Life is dynamic, and so are man and human society. One characteristic of dynamism is that it generates friction, and in terms of social values that means difference and very often dispute. Difference, or, let us say, the right to differ, lies at the root of all knowledge, inquiry investigation, research and progress. While, therefore, we must strive to safeguard the right to differ, to question, to dissent and on occasion even to protest, we must at the same time strive to secure that our differences, in every sphere-religious, philosophical, scientific, social, economic, political or whatever, should act and react beneficently and not destructively. When they threaten to become acute they must be regulated, and must be sought to be resolved or adjusted through the adoption of agreed peaceful procedures. This means, broadly, that we must all submit voluntarily or, if needed, reluctantly and even under constraint, to what has come to be described as the rule of law.
The Declaration of Human Rights does not, in the accepted juristic sense of the term, constitutes a “law.” It stands, nevertheless, as a shining milestone along the long, and often difficult and weary, path trodden by Man down the corridors of History, through centuries of suffering and tribulation, towards the goal of freedom, justice and equality. Man’s struggle for freedom, justice and equality has been waged in all ages and in many fields and theatres, with varying fortunes. Each of these battles, and the ground won in each, have, in turn, forwarded the cause of Man and have contributed towards the formulation and adoption of the Declaration, which is entitled to rank with the great historical documents and Charters directed towards the same objective.
Some of the written Constitutions, more particularly those of certain newly independent States, have incorporated the substance of several of the articles of the Declaration as substantive provisions, and others have set forth some of them as Directives of State policy. In the former case the relevant provisions have become justiciable and are thus enforceable through judicial process. This is encouraging, so far as it goes; but it is only a beginning. Much remains to be achieved in that regard, as well as in other respects.
At this stage the main effort must continue to be directed towards obtaining wider recognition of the need to insure that human rights shall carry with them sanctions which would serve to make these rights enforceable through judicial process. For this purpose, the principal instrument which should be availed of is the national legislature of each State, which should, through appropriate constitutional and legislative processes, invest human rights with legal sanctions enforceable through the national judicial system. This process would, however, prove effective only in the case of States in which resort to judicial process is not unduly restricted and the process is guaranteed to take its due course without let or hindrance. In other words, a free and independent judiciary is a sine qua non for the effective safeguarding of human rights and for guaranteeing freedom, justice and equality.
Legislative action at the national level, supported by a free and independent judiciary, would go a very long way towards securing the desired objective, but would need to be supplemented by provision of recourse, by way of appeal or review, and in suitable cases even by original motion, to regional tribunals and ultimately to an International Tribunal. Recourse to a regional or to the International Tribunal at the initial stage should, however, be available only in cases where no remedy has been provided for at the national level. Exhaustion of remedies available at the national level must be a condition precedent without fulfilment of which recourse should not be open to a regional or International Tribunal. In the absence of such a provision, the harmonious working of a system of national, regional and International Tribunals might prove both cumbersome and difficult.
Regarding legislative provisions embodying human rights, it must be remembered that the Declaration of Human Rights is not a draft Bill and cannot serve that purpose. While some of the articles of the Declaration embody clear-cut, concrete provisions and could, with slight verbal alterations, be incorporated in a draft Bill, the rest only give expression to the ideal or objective to be achieved through administrative action, possibly in stages, supported and strengthened by legislative authority. The pace and tempo in each region and country would be dependent upon many and varying factors-social, cultural, economic-and uniformity could not reasonably be insisted upon. Nor would it be wise to call for literal compliance with every article of the Declaration. Some of these, pertaining to the social and cultural fields, may, in certain systems and disciplines, be acceptable in the spirit, while calling for some modification, limitation or explanation of their scope, meaning and operation before they could be cast in the legislative mould. So long as the purpose underlying them could be carried into effect, adaptation to particular social and cultural systems and patterns would be beneficent rather than harmful.
This is the Age of Man. Man is beginning to be conscious of his own position in the universe and demands that his personality and dignity shall be accorded due recognition and respect. He is beginning to take note of that which his fellow beings, society and the State owe to him and of that which, in turn, he owes to them. This process needs to be stimulated and accelerated. This consciousness needs to be aroused where it may still be lacking and to be sharpened where it has been awakened. In this context emphasis must be laid on man’s obligations and duties towards his fellow beings as the principal means of securing his own rights, freedom and privileges, for they are the obverse and reverse of the same coin. To the degree to which each of us fulfils and discharges his own duties and obligations towards his fellow beings, he promotes the climate in which human dignity, freedom and equality may flourish and achieve their consummation.
How is it that in the last half of the twentieth century, after having passed through the shattering and devastating experience of two world wars and in the shadow of a nuclear holocaust, despite all the effort that has so far been put forth to the contrary, man continues to be the victim of discrimination, intolerance and cruelty at the hands of his fellow man? One would have thought that man’s daily increasing knowledge of the working of the laws of nature and his growing mastery over the forces of nature, which has opened for every one of us the prospect of a richer, fuller and happier life, would have brought in their wake an era in which man could dispense with the weapons of greed, selfishness, exploitation and dominance which had so far been regarded, albeit utterly erroneously, as contributing towards the welfare and prosperity of those who were, from time to time, in a position to employ them. For, indeed, the truth is daily becoming more manifest, as experience in every field continues to furnish fresh confirmation, that the prosperity of all is promoted through mutual sharing and co-operation rather than through the exploitation and domination of some by others. It must be our constant endeavour to bring this home to all in every corner of the globe.
While, therefore, it is not only necessary but essential that we should intensify and multiply our efforts towards the safeguarding of human rights through executive, administrative, legislative and judicial processes, we must all, individually and collectively, strive continuously to deepen our consciousness of the duties we owe to each other at the moral and spiritual levels.
For the Muslims, and indeed for all mankind, Islam seeks to stimulate and deepen that consciousness. It emphasizes our duties and obligations, so that each of us, by due discharge of them, should help to safeguard freedom, justice and equality for all and should promote and foster human welfare and prosperity in all sphere—social, economic, moral and spiritual. It seeks to establish a pattern of society which, in all the changing and developing circumstances of a dynamic world, would maintain its character of beneficence in all spheres of life—individual, domestic, national and international. For this purpose it furnishes us with a framework of beliefs, duties, obligations, exhortations and sanctions. It also provides us with guidance at all levels and in all fields.
The Prophet’s functions are described in the Quran as, the creation and strengthening of faith through drawing attention to Divine Signs, the moral and physical uplift of the people, teaching them the Law and furnishing them with guidance and expounding the philosophy underlying the Law and the guidance (62:3).
It should be noted that the Quran prescribes only those details which are essential. It thus leaves considerable room for development and safeguards against restrictive rigidity. Indeed, it warns against seeking the regulation of everything by express Divine command, as that might make the framework rigid and inelastic and, therefore, burdensome. “O ye who believe, do not keep asking about things which, if they were expounded to you, would become troublesome for you … Allah has left them out. Allah is Most Forgiving, Forbearing. A people before you made such demands, and when they received the directions they repudiated them” (5:102-3).
That which Allah has “left out” is meant to be devised, in accord with the prescribed standards and values and in consonance with the framework, through mutual consultation (3:100; 42:39) to meet the need when it should arise, always bearing in mind that the overall standard is that ma‘roof, equity, is to be fostered and munkar, iniquity, is to be eschewed.
When the Prophet appointed Mu’az as Qazi of Yemen, he asked him what rule he would follow when he had to make a decision. Mu’az said he would look for the rule in the Book of Allah. “And if you do not find the answer in the Book?” queried the Prophet. “I shall seek for it in the example of the Prophet.” “And if you still lack an answer?” “I shall exercise my own judgment.” “That is the right way,” he was assured by the Prophet.1
The whole vast, elaborate system of Muslim jurisprudence has been developed along those lines. In fact Islam stimulated and released so effervescent and variegated an intellectual ferment that, to confine oneself to the field of jurisprudence alone, within a very brief period several Schools of Jurisprudence flourished within the rapidly widening expanse of the Islamic State. Four of them, the Hanafi, Maliki, Shafei and Hanbali (all of the Sunni persuasion) still maintain their preeminence and hold their sway in regions where Islamic Law is administered.
The great Imams of Jurisprudence, Sunni and Shia alike, and also those of other persuasions, together with their eminent disciples and a host of those who followed after them have, through their unremitting labours sustained through centuries, not only enriched and embellished Muslim Jurisprudence, but made an invaluable contribution to the development of the Science of Law and to what that eminent international jurist C. Wilfred Jenks, has called the Common Law of Mankind. They have thus laid the juristic world under a heavy debt of gratitude.
But if one might, without impertinence, venture so to describe a portion of their intellectual exercises, they built not only truly but more vastly than was needed. In their studies they did not content themselves with considering the concrete and practical situations that needed to be resolved, but travelled on to the theoretical and hypothetical, which might never be encountered. They conceived, no doubt, that they were in this manner widening the horizon of jurisprudence, but as it proved, they succeeded only in restricting it. Their speculations concerning hypothetical problems and situations served to freeze the further development of jurisprudence, which over a long period thereafter became more speculative than constructive.
Those of lesser stature who followed them, finding that little of the practical or even of the hypothetical was left for the exercise of their scholarship, talent and intellect, began on occasion to tread amusing and curious byways. So much so that some of the socalled works on Jurisprudence of later periods comprise within their scope sections entitled Bab-el-Hiyal, i.e. Chapters on Evasion, which work out methods of evading the spirit and defeating the purpose of the law while complying with its letter! It is obvious that the result was mortifying rather than enlivening, and the development of Muslim Jurisprudence was not only arrested but suffered a severe set-back.
For close upon a century now, Muslim thought, in all its aspects, has experienced a healthy revival, the effects of which are today open to observation and appraisal in every field. This has, however, not always been welcome among certain sections of Western scholars of Islam. For them the medieval exercises in speculation hold a fascination from which they find it hard to release themselves. The concrete and practical are too cold for their liking and lack the flavour of romance to which they have accustomed themselves. Yet if they would only take the trouble to face about, they would meet in the greater part of today’s Muslim thought-exegesis, ethics, jurisprudence spiritual values, etc.-a refreshing, purifying and uplifting quality which they would be glad to welcome. Many of their colleagues have already discovered this, and without abandoning any part of what indeed is of truth and tremendous value in the rich legacy and abundant inheritance of Islam, they have turned eagerly to what Islam has to offer in the age which is now opening out before us.
In studying the Universal Declaration of Human Rights from the Islamic point of view, we must remember that while Islam lays down broad values and standards which clearly endorse the spirit and purpose of the Declaration, it does not pronounce verbatim on all the specific provisions of the Declaration.
Some of the Articles of the Declaration restate and emphasize fundamental rights and principles, while others only declare and draw attention to objectives and ideals which should be progressively pursued as the aims of State policy. Still others spell out methods of giving effect to what is considered imperative or eminently desirable in today’s conditions as a practical expression of the enjoyment of freedom, justice and equality. The Declaration does not purport to be exhaustive, as, in the nature of things, no formulation of human rights could claim finality. Equally, it cannot be claimed that its provisions may not call for amendment or modification as the result of experience gained or of changes that may be introduced into the social, economic or political patterns of society and the State. For instance, the first half of the first sentence of Article 12 and the second paragraph of Article 13 would not have suggested themselves so readily to a Commission on Human Rights submitting a draft declaration in the early years of the present century. On the other hand, when the political unity of Western Europe begins to assume practical shape, some re-wording of Article 15 might be indicated, while the development of World Federation, or some form of World Government or World Community, might entail a reappraisal of the whole concept of nationality, which is none too precise as it is.
Again, it is presumed that acceptance or endorsement of the Declaration would not oblige a society or State to give literal effect to the provisions of every article. This may not be practicable in some cases, or might tend to defeat the very purpose in view. So far as States are concerned, that aspect could be taken care of in the Protocol embodying the declaration of adherence of a State to the Covenant of Human Rights. So far as particular societies may be involved, it would be desirable to obviate any conflict of values by directing effort towards securing, promoting and strengthening the spirit of the Declaration and its overall objectives rather than insisting upon literal compliance with each specific detail. A certain degree of diversity and flexibility in the cultural field should be welcomed and safeguarded, so long as it does not offend against the ideal purpose, rather than looked upon as something which needs to be ironed out.
1 Tirmidhi I, Sect.: Judgments, Ch.: Problems facing a Judge, etc.