We have already said that in respect of the family relations and the rights of man and woman,
Islam has a special philosophy of its own which is quite different from what was the practice,
1,400 years ago as well as what is practised today.
We have also said that it is not a debatable point whether man and woman are equal or not, as
human beings, and whether their family rights should or should not be of equal value. From
the Islamic point of view they are both human beings and, as such, enjoy equal rights.
The point which is worth considering is that man and woman, because of the sex difference,
are dissimilar in many respects. Their very nature does not want them to be similar. This
position demands that they should not be similar in respect of many rights, obligations, duties
and retributions. In the West an attempt is being made at present to make their rights and
obligations uniform, and to ignore their natural and innate differences. There lies the
difference between the Islamic view and the Western system. In our country, the point at issue
between the supporters of Islamic rights and the supporters of the Western system, is the
question of uniformity and similarity of rights and not that of equality of rights between man
and woman. Equality of rights is only a label which has been wrongly attached to this
The present writer, in his writings and speeches, has always refrained from using this false
label and has never condescended to give the name of equality to what is actually the theory
of similarity of rights. The pre-2Oth century Europe is a clear example of injustice to woman.
Till the beginning of the 20th century the woman of Europe was deprived of human rights,
both practically and legally. She had rights neither equal to, nor similar to, those of man. It is
during the past decades that, as the result of a hasty movement, more or less similar rights
have been granted to her, but she has not yet been able to secure equal rights in conformity
with her natural position and physical and spiritual needs. If woman wants equality of rights
and domestic happiness, she must discard the idea of similarity of rights. That is the only way
of establishing cordiality between man and woman. In that case, man will not only accept her
equality of rights, but will also be willing to give her, in some cases, more rights without any
question of deceiving her.
Similarly, we do not claim that in a Muslim society woman actually enjoys rights equal to
those of man. We have often said that it is essential that the position of woman should be
reviewed, and the abundant rights which Islam has granted her and which throughout history
have been denied to her, should be restored to her. Anyhow, we must not blindly imitate the
Western way of life, which has produced catastrophic results in the West itself. What we
claim is that non-similarity of rights between man and woman, within such limits as are
required by the disparity between their natures, is more in keeping with justice. It meets the
requirement of natural rights better, ensures domestic happiness better and pushes society
forward on the path of progress better.
It may be remembered that we claim that natural justice demands that, in certain cases, there
should be a dissimilarity between the rights of man and those of woman. Being related to the
philosophy of rights, this question has a hundred percent philosophical aspect. It is also
connected with the principle of justice and equity, a cardinal principle of Islamic law and
Islamic scholasticism. It is the principle of equity that has brought into existence the doctrine
of conformity between reason and Divine law. According to the Islamic or at least the Shiah
jurisprudence, if it is proved that equity demands that in a certain case the law should have a
particular form, that very form will be the legal form irrespective of any other argument to the
contrary, for according to the basic teachings of Islam the law must, in no case, infringe
natural justice and basic rights. The Muslim scholars, by expounding the principle of equity,
laid the foundation of the philosophy of rights, though following some unhappy historical
events they could not continue the good work started by them. It was the Muslims who, for
the first time, paid attention to the question of human rights and the principle of equity, and
set them forth as original and self-existing principles unaffected by any contractual law. The
Muslims were the pioneers in the field of the inherent natural rights.
But it was so destined that they could not continue their work and ultimately, after eight
centuries, it was further developed by European intellectuals and philosophers, who
appropriated the credit for it. The Europeans brought social, political and economic
philosophies into existence, and acquainted the individuals, societies and nations with the
value of life and human rights.
In our opinion, apart from historical reasons, there was a psychological and regional reason
too, which prevented the Muslim-East from pursuing the question of inherent rights.
It is one of the differences between the spirit of the East and that of the West. The East is
enamoured of morals and the West of rights. The man of the East is more sentimental and
believes that he should be forgiving, chivalrous and philanthropic. But the man of the West
thinks that as a human being he should know and defend his rights and must not allow others
to violate them.
Humanity needs morals as well as rights. Humanism is concerned with both rights and
morals. Neither of them alone is the criterion of high human qualities.
Islam has had and still has the big distinction of simultaneously paying attention to both the
morals and the rights. In Islam sincerity, forgiveness and virtue are sacred moral qualities. At
the same time consciousness of one’s rights and the preparedness to defend them, are also
equally sacred and human.
Nevertheless, the Eastern spirit has been dominant with the Muslims, and consequently,
though in the beginning both morals and rights engaged their attention, gradually the field of
their activity became confined to morals.
Anyhow, at present we are concerned with the question of rights which may also be a
philosophical question and needs to be dealt with at length. It is more closely related to the
real meaning of justice and the true nature of rights – justice and rights which existed even
when there was still no law in the world, and whose meanings cannot be changed by any law.
Montesquieu says: “Before laws were made by man, just human relations were possible on
the basis of the laws which governed the relations among all existing things. It was the
existence of these relations which led to the framing of laws. To say that prior to the framing
of laws by man no just or unjust order existed to regulate human relations is tantamount to
saying that before a circle is actually drawn its radii are not equal”.
Herbert Spencer says: “Justice is interwoven with something other than feelings, namely the
natural rights of human beings. We must respect the natural rights so that justice may have a
Most of the European intellectuals are of the view that all declarations of human rights have
been derived from natural rights. In other words, the theory of natural rights has assumed the
form of the declarations of rights.
As we know, Montesquieu, Spencer etc. have said the same thing about justice as the
scholastic philosophers of Islam have said about the rational basis of good and evil and the
principle of equity. Among the Muslims there have been scholars who have denied the
existence of inherent rights and maintained that justice was contractual. Similarly, among the
Europeans also this belief has existed. The English philosopher, Thomas Hobbes denied
justice as a reality.
Source : http://x-wall.net/x/tabish/books/en/AllamaMurtazaMutahhari-WomanAndHerRightsInIslamwithIndexVersion.pdf