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Jurisprudence

Fixed and Variable Aspects Of Islamic Legislation - A Glance at Islamic Legislation

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"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.