One of the most respected principles of human societies is the freedom of individuals’ will in fulfilling their desired interests. Therefore, not only individuals but also public authorities cannot prevent the freedom of individuals from benefiting social and economic interests under any pretext. However, in some cases, the freedom of individuals in obtaining the greatest benefit, conflicts with each other, in such a way that the absolute freedom of someone to obtain more benefit, in some cases, makes harm the others. Therefore, it is very important to determine the limits and loopholes of individuals freedom and to establish a balance between it and the harm that may be caused to others due to this freedom. as this determination can have a wide impact on the comprehensive development of a state and the people living on it, Due to this necessity, many schools of thought throughout the history have commented on this issue including Islamic and Western schools of thought. The philosophical thoughts of these two schools, one of which is included in the Islamic rule of "no harm" and the other in the Western rule of "harm," has led this article to investigate the points of commonality and differences between these two rules in the shared interaction between them. This paper finally reached the conclusion that from the perspective of legal science, the freedom of individuals in fulfilling their interests is of special importance to ensure the maximum social welfare of any society and its people. So governments, not only should not hinder people\u27s activities, but also In their management, should first seek to combine the conflicted interests of individuals with each other and if it is not possible, in the second step, they should give priority to fulfilling the interests that have the most public function for the most people in the society.
Keywords: the Islamic principle of “no harm”, the principle of “harm” in Western law, the principle of freedom of action, the limitations of the principle of freedom, duties of the government in adjusting individuals’ freedom.
Introduction
Throughout human history, people have always sought to achieve their goals to have a much better and happier life. In the same direction, many conflicts and quarrels have been taking place between them in determining the priority of their rights. Following the resolution of these conflicts, many schools of thought have expressed their opinion in this regard that the religion and school of thought of Islam, especially the Imami religion on it, based on its legal approach, has tried resolving the conflicts arising from the principle of respect for the freedom of individuals with the principle of necessity not to harm others in practice. In Islam by relying on the principle of “no harm” that says "There is No harm in Islam", no one can harm others without compensation. Hence who cause harm, must be compensated in any way. This principle explains how to resolve the conflict between the clash of legal rights of individuals in the spectrum of the principle of sanctity of action freedom and its limitations.[1]
The importance of dealing with this issue has not gone away from the eyes of Western thinkers so the principle of respecting individual freedom can be seen in the French Declaration of human rights and Citizenship in 1789. Nevertheless, perhaps the first person in the West who addressed this issue after the general statements of Bentham, Jean Locke, and Jean-Jacques Rousseau was John Stuart Mill, who in his book entitled "On Liberty" defined the principle of respecting the freedom of individuals actions and its limitations under the harm principle.[2]
Today, in modern human societies, paying attention to the scope of individuals’ actions freedom to provide maximum social and economic benefits is an important necessity, which is definitely the criterion for determining the personal and general well-being of individuals in a society. Following this reason and philosophy, with the aim of determining the extent of individuals’ freedom in exercising their legal rights and the limitations they face in their normal and professional life, this article, which is based on the comparative study of the Islamic legal system with the western model, tries to explain that There are differences in approach, philosophy, and hopes of the principle of "no harm" in Islamic law and the principle of "harm" in Western law, which is based on the thoughts of the English philosopher John Stuart Mill.[3]
It is worth mentioning that by this comparative study of the Islamic principle “no harm” which is based on many Islamic laws appeared in many Islamic countries, such as Iran, Egypt, and Iraq with the Western principle of “harm” which is based on many Western countries, such as the United States, England, and France that are based to some extent on The intellectual philosophy of John Stuart Mill, the dark spots of action freedom of individuals and its scope will be specified. In such a way that Western humanitarian variables, some of which are based on the principle of "harm" to life, are similar to Islamic human rights, which are based on the Islamic "no harm" principle, however, in some cases, compliance with one of them may lead to the violation of the other.
According to the comparative approach of the present paper in explaining the substantive differences and similarities between the Islamic "no harm" rule and the Western "harm" principle and the legal laws derived from them, it can be said that the present paper can present new points that may be out of sight of Iranian and Western philosophers and writers. Therefore, according to these differences, the present paper, after giving a brief definition of each of these two Islamic and Western principles and their branches, will present a comparative study of the laws derived from the "no harm" rule with the Western laws derived from the "harm" principle and in last part it tries to show how The interaction of these two principles can help us in resolving the people rights conflicts caused by the principle of individuals freedom.
Generalities and concepts
Under this topic, the general introduction of the principle of "harm" in Western law and the principle of "harmless" in Islamic law will be discussed.
1.1 brief Explanation of no harm principle in Western law
John Stuart Mill says in his book "On Liberty" that humanity can only succeed in a society when each member of that society, from his personal point of view, lives a happy life. He says in this regard, everyone is free to create whatever he wants and do whatever he wants. This thought of John Stuart Mill is based on the principle of respecting the freedom of individuals. Therefore, He goes on to say, "Of course, sometimes an elderly woman sitting in her quiet garden conflicts with his/her young neighbor who enjoys listening to music loudly, in such a way that the freedom of the old woman with The action freedom of the young neighbor collides with each other and the freedom of one causes discomfort to the other, which must be solved in some way.
In order to resolve this conflict, he himself accepts that the freedom of individuals’ actions should not cause harm to others. Therefore, he puts the principle of "harm" next to the principle of "freedom". He further says that "sometimes it is possible that Personal freedom of action brings joy to thousands of people, while another person\u27s freedom of action brings joy to fewer people. Suppose a factory or a park will be opened in the area. In order to open a factory or a park, it is necessary to buy people\u27s houses to demolish them for building the factory or park. Everyone is free to sell his house to the government for the construction of the factory or park and he is also free to keep his house which may make someone feel relaxed and happy so that he is not willing to sell it even for billions of dollars. Of course, the opening of a park will make thousands of people happy, and the establishment of a factory will cause economic growth and the general well-being of a nation, and not selling a house will make just fewer people happy. Now, to resolve this conflict, which right has priority? In order to answer this question, he puts the principle of "Efficiency" next to two other principles and a principle will be born "The rule of freedom without harm on more people" and he continues "In the conflict between the freedom of individuals and the principle of harm, the one who can provide more happiness to more people is the first and prior." Therefore, in the realization of his hypothesis for the priority of a right, the element of power lacks validity and the determining criterion is the value and rule of "predominance of satisfaction". It means "the most happiness and satisfaction for the most people". Therefore, the government cannot prohibit people from their freedom just because it is powerful and strong unless its action is also in accordance with the principle of efficiency. The whole speech of John Stuart Mill is related to the conflict between legitimate freedoms, which is different according to the intellectual basis of each philosopher and school of thought. Therefore, no one can kill another, even if he is full of suffering and pain caused by illness, under the pretext that it will bring more happiness to those around him. Because in illegitimate freedoms, no right is defined at all until it can conflict with other rights and freedoms. On the one hand, from his point of view, in the conflict of rights, fundamental rights such as the right to live, take precedence over other rights, even though it includes According to the explanations given by John Stuart Mill in the first chapter of his book "On Liberty". he introduces the principle of harm as follows: "The only and only right that can be granted to society and public authorities to prevent individuals from performing their legitimate actions is the actions that cause illegal harm to others.[4]
1.2 Brief explanation of the harm principle in Islamic law
In Islam, specially Imami jurisprudence and law[5], every person is free to act whatever he wants. This logical result is obtained from adherence to the rule of the sanctity of Muslim property and actions. Relying on this rule, we can reach this conclusion: a person is free to do anything. He can do what he wants and no one can stop him. Therefore, using the principle of “Ibahe”,[6] a Muslim person is allowed to do whatever he wants to do, and due to the respect that his action has, no one from the public authorities or private individuals can prevent his actions.[7] so the Islamic jurists have stated about guaranteeing against the usurper and they say If a person becomes the guarantor of the debt of one of the usurpers against the owner of the property, when there is doubt as to which usurper he has become the guarantor of the debt, it will be the guaranty of the first usurper and his acquittal, and according to him, the other usurpers will also be released.[8] Therefore, in Islamic law, it can also be said that the scope of individuals’ action freedom in exercising their right should be interpreted in such a way as to cause the greatest happiness for the greatest number of people. Therefore, from the point of view of many jurists, public authority can prevent the freedom of persons whose actions cause less happiness for the least people in order to satisfy the general interests of Islamic society and in order to obtain the greatest satisfaction for the greatest number of people. The overall harmony of the principle of respect for the freedom of action of individuals and the Islamic principle of “no harm” with its Western model should not cause doubt that there is no difference between the two, but the main difference between these two rules lies in the explanation of the concepts of "harm" and "non-harm" in this rules. In any case, in general, the common meaning of both rules is as follows: "Everyone is free to do whatever he wants as long as he does not harm others". Therefore, in the following, the interpretation of the concepts hidden in these two principles will be discussed in each of the two Western and Islamic models.
Concepts
Under this topic, the influential concepts in the principle of Western "harm" and Islamic "no harm" will be discussed.
2.1 The concept of "freedom" and "harm" in the Western rule
John Stuart Mill\u27s main goal in his book "On Liberty" is to ensure the freedom of individuals’ actions against the public forces, i.e. the government. In reaching this goal, he tries to identify all the prerequisites that may cause conflicts between the freedom of individuals’ actions and the policy of governments and resolve the conflict between them. Therefore, he believes that people are free to do whatever they want by observing moral principles. Therefore, he who belongs to the "natural rights" school, warned the governments against passing laws in opposition to the principle "free will" of individuals and he considers the laws against the principle of individuals’ actions freedom as invalid. According to what has been said, the basis of the freedom of action of individuals from John Stuart Mill\u27s point of view is the non-contradiction of these freedoms with natural rights, the most important example of which is not to harm others. Of course, from the point of his view, harm has a special meaning that should be clarified. So, harm refers to actions that are directly and intentionally done by a person against the will of another. In addition, such an action is considered a loss for the other person only if it is considered unfair according to the general situation. Therefore, when two boxers enter the field of battle, even though one of them strikes his opponent against the other\u27s will, this blow and the subsequent loss will not be unfair.[9]Because, first of all, the participation in the competition and, as a result, the fatal blow, was with the initial consent of the person, and secondly, it was done in the process of the sports law. Therefore, the main scope of the concept of harm, from the point of view of desire, is based on its opposition to the consent of individuals. In the notes on the theory of desire, it is stated that the truth of the title of loss is actually the creation of a disorderly and complicated situation that puts a person in a worse situation than his previous situation.
On this occasion, John Stuart Mill in the definition of civil responsibility says; "Actions that directly and intentionally cause a person to be in a worse situation than his original situation". Therefore, from his point of view, in order to count an action as a loss to limit the freedom of individuals actions, it must always contain three fundamental elements:
1-The persons freedom of action should directly cause harm to another. 2-Only intentional actions can cause harm. 3- The loss should be unfair. Therefore, he believes that failure to perform an action can never cause harm. So, the comfort and convenience of a person, in the desire not to perform an action, cannot be limited by imposing a loss against another. In this regard, he believes that actions can only be limited on the pretext of harm to others, which causes the civil liability of "tort".[10]
In the scope of his philosophical thought, John Mill believes that non-material and non-physical titles are not included in the conceptual spectrum of "harm", but he includes non-material losses under another title, that is the "offense principle" which can never lead to freedom. hence, sometimes the individuals’ actions freedom may shock or provoke public feelings, which of course, from the point of his view, is necessary for the communal life of humans and is inevitable, and due to the ambiguity in placing such actions under the title of harm and due to the difficulty in their recognition and measurement, it is not possible to limit people\u27s freedom of action with these excuses. So, a person who wears inappropriate clothes in the summer cannot be restricted because he disturbs the psychological security of society. Finally, he comes to the conclusion that the "harm principle" only prevents actions that directly harm the material assets of others. While the "offense principle" is not reprehensible and cannot be used as a reason to limit the freedom of action of individuals.
2.2 The concept of "freedom" and "harm" in Islamic law
In Islamic jurisprudence books, the sanctity of the freedom of individuals’ actions is mentioned and emphasized, except where something lawful becomes forbidden or something forbidden becomes lawful. Therefore, the freedom of individuals’ actions in Islamic law is a divine value, and of course, one of its most important limits is not to harm others (Koleini, 1986, 292/25).
From a jurisprudential point of view, there are many cases where the action of individuals is a violation of the "offense principle", but the freedom of individuals’ actions cannot be hindered by the ruling of Sharia. For example, in the buying and selling of ancient artifacts by the people who find them, although selling them is reprehensible and violates norms until it is not prohibited by the competent authority of the Islamic government, the freedom of action of people cannot be prevented. Therefore, the determining source of the concept of forbidden is not the extra-governmental laws of natural rights, but the rules that the righteous Islamic government imposes. So, the scope of people\u27s freedom of action in Islam is based on divine laws and according to the opinion of vali Faqih and Sharia ruler, the most important scope of which is not to harm others.[11]
By referring to the principles governing Islamic rational sciences, the concept of harm is included in three formats. 1- Sometimes the concept of loss is hidden in the creation of emotional deficiency in a person. For example, a person prevents another from participating in the university entrance exam due to achieving his goals, and this causes him to be deprived of graduate education. In fact, when someone is admitted to the university, this is considered a personal perfection for him and now that he is not admitted to the university, he has suffered a loss. 2- Sometimes the harm is due to the suitability of an action to the human soul, which also varies according to the suitability of humans. Like listening to loud music, sometimes it is pleasant for a person because it gives him sensual pleasure. However, the same act causes him emotional resentment due to another person\u27s emotional compatibility with it 3- In some cases, the concept of harm lies in the abundance and scarcity of praise and condemnation from others. For example, the exercise of the right by a person who conflicts with the exercise of the right by another person, if it is condemned by the general society, this issue is a sign of the realization of the title of loss against the entitled person. For example, when a person exercises his right to build a cattle farm in a residential area. Considering that this act is ugly from the point of view of the public, therefore, the identification of the ugly by the public can also be considered as an indication of the harmfulness of that act.[12]
Contrary to the perception of the concept of harm in the first meaning, which is the same for everyone, harm in the other two concepts varies according to people\u27s tastes, so the concept of harm in the first meaning, which is certain for everyone, can certainly be a valid limit for the freedom of individuals actions.[13]
However, harm in its second and third meaning only has a meaning and limitation for the freedom of action of others if it is understood through general reason and not partial reason. for example; Suppose that two rights are in conflict with each other, preventing an action from being done by another contrary action to it, a person will suffer a loss only when his fundamental rights, which are proven by general and universal reason, are violated. Therefore, according to the "no harm" rule, by applying it, contrary to the western "harm" rule, rather than seeking to make people happy, we are seeking to prevent them from enduring suffering actions, according to common sense and not false excuses. Therefore, an elderly person sitting by the garden of his house brings him sensual perfection (joyfulness), if it is said that listening to loud music by a young neighbor prevents this sensual perfection in him - harm in the first sense that prevents freedom People\u27s actions- it is not impossible to prevent his actions. Hence, in the conflict between two rights, when one is based on a general rule of reason and the other is based on a partial rule of reason (such as people\u27s taste), the first right takes precedence. Hence, in the ruling of many Islamic jurists, it has been stated that, in order to observe social justice as a general benefit, houses should be destroyed on the way to the construction of factories, highways, or parks, even if their owners are not satisfied.
On the other hand, the image of the concept of harm in Islam is not only a momentary matter, but the continuity of time is very important in its recognition. Therefore, no one believes that preventing people from committing suicide will limit their freedom and causes harm to them. Because even though something may be considered a harm at the outset of the matter, but considering its consequences, it is not only not a harm, but it will also have benefits. Hence, it is not possible to prevent a person who is engaged in scientific experiments on his private property on the pretext of being harmful. Because this initial loss is not a loss at all compared to th
