A Comparative Study on the Essence of the “Right” in the Islamic Jurisprudence, Private Law and Public Law

Vijeh, Mohammadreza

doi:10.48308/jlr.2025.232531.2552

A Comparative Study on the Essence of the “Right” in the Islamic Jurisprudence, Private Law and Public Law

Document Type : Original Article

Author

Mohammadreza Vijeh ^¶

Associate Professor, Faculty of Law & Political Sciences, Allameh Tabatabai University, Tehran, Iran. Corresponding Author Email: mrezavijeh@atu.ac.ir

10.48308/jlr.2025.232531.2552

Abstract

Introduction
The concept of “right” is one of the most foundational yet contested notions in legal and jurisprudential thought. Although the term is widely used across Islamic jurisprudence, private law, and public law, its meaning is not uniform in these different discourses. In Islamic jurisprudence, a right is often understood as a kind of entitlement, an acquired privilege, or an abstract legal power relating a person to a specific object, act, or legal position. In positive law, by contrast, the concept of right is more closely tied to the legal capacity and standing of the right-holder, rather than merely to the nature of the entitlement itself. This divergence has significant theoretical consequences for the structure of legal reasoning, the relation between rights and duties, and the distinction between claimable and non-claimable interests. The present study aims to compare the essence of the “right” in Islamic jurisprudence, private law, and public law, and to clarify whether these traditions use the term in the same conceptual sense or within fundamentally different paradigms. It also seeks to show how this conceptual distinction affects the classification of rights, especially the distinction between real rights and personal rights, and how it shapes modern legal thinking about entitlement, obligation, and enforcement.
Methods
This study follows a descriptive-analytical and comparative method based on library research. The analysis begins with a conceptual examination of the term “right” in juristic and legal texts, followed by a comparison of its usage in Islamic jurisprudence, private law, and public law. The research focuses on the conceptual layers of the term, because much of the ambiguity surrounding rights stems from the confusion between lexical meaning, juristic meaning, and technical legal meaning. The study then examines the relationship between right and closely related notions such as entitlement, authority, ownership, obligation, duty, and enforceability. Special attention is paid to the distinction between real rights and personal rights, since this distinction is central to modern legal thought and strongly influences the way the right-holder is positioned within the legal system. The methodological assumption of the study is that differences in philosophical foundations and legal functions produce genuine differences in the meaning of right, and that such differences cannot be reduced to a merely linguistic variation.
Results and Discussions
The findings show that, although Islamic jurisprudence and positive law use the same term “right,” they do not assign it the same conceptual content or legal function. In Islamic jurisprudence, a right is generally associated with a kind of entitlement or juridical power that connects a person to a specific object, act, or legal condition. In this framework, the essence of the right lies in the relation between the holder and the object of the right, and it is often understood through the lens of legal privilege or abstract control. The concept is therefore not primarily centered on the personality of the holder, but on the legal relation itself. In positive law, however, especially under the influence of modern legal theory, the right is mainly understood as a subjective right. Here the focus shifts from the object of the right to the legal standing of the right-holder, who is recognized as having the power to claim, enforce, and exercise the right against others or against public authority. This means that the right functions not merely as a normative relation, but as a legal position securing the subject’s ability to act within the legal order. Another important finding concerns the distinction between real rights and personal rights. Real rights establish a direct legal relationship between a person and a thing and are enforceable against all third parties. Personal rights, by contrast, arise from a legal bond between specific persons and are usually connected with obligations, debts, or contractual duties. This distinction is crucial for private law, but it also informs public law, where rights such as civil rights and fundamental rights are best understood through the legal position of the individual vis-a-vis state power. In this sense, public law rights are less about the object of entitlement and more about the subject’s capacity to demand legal recognition or protection from public authority. The study also shows that the dominance of the notion of subjective right in positive law has shifted attention from the right itself to the right-holder. This shift has altered the way law conceptualizes the relation between rights and duties. In Islamic jurisprudence, rights are more closely tied to normative privileges or juridical powers, and their analysis often remains connected to duty, liability, waiver, and transferability. In positive law, however, rights are discussed primarily in terms of enforceability, standing, and the legal protection of the subject. As a result, the same word “right” is embedded in different conceptual networks and generates different practical consequences depending on the legal system in which it is used.
Conclusion
The comparative analysis demonstrates that the “right” is a homonymous but not a conceptually identical term in Islamic jurisprudence, private law, and public law. Differences in philosophical assumptions and legal structures have led to different understandings of the right: in Islamic jurisprudence, it is closer to a legal privilege or abstract entitlement; in positive law, it is more closely associated with subjective legal power and the status of the right-holder. This is not a merely terminological difference; it has important implications for legal theory, the relation between rights and duties, and the practical operation of legal enforcement. Therefore, any use of the term “right” in scholarly analysis or legal drafting should first clarify the conceptual framework in which it is employed and the theoretical consequences that follow from it. The study concludes that a precise understanding of the essence of right is only possible through careful comparison between the Islamic juristic tradition and modern legal systems, and by avoiding the assumption that the same term necessarily denotes the same concept across these traditions

Highlights

In Islamic jurisprudence, the concept of “right” is predominantly understood in connection with ownership and within the framework of real rights, which leads to its analysis as a legal status related to property rather than primarily to the personality of the right-holder.

In private law, a “right” is conceptualized mainly as an institutional legal advantage arising from a specific legal status, functioning as a structural mechanism for regulating legal relationships rather than as a purely personal entitlement.

· In public law, the concept of “right” moves away from an ownership‑centered model and becomes connected with the dignity, status, and fundamental capacities of the human being, such that a right is understood primarily in relation to the position of the person and the requirements of human dignity.

Keywords

Right

Positive Law

Islamic Jurisprudence

Personal Right

Privilege

Subjects

Public Law

References

Books

1. Amid Zanjani, Abbas-Ali, Political Jurisprudence, Volume 7: Foundations Of Public Law in Islam, Tehran: Amir Kabir, 2005. (In Persia(

2. Ansari, Sheikh Morteza, Makaseb, Qom: Dehaghani, Second Edition, 1995. (In Arabic)

3. Dabin, Jean, Subjective Law, Paris: Dalloz, 1952. (In French)

4. Del Vecchio, Giorgio, Philosophy of Law, Translated by: Alexis D’Aynac, Paris: Dalloz, 2004. (In French)

5. Duguit, Léon, Lessons in General Public Law, Paris: The Memory of Law, 2000. (In French)

6. Emami, Sayyed Hassan, Civil Law, Volume 1, Tehran: Eslamic, Ninth Edition, 1992. (In Persian)

7. Ghanavati, Jalil, Sayyed Hassan Vahdati Shobayri and Ebrahim Abdi-Pour, Under Supervision of Sayyed Mostafa Mohaghegh Damad, Contract Law In Imamiyya Jurisprudence, Volume 1, Tehran: Samt, 2000. (In Persian)

8. Ghorban-Nia, Nasser, Human Rights And Humanitarian Rights, Tehran: Institute For Islamic Culture And Thought, 2008. (In Persian)

9. Hekmat-Nia, Mahmoud, Foundations Of Intellectual Property, Qom: Institute For Islamic Culture And Thought, Second Edition, 2008. (In Persian)

10. Hobbes, Thomas, Leviathan, Translated By: Hossein Bashiriyeh, Tehran: Nay Publishing, 2001. (In Persian)

11. Imanian, Fariborz, Abdollah Shams and Mohammad Isa Tafreshi, Interpretation of Civil Rights in The Civil Code, Tehran: School of Humanities, 2003. (In Persian)

12. Ja’fari Langroudi, Mohammad Ja’far, Annotated Collection Of The Civil Code, Tehran: Ganj-e-Danesh, 2000. (In Persian)

13. Ja’fari Langroudi, Mohammad Ja’far, General Philosophy Of Law Based On Pragmatism: Theory Of Equilibrium, Tehran: Ganj-e-Danesh, 2002. (In Persian)

14. Ja’fari Langroudi, Mohammad Ja’far, Property Law, Tehran: Ganj-e-Danesh, 1991. (In Persian)

15. Kant, Immanuel, Philosophy Of Law, Translated By: Manouchehr Sane’ei Darreh Bidi, Tehran: Naghsh-o-Negar, 2001. (In Persian)

16. Katouzian, Nasser, Introductory Course Of Civil Law: Property And Ownership, Tehran: Yalda, 1995. (In Persian)

17. Katouzian, Nasser, Philosophy Of Law, Volume 3, Tehran: Ganj-e-Danesh, 1998. (In Persian)

18. Khodabakhshi, Abdollah, The Fundamental Distinction Between Civil Law And Criminal Law, Tehran: Shahr-e-Danesh, 2010. (In Persian)

19. Mahmoudian, Mohammad Rafi’, Ethics And Justice, Tehran: New Design, 2001. (In Persian)

20. Mirahmadi Zadeh, Mostafa, The Relationship between Jurisprudence and Law, Qom: Islamic Propaganda Office of the Seminary, 2001.

21. Mohaghegh Damad, Sayyed Mostafa, Rules Of Jurisprudence: Civil Section 2, Tehran: Samt, 1995. (In Persian)

22. Mousavi Khomeini, Sayyed Ruhollah, Book of Sale, Volume 1, Qom: Islamic Publishing Institute,1994. (In Arabic)

23. Mousavian, Sayyed Abolfazl, The Nature Of Right, Tehran: Institute for Compilation and Publication Of Imam Khomeini’s Works / Orouj, 2003. (In Persian)

24. Roubier, Paul, Subjective Rights and Legal Situations, Paris: Dalloz, 2005. (In French)

25. Saket, Mohammad Hossein, Legal Studies, Tehran: Sales, Second Edition, 2008. (In Persian)

26. Singer, Peter, Hegel, Translated By: Ezzatollah Fooladvand, Tehran: New Design, 2000. (In Persian)

27. Tabataba’ei, Mohammad Hossein, The Principles Of Philosophy And The Method Of Realism, Volume 2, Qom: Sadra, 1984. (In Persian)

28. Var’ei, Sayyed Javad, Rights And Duties, Qom: Secretariat Of The Assembly Of Experts Leadership, 2002. (In Persian)

29. Villey, Michel, Philosophy of Law, Paris: Dalloz, 2001. (In French)

30. Villey, Michel, The Formation of Modern Legal Thought, Paris: P.U.F., Second Edition, 2006. (In French)

Articles

31. Amid Zanjani, Abbas-Ali, “The History Of Human Rights In Islam”, The Faculty of Law and Political Science Journal, Volume 27, Issue 0, 1991, PP 25-41. (In Persian)

32. Ben Achour, Yadh, “Islam and Human Rights: The Conflict of Interpretations”, In: Luchaire, François. A Republican in the Service of the Republic, Paris: Sorbonne, 2005, PP 63-83. (In French)

33. Cotta, Sergio. “In Search of Subjective Rights”, Archives of Philosophy of Law, Volume 35, Paris: Sirey, 1990. (In French)

34. Emami Kashani, Mohammad, “Opinion on Intellectual Property Rights”, Rahnamoun Quarterly, Issues 2-3, 1992. (In Persian)

35. Falsafi, Hedayatollah, “Right, Peace, And Human Dignity: Reflections On The Concepts Of Legal Rule, Moral Value, And Humanity”, International Law Review Quarterly, Volume 19, Issues 26-27, 2001, PP 5-30. (In Persian) Doi: 10.22066/cilamag.2002.180

36. Fazel Lankarani, Mohammad, “Opinion on Intellectual Property Rights”, Rahnamoun Quarterly, Issues 2-3, 1992. (In Persian)

37. Gorji, Abolghasem, “Ownership In Islam”, In: Gorji, Abolghasem, Legal Essays, Volume 2, Tehran: University of Tehran, 1990. (In Persian)

38. Gorji, Abolghasem, “The Legitimacy of Right and Its Rule With Emphasis on Moral Right”, The Faculty of Law and Political Science Journal, Volume 29, Issue 0, 1993, PP 121-132. (In Persian)

39. Gorji, Abolghasem, “The Relationship Between Law and Jurisprudence”, The Faculty of Law and Political Science Journal, Issue 35, 1996, PP 71-87. (In Persian)

40. Gutmann, Daniel. “Subjective Right”, In: Alland, Denis. Dictionary of Legal Culture, Paris: Lamy/P.U.F., 2003. (In French)

41. Makarem Shirazi, Nasser, “Opinion on Intellectual Property Rights”, Rahnamoun Quarterly, Issues 2-3, 1992. (In Persian)

42. Mar’ashi, Sayyed Mohammad Hassan, “Opinion on Intellectual Property Rights”, Rahnamoun Quarterly, Issues 2-3, 1992. (In Persian)

43. Mar’ashi, Sayyed Mohammad Hassan, “Right and Its Divisions From The Perspective of Different Jurisprudential Views and Legal Schools”, Judiciary Law Journal, Volume 58, Issue 10, 1994, PP 19-26. (In Persian)

44. Mirshamsi, Fatemeh, “Custody From The Perspective of Imamiyeh Jurisprudence and Other Islamic Schools”, The Faculty of Law and Political Science Journal, Volume 53, Issue 0, 2001, PP 151-170. (In Persian)

45. Mohaghegh Damad, Sayyed Mostafa, “Dialogue”, In: Sarami, Seyfollah, Right, Ruling, and Duty: A Conversation with a Group of Seminary and University Professors, Qom: Research Institute of Islamic Sciences and Culture, 2006. (In Persian)

46. Mohaghegh Damad, Sayyed Mostafa, “The Provisions of the Financial Transaction Clause in the Contract in Islamic Law”, Legal Research Quarterly: Memorial Volume For The Late Dr. Sayyed Mehdi Shahidi, 2005, PP 85-114. (In Persian)

47. Molavi Ghalaychi, Mohammad, “Abandonment of a Right That Has Not Yet Come Into Existence”, The Faculty of Law and Political Science Journal, Issue 47, 2000, PP 91-108. (In Persian)

48. Nabavian, Sayyed Mahmoud, “Anatomy of The Meaning of Right Among Western Thinkers”, Islamic Government Quarterly, Volume 13, Issue 1, 2008, PP 105-135. (In Persian)

49. Nabavian, Sayyed Mahmoud, “Anatomy of The Meaning of Right in The Political Thought of Shi’e Jurists”, Islamic Government Quarterly, Volume 12, Issue 4, 2007, PP 37-66. (In Persian)

50. Rasekh, Mohammad, “Theory of Right”, In: a Group of Authors, Human Rights in The Contemporary World; Concerns and Views of Iranian Jurists and Islamic Jurists, Tehran: Islamic Human Rights Commission, 2009. (In Persian)

51. Renaud, Alain. “Etat De Droit et Sujet De Droit”, Notebooks of Political and Legal Philosophy, Issue 24, 1993. (In French)

52. Safari, Ne’matollah, “The Treatise on Right and Rule and The Biography of Sheikh Mohammad Hadi Tehrani”, Mofid Letter Qarterly, Issue 4, 1995, PP 137-178. (In Persian)

53. Safi, Lotfollah, “Opinion on Intellectual Property Rights”, Rahnamoun Quarterly, Issues 2-3, 1992. (In Persian)

54. Sarami, Seyfollah, “Dialogues in an Analytical Review”, In: Sarami, Seyfollah, Right, Ruling, and Duty: A Conversation with a Group of Seminary and University Professors, Qom: Research Institute of Islamic Sciences and Culture, 2006. (In Persian)

55. Tallineau, Lucile. “Rights and duties”, Frontiers of Law, Critique of Rights – Mood Pieces in Honor of Danièle Lochak, Paris: L.G.D.J., 2007. (In French)

56. Tavassoli, Hossein, “Analysis of Right”, Islamic Government Quarterly, Issue 7, 1998. (In Persian)