Fixed and Variable Aspects of Islamic Legislation

Legislation Between Subjective and Objective

The issue of law is of fundamental importance in human existence. A few questions arise in this regard. Who is entitled to enact and enforce this law and mete out punishment for its violation? What is the basis on which legislation is founded?

To answer these questions, let us have a look at the Islamic method of legislation. A perusal of this system, and of legislative thought, will establish the fact that Islam holds the view that the process of legislation should be based on scientific objectivity in specifying the issues involved in this process. Thus, the prohibition of alcohol, adultery or hoarding, the imposition of duty, keeping promises, abiding by terms of contracts and declaring, as invalid, contracts concluded under duress, the obligation to respect the human personality and to preserve the family, are all issues that must be scientifically and conscientiously defined, just the way questions in physics and medicine are defined.

In addition to this scientific identification, the process of legislation requires absolute justice and that the legislator be elevated above personal urges in their entirety, for they invariably render man unable to comply with scientific findings. This weakness and the interference of sick, spiritual conditions, natural urges, selfish desires and interests have a serious influence on the human lawmaker. As a result of this complex situation, the law takes the form of an expression of the legislator's will and a portrait of his personality. Instead of having scientific objectivity as its foundation, the law becomes a reflection of the whims, caprices and selfish interests of the lawmaker.

In this regard, Allah, the Glorious, addresses His Beloved Prophet, Muhammad (s.a.w.) saying:

"Then have We set you (O Our Apostle Muham-mad!) on a (definite) course of Law, so follow it, and follow not the vain desires of those who know not." Holy Qur'an (Jathiyah 45: 18)

A true knowledge of the issues pertaining to human behaviour, his economic, social, political, spiritual, health and other conditions, can only be attained after a complete grasp of all branches of knowledge and science; be they social, natural or biological, through experimentation, discovery and a careful study of all the relevant issues. This will enable man to appreciate the harmony and relationship that exists between all the aspects of his life, apart from grasping them individually.

To elucidate on this point, we shall give an example. Islam is law encourages that the child be shown love and compassion and given the chance to play during the period of childhood. The Shari`a frowns on ill treating or hurting the child, because that All-Knowing Legislator is conversant with his nature and with how our treatment of the child affects his behaviour later in life. Studies in criminal psychology reveal that lack of love and compassion and ill treatment during childhood is among the most important factors responsible for ggressive and rebellious tendencies, crime and maltreating others.

In the same vein, child psychology confirms that play and freedom during the childhood years contributes in freeing one from anxiety and fear, which are among the conditions endangering a complex personality that invariably turns into a threat to society. It has also been established that licentiousness, hoarding, alcoholism and drug abuse are among the most dangerous anti-social behaviours that throw materialistic man into related diseases, crime and economic woes.

A perusal of the above mentioned statistics, pertaining to sex related diseases, crime, economic problems and psychological illness, confirms that the ignorance of the law-makers is the paramount reason for the condition that man is suffering from. It is also patent enough that man's knowledge of the harm or usefulness of his various actions does not result in enacting laws accordingly. What bars him from acting upon this knowledge and certainty is the influence of his personality, the result of which is legislation based on ignorance, selfishness, personal inclinations and corrupt desires.

Thus, positive law is far from being objective for it is no more than an enunciation of what the person of the human legislator, who is subject to influences of ignorance, selfishness and psychological conditions, harbours. It is true that sometimes the legislator achieves the desired goal in objectivity in certain enactments, but, respecting them definitely requires that the enforcer act out of an inner urge to the same effect. Such pure motives cannot be found except where true belief in Allah, the Glorious, the next world and its recompense exists.

From the foregoing, it is quite obvious that man stands in need of those indispensable qualities in order to attain a blissful life through scientific legislation, absolute justice and successful execution of the law. No doubt, this cannot be achieved except through the Islamic alternative alone, since the Law-giver, in this case, is free from ignorance, injustice and personal urges.

The Interplay of System, Law and the Conditions in Which it is Applied Among the questions studied, in the relationship between time, space and the setting to which the law and system applies, is the question of the comprehensiveness of Islam, the way it covers all problems and situations and its ability to present multiple solutions to a single problem. This is seen in many areas in such a way that these multiple solutions allow for a choice from among various Islamic alternatives.

The social setting under which we live has a direct bearing on how we specify the law relevant to our situation instead of an alternative one. For instance, Islam permits both private collective ownership, promotes cooperatives, accepts economic freedom and allows the freedom of market forces and mechanism. The state is given the right of interfering in the economy and directing it, while the responsibilities of the individual and the community are defined, in such a way, that they become self-reliant,

and the state is not over-burdened with problems within the capacity of the individual or group. At the same time we encounter other legislations and concepts charging the state with responsibility toward the individual and the community, bestowing on it a big role and making it a great obligation on the state to cater to the individual and group.

As we study this phenomenon in Islamic legislation, we shall realize that there is neither contradiction nor conflict, rather, it represents comprehensiveness and prudence on the part of the law. The wide range of Islamic law allows the community to conduct its affairs according to its settings. The situation at hand, the nature of the present need and the interests of the community, together, are the factors that help in selecting the type of law to be applied.

The burden is better useed of specifying which law governs on the community through its scholars, thinkers and political movements, and the state, because of its scholarly ability and competence in specifying legislative choices, and the right to act on anyone of them among the legal alternatives is procured by the custodian of the Islamic legislation and system.

For example, the individual and the market are allowed to direct economic activities where the state, through the studies conducted by its economic commission, scientifically confirms that market economy is in the interest of the community. On the other hand, the state interferes in the economy by directing its activities where economic interest of the community entails the adoption of a centralized economy. Thus, various choices are open to the Islamic state.

Islam and New Developments

In order to elucidate on the timelessness of Islamic legislation and thought, its relevance to every time and place and the fact that it covers new developments, it is necessary to define the following terms:

1- Appurtenance of the Legislation:

Each law undertakes the regulation of a given field, such as thought, security, economy, politics, social issues, etc., which the scholars of Islamic jurisprudence call law appurtenance `muta'alliqat' of the rule. Thus, laws usually regulate various human activities, needs, relationships and positions. By subjecting man's activities, and his needs, toward scientific study based on psychology, medicine and sociology, we can classify them all into four fundamental divisions:

a- Moral Needs, Psychological Feelings and Activities: Such as, security, love, stability, beauty, anxiety, fear, grudge, aggression, anger, ugliness,… etc.

b- Mental Activities and Needs: These include unveiling the unknown, acquiring knowledge and sciences, understanding the universe and life and what relates to the last two such as knowing the Creator and His worship,…etc.

c- Material Needs and Activities: Such as, food, the need for a spouse, shelter, clothing, treatment,..etc.

d- Social and Political Needs…etc.

Therefore, a scientific and objective system and legislation is that which satisfies, regulates and reforms these natural needs of man. This is so because they are needs attached to his very existence irrespective of time or space. To be in conformity with them and satiate them is to act according to truth and justice. The twin values of truth and justice are, themselves, constant and never change or vary. What changes is the desired type and amount of human needs to be fulfilled before truth and justice can be said to be achieved.

When human activities and needs are subjected to study and analysis in the light of modern sciences, it will be realized that man remains the same in his fundamental needs and urges for food, shelter, spouse, medicine, security and psychological conditions; such as, love and hatred, stability, fear, aggression, thinking, …etc. No change, whatsoever, has taken place in him, from his creation to the end of his life on this earth. What is subject to change is rather the ways and methods of satisfying those personal urges, whether they are beneficial or harmful.

This analysis shows us that the needs of man are not, in themselves, susceptible to variation but the methods and ways by which he lives his life are subject to change and substitution. For instance, at the beginning of his existence on the earth, man was feeding on leaves, fruits and animals which he gathered or hunted from the natural and unadulterated world. He made his clothes from animal skin and some leaves, while his feet were the means of transport. Then, the means of procuring food, manufacturing clothes and transportation evolved, reaching its advance stage in our present time, and it will continue developing and becoming more sophisticated.

Then, what shall remain constant is the obligation of satisfying the bodily needs of man which shall be taken care of by the law and system in conformity with the permanent principles of truth and justice.

The religion of Islam sheds more light on the principle for answering those needs. Allah, the Most high declares:

"For you it is ordained that you shall not be hungry in it, nor (shall you be) naked, and that you shall not be thirsty in it, nor shall you feel the heat of the sun." Holy Qur'an (Taha 20: 118-119)

This is an established right of man, not withstand-ing the fact that the verses were addressed to a particular person and on a particular occasion. All laws, enactments and systems revolve around this point. Therefore, the legitimate powers can issue the necessary laws, instructions and procedures, apart from the laws and concepts existing in Islamic legislation, to protect these human rights at all times and places. The natural needs of man; such as, security, stability and protection from all forms of fear, are unalterable material and psychological wants.

The Holy Qur'an explains the permanent principle concerning security and tranquility regarding life, property and honour in the form of a question asked by the angels. They were surprised that a creature who would spill blood and corrupt the earth would be sent as a vicegerent on it. This is recorded by His saying, exalted is His name:

"(Recollect O Our Apostle Muhammad) When said your Lord unto the angels: `Verily I (intend to) appoint a vicegerent in the earth' they said, `Will You (O Our Lord) appoint therein one who will cause mischief and shed blood, while we celebrate by Your praise and hallow You alone?'" Holy Qur'an (Baqara 2:30)

And the Almighty added:

"That he who slays any one (man), without (that being for) murder, or for mischief in the land, (it shall be) as though he has slain mankind as a whole." Holy Qur'an (Ma'ida 5: 32)

And He said:

"So let them worship the Lord of this House, (He) Who fed them against hunger, and secured them against fear." Holy Qur'an (Quraish 106: 4)

And He said "And indeed We have honoured the children of Adam, and We carry them in the land and on the sea and We provided them with sustenance of good things, and We have exalted them over most of those whom We have created, by (high) decree of exaltations." Holy Qur'an: (Bani Israel 17: 70)

And the Holy Prophet (s.a.w.) also said: "The blood, property and honour of every Muslim is prohibited to any other Muslim". He also said: "It is not permissible to take someone's property except with his consent". These declarations establish the legislative foundations for the necessity to ensure the security of man's life, property and honour (reputation and personal integrity).

These principles represent the constant aspect which never changes while the means and methods of ensuring security are never evolving. In the present age, the issue of security is a complex question, the study of which is taken up by scholars, agencies and institutions. Because of the complexity of this issue, strong measures are taken, employing available technology to ensure the existence of peace and tranquility.

Therefore, Islam, in its legislative capacity, considers it part of establishing truth and justice to ensure that man enjoys security; being a permanent value. The ways and methods of ensuring security are the aspects susceptible to variation, and it is not the duty of legislation to specify them, rather human intellect is responsible for choosing the appropriate means. In this regard, the shari'a urges the intellect to think, investigate and develop the means of livelihood. It also bestowed the legitimate ruling power, in all ages, the competence necessary for issuing instructions and procedures to preserve security, with the condition that such instructions and enactments do not contradict the timeless values of truth and justice.

So, this is how the Constant and the Changeable (part of the shari'a) deals with the whole human activities.

2- Legislation and Islamic Concepts:

Under this topic, it will be noticed that Islamic legislation and concepts serve two fundamental purposes in the life of man, they are:

a- Conforming, at times, with and regulating the existing needs and activities. b- At other times, opening up new horizons and topics, thereby promoting the evolution of human activities.

From what we grasp about the permanent and absolute standard, Islamic legislation and concepts, in their various areas, are based on the twin standards of truth and justice, which, as explained above, are constant and never changing. For this reason, the Holy Qur'an has defined man's fundamental needs from the legislative point of view, basing its reasoning on these two standards. It considers the fulfillment of these needs a right necessitated by justice, for his life and the nature of his existence are closely associated with them.

This is elucidated by the Holy Qur'anic verse relating the divine address directed to Adam (a.s.) which represents a charter of livelihood rights acknowledged for the human species by divine justice. Allah, the Glorious, declares:

"For you it is ordained that you shall not be hungry in it, nor (shall you be) naked, and that you shall not be thirsty in it, nor shall you feel the heat of the sun." Holy Qur'an (Taha 20: 118-119)

And the Qur'an proclaims that Islamic law is based on truth and justice:

"And with truth have We sent it down and with truth it has come down; and We sent not you (O Our Apostle Muhammad!) but as a Giver of glad tidings and as a Warner." Holy Qur'an (Isra' 17: 105)

"And We created not the heavens and the earth and what is between them two but with truth." Holy Qur'an (Hijr 15: 85)

"Verily, Allah enjoined justice and benevolence (to others)." Holy Qur'an (Nahil 16: 90)

It is very clear that truth and justice are permanent values on which all systems and human behaviour and transactions are based. Thus, it is man's right to have his material needs fulfilled. To give this right is justice, while depriving it is a form of injustice. It is also among his rights to live in peace, security, stability and honour, and to secure these is justice, while failing to fulfill these needs is obvious injustice. We also read in Islamic law that establishing equality between possessors of rights when giving them their rights, is also part of justice that must be executed in its capacity as a permanent principle.

Thus it becomes manifest that change only affects subjects such as means and methods like means of medical treatment, transportation, education, security, production, …etc. All of these subjects are not a product of any social school or lawful legislation, but they are the result of man's scientific endeavour, his desire to refine his living conditions and ensure comfort, irrespective of the type of thought and the kind and level of social system involved.

The role of law and, the sociological school concentrates on encouraging the exercise of thought, and regulates and supports its realization. Similarly, Islam attaches great importance to answering the needs of man and working toward their fulfillment and regulation. Islam urges man to seek knowledge, to work for the betterment of life and illuminate his thoughts with knowledge and science. It also opens a section of its sacred legislation, which is the free legislative zone, flexible laws, etc.,

about which we shall throw more light on subsequent chapters, Allah willing . All these provisions open up the horizons of Islam for the acceptance of new developments, changes and various human innovations capable of serving humanity and securing its interests. It is, therefore, a thought and legislation which caters to the permanent requirements pertaining to human existence, psychologically, mentally and physically, in accordance with the level of means and methods at his disposal for all times and places.

An Analytical Study of Religious Law and its Criterion

Before starting a study and analysis of religious law it is necessary to present its scientific definition, so that our study and analysis can take a complete form. Definition of Rule: The great jurist, Sayyid Shahid Muhammad Baqir Sadr defined rule as: "A legislation emanating from Allah, the Most High, for the purpose of regulating and directing human life."

Allamah Sayyid Muhammad Taqi al-Hakim, transmitted another definition of rule, which is: "A legal considering pertaining to the deeds of the bondsmen (of Allah) either directly of indirectly."

Scholars of Islamic jurisprudence have studied the religious law and resolved the principles, constituting it, into three elements. These are:

1. Criterion `milak', (the benefit of harm, calling for the enactment of the law).
2. Will (the will of the law maker which appertains the criterion).
3. Consideration (a verbal formulation of the will of the law maker which signifies the criterion.

Now, let us look into the criterion of the law, for its relation with the Constant and Changeable part of the Islamic law. 1-The Criterion (milak) of the Law:

Literal Meaning: It is recorded in Mu'ujam-ul-Wasit that: The milak of an issue is its constituents and epitome or its essential elements. It is said that 'the heart is the milak of the body'.

Technical Meaning: Scholars of Islamic jurisprud-ence have studied the issue of milak or criterion, defined it and founded legislative concepts on this definition. From the literal meaning they extracted the technical one. Therefore, the milak of religious law is its constituent and spirit. We can analyze the course of decreeing of rules and their enactment by the Legislator - i.e., explaining the legal philosophy of legislation - as follows:

Islamic legislation is founded on a scientific principle denoting that in every act, intention, word or issue there is essential benefit or harm. This is the principle of essential beauty and ugliness. Thus, drinking alcohol, adultery, injustice, gambling, abnormal sexual relations, stealing, usurpation, chaos, lying, fraud, hoarding, interest, rancor, etc., are in, themselves, harmful practices, i.e., there is essential harm in them. On the other hand, justice, truthfulness, trustworthiness, prayer, love and respecting others, order, security, marriage, commerce, agriculture, seeking knowledge, medical treatment, etc., are deeds that ensure benefit and public interest, i.e., they are, in themselves beautiful.

This benefit or harm is what is known in Islamic jurisprudence as criteria of rules `Milakat al-Hukm'. 2- Will:

The Exalted Lawmaker considers the different issues, questions and practices with complete knowledge, wisdom and justice. If He finds some benefit in a particular thing, He wills it and decrees a rule proportionate to the amount of such benefit in order to ensure it. This rule may take the form of obligation or permissibleness or desirableness. If He finds that a particular practice, issue or question is harmful He abhors it and enacts a law prohibiting man from performing it, in proportion to the degree of its harmfulness. This law may be one of forbidding `tahrim' or undesirableness `karahah'.

In this way, legislation always depends on the criteria and the will of the Lawmaker, which He reveals through legislative discourses (verbal expression), and takes the same direction as the criteria. Example: The saying of Allah, the Most High: "Forbidden unto you is the Dead (that which dies of itself) and blood, and flesh of swine."Holy Qur'an (Ma'ida 5: 3), and His saying:

"lawful have been made for you the good things." Holy Qur'an (Ma'ida 5: 4), and His saying "Verily, Allah enjoined justice and benevolence (to others)." Holy Qur'an (Nahil 16: 90), and like His saying: "and for the women shall be similar rights (over men) in fairness." Holy Qur'an (Baqara 2: 228), and like the saying of the Holy Prophet (s.a.w.): "The ruler is a shepherd and (he) "Verily, Allah enjoined justice and benevolence (to others)."is responsible (for the affairs) of his flock".

So the will of the Lawmaker is founded on the following fundamentals:

a- A complete knowledge of the issues He is enacting for, being conversant with their beneficial or harmful aspects. b- Wisdom: It means to assign a thing to its rightful place. It implies that the knowledgeable one acts upon his knowledge without vanity. c - Justice: The third element the will of the Law maker has to depend on, so that the enactment will ensure the benefits and ward off harm, is justice. Knowledge alone will not suffice for a legislator to be desirous of establishing goodness and benefit so long as he is not a just one who does not act on injustice and tyranny in the course of legislation.

3 - Consideration (I'itibar):

This denotes a formulation in the form of a decree by which the Lawmaker reveals his will. By this formulation, the will of the legislator, which alludes to the criterion of legislation, is known. Such formulation includes prohibition, obligation and permissibility.

Shahid Sadr has undertaken the analysis of the rule denoting responsibility `hukm al-Taklif' and threw more light on the position of the criterion vis-à-vis the rule. He said: "When we analyze the process of the rule denoting a responsibility such as obligation - just as any master obliges in the customary way - we will find that the rule passes through two stages. The first one is the stage of 'firmness' `thubut' and the second is that of confirming `ithbat' and manifesting. In the first stage the master specifies what the deed possesses of benefit - and this is what is known as milak - till he percieves that this benefit reaches such a level as to create a ' will' concerning that deed, proportionate to the degree of the perceived benefit.

Thereafter, the master articulates his will through a decree in the form of a consideration. Then, the deed is regarded as a responsibility on the obligatee `mukallaf'. Therefore, in the stage of affirmation (thubut), there is criterion `milak', will `iradah' and consideration `I'itibar'. `I'itibar' is not a necessary element of the stage of affirmation, rather it is normally used as an act of formulation customary to legislators and men of intellect, and legislators follows their course in this matter".

This explains the principles of the rule and that the criteria of laws are the reason behind enacting them. And these criteria decide the permanent and the variable among the laws.

As it is quite evident, the criterion or benefit is the backbone of law which the will of the legislator aims at. This will is formulated into a legislative articulation addressing the obligatee. At the stage of receiving the laws by the obligatee, the role in comprehending the "consideration' in preparation for executing the law is manifested. We shall study this issue later - Insha Allah - to remove the vagueness, as regards to what is human and what is divine, in Islamic legislation.