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 law schools is defining the "right" based on its epistemological foundations. In "legal positivism" the term of "right" is separate from any norms and values and only spoke the "ruler command" as the "right" because of the impossibility of an empirical science in value judgment and the claim of “the separation “is” from “ought to”. But in Islamic law the term "right" is apart from "ruler command" (law) and different and the "ruler command" (law) must be based on "right". Because norms and values has objective criterion, which provides the ability to measure their truth or falsity based on no monopoly of science in experimental science. And thus, the norms and values is going to a subset of science. Although there are some similarities between Islamic Law and Some branches of natural law regarding to the concept of "right" and may sometimes lead to the same conclusions in some branches, they are different in some results and modality of explanations and descriptions. The "right" in Islamic thought is "what is entirely consistent with real rules and objectives of universe". On the other hand, what is entirely consistent with real rules and objectives of universe, is "Sharia". Thus, the concept of "right" is inextricably linked with real rules and objectives of universe on the view of fixity and "Sharia" on the view of proof.

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