should be counted as part of an overarching and encompassing value system and used as a tool for achieving the ultimate goal of said value system.

In other words, social relations form only a portion of human life. The harmony of society, achieved through the successful implementation of a comprehensive legal system, is a tool for the individuals of society to attain final perfection[14] and everlasting felicity. From this perspective, laws need to be formed in full accordance with the goal of the holistic system of values and morals. At the very least, they should not contradict that goal. It’s clear, then, that a society’s legal system should not be divorced from it’s religious and ethical values; however, manmade legal systems have ignored this reality, causing the almost complete separation of law from religion and ethics in the modern age.

Secondly: The claim that these various legal systems are equal in reaching their immediate goal of creating order in society is false. As previously stated, it is not the case that changes in law only come about due to a change in the inclinations of people; rather, lawmakers often themselves realize that they have passed a harmful law and so make changes to the law in an attempt to correct their mistake.

Thirdly: Laws having a rational basis grounded in reality does not mean that all laws must have a stable and permanent foundation; it’s possible that passage of time and change in circumstances – and therefore, change in the basis of laws – causes a law to change. Abrogation in divine religions – in the few cases that it takes place – is from this perspective. In any case, the issue of the existence of a rational basis for laws shouldn’t be confused with the issue of laws being constant.

2. A legal system only comes into existence when the people of a society, or at least the active groups and classes of people, accept this system. Before such acceptance occurs within society, nothing exists but concepts in the mind and lines on papers. Therefore, laws are dependent on the views and acceptance of the people, even if the system of laws was initially forced upon society by a person or group of people. In any case, it is not possible to ignore the wishes and opinions of individuals and groups and simply say that laws are subordinate to self-contained realities independent of the opinions and inclinations of people.

In response, the following can be said:

There is no doubt that the implementation of a legal system is dependent on its general acceptance. If all or most of the people or active and compelling groups in society oppose a legal system and rebel against it, it can never be implemented. However, the question is this: irrespective of the acceptance or opposition of the people, can a legal system be called just or unjust? Can it be said that people have accepted a just or unjust system? Or must it be said that any system that the people accept is just, and justice and oppression have no reality other than the acceptance or opposition of the people? Those who view rights and justice to be independent of the opinions and acceptance of people believe that a legal system can be just even if the people do not accept it. And it follows that a system in opposition to that just legal system would be oppressive even if people accept it. The stated doubt cannot contradict or refute this reality.

3. Laws are essentially imperative[15] and are formed through commands and prohibitions. Even if they come in the form of descriptive statements, such as in the case of laws that specify benefits, conditions, or statuses, a proper examination shows that they are actually imperative. It isn’t possible to say whether they are true or false, since there isn’t a reality that laws can be said to be portraying. An exception would be if the truth and falsehood of an imperative sentence is taken to show the desire of the commanding person; however, in such a case one would be speaking figuratively or imprecisely. In conclusion, imperative statements do not portray a reality other than the desires of the one commanding.

In response, the following can be said:

We do not reject that the wording of laws are imperative and even that those descriptive statements can be returned to imperative statements. On the other hand, however, we also accept that it’s possible to return imperative statements to expositional and descriptive ones. Regardless of these lexical and grammatical discussions, it can be said without a doubt that a particular law is in accordance with the good of society, and if it is acted upon, society gains real benefits. Similarly, other laws can be seen to be in opposition to the good of society. This is what is meant by laws having accordance with or being in opposition to an objective reality. Denying this relation is baseless argumentation and denial of that which is self-evident.

From this, it becomes clear that commands and prohibitions are not the basis of laws; rather, they are the tools which are used to express laws. They are part of a particular methodology of expression selected to have a greater emphasis on acting according to its edicts. The usage of this particular methodology is meant to evoke a psychological effect, not indicate that the laws themselves are essentially imperative.

4. Every law includes contractual concepts. Legal subject matters form concepts such as ownership and marriage, which have no reality other than convention. Therefore, because all laws contain such concepts, a reality cannot be pictured that when the law is in accordance with that reality, it becomes “right” and otherwise becomes “wrong”.

In response, the following can be said:

Even if these concepts are contractual[16] and defined by convention and do not reflect any specified real entity in the external world, it is not the case that they are random and contracted based simply on one’s desires or imagination. Rather, these concepts are like mathematical and algebraic symbols and variables that relate the reciprocal effects of different factors. They are conceptualized as signs for specific actions and their effects, and it is these actions and their correlating effects that have an external reality. For example, the concept of marriage – specified by certain boundaries and conditions – is a symbol denoting a specific quality by which the totality of interactions between two spouses takes place within their familial lives.

According to this, even though legal concepts do not directly relate to an external reality, they are also not completely separate from reality. The relationship between these concepts and reality can be summarized thusly: the various states of real human relations form the foundation of these legal concepts. In other words, legal matters and values are like two sides of a coin, with one side being “contractual” and the other side being “reality”.

Legal concepts are constructed through borrowing words that represent mahuwwi and philosophical concepts[17] to facilitate ease of understanding[18]. This is the case in all rational conventions. From one perspective, it is similar to the motivation for using letters and symbols for mathematical formulae. Therefore, the contractual form of laws should not trick us into overlooking the reality that is hidden within them. Just as when the realities of physics, chemistry, or mathematics are told through algebraic symbols, it should not be thought that they are unrelated to reality simply because those symbols are agreed upon by convention and cannot themselves be thought of in terms of correct and incorrect. The reality expressed by these symbols are subject to objective notions of right and wrong.

Furthermore, in marriage and all other conventions that arise from agreements and contracts, the decision of both parties to act in accordance with certain guidelines and their expression of this agreement (which are both actions that are part of a social formula of mutual benefit) are events that take place in reality. Even the convention of speaking or writing a specific word or carrying out a specific external action when a contract is signed (such as shaking hands) links back to reality in the sense that the formulation of that convention was for a real benefit and based on a specific reality.

In conclusion, the contractual nature of these laws does not imply that there are no real, objective benefits that form the basis of these laws.

5. Just as laws substantiate rights for someone, they also directly or indirectly substantiate responsibilities for another party. From this perspective, all laws can be said to include the concept of “must”, “obligation”, or other similar concepts. These concepts are concepts representing values and are completely separate from concepts of reality. Concepts representing reality tell of what externally exists and have a descriptive dimension; whereas, concepts of values have a dimension of command and obligation.

Based on these two preliminaries, it’s clear that laws don’t portray reality. Therefore, laws can’t be determined from concepts and principles that represent reality. For example, from the principle that “Mankind is created free and has freewill”, it can’t be concluded that “Mankind must be free in their lives, and every person has the right to freedom.” The inability to make this conclusion stems from the general principle in deductive reasoning where there shouldn’t be any concept in the conclusion that isn’t found in its preliminaries. Principles describing reality don’t have concepts such as “must” attached to them, but commands thar are found in laws do include such concepts.

In conclusion, laws don’t describe reality themselves nor can they be extracted and deduced from principles describing reality. Therefore, legal laws can’t be traced back to having roots in reality.

In order to answer this doubt, first, two points must be clarified:

1. The objective reality that laws rely on is not necessarily an object that exists externally. Rather, the attributes and properties that the intellect derives from objects, persons, and their relations also have an objective reality. Among these objective realities are the relations between voluntary actions and their correlating results – inclusive of material, worldly, social, psychological, spiritual, and metaphysical results. These relations have an objective reality even if they can’t be called externally existing objects. In philosophical terminology, philosophical and metaphysical realities that are explained through specific philosophical concepts have an objective reality. Therefore, the statement, “The observance of laws and boundaries is necessary for there to be order in society”, has an objective reality; because, the observance of laws and boundaries is the cause for order to come into existence. The existence of a cause is necessary for its correlating effect to come into existence; this necessity is called “comparative necessity”[19] in philosophy. The necessity mentioned in the previous statement is accounted among objective realities, because, social order truly can’t be attained without the observance of laws. This statement has just as much reality as a statement dealing with matters of nature or mathematics; such as a tree need for water in order to grow or the necessity of squaring the measure of a square’s side to calculate its area.

2. Statements in the study of logic also have portions that are not represented by words that indicate the type of relation between the subject and predicate – which in the terminology of logic is called the maaddah[20] of the statement. This unsaid maaddah can be told in the form of the jihat[21] of the statement or can actually be part of the statement’s predicate. For example, “The existence of a living being on other planets is possible.” In this statement, the concept “possible” tells of the relation between “a living being” and “existing on other planets” and came in the form of a separate concept as the predicate of the statement.

Based on these two points, it’s clear that, in reality, laws exposit a causal relationship between various voluntary actions and the realization of the goals of said laws. The validity of these laws is dependent on whether the totality of that causal relationship – with all of its parts, conditions, and obstacles – is discovered and precisely known. However, the discovery of such an encompassing relationship is dependent on so many factors and variables and conflicting benefits and harms that factoring all of them together for all situations is extremely difficult. This fact is what causes there to be a variety of differing opinions on what should be law. This difficulty is even more clear when attention is paid to the larger picture of placing the whole legal system within a larger value system with respect to those overall ethical goals. Thus, the limited intellect of humans doesn’t have the capability to derive a comprehensive legal system with the goal of reaching final perfection and everlasting felicity. From here, the need for revelation and divine laws is made clear.

With regards to the critique of extracting a “must” from an “is”, the second point mentioned above addresses this issue. Statements of reality that describe a causal relationship also include a “comparative necessity” that shapes the maaddah of the statement. Therefore, this concept of “comparative necessity” is within the preliminary statements and later shows itself as a “must” or “obligation” in the conclusion[22]. Those who concluded that deriving laws and statements of values from descriptive statements is impossible didn’t pay attention to this very precise matter in the field of logic. An additional point that needs to be made is that an effect becomes necessary when all the parts of the total cause exist; whereas, if the effect exists it is necessary every single part of the complete cause to exist. Therefore, if in the preliminary of a proof, only a portion of the total cause exists, the necessity of the effect can’t be proven. Scientific studies and research that are put forth for the extraction of legal laws and ethics are based only on partial causes. However, an in-depth examination of such studies is beyond the scope of this paper.

What are True Benefits?

From the topics that were briefly touched upon, it’s been concluded that laws can be examined by the standard of whether or not they are in accordance with true benefits and harms. In other words, laws must be based on haqq and justice, not the desires and tastes of an individual or group. Had the Truth followed their desires, the heavens and the earth would have surely fallen apart [along] with those who are in them.[23]

It has also been made clear that legal concepts and concepts representing values are like symbols used to indicate the totality of the effects and consequences of voluntary actions and social human interactions. They also indicate in which direction to move to realize the goal of the legal system and the final goal of the value system. The true responsibility of the lawmaker is to examine the various complicated relations between mankind’s actions with regards to the goals of the legal system and with regards to the goals of ethics and religion. In whichever conditions any action is found to be effective in reaching these goals, said action should be put into terms of legal concepts and made obligatory. On the other hand, in whichever conditions any action is found to be contrary to these goals, said action should be forbidden.

All that being said, the question still remains: What is meant by true benefits and harms? Do they trace back to material benefits and harms, likes and dislikes of the people? Or in a more foundational manner, is it not the case that goals of the legal system is a matter of values that is specified by the desires and inclinations of the people? And therefore, social actions are attributed with being desirable and legitimate because of the desirableness of that goal and being a tool to reach that goal?

If the answer to these questions is affirmative, then there is no choice but to accept that rights, the totality of the value system, and concepts such as haqq and justice have no objective reality separate from the wants and desires of the people.

A complete answer to these questions requires delving into discussions on the essence of values, the relation between values and reality, specifying the goal of the legal system, the relation between profit and harm of the individual and society, the difference between profit (منفعت) and true benefit (مصلحت), and other such topics. Each of said topics needs an in-depth examination that is not suitable for one paper; therefore, we are restricted to simply indicating these various matters to the extent required when appropriate as previously done in this paper.

The first point, which must be made, is that there is a difference between a voluntary action being of value and goals and destinations being of value. Actions being of value, in the disciplines of ethics and law, means that they are indirectly desirable by nature of being an appropriate tool or method. However, goals being of value means that they are essentially and directly desirable. Therefore, the necessity of carrying out actions that are good and have true benefit is a comparative necessity; those actions are a preliminary and cause for reaching a desired conclusion. On the other hand, the necessity that is attributed to the goal itself, and especially to the ultimate goal of felicity and true perfection, is in actuality describing their being essentially desirous of felicity and perfection of every human being. The goal’s essential necessity creates the motivation and stimulus for carrying out any voluntary action, and without which, no voluntary action would take place.

The next point is that the concept of felicity is derived from the inclination of humans towards the greatest, longest-lasting, and best pleasures. Even though there is no natural correlation between this inclination towards pleasure and reaching perfection, this inclination being placed within the nature of humans by divine wisdom dictates that it be attained through the securing of humans’ needs. Securing of one’s needs is necessary for the continuation of an individual’s life and for obtaining the tools for perfection. In actuality, reaching perfection is among human’s psychological needs. Therefore, fitri and instinctual inclinations are in reality psychological inclinations for the safeguarding and perfection of one’s life. From this perspective, attaining final perfection is linked to the most wholistic of pleasures (true felicity). There they will have whatever they wish.[24] … and therein will be whatever the souls desire and eyes delight in.[25] As for the felicitous, they will be in paradise. They will remain in it …[26] Based on these verses, the instances of true felicity and actual perfection are one even if there is no correlation between their concepts.

The third point is that there are many reasons for there being differences on what an instance of true felicity and perfection is and on the path for reaching said instance. For example, one could be heedless of the hereafter or differences in aptitudes and intellectual growth could cause different conclusions. However, an examination of these reasons isn’t suitable for this paper. In any case, the differences that come about because of peoples’ attachments to certain pleasures and their preferences of some pleasures over others is not a proof for the lack of a true reality behind perfection or some desires being truly better than others. In fact, perfection is a philosophical concept that is extracted from the intensity of existence. Reaching that perfection automatically causes the self to attain pleasure and satisfaction. All actions that are in the chain of causes for reaching this perfection have true benefit and true value. If these actions take place within social relations and occur in the framework of society, they also have a true social benefit and are a cause for the felicity of society, the short-term goal of the legal system.

In conclusion, just as true perfection and felicity have an objective reality and are independent of the desires of individuals and groups, true benefits and true harms are the same, as they are concepts derived from certain actions being necessary for attaining the ultimate goal.

True Benefits of the Individual and Society

Humans have a variety of needs. The complete satisfaction of all of these needs is not possible in this material world full of conflicts and contradictions. In many cases, some of these needs have to be sacrificed for others. It is here that “choice” comes into play. The intellect dictates that lower needs be sacrificed for higher needs. However, not all humans strictly follow that prioritization. They prefer the satisfaction of certain lower needs either because of a weakness in understanding and not being able to specify which needs are lower and which are higher or because of habits and attachment to those lower pleasures. It is here that it can be said one has acted against what is in one’s true benefit.

Therefore, actions that have true benefit are those that satisfy more important needs and are in the path of achieving greater and higher perfections. In other words, choice was employed according to what the intellect correctly decreed.

A similar issue arises in the case of conflict between the true benefits of the individual and that of society. Social life necessitates that some of an individual’s benefits be sacrificed for the benefits of society; every individual in their social lives must look over some of their individual benefits so that society’s overall benefits can be attained.

The conflict between an individual’s benefits and society’s can be pictured in two manners:

1. The sacrificing of an individual’s benefits for society’s occurs so that the wishes of all the individuals within the society are catered to. That same individual that sacrificed some of his benefits receives equal or greater benefit from the benefit that society as a whole gains. In this case, the individual’s intellect orders him to sacrifice; the individual’s own benefits decree such sacrificing.

2. Overlooking one’s individual benefits doesn’t cause an equal or greater benefit for that individual. Either there is no benefit for that individual at all or the benefit that the individual receives from society’s overall gain is less than what was sacrificed. In this case, does the intellect decree for one to overlook individual benefits so that others may attain their own benefits?

From a materialistic perspective, one can’t answer this question in the affirmative. It is this perspective that promotes a mindset of profit-seeking such that every individual spends their utmost effort in taking benefit from society – even if it causes widespread damage to others. Those who hold this perspective would be prepared to overlook their own benefits only when sacrificing their benefits doesn’t cause greater harm to themselves, and they are able to extract greater benefits from society than that which they sacrificed.

In fact, someone with a truly materialistic perspective who speaks of society’s benefits and defends the benefits and rights of others is being disingenuous and hypocritical. Their true goal is only to attain their own individual benefits. This mindset is the driving force in most of the current societies around the world. The claims of tyrants and their followers in defense of haqq, justice, and human rights is nothing but deception.

However, there are some legal experts who are of the opinion that society has primacy over the individual, and therefore, individuals gain rights only through being part of society. According to this opinion, when an individual’s benefit conflicts with society’s, no place remains for the rights of the individual. Even ignoring the inherent philosophical weakness in the philosophical foundations of this argument – the rejection of an individual’s existence, and ignoring the contradiction between various defendants of this opinion and their actions – which is witnessed in many socialist governments around the world, an issue still remains. Why would an individual be intellectually satisfied to sacrifice their own benefits without desiring equal or greater benefits from society in return?

It is true that individuals can be encouraged towards sacrificing their own benefits by provoking their emotions and sentiments. Similarly, the promotion of nationalism, ethnic pride, and similar motivations can even bring individuals onto the battlefield. However, what is being discussed isn’t finding a method to fool people; rather, it is to solve an intellectual issue.

From a divine perspective, an affirmative and clear answer can be given:

Firstly: What divine wisdom dictates – especially when considering that blessings of this world have been placed in the hands of humans in order for them to move towards perfection – is that by whatever extent an individual increases their inclination towards their own personal perfection, those blessings should increasingly be used in a manner that God’s goal for the creation of all individuals is achieved.

Secondly: Even though sacrificing causes one to lose some material benefits, in exchange, one attains perfections of the soul and spirituality – which is the true goal behind the creation of the world and all of mankind.

Thirdly: Every loss that is borne in this world for God’s satisfaction and attaining His goal in the creation of humans is compensated with greater and more complete rewards in the Hereafter.

According to the previous points, the reason for sacrificing one’s individual benefits when it conflicts with society’s benefits is that divine wisdom and the goal of the world’s creation decree for one to do so. In order for an individual to be satisfied to sacrifice their benefits in such a case, they should understand two points. One, this sacrificing causes them to attain personal perfection – which further causes them to have a content mind and attain spiritual pleasures. And two, they attain everlasting felicity and reach closeness to God and the never-ending blessings of paradise – blessings which from the perspective of both quantity and quality are incapable of being compared with the material blessings of this world.

Through this explanation, the link between the divine legal system and the ethical system, and also with the divine worldview, has been made clear.

The Relation between Haqq and True Benefits

The meanings of true benefits and true harms and the necessity for laws to be in accordance with the benefits of the individual and society have been explained in the previous discussions. The last question that remains is: what is the relation between haqq and true benefits?

In the beginning of the paper, it was indicated that the word “haqq” has various meanings to which, in order to avoid mistakes, precise attention must be paid.

One of the meanings of haqq that has relevance to our discussion is an action having a proper goal and purpose – so that action is a cause for attaining further perfection. The antonym of this meaning of haqq, baatil, means any action that doesn’t have such a goal – meaningless and purposeless actions.

According to this terminology, actions that have benefits behind them would be haqq, and those that don’t would be baatil. Therefore, a law that necessitates the former would be haqq by virtue of the action it necessitates, and a law that necessitates the latter would be baatil. In this manner, haqq and benefits verify and are in conformity with each other. Each of these two concepts that the intellect conceives are secondary philosophical concepts[27] extracted from the relation between an action and its correlating result.

However, haqq in legal terminology is a legal distinction that is set for an individual or society that creates a two-sided relationship: one who has a right and one who has a responsibility. Therefore, this right necessitates that there be a responsibility on the other party.

If the concept of rights is taken in a more expansive meaning than that bound to social relations, it would include ethical rights as well – meaning the relation between the Creator and the creation. In any case, whatever “rights” refers to, it must have some relation with voluntary actions. If one were to look only at an existence’s creational attribute of taking benefit from another existence, without the former having done any voluntary action, nor this taking benefit be linked to any other existence’s voluntary action, concepts such as rights and ownership would not be applicable. For example, if one were to examine the relation between a tree, sunlight, and rainwater and not look at the positive or negative human impact on that relation, the convention and contracting for there to be a right for the tree with regards to light and water would be meaningless. On the other hand, once the dimension of a human relation is added, it can be said that the tree has a right to use sunlight and rainwater; it would mean that humans shouldn’t become a barrier for light and water to reach that tree. In a higher-level example, when both parties (the one with the right and the one with the responsibility) have free-will, the contractual conception of rights can be done more clearly. For example, every human has the right to use sunlight; therefore, no person should be a barrier for the usage of this God-given blessing. In this case, both parties are human, and both have a right to the usage of sunlight.

Therefore, the term “rights”, in its legal and ethical meaning, is used in cases where there is focus on the possibility of voluntary interference. This is because the subject of both law and ethics is voluntary actions and that which relates to those actions. Anything that is not related to voluntary actions is totally irrelevant to the disciplines of law and ethics.

Here, we come to the fundamental question: in cases where there is a place for the convention of rights and responsibilities, what is the source of this convention? According to what basis are rights and responsibilities specified?

In order to answer this question, several possibilities can be pictured. The following are the most important of those possibilities:

1. Nature defines rights and responsibilities. It is the nature of a tree that gives it the right to use sunlight, water, and air. It is the nature of an animal that gives it the right to use plants. It is the nature of humans that gives them the right to use plants and animals. Finally, it is the nature of society that specifies the rights and responsibilities of individuals.

However, overlooking the fact that nature doesn’t have its own separate and distinct existence and especially that society even having a specific nature of its own remains unproven, two other criticisms can be mentioned against this view.

Firstly, as was previously indicated, the contractual conception of rights for something or someone is only valid in cases where a responsibility is specified for one with free-will. A contractual agreement that designates a tree’s right to use light, water, and air is only valid when it causes humans to be responsible for catering to this right and for not blocking the tree’s benefits. That same aspect that gives a right to one party, in reality, also assigns to another party – which has free-will – the responsibility for catering to that right. With that in mind, what supremacy and authority does the nature of a tree have over humans such that it can specify responsibilities for humans? And, what necessity is there for humans to abide by such a command originating from the nature of a tree?

Secondly, when something becomes a point of conflict between two existences, each of them wanting to use a specific item, how are the rights and responsibilities of each party determined? For example, if the life, health, or growth of humans is dependent on drinking the very same water that an animal also desires to drink, which right is prioritized, the human’s or the animal’s? What causes one to be distinguished from the other and preferred?

It may sometimes be said in response to this second criticism that the nature of the whole world, wherefrom originated the nature of its parts – humans, animals, and other existences, gives a greater right to whichever existence is stronger. Therefore, the rights of humans supersede the rights of animals.

However, as previously mentioned, there remains no proof for the whole world to have a specific, separate nature. Also, this answer in reality means that power and force are the basis of rights – at the very least, in cases of conflicting rights. Following from that point, whenever there is a conflict between humans, more rights must be given to the stronger party. But, that is the law of the jungle, not human laws and ethics!

2. Rights and responsibilities are defined based on their purpose and end-goal. A tree is moving towards a specific goal: its final stage of its growth and perfection. Therefore, it must use the tools necessary to achieve this movement. Similarly, the goal of mankind’s movement towards perfection defines rights for humans. When there is a conflict between humans, rights and responsibilities should be defined so that the greatest number of individuals in a society can reach their own personal perfections.

However, this is by no means a satisfactory answer. Every individual’s ultimate goal being what permits their usage of items and benefits is not a logical reason for it to be necessary for that very same individual to overlook some of their benefits and desires. Also, this reasoning can’t create a responsibility for one individual with regards to another, as each individual has their own specific movement and strives to reach the goal of that movement – not the goal of another individual’s movement towards perfection. So why would any individual put limits on what they can use and benefit from?

3. Rights of every individual are defined by their needs. In a society, every individual has the right to take advantage and benefit from that society to the extent of their needs.

This view is similar to the previous one and has the same criticisms stated above. On top of that, the concept of “needs” is not absolute; rather, it has levels and degrees. Because of its inherent vagueness, a definite boundary can’t be specified for what would be considered a “need” and what wouldn’t be.

4. As rights and responsibilities are conjoint concepts, the rights of every person are defined based on the responsibilities that they accept. Every person has the right to take advantage of society’s benefits to the extent that they profit society. Justice is this balance and equilibrium between individuals’ rights and responsibilities with regards to each other.

This explanation is acceptable with regards to rights that come about from contracts one has signed or rights that originate from a person voluntarily choosing to perform certain tasks. However, this explanation doesn’t work with regards to rights and responsibilities that don’t originate from one’s voluntary choices and agreements, such as a newborn’s rights on their parents and a parents’ responsibility with respect to their child, or the rights of the injured and disabled on society.

5. Every person’s rights and responsibilities are defined based on the accounting of true benefits of the individual and society. This perspective holds more weight than those previously mentioned and more clearly demonstrates the relationship between rights and responsibilities. Although, two points should be paid attention to. The first is that human’s true benefits are not limited to material and worldly benefits; therefore, when this accounting is done, spiritual and everlasting benefits should also be considered. The second is that assigning values to various benefits and specifying priorities among them is an extremely difficult and complex endeavor. In reality, this is something that’s outside the realm of an ordinary human’s capabilities. Here, human’s need for revelation is abundantly clear. And We sent down with them the Book and the Balance, so that mankind may maintain justice.[28]

However, there still remains one precise point which none of these views answer or clarify: by which right do humans use or interfere with that which is beyond themselves – be it nonliving objects, plants, animals, or other humans? Other than contracts and agreements based on freewill, on which basis do humans have responsibilities to other existences? Even more fundamentally, what right do humans have to make use of their own body parts?

Based on a materialistic and secular worldview, this question doesn’t have a logical or clear answer; but, according to a divine worldview, it can be answered in the following fashion:

When humans find a need to construct concepts such as rights and responsibilities in order to give their actions and movements a particular direction, they first must take into account the relations between existences in reality and build those constructed concepts on top of this foundation of reality. The most essential relation is that which is between the Creator and the creation: God the Almighty’s true ownership of all creation. Therefore, the first and primary right for usage and interference in the creation belongs to the Creator; any other right must end up relying on divine permission. If God hadn’t given His permission, humans wouldn’t even have the right to use their own body parts, let alone the right to use other creations that are also the complete and absolute property of the Almighty. Similarly, the first responsibility arises from the true lordship and mastery of God Almighty, and no responsibility precedes the responsibility towards God. This original right and responsibility form the backing and foundation for all other rights and responsibilities.

It is true that when humans are heedless of God and His true ownership their focus is on their personal physical control and power over their body parts. Therefore, they view this control and power to be the source of their right to use their body parts. However, after a human beings pay attention to God’s ownership of them, they further realize that their ownership of their own body parts is subsumed within God’s higher and primary ownership; while, the ownership of other humans with respect to their own body parts is at the same level as their own ownership. Humans also view themselves to be free to use the blessings present in their environs. Whenever there is a conflict with others, only then is the need for constructing concepts such as rights and responsibilities felt. Humans determine rights of precedence and distinctions in favor of a certain party on bases such as who was the first to put their hand on unowned property, who has the greater need, and other similar factors. Similarly, they accept responsibilities and obligations on the same grounds. In reality, the drive behind the construction of these concepts and rights is the need for a calm and tranquil social life, which can only be attained through following these rules. However, when attention is paid to human being’s origin and return, a question arises: if a human’s works and actions with respect to the external material world can be an origin of rights, then why shouldn’t the creation of humans and the whole world be an origin of rights for the Creator? If the goal of achieving a tranquil social life can obligate one to respect boundaries for one’s benefits and to accept responsibilities, then why shouldn’t one’s fitri inclination towards achieving spiritual perfections and everlasting felicity be paid attention to and responsibilities be accepted for achieving that goal?

Of course, rights and responsibilities that are on a higher plane than social relations are more expansive than their legal conceptualization; however, since the legal system forms part of a comprehensive value system, they shouldn’t be viewed as completely separate. In the same vein, this comprehensive system of values shouldn’t be thought of as unrelated to one’s belief system.

In conclusion, according to a Divine worldview, humans’ primary right to use their body ports and other God-given blessings originates from the divine will for all of existence to move towards their greatest possible perfection. When a conflict arises between various existences’ movement towards perfection, beings that are higher in perfection are prioritized over those existences that are more limited. For example, plants and animals are subject to the usage of humans; as, humans are beings with abilities greater than plants and animals and thereby can also reach higher levels of perfection. With the same perspective, if the actualization of a perfection for the totality of society is dependent on some individuals sacrificing, that sacrifice must take place. Of course, that sacrifice will not go unseen by God Almighty, and such sacrifices will be recompensed in the best of manners in the everlasting abode.

Therefore, the origin of all rights and responsibilities, inclusive of ethical and legal types, lies in the wise, Divine will of God. In cases that the intellect can precisely determine what God’s wisdom decrees, there is no need for revelation. However, in the majority of cases, the complexity of the formula determining true benefits and a normal intellect’s inability to consider comprehensively all the variables, their interrelations, and on which basis to prioritize and assign values is why revelation and prophethood are needed. Consequently, God the All-wise, from the depths of His mercy and by what His wisdom decreed, appointed prophets and sent down Divine codes of practice so that humans could recognize their path to perfection and have a precise basis for prioritizing. He raised the sky and set up the balance, declaring, “Do not infringe on the balance! …”[29] From here, the conformity of the creational aspect of existence with the legislative aspects is made clear[30].

All praise belongs to Allah, who guided us to this. We would have never been guided had not Allah guided us.[31]

And may peace be upon His servants whom He has chosen and upon those who follow guidance.

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[1] Haqq is the Arabic word used for rights. However, as haqq can be used in meanings other than “rights”, a lexicological discussion follows on distinguishing those various meanings and specifying which of them is relevant to the topic at hand.

[2] “اعطاء كلّ ذي حقّ حقّه” This definition of justice is portrayed in the words of the Imams as well. For example, Imam Ali (as) says, “… Justice puts everything in its proper place.” (Nahj al-Balaghah, saying #437)

[3] What is meant here, is that the intellect finds this to be badihi. Badihiyaat are statements that the intellect doesn’t require a proof in order to attest to their veracity; rather, their veracity is self-evident. Because of this quality, all proofs must, in some way or form, trace back to these badihiyaat. Otherwise, a never-ending chain of proofs would be required to prove a single conclusion.

[4] Allah swt created mankind with certain internal understandings and inclinations. These understandings and inclinations are called fitri and are universal for all humans.

[5] Truth

[6] A definite existence

[7] For example, if a law states that a contract is only valid if both parties are present when it is being signed, that law wasn’t made simply for the sake of having a random condition; rather, it was made with the rights and responsibilities in mind that a contract would necessitate.

[8] Mahuwwi concepts are those that come in response to the question “what” (e.g. human, red, etc.). These concepts describe the essence of existences. They are in contrast with philosophical concepts which don’t describe the whatness of existences; rather, they come about through intellectual comparison of existences. With regards to this topic, haqq and justice don’t directly describe any action when looked at on their own; rather, an action can only be described as haqq or just when its context is taken into consideration.

[9] The opposite of haqq, or in this case: falsehood

[10] Qisaas is a legal consequence that is prescribed in Islam for certain crimes proven in court.

[11] Positive laws are manmade laws as opposed to natural laws that are derived from nature or reason.

[12] A 19^th century movement in the study of German law based primarily on the works and teachings of Gustav von Hugo (d. 1844) and Friedrich Carl von Savigny (d. 1861). Their main premise is that law should be seen as the expression of the convictions of the people.

[13] A school of thought developed in the 18^th and 19^th centuries that contends that laws are commands of human beings and there is no necessary connection between law and ethics.

[14] The goal of humanity is to reach complete perfection. Evidence for this goal can be witnessed in the fitri inclination towards perfection, such that every human desires to be “better” or “perfect” even if their picture or understanding of perfection differs.

[15] Imperative sentences are those that give instructions or entail a command or request. For example: “Give me a glass of water.” or “You have to eat your vegetables.” Descriptive sentences are those that portray an external reality and are capable of being described as true or false. For example: “The sun is out right now.” or “I am hungry.”

[16] In addition to their being contractual concepts, there are also real concepts. Real concepts correspond with a specified entity in the external world. An example of real concepts would be “human being” or “color”. It is important here to note that what is meant by “human being” here is not the words but rather the concept and meaning the words signify. When looking at that concept, we see that it reflects an entity in the external world and is, therefore, a real concept.

[17] Philosophical concepts are those generalizations that are formed through intellectual comparisons and understandings of an objective reality. Contrary to mahuwwi concepts, these don’t describe “what” an existence is; but rather explain “in which manner” an existence is. For example, fire is the cause of heat. “Cause” is a concept that doesn’t describe what fire is; rather, it explains the manner in which fire exists thereby necessitating heat.

[18] For example, the Arabic word used for contractual ownership is milkiyyah. This word is borrowed from a philosophical concept of ownership which signifies a real creational relationship between the owner and the owned, such as the relationship between Allah and human beings.

[19] ضرورة بالقياس : For example, when we take in consideration the existence of a particular cause, the existence of its correlating effect is comparatively necessary. The existence of heat is comparatively necessary considering that a fire exists.

[20] مادة: The maaddah of a statement describes the relation between the subject and predicate in reality. It can be “necessary” such as in “every human is an animal”, “impossible” such as in “God’s partner exists”), or “possible” such as in “he is a writer”.

[21] جهة: The jihat of a statement describes the relation between the subject and predicate and is explicitly mentioned within the statement. It differs from the maadah as it doesn’t necessarily have to describe the actual relation between the subject and predicate and can describe relationships other than the three that maaddah is limited to. For example, in the statement, “Earth goes around the Sun always.”, “always” is a jihat of the statement and describes a type of relationship between the subject and the predicate.

[22] For example, let’s consider the following statement (with the assumption that it is always true): “Drinking water quenches one’s thirst.” We see that the “quenching of one’s thirst” is comparatively necessary considering that one has “drank water”. In simpler terms, if one has drunk water, then definitely one has quenched one’s thirst. If we add to that statement the following, “I am thirsty”, we reach a conclusion of: “I must drink water”. This “must” that is seen in the conclusion portrays that comparative necessity in the first statement; and therefore, no new concept is added to reach that conclusion.

[23] Surah al-Mu’minoon, verse 71

[24] Surah al-Furqaan, verse 16

[25] Surah al-Zukhruf, verse 71

[26] Surah Hud, verse 108

[27] معقولات ثانوي فلسفي: The same as “philosophical concepts”. These concepts are considered secondary from the perspective that mahuwwi concepts are what the intellect deals with in the first stage. Later, through intellectual comparison, philosophical concepts are extracted in a secondary stage.

[28] Surah al-Hadid, verse 25

[29] Surah al-Rahman, verses 6 and 7

[30] All that God has legislated is for the creational perfection of the totality of creation.

[31] Surah al-A’raaf, verse 43