Banisadr’s theory of rights has opened a new perspective and challenges our classical understanding of rights. It seems his views have created heated debates within Iran, at the universities and religious centres. They want to know how this theory tackles important and sensitive issues current in the philosophy of law. In order to respond to this demand, Banisadr was asked to reply to questions relating to two of the most sensitive areas in his theoretical framework.
What is neglected in the historical struggle between modernity and tradition in Iran is, to a large extent, a reflection of this struggle in the domain of the modern philosophy of law. Yet it is in this domain that one can most clearly identify and observe the theoretical and philosophical roots of this struggle in regard to modernity, religion, intellect and freedom. This is because it is in this domain that one can identify the differences between a liberalistic theory of law, which is the dominant theory of overseas modern Western law, and its serious critics coming from the Islamic philosophy of law, most notably A.H. Banisadr.
These questions and Banisadr’s response should be seen only as the first steps of such a reflection, and are intended to introduce the various aspects of Banisadr’s approach to the theory of rights and how these differ from a liberal interpretation of rights:
1: From your philosophical point of view on rights, is there such a thing as the ‘right to have children’? If there is such a right, and since you have already argued that a ‘duty’ is nothing more than the exercise of a ‘right’, can one subsequently argue that to have children is a duty? Furthermore, if it is a duty, then can the exercise of this duty to be enforced?
2: From your point of view, if an incestuous relationship is based on mutual consent and is not violent, is such relationship to be considered as crime and worthy of punishment?
Banisadr’s answers
First I should make a general argument which is that as a whole we, as human beings, are neglectful of the ‘right of nature’. The right of nature is an intrinsic right, which is essential for the preservation of human nature and every living being. This right has a direct relationship with the life of every living being. The intrinsic rights of life are those rights: life is dependent on them, and without them life will cease to exist. For example, if the right to have children were not to exist then human being would cease to exist, whereas incest disturbs a healthy right of nature and its absence will not only cause no one harm, but is compatible with life. Hence to see it as forbidden is the exercise of rights.
Now based on this argument, one can answer the question in greater detail:
1: Based on the meaning that we gave to the right of nature, then one can argue that the continuation of the life of a living being is a right. Hence to have a child, which is necessary for the continuation of life, is a right. The existence of the talent and grace of motherhood in woman and fatherhood in men, and also the fact that physiologically we are designed for having children, tells us that nature, based on its right (continuation of life) has provided us with the conditions for having children. Still we have to be aware that sexual intercourse, as well as other natural needs like food and sleep, should be exercised on the level that nature demands and not in excess. This is because if these rights are exercised carelessly and without observing limits, then it violates the right of nature and leads to the destruction of life, a population explosion, and the destruction of resources, hence the spread of poverty. Thus positive law should aim at identifying and regulating the right of nature.
The problem in Western legal systems lies in the definition of ‘rights’, since in most cases instead of defining ‘rights’, it is ‘power’ which is defined. In other words, in most constitutions ‘rights’ are understood and defined as intrinsic entities of life but they use Plato’s method and maintain the ‘form’ of the concept while the ‘meaning’ is changed and as a result no difference is distinguishable between ‘natural law’ and ‘positive law’. Unfortunately most people around the world still believe human rights stand outside human beings and see them as a privilege which one can either enjoy or deprived of. That is why they fail to understand that the violation of another’s right is also the violation of the human rights of the violator. Or they believe that people have to develop and reach a point at which they deserve to enjoy these rights.
2: Incestuous sexual relationships, either inside of marriage or outside of it, have existed in many ancient societies and gradually these have disappeared from social relations. Hence their existence is a historical fact. Thus the gradual transfer of incest from a social fact to a taboo should be sought in these historical experiences as it these experience testified to its harmful effects. For example, before Islam, incest marriages were permitted in Iran and the transition of this practice into a taboo should be sought in these experiences. Still the historical experience of incest could be sub- divided to two forms of natural (which is the right of nature) and social experiences. Both experiences have led societies to see it as detrimental to human societies. As far as I am aware, even reproductive science does not approve of sexual relations between cousins, while this is still a norm in Iran.
Even if such relationships do not lead to having children (and one might argue that the right of nature is not affected), its social harm still remains. Why? In order to have a truly open society we need to have ‘open families’ and in order to do so we have to families free from personal power relations which have paralysed our societies for centuries and make it irrelevant.
Incest is against the right of nature and this is because it does not have the characteristics of a right. In various articles and books I have already explained the characteristics of rights and the methods of distinguishing ‘rights’ from ‘non-rights’ (For instance, see ‘Human, Right, Judgement and Human Rights in Koran’ pages: 103-137). In brief, one can argue that one of the characteristics of a ‘right’ is that it is not harmful or destructive, furthermore it leads to development as well being liberating. Rights are beyond time and space and can be exercised without any discrimination. This stands in opposition to ‘violence’, which is grounded in space (‘now’) and time (‘here’) and it is based on discrimination.
Historical and social experience, as well as medical and genetic science, show that incest is harmful. Hence such relation not only cannot reinforce life, it is detrimental to it. If such a relation were to be a ‘right’ then, like freedom, the space and time for it would have become infinite and it could have been exercised everywhere and at any time and it would reinforce life. The Islamic ‘principle of La-Zarar’ (=any action that is harmful to oneself and others is forbidden) in the contemporary philosophy of rights can justify the view that the act of incest is not a right.
Can one imagine that incest will become a norm on a global level? In such a scenario, the explosion of the number of defective babies will tell us that incest not only does not have the characteristics of ‘rights’, furthermore it is the violation of the right and human nature.
In the second question, it seems that you have tried to sketch a legal relation for incest by adding the two factors of mutual consent and the lack of violence. Still I would like to draw your attention to the argument that consent does not necessarily makes an action right. In most cases, the violation of rights is accompanied by consent, therefore it could be argued that a ‘right is not the result of consent’. In many cases, we assume that giving ‘consent’ means an ‘absence of violence’, while the subject of consent, in some cases, can be a violent exercise/act. Therefore, we first have to be certain that our action is the exercise of a right. We can see this approach in a simple example of food and the body. There are certain foods that are detrimental to our health and harmful to our body, but we consensually eat it with pleasure and fail to see the violent effect of this food on our body. For example, consuming fat and salt is detrimental to the body of someone who suffers from heart disease. In most cases, such a person views abstinence from these ingredients as a violent act (as he/she is deprived to consume the food that she/he loves), while perceiving the act of consuming them as a non-violent act. However, we know the former act is non-violent and the latter act should be seen as violent.
In order to discern whether one’s action is violent, we have to be certain whether the action is a ‘right. Once again, I have to remind you that that the first characteristic of ‘right’ is that it is an independent variable existing by and on its own, as its existence is not dependent on other variables. Whenever we undertake an action that reflects intrinsic rights, then we can see that not only has it no contradiction in itself, but it does not contradict other ‘rights’ and is devoid of violence. Hence when any action contains these characteristics, then it becomes ‘right.
Updated Notice:
On 19 November 2007 the MPI in Freiburg has provided the German Constitution Court with a scientific (from both normative and criminological perspectives) analysis about the problematic of Incest in criminal law, for the full text click here, Th full text of this research in German is here for Download 05-08-inzest_gutachten.pdf
Today, July 24, I gave a talk on the idea of Islamization of criminology in post revolutionary Iran. This session was organized within the framework of Brown Bag Talk Series of the Department of Criminology, the Max Planck Institute for Foreign and International Criminal Law. Ms Dr. Gunda Woßner, the head of the research projects Sexual Delinquents in Social-Therapeutic Institutions of the Free State of Saxony and Juvenile Sexual Offenders in the Correctional Treatment Facilities of the Free State of Saxony, is the coordinator of this innovative program. 
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