THE CIVIL RIGHTS; THE FUNDAMENTALS AND POSITION IN ISLAM

Transcription

1 2 THE CIVIL RIGHTS; THE FUNDAMENTALS AND POSITION IN ISLAM Saeed Abdollahyar *1, Javad Sadeghi Goghari 2, Ahad Taheri 3 1 Department of law, Payame Noor University, PO Box Tehran, I.R of Iran. Department of management, Payame Noor University, PO Box Tehran, I.R of Iran. 3 MA in field of law Abstract Several theories and attitudes have been purposed about the basis of civil rights. In Islamic political and law system, addressing human dignity and freedom may be deemed as the most major basis for civil rights. The governing administration over a community may not create barrier of the unnecessary bans and out of legal disciplines against the given freedom and rights and their path by acknowledgement to such a basis in Islamic system. Likewise, the position of civil rights can be obviously identified within Quranic verses, traditions, and orations of Imam Ali (PBUH) in book of Nahjolbalagheh and conduct of Pure Shiite Imams. Accordingly, the basis for interaction between government and its elements with the people and citizens in Islamic community may be also considered to be based on citizens mercy, passion, and active participation in the political and social affairs of their society and at the same time retaining its authority. Keywords: Right- Citizen- Civil Rights- Islam- Authority 1. Introduction Term right (Hagh) may be deemed as one of the most essential and at the same time most equivocal topics in relation to sciences of law, ethics, and politics. In terminological meaning of right 1, one could observe dividing this term into two concepts of being right and having right. As the first concept which is against meaning of evil, right is always present in intellectual fields, especially political and moral doctrines (Rasekh, 2002). At the present, the position of civil rights is so high that even legitimacy of rulers and governments behavior is measured based on the rate of their attention to human rights and civil rights. But right concept in the second definition (having right) may be placed versus obligation; it is the product of modern doctrine that is reproduced following to theoretical and practical freedom- and equity- seeking human effort in modern period. In a classification, which has been made by Hofled, he divides legal relations into four categories 2 : 1- Claim- Right 2- Liberty- Right 3- Power- Right 1 - In definition of right concept it is stated that: Right is a power dependent on rules that its holder can require another one to do something and or prohibit another person not to do something by the aid of other regulation (Movahed, 2002; p 45). 2 - See also: Mohammad Rasekh (2000), Philosophy of right.

2 4- Immunity Right When it is discussed about civil rights 3, in fact, it is referred to first type of this classification namely Claim (obligation) Right based on which the governing administration and their agents will be required to observe them. In modern world, citizens means those persons who possess right of governance and in light of such rights they determine how to govern the society via a contract that is called Constitution and according to this agreement, they elect some group among their own and assign the reign of administration of society to this group for certain period of time. Also in terms of legal aspect, by definition citizen is called to nationals of a country that they have delegated right of their governance to the selected Cabinet. They have some rights as it defined by governance concept, the given administration shall observe those rights and it construes this fact that government s violence from fulfillment of its obligations versus citizens where these rights comprise of dismissal of rulers from their governmental positions (Madanian; 2008). If the basis of civil rights becomes clarified the tasks of government and ruling administration and way of governance enforcement, behavior with citizens, quality of legislation, the rate of granted freedoms and constraints will be elucidated. In the present research, we will tend to find the answer to this question that: What are the principles and position of civil rights in Islam? If this question is answered one could draw a clear borderline among behavior and conduct of government and citizens. 2. The bases of civil rights from Islamic view According to Islamic attitude, human is a creature that possesses dignity so this characteristic is the product of humanity and any human has honor and dignity for which s/he is human. Although, one can find two types dignity for human in Islamic religion, the universal type of this dignity (versus acquired dignity) is an instinctive attribute, which is common between all humans and it is called instinctive dignity. In other words, instinctive dignity is type of repute that all humans possess it equally and they will have this attribute as long as they do not preclude it by committing crime voluntarily against oneself and others. Human s dignity and honor requires recognizing his/ her rights and immunity against any type of unlawful violence; human s life, individuals privacy, honor and reputation, and or right of human ownership may be subjected to this violence. Although, these subjects differ from each other in terms of value, violence against each of them is considered as ignoring human s dignity based on the principle of freedom and unlawful violence ban since according to Islam all humans have been 3 - Term citizen has not been used clearly in our ancient sources but in Islamic sources, it has been discussed about United Community (Ummat Vahedeh) in order to establish a healthy society, From view of Holy Quran, humans are equal in terms of genesis since God has created them from a single soul (Nafs Vahedeh i.e. Adam (PBUH)). From Quranic perspective, this human s unity in creation shall lead to unification in Islamic community (Umma). Humans instinctively tend to friendship and amity and form a united and allied community. Some of interpreters of Quran express this point about this Quranic verse (Cow Sura 2:213) that according to this verse, from the beginning the people had formed a united community in materialist affairs of this world; namely, all of them were equally benefitted from materialist facilities as long as through increasing human s population and extensive needs, they interactively dealt with cooperation together and this has led to dispute and difference among them. God sent some prophets and rules within Sharia doe the people to remove these differences but some of possessors of scripture (Ahl al- Ketab) attentively and oppressively created conflict in divine Sharia and caused discord between people as well. Thus, from his view, the united community (Ummat Vahedeh), which has been signified in Quran, has been united in materialist affairs of this world (Tabatabaei, 1417:112).

3 created as emancipated creatures and they have every right to live freely so one s living is immunized from violence and any harassment to this right is deemed as crime with punishment. Attaching respect for human s dignity not only is deemed as a right but also forms the basis for other rights and according to Emanuel Kant: All humans should command respect to this dignity and honor as a right for each other and assume their own responsible versus this right and avoid from violence against it (Rahiminejad, 2008). In a letter that Imam Ali (PBUH) has written to his son, he expresses: Do not be servant for anyone save God because He has created you as free being. 4 Thus, addressing human s dignity and freedom by Islam can be considered as the most essential basis for civil rights. The rulers in such community are not able to enforce unnecessary bans and out of legal regulations in order to create barrier against the path of freedom and rights with such a basis in Islamic system. Along with the rights based on instinctive dignity, the other origin for right is the contract which has been determined by law whether such law is documented by virtue of Sharia (religion) or enacted by wise people and elected persons in any community so it should be emphasized in this point that most of rights are arbitrary in social relations such as rights of family, worker, employer, and the rights caused by agreements and contracts etc so the interactive rights between people and governments are of this type (Marefat, 2001). In the social field, many subjects are stemmed from social contracts, particularly novel issues. The distinctive aspect of this type of rules may be considered as relating to the rules and regulations regarding way of management of the society. 3. Position of civil rights in Islam Formally, term of civil rights was used for the first time in Human Rights and Citizens Resolution in France in It is what purposed as human rights and civil rights today. It includes some rules and concepts that the relevant concepts and sources have been reflected in Human Rights and Citizens Resolution in France and in ideas of their builder thinkers of that resolution namely philosophers of Europe in eighteenth century including Jean Jacques Rousseau, Montesquieu, and Diderot and Human Rights Resolution and two covenants that are called Human Rights Charter (Mehrparvar, 1998). Today, human rights and civil rights are deemed as two familiar terms in political and legal discourse. At present, their positions are so high that even the legitimacy of rulers and governments is measured based on the rate of their attention to human rights and civil rights. The historical study and interpretation on two concepts of civil rights and human rights indicates that the historical platform of formation for concept of civil rights is based on political community and the coordinated systemic planning of rights and obligations while human rights are the product of campaigns and claims in which the individual rights aspect is reflected and raised against governmental strong institution. For this reason, despite of the common utility of two concepts of human rights and civil rights, there are some serious disputes regarding the basis and relationship of both together as well as their exemplars. 4 - Greek Citizen Model is one of the most ancient civil models. The administration of order and peace versus chaos and disorder was the first subject in Greek Model. Regarding this subject, Plato refers to Zeus deep concern upon inspiration of divine revelation to oneself in which Zeus expresses concern about peace in communities that had been exposed to chaos and revolts and asks Hermes to train humans some attributes like respect for others and perceiving the equity as a result thereby order would be returned to our cities and friendship and alliance link to be created among us (Castles and Davidson; 2003:99).

4 Human rights are some types of rights that humans are deserved to be benefitted from them for the sake of their humanity nature and these rights are considered as modern and secular impression from the natural rights that are gifted by God. As a result, the human rights have been deemed universal, fundamental, and absolute. Their global nature means that these rights belong to all humans everywhere regardless of nationality, ethnic or racial origin, and social basis etc. The fundamentality of them is related to their undeniable essence. It is possible to ignore or infringe human rights but human s merit for utilization from these rights cannot be conditioned since like some cornerstones they are considered as a requisite for laying appropriate foundation of human s life (Fallahzadeh, 2007). In contrast, if we consider citizenship fundamental idea as a right for determination of fate or in other words civil rights tend to guarantee fate of any person in his/ her community (social life) and determination of rights and interest for him/ her as a citizen then citizenship and realization of all relevant rights will establish a strong link with participation of citizens to determine their political, economic, social and cultural fate. In common law, this participation shall provide the possibility for following up the goals within the framework of a social agreement for all citizens under equal conditions in terms of rights and obligations. In citizenship system, the parties that own these rights are governmental nationals or citizens and the government. The relationship, which is established between both of these parties, has dual nature since they are two-way and right-obligation- oriented. In fact, citizenship is a systematic planning; a community for restriction of government and social administration that possesses social aspect further. In this system in which membership is the main basis rather than rights, the citizen's responsibilities are addressed because s/he participates in national governance as well (ibid, 58). Depending on this point that citizenship base and position is considered as individualism or pluralism, the given attitude will vary. The first attitude, which relates to liberalism, adheres to principle of civil rights and it is especially emphasized on personal merit and individual s position as an autocrat actor. The pluralism has been also interpreted in socialist and conservative doctrines but both of them are in favor of principle of civil responsibilities by playing up the importance of accountability to the city. Such theories tend to display the government as an ethical agent and to emphasize on necessity for community and role of social life. Similarly, rightists (conservationist) tend to a limited attitude regarding citizenship that only emphasizes on civil and political rights namely those rights that may be enforceable with the framework of a civil community and the rights concerning to partnership. In contrast, the leftists (sinisteral followers) are inclined to confirmation of social citizenship. Based on this idea, the citizens deserve the social rights at minimum level that these rights have been implied as social and welfare relevant rights from this perspective. Of the followers of citizenship idea one can refer to libertarians, who deny this idea based on which the individuals have social identity and responsibilities (Heywood; 2000). According to this approach, the most fundamental idea for realizing citizenship as well as activating citizens is right of determining the fate by individuals, so it is considered as one of the most basic moral and legal rights. The right of election and being elected by others is of the distinct examples for fate determination right (Quoted from Fallahzadeh; ibid). If we look generally at the goals and activities that are related to human rights and teachings and main messages of divine religions, we will witness teachings of divine religions have play a very effective role in developing human rights. Thus, in historical trend of subjects regarding human rights the lion s share belongs to divine religions since basically divine religions have always

5 emerged 5 against the tyrants and occupier powerful rulers that violated human s rights and also have fought for justice and equity of rights of humans and removal the racial discrimination and social class privileges. Therefore, there is no doubt that human excellent concept such as dignity; human s personality, liberty, equity and the like are originated from teachings of divine prophets and divine religious have greatly contributed to promotion of human rights (Mehrparvar; ibid, p 305, pp ). Although in Islamic regulations, there is no certain chapter and or topic about civil rights in Islamic sources, the citizen s role and rights can be identified in Islamic school through several subjects and on various occasions. From Islamic view, there is relationship between all parts and elements in the universe and all of them have been created in a single path and for the certain goal 6 and an overall relationship is governed over all cornerstones of this world. As a part of genesis system but the most dignified element of creation, human possesses some certain rights and obligations and these rights and obligations may be interpreted through creation ultimate goal i.e. achieving the perfection. In this path and to guide the human, God has sent several prophets from human kind in order to lead and rule his/ her social affairs in this world rather than his/ her spiritual guidance. 7 Thus and in order to prevent from self- paradox at this point, human s first obligation forms and that is to accept the command of his/ her leader toward path of perfection and act based on it in order achieve wholeness and perfection. Accordingly and as an introduction to execution of divine injunctions, the necessity for presence of leadership and governance of a person, who was appointed by God, may be characterized. Imam Ali (PBUH) has also highlighted the requisite for the presence of an authoritative government and he has fought against Khawarigites (rebels) who had claimed this doctrine that we might not need to a government with the existing Quran (Nahjolbalagheh book- Oration 40). Thus, the first role can be defined within the framework of ruler of Islamic community that is responsible for government in the Islamic society. Nevertheless, from the viewpoint of him (Imam Ali), governance and ruling affairs are not separated from the people and the ruler is not entitled to be indifferent toward people. After interpretation of necessity for government and present of ruler in Nahjolbalagheh book (Oration 34), Imam (PBUH) expresses the bilateral rights of Imam (ruler) and Umma (Islamic community) as follows: Oh people, as I have a right versus you, you have also some right toward me. Your right versus me is that I should always try to give you sincere guidelines and provide all facilities to acquire your welfare in public life and not to omit in public training and education at wide level and to be always vigilant and attentive in supervising over your behavior and deed. 8 And in the following, Imam implies rulers responsibilities that: And but then, your rights versus me are this 5 - E.g. the Holy Quran refers to request of Moses (PBUH) from pharaoh to relieve Children of Israel from oppression and tyranny. 6 - Holy Quran: And I have not created the jinn and the men except that they should serve Me (The Scatters (Zariat) 51:56) 7 - As Imam Ali implies in this regard: Your allegiance of the people with me was not improvised and unplanned. My task is not identical to yours. I want you for the sake of God but you want me for your own. Oh people, assist me to reform your affairs. The basic and essential point in Islamic law, which has been clarified from Imam Ali s statement, is that both motive and goal of government are divinely. In another part of his statements, Imam (PBUH) remarks the tragic responsibility of people because of election of incompetent ruler for them. 8 - Nahjolbalagheh (Oration:34).

6 point that you should be loyal to your ruling authority and to be resistant honestly against the defects and inadequacies which may occur and try to admonish the relevant officials and statesmen to remove the problems in their presence and absence and obey favorably the issued orders in all dimensions of government s policies and whenever you re called up by them you should immediately follow up them. Likewise, from Imam s view, providing security for their citizens is one of the paramount tasks for any government. Providing security against domestic villains and attack by foreign enemy is considered as one of the foremost citizens rights for which no other affair can be implemented without security. Thus, it requires existing well-trained, expert, and committed corps that should be under the order of an authoritative and firm commander. The presence of a powerful corps and military force to provide security can be deemed as raison d être for police in Islamic community. In several statements within orations, epistles, and aphorisms of Nahjolbalagheh, Imam Ali recommend the presence of consolidated, strong, and with militaristic expertise to provide security inside and outside the city (e.g. see also Nahjolbalagheh, Oration : 124). Equality versus law is one of other political rights for the citizens so that all citizens have equal rights in Islamic society and law supports them identically. This point may be derived within Imam Ali s (PBUH) statements on many occasions in which he orders to administer justice without discrimination. One of the statements made by Imam Ali is that The justice put anything in its suitable place while generosity may displace it from this location. Justice is public discretion for all the people while generosity includes certain group. Thus justice is more significant and superior (Nahjolbalagheh, Aphorism: 437). In another place, Imam Ali (PBUH) addresses Ziad Ibn Abih as Fars Governor that: Spread the justice and avoid from tyranny since oppression wanders the peasants and cruelty will lead to struggle and sword. In his letter to Malek Ashtar as his commander of corps and governor, Imam Ali writes: You never acquire any privilege in what you have the equal share with other people. (See also, Nahjolbalagheh, Epistle: 53) Likewise in Islamic Law, the proper and humanistic treatment with people is one of the rights of citizens. From Imam Ali s (PBUH) view, kings and rulers are servants for the people; if they properly fulfill people s affairs and do their tasks they will not have any advantage compared to citizens. Moreover, rulers shall reconcile with the citizens and behave them kindly and always try to meet their requirements. The Lord of the Pious (Imam Ali) has emphasized on way of properly and humanistic behavior of leaders versus citizens on several occasions. Additionally, compromise with the people, recommending to modestly living, and obeying Holy Prophet s conduct are some of recommendations of Imam Ali to the rulers. On the brink of Saffain Battle, some of Imam s companions, who saw his compromise, asked him about the reason. Following to his statements, Imam implied: I postpone date of war every day since I hope some members from enemy s corps to join us and to be guided (Nahjolbalagheh, Oration: 55). Compromise, condonation, and forgiving the mistakes are some of strongly recommendations made by Imam Ali to the rulers. In some part of Imam s letter to Mohammad Ibn Abu-Bakr, it has been implied: Be humble with the people, be kind, passionate, cheerful, and smiling with them. Divide your eye contact and glance equally at the surrounding people and behave them fairly so that the great people not to be avaricious to your oppression and disabled people not to be disappointed with your justice. Thus, with keeping the authority, the interaction between the government and its subordinates with the people and citizens in Islamic community may be based on mercy and kindness since unlike

7 other systems, in the Islamic system the type of authorities behavior with citizens in this system includes training and corrective aspect. To confirm this subject, the noticeable point in Islamic laws is to pay special attention to other religions and beliefs as some minorities of citizens in the society. As Imam Sajad (PBUH) expresses about non Muslim citizens in Islamic nation that live under the realm of Islamic government: The Islamic order about them is that what God has accepted about them you should also admit it and it is enough that God gave them his covenant and bestowed them security so give order to them as you order for your own affairs and your promise and treaty with God and his prophet and fulfillment of this promise should hinder you to oppress them for which The Holy Prophet (PBUH) has expressed anyone, who oppresses his/ her allied as if behaves the prophet with enmity. Accordingly, difference in religion and belief in one of citizens shall not justify any adverse behavior with them out of regulations and all citizens will be benefitted from an appropriate behavior with mercy and kindness regardless of their religion and belief. Conclusion: Principle of dignity is one of the undeniable principles in Islam that has been basis and fundamental for other principles as well. Regarding civil rights it may be also implied that paying attention to principle of dignity is the basis for civil rights in Islam. As a result, the government should behave with citizens in contact, legislation, performance, and way of conduct with them according to principle of dignity that is based on freedom of expression, legal freedoms, respectful and compassionately behavior, political and social liberties, fate determination right, benefitting from perfect security, and possession relative comfort and equal use of accessible natural resources, and non intervention in individuals private life and for this reason, acceptance and observance of civil rights may be deemed as the field of participation and realization of Political Endeavor. Alternately, the position of these rights has been drawn in Quranic verses, narratives, and orations of Imam Ali (PBUH) and tradition of Pure Shiite Imams. Likewise, bilateral nature of right and responsibility may cause the citizens to be obliged versus their community and rulers in order to accompany to and participate in the political, cultural, and social arenas. Sources and references: Holy Quran Nahjolbalagheh Rasekh, M. (2002). Right and expediency, (The essays on philosophy of law, philosophy of right, and philosophy of value), Tehran: Tarh-E-No Pub. Rasekh, M. (2000). Philosophy of right, Mofid Letter, no. 1. Rahiminejad, I. (2008). Human s dignity in Criminal Law, Tehran: Mizan Pub. Tabatabaei, M.H. (1989). Al-Mizan Exegesis, vol. 2, Qom: Islamic Publication Office. Fallahzadeh, A.M. (2007). The relationship between civil rights and human rights, Legal and judicial journal of Justice Ministry, vol. 58.

8 Castles, S., Alistair, D. (2003), Immigration and citizenship, Transl. Taghiloo Faramarz, Strategic studies research center, Tehran. Marefat, M.H. (2001), Imam Ali and mutual rights of people and government, Journal of critique book, vol. 18. Movahed, M.A. (2002), In right and justice climate, Journal of Karnameh (workbook), 2 nd Ed., Tehran. Mehrparvar, H. (1998), Human rights international system, Ettelaat, 1 st Ed., Tehran. Heywood, A. (2000), Key concepts in politics, Palgrave Publication. Other sources: Madanian, G. (2008), Personal Weblog.