The Attributes of ‘Rights’ in Islamic and International Jurisprudence: A Comparative View
Nurulbahiah Awang 1* Nik Salida Suhaila Nik Saleh2
1 Tenaga Nasional University of Malaysia
2 Islamic Science University of Malaysia
*Corresponding author: nurulbahiah@uniten.edu.my
ABSTRACT
Harmonization of law with regard to the rights of women in Islamic and international jurisprudences is imperative for the women development in private and public spheres at national and international levels.
Misunderstanding on the attributes of rights leads to the negative implications whenever individual women and the community of different religion and culture follow similar attributes of rights which resulted to the discriminatory view of different people. The differences in application with regard to the rights of women in marriage and family relations do not mean that the harmonization process of law cannot be realized since both jurisprudences have similar objective that is to achieve justice and equality in a society irrespective of gender. This paper discusses the attributes of rights on gender issue in Islamic and international jurisprudences using the comparative analysis based on the feminist critiques on rights and Islamic principles of rights applied in the interpretation of the term ‘haqq’ and ‘rights’. This paper finds out that, both jurisprudences share similar principle of rights towards the concept of gender equality by considering the differences way of life of different people in terms of their belief, culture, sex and legal system.
From the analysis made, they are five attributes of rights which should be considered in law in its form and application which are i) collective rights prevail over individual rights; ii) cultural rights should be acknowledged in the meaning of universalism; iii) rights must come with duties; iv) the coverage of rights should be both private and public spheres; and v) the application of rights are in accordance with the classification of nature and nurture. These attributes of rights are meaningful for the harmonization process of law with relates to human rights.
Keywords: attributes of women’s rights; gender equality; cultural and universal rights.
Received: September 2016 Published: January 2017 JGD Vol. 13. Issue 1, January 2017 79-104
INTRODUCTION
The arguments on the interpretation of ‘rights’ in both Islamic and international jurisprudences are important to be discussed to explore whether they are compatible each other. It is also important to establish the right and ideal concept of ‘rights’ towards the concept of ‘equality’ as guidelines for the positive empowerment of women in building the nation. In addition, the right and ideal definition of the term ‘rights’ in Islamic and international jurisprudences could accommodate the application level. Thus, it will avoid any misconception on the term and the attributes of ‘rights’.
‘Rights’ and ‘justice’ are inter-connected. “Humans creation” and
“social need” are also inter-related. Therefore, ‘rights’ which are universally applied and accepted must act on the principle of justice. It is not necessarily of having similar rights to all parties but adequate by acknowledging differences in order to achieve equal result. The establishment of justice for all human beings in human rights discourse can only be achieved whenever the interpretation of the term ‘rights’ acknowledges the differences in sex, religion and culture as Donnelly (1984) argued ‘moral rules and social institutions evidence an astonishing cultural and historical variability’
(O’Sullivan, 2000).
Malaysia, a country which practices a dual legal system i.e. Islamic law and Common law, the differences in human rights practice at national and international levels show that what matters is not religion itself, but rather religion’s social carrier, religious thought and interpretation (Iyad Barghouthi, 2014). Therefore, the right and ideal attributes of ‘rights’ are crucial to be established to eliminate any kind of discrimination and misinterpretation on the concept of equality whenever different entitlement to the rights and duties between women and men are provided in the provision of law.
Therefore, the construction of law based on the notion of ‘social justice’ with the right context of rights will benefit the programmes on the empowerment of women at the national and international levels.
The Interpretation of the Term ‘Rights’ in Islamic and International Jurisprudences
It is criticized by Critical Legal Studies Movement that statement of rights is indeterminate and thus highly manipulating both in a technical and more basic sense (Hilary Charlesworth, 1995). In searching the ideal meaning of ‘rights’ to be universally applied, the authors examine the term ‘rights’
from the perspective of the sources and methodological aspect of Islamic law to answer whether it is compatible with international jurisprudence. The authors employ the interpretation of the term rights in both jurisprudences by Hashim Kamali (1993), Nik Salida Suhaila (2012), Mohammad (2003) and Baderin (2001).
The literal meaning of ‘rights’ used in the Holy Quran is the term
‘haqq’ or its plural ‘huquq’ which has been mentioned 287 times. It is used for 18 different meanings (Mohammad, 2003). The various meaning of rights or haqq in Islam covers all aspect of human rights herein and hereafter. There are also a lot of discussions on the term haqq among Muslim Jurists. Hashim Kamali (1993) said that a precise definition of haqq has never been enunciated whereby earlier religious scholars have relied on its literal meaning while modern scholars have tried to offer a broad definition.
In Quranic terminology, haqq is substitutable with duty (wajib) (Hashim Kamali, 1993). Hashim Kamali said further that although haqq defines right as opposed to an obligation (al-Quran, Al-Dhariyat 51:19), the Quran does not distinguish either as the dominant meaning. Infrequently, he added that haqq denotes the Muslims’ ultimate victory and salvation as a certain outcome (al-Quran, Yunus 10:103; Al-Rum 30:47). Haqq also mean as cause of justice (bi al haqq) and the truth (al-haqq) (Al-Quran, Al-Baqarah 2:42).
From this interpretation of Haqq, al-Bahiy (1973) concluded that haqq is inseparably linked with justice and benevolence (‘adl wa ihsan) and become the eventual values sought wherever haqq appears in the Quran (Hashim Kamali, 1993). According to Baderin (2001), from the discussions on the interpretation of the term haqq, nearly all Islamic jurists tend to define haqq with reference to maslahah, therefore the decisive end of rights is maslahah which means welfare, benefit or interest. Moreover, Yusof Musa and Shalabi define right as maslahah which does not restrict the right to the concept of community but include the individual rights.
Hashim Kamali (1993) maintained the primary meaning of haqq as ‘established fact’ or ‘reality’ (al-mawjud al thabit). In the context of law, the dominant meaning is ‘truth’ or ‘that which corresponds to facts’.
He further stated that, ‘right’ in the field of law means ‘power’ and ‘claim’,
‘beneficent and public good’ (al khayr wa al maslahah). However, the most frequently used are the meaning of certainty, conformity to reality, and truth.
The opinion of jurists, lexicographers and others are referred for clarifying the definite meaning by looking into the context where the word is used.
The important meaning which is relevant to legal discussions are property (mal), ownership and possession (milkiyyah), due (nasib), just allocation (hissah) and share (hazz/saham) (Mohammad, 2003). Muslim jurist like Al-Sabuni has distinguished moral rights from legal rights on the basis of judicial recognition. A right whether it is haqq Allah or haqq ‘abd, is legal if it could be enforced or recognised by court of law; otherwise it is moral. In that situation, it can be only for the sake of proof and judicial recognition and not in the law itself since Islam ties law and religion.
Nik Salida Suhaila (2012) and Mohammad (2003) contended that Arabs used haqq for ‘rights’ as a correlative of duty, litigation and lawsuit (khusumah) in their analysis of the term ‘rights’ in Islam and common laws. It was stated that few Muslim jurists like al-Sanhuri, al-Kabashi and al-Durayni have enthusiastic independent titles to the concept of ‘rights’. Nevertheless,
al-Sanhuri defines ‘rights’ from a perspective of civil obligations. On the other hand, Al-Durayni explains on the roles of human beings in nature and nurture due to rational creature. Al-Sanhuri observed this view broadly, in a sense that ‘rights’ are therefore restricted by public good and the interest of majority. Thus, this has come to the assumption by some of the jurists that the word haqq is neutral between right and duty. This means that haqq is not only concerning the duties and obligations of a person towards others but also towards God throughout all spheres of life herein and hereafter.
Therefore, the word ‘rights’ or haqq in Islamic jurisprudence which inculcate the meaning of rights and duties is used to maintain justice within human social, legal, economic and political life since they have the rights and duties towards each other to enjoy this life here and hereafter as the ultimate joyfulness.
By applying the concept of haqq by al-Bukhari which means definitely exist without any doubt, the term haqq is used for the rights of Allah (S.W.T.) (public rights) and rights of man (individual rights). The jurists have also used haqq denoting for tangible and intangible property as well as the benefits and interests which are owned by an individual person.
In Islamic jurisprudence, the Lawgiver is the highest law and The Almighty whereby Mohammad (2003) claimed that haqq is used to imply conceptual interests, which exist because the Lawgiver has validated them. For example, the classification for the rights of Allah is for the benefit of all human beings without being limited to any particular group or individual.
In Western discourse, there are enormous efforts being done in defining the literal meaning of ‘rights’ (Nik Salida Suhaila, 2012). Further, according to her analysis of rights in Islamic and international jurisprudences, the ‘rights talk’ develops in the primitive period with the notion of natural rights (Griffin, 2001), from the idea of natural laws. This idea on the analysis and theories of rights dealt with the political philosophy of Swift (2001), Freeman (2000), Wolff (1996), Jones (1994) and Freeden (1991) discuss in social science built. The concepts of rights referred by Nik Salida Suhaila are based on the theories of legal rights created by Lacey (2004) and Mohammad (2003). According to Lacey (2004), there are four influential attempts to construct the framework of rights. Lacey confirmed Hohfeld’s application to right which are claim, liberty, immunity and power. It was stated that most of the human rights concepts are defined by scholar according to the Hohfeld’s idea of rights. I traced that, Nik Salida (2012), Lacey (2004) and Hohfeld (1946) claim that ‘rights’ as a claim are a demand to something, and can be made of someone else who has active duties to perform or to provide something. According to them, liberty or freedom is also part of the meaning of rights which means free to do something supported by other rights which is claimed that other person could not restrict with the exercise of that liberty (Hoffman, David, and John Rowe, 2003). Another meaning of
‘rights’ based on Hohfeld’s idea is the power to do something or to create a legal relationship which affects other people.
In Islamic jurisprudence, the term ‘rights’ was implying ‘duties’
(Nik Salida Suhaila, 2012). Clapham (2007) stated that Bible can also be read to declare not only rights but also duties. Renteln (1990) claims that rights correlated with duties and Austin (1995) measures duties ground the rights and rights to exist only when others are bound or obliged by law to do or forbear towards or in regard of him. Orend (2002) states the rights holder and duties bearer come together. But the term ‘rights’ positioned the rights holder as a more prevailing party than duties bearer who may generally exercise their rights as they see appropriate. Donnelly (2007) stresses more analytically on the relationship between rights and duties when he agrees that rights involve a special set of social institutions, rules or practices due to the fact that, nowadays it stands at the very foundation of political morality.
All of these arguments show that rights and duties are correlative used to be dominant one among philosophers (Lyons, 1970; Martin and Nickel, 1980).
In the discussion of the term ‘right’ in the context of theology, Valentino Cattelan (2009) argues that in the current globalisation of legal studies, international law is increasingly losing its monumental centrality in favour of a reality of legal pluralism (Glenn, 2004; Merry, 1988). Islamic law on the other hand, represents the theory of justice in accordance with the divine authority in the creation of reality based on the fundamental concepts of hukm, ‘rule’, ‘decree’, and haqq, ‘right’ as ‘real’, ‘true’(Cattelan, 2009).
He also refers to Santillana (1926) who claimed that in Islam “every question of law is also as a matter of conscience, and jurisprudence is based on theology”. In Islamic jurisprudence, the God is the only Creator, and human beings become responsible by ‘acquiring’ (kasb, iktisab), ‘performing’ the action created by God (Gimaret, 1980; Watt, 1985; Frank, 1983) whilst the whole Islamic way of life is “being rightly guided” (Netton, 1989) by the Holy Quran and Hadith of the Prophet. As stated by Cattelan (2009), the Islamic theory of justice (‘adl) also relates with rights and duties of human being which reflect the cultural hypothesizes of Islamic religion. In spite of that, the authors agree with Cranston who states that ‘a human right by definition is a universal moral right, something which all men, everywhere at all times ought to have, something of which no one may be deprived without a grave affront to justice, something which is owing to every human being simply because he is human’. Hence, the moral or religious rights and duties are important in determining the right and ideal attributes of human rights for all human beings.
Reading through Sir John Law’s inspiring article, “The Constitution:
morals and rights”, it was cited that the notions of ‘duty’ and ‘morality’ are indeed an integral component of the Western discourse on rights, despite the fact that these may not appear as obviously as in non-western discussion on the matter. On the other hand, Abdul Aziz Said (1979) highlights the element of religious duty when defining the Islamic concept of human rights by stating that Islam: “Is a belief system predicated fully upon haqq, which is the Arabic word for right. But haqq is also truth. It is justice. It is duty. It is
the word of the Divine. Haqq is God. The essential characteristic of human rights in Islam is that they constitute obligations connected with the Divine and derive their force from this connection”.
The Islamic human right is in accordance with the biological nature and physical ability of human as Islam is the religion of nature (Maulana Waliduddin Khan, 1995). An-Naim (2009) asserted that claiming Islam as fully reliable with human rights is awkward as many rights given in Islam are based on gender. But the indication that makes human rights in Islam is totally unpredictable with international standard is objectionable. It is because different entitlement to the rights and duties according to gender in Islam might result to equal dignity and justice which aimed by the international jurisprudence. Indeed, certain rights and duties are provided explicitly to women and men purposely to guarantee equal dignity and justice as Islam escalates biological differences (Sheriff, 2007). Equality in Islam does not necessarily in the context of similar treatment for those who are in different position. Thus, as women have differences in spite of similarities with men, Islamic jurisprudence appreciates this differences whereby it provides a particular concern to the special group like women. Islamic jurisprudence guarantees that different entitlements to the rights and duties between women and men do not contribute to the subordination of women but provided as the protection for women.
The only difference in the discussion of the term ‘rights’ in Islamic and international jurisprudence is on the division of ‘rights’ whereby rights in Islamic jurisprudence includes the rights of God. The sources of Islamic jurisprudence do not derive solely from human to human but primarily from the Creator (Cattelan, 2009) to the creature especially human being.
The classical and post-classical Islamic jurists unanimously agree on the division of rights into Haqq Allah and Haqq al-‘Abd. Haqq Allah refers to an act of devotion or religious worship or something that is for the interest of community at large. It means that to uphold justice in society, the best way is to firstly look at the interest of the community rather than individual (Mohammad, 2003). The right of God consists of value without which the success of civil society is unachievable. It is called Haqq Allah because the desecration of such right jeopardizes both the offender and the society.
Respect for such a right is the duty of every individual as well as the state, and its violation is the cause of liability in this world and blame in the hereafter since Muslim believes that the sources from the Lawgiver is the best guidance for successful life herein and hereafter.
Mohammad (2003) in his explanation on the rights of God in Islamic jurisprudence, argued on the precepts and practices. In Shari’ah principle, there are no absolute rights except right of God. However, in practice where the collective right of society and the private right of an
individual or a class of individuals merge in the same act but the collective interest is apparently more important, Shari’ah gives priority to the interest of society. It is called the prevalent right of God. Prevalent right of God is illustrated by the prohibition of suicide, wasting of property and so forth.
On the other hand, where an act violates both the right of Allah and the right of man, but the consequences of the violation are more detrimental to the victim or his relatives, in such a case priority is given to the right of man. The significant of the classification of both rights is evident in both substantive and procedural or the primary and secondary rules of law. It relates with the duty and responsibility of the person who attain the age of majority or legally competent person. The objective of the hierarchy system in Islam is to make sure that all humans enjoy their life in accordance to their nature and nurture. Rules involving the rights of God or the rights of man may deal with the interest of all subjects irrespective of their legal capacity. But when a wrong is committed or it is a matter of personal liability, Muslim jurists suggest that both under Haqq Allah and Haqq al-‘Abd, contractual promises and penalties are imposed on legally competent persons only (Abu Zahrah, Ahmad Hasan, n.d.).
On the other hand, the international law which is based on western common law, all rights derived from either moral principles or the will of the legislature without concerning the right of God (Mohammad, 2003). The concept of morality in common law proceeds on separation between religion and law in contrast with Islamic law. Under secular (the separation between religion and law) percept of morality, principal characteristic of moral right is the feeling of guilt, remorse, and shame but in Islam the psychological feeling and spiritual guilty has connected to the fear of God in violation to the right of God. Thus, it shows that the Islamic ruling inter-related with nature and the absolute rights of God.
In the analysis of the interpretation of the term ‘rights’ in Islamic and international jurisprudences, it can be concluded that both jurisprudences agree that i) to maintain justice for all people, the term rights should imply duties ii) in the practice of social justice, the collective rights should prevail over individual rights iii) moral rights or cultural rights is detrimental to the formation of universal human rights iv) the coverage of rights is widely used in economic, politic and social aspects including private and public sphere. However, the major different between these two jurisprudences are on the foundation of religion whereby the derived concepts of Islamic jurisprudence are based on Shari’ah (its Divine sources) and fiqh (the methodology, intelligent and wisdom used by human as a product of the divine hukm is from God). On the contrary, the current international human rights jurisprudence is founded from Western common law (where the rights are ‘powers conferred to the person’ derived from Christian ethics (Cattelan, 2009).
THE ATTRIBUTES OF RIGHTS IN ISLAMIC AND FEMINIST JURISPRUDENCES: A COMPARATIVE VIEW
The feminist movement must act in accordance to the attributes of rights based on the nature of law, culture, sex and religion in order to maintain justice. The attributes (in this research means the principle or the notion) of rights can be determined by the interpretation of rights and its application in a specific community and belief with it rights context. From the definition of rights above, both jurisprudences share similar principles of rights in establishing justice such as rights including the collective and individual rights, rights must accommodate cultural rights by acknowledging differences to be universally accepted, rights must correlate with duties and the coverage of rights should comprise private and public spheres of life. The only difference is on the classification of nature whereby God has absolute rights and violation on the rights of God is a big sin. Therefore, the term ‘rights’ which means liberty, claim, interest, choice, possession, duty and responsibility in both jurisprudences have to apply similar principles of rights to establish justice by acknowledging the differences of culture, the ability of women based on biological function and their different of belief.
Collective Rights versus Individual Rights
Do the individual or collective rights prevail in the context of human rights under the principle of justice? This may be elucidated by the fact that society is actually made up of a collection of individuals. The individual is not however addressed as an isolated entity but as part and parcel of the community. Therefore, human rights which is based on the individual right per se will probably discriminate against people or create unjust to some group of people.
By giving priority on the collective rights in enacting the laws, they are not neglecting the individual rights because collective rights are comprises of individual interest. Collective rights are made based on public interests which comprises of some of individual interest. Public interests are rights belong to citizens but are vested in and represented by political entities or state or government. Public rights cannot be represented by private citizens because it is the duty of certain authority which has been empowered by the state or government on that particular interest. Whenever a private person represent himself in the court of law based on his or her own interest and claim, it means that person has private rights. Even though public rights prevail over private right but there must be a private right for a citizen to have his or her private claim. Therefore, not only public rights but also private rights are important in order to maintain justice for all people. Islamic and international jurisprudences recognize individual autonomy or private rights as far as it does not violate similar rights of others as individuals or as a community. Hence, the rights of the society or collective good override private rights and yet the community is required to
respect the personal autonomy of individuals, and provide equal opportunity for all (Mohammad, 2003). Therefore, whenever the rights of the society is compiled by respecting personal autonomy of individuals, it will eliminate any discrimination whereby equal opportunity is given for all considering the differences between them in belief and culture, biological and physical nature.
Lacey (2004) claims that ‘individualism’ is the key criticism.
Whenever the subject of human rights is only the individual and not the community, it will defeat the interest of person with less power or authority or ability. Individual rights also concern on the rights and duties between the parties for example a wife and a husband. But, a wife and a husband have the rights and duties towards themselves and their family such as children, parents and siblings. Therefore, in this relation of a family institution, in spite of individual rights, there are also collective rights of a wife and a husband in order to enjoy their family life. In terms of duty-based approach where the duty is owed to the state, it is called public duty but if a duty is imposed for the interest of private individual, it is private. In the issue of the age of marriage according to Islamic Family Law (Federal Territories) Act 1984 (Act 303), it is on the state to decide the best decision for the community based on the need and custom of the society. For example, Section 8 provides the minimum age of marriage of male in this country is eighteen. It is believed that at this age, a male is considered competence to become responsible for his wife and his family. At this age, he can get a driving licence, complete the high school education and probably will have a job to maintain his family. In this situation, it is the public duty to decide on the average age of marriage according to the need, place and situation.
However, men according to Shari’ah are given private rights if at the age of below eighteen, they could do crime or sin and could act against the public rights while marriage is forbidden by law at that age. In this case, the state upon permission by the parties and deliberate proof could permit the marriage to prevent other harm to the community or individual in the community. It is upon the judicial power to decide. Thus, where the duty is for the enforcement of the rights of particular individual primarily, though it affects public interest secondarily, the obligation is private. However, where a duty protects public interest primarily, and also affects private individual indirectly it is public (Mohammad, 2003). So that, the protection of public interest primarily will not infringe the right of individual but protection of individual interest primarily most probably will infringe the rights of others.
On the contrary, secular jurist in giving of sexual liberties only look into the principle of freedom for the individual without considering the increase of crime, immoral act, waste of life and property and dignity in the society. Whenever immoral act is considered as individual rights and individualism has taken priority over communal values (true humanism as stated by Mohammad, 2003), it seems that they only concern on the rights and neglects the duties towards the community as he or she also part of the community. They left behind the spirit of brotherhood whenever concern
on the individual interest alone. Therefore, it contradicts the core element of social justice that is human equality and also the fundamental element of Universal Declaration of Human Rights (UDHR) that is the element of brotherhood as the fundamental element in human rights as stated in Article 1. Thus, by giving priority on the collective rights in enacting the laws, they are social veils which when elevated disclose nothing but individuals.
According to the Muslim scholars, any enacted law must conform to divine revelation first (Shari’ah)1 and secondly the rational fundamental (fiqh)2 (Mohammad, 2003). Thus, any matter of rights and duties are determined by reference to the primary sources and true human values where the great and common welfare of humanity is preferred over well-being of selected groups and individualism is balanced in a manner which does not violate the rules of Shari’ah. Maslahah or public interest as discussed earlier on the interpretation of rights shows that the ultimate goal of rights is for the benefit of the community which comprises of the benefit of individual in that community. Muslim jurists have tried to maximise the preservation of human life value to the extent that even remote causes of its destruction are prevented. It is called ‘maslahah’ whereby maslahah is also one of the meanings of right in Islam. For instance, in marriage and family relation under Islamic jurisprudence, the couple could be compelled to get married if they cannot control their lust by fasting. However, this does not mean that they have no right to choose. Islam teaches on the method how human should act in different situation with the guided revelation. Islam teaches on the priority action should Muslim act in order to prevent further harm or bad implication for himself and the community in the future. In Islam, a couple who had sexual intercourse before marriage is against Islamic law and also considered as sin not only immoral and downgrading their dignity and should be sentenced. The sentence is for both because they are equally responsible for their action except there exist the element of coercion. Morality, dignity and sentence in Islam can be regarded as the preservation of human rights because by having sexual intercourse a woman might pregnant and she might kill or abandoned the fetus or child and Islamic law is trying to preserve human dignity and life. In Islam, even fetus in the womb of the mother is given right. It is often argued that the material aim of Islamic law is public or societal regulation and thus it contradicts the concept of individual liberty 1 Literally Shari’ah means path to be followed. It refers more to the sources of deriving Islamic law. In the strict legal sense Shari’ah refers to the corpus of the revealed law as contained in the Qur’an and in the authentic Traditions (Sunnah) of the Prophet Muhammad (PBUH). The legal significance of this distinction is that Shari’ah as a source of Islamic law is considered divine in nature and thus immutable.
2 Literally Fiqh means understanding. It refers more to the methods of un- derstanding and deriving Islamic law. In the strict legal sense, Fiqh is more appropri- ate as Islamic jurisprudence, meaning the legal interpretation and application of the Shari’ah. The legal significance of this distinction is that Fiqh as the understanding, interpretation and application of the Shari’ah which is a human product that may change according to time and circumstances.
in human rights. It shows that Islam views human dignity as high value of human beings and thus the promotion of value is considered an important aspect of improving human dignity.
We can say that international and Islamic jurisprudences share similar principles in the attributes of rights whereby collective rights prevail over individual rights but not in the absolute power of God and the inter- connected of the rights of God in the whole breath of Muslim life including public and private spheres. However, both share the similar ultimate goal that is to protect the individual from misuse of power by the State and to protect the community from the infringement of rights by individual person who usually misuse power. Other difference is that Muslims are entitled to equal protection before the law that is Shari’ah law which is the Divine law and the Lawgiver is the Creator of this universe; whereas at international law and more specific in secular system, all human beings are equal before the law that is derived from human wisdom and human is the lawmaker and has the ultimate power. However, in Islamic law, by having the rights of God as the principle belief, there exist correlative duties upon human beings which ensure that certain fundamental human rights are protected both in the private individual interactions and between individuals and the State (Baderin, 2001). Mohammed Arkoun (1994) is of the view that “Islamic thought always included a discourse on the rights of God and the rights of man (huquq Allah /huqu ‘abd) with the former having primacy and priority over the latter.
Some western commentators addressed that Shari’ah does not recognise rights but only obligations (Hashim Kamali, 1993). Sachet (1970), Gibb (1955) and Siegman (1964) quoted that Islam does not recognise the idea of an individual having inherent rights, fundamental or otherwise. As argued by Hashim Kamali (1993), Islamic jurisprudence concerns with the relations between the Lawgiver and the recipient of law which inspired by the ideals of unity and integration rather than duality of their respective interest.
He commented that modern constitutional law and constitutionalism as such, champions the rights of the citizen when dealing with the ever-expanding power of the state. For example, Malaysia practices constitutional monarchy and parliamentary democracy which uphold both individual liberty and state power. According to Dawam Rahardjo, the state is responsible for the liberty of individual through the determination of civil rights and human rights.
If liberty of rights not offset by the power of the State, it became anarchy (individualism extreme) (Budhy Munawar- Raehman, 2010). Therefore, extreme individualism will probably cause inequality and discriminate others. Thus, in order to establish justice, individual rights must not go beyond civil rights that the duty of the state to control the individual rights.
Civil rights will protect the public rights and at the same time individual rights also being protected. Thus, collective rights or public rights will never neglect the individual rights or private rights.
Cultural Rights versus Universal Rights
Failure to acknowledge differences of religion and culture are the most challenging issues in the implementation of international human rights law.
Donnelly divides cultural relativism into two categories: strong and weak. He argues that strong cultural relativism upholds that culture derives solely the values and morals of the society, while the universality of human nature and rights checks the potential for any extreme relativism (O’Sullivan, 2000).
Therefore, the acknowledgement of variety of the differences is important to establish justice in the society. It also has been argued that universality in human rights is important but the scope of universality must not only refer to certain culture, belief and ideologies but the concept of universality must take into consideration the basic of human dignity which is in accordance with the differences of religion and belief and also the culture in that society.
It means that the interpretation of universality must acknowledge the differences in nature (religion and biological) and nurture (social construct) of people. O’ Sullivan (2000) refers to the argument made by Donnelly who argues that 'human nature' per se is, to some extent, culturally relative." In addition to that, the diversities in human being particularly in their social culture influenced on the shaping of person in their organizational system and law. He gives an example on the differences of rights between women and men in the modern Western and traditional Islamic societies. Donnelly also asserted that 'in any particular case, "human nature" that is the realized nature of real human beings, is a social development as well as a "natural"
creation. He explained further by claiming that human nature, at the levels of individual, group and species, have a broad variety of opportunities which differ if not wholly but partly due to specific cultures. However, Donnelly rebutted the charge that all behaviour is eventually genetic, by stating that the very expression of such genetic legacy is in fact, culturally moulded and determined.
On the other hands, the critiques of cultural rights and universal rights basically highlighted on the scope of ‘universalism’ whereby cultural relativist argued that justice cannot be upheld for all human around the world because in reality they are from different cultures and rules of law. In order to uphold justice for all in the context of current meaning of universalism, it is more ideal to apply cultural rights rather than universal rights because the scope of universalism as provided under UDHR was developed from the Greek philosophy, Roman law, 17th and 18th century English, French and American Revolutions (Sadia Rehan, 2012). Sadia Rehan argued that the idea of UDHR is developed by human philosophers for human. The aim of UDHR is to advance the aim of cumulative safety and harmony in the international regime (Nik Salida Suhaila, 2012; Renteln, 1990) similar with Universal Islamic Declaration of Human Rights (UIDHR). Some articles in the UDHR prompt vital human needs, which leave to the broad and different interpretation and its implementation to the single states (Nik salida Suhaila, 2012; Douzinas, 2000). For example Article 3 to 6 of UDHR could be
interpreted differently according to the local law of the state to eliminate discrimination. Even though, the UIDHR was presented as a response to the apparent exclusion of Muslims from the domain of international human rights as propounded in the west, there is indeed Islamic human rights which has been allocated by UIDHR has similar objective of protecting human through the principle of peace, safety and justice. It is expressly stated in the first forward statement that UIDHR aims at conferring honour and dignity on mankind and eliminating exploitation, oppression and injustice. The only difference is the UIDHR provides on the idea of freedom which was an essential right given by God and no one could take it away from a human being. The provisions of UIDHR was written by representatives from various Muslim states such as Saudi Arabia, Egypt and Pakistan under the auspices of the London based Islamic Council, a private organisation affiliated with the Muslim World League (Nik Salida, 2012; Bielefeld, 2000 and Mayer, 2007). It was stated that all 23 Articles of this Declaration are based on the verses of the Quran or on ranges of official Sunni compilations of Hadith.
In Islamic jurisprudence, the respect of human rights is a basis condition for, concerning the rights of God. Thus, the religious belief and biological differences should be considered in the ideal attributes of rights in human rights discourse. If not, human rights law will discriminate against people. As Nik Salida Suhaila (2013) noted that restrictive the human nature, personality and potential of rights in maintaining justice to each and every different human being could be the basis of criticism of rights. She further claimed that it is imperative to put rights into the right context with a positive instrument which the term rights are developed to a non-gendered product of laws which consider collective interest. She contended further that the implementation of rights is not for just one person or class but both individual and collective rights have to be considered as object of rights.
Could the concept of cultural rights be added or acknowledged in the meaning of international universalism on human rights? The authors argue that both elements of culture and universal are important to uphold justice at human rights discourse. It has been contended that the meaning of ‘universal’
in itself includes culture whereby universalism denotes the notion of human rights which could be generally accepted by acknowledging differences in human being. Therefore, the authors deduce that international human rights law to become worldwide universal must put or acknowledge the element of cultural diversities whereby no specific moral principles which against the belief and faith of specific religion can be made to apply to all cultures in the declaration.
In the globalization arena, recognizing negotiations on human rights among each culture should be a great emphasis where the term is common, but the rights are explicit in each cultural context. This would be the main cause of misunderstanding on the application of rights in different cultural and legal context. O’ Sullivan (2000) contended that if there are truly human
rights, then these have to be the rights of particular people. It means that, the universality of human rights can only be achieved by considering different rights of different people in the declaration of human right.
From the above discussion, the scope of universalism in maintaining justice should acknowledge the different belief and culture of different people. All rights are not necessarily based completely within specific cultural social rules, as there would be no conventional definition of human rights.
The authors noted that the possibility of having conventional definition of human rights is by considering to put the provision ‘equal dignity and justice in accordance to the culture or belief of certain people’ in the preamble of UDHR. Since then, Musawah3 has recognized the compatibility between the concepts of equality and justice in Islam and international human rights context as recognized by the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). In spite of that, Musawah acknowledged the critical needs of such human rights standards, which could guarantee all women a standard mechanism in applying their culture without being discriminated. Although women in several places suffer a lot of discrimination, it is not fair whenever women’s roles, rights and duties within the Muslim family have become politicized whereby women and family laws becoming the symbols of cultural reality influenced by religious teaching. However, the social reconstruction on the rights and duties of Muslim in the family institution is difficult since many Muslims believe that the Muslim tradition which sometimes are wrongly applied are in accordance with the teachings of the religion (“CEDAW and MUSLIM FAMILY LAWS In Search of Common Ground,” 2011).
With relate to the concept of gender equality in marriage and family relation, the authors argue that family is the primary foundation of social life for every human being. It contains of biological, physical, psychological and cultural differences. Adeeb Aqeel (2006) argued that people live in the structural culture, not just because by they are human beings, but because they are living beings. The living beings can undeniably balance the functions of their biological and social life within the context of specific cultural roles. According to the contemporary argument derives from the natural rights tradition, the main basic rights that are mutual to all cultures, in spite of different ideologies among worldwide people is the biological basis of morality. It was a possible alternative argued from a sociological perspective in order to achieve the harmonious situation from human depression. This proclaims that general opposition to human suffering is 3 Musawah (‘equality’ in Arabic) is a global movement for equality and jus-Musawah (‘equality’ in Arabic) is a global movement for equality and jus- tice in the Muslim family. It was launched in February 2009 at a Global Meeting in Kuala Lumpur, Malaysia attended by over 250 women and men from some 50 coun- tries from around the globe. Musawah is pluralistic and inclusive, bringing together NGOs, activists, scholars, legal practitioners, policy makers and grassroots women and men from around the world. www.musawah.org.
whenever any difference exists in a place and time between people is not being considered. The ultimate objective which such inquiries seek to obtain would be the ‘lowest common denominator’ of the basic human rights. If it is established across all societies and cultures, then it could be indisputably considered truly the right and ideal ‘universal’ human rights.
Thus, we found that the common ground of universality between Islamic and international jurisprudences on ‘human right’ and ‘gender equality’ is the principle of human dignity, the element of brotherhood and sisterhood and the principle of social justice. In Islamic jurisprudence indeed, Muslims are command for several times at all circumstances to maintain justice and it is fundamental and the basic stance in Islamic philosophy of rights which the measurement and guideline for the establishment of the attributes of human right are based on biological, physical, psychological nature of human being and cultural and religious nature and nurture of the society.
Rights & Duties versus Rights only
Shari’ah gives priority to some values and stresses on the rule of duty which leads to the preservation of the basic rights. It means that Islamic jurisprudence implies the concept of rights and duties in daily life especially in legal jurisdiction which connected with contracts or agreements between contracting parties. The importance of this is that it inculcates the sense of responsibility within the society. It teaches the individuals that duties comes first and claim later (Mohammad, 2003). All rights and duties have deep foundation in moral obligations, and Islamic law is no exception. Despite this and the voluntary submission to God’s will in Islam (ethical volunteerism) Islamic jurisprudence is ‘concentrated on the idea of rights’. As Hashim Kamali (1993) describes, ethical volunteerism is a ‘pattern of relations between the Lawgiver and the recipients of law’. Submission to the will of God and His Law, and thus recognising duties as the primary foundation of Islamic legal system does not negate recognition of rights and principle of justice within Islamic law. In achieving gender equality for instance, Islamic jurisprudence gives women and men different rights and duties in marriage and family matters to ensure the harmonious life for the benefit of the whole family. Even they sometimes do not have the same roles but in fact they are complimentary each other suitable with their biological, physical, emotional and social culture. The distinction between them is to complete the needs of the family members and also the society as a whole.
The authors agree with Mohammad (2003) that restricting justice to the concept of rights alone is over simplification and in fact prejudicial to justice. What happens to the society if everybody only concerns on their rights and neglecting their duties? Claiming on the rights without performing duties will probably increases the social problems and not resolving it. How could the nation be developed with this situation? Human would not become
humane without the implementation of rights and duties in accordance with their nature. They lost the sense of love, consideration and understanding because they only think of claiming their rights rather than performing duties.
This situation will create uncivilized society and increase the immoral act, crimes and tyranny whenever the individual in the society do not perform his or her duty but only claiming on his or her right. Justice demands enforcement of rights and duty both. In other words rights must correlates with duties. Otherwise, the rule or law will cause unjust to the individual and the community. According to Mohammad (2003), right is what one can do and duty is what one should do. The terms can and should have consequential terminology of legal rules. In realm of philosophy and morality of can and should, one must look to the objectives of the terms. If both should and can serve similar ends, then they are the same but if they result in different ends, they are not the same. If we put the concept of right and duty in Islamic law onto the same test, some of the duties are similar to the rights of secular understanding (Mohammad, 2003). For example, in Islam a man is under duty to maintain his family, but in secular system, he or she is said to have the right in maintenance.
Baderin (2001) contended that, if the concepts of duty and right operated separately, the execution of duties will inevitably guarantee rights but the claiming of rights does not automatically guarantee rights. On the other hand, he further noted that the non-performance of duties automatically repudiates rights but the denying of rights makes no difference. Therefore, people cannot say that Islamic law is unjust for Muslim believer is just because the objectives of the right for instance in the issue of maintenance is for the benefit of human being collectively. Since then, it has been argued that in Islamic law, the term rights connotes duties and it does not means only
‘duties’ and not only ‘rights’. It indicates that both have rights and duties to maintain and balance the family institution by consideration their abilities and disabilities in nature and nurture. It is contended that, even though Muslim women and men are allocated with different rights and duties, it is more systematic and fair in managing the balance rights and duties of women and men of their private and public spheres in accordance with their nature and nurture.
Public & Private Sphere versus Public Sphere only
Different definitions and perspectives of the ‘private’ and the ‘public’ spheres have been discussed (Fenster, 2006); in accordance with specific cultural framework (Charlesworth, 1994; Fenster, 1999b); the associations with the political sphere (Cook, 1994; Yuval-Davis, 1997); the origins in western liberal thought and different systems of patriarchy (Pateman, 1988, 1989);
and also the feminist perspectives. In the discussion of Lefebvre’s right to the city, it refers to the public which is the use of public spaces, those which generate the work for the survivals of its inhabitants. ‘Public’ is apparent by some feminist critics as the domain of the white, upper-middle class
heterosexual male. It has been argued that woman in the cities, both western and non-western, was restricted to use the public spaces such as streets and parks, especially when they are alone. The authors argue that the definition of public and private spheres in Islamic jurisprudence is different with that definition.
Nik Salida Suhaila (2013) cited that the terms ‘public’ and ‘private’
depend on the purpose for which they are employed. Women by its nature comfortable with private sphere while men naturally fit and comfortable with the public sphere. The enjoyment of life between women and men actually relates with the nature of human biologically, physically, emotionally and culturally. Therefore, Shari’ah law divides the roles of women and men in accordance with their nature and nurture. Most of the rights and duties of Muslim wife and husband in marriage even differ in their entitlement of rights and duties, they actually have been given similar opportunity suitable with their nature and nurture. This rule affects the division of role for women and men in the public and private spheres. Muslim women comfort with the private sphere because of their nature of biology and primary roles in the family institution. In spite of that, it is comfortable and safe for them to preserve their dignity and to exercise their moral duty within the private sphere. However, the disadvantage situation against women could be happened in the private or public spheres if women do not aware on their own rights and duties. Sometimes, the discrimination against women occurred not because there is no law provided for the protection of women, but lacking of knowledge and awareness on the part of the community and women themselves. It has been critiqued by the feminist legal scholars that laws have restricted women’s rights and liberty by limiting their contribution in the public sphere. Rifkin (1993), the right talk from the legal aspect, demoted women to the ‘private world of the home and family’. It also has been said that women’s freedom and equality are determinedly cooperated by customs and laws, which differ with men (Peters and Wolper, 1995). All of these arguments made, due to the fact of women’s huge contribution and comfortable in the domestic sphere, which is highly regulated by customs and laws and also by taking into consideration their physical ability and biological function which men are not subject to the same assignment. It has been argued that, for the rights of Malaysian Muslim women under IFLA, they are not male-biased but actually female-biased which regulates more protection for women in marriage rather than men due to their disability and difficulty in nature which are differ with men. The authors also find out that IFLA does not only protect women in their private sphere but also public sphere by the role of men as wali or protector and the primary maintainer in marriage and family relations. In spite of that, the role of Syariah Judge is also considered as special measure to eliminate any kind of discrimination act against women in marriage relationship. It is argued that women acquire both protections in law of their private and public spheres. It cannot be separated because women have important roles in private as well as public spheres but it should be balanced based on their nature and nurture. Among
the regulations other than IFLA which has been amended to protect the private and public spheres of women are the Penal Code, Employment Act 1955, Workmen’s Compensation Act 1952 and Domestic Violence Act 1994 (Women’s Centre for Change (WCC) Penang, 2008).
The private sphere of women closely related with the managing household activities, acting as a wife and mother for the collective rights.
All these activities accommodate the nature of women which men do not have and suitable with the nature of women which they have primary duties in private sphere. However, Islam does not restrict the involvement of women to engage in activities outside home. In Islamic family institution, appointment of men as wali or protector or the head of the family or leader is to protect the disadvantage group in the society such as women and children.
The marriage contract and the blood relationship which existed among the family members affect the rights and duties between them in order to protect their dignity and safety both in private and public spheres. In the context of IFLA, a proposal should be made to regulate the comprehensive law in empowering the responsibility of men as wali and primary maintainer in the family institution. Even the feminists have argued persuasively that the public or private distinction is a false (Gunning, 1991), in solving the issue of discrimination in balancing the rights and duties in gender relation, the law should consider the role and function of women and men in accordance with their nature and nurture. The authors contended that women would be continuously neglected in those unregulated areas by reason of ‘private life’ such as the denial of collective interest in the familial relationship. For example, working women, just like men needs to comply with the rules and regulation of the company. In this situation, the duty to take care the children is the duty of both mother and father except the specific biological role of mother. Thus, it is suggested that the government policy should provide adequate benefit for the achievement of women in working sectors considering collective rights and duties to help them in managing the house as well as to perform excellently in their job.
Therefore, one of the solutions to avoid unfair treatment on women whenever she involves in the public sphere is by applying collective rights and duties in the family matters. Collective rights could balance every person’s choices in upholding equality in gender. For example, in Islamic polygamous marriage, it is permitted with certain conditions, among which is the stipulation, that the existing wife and husband are guaranteed equal happiness and justice and that the possible disadvantages of the existing wife (or wives) will not be neglected. In this situation, the permission of polygamy under IFLA made by the court based on collective rights of all affected person. The role of the court is to ensure that justice is maintained by the husband in the application of polygamous marriage. For example, the requirements under Section 23 (4) of IFLA are provided to ensure justice is maintained for women. Indeed, the domination of public world of rules and rights would abolish the distinction between public and private spheres.
Therefore, women’s rights strategy at this point should demand that laws intervene in the private sphere of women under the foundation of rights and duties which consider the collective rights and duties.
In another perspective, it was critiqued that women’s rights are denied even in the ‘private’ (Fenster, 2006). Thus, understanding the roots of the abuse whether in private or public spheres in solving the problem is imperative. Normally, the women’s life after marriage started at home once they enter into a marriage contract. Some abused women talk about their feelings of comfort or discomfort in marriage life: “I feel very uncomfortable and like I do not belong to the home because I live with my partner and he has his own needs and his own tastes, which are different from mine. The way the house is arranged is not exactly how I would have arranged it. It is too neat. I don’t like the furniture...it makes me feel less like I belong. Belonging for me means to be in my own space, and that I decide what will be in it”
(Amaliya, 30’s, married with one child, Jewish-Israeli (living in London), London, 22 August 1999). This narrative, illustrates the extent to which the right to use and the right to participate is sometimes abused at home because of men behaviour to control everything. For Amaliya, the command and arrangement of her house which was made without asking her favour make her feeling uncomfortable and lack of belonging. This experience possibly strengthens the feminist critique of the false division of ‘private’ and ‘public’
inherent in Lefebvre’s ideas. They claimed that, these divisions are appealed largely to validate female subordination and exclusion, and to hide the abuse of human rights at home from the public sphere (Bunch, 1995). By separating the argument on the right to the city from the right to the home, Lefebvre produces a rather impartial ‘public’ sphere, which not in accordance with gendered power relations as a dominant factor in the recognition of the right to use, and which therefore has no significance to the actual lives of women in the cities.
Krishnadas (2007) contended that the recognition process is the dominant factor in governing and determining women’s relationship and their lives’ patterns. Krishnadas further argued that the act of recognizing local women’s attributes was dependent upon the different cultural, material and spatial contexts in which women were recognized, because they have wider understanding on their rights and duties based on their local context.
For instance, the consent of wali in the solemnization of marriage under Section 13 of IFLA might restrict women’s liberty to freely enter into marriage contract, but this ‘patriarchal rule’ is intended to protect women’s rights, their dignity and safety. Therefore, since women have important roles in the private sphere, the provision of IFLA provides women with a special protection of law by indicating the duty of men to protect the rights of women in both private and public spheres as women are probably being disadvantage in both spheres.
Nature and Nurture versus Nurture only
The nature and nurture theory is important to be applied in discussion of the attributes of rights in order to classify the rights as absolute rights which cannot be changed or rights is not absolute which human have a choice in it. It is to oppose the critiques on the monolithic concept of Islamic law as claimed by some scholars. Therefore, as the issue of gender closely related to human life, gender analysis can be the best model to be universally accepted by human irrespective of their race, religion and custom as the basis for gender equality.
Feldman (2001) argued that human behaviour is due to nature (heredity) and nurture (environment). According to Islamic jurisprudence, in general, all the creatures are created in biological pairs (al-Qur’an, Al- Dhariyat 51: 49, Al-Ra’d 13: 3, Yaasin 36: 36 and Al-Zukhruf 43: 12). The primary source of Islamic jurisprudence specifically asserted the pair of being male and female (al-Qur’an, Al-Najm 53: 45-46, Al-Qiyamah 75: 39, Al-Insan 76: 2) and that both (chromosomes) are needed to develop an offspring (Alizi Alias, 2008). He further emphasises the importance of nature’s role in marriage and family relation when the Qur’an confirms that Muslims are forbidden from marrying close kin (al-Qur’an, Al-Nisa’ 4: 23), signifying that genetic factors in human body may influence not only biological factor of human being but also the physical and psychological features of them. Therefore, the main factor of biological differences between women and men is due to the fact that they have been formulated with different types of chromosomes in a complex process of human creation. This process affects their biological, physical and psychological roles in spite of different cultural environments around them.
Although the discussions on ‘gender equality’ has been misunderstood as trying to develop a prejudgment among women and men (Abd. Rashid, 1998), we contended that gender analysis in Islamic perspective is important to find any conformity with the principle of gender equality at national and international law. Therefore, gender analysis in Islamic socio-legal perspective could be one of the methods to be analyzed in searching for the conformity of the declaration of human rights as well as women’ s rights with Shari’ah principle of law which has been criticized as discriminates against women. It is used to examine the different roles, duties and relationship between women and men based on the process of nature and nurture. The theory of nature and nurture is an important factor affecting the development of human as all human beings live in accordance with nature and nurture (R. Hammond, 2010). Both Islamic and international jurisprudences have discussed on these theories. The theory of nature refers to the division and classification between women and men based on their biological factor that is their sex difference for example being female or male. In Islamic jurisprudence, anatomy factor is considered under the classification of nature (Mohd. Ramli, 2012; Nasaruldin Umar, 1999) since it relates with the belief in the Only God who creates human being in absolute differences in spite of their similarities. On the other hand, the theory of
nurture is based on the interpretation of cultural and social differences within a society. The nurture theory relates with the feminine and masculine factors developed in specific community. According to the theory of nurture, the feminine and masculine factors in women and men are not absolute and subject to change. This social construction is influenced by the practice developed by the community. Therefore, understanding the classification of both theory of nature and nurture will unite people all around the world in searching for universal theory on human rights and gender equality. Thus, it could avoid any misconception on the rights and duties based on different of sex, religion, gender and culture.
In order to maintain justice for all people, it is argued that human rights law must acknowledge the differences between women and men by taking into consideration the nature and nurture of them. Since the interpretation of gender synonym with the theory of nurture that is a social construction, but the foundation of gender ideology relates with sex of human being which closely related with religious rights and duties in Islamic jurisprudence, therefore the classification of nature and nurture cannot be separated and must be applied together to avoid discrimination.
The biological factor and anatomy factor that is religious faith if not being considered will affect the value life of people and position them in unfair and unjust situation. Therefore, in establishing justice, religious and cultural understandings on the fundamental principles of religious rights and duties on the meaning of equality are crucial for the purpose of constructing harmonisation in national and international legal regimes (Nik Salida Suhaila Nik Saleh, 2013). It has been contended that eliminating of people biological nature, religious and cultural belief could be the basis of discrimination and will probably violate people value of life (Sachedina, 2009). Besides, the violation of rights will probably happen whenever the rights and duties of women and men are given not in accordance with their biological nature and social culture (John Nicholson, 1997). Therefore, again it is stressed that the acknowledgement of differences between women and men in biological and cultural aspects is imperative in administering the law to be universally and rightly accepted and applicable especially in achieving gender equality.
CONCLUSION
As a conclusion, there are five (5) elements to be considered in administering the ideal attributes of rights at human rights discourse which considers women as part and partial entity of law to avoid discrimination. They are;
i) collectives rights which should prevail over individual rights; ii) the acknowledgement of cultural rights in the meaning of universalism; iii) rights must co-relates with duty; iv) rights must cover both private and public sphere as women nowadays actively and importantly involve in the public as well as private sphere; and lastly v) the understanding on the classification of nature and nurture theory with regard to gender analysis. Through this
analysis, it has been traced that both Islamic and international human rights principles strive towards gender justice or gender equality. Both consider that rights, justice and equality are inter-related. The discussion of gender cannot be separated from their nature or origin. Both biological and culture influence the life of every people. Thus, enjoyment of life cannot be interpreted in the context of similar but importantly their differences should be considered and acknowledged in accordance with the five attributes of rights which have been discussed. Since the critiques and arguments used in this research mostly consider the feminist critiques on rights, in spite of the fundamental precept of Shari’ah with regard to the rights of women in marriage and family relation, both have common understanding that acknowledging differences is vital to be considered in the meaning of equality, justice and non-discrimination. It is suggested that, the feminist liberal movement has to empower women in all spheres of life without eliminating female and feminine qualities in accordance to their nature and nurture as to perform rights and duties as women. It is crucial to rebrand the feminist concept of equality in accordance with the substantive model rather than totally accept on formal equality as “sameness of rights” would tend to discrimination in women’s rights law as Zarizana Abdul Aziz (2005) claims that “sometimes discrimination is about sameness”.
Lastly, it is contended that Islam believes in a balanced view of both nature and nurture in human behaviour where the concept of nature (fitrah) includes not only the biological aspect but also intuitive unconscious aspects of behaviour that is spiritual element which is partial element of human creation. All these have impact on gender issues. As Islam believes of material and spiritual elements in human creation and influence human life, it is interesting to highlight that at present, one of the most widely accepted and unifying themes of modern psychology is the biopsychosocial model which believes that biological, psychological, and socio-cultural factors interact with one another to influence human behaviour (Huffman, 2006).
The most interesting result is that, the feminist critiques on rights and Islamic jurisprudence on rights have common understanding on the attributes of women’s rights especially on basic realms of women activity or women sphere of life.
ACKNOWLEDGEMENTS
The authors would like to thank Mr. Mohammad Tahir, Mr. Mohd Hashim Kamali, Mr. Mashood Baderin, and all the authors of the books and articles referred in analysing the theory of rights in Islamic jurisprudence and International jurisprudence especially the feminist theory on rights and women.
