Note: It has only been a few years since the right to dignity was introduced as a “human” right rather than a “faith-based” one, and also as a jurisprudential maxim; yet, it faces fierce opponents just as much as it has serious supporters. Supporters argue based on the verses of the Quran and the spirit of religion, while opponents bring forward contradictory textual evidence (Nass) and express concern over the dismantling of the traditional structure of jurisprudence. Dr. Abdolmajid Moballeghi, however, believes that the disagreement over the right to dignity has other roots as well, and its acceptance will entail numerous consequences. In this exclusive interview, the faculty member of the Institute for Humanities and Cultural Studies discusses the jurisprudential challenges of accepting the human right to dignity.

Contemporary Jurisprudence: What is the right to dignity and what are its dimensions?

Moballeghi: The human right to dignity is specifically based on the important approach that every human being possesses intrinsic value and an aspect of nobility that entitles them to respect, non-humiliation, and, in a sense, access to a set of protections and opportunities. If we want to use jurisprudential terminology, we must distinguish and differentiate between three issues or points: dignity as an existential attribute derived from an existential and divine matter, meaning what God has bestowed upon humanity; dignity as a general moral maxim; and dignity within the framework of the right to dignity, which is a binding legal status in legal and jurisprudential systems.

Therefore, dignity has various dimensions. On the one hand, it can be viewed from an intra-religious perspective by adhering to verses and narrations, and on the other hand, from an extra-religious perspective.

From a theological dimension, proving dignity is, in fact, proving one of the human attributes that God has granted to humanity.

From a moral perspective, accepting the right to dignity means the necessity for individuals and society to respect other human beings. This respect takes various forms, ranging from the prohibition of insulting others to the prohibition of humiliation and torture, and generally, the prohibition of ignoring all basic and fundamental rights.

The legal and judicial dimension of dignity includes issues such as the right to life, the right to bodily integrity, the right to a fair trial, the right to protection from arbitrary prosecution, and similar matters. Specifically, wherever we legally prohibit the violation of any human aspect, we are essentially defending the legal dimension of the right to dignity.

A political or even civic dimension can also be attributed to dignity; for instance, when speaking of the right to participation and the right to non-discrimination in public institutions and bureaucratic and technocratic structures.

One can even speak of social and economic dimensions; such as the right to enjoy the minimum necessities of life in the realm of social and economic issues.

Contemporary Jurisprudence: Is the verse “And We have certainly honored the children of Adam” (Wa laqad karramna bani Adam), as the most important evidence for accepting the right to dignity, in the position of stating, generalizing, and negating dignity from non-humans, or is it merely a descriptive, non-restrictive, and non-absolute statement? How can each of these matters be proven?

Moballeghi: Regarding the verse “And We have certainly honored the children of Adam,” the debate is whether this verse intends to declare a religious law and ruling, or if it is merely a description and reminder of God’s grace. In other words, is the verse saying that human beings have a right to dignity and naturally this right must be respected, and subsequently the consequences of this entitlement and enjoyment of the right are pursued and articulated in various aspects of our legal and jurisprudential life? Or is it saying that God created humans with honor, and this is not a religious law but rather a reminder and description?

The first perspective considers the verse as a religious law and principle, and essentially a general jurisprudential maxim. According to this interpretation of the verse, insult, torture, humiliation, and inhuman treatment can be deemed impermissible. Someone might even interpret the verse to mean that everyone enjoys a certain level of respect. Of course, detailed discussions can be raised regarding the articulation of its mode of implication. In defense of this approach, it can be said that “We have certainly honored the children of Adam” is general and includes all human descendants. There are also other verses with similar themes, such as “We have certainly created man in the best of stature.” On the other hand, the overall spirit of Islam is based on preserving human sanctity, and it contains rules such as the necessity of preserving the sanctity of a believer; therefore, we are dealing with a general and binding legal and jurisprudential principle.

However, if we consider the verse to be merely descriptive, then it is as if God is describing a reality, stating that humans possess a trait called dignity in terms of creation, intellect, or, for example, capabilities or power. But this trait does not imply the application of legal and jurisprudential consequences to it; rather, it is merely the statement of a reality within humans. Evidence for this is the declarative and non-imperative structure of the sentence.

I personally agree more with the first view; because if dignity were an intrinsic matter for humans, it should not be possible to destroy or remove it; whereas in verses like “Then We return him to the lowest of the low,” it is presented as a perishable matter.

Here another question arises: Are only humans considered honorable and possessors of dignity, or do animals, angels, and other creatures also enjoy this dignity? The answer is that in this verse, dignity is not negated from other creatures, and therefore they too might possess dignity.

Contemporary Jurisprudence: Assuming that dignity is Tawqifi (strictly determined by the Lawgiver) and must be defined by the Holy Lawgiver, does the acceptance of this right fundamentally cause a difference in religious rulings?

Moballeghi: If our assumption is that dignity is Tawqifi and that the Lawgiver has specified the content and instances of dignity, the issue takes two forms:

1. If we say dignity is Tawqifi and the Lawgiver has explicitly determined certain instances and rulings related to it, naturally what has been specified will be unconditionally binding and must be observed. For example, if there are texts (Nass) that explicitly state the prohibition of humiliation or torture, they must be acted upon accordingly.
2. If we say this Tawqifi nature means that the Lawgiver has merely declared the general principle of dignity but has not necessarily and practically specified the instances in detail, then this principle acts as a general legislative maxim that naturally determines the direction of deduction in the process of Ijtihad.

What is important is that Tawqifi dignity is utilized as an interpretive or purposive (Maqasidi) constraint in Ijtihad. Accepting the Tawqifi nature of dignity can pave the way for fresh reflections in various aspects of our legal and jurisprudential approaches within our intellectual framework. From this perspective, issues such as deterrent rules against torture and the right to a fair trial can be rethought, considering dignity as a Tawqifi matter whose definition and content have been determined and established by the Lawgiver.

Contemporary Jurisprudence: Assuming that dignity is customary (Urfi) and that its concept and instances must be defined and identified by custom, does the acceptance of this right lead to the secularization of religion and the obsolescence of the Sharia?

Moballeghi: This question is about the consequences of considering dignity as customary. It is quite clear that such an approach provides us with a kind of adaptive flexibility and a more open adaptive possibility; meaning, if we delegate dignity to custom, one might say the significant advantage of this approach is that we can understand and define the relationship between jurisprudence and social developments through the lens of how we comprehend and approach the concept of dignity in a flexible and progressive manner.

However, we must not forget that custom cannot set aside explicit religious texts (Nass) and oppose them, and in a sense, custom cannot neutralize a religious ruling. Therefore, in such an understanding of dignity, one must consider how it stands in relation to the texts, and practically take into account that what is derived from the texts establishes the scope of accepting dignity for us. In reality, this delegation to custom does not create an empty, hollow space devoid of accountability before us where we cannot refer to the text.

Contemporary Jurisprudence: What is the reason for the non-introduction and non-acceptance of this right by non-contemporary jurists and many contemporary jurists?

Moballeghi: In response to this question, one can mention conceptualization reasons, specifically the difference in the meaning of words and the conceptual system between the old era and the modern era. We know that in classical jurisprudential language, “right” (Haqq), which acquired a semantic dimension in the form of the Right of God (Haqq Allah) or the Rights of People (Huquq al-Ibad) and similar issues, predominantly appears within the framework of religious and duty-based concepts. However, the modern concept of “rights” in English or “Recht” in German means an individual’s legal claim against a public institution, which gains meaning by becoming binding or existing within the framework of civil law, civil codes, and the constitution. Here we are faced with a different linguistic structure. In other words, in traditional jurisprudence, rights are presented in correspondence with obligations and requirements—such as the right of a believer over another being the duty of the other—not as an individual right and practically observing the individual’s relationship with social, legal, and institutional structures that, in a sense, the state must guarantee. This is precisely why dignity, as the right to dignity as we understand it today, was not explicitly articulated in the science of jurisprudence and among predecessors.

Another point is that our traditional jurisprudential system is fundamentally duty-centric and focused on the obligations of the accountable individuals (Mukallafin), speaking of what must and must not be done, at the core of which lies the imperative of duty. This perspective highlights duties rather than individual rights. Again, returning to the sources and texts, one can realize that dignity was seemingly introduced and understood as a divine or moral attribute for humans, considered a grace and a rank in creation. However, the transition from this moral proof or creational advantage to a binding legal matter seems feasible only when we have an understanding of modern institutionalism; something that did not exist in the mindset of ancient jurists in this sense.

In the modern era as well, the disputes that occurred during the Constitutional period between the scholars who supported Constitutionalism and its opponents, the emergence of various jurisprudential sub-issues related to it, and subsequently the experience of Constitutionalism, created a kind of fear and apprehension in accepting discussions related to the discourse of dignity, which was mistakenly considered an imported concept stemming from Western ideology.

Another point is the concern over the disruption of other jurisprudential rulings. Accepting the widespread presence of the concept of dignity as a maxim creates this concern among jurists that it might lead to a disruption in that classical and traditional understanding of jurisprudence and a kind of collapse of the jurisprudential system. These factors caused the attention to this right not to manifest and emerge seriously and prominently as it should have.