3. LAW

We observe in nature, in human societies as well as within ourselves, objects and events, but also laws, a term used for regularities which lie beyond change or interactions, but control them. Without such regularities nothing can be distinguished, predicted or controlled. It is neither matter nor energy. The word ‘Law’ is used in three senses:-

1. It may refer to some regularity in nature, to a fact of nature.

2. It may refer to psychological processes, some way of seeing or thinking about things, some rule by which we interpret experiences, give it meaning or react to it.

3. It may refer to a system of organising our affairs based on our values. The society or nation is then run in the same way as if these Laws were natural ones.

Thinking can only be objective, that is conform to reality, if the rules of thinking conform to reality and particularly to our inherent nature which has arisen by the forces of nature and evolved in contact and adjustment to it. The system of social laws can also be said to be objective if they conform to these natural modes of thinking and, therefore, conform to our nature. If they are not objective then a conflict will occur between them and our nature and existence, and this will result in suffering and destruction of the social system and man himself because objective reality is prior to and much more powerful than man. The social Laws must conform to the Laws of our nature and these must conform to the laws of existence. Objective Laws are, therefore, said to be made by Allah. In contrast, subjective laws, those arising from human fantasies, speculations, the narrow interpretation of self-interest, are man-made laws.

Islam does not make an absolute distinction between these forms of Law. A Law merely states that certain consequences will follow under certain conditions and actions. This applies equally to natural, psychological and social laws. The Social laws may also be thought to have arisen quite naturally from the way human beings, because of their nature, relate to themselves, to each other and to the environment.

A natural Law is concerned with the maintenance and evolution of the Universe. It cannot be flouted. However, as illustrated in the case of flying birds, some laws can overcome others, the laws which allow flying overcome those of gravity. It is, therefore, perfectly possible to appear to go against a Law or set of Laws. But there is a payment involved. The bird has to eat to obtain the energy with which to fly and this depends on still other laws. It obtains its food by virtue of its ability to fly. Cause and purpose both arise from the same situation. There are causes for its hunger and the purpose of its activity is to obtain food which is depleted in the flying activity and causes hunger. The maintenance of a state always depends on a circle like this. If the Universe is in a state of balance then any change in it will require an opposite process which restores the balance. And this process, and all things which arise because of it, have a purpose. The thing which arises can be said to have a Cosmic Purposes. It may have parts which arise in the same way so that the cosmic purpose of each is a part of the Cosmic purpose of the whole. But that which enables that thing to exist and maintain itself has an Individual Purpose. Connected with purpose is good and evil. That which enables the bird to fulfil its purpose is good and that which obstructs or negates it is evil. However, it has both a cosmic and an Individual purpose and these may not be identical. Man, moreover, also has a third, Personal Purpose in so far as he can gather and manipulate information. And this may differ from both the Cosmic and the Individual purpose. To this we must add the Collective Purpose which develops when many things, organisms or human beings, interact and organise.

There is, however a distinction between the laws themselves, their interpretation in words and their application. It is not necessarily the case, for instance, that the Laws as understood and defined by Newton are an exact representation of the Law in nature. Nor is human technology based on the application of the laws like the products of nature. If it is not, then rather than harmonise, it will disrupt the order in nature. The same applies to psychological and social laws.

Law differs from morality in the following way:- Morality, as we have seen, is concerned with human evolution such that good and evil are defined according to the benefits or harm done to man. It is based on Psychological laws. But human beings are capable of acting in a manner which does not accord with their nature and in their own best interest owing to ignorance, distorted motives or lack of ability. Since human beings interact and affect each other as well as the common environment on which all depend, then it is necessary to create rules and enforce these. This is done for three purposes:- (a) to provide rewards and punishments which simulate real good and evil, (b) to act as checks against evil while encouraging good, (c) to educate them through experience of pain and pleasure, example and the instructions contained in the formulation of the law. Law is concerned with social order. But this social order cannot be arbitrary. It must be the kind which provides the conditions in which development can continue.

The Law exists to protect people. It does so by punishing those who flout the Law. To punish an offender, however, is to do him harm, and, therefore, to do exactly what the Law forbids. How can this be justified? The Western argument is something as follows:-

Human beings live in communities on which they are dependant. Since the community consists of all the individuals in it, then the Community is more important than any individual. Therefore, the community, or those who represent it, has the right as well as the power to act as an arbiter, a third factor, in the relationship between any two individuals. It must intervene between the two persons who are in disagreement, dispute or conflict. Methods, therefore, have to be adopted by which the community (a) creates laws (b) administers the Law and (c) carries out the punishment. The individual who carries out the punishment need not feel guilty, should not obtain the satisfaction of revenge, or gain any personal advantage from doing the harm. He is merely carrying out the will of the community.

But this view cannot be correct. The whole community is part of a greater reality and dependant on it. It is perfectly possible for the whole community to be guilty because of the kind of laws they have passed, the way it is administered and the harm they do to the individuals unjustly punished. They pay for this guilt by the actual social harm that is done. There is here no mention of justice, compassion or truth. No distinction is here made between the real and the apparent. The society is being defined in a formal and superficial way, not according to biological, social and psychological facts, but in a political manner, in terms of opinions and desires. The Islamic view is that man does not only interact with other human beings, but also with the rest of the world and with himself, and in each case the real nature of things and the real effects on them must be considered. If this is not done then the real consequences are outside human control. The law must, therefore, be objective. It is defined in terms of Allah, not in political terms.

It has been pointed out that the whole of human experience can be divided into three inter-dependant categories, namely the psychological, the social and the physical - the relationship of a person with himself, with other people and with the environment. Three major Principles apply to these areas, namely Objectivity, Democracy and Beneficence. However, these should be regarded as the parts of an over all unified, comprehensive system, attitude or World View to which we apply the word ‘Religion’, in a general not a sectarian sense. Without this there can be no coordination.

Objectivity refers to the ability of correct thinking, motivation and action. Democracy refers to the recognition and treatment of other people as oneself. Beneficence refers to the recognition and pursuit of real benefits rather than illusory ones since these merely waste resources and produce malfunctions without creating any satisfaction.

The Law should be beneficial to man and to the environment on which he depends. This requires that the Law should be objective and that it should be just in applying to all equally. This means that:-

1. It must be based on objective truths. This requires research. It requires:-

(a) Knowledge about the nature of existence, the universe, the environment, its basic laws and processes.

(b) Knowledge about human nature, their needs and strivings and abilities.

(c) Knowledge about the social conditions. These change with circumstances. There must be a method of obtaining information about the state of the community, its problems, opinions, strivings and capabilities at any given time.

2. The purpose must be objective. That is, they must facilitate human welfare and development. They cannot refer to the advantages of a particular group in a particular place and time. They must produce increased consciousness, conscience and will (knowledge, values and skills), greater inner integration, social integration and adjustment to reality. It must create (a) justice (b) compassion (c) capability.

3. The methods employed must be objective. That is, they must be effective in attaining the goals.

(a) There must be methods of discovering what is going on regarding the needs and conditions, the crimes and malpractices.

(b) correct and efficient techniques for dealing with the situation.

(c) Efficient ways of applying the techniques.

In Western systems social objectivity is obtained as follows:- (a) There are free and general discussions both privately and publicly through the media, Newspapers, radio , television etc. (b) The people, from time to time, elect representatives who make their opinions and policies known. (c) These representatives confer together in Councils or Parliaments and make the Laws. (d) These laws are carried out by Judges, police etc.

There are, however, limitations, psychological, social and physical. People are not, in fact, capable of thinking correctly. Prejudices, fantasies, rationalisations, impulsiveness, habits, selective information, sentimentality, hysteria and emotionalism affect judgement. Research and knowledge are rarely applied. The media and the politicians cultivate and take advantage of these. Those who have the most power, resources or circumstantial advantages are able to use the system to their own advantage. People are disabled by economic circumstances and the nature of the organisation. The purpose of the law is to control and create social order not justice or beneficence or human development. In effect it is the State or government which makes the Law and owns it - all citizens, except those empowered by the State, are forbidden to take the law in their own hands either in passing judgement or in carrying it out. The Laws are formal, rigid, interpreted literally and this leads to many injustices. It may, however, be argued that if this is the condition of the people then the laws so created must be an objective reflection of their state. But this can also be said about a tyranny.

It is evident, therefore, that the Law can only be objective if (a) the educational level of the people is raised (b) that there is equality of social status and free exchange of information (c) that the purpose of the law is general benefit. In other words the three Principles mentioned above are applied.

Islamic Law is regarded as being made by God, beneficial to man, to be understood and carried out by human beings - all are equally responsible for this. It is not formal - the spirit of the law rather than its letter applies and it need not, therefore, be strictly defined. It is not rigid but flexible enough to cater for all situations because it is based on morality.

Islamic Law should have the following features:-

1. It is considered to be, and ought to be, objective from ten points of view:-

(a) The Law is made by Allah, the creator of all things. Though the Islamic Law was brought by the Prophet Muhammad he did not invent it, but received it by revelation, He is regarded to have been in an objective state where personal prejudices, rationalisation and interests did not interfere with his perception. The foundations of this law is built into the structure of the Universe.

Three levels should, however be recognised.

(i) At the first level, the foundations of the Law come from Allah. This is eternal and unchanging.

(ii) At the second level, Muhammad has adapted them for the particular circumstances of his time.

(iii) At the third level, the law consists of methods to achieve the moral result. It is a means to end, not itself the end. These methods can change. These are not sacred or immutable. The Islamic law has been further elaborated and systematised by the learned followers of Muhammad. This is done through study and research in the same way as a science. The right to do this is inherent in man’s Vicegerency.

Research should be done in three directions:- (i) Into Nature to which the Quran is constantly pointing, (ii) into the Scriptures. That is, into past Wisdom. This is equivalent to the study of Text Books. (iii) into human nature and their social conditions to which the Quran also points. For some reason two of these have been neglected though all are creations of Allah.

(b) The fundamental principles are not made by the community or any member of it. It is, therefore, impartial. Western Laws on the other hand are created by the needs of expediency and the results of the power struggle, and the prejudices and self-interest of persons, groups or parties.

(c) The Islamic Law is based on human nature and the nature of the world in which he lives.

(d) It is spiritual in nature and, therefore, takes into account universal principles. It is not based on opinion, cultural conditioning, acquired habits or speculation. Certain values are universally recognised and accepted.

(e) The Islamic Law fits consistently into a complete world view. There is no contradiction between the Doctrine, the Law regulating human behaviour and the rest of life. There is an obvious contradiction in the West between the scientific view of the world and morality which is not based on it. Islam does not recognise such dichotomies.

The Law does not separate psychological, social and economic considerations, since all are inter-dependant aspects of life. People often pursue desires which are misinterpretation of real needs or strivings. They do not produce satisfaction and are often obtained at the expense of some real need. The frustration so caused only leads them to pursue these desires with even greater urgency with the same results. Vast amounts of resources, energy and time is wasted in creating that which produces no benefit whatsoever, but deprives others of what they need, and disrupts the entire economy.

The Law does not separate law, morality, etiquette, crime, civil offences and so on. The distinguishing feature of the Islamic Shariat is that it covers all aspects of life from birth to death, including character, morals, habits, family relationships, social, economic and political relationships, rights and duties, customs, manners and criminal, civil and cultural matters. Though it is possible to divide the Law into many classes, they are all inter-related rather than distinct from each other. It creates a consistent whole just as man should be. Since the purpose of the Law is the channelling of human energy in developmental directions, this cannot be done if it leaks out in uncontrolled directions. This would be like trying to direct water through a pipe full of holes.

(f) The purpose of the Islamic Law is ultimately to fulfil the purposes of Allah. Human welfare and development is part of this, and particularly psychological integration. The aim is not primarily social order, or some other purpose such as commercial or political stability, progress or the maintenance and exercise of power and control.

(g) The Law is administered on behalf of Allah. It does not, therefore, distinguish between race, colour, nationality, status, rank, family, religion, ideology, prestige, power, wealth.

(h) The Law is based on Justice, Justice being an attribute of Allah. (2:19,178, 4:93,58, 65, 105, 135, 5:8, 7:29, 11:85, 16:90, 57:25). Justice should be done even if it is against a person’s own interest.

(i) The Law is Democratic in that any one having the qualifications can interpret it, that all have the right to acquire such qualifications, and that apart from the foundations laid down all other laws depend on the condition and needs of the people, the times and circumstances of the place. Therefore, consultation with and the consent of the people is required. The responsibility of administering Justice is vested in the Community (Umma) collectively. This follows from the respect for person as a Vicegerent, who cannot be treated as a means but only as an end in himself.

(j) It is sober in that it does not depend on debate and haggling and power struggles, but requires research, meditation, study and discussion between the learned experts on the Law, not politicians, pressure groups, power seekers, or self-assertive arrogant loud mouths.

This, because the source is not human, it has been argued, makes Islamic Law very oppressive. But this can be easily refuted. The laws made by States are not laws made by the people either, but those who have the power. Some people agree with them and others do not. Laws made on objective grounds are likely to be more beneficial to them. What people get used to they soon cease to notice. If human beings do not behave in one way, then they will behave in another way. It is no more oppressive to learn to behave in one style than in the other. There is, however, a great advantage in learning to live according to a style which is comprehensive, self-consistent, natural and contains no contradictions. A legal system which covers only certain part of human behaviour cannot hope to reach the goals it is aiming for. This is because other aspects of life will interfere and negate them. For instance, in the absence of an appropriate educational and social system crime in the West is continually rising. The Islamic Law is more objective from this point of view.

There is no contradiction between law and morality in Islam. That which is morally good is legal and that which is morally bad is illegal. It is not a sufficient argument, as in the West, that something is forbidden and should not be done because it is illegal and carries a penalty. There must be a moral reason for it. And it is this reason alone which should determine behaviour. However, ultimately, all reasons reduce to this : It is good or evil because Allah has allowed or forbidden it - the structure of the world is such that some things will be harmful or beneficial. Since Allah has also forbidden that which will cause social disruption, unless it serves a higher evolutionary or cosmic purpose, then obedience to man-made laws is not excluded.

2. It has often been observed that there are many different systems of Law in Islam. It is flexible and non-dogmatic. This is because of the following:-

(a) The Quran is constantly pointing to variety in nature as well as in human beings.

“And if thy Lord had willed, He verily would have made mankind one nation, yet they cease not differing, save him on whom thy Lord has mercy; and for that He did create them..” 11:118-119

“And if thy Lord willed, all who are in the earth would have believed together. Wouldst thou compel men until they are believers? It is not for any soul to believe save by permission of Allah.” 10:100-101

In these and numerous other verses diversity is recognised. If dissimilar people are treated similarly, then this involves injustice. Diversity should not lead to conflicts, but tolerance. It is this tolerance which also allowed people of other religions to live in peace within an Islamic State. These people could settle their own affairs through their own laws as long as it did not interfere with those applicable to Muslims. We must, however, add that in so far as a Muslim consents to enter and live in a foreign community he is obliged to live by its rules. This, too, is part of conscience. He is obliged, if he can, to migrate to a community where the moral law is respected.

(b) Islam has no organised church and priesthood which could impose its interpretations on the rest of the community. Everyone has the right and duty to study his religion. Thus the systems constructed by those who had the greatest ability and scholarship was accepted.

(c) Islam does not allow disputes to be based on opinion because these are not likely to be objective or sufficiently comprehensive. Thus though different systems of Law (Fiqh) exist, the founders did not dispute among themselves and were quite willing to concede to superior knowledge or reasoning.

(d) Though the Law is based on the Quran, the verses of the Quran have multiple meanings and allow a host of different interpretations. The reason for this is that the Quran though it was revealed in small parts in accordance with the needs of the circumstances, it was meant to deal with the whole of life in a comprehensive manner. The particular circumstances , therefore, illustrate types of events. Circumstances change in different times, places and communities. It is not possible to apply exactly the same law to altered circumstances. The Quran is a Guidance.

A distinction, however, has to be made in the teachings of the Quran between:-

(i) The primary or basic principles, the foundations of ethics. e.g. the meaning of Surrender, Vicegerency, the nature of man and his responsibilities, the nature of good and evil. These have been dealt with in the previous chapter.

(ii) The secondary principles, the means used to establish the primary values, the rights and duties.

(iii) The tertiary principles, which are methods ensuring the operation of the secondary values. This refers to the way things are organised.

(iv) The specific laws which prescribe punishment and reward for specific actions or inaction.

The right to possess and use something for ones benefit, for instance, is good. Theft, which negates this, is bad. The prevention of theft is good, and constitutes a tertiary or derived value. The methods used to prevent theft, the specific laws, become good to the extent that they are effective, but they may have other consequences which may be bad. It should be pointed out that though the Quran sometimes prescribes very severe punishments, it also recommends mercy and forgiveness, though it warns that this may lead to propagating more evil. In that case forgiveness cannot be a good thing. The point, however, is that the Islamic Law at the tertiary and specific levels is not immutable in its application.

The primary principles are established by religion and ignored in secular systems. Differences of opinion seldom concern the secondary values. Everyone knows, for instance, that murder, injury and theft are wrong. Differences usually concern the tertiary and even more the specific ones. It is only at the tertiary level that discussion, consensus and agreement is required.

Unfortunately, in creating and applying Laws, past Islamic jurists have concentrated their attention only on the two lower categories. This, despite variety, has made each system rather narrow and rigid. However, this was necessary in less organised and educated times. It is also necessary at the beginning of a movement to stick rigidly to rules in order to prevent too much divergence especially when the underlying principles have not had time to establish themselves in the consciousness of people. In future it should be possible to argue a case at any of these levels.

(e) The Quran was interpreted by the Prophet Muhammad in the light of the circumstances existing in his time. The manner in which this was done should have been a lesson, but Muslim Jurists placed their attention on his specific actions, saying and decisions. These are recorded in the Hadith. The flexibility of the Islamic Law then depended on two facts:- (i) That only some the traditions of the Prophet were known to some people while others were known to others. This is no longer an excuse. (ii) That there appeared to be contradictions between different traditions. But this may well be due to the fact that each applied to different people and in different circumstances. It is perfectly possible to tell one person one thing and another the exact opposite if one knows that the effects will be the same. When someone is too tense we may advise him to relax, but if he is too relaxed we may advise him to pull himself together and concentrate attention. It is necessary to take the whole context into consideration. A reading of the Hadith shows that the Prophet was much more flexible than the laws based on his sayings and actions would suggest.

Islamic Law can accommodate other Laws. People and Communities do differ. To treat all similarly would constitute an injustice. It is, therefore, possible, in Islam to create a multi-cultural society without either the oppression and stagnation caused by uniformity, or creating separate nations between whom conflicts becomes inevitable. These two factors, uniformity and nationalism are probably the greatest causes of suffering through the world. In the modern world both need to be urgently removed, but the removal of one leads to the establishment of the other. The Islamic system could work as follows:-

(i) Some Laws which affect the nation as a whole must be held in common by agreement with all parties.

(ii) Different communities have different sets of declared laws by which they are required to abide.

(iii) Every person must declare the particular community he belongs to. It will be possible to change allegiance.

(iv) Any offence committed by one person against someone belonging to another community will be judged by the laws of the community to which the victim belongs.

3. The Shariah constructs life on the basis of three categories:-

The Virtues (Marufat) are classified as:-

1, Mandatory (Fardh and Wajib)

2, Recommendatory (Matlub)

The Neutral

3, Permissible (Mubah). Everything not expressly forbidden or disapproved of is permissible.

The Vices (Mankurat) are classified as:-

4, Makruh (disapproved)

5, Haram (forbidden)

However, it is possible to distinguish 7 categories if we divide the Mandatory ones into those which are always required and those which 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.

4. Aql, intelligence, the capacity for experience, reasoning and inspiration have also been built into man by Allah. These can also be used in the construction of laws. But this must be done within the guidelines laid down in the Quran and Hadith because these human capacities are limited and liable to error and abuse. In the West this is done through a Constitution which, however is also a human construction though loosely based on religious teachings. For Islam, the Quran provides the Constitution. There are five principles which guide the construction and administration of the Law:-

(i) Qias - This refers to analogical reasoning. It requires (a) that the Jurists be well versed in the Quran and Hadith, (b) that they have wide experience both in the life of the community and in the administration of law, and (c) that they practice their religion so that their sense of justice, objectivity, impartiality, responsibility are developed and their capacity for receiving appropriate intuition, insight and inspiration is enhanced.

(ii) Ijma - That there is mutual consultation and a consensus of opinion. There should be a consensus of opinion between all the jurists, and there should be a consensus in the whole community to live by those laws. It is not, in general, possible to apply many different systems of law to the same community as this means that everyone will use only those in each system which are advantageous to himself. However, this may not be a bad thing. The Jurist should know all the different systems. In fact, it may be argued that there are no systems, but only differences in specific cases. It is perfectly possible, therefore, for a Judge to select any of these as appropriate.

(iii) Istihsan and Istislaah - Judgements as what is more suitable, relevant or conducive to the public interest.

(iv) Observation.

(v) Questioning. It should be possible to question any law or decision. All have a right to do so. This means (a) that the case can go to higher authorities, (b) that trials are done in public where they can be scrutinised and discussed, and (c) that the judges have the duty to explain their decisions.

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NOTES

Morality, in Islam, consists of duties towards Allah. These can be divided into three classes:-

1. Environmental Ethics. As a Vicegerent man has duties towards the earth, its minerals, plants and animals; everything that comes within our sphere of influence, directly or indirectly. Ownership, property, in Islam bestows special responsibilities.

2. Social Ethics. This concerns his relationships with other people. It can be further subdivided into relationships with members of the same family, the same sex, the opposite sex, relationships between parents and children, between relatives, friends, acquaintances, strangers and persons of other nationalities, races and faiths, humanity as a whole and other life forms. Again, there are different spheres of influence and different degrees of responsibility. The nation is not regarded as having territorial boundaries. Patriotism is not a virtue. In fact it is often an excuse for criminal behaviour. In its name people are willing to do to people of other nationalities that for which they would be condemned and prosecuted had they done it to people of their own nation. Whereas cooperation as well as rivalry and competition may lead to excellence in some cases, it also leads to its opposite. It is possible to be better than someone else not only by striving to do better, but also by hindering, persecuting and obstructing others. In any case, if there is to be competition it can be between persons regardless of nationality. Loyalty should be exclusively to Allah.

Cooperation and competition, like freedom, are not, themselves, virtues. They are good when they lead to good and evil when they lead to evil. People should not compare themselves with others. They might compare themselves with the worst to show how good they are. Or they may compare themselves with the best and fall into despair, excusing themselves from all further effort. They should, instead, have an Ideal towards which they strive. It is not reaching the Ideal which is important but the striving, the moving towards it. As they move towards it, the Ideals also tend to move further away, because they can see further. But duties to ones fellow human beings has nothing to do with competition, as competition is self-assertion. It has to do with helping others to achieve their potentialities and benefits.

Social Ethics could be divided into:-

(a) The Criminal Law (b) The Civil Law (c) The Social Law. (d) The Law relating to animals.

The criminal law relates to major misdemeanors such as those of murder, injury, theft, swindling which affect not merely the injured but the whole society. Civil Law refers to affairs and transactions such as economic, political and cultural ones. The Social Law includes things such as etiquette, manners, customs, conventions and sexual relationships. Animals are considered to be beings like man, though of a lower degree, having their own functions and potentialities for development. Thus the same obligation for respect and kindness as that which applies towards human beings also applies towards animals. Animals, however, may be used for human purposes, for food and work.

The importance of treating animals well is indicated by the Prophet when he said that a certain woman entered paradise only because of her kindness to a dog. Animals should not, therefore, be treated with cruelty. Cruelty includes keeping animals as pets where they are kept in artificial conditions, pampered, over-fed with little exercise, restricting them in cages and zoos, factory or battery farming, over working them while neglecting their welfare, hunting for pleasure rather than food, violating their dignity in circuses for human amusement, and slaughtering them in the presence of other animals. Factory farming and the slaughter of animals in slaughter houses in a conveyor belt system seem to be particularly pernicious practices. Animals are treated as meat-producing machines without reverence or consideration. They are artificially inseminated and fed and injected with hormones. to increase yields and profits. They cannot enjoy their lives and many never see the day light. They are then herded into the slaughter houses where the smell of the carnage terrifies them. This, no doubt, causes them to manufacture chemicals which are later consumed by human beings. The result of all these practices is the arising of many diseases and malfunctions and the nutritional quality and taste of the meat declines. The psychological effects must be to devalue life in general. Thus, the efficiency of the method turns out to be an illusion.

3. Personal Ethics. This includes duties to all aspects of himself, physical, mental and spiritual. It includes the duty to maintain health and efficiency, to counteract diseases and to observe, ponder over, examine and criticize oneself, to develop, grow and evolve, to reach perfection. Psychological development does not merely benefit the individual himself but also the rest of the society because of the influences which the person sheds around him directly or indirectly. Morality, from this point of views may be referred to as physical, mental and spiritual hygiene.

There is an ethics of action which refers to the way things are done, i.e. with gentleness, elegance and efficiency, without unnecessary tension and with economy of effort. The ethics of emotions refers to control of anger, fear, despair and excitement, forgiveness, friendliness, optimism and so on. There is also what we may call an Ethics of Thought. From the Islamic point of view, unlike Western Science, the Universe has a moral structure. There are certain ways of looking at reality which are conducive to human development and objective truth. Science itself, for instance, is based on the Principle of Objectivity. Objectivity is not a fact, but a value. If you look at the universe as being a dead machine then you will miss those features which do not fit into this category. If you cut the frog into pieces you will not see its overall pattern or behaviour. The scientific way of thinking does nothing to improve human nature. This is not to say that it is not useful for other purposes. The Universe contains a great number of different phenomena, including consciousness, and the Attributes of Allah describe its various qualities.

Some of these ideas are:-

Allah - The ultimate reality, the source of all objective values and purposes. The concept does not only refer to a fact or something underlying facts, but as something underpinning a value system. It has a purpose in coordinating our thoughts and actions. It is not only asserted that Allah exists, but that we should believe it and behave accordingly.

Unity - The Universe is an Organism in which all the parts are related together and interact. They have a function with respect to the whole. The parts arise only because of this function. The Whole is greater than the sum of its parts and prior to it. We should, therefore, think of things in terms of their function or relationships with the whole of existence.

Conservation - Though everything changes, is created and destroyed, is transformed from one thing into another, ultimately there must be something which is conserved, self-existent and contains all the potentialities.

Power - the cause of phenomena. This notion is wider than “force”. Phenomena must be seen as having causes, and ultimately a single cause in Allah.

Creation - . Creation is the arising of forms, hence multiplicity and relativity. No assumption is made about the nature of what is created; that is, whether it is matter, energy or consciousness etc. Creation refers to things having limits in Time and Space, and in their qualities.

Justice - There are laws in the Universe according to which particular events will, under particular conditions, have particular consequences. They establish a regularity by reason of which we can recognize things. Science cannot do without Justice in another sense also. If it were to compare two things, say lengths, using two different measuring sticks, say inches and centimeters, then this would yield a false result. Measurement is not a fact, but an activity. It is, therefore, subject to value judgments.

The Principle of Justice may be seen as having three aspects:- (a) That the same conditions always produce the same consequences. (b) That the consequences are proportional to the actions. (c) When a transformation takes place then there is an equal exchange. If a person is to know and deal with the world he must regard Justice as being built into the structure of the Universe. All things receive an input and produce an output. The two are inter-dependant. Every advantage has to be paid for equivalently in some coin. People may spend material wealth to gain a social advantage, or make material sacrifices to gain a social benefit. You have to give love to receive it, and get love to be able to give it. It is not difficult to see that the idea that every effect has an equivalent cause is based on this.

Love - This is described by several different notions. Among these are Rahman (Beneficent) and Rahim (Merciful) . Beneficence implies that all the requirements on which the existence of something is based comes from the environment, and, therefore, ultimately from Allah. It does not imply any right to exist. The word “cause” appears to be very restricted. For instance, what is the cause of man’s existence? Is it the materials he is composed of and eats? Is it the structure of the genes or parents? Is it the evolutional, or developmental process? Is it the heat and light from the sun or the gravity and atmosphere of the planet? Is it the laws governing the chemical processes? Is it the electronic or gravitational field? A term is needed which will describe the whole complex situation. Mercy refers to a certain degree of tolerance under which things exist and operate without destruction.

The point to be made here is that the world should be thought of as being benevolent in nature. If it is regarded as hostile then this creates a number of psychological and social problems. However, an examination of nature certainly shows that it is cruel. Animals hunt, kill and eat others. The cold of winter and the heat and droughts of summer cause suffering and death. Earthquakes, diseases and other disasters do occur. But these things have facilitated evolution and developed the faculties by means which such things can be dealt with. We ought to get beyond narrow human judgments. Though one animal is killed the other has obtained nourishment. Therefore, the good and evil cancel each out. But the overall effect of this arrangement is good. The Quran points to the existence of love between people, husband and wife, parents and children for evidence of this attribute of Allah. It exists also in animals and minerals. The existence in man of the faculties by means of which he averts disasters or their consequences is also a sign of benevolence. Evil in generally caused by man either by the way he uses his faculties or neglects to use them. Nor is pain necessarily bad since it stimulates him to avoid what is harmful and seek what is beneficial.

Truth - This refers to Order, pattern or organization; Information. They refer to actual objective phenomena which can be transferred from one thing to another, or imposed on substances. Every event or action leaves its effects in the surroundings. If this were not so we could not know, remember or reconstruct the past. The effect which one object has on another is not different from the relationship of a human observer to the object.

The Manifest and the Hidden - That there is more to reality than that which can be seen is now well known. The assertion that one ought to believe only what one can see is now quite absurd. Though we do not know that which is hidden we must always allow for it, though not to speculate about its nature. The manifest has the hidden behind it. We see the surfaces of things, but surfaces imply something they are the surface of.

The point of this discussion is that there are certain ways of seeing the world. They are not facts, but values. Their purpose is to facilitate adjustment. The desire to pursue knowledge, or to do so by means of certain attitudes and methods, is a value, and it is prior to facts. Facts are the result of seeing things in certain ways. It is particularly important to apply these principles to education in its broadest sense and this includes the culture which forms us,. hence the need for Laws which ensure this.

It is only very recently that the Law in the West has begun to recognize environmental ethics. It does not recognize Social Ethics either, except in physical hygiene, despite the fact that it is clear that the breach of both the Criminal and the Civil law is caused by social malpractices. Broken marriages, for instance, as a result of which children grow up neglected, inadequate, unguided and insecure are a breeding ground for such misdemeanor. Although, by far the most of a person’s life is spent in the married state or within a family, the educational system does nothing to prepare people for this aspect of their life. The situation is aggravated by the fact that life has changed as a result of science, technology, and organization. The few guidelines which may have existed in the past no longer apply. The happiness and welfare of the people is connected more intimately with how they organize their family and social life rather than with how they organize their economic and political systems, though these latter may be more urgent and do affect the former. It is true that oppression and poverty are great evils, but these arise mainly because of bad social and psychological factors. Nor can it be shown that those who are rich and relatively free are happier or better people for that reason. Personal Ethics is recognized only as physical hygiene, neglecting emotional and intellectual factors which also affect the health of the individual and the community. As for the Ethics of Thought, it would be difficult to convince most people that such a thing exists.

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The main differences between Islamic Law and the Western secular Law are as follows:-

1. Western Law does not recognize God as its source. That is, it is not based on the idea that Ethics is integral to the nature of man and the structure of existence. It is, therefore, man made. It is not objective but subjective. But if some men make the law then there is no reason why other men should feel obliged to obey it. The law has to be established by force. Each individual then has to calculate whether the rewards of his action are worth the risk of punishment. He can also try to get the law changed in his own interest. This means that he must obtain the support of others by any means good or bad.

2. The law is regarded as having arisen from a Social Contract. That is, individuals competing in the pursuit of their self-interest find that conflicts are mutually harmful and therefore agree, explicitly or implicitly to abide by certain rules. Law becomes a question of Politics. Pressure groups arise to change the law in their favour. It, therefore, arises from expediency and the results of a power struggle.

3. The rewards and punishment for actions are regarded as applying to the individual who is seen as a separate unit with a limited life span on earth. There is no notion of a Hereafter. He is not seen in the context of his function with respect Humanity, Nature and the whole of Reality. The Law, therefore, is based on a narrow view. As factors coming from outside the field of vision must necessarily affect the community and these are unpredictable and uncontrollable, the Law has many evil and unforeseen effects.

4. The Law in the West is concerned not with psychological development but with Social order. It is not, therefore, based on morality or justice but on immediate practicalities. It is, however, unlikely that there can ever be any end to conflict and suffering where there is no justice or even attempts at it.

5, The State concerns itself with Law, and morality is left either to individual conscience or to public discussion and debate. When it is a matter of conflict between these then the Law takes precedence. This attitude does not take into consideration three facts:- (a) All religions including Islam give priority to conscience, the second place to public discussion and only the third place to man-made rules which depend on the decisions of the few. (b) The fact that conscience is repressed in most people and that it is prejudice, fantasy, associative thinking, conditioning and rationalization of self-interest which is normally mistaken for conscience. Conscience needs to be uncovered through a discipline and correct upbringing in a suitable social system. (c) Public discussion implies a conflict between many different points of view each of which may be based on quite incompatible principles. Public discussion can only be meaningful if the same basic principles and criteria are accepted by all. This can only happen if objective factors are accepted.

6. Western Law (a) deals with every situation in isolation from every thing else which also affects that situation, thereby making it ineffective, (b) deals with everything only physically or financially, by incarceration or fines (c) are often made against the nature of people, thereby converting normal behaviour into crimes, distorting behaviour through channeling and invoking harmful side effects (d) appears to have no way of dealing with crime and violence except punishment despite the fact that all statistics show that punishment is no deterrent. In fact, it hardens criminals. Punishment causes resentment and retaliation and, therefore, further crime. The reason for this is that the criminal does not see the punishment as being just and deserved and this is due to (i) a lack of correct moral values owing to the breakdown of religion and the inadequacy in the educational and cultural systems. (ii) the breakdown of the family, the erosion of the authority of the father causes the separation of love from authority and inadequate emotional development. (iii) the injustices, immorality and stresses contained in the economic, social and political system.

The idea that it is possible to sustain Law and order without morality is absurd and is being seen as absurd. There are several reasons for this ;-

(a) Law is based on the fear of being caught and punished. This depends on the efficiency of the police. It is always possible for the criminal to conceal his crime, bribe witnesses, corrupt policemen or employ a clever lawyer who takes advantage of loopholes in the law and the intricacies of legal procedures. Only about 10% of crimes are ever solved. This is an encouragement to criminals to take the risk. There is no substitute for the inner policemen.

(b) The main cause of crime is bad upbringing usually because the family has broken down. The cause of the break down of family life, is among other things, adultery and fornication, all of which are due to decline in morality aggravated by the economic system, political and cultural systems.

(c) The Law itself can only encapsulate a small number of well defined cases. Many things not defined by the law cause social tensions which lead to violence and crime.

(d) It is only possible to prosecute criminals after the crime has been committed. It is not possible for the law to prevent them from happening. Nor does the Law deal with the side effects of crime such as the distress of victims and relatives of the criminal.

(e) The precautions which have to be taken in social systems where little moral sensitivity exists are irksome and very costly. These include the installation of security systems, locks, various accounting procedures, and actions required for the protection of children, women and the elderly.

(f) The arrest and prosecution of criminals, and hence the deterrent value of the law is subject to human limitations. Crime has become more like a business transaction where the criminal weighs up the advantages against the advantages for himself. And going to the Law is like a gamble, the outcome being unknown.

(g) Justice demands three things:- (i) Law which defines what is forbidden, limits and obligations. Generally, the obligations are ignored. (ii) Evidence which itself requires firstly the gathering of facts, secondly the relating and organization of these, and thirdly, judgment by determining the overall consistency with the rest of experience. These three are interconnected. The facts, for instance, can be gathered not only through witnesses but also by questioning to establish their consistency and by experimental means to show the different possible patterns that can be created. In most systems of justice alternative explanations for the facts are ignored and consistency with the rest of experience is limited by the narrowness of the experiences or ideological system of judges. (iii) Organization, certain procedures and techniques. These should be regarded as means but often become ends in themselves. The result is that injustice is done not only by protecting miscreants but also by causing distress and suffering to the plaintiffs and witnesses. This prevents them from bringing a case or appearing in courts.

7. Whereas morality in Islam is based on the respect for a person as a Vicegerent of Allah, in the West it is based on the fear of retaliation or disorder. The result is that Freedom of the individual and his consent are regarded as the highest virtues. Thus fornication, adultery and homosexuality, for instance, are allowable where there is consent between the parties no matter what the social consequences, but theft and rape are not because they are committed against consent. In fact, however, the Western political and legal systems are based on coercion. The consent of the ruled and the worker are not required. The Islamic view is that both, freedom and consent, are good or evil according to whether they lead to good or evil. A person who is forced to do an act of evil is not culpable, but he who does so voluntarily is.

Freedom, however, is of three kinds:- ‘freedom of’, ‘freedom to do something’, ‘freedom from something’. In general when people are inter-dependant the freedom of some means restriction for others. The fulfillment of one desire means sacrifice of another. There are three factors involved in Freedom:-an inner desire, the availability of the thing desired, and the capability of reconciling these two. Freedom has no meaning if there is no desire and no ability to fulfill it. Freedom can, therefore, be obtained in three ways:- By removing or modifying the desire; by increasing the availability of what is desired; and by developing the knowledge, skills and means to obtain desires. One person can be happy with little and another can be miserable with much. One can take pleasure in doing what is good and another can be suffering because he cannot do what is evil. Education brings freedom both by increasing the ability to fulfill desires and by modifying desires so that they are more objective.

There is environmental, economic, social, political, cultural, psychological freedom. As the communists have rightly pointed out, political freedom has little meaning to those who do not have the means. The rich man has greater freedom than the poor man, the educated than the uneducated, the physically or mentally healthy than the ill, the capable and unconditioned than the incapable and conditioned.

Freedom may be restricted by:-

(a) Restraints (when a person is prevented from doing something),

(b) Coercion (when he is forced to do something),

(c) Violation (as when something is done to someone),

(d) Deprivation (removal of something which a person needs),

(e) Conditions such as apathy and indifference, deception, incitement, provocation, conditioning, perversion, lack of knowledge, capability and motivation.

Consent implies that people know what they are doing and what their actions imply, It requires knowledge, capacity to understand, motivation and means. People can be deceived by misinformation, prejudice and fantasy. They can be provoked and tempted. Consent may be active, passive or mediating. It may be given to something but not to the means or methods of doing it or to the consequences. Consent presupposes knowledge, consultation and capability.

8. Western Law is formal. Guilt and Innocence can only be defined as what the Law Courts say they are, since no objective principles are recognised. Thus court procedures, technicalities and loopholes in the letter of the law often lead to the conviction of the innocent or the escape of the guilty. It is rigid and cannot adapt itself to the great number of environmental, social and psychological circumstances which affect moral behaviour. The letter of the law and its procedures are more important than the spirit.

9. The Judges are appointed by their political masters and bound by Laws promulgated by a Parliament which consists of elected people who are not required to have any expertise in Ethics or Law or any of the fields of knowledge. The Judges, too, seldom have any qualifications in any of the fields of industry, commerce, ethics, science, politics, sociology and art. They have neither kept up with modern knowledge and cannot apply it nor do they understand the context in which an increasing number of crimes occur. They have no training in logic or objectivity. They are not required to be morally upright, unprejudiced, socially responsible or capable.

10. Trials in the West consist of an argument and debate between prosecuting and defense lawyers. The task of the one is to establish guilt and that of the other is to establish innocence quite irrespective of whether the person concerned is guilty or innocent. The establishment of the truth is not the aim. Emotional appeals and other tricks can be freely used. The more able lawyer wins and can charge greater fees when his reputation is established. Thus, it is an advantage to obtain the services of a clever lawyer and this can be afforded only by the richer.

11. The trial is a political affair in that it is conducted before a Jury consisting of men and women picked from among the public, who though they possess no expertise, determine guilt and innocence. Their conclusions are affected by the intervention of self-interest, personal problems, prejudices, boredom and various other irrelevancies. They are not trained in logical thinking or objectivity.

12, The police force is not regarded by the people or the police as part of the community. It is set up by the State for its own purposes. It has its own organization, incentives, loyalties and binding rules. Some of these rules hamper the purpose for which the police exist.

13. There is often hostility between the police and the rest of the community which leads to a conspiracy of silence among witnesses. This makes the detection, arrest and prosecution of witnesses difficult or impossible. The arrest and prosecution of the criminal is given over to the police. Crime is regarded as an affair between the criminal and the victim. Others are required to mind their own business and usually do.

14. The police is often under social or political pressure to find and prosecute someone for a crime. Promotion of policemen often depends on the number of prosecutions they can get. This often leads to harassment, the invention of evidence and miscarriages of justice. On the other hand the police will ignore what they consider trivial cases or cases which are too difficult to prosecute because of the legal procedures.

15. The police consists of a hierarchy in which the investigating officers are controlled by those in charge of them. But these people have friends and relatives and belong to a exclusive groups or higher social circles. Pressure is, therefore, often exerted on the lower ranks to drop an investigation, to manipulate it, arrange incidents, or reach conclusions which are in the interest of those who have the power. The hand of politicians or businessmen is often behind this.

16. The records of trials in the West show that a great many injustices have been done because the juries, police, judges or lawyers had prejudices against or for a race, class, group or ideology. This is the consequence of constructing a legal system on political foundations. The maintenance of a police force costs money, which comes out of taxes. It seldom has sufficient resources to deal with the crime level. This means that it has to concentrate on the major crimes only. Theft, robbery and fraud which involve large quantities of money will be investigated, but that which is regarded as petty theft is ignored. It is, however, for this reason, that this kind of theft is much more prevalent and the total sums involved often mount up to much more. These small sums are also much more important to the poor than the greater sums are to the rich. It turns out, therefore, that the police exist for the protection of the property of the rich. The majority of the population does not obtain justice, remains exposed to the unscrupulous, and often reduced in desperation to take matters in their own hands. In this, however, they are obstructed by the police, and the victims rather than the offenders are prosecuted.

17. Western Law is too massive, complex and ponderous. It requires expert lawyers to understand and administer it and they are, therefore, paid very highly. This makes the Law very expensive and justice becomes a matter of economics. Because of this complexity the citizen may not even know that he is breaking the law. This applies both to the miscreant and the victim. This means that people break it unwittingly and accidentally, and that they cannot settle their own affairs. They have to go to lawyers. This being expensive, they allow injustice to flourish. Other, more cunning people can use these facts to their advantage. Large rich firms always have the advantage over the individual citizen.

18. Western Law creates and encourages crime. It is probable that it produces more crime and misdemeanors than it prevents or punishes. The reason for this is that it is unable in many cases to protect the public because of the limited way in which the law is defined, the loop holes in it, the need for public proof when most crimes are private and secret and prosecuted after the event. But it also prevents the victims from retaliating , punishes those who do and protects the miscreant against them. The criminal, therefore, enjoys considerable immunity from the consequences of his action.

The injustices in the Western systems of law need hardly be mentioned since they have become increasingly obvious to most people. Among them are the following:- Reckless drivers who kill people on the roads will be prosecuted for reckless driving not killing. The action, not its consequences, is considered though it is the consequences which do the harm. The victim of a robbery, assault or adultery may not retaliate, or he will be prosecuted. The culprits often enjoy better conditions of life in custody, being provided with all conveniences free, than do the victims, other innocent people or did the criminals themselves. Crime is, therefore, encouraged. The criminal is not required to compensate his victims, may enjoy the fruits of his crime and is not required to reform or repent. It is usually small criminals who rob the rich who are caught and punished while those who commit very large scale or organized crimes get away. The greatest crimes against a society are committed by the powerful businessmen and politicians who are seldom investigated, found out or prosecuted. The police is powerless to deal with threats or danger and can act only after the crime and injury has been done. It has no preventative powers. Taking legal action is costly, chancy and very time consuming and can only be afforded by the rich. The protection of property is more important than the protection of life, the protection of business than the customer, the rights of the offender than the victim. The point of view of the victim is seldom heard, and bargains are made between the lawyers. Freedom of action is protected against the consequences of those actions. The rights of spouses and parents are ignored. Doctors, teachers and Social Service officials keep information about spouses and children secret thereby encouraging disruption of families and guidance of children. People are given the right to earn their living by any means they can, but the rights of consumers are flouted. Unsolicited Junk Mail, devious promotions, pressure salesmanship, propaganda and abuse of the telephone, Television, Radio and Internet services for such purposes is not regarded as an abuse of the human rights for self-determination. The Legal system is mainly concerned with establishing and maintaining its own authority, power, institutions, income of its members, politics, procedures and formulations than with justice or the welfare of the people. There is widespread corruption in the legal services - police, lawyers, judges, legislators. Political and financial considerations, expediency, prejudice all affect which charges will be brought or dropped and how their seriousness will be judged. The legal professions are monopolies and it is impossible to sue them for the widespread negligence and incompetence. There are large organizations which are allowed secrecy and can get away with almost any action. Among these are the Military, Civil and Secret Services, and great number of commercial firms. The Legal system needs to be taken out of the hands of politicians and professional lawyers.

Some Laws which are most essential and urgent are missing from most legal systems - those against persecution, exploitation and dishonesty. Persecution is found in the form of hounding, witch hunts, malicious gossip and all forms of persistent actions designed to bring suffering and even suicide. Exploitation consists of taking advantage of the circumstances, misfortune or disabilities of others in order to gain personal advantages. Dishonesty is found in business, politics, journalism, science and all kinds of social relationships. It may consist of withholding relevant information, biased information, misinformation and distortion. It can be verbal or in action.

19. Western Law is based on the notion of Democracy - that the people have the right to create the laws by which they will be governed. Man is regarded as the supreme arbiter. This view can be criticized on several grounds.

(1) This assumption is not true. Human beings are dependent on the earth and the laws, forces, processes and materials of the Universe.

(2) In practice the laws are always made by a minority of power-holders.

(3) It involves a contradiction. A Democracy could abolish itself by the will of the people.

(4) Every majority could do away with the rights of every minority, leading to oppression.

(5) No Democracy is possible where laws are not recognized and upheld. It is the Law which establishes Democracy not the other way round.

(6) Surely, it is not Democracy itself which is the ideal but the freedoms and rights for self-fulfillment and development which it allows. These could, perhaps, be obtained also in other ways.

(7) The purpose of the Laws should not be to recognize existing social realities as to provide an ideal such that progress and development becomes possible. If they are based only on existing realities then this must lead to stagnation. In fact, they merely alter arbitrarily as circumstances change. This makes Democracy itself an arbitrary notion. It could be argued that no political system can exist which the people do not uphold or tolerate. Every dictatorship and tyranny also exists because the people support it.

20. But if Democracy cannot exist without a Law which establishes it, the Law itself must be upheld because people consider it to be sacred and justified by something Supreme and objective beyond the human. Why else should it be obeyed? This remains true even if it is merely a fear of chaos, suffering or oppression. This fear implies that there is something real to be feared.

In view of these facts, it is not too difficult to see why an Islamic Legal System must necessarily be different from that in the West.

An Islamic Law should be based on the following principles:-

1. Allah is the supreme Authority. Therefore, it is necessary to determine what the Will of Allah is.

In effect this means:-

(a) (i) consulting the revealed scriptures (ii) consulting nature - doing scientific research (iii) Meditation and prayer.

(b) Those who are most objective, because of knowledge, virtue and capability, have the most right to formulate the law.

(c) The community as a whole and its circumstances constitute a fact and are regarded as having been determined by natural forces and therefore, by Allah. Their opinions, desires, requirements and ambitions have to be taken into consideration. If this is not done then we have tension and tyranny which will not only negate the aims of the law but also eventual destroy the law. The Prophet said that his community, as long as they followed correct guidance, would never agree to what was wrong. The implication is that the general level of education must be continually improved. This also includes the respect for learning and the learned in a comprehensive sense which includes knowledge, virtue and ability.

2. Man is a Vicegerent. This has the following implication:-

(a) He is accountable to Allah only.

(b) He has the right to self-determination, and to the use of his faculties.

(c) He has duties to do whatever is beneficial and avoid what is harmful.

3. Man is responsible (a) individually (b) in association and (c) collectively.

4. He has a certain Sphere of Influence. This includes himself, inwardly and outwardly, his family, friends, those with whom he makes agreements, those who he comes in contact with, his property, goods, land, animals and plants, and everything which he affects or is affected by, according to the intensity of these effects.

5. He has the right:-

(a) To do whatever is beneficial to himself and all things within his sphere of influence.

(b) To seek the means to achieve these benefits.

(c) To make agreements and cooperate with others in achieving these benefits.

(d) Not to be interfered with, restricted or obstructed in what is beneficial by others.

(e) Not to be (i) compelled or coerced (ii) violated (iii) ignored as to his welfare..

(f) To protect and defend himself and everything in his sphere of influence.

(g) To retaliate against an injury done to himself or anything in his sphere of influence.

6. He has the duty:-

(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.

7, If there is a contradiction between his rights and duties and those of others then he has the duty ;-

(a) to consult, discuss, negotiate and make agreements, contracts or treaties which are mutually satisfactory and beneficial.

(b) To adhere to these contracts.

(c) To make efforts to settle all disputes and disagreements within his sphere of influence.

This law must apply to all from those who rule to the most humble. If someone tries to violate the rights and duties, a thief, for instance, then he must be presumed to have accepted whatever risks are involved in the rights of their victims to defense and retaliation.

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Three features of Islamic Law need to be mentioned:-

1. The word, Law is used to refer to four distinct concepts, namely Islam, Shariah, Fiqh and Madh-hab. The distinction between them is as follows:-

Islam - As it means surrender to Allah, it has three aspects:- Surrender (a) objectively, to external reality, (b) subjectively, to the laws of ones own nature and the spirit within, (c) to the Teaching as revealed in the Quran. (4:125, 30:30, 150, 5:16, 35, 69).

Shariah - This term originally means the straight path or the waterhole where animals gather to drink. It (a) refers to the teachings contained in the Quran and Hadith. (b) it is original (c) it is unchanging. (d) it consists of general principles (e) it is a single unitary, self-consistent teaching. (f) it is not systematized.

Fiqh - This means correct understanding. It (a) is an interpretation or adaptation of the teachings of the Quran and Hadith by lesser men. (b) it is derived (c) it changes according to circumstances. (d) the laws are specific. (e) there are several systems of law.(f) the laws are systematized.

Madh-hab - This refers to a particular system of Law. It may be self-consistent in itself, but applies only to particular set of conditions. This notion can be used to create a set of laws which will apply to some particular department, industry or area.

Confusion is often caused by the fact that there are contradictions between these systems of law while it is claimed by some that they are divine revelations. They cannot be regarded as divine revelations but derive from the right and duty of human beings to study, interpret and apply the moral teachings and to do good. It can, however, only be exercised by those who Surrender to the discipline in thought, motivation and action. Those who do not cannot be regarded as being guided by Allah. That is, without the appropriate preparation the mind cannot be objective.

There is distinction between the teachings of the Quran (since these were directly revealed) and the teachings in the Hadith (since these are interpretations of the Prophet). Some Muslims make no such distinction despite the fact that the Prophet himself makes this distinction. This is not unlike Christianity where no distinction is made between God and Jesus. This distinction, however, has important and profound consequences. Since Allah has sent many Prophets, there are many Shariahs. Whereas, there may be conflict between the adherents of the various prophets, there can be no conflict between those whose loyalty is to Allah. Indeed, the various prophets had this loyalty. It is not generally understood that the word Islam cannot be identified with the Shariah.

In the Quran we find the foundations of belief, the moral principle, and though some laws are given in some detail, they should be regarded as examples of how the teaching is to be converted into law. It is also necessary to realize that the Quran contains laws which were later abrogated and replaced by others. Yet there is a record of both in the Quran which would imply a contradiction. The Quran, however, according to its own words, came in parts as circumstances demanded and states that some laws were superseded by others. It should, therefore, be understood that the Quran teaches us how to adapt laws to deal with changing conditions, some of which the previous law may have brought about. The Hadith contains teachings which are applications of the Quran by the Prophet and its adaptations to specific conditions. It should be used as an example of how this should be done rather than as a straight jacket. The word Shariah should refer to this. The elaboration and systematization of other people for particular communities constitute a third stage. And the specific laws consistent with a system are the fourth stage.

The procedure adopted in constructing the Law has the following stages:-

(a) First, to find guidance in the Quran.

(b) Second, to search the Sunna. But an excessive reference to the Hadith was discouraged since there could be false quotations, inappropriate ones, misinterpretations or they could have been the prophet’s own opinions with respect to particular situations of which all the relevant details were not known.

(c) To call for the unanimous agreement of the Sahabaah, the learned in Islam. These people were modest and often referred the matter to each other, or they accepted someone else’s superior wisdom.

(d) Failing unanimity to go by the opinion of the majority.

(e) If the differences of opinion were too great then the Caliph’s decision prevailed in so far as he represented the community.

(f) Some questions were not a matter of right or wrong but of alternative actions, these could be referred to a referendum of the people, or those concerned. This could be done through their representatives.

(g) Some questions concerned only particular people who would need to be consulted and agreements reached. Contracts and agreements were only valid as long as they did not flout the law or do harm.

2. The main feature of Islamic Law is that it recognizes the inter-connectedness of all things. It is not generally possible to isolate one factor, for instance, stealing without considering the economic conditions, the social conditions such as family life, cultural factors such the ideologies, political conditions such as exploitation and oppression. Indeed, punishing someone for stealing may itself be an injustice if these other contributing causes are not taken into consideration. Therefore, Islamic Law is comprehensive and has the following aspects:-

(1) Religious - Those dealing with duties to Allah.

(2) Ethical - behaviour and motivation.

(3) Cultural - concerning etiquette and manners.

(4) Political - Concerning the organisation and defence of the Muslim Community.

(5) Family - concerning marriages, relationships, divorce, inheritance.

(6) Economics and Trade.

(7) Criminal Laws.

3. Another fundamental principle is that Laws should not be a burden. (1:185, 2:286, 22:78, 4:28, 5:4, 2:173, 5:104) This has several consequences:- (a) Everything not forbidden is allowed. (b) The number of things forbidden is small. (c) The number of laws should be reduced. The Quran has some temporary or transitional laws which were later abrogated when their purpose was fulfilled. However, some laws were replaced by severer ones when circumstances demanded them.

4. The purpose of the Islamic Law is Justice, Welfare, and Development.

A Legal System compatible with Islam should have the following features:-

1. The Law is answerable to Allah. All crimes are against Allah, not the State or the King or the People or Humanity . Allah is the goal and the final judge. The Law should be based on, and try to determine what is objectively true and good. Human life is part of the Universe, its goal is ultimately integral to it’s purpose.

2. The aim of the Law is environmental, social and individual development.

3. Human beings are Vicegerents. They have responsibilities towards themselves, the community as well as the environment and all creatures in it. People are not free but interdependent on each other and the world they live in. As vicegerents, the individual is responsible to Allah, not to the State, a King, President or Institution. He is free to live his life according to his lights as long as he does not interfere with the same rights of others and their welfare, the welfare of the common environment and does not become a burden on others by leading a life harmful to himself while other people have an obligation to advise and help. The individual, therefore, has an obligation to ensure that he obtains appropriate knowledge, skills and application to ensure his own welfare and to advise and help others. Where a conflict of interests arises, compromises and agreements must be made. It is clear that this differs from the Western ideal where everyone is regarded as having the right to live as they please. This can only happen if the right to obtain help from others, the community or the state, as well as from the environment is also relinquished. Islam, therefore, recognizes this right in external communities with whom there is no interaction or with whom there are treaties.

4. Morality is based on human nature, the nature of the world and the need for man to adjust to Reality. The need for self-preservation, for instance, is a built-in universal instinct. This must be recognized both in oneself and in others. Thus killing and injury are forbidden. Self-defense and retaliation are normal reactions to the threat to life. Normally, the blame is usually attributed to the violent aggressor, but aggression is often understood in a naive way. A person may be provoked into aggression by persistent injustices, sometimes deliberately. These provocations must be taken into consideration. Killing and injury (as in punishment) become allowable only if they are the only means of preventing a greater amount of killing and injury. Otherwise forgiveness is a moral virtue. People need certain possessions to maintain life, hence theft is forbidden. They have socio-sexual need, hence a need for a mate, children and parents. Anything which threatens to flout the fulfillment of this need is morally condemned. The same applies to the need for self-fulfillment. Morality cannot be altered by human beings.

5, The Law is to be based on morality. It is concerned with the application of moral principles to specific cases and circumstances. As circumstances change the Law must also change. For instance, when motor traffic was invented, it had to be regulated in order to prevent deaths through accident. Banking, Industry, Offices, and Computers etc allow new kinds of theft and injury. Laws have to be made to prevent this. Only the establishment of such laws is the responsibility of human beings, not the moral code.

6. No person or institution is above the law, not even the State. The Law must be equal for everyone. But this can only be so if their different circumstances are also taken into consideration.

7. Since people are inter-dependant Morality and Law concern everyone, not merely the police.

“Ye are the best community that has been raised up for mankind. Ye enjoin right conduct and forbid indecency...” 3:110

Anyone should be able to bring a case against any miscreant whether personally involved or not. The trial, too, should always be in public. And any member of the Public who has relevant information must be allowed to present it. No juries are necessary, but the public can question the judgment through its Assemblies. All interviews of the accused and witnesses should be recorded by video or tape and presented in courts. A record must be kept of all misdemeanors and punishments.

8. Law must be free for everyone. The Community or State should pay for it from taxes. But it should be recoverable from the miscreant. Justice should be swift otherwise the prolongation of suffering is itself injustice.

9. The Law has to be created by study and research. It should not be left to politicians since they are motivated by self-interest, or the interest of some group or party. A group of independent and impartial people should devote themselves to its study and development. These could be the Judges, lawyers, police or other experts in law. They form an organization of their own for mutual consultation and to arrive at a consensus of opinion. Their representatives could have a seat in the General and Local Assembly to which they are also responsible, and they would also act as advisers in the various Government Departments, Industry and other institutions. Their function is to define the moral code, affect the economic, political, educational and social systems, to Legislate and devise Procedures.

10, It is well known that many innocent people are convicted and that many criminals are set free not only because of the way the law is formulated, and the relative cleverness of the different lawyers, but also because of the difficulties in finding evidence. Obviously, there is no substitute for a good moral education and the removal of the social and economic conditions which generate and encourage crime and immorality. It is, therefore, a function of the Law to intervene at these levels also. The Law must ensure that ethics is taught in all homes and schools, that parents and teachers carry out this responsibility by instruction, illustration and example. The social, political, industrial and cultural system and conditions must be such that they do not encourage or stimulate immoral and criminal behaviour but encourage moral behaviour. This may require actions being taken against conduct which is not itself directly criminal.

11. The Judges must be independent and impartial, not subject to political, commercial or ideological pressures. They should be people pursuing various other professions. Different Judges would then have different kinds of expertise to deal with appropriate cases. They would be appointed by the Local Community Assemblies for each case. There should be no permanent right to this position. The judge should be morally upright, able to think Logically, and possess compassion and wisdom. It is not possible that Justice can be done if those who make the judgment do not have a strong sense of objectivity, impartiality and justice which transcends all other considerations.. They must be in a state of Surrender. This is not possible for any one except those who have undergone a special discipline and cannot be a lay jury. Justice, in Islam is not a political, but an ethical matter. They should be well scrutinized and respected in the community.

12. All devices which try to distort or circumvent the truth should be banned. There should be no contest between lawyers each trying to win the case for the client who pays them irrespective of guilt or innocence. If there is insufficient evidence the judge should direct the proper authorities to investigate further. The function of the Judges should be to question witnesses in the way the lawyers do at present. Each trial should have a panel of three Judges. The Judges are answerable to their organization, and the judgment is not finalized until the Leader or President of this organization affirms it after discussion. The case and the judgment of the Judges can also be discussed at the Central Assembly.

13. There should be 4 levels to the law on which judgment is based:-

(a) A Philosophy which defines what is good.

(b) A level at which the intention of the law is defined.

(c) A level at which the rewards and penalties for various actions are defined.

(d) A level where the procedures and methodologies are defined.

It should be possible to argue a case at all levels. It should not be possible to take advantages of loopholes and the letter of the law, nor of the absence of specific laws dealing with new situations. Instead of defining exactly what is required, permitted or forbidden, the Law should apply general principles which are more flexible. For instance, Western Law allows people freedom to do anything, no matter how immoral or harmful, if the law does not specifically forbid it or prevents people from doing things no matter how moral or beneficial if the law specifically forbids it. This does not merely apply to personal behaviour but also to all interactions, factories, businesses and institutions. A great many swindles are, therefore, permitted. The law could, however, be defined more flexibly. It could, for instance, be required that anyone who sets up a business should ensure that he has all the relevant knowledge, skills and sense of responsibility. That he takes into consideration the benefits or harm to people and the environment and takes all reasonable precautions. He could be prosecuted if he fails in these respects. This requires, of course, that the population has had a good moral education. The law could then be simplified, made available to all. No excessive fees would be paid to lawyers, it would be cheaper to administer, more widely available, and injustices could not be perpetrated because of loopholes.

14. There should be an independent and impartial Department of Investigations. The job of this department should be the establishment of the truth as far as possible and develop methods of doing this. It does not need to wait until complaints are brought to it. It must have the right to penetrate any organization whatever, openly or secretly. Some special members of it, the Guardians, should also have the power to put right any injustices on the spot and advise the Legislators. Private firms of Investigators could exist to which specific cases could be given. These firms could form an organization of their own and have representatives in the Department of Justice to which they are responsible.

15. People should have the right to Solicitors to prepare a case on their behalf, but all the evidence should be available to the opposite party and the judges. There is no right to secrecy or confidentiality. The accused do not have the right to silence. It is the duty of solicitors, not the police to interrogate the accused and establish the facts. Solicitors should also consult one another, ask for and give advice to each other and the clients. They may act as arbitrators in disputes. Not every dispute need come to the courts. Most controversies could be settled out of courts by Solicitors. Though people choose their own solicitors it is the Community which pays them, and these fees may be recovered from the guilty party. Solicitors do not argue the case in courts, but are themselves questioned by the judges. They will have the right to make statements presenting the case. Solicitors will need to specialize in particular areas.

16, Every activity or institution has four aspects, namely the ethical, scientific, aesthetic and economic. Each of these aspects requires its own experts and organizations where such expertise is developed by discussion and training. Each activity or institution can, therefore, be examined from these points of view and requires the appropriate advisers. Thus, a Department of Ethics is required of which the Guardians, Police, Solicitors and Judges are a part and their function is much wider than merely the administration of laws understood in the restricted sense.

17. Judgment is based not only on evidence and the law but also on the interpretation of both. It is common experience that the very same situation is seen differently from the point of view of those involved and those not involved. People jump to conclusions on the basis of partial or superficial knowledge. Witnesses are often mistaken or deliberately lie. It is never certain that all relevant information is available. The only way round this is the development and use of more sophisticated scientific techniques such as lie detectors, the so called truth-drugs and other psychological techniques. The accused, the accusers and witnesses should not only be required to answer questions, but also have the right to make statements, present their own points of view and question other witnesses. The context in which a misdemeanor occurs is also important.

18. False accusers and those who distort the evidence should always be prosecuted.

19, Some crimes are provoked or encouraged even by victims and they must also be held culpable and dealt with.

20, People have the right to protect themselves, to retaliate or settle their differences privately. But they will be accountable for these actions. When, for instance, a thief breaks into someone’s house he presumably accepts the possible consequences of being caught by the householder. The householder may come to some kind of agreement with the thief not to prosecute him in return for some compensation.

21, The criminal must be required to recompense the victim. He cannot, for instance, after serving his term in prison enjoy the fruits of his robbery.

22, The punishment for a crime should be proportional to the damage done. Drunkenness, for instance, is not an excuse for avoiding a charge of murder, since the person had control over his drinking and knew what its consequences could be. Mental illness or deficiency often allows a culprit to escape the consequences of his crime on the grounds that he did not know what he was doing or had no control. In fact, however, this could be said about all criminals. In these cases the chances of reformation, however, are even less. There are people who are a continuous danger to the community. They may well commit another crime after being released from imprisonment for a previous crime. The public has a right to protection from them, and they ought, it may be argued, to remain in custody until they have reformed and genuinely repent. This appears to flout the principle of Justice, particularly as it cannot be known for certain whether they have reformed, will or will not commit a crime until they do. The only principle which can be applied here is that the greater good of the community takes precedence over that of the individual. Hospitalization or confinement in congenial surroundings may be the compassionate thing to do.

23. A Police force is necessary, but apart from some professional officers, it should consist of members of the general public recruited on a part-time basis or in rotation. This should ensure that it remains part of the community and prevent the arising of a separate self-interested organisation. Since the function of the Police is to maintain morality rather than merely the law, it cannot be concerned merely with catching and punishing criminals, but also with prevention of crime. Policing should, therefore, also include protection, the relief of distress and dire need, a function which is fulfilled by the Social Services, or the removal of the circumstances, traps and complexities which exert adverse pressures. The police is distinct from the Investigators, Judges and Solicitors.

24. The police have the right to warn, report to teachers, parents, organisations, authorities, fine, or inflict immediate minor punishments. It is better to nip a crime in the bud than to let it develop. But they are accountable to the community and their own organisation for their actions.

25. The promotion of police will not depend on the number of crimes they detect or report, but on general performance assessed by an independent educational body, nor will the number of positions in any given rank be limited .

26. All interrogations should be done in the presence of witnesses who will at all times have access to the public. Witnesses should also be required for all transactions and agreements. This may require the existence of professional witnesses who could be solicitors. Their function should be to point out the implications of the agreements and statements, to prevent misunderstandings, deception by words, manners or deeds and interpretations not intended. No unjust agreements will be valid in law. Interference with witnesses by individuals, groups, institutions or government agencies must be severely punishable. All individuals concerned are personally responsible.

27. No person can be imprisoned unless publicly convicted. This means that all evidence must be gathered before a trial begins. The accused has the right to prepare his defense. This may require measures to prevent his escape.

28. The general public ought to be asked to give up some of their time for National Service, say one month in twelve in rotation. Thus 1/12 of the population will always be available for it. The purpose of this is to provide four services:- The Military, the Police, Disaster Relief, Community Projects. All these concern the community as a whole. Rotation prevents abuses of power and develops unity and understanding because of common experience. Community Projects include the building of Roads, Dams and other civil or community enterprises. As such the system could absorb the unemployed and the numbers could be adjusted according to the amount of unemployment. The payment of cash for no return to the unemployed is demoralizing to them and produces greater problems than it solves. It leads to selfishness and crime. The criminals, instead of being uselessly incarcerated should also be required to make amends by carrying out such public works under supervision.

29. To maintain a unitary, self-consistent view, the values to be striven for should be Truth, Goodness, Usefulness and Beauty, the main attributes of Allah. The Laws must be designed, by reward and punishment, to encourage these while discouraging their obstruction or negation.

With respect to Truth, the following become illegal:- deliberate lying, suppression, distortion, misleading, bias, prejudice, ignorance due to neglect, deception; false accusations; malicious gossip, wrong motives.

With respect to goodness:- injuries of all kinds, physical, emotional or mental; murder, assault, theft, rape, adultery, oppression, deprivation, injustice, restraint, coercion, threatening, manipulation, defamation, insult, abuse, humiliation, incitement, provocation, obstruction. Unless they are for the prevention or punishment of evil.

With respect to usefulness:- willful destruction, inappropriateness of use, disruption, neglect of reasonable precautions against dangers and accidents; futilities, vanities, hoarding, wastage, pollution; deliberate neglect or flouting of principles or rules created to increase efficiency or to enable, unless something more useful can be achieved.

With respect to Beauty:- disorder, disharmony, chaos, imbalance, dirt, and so on.

30. We have seen that Democracy cannot exist unless the Law establishing it is upheld. But the Law cannot be upheld unless it is regarded as sacred, having a basis in something regarded as supreme.

It could be argued that given the supremacy of the Law, no Democracy is needed. An Autocrat, King or Dictator could ensure that such laws apply. The problem, however, is this:- How can it be ensured, since the Autocrat has all power, that he will uphold the Law, and the Law will also apply to him and his actions. This is only possible if he himself Surrenders. But the arrogance which results from the power prevents such surrender. This has been the problem in Islamic countries. The Law, therefore, depends on Politics. But Politics depends on the Ideology of the people, on their Religion, when this term is broadly understood. No Dictator can have power unless people support him or consent to his rule, that is, they Surrender to him. This clearly is Idolatry, the negation of Islam. We cannot but conclude that such Dictatorships exist because the people have degenerated. It is unlikely that this can be reversed unless Religion, properly understood, is revived.

There is, however, no reason why Islamic Law should remain the same as in the past, why something from modern developments of Law in the West cannot be learnt and applied in Islam. Nor is it at all necessary that Islamic Laws cannot develop new features of its own. Islam teaches compassion as well as wisdom, and the notion of vicegerency allows new developments. There are a great number of new features in modern life which did not exist in the past and with which past Islamic Law does not deal. These are of three kinds:- (a) new ways of doing harm, new crimes have arisen, (b) criminals have new techniques and tools, (c) The new conditions of life have created new social and psychological causes for crime, and the same punishments or preventative measures do not necessarily work as in the past. New methods of detection, interrogation, legislation, administration and training of police, lawyers and judges have developed to deal with these new crimes. These should not be imitated and imported unchanged, but adapted by applying the principles of morality as laid down in the Quran. There is no virtue in applying the Shariat literally, rigidly and unintelligently as in the past, or as many conservative and so called fundamentalist Muslims of today want. The laws of the past were meant for the conditions of the past. It is much more important to apply the spirit and this requires a study of the underlying ethics on which the law is based rather than the specific laws. It is unlikely that man will be punished if he uses more effective methods than those applied in the past. On the contrary he will be punished for not doing so by rising crime.

Three kinds or aspects of Law should be recognized:-

(1) Those which are permanent and universal owing to the fact that all human beings have something in common by virtue of being human and the world they live in is also regulated by permanent and universal laws.

(2) Those which change owing to the fact that the environment to which we must adjust changes.

(3) Those which differ because human beings differ and the same things affect them differently.

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In order to be effective the Law must have three functions:- (a) To facilitate the welfare and development of people. (b) To prevent crime and the immorality on which it is based. (c) To cure and eradicate the causes of crime and immorality.

The causes of crime and immorality are probably as follows:-

1. Lack of moral education. This needs to be remedied.

2. The decline in Religion in which morality is embedded and by which it is justified. There is, therefore, little self-discipline and behaviour is mostly automatic and conditioned. The behaviour of most people is controlled entirely by impulses or by the Law, convention, organizations and their superior officers. They have little experience of independent, considered action. Religion has to be re-established in a manner more suitable for the modern age.

3. Bad upbringing due to breakdown in marriages and families. Family life has to be protected.

4. Inadequate psychological, social or material resources within the family. The social conditions must be regulated to create better conditions.

5. Great differences in wealth within a community. This increases the conflict between desires, temptation, and expectation on the one hand and deprivation, frustration and resentment on the other. A more equitable economic system is necessary.

6. Unemployment, lack of interests and boredom. This requires a better distribution of work and systems of values and goals.

7. Excessive temptations by advertisement and propaganda. The culture itself stimulates greed, lust, violence, materialism, pleasure seeking and selfishness. These must be controlled. A Directory of Products, Services and Facilities could be produced to be freely distributed like Telephone Directories. All products would be sensibly described in it to allow rational choices. This could be issued by an Institute of Standards which tests the products. However, people who are not faced with temptations do not develop the capacity for resisting it. They will, therefore, much more easily fall victim to it when faced with communities where it is practiced. This applies also to vulnerability to swindles, lies, deception and intrigue. This can only be overcome by an educational system which sharpens the capacity for discrimination. In the meantime the existence of these malpractices in a society must be regarded as having this educational function.

8. Inadequate security systems such as surveillance equipment, identity cards, methods and procedures of recording transactions, accounting, inspections, size and organization of police forces and courts, the sophistication of technologies for detection and prevention, forensic sciences, safes, locks and so on. These are very costly and together with the energy and resources used in crime, diminish the effective wealth of a nation. If there were no criminals in the first place these security systems would not be required. But since there are criminals, their success encourages others. Criminals have become very clever in the organization, knowledge and the technologies they use.

The introduction of Identity Cards for all citizens may a good idea. These should carry a number, address, names of relatives, a photograph, signature and certain details about the person such as blood groups, DNA profiles and other distinguishing marks which would be useful in cases of emergencies such as accidents. They could be used for all financial and other transactions, admissions to political and other societies, passports and perhaps also as telephone numbers. These numbers could also be stamped on all goods bought by a person to confirm ownership. The tracing of criminals would then become easier, specially if the cards and goods are electronically traceable. A central record on every person could then be kept.

The main objection to such cards is that Governments and other institutions such as Banks, Hospitals and Police forces, would not only have information on each individual but also control over them. The individual on the other hand may remain ignorant of what information about him is affecting the judgment of others, and this information may well be false or out of date. There would be secrecy and no privacy. In fact, people already carry a great number of sources of identification and these are used by various agencies to gather information. It is necessary to rationalize and simplify this. There is no virtue in secrecy, though privacy needs to be safeguarded. Access to information must be regarded as a right. For instance, a person must have the right to know whether the person he is dealing with is a criminal. It should be a matter of law that any person who wants information on others must himself provide his Identity number and state a good and valid reason why he wants such information. Information should not be given without a valid reason and without informing those about whom the information is provided. Every individual has not only the right to know what information is in the records, but must be provided with a copy of it so that he can check it. Misuse of information should be prosecutable.

9. Inadequacies in the formulation and administration of the Law. In order to prevent injustice the rights and interests of the accused have to be protected. This often leads to injustice against the victims. But if the interest of the victim is held more important, then many people are falsely punished. Methods need to be developed for extracting truth by chemical or electronic mean. One cause of injustice is the length of time it takes between the crime, the arrest and the prosecution. Justice should be swift.

10. Some people have inherent genetic moral defects. In some societies these multiply and in others they are gradually deselected. But mutations produce new ones. The value system and organization should be such as to produce a bias against the reproduction of morally defective people. In some places sterilization or even extermination of criminals, mental defectives and inadequate, and even the poor has been carried out secretly. It has taken place in the U.S.A, and Hitler is said to have done this in imitation. This is not justice, not even Democracy. It is likely to create insecurity throughout the community and it is open to abuse. It is also a fact that in many cases it is not genetic but social factors which cause these problems and that the same genetic factors which cause malfunctions of one kind bestow advantages of another kind. From the Islamic point of view everything that arises has a function with respect to the conditions in which it arises. It is, therefore, likely that such actions will disturb the balance and have unwholesome side effects. It might lead to the killing of the elderly, the sick, the unemployed, and the poor for social reasons. Characteristics which may be useful in future may be thought of as defects and eliminated. On the other hand the care of the infirm stimulates and develops compassion and other virtues and leads to researches by which knowledge and techniques advanced.

11. Much damage has been done by writers and artists either directly through their art or indirectly by their way of life. Many of them are neurotic or morally defective, though the work of some of them possesses great aesthetic merit and wide appeal. Many of them, owing to their idiosyncrasies and unorthodox life styles have produced new ideas which have contributed to the progress of mankind. Censorship is, therefore, regarded as an evil particularly as this allows any person or group, having the power, to suppress anything which may be against their own self-interest or prejudices. There would have been no science if the Church of Rome had continued to have its way. Tyrants and Dictators use censorship to continued in power. Slavery would have continued to exist if those who opposed it could not have broadcast their ideas. It remains a fact, however, that governments still suppress information ‘ in the public interest’ which they themselves assess. There is a difference, however, between censoring what is known to be morally wrong and damages the community and that which is censored for some other reason. Pornography, the stimulation of perversions, depravity and sadism are cases in point. The incarceration of criminals is also a kind of censorship. The availability of factual information should never be hindered, though some which has no general public value, could be restricted to those who require and ask for it.

The Law is generally concerned with social order, the creation of mechanisms which channel human efforts. The number of moral rules is relatively small, but laws apply to specific cases, and more and more laws have to be created to deal with the new cases which arise, It has also to be formulated in an unambiguous manner, thereby reducing flexibility. This makes it ever more complex and ponderous. To deal with this requires experts and specialists, it gets beyond what ordinary people can know, understand or deal with. The citizen falls into the power of the lawyers, who are able to exploit this situation to their own advantage. It is, therefore, rigid, mechanical, ponderous, superficial and unintelligent. It often does as much injustice as justice. Good and evil are then defined in terms of the law rather than the law being defined in terms of good and evil. The means become the end. Considerations of formulation, procedure and other extraneous matters often become more important than justice or goodness. There is nothing morally wrong about driving on the wrong side of the road, for instance. But it is morally wrong to drive in a manner as to endanger lives. Thus the rule which requires driving only on one side of the road is a good one because it prevents the endangering of lives. If there is no one else on the road the rule is redundant. The Law should be regarded as advice or as a Guiding Principle rather than as an absolute and should be kept to the minimum. However, people are not equally intelligent and some have poor judgment or discrimination. The argument in favour of such laws is that the machine is more controllable, efficient and uniform, and makes fewer mistakes than human beings. Human beings, judges for instance, are unpredictable, make mistakes and are motivated by subjective and irrelevant factors. There is little doubt that apart from the apparent injustices of the law, even within the small amount of flexibility which the judges have been allowed, some glaring stupidities have been committed by them. It is, however, not beyond human capacity to invent methods which can overcome these defects. Three methods could be applied:-

(a) The development, study and application of ethics as a specialist subject.

(b) mutual consultation between judges and the need to reach a consensus of opinion.

(c) The development and use of certain Guiding Principles rather than laws upon which judgments can be based.

The following guidelines can be suggested:-

1. The citizen has the obligation (a) not to do harm to himself, others or the society in general (b) to prevent harm (c) to increase the amount of good. It is, for instance, an obligation to help someone who has been injured in an accident or to take a stone off a road where it may cause traffic accidents. Not to do so is evil.

2. The law is concerned with prevention of evil, the rectification of wrongs, and the promotion of the welfare and development of citizens.

3. Good and harm can be defined as physical, social or psychological. There are degrees of good or harm. Some are fleeting, some short term and others permanent. Though giving offence or annoying someone may be construed as doing harm, it is not always the case. It may be that taking offence, thereby preventing some good from being done is harmful.

4. That the harm is done deliberately, freely and knowingly. There is no provocation, coercion, excessive temptation or deprivation.

5. That the harm is greater than the good done.

6. That there were no alternatives which would decrease the harm done or increase the good.

7. That reasonable effort has or has not been made to acquire the knowledge, the ability and means to prevent the harm.

8. The harm may be done by direct action, word or behaviour e.g. by gesture examples or suggestion.

9. Harm may be done by an action, inaction, neglect, taking insufficient precautions, consent, approval, cooperation, help, collusion, use of position, responsibility, example, suggestion, provocation, instigation, encouragement. A person is culpable if he does not try to prevent evil, discourage it, report it to the proper authorities and help them.

10. The Rule should be formulated in a way which does not discriminate between people on irrelevant criteria. The Law does, of course, discriminate in that it punishes those defined as criminals. It must not, however, use irrelevant criteria such as colour, race, class or profession etc.

11. All agreements between individuals or communities which are (a) freely entered into (b) have mutual benefits and (c) are equitable must be honoured. Where these criteria are missing the agreement is void. People differ in circumstances, intelligence and relationships. It should not be possible for some to take advantage of others.

12. The interest of the minority cannot be sacrificed to that of the majority since every individual will find himself in some kind of minority and a general state of insecurity would ensue.

13. The case against someone is not frivolous, and the dispute could not have been settled amicably by reasonable people or through advice and help from relatives, friends, neighbours.

14. The Judge or lawyer can himself be sued for wrong Judgements.

15. Some systems of Law assume that an accused man is innocent until proved guilty. If it cannot be proved that he is guilty then he is innocent, Others assume that he is guilty until proved innocent. If it cannot be proved that he is innocent then he is guilty. The result is that only guilt or innocence need be proved. It also means that no distinction is made between the ability to prove it and real guilt or innocence. Guilt and innocence are what the courts decide, rather than the court designing their procedures to discover this . It is often impossible to retry a person declared guilty or innocent. This causes much injustice. In fact, we cannot know whether a person is guilty or innocent until proved, and this is not always certain. It is essential to have a verdict ‘Not proven’. One consequence of this is that it will be necessary to prove not only guilt but also innocence. A person may not be guilty of a specific crime but may nevertheless have contributed to it.

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The greatest problem in Islamic countries, apart from the lack of education and the tyranny and arrogance of those who have the power, wealth and authority, is the prevalence of bribery and corruption throughout the system from top to bottom. It is the cause of injustice and suffering and there is no likelihood that any progress can be made until this is eradicated. It should be a cause for a Jihad. After a well publicized campaign pointing out its evils and setting a dead line when severe measures will be taken, the penalty for it should be the same as for theft or even death. The whole population should be encouraged to report cases of bribery and corruption to specially appointed officers. These should sit in panels of three in offices all over the country. To prevent collusion these officers should be moved from time to time.

Many Muslims though pious from the ritualistic or theoretical point of view do not appear to see, understand or apply morality to their behaviour. Indeed, one merely has to look at the conflicts between Muslims in part of the world that they do not even realize that, apart from the stupidity, futility and injustice involved, one of the worst sins in Islam is killing other Muslims. A campaign to improve the general morality of the people through literature, lectures and gatherings and by the use of educational techniques should also be undertaken in association with the above.

Islamic Law often seems harsh and barbaric from the western point of view, e.g. the cutting off of the hands of a thief. The following reply may be given:-

1. Islam is not interested in emotive, sentimental and wholly subjective terms such as barbaric, primitive, uncivilized, old fashioned. These have no value unless they refer to something which is bad or could have been better. It is perfectly possible to show by selecting appropriate data, that those who use such terms for others are suffering from the same condition themselves in other spheres. If the term, barbaric, is to be used as being equivalent to having a low morality, social responsibility or intelligence then theft and other crimes are themselves barbaric. The prevalence of these in a society marks it as barbaric, Incarceration in prisons for long periods of time is also barbaric in that it is soul destroying.

2. The severity of the punishment which a society gives to its criminals is a reflection of, and reflects, the degree of disapproval with which it regards that crime. This also has an educational affect in sustaining that disapproval.

3. In Islamic Law a man who is driven by necessity and desperation is not considered to be a criminal. It is, therefore, the duty of that Society to see that there is no such desperate need. Generally, the first offence is not punished so severely. The severer punishments are reserved for the habitual criminals. If the legal system is effective then no habitual criminals should arise, and the punishment abolishes itself.

4. Since everyone knows what the punishment for the crime is, it is up to the criminal not to invite it. It can be presumed that the criminal has accepted that his crime is worth the risk of the punishment. There is no compulsion on the criminal that he should choose the punishment.

5. Forgiveness is taught in Islam. It is, therefore, quite possible to alter the severity of the law. But forgiveness and leniency must not be allowed to lead to the proliferation of the crime. To allow this to happen is not compassion since it harms many people. Whereas compassion and charity are certainly taught in Islam, wisdom is also necessary. Without it charity turns into its own opposite.

The critics of Islam tend to base their judgment on a Christian outlook where charity and love are regarded as the only virtues. Allah is seen as a God of Love, but the other aspects, as the God of Justice and of Truth are entirely forgotten. Jesus confined his teachings to the spiritual sphere, leaving the worldly affairs to the unguided whims of the secular authority. Islam agrees that this attitude has spiritual benefits. But it is not always appropriate in the worldly or secular field with which the Prophet Muhammad was also concerned.

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