نوع مقاله : مقاله پژوهشی
تازه های تحقیق
· در فقه اسلامی، مفهوم «حق» غالباً در پیوند با مالکیت و در چارچوب حقوق عینی فهم میشود و همین امر سبب میگردد حق بیشتر بهمثابه وضعیتی اعتباری و مرتبط با شیء یا مال تحلیل شود تا امری مبتنی بر شخصیت دارنده حق.
· در حقوق خصوصی، «حق» بیش از آنکه بر شخص تکیه داشته باشد، بهعنوان امتیازی ناشی از یک وضعیت حقوقی و در قالب ساختاری-نهادی تبیین میشود و بدینترتیب واجد کارکردی تنظیمگر در روابط حقوقی میگردد.
· در حقوق عمومی، مفهوم «حق» از الگوی مالکیتمحور فاصله گرفته و با شأن، منزلت و تواناییهای بنیادین انسان پیوند میخورد، بهگونهای که حق بیش از هر چیز به موقعیت شخص و اقتضائات کرامت انسانی وابسته میشود.
عنوان مقاله English
نویسنده English
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
کلیدواژهها English
