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...to arguments that the international human rights paradigm may have something to learn from non-Western legal systems. This Article focuses on one such area: the conceptualization of individual duties to the community. In conventional human rights law, rights are explicit, while corresponding duties are often implicit, controversial, and poorly theorized. In contrast, the Islamic legal tradition offers a sophisticated paradigm of common ideals grounded in individual duties. The Article argues that a reconciliation of the rights-based and duties-based paradigms is both possible and necessary to render justiciable third generation "solidarity" rights, such as the right to development, the right to a healthy environment, and the right to peace.
I. INTRODUCTION
The question of the universality of human rights norms has challenged scholars and commentators for decades. (1) It is a highly important question from a pragmatic standpoint, because human rights are sure to be ignored if they are not culturally relevant. (2) Because cultural legitimacy is so crucial to compliance, efforts to engage local and international law in the effort to seek universal values should be applauded. Not only will the end result be more culturally legitimate, it will also be more complete, benefiting from the combined wisdom of all legal systems and making international human rights more applicable and appealing to every society.
This Article analyzes one area where efforts to find universal human rights values should begin with the teachings of non-western legal systems: the importance of individual duties to the community. In human rights law, rights are explicit, while corresponding duties are implicit, controversial, and poorly theorized. In several other legal, ethical, and religious systems--such as Islamic law, Jewish law, Christianity, Hinduism, and Confucianism--the reverse is true. (3) Because the rights-based perspective and the duties-based perspective form such fundamental paradigm-establishing assumptions in their respective legal cultures, it is not easy to reconcile the two approaches into a universally acceptable international theory. This Article argues that such reconciliation is possible, however, within the so-called "third generation" of human rights--such as the right to development, the right to a healthy environment, and the right to peace--because these rights include both an individual right and individual duty component. Until now, the individual duty component of third generation solidarity rights has been de-emphasized by international human rights commentators. Examining Islamic notions of third generation solidarity rights, this Article finds a very different interpretation of their nature, one which specifically emphasizes their individual duty component. Not only can this add to our understanding of third generation solidarity rights, the strong presence of these rights in Islamic law can also contribute positively to the debate on the universality of human rights.
Although multiple scholars have discussed the importance of individual duties in local and regional legal traditions, (4) including several examinations of the role of duties in Islamic law, (5) no scholar has examined the potential of Islamic conceptions of duties to influence our understanding of international human rights law in the context of the debate on the universality of human rights. In fact, the vast majority of comparative scholarship on Islamic law and international law never leaves the defensive paradigm at all, content to defend Islamic law against an international standard, rather than promote the adoption of Islamic legal precepts in international law. In her seminal book on Islam and human rights, Professor Ann Mayer notes that "[q]uestions of Islamic law are only occasionally mentioned in scholarly writing on international human rights--for the sake of comparison with the international norms or to illustrate the problems of introducing international norms in areas of the developing world." (6) This Article, on the other hand, asks what Islamic law can teach the international human rights movement, particularly in the area of individual duties. By attempting this goal, it will help make the case that, as the international human rights movement progressively recognizes the importance of human duties, a core shared universal norm will develop with local (i.e., non-Western) tradition as its roots.
In Part II, I survey the theoretical underpinnings of the universality debate, focusing on the differences between universalism, moderate cultural relativism, and my theory of reverse moderate relativism (RMR). In Part III, I discuss the role of individual duties, beginning with a discussion of the relationship between duties and rights. After tracing the historical presence of duties in Western political theory--which held sway from ancient Greece through to at least the eighteenth century--I argue that duties have essentially disappeared from the modern human rights paradigm. I conclude Part III by contrasting Islamic law, which exhibits an unfaltering emphasis on duties both historically and in its current practice.
In Part IV, I examine the rebirth of individual duty in the international human rights (IHR) paradigm as a component of third generation solidarity rights such as the right to development, the right to a healthy environment, and the right to peace. Contrary to the concept of correlative duties, which exist outside of and complementary to the right, third generation solidarity rights make individual duty one of the components of the right itself. Despite this apparent breakthrough, the individual-duty component of third generation rights has been de-emphasized. By examining Islamic notions of third generation solidarity rights, I practice a substantive form of RMR, showing that while duty is a new and fragile part of third generation solidarity rights in their international conception, the Islamic view of these same rights is wholly based in duties. I then briefly answer some of the major criticisms regarding third generation solidarity rights. In Part V, I attempt a methodological form of RMR, transposing elements of the Islamic duties paradigm to human rights law. After an overview of the complex Islamic jurisprudence of duties, I suggest several possible areas where the Islamic duties model could enlighten international human rights theory. Although such a transposition is particularly relevant to third generation solidarity rights, it should prove useful to all human rights.
II. THE UNIVERSALITY DEBATE AND REVERSE MODERATE RELATIVISM (RMR)
The question of the universality of human rights norms has challenged scholars since the Universal Declaration of Human Rights of 1948, and efforts to formulate a jurisprudence of rights valid for all of humanity are considered laudable by some, offensive to others. Such efforts take three different forms. At one extreme, universalists argue that all human rights are applicable in all cultures, (7) an untenable stance because it eliminates the tensions between various cultures by simply ignoring them. At the other extreme, strict cultural relativists believe cultural variation is so great that no universally shared norms of any kind exist. (8) A third approach is offered by the moderate cultural relativists, who accept cultural differences but still strive to find a core group of universal norms. (9) In the area of Islamic law, moderate cultural relativism is best represented by the outstanding work of Professor Abdullahi Ahmad An-Na'im on interpreting Islamic textual sources (the Qur'an and Sunna) consistent with international human rights norms. (10) Moderate cultural relativists such as An-Na'im have accepted equality as a core right shared across cultures, and their work analyzing equality of the sexes, (11) equality of religious groups, (12) and other areas (13) in Islam has been extensive, certainly controversial, (14) but in my view highly valuable. Similarly, the practical effects of moderate cultural relativism are evident in the momentous legal and political efforts to reinterpret Muslim status law consistent with human rights instruments, first in Tunisia a half century ago, and currently in Morocco. (15)
Concurrent with these laudable efforts, however, another discourse is also warranted. As scholars continue to analyze, influence, and advocate for a legal shift towards an international standard in some areas, such as women's rights, there should be a concurrent dialogue examining the extent to which international human rights law can or should move towards a more Islamic standard in other domains. This opinion is advanced by An-Na'im in his later work, noting that the human rights movement cannot be effective "so long as there is a perception of exclusive Western authorship of the concept of human rights and its normative implications." (16)
In a previous work, I therefore proposed a new theory, reverse moderate relativism (RMR). Like moderate cultural relativism, RMR also seeks to develop a core set of shared rights concepts across cultures, but it does so "in reverse." Whereas moderate cultural relativism makes IHR law the neutral benchmark towards which other legal traditions should gravitate in the creation of universally shared norms, RMR explores other non-dominant legal systems as potential neutral benchmarks to be achieved by IHR law in select areas. (17) Without necessarily claiming any past causative link between non-dominant legal systems and the development of international law, (18) reverse moderate relativism rather is concerned with future development of universal norms, arguing for a restructuring of the universality debate from central, overly-dominant neutrals to diversified, non-dominant but potentially more universal neutrals. (19) This is possible on two levels. First, substantive RMR, the focus of my previous article, aims merely to seek and acknowledge places where international human rights is universalizing towards a standard previously found in a non-dominant legal system. Second, methodological RMR, attempted at the end of this Article, aims to actively transpose aspects of the non-dominant paradigm to international human rights law in order to speed and facilitate the development of a nascent universal norm. It is only through the combined use of moderate cultural relativism in certain areas (such as equality), and reverse moderate relativism in others (such as social welfare), that the most appropriate core set of universal human rights norms can be established, a set of rights which is neither intolerant of nor overly accepting of local cultures. This Article examines one area where reverse moderate relativism can be applied to further develop international human rights norms--the presence of individual duty within a rights paradigm--by examining notions of duty in Islamic law.
III. BACKGROUND ON DUTIES
Rights and duties are intrinsically related and historically connected. However, the international human rights paradigm has exalted the language of rights while under-developing the concept of duties. This sole emphasis on rights to the exclusion of duties is destructive. It is not inherent to Western thought, however, but rather is a modern departure from earlier recognition of fundamental individual duties to the community. After a discussion of the complementarity between the rights and duties paradigms, this Part traces the rise and fall of the duties paradigm in Western thought, arguing that although duties play a strong role in Western political thought, they have gotten lost in the modern human rights paradigm, which resists duties, to the overall detriment of human rights. It then contrasts this with a review of Islamic jurisprudence, which is based on duties.
A. Rights and Duties: Two Paradigms Are Better Than One
A normative structure based in rights is situated to deal effectively with different social problems than one based in duties. For example, in an examination of the Jewish legal order of duties, Professor Robert Cover argues that whereas "there is a comparative rhetorical advantage to mitzvoth [duty] in the realm of communal entitlements, there is ... a corresponding comparative rhetorical advantage to rights in the area of political participation." (20) Professor Cover explains why a paradigm of duties, rather than rights, is preferable to regulate communal entitlements:
The jurisprudence of rights has proved singularly weak in providing for the material guarantees of life and dignity flowing from the community to the individual. While we may talk of the right to medical care, the right to subsistence, the right to an education, we are constantly met by the realization that such rhetorical tropes are empty in a way that the right to freedom of expression or the right to due process are not. When the issue is restraint upon power it is intelligible to simply state the principle of restraint.... [T]he intelligibility of the principle remains because it is always clear who is being addressed--whoever it is that acts to threaten the right in question. However, the "right to an education" is not even an intelligible principle unless we know to whom it is addressed. Taken alone it only speaks to a need. A distributional premise is missing which can only be supplied through a principle of "obligation." (21)
Whereas a rights paradigm has proven weak in guarantying such communal entitlements, they fit quite naturally into a duty paradigm, which realizes them through duties upon family members, teachers, relatives, community members, and others. (22) Conversely, Professor Cover argues that the rights paradigm is better suited to handle equality jurisprudence, because what can be effectively stated in a straightforward rights-based equality provision can only be replicated in a complex balancing of corresponding duties when transposed into a duties model. (23) Whereas equality of the sexes "is very straightforward under a rights jurisprudence," (24) a duties paradigm must achieve substantive equality by
first creat[ing] an argument for equality of obligation and only as a result of that come to equality of participation. The fact is that there might be important reasons which justify distinctions in obligations (e.g., the capacity to bear children) which nonetheless do not in any straightforward way mitigate against complete equality of participation. The rights rhetoric goes to the nub of this matter because it is keyed to the projection of personality among indifferent or hostile others. The reality of such indifference, hostility or oppression is what the rhetoric of responsibility obscures. At its best it obscures it by, in fact, removing or mitigating the causes. At its worst it is the ideological mask of familiar oppressions. (25)
Acknowledging the strengths and weaknesses presented by the rights-based and duties-based paradigms, a solution which synergistically draws from both models is clearly desirable. As I will argue later, this is just the sort of system proposed by third generation solidarity rights. Why has this system been so long in coming and so under-developed even after its arrival? The answer is rooted in a generalized misconception of the essence of rights and duties themselves, a conception that focuses on their formally different means rather than their functionally equivalent ends. It is a mistake to distinguish rights from duties on the basis of formal substance, because just as much variation exists between different rights, or between different duties, as between rights and duties themselves. For example, Steiner and Alston note that "[r]ights are no more determinate in meaning, no less susceptible to varying interpretations and disputes among states, than any other moral, political or legal conception--for example, 'property', or 'sovereignty', or 'consent,' or 'national security.'"(26) Similarly, Cover cautions that he would not "suggest for a moment that with a starting point of 'rights' and social contract one must get to a certain end." (27) Rather than a one-dimensional, categorical, definable thing, the notion of "rights" is more properly conceptualized functionally: it is what Cover calls a "fundamental word" around which a culture creates normative, social, political, and moral paradigms. (28) Just as "rights" is such a fundamental word in the Western liberal culture, "duties" is the paradigm-creating fundamental word in Islamic, Jewish, Hindu, Christian, Confucian, and other cultures. (29)
Viewed functionally, rather than formally, rights and duties are but two different attempts towards the same end: a structure of normative, social, political, and moral order. (30) For example, Mashood Baderin explains that the object and purpose of Islamic law (maqasid al-shari'ah) is human welfare and prevention of harm (maslahah), (31) a goal most certainly in line with the purpose of international human rights:
While human rights specifically aim at protecting the rights of individuals, the ultimate aim is equally to guarantee the benefit and welfare of human beings as a whole wherever they may be. Protecting the welfare of individuals does ultimately ensure communal/public welfare and vice versa. This makes the doctrine of maslahah very relevant in the discussion of human rights under Islamic law. (32)
The maslahah doctrine is significant for two reasons. First, the notion of an object and purpose of Islamic law (maqasid al-Shari'ah) challenges the view that duties-based paradigms have no end at all. As Professor Jack Donnnelly has noted, "[i]t is conventional to distinguish deontological (duty-based) theories ... from teleological (ends-, goals-, or consequence-based) theories.... [In deontological theories, w]e are required to do what is right (follow our duty), period, independent of the effects, for good or bad, produced by our actions." (33) In contrast, linking the duties-based paradigm of Islamic law with an aim of human welfare and prevention of harm (maslahah) thus foresees a theory that is simultaneously duties-based and ends-based.
Second, and more importantly, the substance of Islamic law's object and purpose, the maslahah doctrine, can be--as Baderin rightly argues--quite consistent with the goals of the international human rights movement. If we accept this "common ends" argument, and acknowledge the different challenges and successes, strategies and structures, created by the choice of a rights-based or duties-based paradigm, it follows that an ideal approach to reaching those desired ends would combine the strengths of both paradigms. In this way, the duties perspective can serve as a necessary complement to an otherwise incomplete rights perspective, the latter having a comparative advantage in some areas, such as equality, and the former having a comparative advantage in other areas, such as social welfare.
In the following sections, I show that although Western political thought originally placed an emphasis on duties, this has not held true in modern practice. This contrasts with Islamic law, a jurisprudence based on duties. In order to re-invigorate the important role of duties within international human rights, the remainder of the Article examines the Islamic duties model in depth, concluding with an attempt to transpose select aspects of that model to international human rights legal theory.
B. The Strong Presence of Duties in Western Political Thought
The concept of individual duty has strong historical roots in Western political thought. As Professor Douglas Hodgson has argued, "the principle of duty occupied a preeminent position in political and social philosophy and thinking until its relatively recent supersession by the principle of individual right." (34) This emphasis on duty to the community in Western thought has its origins as far back as Greek philosophy. Aristotle (384-322 B.C.E.) considered the individual not as an isolated atom but rather "part of the whole," with all the duties that this entails. (35) He believed that "it is not right ... that any of the citizens should think that he belongs just to himself" (36) and stressed in his canonical treatise Politics the fundamental importance of community (koinonia). (37) Holding that groups of communities (koinonia) together form the city-state (polis), he wrote that "the city-state is ... prior by nature to the individual." (38) In addition to this foundational work on the concept of community, Aristotle also developed the concept of natural law, "universally valid rules of natural law or natural justice which transcend local laws and customs ... aris[ing] from the shared or common features of human nature ... and capable of being discerned and understood by human reason." (39) Thus, we find in the writings of Aristotle the historical antecedents not only to third generation solidarity rights (which combine individual rights and duties), but also the origins of moderate cultural relativism, in which rational human beings are endowed with the ability to categorize truly universal rights.
The importance of individual duty to the larger social group is also apparent from the etymology of key Greek and Latin words, cultures that form the foundation of Western society. For example, the Greek word for citizen is polites ([TEXT NOT REPRODUCIBLE IN ASCII.]), or "member of the civic order." (40) This is contrasted to the word for individual, idios ([TEXT NOT REPRODUCIBLE IN ASCII.]), meaning "personal" and "private," but also "separate" and "particular," or even "peculiar" and "strange." (41) Similarly, Professor Selbourne has analyzed the etymology of the word "civic," which comes from the Latin verb ciere, to summon. The "citizen" is thus "he who is summoned by the principle of duty to assemble and take counsel with his fellows upon the safety and well-being of the ordered community to which he belongs." (42) The citizen is identified in Greek and Latin culture "by his active co-responsibility for the security and well-being of the civic order, which is at the same time the source and guarantee of his privileges and rights: duty is citizenship' s first term, right its second." (43)
Some fifteen centuries after Aristotle, the work of the Italian philosopher Thomas Aquinas (1225-74) "proclaimed the compatibility of Christian doctrine with Aristotelianism." (44) Like Aristotle, the concept of "community" was central to Aquinas' view of proper human conduct. (45) Also like Aristotle, Aquinas believed that the human ability to reason allowed people to identify principles of natural law. (46) Aquinas, however, emphasized the position of human beings as creations of God with a more divine destiny than they had in Aristotle's secular city-state. For Aquinas, natural law is a "rational participation in the eternal law of God." (47) By linking the human ability to identify natural law principles with the human status as a creation of God, Aquinas' philosophy closely parallels the Islamic concept of vicegerency (stewardship) examined later in this Article. (48)
Writing in sixteenth-century Italy, Niccolo Machiavelli (1469-1527) also made significant contributions to the status of individual duty and community-mindedness in Western thought. He believed that "no republic can remain independent of its neighbours and free within its borders unless citizens accept civic obligations as an integral component of their individual liberty." (49) The tying of citizens' civic obligations to the international relations of the republic in Machiavelli's work foreshadows the third generation solidarity right to peace and makes clear the individual-duty component of this right. Central to both of Machiavelli's treatises is the concept of virtu, most accurately translated as "public spiritedness." (50) He believed that this public spiritedness "is what secures independence, prevents corruption and keeps the people free." (51)
The social contractarians of the sixteenth through eighteenth centuries profoundly influenced the Western understanding of the relationship between the individual and the State. Although their predecessors had...
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