Almost about a few years ago, when I was only a third year law student, I learned in a Jurisprudence and Legal Theory class full of mostly perplexed, sometimes disinterested and only rarely intrigued students that rights and duties were mutually inclusive. That is they were two sides of the same coin. Or to put it in the language of the instructor the presence of one presumed the presence of the other. Now if upon reading this you felt a lack of comprehension or a pinch of rational panic, it pretty much explains the mind-boggled state of affairs of the class, if not the concept itself and the elusiveness with which the discipline is embroiled. At the time, against the background of Austin’s command theory, I figured it out to mean that although the correct distribution of rights and duties was necessary for good governance but much more important was the realization of the superseding status of duties over rights in cases of clash (a notion that Roger Cottrell coined as the ‘governmental view of law’). Although this much theoretical wisdom was enough to pull off the exam but it did not suffice to teach me practical wisdom (much required to iron out the contentions of life) until I rubbed my intellectual energies over it in the upcoming years.
So as the life went on, year after year I learned multifarious propositions knotted to this rights-duties paradigm. Much more than ever, I became convinced that there was a right to education in Islam because there was a duty to know. Also, that a Muslim wife had a right to maintenance because she had a duty to maintain fidelity to her husband. Further, that a Muslim husband had a right to conjugal relationship because he maintained his wife. Besides that a drowning stranger had a right to rescue if the law put a duty on the passer-by to help. And that the manufacturer of a faulty product owed duty of care to the ultimate consumer if there was a foreseeable damage resulting from it. All of these, till today have been my guiding principles as far as their utility is concerned. But some weeks ago when I heard on social media that a mother had allegedly been beaten up by her son, I began to question myself if this binary division could offer a resolve.
Holy Quran puts great emphasis on the rights of parents and commands Muslim men and women to treat them with respect which surely includes tolerating the discomfort brought to their married life by their pressing and sometimes nagging demands
Taking a step back from the emotional dimension of the event I re-structured it as a triangle of person of incidence, person of inherence and subject-matter. In law you are a person of incidence if you are a duty-bearer, that is, if you are under a duty to perform/refrain from some action. Logically, then, you are a person of inherence if you are a right-bearer, that is, if you have a claim to some entitlements. And the subject-matter is the tangible/intangible thing over which the dispute is pegged. Applying this to the situation at hand we get two possible postulates. First, the mother’s claim that as a person of inherence she was entitled to respect by her son and by stroking her, the latter deprived her of her rightful entitlement. Second, the son’s claim that he was not a person of incidence as the duty to respect his mother extinguished when she attempted to interfere with his enjoyment of family life. If the matter stands as this then there are two more issues to address. Should this event be seen as a conflict between rights, viz. parental respect and peaceful enjoyment of family life or as a clash between right and duty, viz. parental respect and duty of children to care for parents? If it is taken as the former then the Austinian formula offers no help but if it is the latter then it is crystal-clear that duty outweighs right. Thus the right of the son to peaceful enjoyment of family life is forfeited by the duty to care for his parents; which the former violated by beating his mother up.
If you note, this solution sits well with the pinnacle -Article 2- of our Constitution of Pakistan 1973. Under it, Pakistan is an Islamic country as it mandates that ‘Islam shall be the State religion of Pakistan.’ Unlike modern liberal democratic states whose foundation is either social contract or pre-legal moral rights; the basis of Pakistan is theo-centricism. As such, Allah Almighty is the highest authority in the hierarchy of governance as He is the first cause of everything. But to mark the birth of political authority he delegated it to those who are able to ensure principles of democracy, freedom, equality, tolerance and social justice as understood in Islam. And stopping at this point, one may recall that the Holy Quran puts great emphasis on the rights of parents and commands Muslim men and women to treat them with respect which surely includes tolerating the discomfort brought to their married life by their pressing and sometimes nagging demands. Closely read, this is in consonance with our duty-over-right thesis.
However, the debate does not end here. There is still a question which lingers on my enquiring mind. If judges are really the guardian of Article 2, then are they under a duty to take suo moto action under Article 184 (3) of the Constitution to restore parental respect in our society? The answer, on the qualifications of the original jurisdiction seems to be in the affirmative. Firstly, as the disrespect of parents is violative of Article 2 and secondly as the Muslims want Islamic way of life which requires equity with parents. Despite the needful, there is regrettably silence on part of those who shared a sacred trust with Almighty Allah and it is yet to be seen how long this silence will remain. And how long it will take for the guardians of the Constitution to realize that an Islamic way of life is being compromised in the shadow of their offices. Until this realization comes, the episodes of miscarriage of social justice may have multiplied but as they say there is hope at the end of the tunnel so we can keep our fingers crossed.
The writer is a permanent teaching faculty at ‘Pakistan College of law’