Third Generation Rights: What Islamic Law Can Teach the International Human Rights Movement
Morgan-Foster, Jason, Yale Human Rights and Development Law Journal
Debate over the universality of human rights has typically focused on the extent to which international human rights law differs from local cultural practices and has generally sought to resolve these differences in favor of the international paradigm. Less attention, however, has been given to arguments that the international human rights paradigm may have something to learn from non-Western legal systems. This Article focuses on one such area: the conceptualization of individual duties to the community. In conventional human rights law, rights are explicit, while corresponding duties are often implicit, controversial, and poorly theorized. In contrast, the Islamic legal tradition offers a sophisticated paradigm of common ideals grounded in individual duties. The Article argues that a reconciliation of the rights-based and duties-based paradigms is both possible and necessary to render justiciable third generation "solidarity" rights, such as the right to development, the right to a healthy environment, and the right to peace.
The question of the universality of human rights norms has challenged scholars and commentators for decades. (1) It is a highly important question from a pragmatic standpoint, because human rights are sure to be ignored if they are not culturally relevant. (2) Because cultural legitimacy is so crucial to compliance, efforts to engage local and international law in the effort to seek universal values should be applauded. Not only will the end result be more culturally legitimate, it will also be more complete, benefiting from the combined wisdom of all legal systems and making international human rights more applicable and appealing to every society.
This Article analyzes one area where efforts to find universal human rights values should begin with the teachings of non-western legal systems: the importance of individual duties to the community. In human rights law, rights are explicit, while corresponding duties are implicit, controversial, and poorly theorized. In several other legal, ethical, and religious systems--such as Islamic law, Jewish law, Christianity, Hinduism, and Confucianism--the reverse is true. (3) Because the rights-based perspective and the duties-based perspective form such fundamental paradigm-establishing assumptions in their respective legal cultures, it is not easy to reconcile the two approaches into a universally acceptable international theory. This Article argues that such reconciliation is possible, however, within the so-called "third generation" of human rights--such as the right to development, the right to a healthy environment, and the right to peace--because these rights include both an individual right and individual duty component. Until now, the individual duty component of third generation solidarity rights has been de-emphasized by international human rights commentators. Examining Islamic notions of third generation solidarity rights, this Article finds a very different interpretation of their nature, one which specifically emphasizes their individual duty component. Not only can this add to our understanding of third generation solidarity rights, the strong presence of these rights in Islamic law can also contribute positively to the debate on the universality of human rights.
Although multiple scholars have discussed the importance of individual duties in local and regional legal traditions, (4) including several examinations of the role of duties in Islamic law, (5) no scholar has examined the potential of Islamic conceptions of duties to influence our understanding of international human rights law in the context of the debate on the universality of human rights. In fact, the vast majority of comparative scholarship on Islamic law and international law never leaves the defensive paradigm at all, content to defend Islamic law against an international standard, rather than promote the adoption of Islamic legal precepts in international law. …