In Islamic law, achieving the welfare of the people tahqiq masalih al-'ibad is a term of art that is intended to acknowledge that the pursuit of abstract values, such as justice, compassion and mercy, is supposed to translate into concrete and tangible benefits to be enjoyed by human beings. Muslim jurists debated whether in the final analysis on every point of law there is a single correct position, but this position is known only to God and it is only in the Hereafter that this truth will be revealed.
Much of this debate tended to revolve around a number of traditions attributed to the Prophet. According to one group of legal theorists, those who are ultimately proven to be wrong will still be rewarded for their due diligence but those who prove to be right will receive a greater reward.
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The alternative point of view, however, argued that on all matters of fiqh there is no single truth to be revealed by God in the Hereafter. Process-oriented jurists contended that the search for the Divine Will is the ultimate moral value but only as to matters open to a fiqh inquiry.
Furthermore, Muslim jurists overwhelmingly held that there are three basic levels of attainment or fulfillment of such values: the necessities, needs, and luxuries. Nevertheless, alongside these broad fundamental principles, historically, Muslim jurists developed specific positive commandments that were said to be necessary for the protection of the values mentioned above. These laws include, for instance, the laws punishing slander, which were said to be necessary for the protection of reputation or dignity, or the laws punishing fornication, which were said to be necessary for the protection of lineage and family.
In the classical tradition, the so-called hudud offenses were cited as the typical example of laws that are Divinely stipulated without ambiguity or vagueness.
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For many Muslims, they have become the indisputable proof of the unique identity of the Islamic legal system and also the symbol for Muslim cultural and political autonomy. For many non-Muslims and Muslims, however, hudud punishments are considered medieval, draconian and barbaric. Furthermore, many non-Muslim and Muslim scholars and writers, who are poorly informed about Islamic jurisprudence, treat these laws as if they are the very heart and core of the Islamic legal system. This particular set of laws includes the group of criminal sanctions that have become known as the hudud punishments.
Interestingly, however, hudud punishments were hardly ever implemented in Islamic legal history, for the most part because Muslim jurists made the evidentiary requirements and the technical pre-conditions for the enforcement of the hudud practically impossible to fulfill, or because they admitted so many mitigating factors to the point that only a criminal who was most determined to be punished could be made to suffer the hudud penalties.
Dealing with the hudud, Muslim jurists focused on the punishments and not on the behavior or conduct that warranted the penalties. In doing so, they erroneously rendered some of the punitive measures mentioned in the Qur'an and Prophetic traditions sacrosanct and eternal. But there is no plausible reason to believe that the attributes or characteristics of Divinity or that the ethical precepts of Islam are embedded in specific punishments—whatever these punishments may be. If the Divine Will was to safeguard the hudud punishments, either as embodying the attributes and characteristics of God or essential ethical and moral values, it would be incongruous for such punishments to be contingent, contextual, or subject to mitigation.
What ought to be considered immutable and eternal are the ethical values that the punitive measures were intended to safeguard, and not the punitive measures themselves. The punishments themselves, however, are contextual—they depend on a variety of factors such as: mitigation; evidentiary certitude; the intent and purpose of the individual perpetrator; the reliability and accountability of the judicial system at a particular time and place; community standards; sociologically dependent and shifting notions of cruelty, barbarity and mercy; and the possible deterrence value of such punishments within the context of a certain age and place.
As already noted, the classical jurists were keenly aware that to the extent possible, an Islamic judicial system ought to avoid applying the hudud punishments. In fact, in a well-known set of traditions, the Prophet is reported to have taught that in criminal matters any doubt must be construed in the light most favorable to a defendant.
Moreover, in the case of hudud, the Prophet instructed that Muslims ought to seek out the shadows of doubt in order to avoid having to inflict a hadd singular of hudud punishment against a defendant. According to the Prophet, if a person knows that someone has committed a hadd crime, it is better to help the criminal repent than to expose the criminal by turning him in to the authorities.
Furthermore, bringing hadd charges against a suspect that the accuser is ultimately unable to prove might in some circumstances subject the accuser to punishment, and sneaking and spying are not valid ways of proving a hadd crime. This principled recalcitrance and various safeguards against a wide application of the hudud are a clear indication that the hudud punishments themselves do not embody an ethical or moral value.
The value is in the unethical and immoral behavior that the hudud are intended to deter.
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I do realize that this argument requires something of a paradigm shift in the way that Muslims think about the so-called hudud punishments. I do think, however, that Islamic discourses need to go further than either identifying core values or constructing arguments about a historically frustrated divine will. It is not an exaggeration to say that what is needed is a serious rethinking of the inherited categories of Islamic theology. Nonetheless, in my view, what is needed is not a human centered theology, but a rethinking of the meaning and implications of divinity, and a re-imagining of the nature of the relationship between God and creation.
Rather, the challenge is to re-imagine the nature of the Divine Covenant, which defines the obligations and entitlements of human beings, in order to centralize the imperative of human rights, and to do so from an internally coherent perspective in Islam. From an internal perspective, the question is: Is the subjective belief of human beings about their entitlements and rights relevant to identifying or defining those entitlements and rights?
May human beings make demands upon each other, and God for rights, and, upon making such demands, become entitled to such rights? As Islamic theology stands right now, the answer would clearly be that, in the eyes of God, the demands of human beings are irrelevant to their entitlements.
God is not influenced one way or the other by human demands, and it is heretical to think otherwise. The response given by traditional Islamic theology does not necessarily preclude a recognition of human rights, but I do believe that such a response creates the potential for foreclosing the possibility of giving due regard to the evolving field of universal human rights. As I noted earlier, in this article, I am dealing with potentialities, and not absolute determinations.
The very notion of individual rights is elusive both in terms of the sources and the nature of those rights. Furthermore, whether there are inherent and absolute individual rights, or simply presumptive individual entitlements that could be outweighed by countervailing considerations, is debatable. In this context, I am using a minimalist, and hopefully a non-controversial, notion of individual rights. By individual rights, I do not mean entitlements, but qualified immunities—the idea that particular interests related to the well-being of an individual ought to be protected from infringements whether perpetuated by the state or other members of the social order, and that such interests should not be sacrificed unless for an overwhelming necessity.
This, as noted, is a minimalist description of rights, and in my view, a largely inadequate one. I doubt very much that there is an objective means of quantifying an overwhelming necessity, and thus, some individual interests ought to be unassailable under any circumstances. These unassailable interests are the ones that, if violated, are bound to communicate to the individual in question a sense of worthlessness, and that, if violated, tend to destroy the faculty of a human being to comprehend the necessary elements for a dignified existence.
For the purposes of this chapter, however, I will assume the minimalist description of rights. It is fair to say, however, that the pre-modern juristic tradition did not articulate a notion of individual rights as privileges, entitlements, or immunities. Nonetheless, the juristic tradition did articulate a conception of protected interests that accrue to the benefit of the individual.
However, as demonstrated below, this subject remains replete with considerable ambiguity in Islamic thought. The interests or the welfare of the people is divided into three categories: the necessities daruriyyat , the needs hajiyyat , and the luxuries kamaliyyat or tahsiniyyat. The law and political policies of the government must fulfill these interests in descending order of importance: first the necessities, then the needs, and then the luxuries. The necessities are further divided into five basic values al-daruriyyat al-khamsah: life, intellect, reputation or dignity, lineage or family, and property.
Rather, they pursued what can be described as an extreme positivistic approach to these rights. Muslim jurists examined the existing positive legal injunctions that arguably can be said to serve these values, and concluded that by giving effect to these specific legal injunctions, the five values have been sufficiently fulfilled.
So, for example, Muslim jurists contended that the prohibition of murder served the basic value of life, the law of apostasy protected religion, the prohibition of intoxicants protected the intellect, the prohibition of fornication and adultery protected lineage, and the right of compensation protected the right to property. At most, these laws are partial protections to a limited conception of values, and at any case, cannot be asserted as the equivalent of individual rights because they are not asserted as immunities to be retained by the individual against the world.
websrv2-nginx.classic.com.np/18-das-de-guerra-en-blgica.php It is reasonable to conclude that these five values were emptied of any theoretical social and political content and were reduced to technical legalistic objectives. This, of course, does not preclude the possibility that the basic five values could act as a foundation for a systematic theory of individual rights.
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To argue that the juristic tradition did not develop the idea of fundamental or basic individual rights does not mean that that tradition was oblivious to the notion. In fact, the juristic tradition tended to sympathize with individuals who were unjustly executed for their beliefs or those who died fighting against injustice.
Jurists typically described such acts as a death of musabarah, a description that carried positive or commendable connotations. Muslim jurists produced a formidable discourse condemning the imposition of unjust taxes and the usurpation of private property by the government. I will mention only some of these positions, leaving the rest to a more extensive study.
The same principle was applied to criminal cases; the jurists argued that it is always better to release a guilty person than to run the risk of punishing an innocent person. Interestingly, some jurists asserted that a judge that relies on a coerced confession in a criminal conviction is, in turn, to be held liable for the wrongful conviction. Most argued that the defendant, or his family, may bring an action for compensation against the judge, individually, and against the Caliph and his representatives, generally, because the government is deemed to be vicariously liable for the unlawful behavior of its judges.
But perhaps the most intriguing discourse in the juristic tradition is that which relates to the rights of God and the rights of people. These rights belong to God in the sense that only God can say how the violation of these rights may be punished and only God has the right to forgive such violations. In addition, in the juristic theory, all rights not explicitly retained by God, accrue to the benefit of human beings.
In other words, any right haqq that is not specifically and clearly retained by God becomes a right retained by people. For instance, a right to compensation is retained individually by a human being and may only be forgiven by the aggrieved individual. The government, or even God, does not have the right to forgive or compromise such a right of compensation if it is designated as part of the rights of human beings.
The rights of human beings are not forgiven by God unless the human being concerned forgives them first, and the claims for such rights are not dismissed [by God] unless they are dismissed by the person concerned The rights of a Muslim cannot be abandoned except by the possessor of the right. Each chapter is written by a leading expert and provides a contemporary overview of a significant area within the field.
As well as covering topics integral to the theory and practice of international human rights law the volume offers a broader perspective though examinations of the ways in which human rights law interacts with other legal regimes and other international institutions, and by addressing the current and future challenges facing human rights. The nature and evolution of international human rights law discussing the origins, theory and practice of the discipline. International environmental law and human rights. Customary law and human rights.
Reservations to treaties and the integrity of human rights. Implementation of economic social and cultural rights. The relationship of religion and human rights. Counterterrorism and human rights. International development global impoverishment and human. Gender challenges for international human rights. The extraterritorial application of international human rights law. Enforcement and remedies. Victims participation and reparations in international criminal.