Re: Islamic Law

 

Question:-

I understand that Islam has its own Law called the Shariah. What, briefly, would you say are its main features, and difference and resemblance between Western Law and Islamic Law.

Answer:-

Firstly, it has to be pointed out that the Law is not a single entity. There are different sets of Laws in different Western countries. There are also different versions of the Shariah.

The main difference between these two sets of Laws is as follows:- Western Laws are made by people who acquire political power. They are man made. Though they depend on circumstances, it is people who make them based on their whims, personal interests, cultural values that happen to be current, expediency or the outcome of political struggles. These Laws are made mainly to create social order but sometimes also to deliver some perceived benefits. The Law is secular in that it deals only with economic, social and political matters. It often encourages evil, depravity and immorality because of its rigid formalism and adherence to the letter of the Law, absence of suitable laws, protection of secrecy and the rights of culprits, low moral sense and need for votes by politicians, desire to cater for the interests of the powerful and wealthy or fear of public opinion. For instance, the Law by providing out of general taxation for the maintenance of the unmarried mothers and their children encourages fornication and adultery and therefore, the breakdown of families and social disintegration.

Islamic Law is based on the interpretation and systematisation by scholars of the teachings and instructions contained in the Quran (which is a revelation from God the creator of the Universe) and the Sunna (the sayings and doings) of the Prophet. It is, therefore, objective in the sense that it is not based on human whims, though the interpretation is certainly human. But this interpretation is done through research by experts and not by elected or self-appointed politicians. The purpose of the Law is to promote spiritual development. The Law is religious and deals with all aspects of life, spiritual, social and environmental. The scholars arrived at their ideas according to their capacity for insight and the circumstances, knowledge and culture of their time. There is, however, no reason why new interpretations according to present circumstances, knowledge and education should not take place. On the contrary it is essential that the Law keep up with the times else it becomes obsolete or an obstruction.

I will not, therefore, present these past ideas but why my own studies of the Quran and Sunna reveal. Others can modify or add to these.

(1) Islamic Law recognises Allah, the creator of the Universe as Supreme. As such it is objective and Natural such that there ought to be (a) no outer contradictions or conflicts between man and his environment, the real world or (b) inner contradictions or conflicts within man or (c) contradictions and conflicts with the community.

(2) It is, therefore, based on the principles of Truth, Compassion and Justice, which are regarded as the attributes of Allah.

(3) The Islamic Law is one of the three interdependent and mutually supporting aspects of Islam, the other two being faith and righteousness (conduct arising from a transformation of being).

(4) It is not based on expediencies or on existing transient realities, but on the more permanent universals and moral principles, on ideals towards which the Universe and human beings are developing.

(5) The purpose of the Law is to educate and create a framework of support to prevent slipping and degeneration, and to encourage human beings to behave in a manner that they would behave if they had reached a higher stage of development.

(6) There are, therefore, three levels to the Law:- (a) Education in the widest sense of the word which involves the whole culture. (b) Organisation, which channels effort and energy making some things possible or easier and others impossible or difficult. (c) A system of deterrents and incentives, rewards and punishments.

(7) It recognises the autonomy of the person and the right to self-determination as a vicegerent of Allah. Respect for the person's individuality and needs are to be protected. There is to be no compulsion or conditioning. But persuasion and education may be used. In the case of those who have some disability they should be suitably helped to acquire or restore ability.

(8) Coercion, oppression and tyranny flout these principles and are punishable.

(9) Men and women are equal but not similar. Each has the right to mutual respect and self-fulfilment. This is obtained to a large extent from the fulfilment of their respective function with respect to each other and the welfare of the community. Justice demands that all should be treated proportionately to their differences and similarities. Marriages are contracts in which duties are agreed on.

(10) It is permitted to make laws as circumstances require, but there are restrictions:- (a) No Laws can be made that flout the basic principles. (b) The number of Laws, regulations, and rules must be kept to the minimum, as they constitute restrictions on the freedom, autonomy and God-given powers of the individual. (c) The laws can only be proposed by those who have acquired knowledge, wisdom and virtue through study, research and self-discipline. (d) These proposals should be widely explained and accepted by the community.

(11) The Law recognises the following categories of actions:- The Virtues (Marufat) are classified as :- (i) Mandatory (Fardh and Wajib) (ii) Recommendatory (Matlub) The Neutral (iii) Permissible (Mubah). The Vices (Mankurat) are classified as:- (iv) Makruh (disapproved) (v) Haram (forbidden). However, it is possible to distinguish 7 categories if we divide the Mandatory ones into those that are always required, and those that are conditional, and if we divide the forbidden ones similarly. Theft, for instance is forbidden but someone in dire need may be forgiven for it. Killing is forbidden, but extreme provocation or self-defence may excuse it.

(12) Each individual is held responsible for his own actions. There can be no plea that a person was ordered to do something by someone else. He who orders a crime is responsible for his act and he who carries it out is responsible for his. The Law does not recognise corporate responsibility. That is, it is not companies or firms that can be held responsible for any good or evil that arises from its activities. It is always some individual or a group of people that will be held responsible.

(13) People have rights as well as obligations with respect to others and the community and the environment. They have an obligation (a) to respect, support and defend the same rights of all within his sphere of influence, (b) to oppose any evil or harmful tendencies to anything within his sphere of influence, (c) to acquire the knowledge of what is beneficial. (d) to acquire the means, the knowledge and skills to do carry out the above duties.

(14) Extenuating circumstances are taken into account e.g. a person might be compelled by hunger, dire needs, fear, torture, illness, physical or mental debilities, unavoidable ignorance.

(15) The Law is comprehensive in that it applies to all aspects of a person's life, whether it be personal, private, social or public. An action can have direct affects, it can set an example to others, it can influence others by inducing reactions and it can set in motion a chain of events that affect people remotely and the society as a whole. Even when a person by his secret actions seems to directly affect no one but himself, he does modify himself and this affects his other actions that do affect others and the common environment.

(16) A person is not only obliged to do actions that are good and beneficial to himself, others, the community and the environment, but also to prevent bad and harmful actions. If a person is unable to prevent an evil by action, he should oppose it by speech. If unable to do this then he should do it in thought.

(17) No one is above the Law. It applies to all. It applies to individuals, groups and corporate, national and international affairs.

(18) It is not necessary that there should be specific laws covering every case of misdemeanour or evil. It is only necessary to show that harm was done by an intentional act.

(19) It is required that reward and punishment should be proportional to the action.

(20) The Law allows retaliation against the source of the wrong done to a person. The criminal is required to compensate the victim for the loss and suffering he causes the latter.

(21) Everything is allowed that is not expressly forbidden.

(22) People are regarded as innocent until proved guilty by evidence, though not necessarily in a court of Law.

(23) False accusers are punished. This prevents unfounded accusations.

(24) All agreements and contracts should be witnessed and written down.

(25) The Law does not allow a person to take advantage of his position, circumstances or abilities over others to do injustice to others. That is, no agreements or contracts can be made or are valid that are unjust.

(26) All crimes and misdemeanours must be publicly tried in courts before impartial judges who have appropriate training, self-discipline and knowledge and are known as such in the community. The judges have their own recognised organisation and train their members. The decisions of any particular judge may have to be reviewed and confirmed or modified by the organisation. All measures are to be taken to ensure the basic principles. No formalism, rigid rules of procedures etc. can be allowed to flout these.

(27) The purpose of punishment is to reduce evil and crime, directly or indirectly. The Law is, therefore, concerned with the reduction of victims as well as upholding justice for culprits. Victims can forgive certain crimes against them to various degrees - i.e. punishment can be reduced. Some crimes are regarded too socially important to be forgiven because this would lead to the multiplication of the crime, thereby negating the compassion that forgave the crime. Some Islamic laws are harsh and appear cruel in order to act as effective deterrents. When they fulfil this function then they reduce the crime and the resulting suffering. This proves to be in accord with compassion and the punishment abolishes itself.

(28) All activities that obstruct the free interaction, exchange, relationships between man and his environment and circulation of resources are forbidden. This includes withdrawal and hoarding of resources, money, effort and talents. Usury, the charging of interest on money lent is forbidden. Money is a means of exchange not a commodity. However investment and partnerships where someone provides the money or the resources and the other provides the work are permitted.

(29) Property is a trust, not an absolute right. It is an obligation to use resources in the most useful and economical manner. Activities that waste resources, create pollution or damage or disrupt the environment are not permitted. Property can be legally transferred from persons who misuse it to others who will use it better, though compensation may be appropriate.

(30) The Islamic Law does not recognise the unlimited right to earn a living by any means or consequences. It is not permitted to profit from things that cause harm to persons, the community or the environment.

(31) If in the course of manufacture, trade or business any damage or harm occurs, either by deliberate action or by accident and neglect, directly or indirectly, then it is responsibility of all those involved to put things right. That is, it is their responsibility to ensure safety.

(32) Honesty in claims, information, description and weighing is required. This means that no false or biased advertisement in the Western sense can be allowed, nor swindling by tradesmen and bogus companies. Steps should be taken to prevent such things as unnecessary car repairs or medical operations. This could be achieved by a policy of separating consultants who assess what is required from those who carry out the work.

(33) The Privacy of the individual is protected. No prying is allowed unless something of public importance is suspected. Unjustifiable suspicion, spying and intrusion are regarded as immoral and culpable offences. So is gossip, scandal mongering, back-biting and defamation of character. These can be damaging and are prosecutable.

(34) Secrecy in all matters that concern the community are criminal offences. This applies to political as well as commercial and legal matters. All companies, businesses and industries that deal with the public cannot be regarded as private concerns and must be open to public inspection. Every citizen has the right to information about matters that concerns him. Concealing evidence when required or distorting and manipulating it are punishable offences. Though the right to privacy and self-determination is recognised, Doctors, Lawyers and others in authority that conceal information about spouses from each other or about children from parents or about criminals from victims or of matters that concern employees, purchasers, contractors, partners etc. from those concerned are prosecutable.

(35) It is duty of all information providers and opinion makers such as the news media and journalists to ensure truth, accuracy and as much completeness as possible, as well as virtue and usefulness, without bias, one sided reporting or attempts at emotional appeal, trivialisation, sensationalism, hysterics and rabble rousing. To do this it is also their duty to ensure that they have sufficient knowledge and expertise, freedom from external pressures and prejudices obtained from appropriate training.

(36) Whereas there is no censorship, owing to the recognition of personal responsibility, each provider of culture such as artists, novelists and so on will be held responsible for what he does and can be prosecuted for flouting or causing the flouting of the principles of morality namely of Truth, Compassion (or Benevolence), and Justice.

(37) All adult members of the community have the right to freely form assemblies to discuss matters of common interest and to make allowed equitable agreements, policies, partnerships and contracts and form organisation to implement these, but not to control, coerce, or enslave others physically, mentally or any other manner.

(38) These free Assemblies have the right to choose officers according to agreed criteria to carry out any specified tasks agreed upon. These officers are to be given the appropriate authority, responsibilities, resources and remuneration.

(39) The Community has responsibility for the welfare of its members. This means it has to ensure a certain minimum standard of life - resources, security, health and education. For this purpose a tax, Zakat, is established which requires the payment of a certain percentage of the surplus earnings. The surplus is calculated as the anything above that which is required to establish the minimum standard of life.

(40) The Zakat is used to enable rather than disable or demoralise people who have fallen below the minimum standard, rather than as charity wherever possible. That is, it could be used to set up training schemes, businesses and public works.

(41) The able bodied members of the community have a duty to defend the community. This means that they all have to undertake military training. A percentage of the community in rotation will have to give a portion of their time to the Military. But there are no separate professional armies that can be used by unscrupulous people against sections of the community or foreign nations.

(42) The defence of the community also means the defence of its moral standards and values. This requires a Police force that can be organised in the same manner as the Military. That is, there is no permanent separate professional police force that can be used by anyone having power against sections of the community.

It will be recognised that if Islamic Law is properly understood and carried out then it would be superior to any other kind of Law, and these others would be regarded as inadequate and transitional ones.

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