Note: The right to human equality or the right to justice, to date, has been discussed in the science of theology (kalam) far more than in the science of jurisprudence. Perhaps one of the most important individuals among contemporary jurists who spoke of this right and applied it across numerous subsidiary jurisprudential branches is the late Ayatollah Sanei. His interpretation of the right to justice, of course, has witnessed numerous proponents and opponents. According to Hujjat al-Islam wal-Muslimeen Seyfollah Sarami, the expression “the right to justice” is fundamentally an inaccurate expression; because justice belongs to the category of ruling (hukm), not right (haqq). Nevertheless, he considers justice applicable in various meanings within the science of jurisprudence. The detailed text of Contemporary Jurisprudence‘s exclusive interview with the Director of the Research Center for Jurisprudence and Law regarding the relationship between the right to human equality and justice follows:

Contemporary Jurisprudence: What does the right to enjoy justice mean? Does it refer to God’s justice toward His servants, the just governance of the sovereign toward the people, or the just conduct of citizens toward one another?

Sarami: Firstly, at least in our jurisprudential literature, justice in the sense of just behavior, which appears to be the intent of the question, is not a right (haqq); rather, it is a ruling (hukm). Of course, in a general classification, we call all jurisprudential enactments rulings (ahkam). Ruling in this broader sense is of two types: either a right (haqq) or a ruling in its narrower sense (hukm in its specific sense, i.e., the five rulings according to the prevailing opinion). Exercising justice is the object of a ruling in its specific sense, which is obligatory (wajib) or perhaps in certain instances recommended (mustahabb). The ruling of justice appears in Quranic sentences such as: “Be just; that is nearer to righteousness” (Al-Ma’idah: 8), or “Indeed, Allah orders justice and good conduct” (An-Nahl: 90). Or consider on the other hand that they state do not oppress or God does not oppress, to indicate that you must not oppress one another. Therefore, refraining from oppression and exercising justice is a ruling, and because it is a ruling, describing it as “the right to enjoy it” is not a technical expression. Someone might use such an expression, but they are speaking loosely, and in loose expression one must be mindful that this is not, for example, like the right to child custody (haqq-e hazanat) or guardianship (wilayat) or many other rights existing in jurisprudence that are potentially waivable; hence describing it as the right to enjoy justice, in my view, is not a correct expression, and this meaning should be refined in the remaining questions.

However, regarding the primary discussion, as justice being a ruling, firstly it must be clarified: What is the relationship between justice and equality? In Islamic literature, when they say justice, do they mean equality? Or if that is not the meaning, is the primary principle that justice means equality with certain exceptions? Or rather, is justice in Islamic culture defined as observing the rulings and rights specified in Islam—whether rulings articulated in human-to-human relations, human-to-God relations, or human-to-government relations—the totality of which realizes justice in Islam?

However, some have taken justice or the negation of oppression beyond the actual criteria of rulings as proving or negating rulings. Of course, when we say here they took justice and negation of oppression as criteria, we mean customary justice and negation of oppression; because actual justice and negation of oppression at the theological and ontological level (‘ind al-thubut) is not a jurisprudential matter, but a theological matter, and its meaning is that all divine rulings conform to justice, and none of divine rulings are genuinely and before God oppressive.

The late Ayatollah Sanei apparently believed in the rule of justice beyond the criterion of actual justice in proven jurisprudential rulings. In the book The Rule of Justice compiled by Mr. Ali-Akbarian, which is a collection of interviews, there is an interview with the late Mr. Sanei that is very detailed, and parts of it are in writing; meaning he was questioned and answered in writing, giving it greater validity regarding attribution to him. From those statements of his, it can be derived that he subscribed to the rule of justice. Of course, that rule of justice he speaks of extends beyond the explanation I provided. I stated that justice means the very rulings of Islam; but he states: Beyond Islamic rulings in jurisprudential sources, customary justice in every era—if it is truly rational custom (‘urf-e ‘uqala’i), not capricious custom and undesirable culture in the view of Islam; meaning not where a false culture dominates—rather rational custom, if man truly identifies something as justice, that thing is an affirmative Sharia ruling and can be brought as a jurisprudential ruling within laws.

In addition to the jurisprudential rule of justice, the late Mr. Sanei also believed in the jurisprudential rule of negation of oppression (qa’idah-ye nafy-e zulm). Indeed he explicitly articulated the second one even more, bringing it specifically and extensively in the book Qisas. In the rule of negation of oppression, they state that if we assume a Sharia ruling is documented in an authoritative tradition in chain and indication, but custom perceives this Sharia ruling as oppressive—for example, consider blood money of paternal relatives (diyah-e ‘aqilah) where they say someone here struck and killed someone, and then has certain relatives in America whom he may have never met, for instance a cousin whose uncle went to America years ago and had a child, and now this one in Tehran struck and killed someone, and then we say the blood money for pure mistake of this person who struck is upon that American cousin; if someone states: today this is considered oppressive, the late Mr. Sanei considered this included under the rule of negation of oppression.

Another instance of the rule of negation of oppression regarding which the late Sanei stated the jurisprudential rule of negation of oppression is the return of excess blood money (radd-e fazil-e diyah) of a man by the heirs of a murdered woman. They state that if a man murders a woman and the woman’s heirs decide to retaliate against and execute the murderer, because the blood money of a woman and a man differs, if they choose retaliation (qisas) over blood money, saying we want to retaliate against this man who murdered our mother and do not want his blood money, here the late Sanei states that we have an authoritative tradition requiring them to pay excess blood money; meaning the woman’s heirs must pay half of the man’s blood money to the murderer’s heirs so they can retaliate against and execute that man; technically this is called return of excess blood money. The late Mr. Sanei raised, discussed, and reasoned the rule of negation of oppression on this very occasion, stating that the obligation to return excess blood money is oppressive, and because it is oppressive, therefore, even though it possesses an authoritative tradition, we cannot submit to its tradition and must set it aside; because it conflicts with verses stating God does not oppress, thereby becoming a tradition conflicting with the Quran, which according to foundational methodology lacks validity and binding force (hujjiyyah).

In any case, my intention was not to enter this debate; rather my point was that justice is a ruling. On the one hand, the overall system, meaning the totality of Islamic rulings, is just; and on the other hand, the Lawgiver as a Sharia ruling commanded that people must practice justice; hence justice is not a right, and describing it as “the right to justice” is not a technical expression.

Now, your question is: Is the intent of justice God’s justice toward servants, just governance of sovereignty, or people exercising justice toward one another?

The answer is that it encompasses all of these; meaning both God ruled justly regarding servants and all His rulings are just, and rulers are commanded toward just governance, and people must treat one another justly. The proof for all of these can be “Be just” (I’dilu) and “Indeed Allah commands justice” (Inna Allaha ya’muru bi-al-‘adl), as previously stated. They as a Sharia ruling are commanded to treat one another justly, but its name is not a right; hence no one can state “I waived my right that someone or some institution treat me justly and have no objection to being treated oppressively.”

Contemporary Jurisprudence: What are the differences between justice as a citizenship right and justice as a jurisprudential rule (qa’idah fiqhiyyah) or an Islamic theory?

Sarami: Justice is not a right, and its nature as a jurisprudential rule I explained quoting the late Sanei.

Contemporary Jurisprudence: Meaning in the discussion of citizenship you do not accept it?

Sarami: I accept it, but it is a ruling (hukm); meaning the ruler is commanded to practice justice among the people. People, like other rulings, can demand it; however, demanding the ruling from the angle of enjoining good and forbidding wrong, or demanding their rights from another angle where the ruler’s duty is implementing Sharia rulings and rights in society, and all people can demand this; they can demand the implementation of Sharia rulings from this angle, not from the angle of saying “the right to justice.” A right in this sense does not exist; but for example (and examples carry no dispute), someone possessing qualifications can demand the right to be elected or vote in legitimate elections.

However, the jurisprudential rule of justice to which I referred and some stated—which of course I do not accept, having critiqued it in articles, chairs, and sessions we held—the meaning of a jurisprudential rule is as I stated: namely that we take rational customary identification of justice as the criterion for proving a ruling. For example, regarding copyright (haqq-al-ta’lif), we possess no Sharia ruling or tradition proving it, but because copyright is assumed as a customary just status-setting ruling (hukm-e wad’i)—since the claimed rule of justice is not merely related to task-defining rulings (hukm-e taklifi), but encompasses status-setting rulings as well—it exists as a just status-setting ruling in modern society and is therefore a Sharia ruling; because rational custom of modern societies considers it a right, and hence copyright is established and possesses its jurisprudential rulings. The jurisprudential rule of justice means this.

However, the Islamic theory of justice is somewhat broader and may encompass the jurisprudential rule of justice and the jurisprudential rule of negation of oppression; meaning a general and fundamental outlook toward a subject in a domain where the theological foundations of justice must be clarified, the relationship between justice and oppression made clear at the ontological and theological level, its jurisprudential effects made known, its role in the science of Usul al-Fiqh made clear—whether it is a rule or a principle; the totality of all these can be named the Islamic theory of justice; meaning a jurisprudential rule can be a subset of the Islamic theory of justice. In any case, the Islamic theory of justice is far broader than a jurisprudential rule of justice and may, for instance, if a jurisprudential rule is a 100-page book, the Islamic theory of justice become a 500-page book encompassing all aspects of justice and comparing it with theories of justice in modern societies.

Contemporary Jurisprudence: Does the right to human equality merely seek the equality of human beings in rights, even if this equality exists in oppression? Or does it also encompass the justness of behaviors?

Sarami: Regarding the expression “right to equality,” assuming equality is considered like justice, my statement is identical to what passed regarding the expression “right to justice.” Of course, equality in a general sense does not exist in Islam; rather justice and equity (qist) exist, which as stated are rulings. However, regarding the core question, in my view the answer is within the question itself; because it is clear that equality in oppression is under no circumstances pleasing to Islam. Oppression in Islam is inherently negative, detested, and condemned, and therefore naming equality in oppression as justice is a false statement and incorrect.

However, in the sense that the justness of behaviors serves as an instance for “Be just” (I’dilu) and “Indeed Allah commands justice and good conduct” (Inna Allaha ya’muru bi-al-‘adl wa-al-ihsan); in this sense it exists in Islamic sources, including in jurisprudence and jurisprudential opinions, and previously I stated that in one view it means Islamic rulings must be observed, and in another view like the late Mr. Sanei, beyond all Islamic rulings being just and requiring observance, whatever rational custom considers justice is also a Sharia ruling requiring observance; hence oppression and negation of oppression also maintains a regulatory control over other Islamic rulings. This view in reality seeks to state that beyond Islamic rulings, according to rational custom’s identification of justice and oppression, we can consider the domain of oppression and justice broader than Sharia rulings.

Contemporary Jurisprudence: Is the right to human equality different from justice? In what matters does this difference lie?

Sarami: Regarding the “right to equality,” I also noted that in Islamic literature and jurisprudential literature we fundamentally possess no such expression in a general sense; however, it exists regarding certain specific matters; for example in traditions and jurisprudential books, a judge is obligated regarding the plaintiff and defendant to observe equality in conduct, which perhaps in no other legal and judicial system is present with this precision; even for instance his manner of looking at one versus the other must be equal and identical. This equality is a manifestation of justice. This equality exists in certain specific domains.

Or for example we have the right of rotation (haqq al-qasm); meaning a man possessing multiple wives must divide nights and other amenities among his wives equally. In this case, again justice is in the sense of equality.

My point is that equality in specific instances may possess many cases, such as equality before the law except in certain exceptional instances. However, justice possesses no specific case; it is comprehensive and applies everywhere; whether in the expression I stated, or restricted to rulings, or even beyond that like the opinion of the late Mr. Sanei who considers justice current and pervasive across the entire jurisprudential and Islamic system.