Fixed and Variable Aspects Of Islamic Legislation
- :Al Balagh Foundation
Fixed and Variable Aspects Of Islamic Legislation
Al Balagh Foundation
In the Name of Allah
Peace and blessings of Allah be upon His Beloved Chosen Messenger Muhammad (s.a.w.), his pure progeny and the righteous among his companions.
Islam has began to force its way through our contemporary world both on the plane of thought extending over an area which, until recently, was under the influence of the objective movements, and on the plane of practical situations here and there, in a number of positions. This renewed vigour is exhibited through political, economic, social and educational applications.
Thus, mankind is having a rendezvous with a new experience that forcefully presents itself on the international scene despite all efforts to hinder and contain it. There is the hope that this new pioneer will blossom and take root so that it can contribute in rescuing the international community from the yoke of the strangling oppression that encircles it from all quarters.
However, a number of questions and doubts are raised in regard to the ability and the extent to which Islam can go in solving the current problems of life, with the complexities and challenges associated with contemporary conditions. Can Islam furnish us with beneficial prescriptions at a time when other ideologies have retreated, failing to cure the ills of contemporary man? These ideologies have indeed failed to solve even partially the woes and incurable diseases threatening the human civilization; in truth even contributing in perpetrating these evils.
Despite these potent realities, doubts on the ability and appropriateness of the rising Islamic project are raised especially from the vestiges of westernization and secularization which are clinging to their last stronghold in Islamic countries, let alone some neo-colonial circles harping on this biased claim whenever they feel the increase of the Islamic "threat". It is unfortunate that some Muslims are involved in creating this confusion.
Sometimes they present it innocently, not knowing the implications, and some other times under the guise of scientific investigation or objective research or even in the name of Islamic enthusiasm! These presentations are issued in apparently neutral language and methods although, in essence, they are only repeating the words of vengeful orientalists. A keen eye would never miss this fact.
These poisoned views aside, any objective scientific investigation will definitely conclude that the immortality of Islam confirms its greatness which, in turn, is derived from the fact that it is a Divine Message sent as a mercy for the whole of humanity: "And We did not send you (O Muhammad) except as a mercy for the worlds", suitable for all times, "This day have I complet-ed your religion for you, completed my favour upon you and have chosen for you Islam as your religion."
The deluge of the fall of materialistic ideologies ushered in a period of decline in western civilization. This is no longer a secret since hardly a day will pass without hearing some leaders, of thoughts from the West, sounding a warning on the consequences of a headlong fall to which this civilization is hastening.
Thus, there is no choice left for mankind after being tortured and threatened with imminent disaster except to resort to the only means of salvation, Islam, which possesses the key solution and the way out of this dangerous strait. This is so, because Islam has a distinction not seen in other ideologies; a dynamic feature amenable to renewal and openness and capable of combining established truths and renewed legisla-tions opened to the facts of life. Therefore, Islam will never lack the ability to care for the spiritual needs of man, on the one hand, and fully grasp the civilizational changes that take place in the course of human development, on the other.
Because of our having a strong belief in the necessity of spreading this clear understanding of the nature of Islamic legislation, Al-Balagh Foundation has decided to publish this book, which is small in size, but rich in content. All praise is due to Allah, the Lord of the Worlds.
Since the descending of heavenly Messages, mankind has been divided into two parties that contradict each other in matters pertaining to belief, understanding and views towards life and what it contains of wealth, pleasure, enjoyment, social relationships and the connections between the soul and other things in existence. The Holy Qur'an recorded this phenomenon, saying:
"Mankind is a single nation. So Allah raised prophets as bearers of good news ans as warners, and He revealed with them the Book with truth, that it might judge between people concerning that in which they differed…" Holy Qur'an (Baqara 2: 213)
Primitive life embarked on development as a result of the evolution of man's faculty of thought, the power of his intellect and the improvement in scientific experiments. Human society, thus, took a more complex form; power and state came into existence, law and order emerged, then, followed the birth of philosophy, thought and theoretical concepts.
Ever since the descent of revelation to this earth, mankind had two parties; one following the course of the Prophets and the other that of the tyrants. The latter built their civilization upon apostasy and materialistic understanding. This course and chart sometimes rises and at other times falls, reaching its peak with Greek thought and Roman rule. By this time, it had definite philosophical, canonical and social forms. It was under this Greco-Roman civilization that 'Jahiliyya' thought took its theory and assumed more complex forms.
At the same time, divine thought pursued its work of reform, inviting mankind to believe in Allah and building man's life on the foundations of knowledge, faith and moral values. For all the period of human existence, there were Messengers and Prophets with their messages.
"... and there is not a people but a warner has gone among them." Holy Qur'an (Fatir 35: 24)
The struggle between materialistic and Divine thoughts continued throughout the ages and reached its peak on the advent of Islam and the Prophethood of the saviour of mankind, Muhammad (s.a.w.). The Islamic message triumphed on the plane of thought, as well as, in the arena of force and battle. Consequently, a society, a state and a civilization were brought into existence based on the principles of Islam, the power of which depended on the course of guidance and man's wholesome achievements.
This Divine Message provided humanity with a complete ideological project for the leadership of human society. This project was able to vanquish all the theories, ideologies and philosophies of atheistic materialism which are opposed to the call to belief and moral values. Islamic culture and civilization had, in a day, flourished , while different branches of natural and social sciences thrived over many centuries. Faith was guiding, fostering and directing the path of science while the latter served faith by establishing its principles in the souls. Thus, science and faith were but twins whose fruits compliment each other and they helped one another in constructing the society and human welfare.
The history of human thought had witnessed a gigantic scientific revolution at the hands of Muslim scholars in the fields of philosophy, ethics, thought and investigations on the intellect, literature, art, historical, political and social sciences and studies in legislation and law, etc. Similarly, the Muslims enriched human thought in the natural and biological sciences by establishing methods of scientific research and investigated on and discovered scientific theories in the fields of physics, medicine, pharmacy, astronomy, mathematics, engineering, chemistry and other physical sciences.
A famous writer on the history of science, Gorge Serton, had this to say:
"The Muslims are the geniuses, of the east, in the Middle Ages. That they had the greatest influence on mankind, can be realized considering the fact that they undertook the writing of the most valuable works and studies surpassing all others in originality and depth. They wrote in their language, Arabic, which was without doubt, mankind's scientific language during the period from the middle of the eighth to the end of the eleventh century. The importance of Arabic in the sciences was such that any scholar who wanted to acquaint himself with the culture of his time and the most current issues in the sciences had to learn Arabic."
Knowledge, science and systematic methods of scientific research reached Europe through Muslims in Andalusia (Spain) and Sicily. These scientific foundations formed the basis of a modern scientific renaissance in Europe, at a time when the Muslims retrogressed after they stripped themselves of their Islamic values; differences and the struggle for power was rife. Their empire divided into small kingdoms and their rulers reveled in pleasures and worldly desires.
The result of these internal weaknesses was that the Muslim empire became politically torn apart. Their lofty position in science collapsed, and a very dreadful relapse occurred to the Muslim world with the loss of Andalusia and the continuity of the crusades. European advancement in science and knowledge started, while the crusades was busy destroying and occupying Islamic lands for two centuries.
This situation subjected the Muslims to the worst stages in history; relegating them to a life of darkness, backwardness and the abominable colonial oppression, especially after the Second World War. The Muslims, who had been liberators and conquerers now turned into a colonized people under the yoke of servitude to foreign powers, and from being exporters of thought, science and culture to receivers of the same.
The worst phenomenon witnessed by the declining Muslim position is the emergence of Zionism, Socialism and European Capitalist civilizations as allied powers working for the annihilation of Islam. The socialist camp, whose political and cultural existence was based on the Marxist theory, has imploded because of internal contradictions, leaving the arena open for the alliance of the Jews and the European Crusaders who are allied against Islamic existence.
In the closing decades of this century (20th century), the Islamic world has witnessed the herald of an ideological renaissance as a result of which Islamic awareness has increased, Islamic tendency has grown, in-roads have been made and widespread developments in the Islamic community have occurred. These positive changes, in the Islamic camp, are an indication of a return of Islam as a civilizational enterprise and a political existence, which would play its natural role in leading the world at a time when the Marxist civilization has collapsed and European civilization is passing through an ideological vacuum. The death knell of Judaism and Christianity has been sounded and today we witness the increase of propaganda and political, ideological and armed attacks on Islam and Islamic awareness.
The Holy Qur'an has prepared our minds with complete awareness of the present world events by furnishing us with its analysis of the existing contest between Islam and its opponents. In the light of Qur'anic language, it is a contest between Islam and a new form of Jahiliyya, the likes of which Islam has faced since its revelation to the Prophet of Mercy, Muhammad (s.a.w.), who identified the nature of Jahiliyya and its foundations.
The materialistic civilization, spearheaded by Europe and America in alliance with Zionism, is passing through economic and moral crises eating into its very fabric and leading it into an abyss. At this same time, the graph of the Islamic course is registering a notable rise exhibiting the signs of victory, by Allah's permission. Morad Forman, the German Ambassador to Morocco, had this to say: "The twenty-first century is that in which Islam shall spring forth in Europe."
This assertion confirms the statement of Bernard Shaw in which he predicted as follows: "I predict that in the future, Europeans will turn to the religion of Muhammad. It is already gaining acceptance in today's Europe".
The Holy Qur'an, in the course of its revelation to the Messenger of Allah, Muhammad (s.a.w.), has clearly identified the reality of Jahiliyya and what miseries and catastrophes it visited on mankind. In a number of Qur'anic declarations, the ideological, political, economical and behavioural foundations of the Jahiliyya system have been exposed. It is clearly pointed out that the basis of this system is disbelief in Allah, His Messenger and His Prophets; turning away from the divine legislation, shari'a and holding the call to guidance in contempt and attacking the principles of faith- exactly what modern Jahiliyya subscribes to.
Many verses of the Holy Qur'an deal with this topic, viz:
"And those who have no knowledge say: 'Why does not Allah speak to us or a sign come to us?' Even thus said those before them, the like of what they say. Their hearts are all alike. Indeed We have made the messages clear for a people who are sure." Holy Qur'an (Baqara 2: 118)
"Like those before you - they were stronger than you in power and had more wealth and children. So they enjoyed their portion; thus have you enjoyed your portion as those before you enjoyed their portion, and you induldge in idle talk as they did. These are they whose works are null in this world and the Hereafter, and these are they who are the losers." Holy Qur'an (Tawba 9: 69)
"Have they charged each other with this? Nay, they are an inordinate people." Holy Qur'an (Dariyat 51: 53)
An analysis of these verses will reveal what the Jahiliyya of different peoples and nations throughout history have in common in ideology and behaviour, their possessions and attainments in science and civilization not withstanding. In Qur'anic terminology, Jahiliyya does not only refer to an epoch passed in history, nor exclusively to the Arabs before the advent of Islam, as some people think. Rather Jahiliyya means the continuation of a system of thought and civilization founded on disbelief in Allah, His Messengers and His legislation. To depict this, Allah, the Most High said:
"Their hearts are all alike", "Have they charged each other with this?", "and you have induldged in idle talk as they did.", "Even thus said those before them."
This characteristic of the ideological and social milieu of Jahiliyya with its conceited mentally as a result of its science, knowledge, power and wealth, is further highlighted; Allah said:
"Do they not travel in the land and see what was the end of those before them? They were more numerous than these and greater in strength and in fortifications in the land, but what they earned availed them not. Then when their messengers came to them with clear arguments, they exulted in what they had with them of knowledge and that at which they used to mock befell them." Holy Qur'an ( Ghafir 40: 82-83)
Thus, Jahiliyya's thought, throughout the ages, has been arrogant duee to power, wealth and scientific attainments. At no stage in history is this conceit worse than it is in contemporary Jahiliyya thought - which considers these attainments as yardstick for judging Islam and attacking its eternal values. In this way, the propagators of this materialistic ideology try to convince others on the veracity of their thoughts and theories.
Contemporary materialistic ideology is founded on principles and philosophies propounded in order to serve as the basis of thought for building a civilization with its culture, law and order and modes of human behavior. This world view takes refuge in those philosophies in the war with the Islamic camp and its formation. The foundations of this Jahiliyya civilization can be summarized in the following principles:
1- The materialistic method believes only in sensory perception as a means of acquiring knowledge, science and extorting human intellect in discovering scientific facts.
2- In harmony with the materialistic method, science, knowledge, civilization and materialistic culture flourished in a manner unconnected with faith in Allah, His messages and Messengers. Therefore, the culture of this Jahiliyya rejected the existence of Allah and belied the unseen. Its thinkers and philosophers assumed this atheistic outlook in their methods and began attacking the divine method of thought by stripping it of all scientific features. They only acted in this way after establishing in their minds the firm belief that science and scientific thinking is peculiar to the materialistic method of investigation.
3- On those ideological premises, they founded the call to secularism which means divorcing religion from practical life and erecting it on the basis of what they discovered in knowledge and science, devoid of belief in Allah and ethical principles. This led mankind to nothing but misery and suffering. Secularism became a tool for enthroning tyrants and extending hegemony over the weak, a glaring fact in the contemporary political experiments where the dominating powers subject the weak to killings, massacres, starvation, torture and all out tyranny in all nooks and corners of the world.
4- Studies and investigations in psychology and behavioural sciences are, likewise, based on the foundations of materialistic thinking and methods of research. In this way, they ended up calling for licentiousness and complete freedom in behavioral thinking that belief in the values of permission, prohibition and ethics is a shackle preventing man from gratifying his inner tendencies and mental desires. And that Islamic laws and ethical values cause suppression of natural urges and self-deprivation resulting in mental stress and the killing of man's inclinations and internal desires.
We shall observe, by way of statistical data, how licentiousness and moral depravity was not only unable to deliver man from misery and mental torture, but, also caused multiple mental tribulations, thereby increasing the rate of crime, drug addiction, anxiety, homeless-ness, political scandals and economic crises. Perhaps what exposes the reality of secular, materialistic civilization or Jahiliyya, as the Qur'an calls it, is the statistics which portray the different sides of the individual, economic and political behavioural picture of life.
Based on three figures we can judge the claim of the secular, materialistic approach and the truth of how it regards Islamic thought as retrogressive, not on a par with the contemporary world and incapable of encompassing the scientific movement or the ever-progressing civilization.
Let us now consider the Qur'anic declaration and analyses on a Jahiliyya society, and the confirmation of this description, by reports and statistics that portray those deteriorating conditions.
Allah, the Most High said:
"But followed after them a succession who negl-ected prayers and they followed lust,…" Holy Qur'an (Maryam 19: 59)
"... and hinder (others) from the path of Allah and seek it to be crooked; these are in errors far away (from the right path)." Holy Qur'an (Ibrahim 14 : 3)
"And when it is said unto them, 'make you not mischief in the earth' say they, 'Verily we are only the well-doers.' Beware! Verily, they are the mischief-mongers but they perceive (it) not." Holy Qur'an (Baqara 2: 11)
"O you who believe! Respond you to Allah and to His Apostle (Muhammad) when He calls you to that which gives you life; …" Holy Qur'an (Anfal 8: 24)
"He it is Who sends down unto His Servants signs manifest, so that He may bring you out of the darkness (of infidelity) into the light (of faith):…" Holy Qur'an (Hdid 57: 9)
"... I desire naught but reform what I am able to (do)…" Holy Qur'an (Hud 11: 88)
In these verses, the Holy Qur'an discusses about man's ideological and mental frame under the Jahiliyya society, the society of materialistic civilization. The Qur'an warns him of falling into that abyss, exhorting:
... O mankind! Your rebellion is against your own selves…" Holy Qur'an (Yunus 10: 23)
The Qur'an warns man that he will definitely reap the fruits of his evil deeds and straying from the right path and sends a word of caution that man should not meakly obey his base desires nor deviate from the straight way, the way of divine guidance.
A number of passages reiterate this signal:
"who neglected prayers", "they followed lust", "and hinder (others) from the path of Allah", "and seek it to be crooked", "when it is said unto them, make you not mischief in the earth", "say they: 'Verily we are only the well-doers'", "Beware! Verily, they are the mischief-mongers", " but they perceive (it) not."
Studies and analysis on contemporary materialis-tic societies reveal those facts clearly, exposing this deep seated disease. This is a disease of base desires, deviation and abnormal behaviour whose manifesta-tions have appeared on the formation of modern materialistic civilization to an extent that serves as a warning of imminent collapse. The followers of the same sick civilization work day and night to sell it to the Islamic world as a substitute for the noble Islamic project.
To attain this sinister objective, they depend on informational misguidance and the backward condition suffered by the Muslims in economic, industrial and service sectors, the latter being a result of colonial hegemony over Muslim lands. The war of misinforma-tion is especially aimed at the Islamic enterprise whose purpose is to salvage mankind from all forms of misguidance and corruption both in the political and ethical fields.
The agents of Jahiliyya know full well that Islamic victory will thwart their selfish interests and oppressive domination over the Islamic world, and that the light of Islam will creep over the dark life in whose labyrinths they wallow. That is why they employ a great number of rulers, parties and information founda-tions that are subservient to their will, to conduct their plans in the war of civilizations. In some cases, they resort to force and military occupation when their interests dictate so.
The ideological and psychological war they launch on the Islamic project, and its true followers tries its very best to show Islam as a retrogressive system which hinders man's development and progress. They do this so as to impose on the Islamic principle the responsibility of the backward condition and suffering of the Muslims; a situation they, themselves, created.
The condition of emptiness and ruin embedded in the materialistic system and the educational and behavioural system, run by modern European civiliza-tions with roots in pagan Rome, will be unexpectedly swept away just as socialism amazingly fell, despite its possession of awesome stockpiles of arms, gigantic and sophisticated industrial capability and an ideological theory, the Marxist Socialist Theory. Their stubborn subservience to this artificial, antihuman doctrine resulted in rivers of blood and three generations being forced to endure suffering, bitterness and torture in the name of depending socialism and spreading its ideas. Thus, the world was divided into two opposing camps each threatening the other with destruction and complete annihilation.
The European civilization reigning in Europe, America, Japan and Russia, as a matter of primary concern, put forth exhaustive efforts in leading the world for the abdication of Islam, being its only ideological and political rival. However, the studies, statistics and analyses, conducted in this field, point to the opposite; the decline of this European culture and its imminent collapse, while Islam shows all the signs of victory, even thought, it might take a long time. This is the norm prescribed by Allah to which the Qur'an alludes when discussing the Jahiliyya civilization. The verses impart to us the lessons of the dynamics of history and civilizations. Allah declares:
"…but when came unto them a warner it increased not in them but their aversion. (In) priding in the earth, and planning evil; and the evil plans (of theirs) shall beset not but the devisers themselves; then wait they for aught save the course of the people gone before? For never shall you find any change in the course of Allah; and never shall you find in the course of Allah any alterna-tion.
Have they travelled not in the earth and seen was the end of those before them though they were stronger than them in strength? And Allah is not such to frustrate Him aught in the heavens or in the eath; Verily He is the All-Knowing, All-Powerful." Holy Qur'an (Fatir 35: 42-44)
"But when He deliveres them, behold! they rebel in the earth unjustly; O mankind! your rebellion is against your own selves, a provision for the life of (only) this world, then unto Us shall be your return, then will We inform you of what you were doing." Holy Qur'an (Yunus 10: 23)
If these Qur'anic statements, through scientific analysis on the causes of the fall of civilizations, prove that material power, in the form of armies, wealth, riches and industrialization, cannot prevent civiliza-tions, nations and societies following the evil path of oppression, injustice, deviation, arrogance and anomal-ous behaviour from falling, then we can conclude that the fundamental causes of the destruction are ideological and ethical in nature. The fact that the Qur'an explains these causes in its discussion on the histories and experiments of nations and that we are living witnesses, to the plunge of socialism, is enough to discern from the signs of ethical and behavioural breakdown a warning on the total collapse in spite of efforts for restoration and improvement.
Statistics released by special institutions and circles in Europe, America, Japan, China and other countries in the materialistic camp (modern Jahiliyya) express the presence of these signs. These figures prove that materialistic civilization is incapable of solving man's problems; it even multiplies them.
They also indicate that this ideology is the cause of the miseries and suffering in this life. Likewise, they are the cause of man's loss of the hereafter and the pleasure of Allah, the Glorious. These proofs show that man has no other refuge than to return to Islam and a life under the shade of the Qur'an.
"And We have revealed to you the Book with the truth, verifying that which is before it of the Book and a guardian over it, so judge between them by what Allah has revealed, and follow not their low desires (turning away) from the truth that has come to you. For every one of you We appointed a law and a way…" Holy Qur'an (Ma'ida (5: 48)
"Then We made you follow a course in the Affair, so follow it, and follow not the low desires of those who know not.." Holy Qur'an (Jathiyah 45: 18)
The Noble Qur'an and Pure Sunna (Prophetic tradition) have discussed about law and legislation (Shar''a and Tashri') and this terminology was used by the Qur'an in its technical sense. Before, this term was applied only to the literal meaning derived from the Arab's environment. Arabic lexicologists have defined this term as follows:
Ragib Isfahani said: "Shar'a means to take a wide road. It is said " I have made for him a path". Ashshar'u is a verbal noun, then it was taken to mean a path, a road. Shir'un, shar'un and shari'atun mean a way. These terms are used metaphorically to mean the divine path." Then he quoted the tafsir (Qur'anic exegesis) of Ibn Abbas saying: Ibn Abbas said: "Ash-shir'atu refers to what is brought by the Qur'an and al-Minhaj refers to what the sunna contains."
Thus the meaning of Shari'a, as it occurres in the Qur'an, is the divine path along which it is incumbent on mankind to walk in life. In other words, the term shari'a refers to the collection of laws and rules brought by the Qur'an and by the sunna. The Holy Qur'an has named the process of enacting Shari'a rules, by Allah the Most High, legislation 'shar'u' or 'assigning' (ja'al) as the scholars of Principles of Islamic Jurisprudence (Usul al-Fiqh) call it. This shari'a is enacted to reform mankind, rectify their behaviour and order their lives.
It is confirmed by the Qur'an that the power of legislation is Allah's while the role of the Messenger is to convey this legislation. Whatever legislative competency the Prophet (s.a.w.) enjoys revolves round the divine enactments and assessing human conditions: "… Say: I follow only that which is revealed to me from my Lord…." Holy Qur'an (A'raf 7: 203)
"... Say: It is not for me to change it of my own accord. I follow naught but what is revealed to me…" Holy Qur'an (Yunus 10: 15)
What issues from the sunna on the authority of the Prophet (s.a.w.) is nothing but elucidation and explanation of what is revealed to him. The Prophet (s.a.w.) neither errs nor does he commit mistakes in what emanates from him because of the knowledge, infallibility and divine guidance bestowed on him. More light has been shed on this fact by Imam Ja'far bin Muhammad al-Sadiq (a.s..) in what he was reported to have said:
"Surely the Messenger of Allah was guided and supported by the Holy Spirit. He neither slips nor errs pertaining to anything with which he governs the creation." The issue of 'assigning' (ja'al) and enacting rules or legislation has been investigated thoroughly by the Islamic jurists, just as Islamic theologians treated this topic by way of exegesis. The question at stake is this: Is Islamic legislation based on facts, interests and scientific assessment and calculations related to the very essence of the acts about which it legislates or is it just the Legislator's consideration (I'itibar) without regard to the those elements? This issue is treated under the name 'beauty' and abomination (al-Husun wal Qubh).
In accordance with the theological method and technicalities, the topic is worded in this way: Are 'beauty and abomination' comprehensible by way of the intellect or through legislative pronouncements? In other words, is 'beauty' or 'abomination' an essential quality of a given act or a subjective one regarded by the Legislator to be associated with the act.
Islamic theologians have two opinions concerning this issue. Scholars from the Ahl-ul-Bait school regard the natures of beauty and abomination as intellectually comprehensible, that is, they are never legislative. For example, the prohibition of alcoholic drinks and adultery is based on their essential ugliness, and it is not possible for the Legislator to consider this abomination as a beauty so that the act will accordingly become a good one. Scholars from the Ash'ari sect take the opposite view.
The jurists of prescribed law treated this topic under the title "Constitution of the Legal Principles". It is discussed, here, also considering the legal principle as a value-assigning principle. This means that it aims at ordering and reforming human behaviour and relationships.
The results of the studies undertaken by the jurist is that the legal principle consist of the following points:
1- Substance or Content: This is what the legal principle comprises. It is derived from different factors; economic, social and established scientific findings. However, positive law does not commit itself to the result of scientific investigations and practical experience. Science has confirmed that wine, adultery, sodomy and hoarding are harmful, but, objective laws still allow it and even regard these acts as part of individual rights and freedom. The term substance or content (al-Madda aw al-Madhmun) is known in Islamic jurisprudence as a basis or (mal?k). Jurists and experts in Islamic legislation regard mal?k as the essence and spirit of the substance of law.
2- Form or Formation: "What is meant by form is to define the substance or subject matter precisely, delimiting the content through technical formulation acceptable to the authority granting the legal principle to the force of law."
This element (form) is known in Islamic jurisprudence as I'itibar (consideration). I'itibar means "a verbal expression" with which the Legislator manifest His will which indicates the criterion (mil?k) of legislation.
Studies in positive jurisprudence divides the elements of content into two categories:
1- The element of reality derived from experience and witnessed in the community. Such elements include social, economic, political, ethical, religious and human nature.
2- The element of example that is regarded as a model for justice, the course of which it is incumbent to tread in all positive laws.
However, in reality, objective law is proved incapable of treading the path of justice with respect to the element of reality and that of example. Researches and studies in positive law are late in defining the fundamentals which constitute the legal principle, while Islamic legislation and shari'a rules have those facts as their essential constituents. Islamic legislation, by its very nature, is based on knowledge and justice, because it takes into consideration the psychological and social nature of man, his material needs and ethical values. These issues will be ellucidated in the subsequent topics.
Islamic legislation takes as its fundamental precepts around which the law revolves, the principles of truth, justice, and the doing of good. Both the law and society march toward these goals. Allah, the Most High said:
"Surely Allah enjoins justice and the doing good (to others) and the giving to the kindred, and He forbids indecency and evil and rebellion…" Holy Qur'an (Nahl 16: 90)
And He also said:
"And with truth have We revealed it, and with truth did it come…" Holy Qur'an (Isra' 17: 105)
In Islam, the legal principle or law (Hukm) derives its force from the fact that it is a Divine law, the commitment to which is obligatory as a duty to Allah, the Glorious. No authority or power has any hand in giving it the force of law. The exception is in what Islamic legislation bestows on the Islamic authority legislative competence in issuing some laws for the purpose of achieving the common interests, or stopping corruption. And they have the power to enact laws to enable the application of the Islamic laws, according to existing social conditions. These types of enactment derive their force of law from the enacting authorities.
And since these authorities derive their legislative competence from the Divine law, their role of granting legal force to these enactments is only a secondary one.
We now know that the rule or the legal principle is comprised of a subject matter and form, and we know the meanings of these terms. We also know that to legislate is to 'assign' (ja'al) or enact rules. The jurists define legislation as a declaration, by a specific authority, of legal principles, through the means of specific expressions.
It is also an established fact of Islamic ideology that legislation belongs exclusively to Allah, the Glorious. And to Him belong the creation, the command, the kingdom, power and authority.
We also understand that the government, in whose hands are the affairs of the community, Ummah, enjoys a degree of legislative competence derived from the divine law which takes knowledge, justice, the doing of good and wisdom as its fundamental principles. Indeed, the All-Knowing, All-Wise Legislat-or has taken into consideration the nature and conditions of mankind as regards to his creation, psychological, intellectual, material and social life in designing a code of living for him.
It is pertinent, here, to explain that the method of formulating the legislative content of rules and the Islamic legal principle has passed through two main stages. They are: The Qur'anic formulation, which the divine expression of rules via Qur'anic verses and the Prophetic formulation is encountered in the traditions (hadith) and sayings. The Imams of the Prophet's household followed the latter method in ellucidating the rules. The acts and confirmations (taqrir) of the Messenger (s.a.w.) and the Imams of the Prophet's household, just like their sayings, represent another way of expressing the rules and legal principles in Islam.
Thus, the early methods of expressing the Islamic rules and legal principles are as follows:
1- Verbal expression emanating from Allah, the Most High, or from the Messenger (s.a.w.) and the Imams (a.s.) via the two known methods of formulation used in the Qur'an and the pure Sunna (tradition of the Prophet or Imams).
2- Acts and confirmations by the Prophet (s.a.w.) and the Imams (a.s.).
Thereafter, studies on legislation evolved producing the science of jurisprudence and its technical terms, the result of which is the emergence of a new method of formulating Islamic laws and rules by Islamic jurists and theoreticians. This method of formulation is the one usually encountered in books of fiqh, and epistles of Islamic rules, written by the jurists. This method, because it carries jurisprudential jargon, differs from that used by the Qur'an and the sunna. It is beneficial to point out that the Islamic jurists have divided the shari'a rules, according to the language of fiqh, into four categories:
a- The rules of worship (ibadah): These are rules for acts that require the one who practices the acts of worship to have the intention of attaining nearness to Allah, the Most High. Such acts include prayer, fasting, pilgrimage, vows.
b- The laws of contracts: These are rules governing acts, the existence and validity of which depends on the consent of the two parties. Here, there is no need to intend attaining nearness to Allah. Such laws govern marriage, business transactions, companies, etc. However, concluding a contract for the sake of Allah is recommended.
c- The laws of Iqa'at (one party transactions): These are rules for acts requiring neither the intention to attain proximity to Allah nor a second party, for they can be discharged by a single party. Example of such acts include divorce (the husband can divorce his wife with or without her consent) and a testament containing a responsibility to be discharged by the survivors.
d- Rules: These laws are termed simply as rules without any qualification. They include the laws of inheritance, suckling, punishments, etc.
From the foregoing, it will be clear that the issue of categorzing fiqh and the formulation of rules is not a determined and finalized one. The fact is that the jurists were responsible for originating ways and methods for formulating arrangement and categorization, suitable for the needs and requirements of the various stages in the history of Islamic jurisprudence.
Studies in jurisprudence revolved around those four central points. From another angle, investigations and studies, from the point of view of the individual, had their stamp on the method, treatment, issues covered and categorization of fiqh, in spite of the fact, concerning government and power, there existed special jurisprudential studies; such as, books on the rules of government and guardianship and those partaining to collective activity.
This individualistic approach was subscribed to because the methodology of fiqh was not based on a societal view of Muslim life within an Islamic state with a government running an Islamic society, in which case, jurisprudential studies would have revolved around the individual, the society and the state. It could be said that the individualistic method was imposed by the realities of the Muslim's situation throughout history.
While the scholars of Islamic legislation divide its studies into four, the jurists of the conventional law studied law through its division into:
1- General Law
2- Individual Law.
The jurist define public law as "the law that regulates legal relationships in which the state, in its capacity as the sovereign, is a party." They define Individual law as: "The law that regulates relationships between individuals or between them and the state not in its capacity as the sovereign."
The factor responsible for the difference between these two legal precepts and these two categories of rules is for the state, in its capacity as the sovereign, to act as a party in a contract. However, in a case whereby the state, not in its state as the sovereign, enters into a contract, say, renting a house or the sale of an estate, it will act as an individual devoid of any prerogatives, as is the case of a company, society or party. Therefore, the individual law is the one to regulate such contracts between the two parties.
It is pertinent, at this junction, to suggest that Islamic jurisprudence stands in need of new studies and categorization in which the laws would be classif-ied into general and individual laws, even in cases related to worship, if they carry a legal colouring. The issue of zakat, for instance, is a financial legislation and the state receives zakat in its capacity as the sovereign. Islamic legislation makes it obligatory to submit zakat to the legal ruler (Hakim al-Shar'i) and anyone who fails to do so is considered a rebel and is compelled to submit it.
The present conditions as well as the nature of Islamic law, call for a review of the classification of laws. It should be noted that Islamic law is comprehensive and covers all issues big and small, individual and collective, which affect the individual, society or state. This need for a new study of Islamic jurisprudence, its classification and rearrangement, on the basis of categorizing laws as general and individual, is even rendered more urgent by the emergence of an Islamic state and the call for the Islamic enterprises as an alternative to the laws and systems of secularism; such as, capitalism and the likes of it. We are in a situation whereby the Islamists are requested to present the Islamic alternative as a project capable of theorizing and law making.
For the benefit of the reader, we will mention the division of general and individual laws, indicating whether the state, in the relations regulated by these legal sub-divisions, acts as a sovereign or not, while dealing with individuals and other states.
Division of General Law
General law can be divided into many sections, some of which are mentioned below:
1- International General Law: "is a set of legal principles governing the relationships between nations, both in the condition of peace and war."
2- Constitutional Law: "is a set of legal principles that govern the foundations of a nation and defines how it is constituted."
3- Administrative Law: "is the principles that governs the activities of the executive power and the method of discharging its administrative responsibilit-ies."
4- Fiscal Law: "Is the law that guides state finances, its income expenditure".
5- Criminal Law: "This law defines the different crimes and stipulates their punishments."
6- Criminal Procedures Law: "Is the law that regulates the procedures for investigating crimes and what might be required of detention, releasing or prosecuting a suspect. These laws determine the court of competent jurisdiction, explain prosecution proced-ures, how to deliver judgement, how to appeal against it and the execution of the judgement and how it is done."
Division of Individual Law:
From among the main divisions of individual law we will mention the following:
1- Civil Law: This law regulates matters pertaining to the family (personal status) such as marriage, divorce, inheritance and expenditure on the family. It also regulates a person's property rights, the way through which he acquires these rights, their terminations, etc.
2- Commercial Law: This is a set of principles governing commercial activities.
3- Maritime Law: This is a set of principles that regulate navigation. It deals with the purchase of ships, their hiring, insuring ship and cargo and maritime loans.
4- Aviation Law: This is a set of principles governing aviation activities. These consist of the ownership, type and registration of aircrafts and contracts on air transportation and responsibility, in case of any harm that might befall passengers or other persons on land.
5- Labour Law: This regulates the relationship between employers and employees.
6- Civil Procedures Law: This is a set of principles that govern the setting-up of courts and their jurisdiction, method of litigation, and giving evidence, delivering judgement and ways of appeal and imple-menting the judgement on the issue in contention, the properties of a debtor…etc.
7- Private International Law: This is a set of rules that chart out the mandatory solution in issues where conflicts between parties, each of which is affiliated to a different state, is subject to a given set of laws.
One of the important aspects of legislation, its formulation and contemporary categorization that pertains to regulating state and society, of which the Islamic Republic of Iran has applied and in fact which any Islamic state is in need of, is the legislative structure which should consist of the following three levels, viz: 1- Constitution: "This is the document that presents the system of government of a given state."
2- The Law: "It is a set of general principles for the regulation of individual behaviour in the society and whose respect is guaranteed by the government through the use of force, where necessary, by meting out punishment for disobedience."
3- Bills of Law: "These are rules enacted by the executive powers to enable the execution of normal laws or for regulating general good and organization or for the maintenance of security, health, managing affairs, etc."
As previously stated, the formulations of laws is a technical affair, flexible in nature; not in the garb of fixed terms. Let us look at the way Islamic jurisprudence acts to phrase the legislative constituent according to the above mentioned hierarchy.
We are going to give a brief account of how the Islamic constitution consists of two types of constit-uents:
1- Rules and legislations derived from shari'a rules that denote responsibility 'taklif' and those that affect conditions 'wad'i'. Such legislations include constitutional laws, like competence and attributes of the president, and relationships between the nation and the government; others are rules regulating individual economic, social and behavioural life…etc.
This part of the constitution can be divided into two groups, also:
a. A clear stipulation about which there is no room for the exercising of independent judgement (ijtihad). For example, acknowledging private ownership and considering justice as a condition for a competent judge, etc. These rules are fixed and not liable to change.
b. The second group is that of rules deduced by way of ijtihad practiced by the Islamic jurists, fuqaha. Such laws are liable to changes and other ijtihad enactments, that are more appropriate in regard to new conditions or occasioned by higher juristic competence, can replace the earlier rules.
2- Rules pertaining to the form and structural frame of the state involving organizational and technical matters. Such laws include legislations for electing the president or parliament or city councils. These laws can be changed and improved continuously as the situations change, with the condition that these sections of the constitution should never be inconsistent with the Islamic rules and values. It is worthwhile to note that those laws which are clear stipulations are binding on all sections of the society, because they represent unequivocal divine legislation. They carry this weight irrespective of whether they are codified within the constitution or not.
But as for the Ijtihad laws, such rules derive their legal force from the necessity of uniting the community in general matters by conforming to a uniting opinion capable of safeguarding the good of the community, warding off corruption and safeguarding general order. A second justification for furnishing such rules, with legal force, is the theory of permissibility of the division of imitation (taqlid). This view allows the Mukallaf (a person deemed by the Shari'a as responsible and answerable before the law) to imitate one mujtahid, in part, and another in other matters. Thirdly, such rules can obtain legal force by way of a supreme authority governing the ummah.
In the case of legal constituents regulating the organization and structure of the nation, legal force is derived from the necessity of safeguarding the common good and ensuring the best conditions for the community. It is also derived from the fact that the supreme authority, to which the citizens have invested with legitimacy, sanctions those legal constituents and makes them legally binding.
The rules of Islamic legislation at our disposal, as a result of the evolution in jurisprudence and ijtihad, can be classified into two:
1. Nass (Stipulation): This is a clear rule about which no ijtihad is exercised. For example, the obligation of prayers, fasting, zakat, catering for the wife, forbidding of alcoholic drinks, adultery and interest and permissibility of business transactions, marriage, acquiring property, partaking of the flesh of some livestocks…etc.
2. Ijtihad Rules: This class can be further divided into two sections:
a. Ijtihad rules deduced by the jurists, from the Qur'an and the pure sunna, because of the existence of proofs covering such rules in a general sense or proofs indicating such rules, directly, in a way that makes deduction possible while they are not direct stipula-tions.
b. Vacant zones or where the rules are allowed legislative competence: These are areas left for the rules to fill by specifying the appropriate rules in the light of the Book or the Pure Sunna. Some of these areas include disallowing the hoarding of goods, services and utilities about which neither a clear stipulation or a general rule is available. Others include the imposition of additional taxes for the purpose of redeeming bad economic situations of the Muslims and controlling the prices of goods, considered by the rules as experiencing imbalance, in which the consumer, seller or producer is cheated.
While discussing on fixed and changing aspects of Islamic rules it is desirable to differentiate between change in the understanding of the jurist deriving the rules i.e., the legal ruler (Hakim al-Shar'i), from whom the change in the rules emanates, on the one hand, and the conditions in which a clear stipulation (nass) or ijtihad ruling would accept change or remain constant, on the other.
Scope of the Fixed and the Variable Rules:
While treating the issue of fixed and changing rules, it is pertinent to define the elements of the Islamic message, susceptible to change, and those that do not admit any variation:
1- Belief: Precepts like the belief in Allah, the Glorious, and the belief in His Messengers. These fundamentals are immune to changes and abrogation throughout the period of divine messages, not only in the Islamic message. However, we can find differences among the Muslims as regards the details of ideological principles, like the issue of explaining the nature of man's actions and his relationship with His Lord, understanding of the attributes of Allah, etc. This difference in understanding does not mean that these ideological issues are variable, but it exposes the fact that there exists two conflicting opinions in understand-ing the precepts, or the obstinacy and overstepping the bounds by some groups who refuse to accept the fact.
2- Ethics: This is among the fixed fundamentals in Islam and all other divine legislations. Ethical issues include truthfulness, justice, mercy, etc. These principles are not liable to change or substitution, being of similar nature to the precepts of belief.
3- Declarations and expositions of many questions of thought, knowledge, life, et.c: A lot of statements, in the Holy Qur'an and sunna, discuss and explain the norms and laws governing history, society, bodily and spiritual nature of man, etc. These are but fixed scientific laws neither changing nor admitting substitutes, since they portray established facts that govern the formation of man and nature.
4. Legislation: This comprises of rules and laws enacted to regulate man's relationship with Allah, with himself and with others. The portion which guarantees the regulation of man's relationship with Allah, the Glorious, i.e., rules on worship, such as prayer, fasting and pilgrimage are fixed and do not accept any substitute. As for the section on social organization, it can be seen that it consists of two parts; one fixed and unchangeable while the other is variable. We shall take up each part and discuss it later.
It is unanimously accepted that the Holy Qur'an and the pure sunna are the sources of legislation and the custodians of Islamic thought and knowledge.
Imam Muhammad Baqir (a.s.), the master and authority of the jurists and one of the Imams of the Prophet's household from whom Allah removed all filth and purified with the utmost purification, summarized this belief in the following words:
"Surely Allah, Blessed and Exalted, is He Who did not leave out any matter of which the community stands in need, but He revealed it in His Book and explained it to His Apostle (s.a.w.). And He assigned a limit to everything and a proof indicating it. And He specified a punishment for whoever transgresses the limit."
The Imams of Ahl-lul-Bait (a.s.) have, indeed, enriched Islamic legislation with their expositions and elaborations of the Book and the Prophetic tradition. This exposition was a real continuation of Shari'a laws, so it is part of the sunna. The great jurist Shahid Sayyid Muhammad Baqir Sadr described this fact in these words: "Thus it becomes clear that changing the rules of the Shari'a, through abrogation, is also one of the factors that bring about conflict originating from this factor, and only affects the stipulation emanating from the Prophet (s.a.w.) not those from the Imams (a.s.).
This is so because the period of legislation ended with the close of the Prophetic era and the narrations that emanated from the Infallible Imams (a.s.) were only an elaboration on the Prophet's legislations."
Since the Book and the sunna together are the sources of Islamic legislation, the two other sources i.e., intellect and consensus (ijma') are secondary sources serving as ways to discover the legislation and not, themselves, legislators. The intellect, as a source of legislation, is defined as "an issue perceptible to the intellect while it is able to deduce a Shari'a rule from it. An example of these issues is the intellectual proposition that enjoining a thing entails enjoining its prerequisities (muqaddimat).
Consensus (ijma) has been defined by the Shi'a Imamiyya School as: "The consensus of scholars with legal opinions from among the preceding jurists of the period of occultation, on a certain ruling, while the verbal source specifying the ruling remains unknown. These jurists have met a situation that evokes a state of conviction and a settled belief which detects the existence of a legislative proof possessed by the jurists and those who preceded them."
In addition to these secondary sources mentioned above, some Islamic schools recognized sources, such as, analogy 'qiyas', discretion 'istihsan', public good 'masalih mursalah', teaching of the companions 'madhhab al-Sahbi'….etc. A lot of debate has taken place on the weight of evidence 'hujjiya' and the nature of these sources.
Both the Imamiyya school and the other Islamic schools, which subscribe to the idea that all forms of analogy are evidence, regarded the analogy in which the basis or cause 'illa' is expressed in the clear law 'Mansu al-Illa' and analogy in which the deduced law holds a prior position to that of the clear stipulation on which the analogy is based 'Qiyas al-Awlawiyya' as evidence. The only point of conflict between the two views is analogy of comparison 'qiyas al-Tamsili'; that is, to compare a part of a question to a part of another and the analogy in which the basis or cause is deduced rather than expressed in the clear stipulation.
The Holy Qur'an and the Pure Sunna contain rich and adequate legislative material. In the Qur'an alone there are hundreds of verses directly enacting laws and rules or conveying thoughts, and legislative concepts from which laws can be formulated. Thousands of Prophetic traditions serve as illucidation to those verses and legislative roles. Hundreds of these texts form the general legislative fundamentals that contribute in enriching legislation and expanding its horizons.
To illustrate, we shall review some of these verses, traditions and narrations to observe the special feature of the constituent of Islamic legislation. Allah, the Most High says:
"Surely Allah enjoins justice and the doing good (to others) and the giving to the kindred, and He forbids indecency and evil and rebellion…" Holy Qur'an (Nahl 16: 90)
"…and has not laid upon you any hardship in religion…" Holy Qur'an (Hajj (22: 788)
"…Allah desires ease for you, and He desires not hardship for you,…" Holy Qur'an (Baqara 2: 77)
"Take alms out of their property - you would clean them and purify them thereby…" Holy Qur'an (Tawba 9: 103)
"…(all) good things are made lawful for you…" Holy Qur'an (Ma'ida 5:5)
"Say: My Lord forbids only indecencies, such of them as are apparent and such as are concealed,…" Holy Qur'an (A'raf 7: 33)
"O David, surely We have made you a ruler in the land; so judge between men justly and follow not desire,…" Holy Qur'an (Sad 38: 26)
"O you who believe, fulful the obligations…" Holy Qur'an (Ma'ida 5: 1)
"...and Allah has allowed trading and forbidden usury…" Holy Qur'an (Baqara 2: 275)
"…and women have rights similar to those against them in a just manner,…" Holy Qur'an (Baqara 2: 228)
"And surely We have honoured the children of Adam, and We carry them in the land and the sea, and We provide them with good things, and We have made them to excel highly most of those whom We have created." Holy Qur'an (Isra' 17: 70)
These verses of the Qur'an carrying ample legislative principles have their counterparts in the pure sunna. A large number of legislative traditions present the bases for legislative principles from which many laws can be formulated. Other traditions and Prophetic statements provide us with legislations and rules that govern individual relations, situations and positions while carrying a general sense suitable for application in identical cases.
Here, we shall mention some traditions that take the form of legislative principles:
The Holy Prophet (s.a.w.) says:
"No one shall harm nor be harmed."
"Obligation has been suspended in my ummah in respect to nine cases:Mistake, forgetfulness, what they do under duress, what they do not know, what they cannot do, what they are forced to do by circumstances, envy, evil omen, and thought over a devilish insinuation concerning creation, as long as nothing isgiven as evidence." It has been reported from him (s.a.w.) that:
"A Muslim is a brother to a Muslim, he shall not cheat him nor act treacherously towards him nor backbite him. His blood is prohibited, so is his property except by his permission ..."
"In Islam, men are equal ..."
"Men from their origin in Adam are alike and equal."
"Men are equal like the teeth of a comb."
"Allah has enjoined on the rich (to spend) what will suffice the poor, so if the poor suffer starvation Allah reserves the right to hold the rich responsible…" "Every loan to which a profit accrues is interest (riba)."
"I was not sent to amass wealth, but to spend it."
"Believers shall conduct their affairs according to their terms."
"Everything is lawful to you until you know that it is unlawful."
"There is no obedience to a creature where disobedience to Allah is involved." "The ruler is a shepherd and he is responsible for his flock." "Religion is nothing but love."
"Desire for your brother what you desire for yourself. Dislike for him what you dislike for yourself."
"Surely, your body has a right over you."
Just as the Qur'an and the Prophet's sayings constitute a source for legislation and regulating social life, his confirmation of actions he regards to be in conformity with Qur'anic legislation and his practical life and behaviour provide a wide horizon for legislative material.
These sources deal with such matters as the fitness of the legal rules, his relationship with the governors, army commanders and the community at large, his legal responsibilities, etc. This field of legislation forms the constitutional subject matter in modern legal jargon.
The narrations reaching us from the Imams of the Prophet's household, like the Qur'an and the Prophet's sayings, present copious materials for legislation. These narrations elucidate and serve as a commentary on the Qur'an and Prophetic tradition, sunna. This source material serves as foundations for legislation, addressing social problems and regulating human life with its various spheres. Islamic jurists rely on these fundamentals to deduce rules for novel conditions.
A careful study of the samples of these verses and traditions that run into hundreds of ideological and legislative texts with a fundamental and general nature, not limited by time or space, will reveal the secret behind the eternal aspect of Islamic legislation, its universality and ability to cover social evolution and development and play a leadership role in overall human existence. The law in its capacity as the source of order in human life contributes immensely in man's progress or backwardness according to the nature of the law and its world view.
Among the most widespread terms in human existence is "The Law". All people understand the meaning of law and perceive its impact in daily life as a result of their encounter with the laws governing relationships and functions of human activity. The machinery of government and its various activities, the market, societies, parties, trade unions, courts of law, commerce, banks and financial institutions, companies, land tenure, traffic regulations in the cities, etc.; all of these issues are subject to the law which regulates them.
Thus, the law is defined as: "A set of rules which regulates individual behaviour in the society and the respect of which is guaranteed by the supreme authority even by force where necessary. This is the general meaning of the word law."
According to some scholars, the word Qanun (law) is an arabicized word borrowed from Latin. The use of the word spread in Arabic language and Islamic culture after the period of translation, when many works were translated into Arabic from Latin, Greek
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