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The Relationship between Right and Justice
By: Ayatullah Muhammad Taqi Misbah Yazdi
During the previous meeting in which we discussed the mutual rights and duties of the people and the government, we made a short introduction in this context. It was pointed out that for two reasons right and duty are interdependent and proportional to each other. We said that one type of relationship between right and duty is that whenever a certain right is established for a person, this right is over another person, and in principle the concept of right requires such a thing. For example, if a wife has the right of sustenance over her husband, as she does, its correlative is that the husband is duty-bound to provide sustenance to her.
By proving the right of one party, the duty of another party will also be proved. This is a kind of correlation and reciprocity between right and duty; right for one party and duty for another. The second meaning of right-duty correlation is that if in social relations relationship between two persons, two sensible beings a certain right is established for a person, in return, a duty will be placed on his shoulder. In the first type of correlation, the establishment of right for one party necessary means the establishment of duty for the opposite party, but here when a right is proved for a person, a duty alongside the right will also be proved for the same person.
That is, once he takes something, he must give something else in return. In a bilateral relationship one cannot enjoy benefit without the other acquiring another benefit. One cannot only have right while the other has duty only. If person A has a right over person B alongside the right he possesses, he has also a duty toward person B that he has to fulfill. Even in the relationship between father and son, if the father has right over the son, he has also a duty toward his son. It is not possible for him to have a right over his son while having no duty toward him. Here, right and duty are correlative in a person.
With respect to the second meaning, we have mentioned that whenever a right is proved, a duty along with it will also be proved for the claimant of right, once we consider the relationship between the people and the government and set a right for one of them, alongside this right that is acquired, there is also a duty that is to be shouldered. If the government or the ruler has a right over the people as it or he does, along with this right, he also has to accept a certain duty toward the people.
It cannot be accepted that the ruler has right over the people while having no duty at all. Meanwhile, if the people have any right over the ruler as they do, along with this right, they have to accept a certain duty toward the ruler. It is not reasonable that all rights are only for the people while having no duty toward the ruler. If this relationship is balanced that is, a right which is to be proved for a person has a kind of harmony and balance with a duty which is to be proved along with that right in that case, a just relationship will be established. In principle, right [haqq] is intertwined with justice [‘adl] because the truth behind justice is that the right of every person should be given to him.
If this right is linked with a duty which he has toward another and this right and duty are proportional and balanced, the relationship between them will be just because they are of the same weight. Balance means to be of the same weight; to be equitable. If the duty of one party is supposed to be heavy for example, he has to pay taxes, comply with orders, endure every hardship, and shoulder the expenses of the ruler, his apparatus and government with all their extent but having no right over the ruler, this relationship is not just.
Justice means proportionality of the two parties; balance and equality of the two opposite rights. If this proportionality and balance between right and duty is observed, justice will be established. As shown in the history of philosophy, the discussion on justice has been made from the time of Socrates up to now, covering a period of more than 2,500 years. So far, in this context there has been much discussion and so many books been written that to make a list of them constitute a book itself. Even nowadays, perhaps there has not been a day when no article, treatise, or book which is related to justice in a certain way is even published. This affair, on one hand, shows the degree of importance of the issue while on the other hand it indicates that this issue has so much discussion that after 25 centuries of debate and discourse about it, it still has ambiguous angles and room for discussion.
One of the discussions in this context is the relationship of justice and right. It seems that what is more confirmable and has also been mentioned by some others is that the relationship between justice and right is an objective one. Justice means to give right. Justice is nothing but that the right of everyone should be given to him. But since right is bilateral, whenever a right is proved, there is also a corresponding duty. If this right and duty which are established for a person are balanced, they will be just and if they are not proportionate that is, the right which is considered for a person is more than the duty which he has to shoulder, or on the contrary, his duty is more than the right which is proved for him this relationship is unbalanced and contrary to justice. According to this viewpoint, the concepts of justice and right are inseparable. In fact, they are not two concepts and two discussions for us to say, “What is the relationship between justice and right?” Therefore, if there is any ambiguity surrounding the concept of right, the same is also applicable to justice and on the contrary, if there is any ambiguity surrounding the concept of justice, the same will also be applicable to right.
The Criterion in Determining Right the Viewpoint of the Natural Law and the Positivist Law
Now, this issue arises: how can the right of everyone be determined? If it is proved that someone has a right, to give that right and along with it, to establish a duty for him is justice. Yet, the ambiguous point here is that how these rights will be proved. That is, from where can we know what the right of a person is? How and who has to determine it? This issue is so complex and as far as I know, in spite of persistent and ceaseless efforts made in the academic centers, universities and academies of the world, the different schools of law have not even arrived at a relative consensus in this context as to what the criterion of right is and from where right arises. Of course, among the different views on this issue, nowadays in the academic circles, institutions and universities, there is one theory which has many votaries, but this does not mean that the discussion is finished and has arrived at the conclusion and the case is solved. In fact, ambiguity still remains.
In general, as to whether what right is and where it emanates, different schools have been formed in the philosophy of law. Among them is the natural law school. On the basis of this school, it is said, “It is the natural right of this person to do these works,” or “The vital right is the right of freedom while some other rights are the natural rights of every man.” Of course, this term is among the Western imported terms which have become part of our terminology. In the Islamic concepts, there is no talk about the “natural law.” Even in one verse, one hadith and narration, or in a religious text, you cannot find anything in which there is talk about “natural law.” The term “natural law” emanates from one of the specific schools in the philosophy of law, viz. the natural law school. Of course, the concept has been expanded and used in other areas.
Since time immemorial, there have been those who believe that every man has naturally specific rights and use the same term (natural law). But there is difference of opinions on the interpretation of “He has naturally these rights.” What does “He has naturally this right” means? Sometimes, they used to interpret that nature gives specific rights to man. In the old texts of ancient philosophies, this type of interpretations could be found frequently. For example, it was said, “Nature has given the right to life and the right of food to every living creature. Nature has given right to every creature which is in need of food to eat food. Nature has given right to every creature which is in need of air to breathe air.
The term “natural right” is pleasant as a literary composition, but in reality it is questionable. What is “nature”? What for does nature give right? What does nature possess to give to others? Does one who is given right by nature have right and does he take it from nature, or he has no right and nature gives it to him?! If the expression “Nature bestows right to someone” is examined closely, we can observe its ambiguity. Is nature a sensible being that gives something to a person? Does it have prerogative to give right to a person, or not? In retrospect, assuming that nature is a being that has a prerogative and gives power and right to someone, what is the need for us to obey it?
How and which power persuades us to respect this nature’s bounty? Now, granting that nature gave the right to life to a creature, why are others obliged to respect this right, not to commit suicide and even not kill animals for no reason? We asked this because we said earlier that there is no sense in saying that a right is proved for a person while in return, others are not obligated to observe this right. Once the discussion reaches this point, different views are expressed by distinguished authorities and profound philosophers in answering this question.
Some of these philosophers, believing in the natural rights, say that this right is God-given and when you say “natural right” it means God-given right. Yet, as you know, among the philosophers and the rest of people there are those who do not believe in God. So, what is the sense of talking about natural right which means God-given right? On the other hand, once we claim that a certain natural right is given by God, we have to prove where and when has God said, “I have given this right.” We can even say to ourselves that God has certainly given these rights to certain people. Instead, we should have proof for it.
Some others have said that the natural rights are the rights which the intellect proves. And a number of them have added that in a sense, these are the same rights given by God which the intellect discovers. At any rate, there are many discussions here with which we have no time to deal at the present, and besides, doing so has little practical outcome and I just want to mention them. Anyway, the most fundamental discussion which we should have in the context of rights is the same discussion on where right essentially emanate from.
Because of these problems and ambiguities existing in this context, a view which is diametrically opposed to the natural rights view upholds that right has no fixed root at all. Right has neither root in nature nor rationality, nor is it given by God; rather, all rights are contractual. In order to conduct their social life in a manner that ensures their interests, peace and security reign, and chaos and tumult are eliminated, men have concluded a series of contracts.
An array of demands is the demand of all. Everyone has these demands and no one can afford to set them aside. This kind of rights has taken the label “natural rights” for itself. Every person wants to be alive. No being can afford to be heedless of its life. As such, they have agreed that this right be recognized as a natural right. Once a creature is alive, it has to take food. So, the right to nourishment is also a natural right which all human beings are in need of. In action, everybody has accepted this kind of rights and no one can deny them. The fact that every person is in need of a house and that he has to dwell in a certain place is undeniable. In reality, there is an implicit and unwritten agreement that since all persons have these needs, it follows that these rights shall be proved for them. The result of this agreement is the same natural rights.
Thus, natural rights, in accordance with their contracts, mean that they have been given neither by nature, God, nor reason. They are rather demands which exist in all people who cannot deny them. In the positivist law school, natural rights are acceptable only in this sense and all rights are contractual. In the philosophy of law, the positivists believe that all rights are contractual. As in the philosophy of values and the philosophy of ethics, they also believe that the values goodness and badness are in accordance with the contracts of the people and society. By accepting this foundation, they are no more in need of explaining why this right exists because the people themselves have accepted it. As such, the acceptance of contract as the foundation of rights leads to the acceptance of democracy.
But this question still remains: If some people somewhere did not accept the said contract, what would happen? In reply, the positivists say, “In the relationship among individuals of a society, if a person does not accept it, he has to follow the majority. When in a society the majority of people have accepted that a certain right is proved, if a number of them would say, “We do not accept it,” there is no alternative but for this number to accept it also, otherwise they oppose democracy. There is no other way. Within a society, whatever the majority say should also be accepted by the minority. Of course, as much as possible, one has to strive so that the rights of the minority are not eliminated. In any case, the principle is that whatever the majority accepts should also be accepted by the rest. The positivists solve this problem in this manner in the domestic law and within a society.
Yet, in the relations among societies and international law, when there is difference between two societies and two states (of course, the state as the representative of a society), who shall determine the rights? It is here that international conventions and agreements are formed. If the representatives of states agree and sign the agreement, that common right shall become binding for them, otherwise no one has any right over another. What are dominant nowadays in international relations and on the basis of which international disputes are solved and cited as the legal basis in international courts are the same conventions such as the law of the seas, law of the space, outer space law, and the like.
Of course, in practice, when the majority of countries or the superpowers, accepted a thing, they also urge the rest to accept the same. Theoretically, international law is based on agreements between two societies or among many societies. Of course, given this assumption, the problem also exists usually governments are not representatives of their people and are voted for under the influence of different factors. In this case, what is the need for the people of those countries to comply with those conventions? For the meantime, we are not engaged in criticizing these theories, and the main point is that once it is related to two persons, they have to agree upon and accept a matter together.
But within a society since there is the possibility of opposition to arise and general consensus cannot be achieved, the majority vote is the criterion. In international relations also, the law among nations is established through the agreement of their representatives, viz. the governments. Of course, as to the case where certain people have the right to set rights for all societies and impose the same to others as the international rights, there are different theories. In this context, some were extremists and others exaggerated. Among the legal experts there are those who believe that a number of people may promulgate laws and impose them on others especially in the case of the existence of violation of the human rights.
Regarding human rights, there is no need for the approval of all states. If a state opposes and does not sign a convention, or for example, does not sign the 1948 Universal Declaration of Human Rights, others have the right to impose the articles of those conventions or the Declaration on the said country. This theory has been recently mentioned in international law.(It is mentioned as the general principles of law. Technically, “general principles of law” is said to refer to a set of principles which no country, including the non-signatories to pertinent conventions, is ever permitted to oppose and make a contrary step).
The ramifications of all these can be traced to the philosophical theory which states that rights are conventional affairs and in accordance with contracts. On the contrary, some believe that rights are real affairs which are discovered by the intellect, endowed by nature, or given by God (with the different views mentioned in the context of natural rights, rational rights and divine rights).
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