The Dominion of Rights, the Resistance of Duties

Abstract

This essay was delivered as the 12th annual Donald C. Clark Jr. Law and Religion lecture at the Rutgers Journal of Law and Religion symposium in 2022. The theme of the symposium was “Post-Colonial Iterations of Law and Religion in the Global South” and the piece argues that while colonial domination had devastating consequences for patterns of life, social order and communal ties, its most profound impact was on the paradigm shift it produced that became a pathway for perpetual subjugation. The paradigm shift occurred through the introduction of a “rights” framework into the realm of law in the Global South. What this rights paradigm displaced was a framework premised on the idea of duty, where moral and legal obligation structured guidance on the expected and accepted behavior in society. In the post-colonial context, rights became ubiquitous with law and communal relationships were framed around what everyone was entitled to. Instead of a concern with entitlements, a duty-based paradigm begins with a consideration of what is owed. In the pre-colonial period, law was premised on the idea of legal responsibility not legal rights.

Approaching the law from the perspective of responsibility or duty, as opposed to rights, fundamentally alters how legal problems are addressed. As Robert Cover notes, words like duty, obligation, and rights each derive their force from certain fundamental narratives or “stories” that underlie those concepts. These narratives establish a vantage point from which legal problems are assessed. A duty-based regime will begin with an inquiry into where the “burdens” lie for the performance of certain acts; a rights-based regime commences with the determination of who is entitled to perform those acts. In the context of Islamic law, where religion and law converge, duty structures the entire legal enterprise and is central to both individual and communal life. The post-colonial Global South is now occupied by contending paradigms of rights and duties. This situation has led to a type of split personality, where legal argumentation often involves strained attempts at articulating traditional duty-based rules in the vocabulary of rights. The logic remains duty-based but the structures for legal expression are foreign and reliant on the rights paradigm. Consequently, I argue that the introduction of a rights-based framework has altered the language that law uses to express itself and diminished its legitimacy in the process.

Keywords: duties, rights, obligation, Global South, colonialism, Islamic law