Fixed and Variable Aspects of Islamic Legislation

Legislation and Legal Formulation

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.

Legislative Heirarchy:

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 Fixed and the Variable

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.