ANÁLISIS CRÍTICO DE LA VOLUNTAD MANIFESTADA POR EL CONGRESO DE LA REPÚBLICA

The following discussion concerns the justification for selecting moral agency as the sole criterion upon which moral personality should be based. I contend that this justification can be found in the concept of vicegerency. I also examine another justification based on the concept of a general secular moral community, but I start with my own justification.

Selecting moral agency as the criterion of moral personality in this thesis is justified by the concept of vicegerency. As detailed earlier,521 _{being God’s vicegerent on} earth requires that one be a rational and free-willed agent, i.e. a moral agent. Put another way, being a moral agent is a prerequisite for being a vicegerent. In turn, being a person is linked to being a vicegerent since dhimmah or personality522 _{has been conferred on} human beings to enable them to assume their position as vicegerents and bear any rights and obligations arising out of that. It follows that being a person is connected to being a moral agent. In other words, since (1) moral agency is the criterion of vicegerency and (2) vicegerency is the criterion of dhimmah, then moral agency is the criterion of

dhimmah. Therefore, in research adopting a Shari’a-based perspective, it seems

necessary to base personality on moral agency. Using the same perspective, the other justification will now be evaluated.

521 _{See 3.1.2 The human beings’ raison d’être.}

4. Defining Legal Personality

Tristram Engelhardt’s project of establishing a general secular moral community provides another justification. According to him, there exist variable moral communities within which binding content-full morality can be found. Each of these communities is based on a common convention that can be religious, such as Christianity, or non- religious, such as capitalism. The belief in this common convention constitutes a precondition for membership of the community concerned. It also makes of the believers “moral friends” to whom the binding content-full morality that exists within that community applies. However, the enforceability of such morality is limited to the members of that particular community, and the outsiders, or “moral strangers”, cannot be bound by that particular morality unless they believe in it and cease, therefore, to be strangers.523

Encompassing those moral strangers cannot be achieved, according to Engelhardt, except in a general secular moral community that transcends the boundaries of different common conventions, which will then be private.524 _{In the general moral community, no} content-full morality is conceivable and its members cannot be bound by an authority derived either from God or from reason, except if they freely agree to it.525 _{Therefore, as} Engelhardt argues, the existence of such a community assumes the existence of moral agents who are interested in establishing it:

The very notion of a general secular moral community presumes a community of entities who are self-conscious, rational, free to choose, and in possession of a sense of moral concern. It is only when such entities are interested in understanding when

523 _{H. T. Engelhardt, The Foundations of Bioethics (New York Oxford: Oxford University Press, 1996), viii} & x.

524_{Ibid., viii.} 525_{Ibid., x.}

4. Defining Legal Personality

they or others are acting in a blameworthy or praiseworthy fashion that moral discourse is possible.526

Having the ability to conduct moral discourse in this way is, therefore, a prerequisite for being a member of the general secular moral community, that is, being a moral agent is a prerequisite for being a person. In the words of Engelhardt:

The principle of permission and elaboration in the secular morality of mutual respect … concerns only persons, which notion (i.e., being a person) is defined in terms of the ability to enter into this practice of resolving moral controversies through agreement. The morality of autonomy is the morality of persons.527

However, this justification cannot be wholly accepted from an Islamic perspective. The Islamic community is, obviously, a convention-based community, built on a belief in Islam. All of its members are, therefore, moral friends, to use Engelhardt’s words. In this community, as in all other convention-based communities, there exists a content-full morality, namely Shari’a, that is binding on all members. Indeed, no-one can be a member of that community until they decide freely to be so, by either converting to Islam or consenting to an Islamic state’s authority.528 _{Both ways presuppose} contemplation and free will, hence moral agency. However, after joining the community one must adhere to the authority of Shari’a. One can remain a member even after disobeying Shari’a, but denying its authority cannot be tolerated and losing membership

526_{Ibid., 136.}

527_{Ibid., 139.}

528 _{Non-Moslems can join the Moslem community without accepting Islam as a religion. This can be done} though the dhimmah contract, as it is known in Arabic. According to this contract, a non-Moslem agrees to live in an Islamic state and enjoy the protection it offers while keeping his/her own belief. Further, s/he, according to this contract, is exempt from implementing Islamic imperatives when they differ from those determined by his/her own religion. For example, eating pork and drinking alcohol are legitimate for non- Moslems living in an Islamic state. See Al-ʿwā, Mḥmd Slym. "Nẓām Hl al-Dhmh. Rʾyh

Slāmyh Mʿāṣrt.” Asl-ām Awn L-āyn, retrieved from

4. Defining Legal Personality

is the immediate consequence of that. Therefore, requiring the individual’s consent to be bound by every moral imperative is not plausible from an Islamic perspective.

To sum up, the adoption of moral agency as the criterion of moral personality can be justified by the concept of vicegerency. However, such a viewpoint has been heavily criticised. In the following, I will discuss this criticism and some responses given to it.

4.2.2.3 The criticism levelled at selecting moral agency as the criterion of moral