Natural Right or Positivist Right: Redefining the Concept of

Javidi, Mojtaba

doi:10.30497/law.2016.1824

Natural Right or Positivist Right: Redefining the Concept of "Right" in Islamic Law

Document Type : Research Article

Author

Mojtaba Javidi

10.30497/law.2016.1824

Abstract

Each of the law schools defines the “right” based on its epistemological foundations. In legal positivism, the term “right” is separated from any norms and values and refers only to the “ruler’s command” as the “right,” due to the impossibility of empirical science engaging in value judgment and the claim of the separation of “is” from “ought to.” But in Islamic law, the term “right” is distinct from the “ruler’s command” (law), and the “ruler’s command” (law) must be based on “right.” This is because norms and values have an objective criterion that provides the ability to measure their truth or falsity, with no monopoly of science limited to experimental sciences. Thus, norms and values become a subset of science. Although there are some similarities between Islamic law and certain branches of natural law regarding the concept of “right,” and they may sometimes lead to the same conclusions in some areas, they differ in certain results and in the modality of explanations and descriptions. The “right” in Islamic thought is “what is entirely consistent with the real rules and objectives of the universe.” On the other hand, what is entirely consistent with the real rules and objectives of the universe is “Sharia.” Thus, the concept of “right” is inextricably linked with the real rules and objectives of the universe from the view of fixity, and with “Sharia” from the view of proof.

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