Note: The right to human equality, at first glance, is an accepted and self-evident matter; however, when we look deeply into it, it possesses unspoken dimensions that require addressing; such as what is its relationship with citizenship rights and human rights? Is it a divinely ordained (tawqifi) matter whose instances must be expressed by Sharia, or a non-prescribed right? Dr. Abdul-Majid Moballeghi, a faculty member at the Institute for Humanities and Cultural Studies who has conducted extensive studies in constitutional law and political thought, considers this right a pre-religious and non-prescribed matter. Of course, he does not view the non-prescribed nature of this right as an obstacle to the Lawgiver’s intervention in determining its instances. The detailed text of Contemporary Jurisprudence‘s exclusive interview with this university professor and researcher follows:

Contemporary Jurisprudence: What is the right to human equality, and what dimensions does it possess?

Moballeghi: If we wish to address this question, we must state that the right to human equality, in one sense, traces back to the inherent equality of human beings in dignity, which pertains to human standing (haythiyyah). Of course, this matter emerges and manifests in the domain of obligations, in the domain of rights, and in the domain of benefiting from and enjoying opportunities.

At its core, this right traces back to the equality of human beings in the primary creation, which is the source of capacity for obligation (ahliyyat-e taklifi). Specifically, it tells us that in the first instance and within a comprehension arising from considering the existential value of human beings, no individual possesses legal superiority over another merely by virtue of race, gender, or lineage. Of course, later on, these differences emerge in environmental and social relations according to action or, for example, God-wariness (taqwa) and similar discussions.

In other words, an ontological dimension exists for this right, which is equality in the primary creation and inherent dignity of human beings, to which Verse 70 of Surah Al-Isra, stating “And We have certainly honored the Children of Adam” (Wa laqad karramna bani Adama), refers. Furthermore, a legislative dimension exists, which is equality in obligating rulings and in penal rulings. Of course, in certain instances, the Lawgiver, due to differences in roles or interests, has created a distinction in this legislative dimension, shaping that specific legislative system; however, per se, all possess a form of equality, provided that this equality is understood in relation to social interactions—interactions that have created a set of ebbs and flows.

In a sense, an executive and social dimension can also be considered for it; meaning that in addition to the ontological dimension and the legislative dimension, it also possesses an executive-social dimension. Here, equality in access to, for example, justice, equality in benefiting from social opportunities, equality in attaining political offices, and the absence of undue discrimination in the conduct of power-holders (such as the government, judge, and judicial system) toward individuals and similar issues can be categorized under it.

Contemporary Jurisprudence: Does the right to equality fall under human rights or citizenship rights? Is it a natural right or a conventional right? What differences does choosing each of these options cause?

Moballeghi: Firstly, citizenship rights themselves possess a serious reference to human rights at their core and nature, and in a sense, citizenship rights in their origin, foundation, and ontological core are not disconnected from human rights. We must take this into account; otherwise, our understanding of this entire subject will suffer from a form of cognitive distortion. Taking this issue into consideration, we examine how the matter stands. If we consider equality a right arising from the inherent dignity of human beings, then it is clear that it is classified under human rights, and this matter naturally entails effects; for instance, an individual being stateless or outside borders no longer invalidates that right.

However, if we observe and comprehend equality within the framework of national law and specifically under the individual-state relationship that acquires meaning within the national state and in reality the nation-state, then it falls under citizenship rights and specifically entails effects such as nationality and presence within a national border in relation to it.

If someone says that we do not consider these rights and this right to equality as part of human rights or citizenship rights and, in accordance with modern thought, consider it conventional, it must be said that this is an incorrect understanding of the relationship between conventionality or the Social Contract and human rights. In reality, human rights constitute the core essence of the social contract, and the conventional nature of a matter does not negate its relationship with human rights. Of course, this discussion is lengthy, but I will not dwell on it further.

Contemporary Jurisprudence: By what proofs can the right to human equality be proven? Does proving the right to human equality through each of these proofs produce different effects than proving it through other proofs?

Moballeghi: If we wish to address jurisprudential and legal proofs, under textual jurisprudential and legal proofs we can address verses and traditions. For example, in the verse “Indeed, the most noble of you in the sight of Allah is the most righteous of you” (Al-Hujurat: 13), it emphasizes equality in the origin of dignity and difference based on God-wariness (taqwa)—which is a matter pertaining to Almighty God—considering this equality per se for human beings based on dignity; although God-wariness, which holds a special standing in religious literature, creates a distinction that will be significant before Almighty God, it does not mean that a person lacking God-wariness lacks the right to inherent dignity. And if we address our rational jurisprudential and legal proofs, we face the ugliness of undue discrimination and the principle of rational justice, which is also accepted in Usul al-Fiqh. We know that “Whatever reason judges, Sharia judges” (Kullu ma hakama bihi al-‘aql hakama bihi al-shar’), and undue discrimination is improper; rational justice and accepting justice as a rational principle has been a subject of great scrutiny and recourse. Just as the conduct of rational beings (sirat al-‘uqala’) and the consensus of rational beings (bina’ al-‘uqala’) are grounded in equal behavior toward human beings, particularly when considering the shared, similar principle of existential value arising from human dignity.

Contemporary Jurisprudence: Is human equality a divinely ordained (tawqifi) matter that must be articulated by the Lawgiver, or is it a customary (‘urfi) matter whose concept and instances are determined by custom?

Moballeghi: First, let us see what divinely ordained (tawqifi) means. If equality itself is meant, is equality divinely ordained? No, its core principle was not founded in Sharia, but is confirmatory (ta’yidi) and endorsed (imda’i). That is, human equality possesses important pre-religious reasons addressing it, and the Lawgiver accepted it as a rational matter, although in designating instances, He restricted or expanded it. However, the core subject, namely equality, was a matter that existed.

Therefore, we see that determining many instances of discrimination or equality is entrusted to custom (‘urf) and based on the consensus of rational beings (bina’ al-‘uqala’). Of course, if in a certain instance the Lawgiver explicitly stated otherwise, it shall be heard; thus, it can be concluded that human equality, in its origin, is a rational and pre-religious matter that Sharia endorsed, confirmed, formulated, and restricted or expanded.

Contemporary Jurisprudence: What is the difference between the right to human equality as a citizenship right and the right to human equality as a jurisprudential rule (qa’idah fiqhiyyah)?

Moballeghi: First, let us see what we are placing under discussion in this question. Firstly, citizenship rights. Citizenship rights are rooted in several sources and origins: one is the Constitution, and another is enacted laws. Citizenship rights are a function of political territoriality and a consequence of enjoying nationality. That is, if you possess the nationality of a nation-state and possess presence, manifestation, and emergence within the order and expanse of its political territory, then under the specific competence defined for you, you will possess citizenship rights whose executive guarantee is the judicial system and legal framework of that country. This is what we understand by citizenship rights.

Now the question is: What is the difference between the right to human equality as a citizenship right and the right to human equality as a jurisprudential rule? Jurisprudential rules are derived from religious texts (nusus shar’iyyah) and are considered within the apparatus of religious consciousness using the methodological structure leading to understanding religious rules (including in the approach to Usul al-Fiqh and disciplines of this kind). Jurisprudential rules are general and universal, not restricted within a domain and sphere of governance arising from the nation-state that is effective in understanding citizenship. Their executive guarantee is Sharia ruling and religious commitment, even though a religious government may form within the expanse of a nation-state (like our Iran today) that acts upon religious matters as law through procedures it undergoes (such as converting into a legal structure in Parliament).

If we wish to place all these discussions alongside one another and arrive at a formulation and conclusion, we can say that the right to equality in Islamic jurisprudence is an endorsed (imda’i) and rational principle that God confirmed within the framework of human dignity, and religious texts stamped their seal of validity and endorsement upon it. Of course, its instances can be expanded or restricted based on custom (‘urf) and the requirements of the time, except what the Lawgiver specifically gave a particular form and shape to. And within the framework of religious governance, it can possess a legal attribute serving as the locus for exercising citizenship rights; meaning the issue must be formulated in such a manner that it can show us these modes of overlap between domains sharing a common denominator.