Islamic and Western Law

Question:-

There appears to be, among Western Politicians and others, much opposition to and even fear of the establishment of Islamic Law. In what way would you say Islamic Law differs essentially from Western Law?

Answer:-

Firstly, Islamic Law is a comprehensive Religious Law which has spiritual, mental, social, physical, economic and environmental aspects and applies to the community as well as individuals. Secondly, it is part of the whole Islamic system, its teaching, community and practices and is understood and has application in that context. It applies to Muslims only. Other communities are judged by their own laws. Thirdly, a distinction must be made between the theory that establishes an Ideal towards which communities may strive and the actual implementation of the Law which will depend on social circumstances and human limitations. Here we can only deal with the theory and its consequences. The following inter-dependent points can be discerned.

(1) Islamic Law recognises Allah, the Creator and Ruler of the Universe as the source of the Law. It is, therefore, objective in the sense that it is not made through human whim, prejudices or self-interest but is based on values that are inherent in creation and in human nature. However, the interpretation and application of the Law still depends on human beings. The source of the Law is the following in order of priority:- Allah, Quran, Hadith, Scholarly Authorities, Discussion in Assemblies, Judgements of what is in Public Interest, Established Conventions.

Western Law does not recognise God and, therefore, leaves the creation of laws entirely to human beings. It is supposed that this law arises from a social contract and general consent. In effect, it depends on those who strive for and acquire power in the community, and on the opinions, prejudices or self-interest of power groups, and on the expediencies, vagaries and shifting balances of the power struggle. These factors have also affected Islamic Law but cannot be said to be consequences of the Theory.

(2) Islamic Law is based on respect for the person and his autonomy. It is concerned primarily with spiritual welfare and development. The social system is it forms meant to serve the spiritual system and the economic system is meant to serve the social system. The Western system is the exact reverse of this. The spiritual conditions serve the social conditions and the social system serves the economic system. This has allowed the West to become economically dominant. Biologically the physical needs of people are more urgent than their social needs and these are more urgent than their psychological or spiritual needs. This can be seen in the development of children and historically in the development of civilisation. But the order of value is the reverse of this. That is, as physical life ends in death, it has no value in itself but only in terms of its function within the society and the society has no value in itself but in its function within the Cosmos. In general the physical needs must be satisfied to a certain degree before the socio-sexual needs can be attended to, and these must reach a certain degree of satisfaction before the spiritual values can be pursued. However, some people can sacrifice the lower for the higher and this has facilitated human progress. Else it would have been trapped in a vicious circle at the same level. On the other hand social conditions have also caused arrested development through fixation at a lower physical and material level.

(3) Islamic Law recognises the Sacred and requires people to live with mutual respect of each others faith, values and feelings. Western Law does not, but honours and protects freedom of speech. Islamic Law distinguishes between freedom of discussion, which is allowed, and slander which is not. Western Law is self-contradictory about this. The controversy is not so much a question of freedom of speech of insults and defamation. It is not about preventing sober reasonable discussion, but of one sided prejudice and hatred. There are certainly laws against libel and defamation and provocation in the West and many laws that enforce secrecy.

(4) Islamic Law is based on the Justice, Compassion and Truth which are attributes of Allah. Islamic Law is based on the Justice, Compassion and Truth which are attributes of Allah. This means that anything that promotes or facilitates injustice, hatred or falsehood should be removed or discouraged and that action and policies should not be based on prejudice, whims or narrow self-interest.

Western Law is concerned with social order and peace so that people can act as freely as possible in order to fulfil their desires. But there appears to be some confusion about the notion of freedom. Freedom is good when it promotes the good, not when it leads to evil. That is why laws exist. Human beings are interdependent and do affect each other and the freedom of one can be an obstruction for another. But though it is a principle in the West that a free market should exist and that this demands that the supplier can supply whatever the consumer wants, there are contradictions in that those who deal in drugs are persecuted though there is a demand for it. In most areas it is the suppliers who determine what the demand should be through propaganda, advertisement, price management, built-in obsolescence and political means. In general Western Law favours businesses against consumers, the employers against the employees, the powerful against the weak. It is perfectly possible for the wealthy and powerful to flout laws by purchasing the services of clever lawyers. There is a great amount of fraud, swindling, exploitation, misinformation, oppression and general injustice and misery about which the Law does nothing. Islamic Law does not allow people to use their advantages to exploit the weaknesses or disadvantages of others. Much that is common in Western Political, Commercial or Cultural practices can be regarded as crimes or unethical in Islam.

(5) Islamic Law balances duties, rights and powers as these are inter-dependent. Western Law tends to place its emphasis on human rights. This tends to create an irresponsible and unbalanced attitude and an unbalanced society. For instance, Western Law gives people the right to earn a living in any way they can however useless or harmful the means, services or products. Islam requires that the rewards should be proportional to the good done.

(6) In Islamic Law everything is allowed that is not expressly forbidden and not the reverse. This is not always true in Western Law. In general it is not permitted that something should be forbidden that the Quran allows (5:87). However, Islamic Law distinguishes between:- The Virtues (Marufat) are classified as :- (i) Mandatory (Fardh and Wajib) (ii) Recommendatory (Matlub). The Neutral (iii) Permissible (Mubah). The Vices (Mankurat) are classified as:- 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.

(7) Islamic Law is based on, or should be based on Morality and the teaching of Morality, and therefore on the Spirit of the Law and human conscience. There is no distinction between what is criminal and what is immoral in Islam as there is in the West. It is Allah who is the final judge and He judges by intentions. The Law does not create a State as a rigid formal organisation imposed on the community and controlling it. The formal Law is an expression of the general communal morality based on understanding of the spiritual reality. As Western Law does not recognise God and conscience, it is base on exact formulation and the letter of the Law and on the exact procedures. Owing to the need for unambiguous formulation, Western Law is inflexible and cannot accord with variations in conditions as justice demands, and open to loopholes that can be taken advantage of by clever lawyers and those with money and power who can employ them. In order to deal with an increasing number of particular cases the Law becomes very bulky. This together with the technical language and intricate procedures that have to been developed takes the Law out of the hands of ordinary people makes the Law a matter for expert lawyers. This allows unscrupulous people to take advantage and lawyers to exploit the vulnerability of people. It makes Justice so expensive that many cannot afford it, allowing injustice to flourish. For others the cost is itself a punishment for innocence or an investment for some Profit. In any case most cases tend to be gambles in which one has to assess what the chances of the verdict for or against are likely to be.

(8) Islamic Law is, or ought to be, minimal because coercion and restriction is abhorred and personal responsibility is encouraged. It exists mainly as a reminder, social guidance, to promote unity and to counteract regression. It refers mainly to general cases rather than particular ones. It is, therefore, possible to judge and bring to court any problem or conflict that has not been specifically described before. This can be added to the body of Law. For instance, the general notion of Justice can be applied to judge a case. Arguments in Islamic Law can or should have four levels:- (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 depending on conditions.

(9) In Islam Justice has a personal as well as a social function and needs to be done openly in public. No secrecy or secret conspiracies are allowed when matters concern the Public. This is not the case in Western Law where much is done under official Political or Industrial Secrecy or in “Private Chambers” and agreements are made between the lawyers. This allows manufacture or suppression of information and evidence and the manipulation of public opinion. Thus, many misdeeds and much crime is hidden and done with immunity from interference by Law. It is true that those who carry out the Law, Judges and Police are required to be independent of Political, Commercial or Institutional control, but this is not generally the case as pressures can be and is applied by those who have power, wealth or prestige. Though this can and did happen also in Islamic Law, it should not. The Judges take their Law from independent studies, assessment by their peers and reputations based on performance. They acquire their authority from the community and not the State.

(10) Western Law often encourages the spread of evil and immorality. For instance, it interferes in Families by removing the mutual rights and ignoring the mutual duties of the spouses, and takes away the right of parents over their children, particularly of fathers, ignoring the duties, and allows doctors, social services and teachers to conspire with children against parents. So we get unruly, delinquent, rebellious, loutish behaviour without discipline, values, or respect for anything and increasing neurosis, vandalism, psychopathy, crime and social disorder. There is also a tendency to support employers against employees and business and commercial interests against the citizen, corporations against individuals, the wealthy, powerful and prestigious against the ordinary, and the rights of miscreants against the victims. People like drunken drivers who kill pedestrians get away with their crimes because drunkenness is not regarded as a crime despite the fact that it is responsible for many.

(11) There are certain injustices within the conduct of the Law that need to be removed. But though this is implicit or compatible with Islamic teachings, it has not always been implemented. (a) The cost of legal procedures. This ought to be free for all. (b) That persons can be falsely accused without consequences. False accusers should be punishable. (c) That there are normally just two verdicts, either guilty or innocent. There should be a third possible verdict, namely unproved. In many cases there is doubt and things should be left for further investigation or until more is known. (d) Different victims of the same crime are affected differently according to their circumstances or nature. Some people are more sensitive than others and some have greater problems or more money than others. Justice demands that these facts and the desires and needs of the victims should be taken into consideration. (e) As the miscreant causes loss or injury to the victim, he should be required to make compensation to the victim. (f) Juries are not experts in the law or in judging people. They tend to have various levels of knowledge, intelligence, blindness, prejudices, agendas, self-interests of their own. It is necessary to have wholly independent and impartial judges who have expertise in assessing human beings and the professional fields to which the cases refer. (g) Solicitors represent each side of a case in a confrontational manner, but they are interested only in winning, either by proving guilt or innocence, not in finding the truth. Though solicitors can be employed to present cases in the best possible manner, the people concerned must also have freedom to put their case. It should be up to the judge to question them and the witnesses and to instruct those concerned to seek out further relevant information. (h) The wheels of Western Law turn very slowly. It takes long for a case to come to trial and the court procedures are long drawn out. This allows evidence to be gathered, but also for it to be invented, concealed, distorted or forgotten. The anxiety, stresses and tension involved is itself a punishment for both the innocent and the guilty. It is necessary that Cases should come swiftly before a judge.

(12) Islamic Law is harsh in many respects. This is because it also has an educational aspect and is a Guidance The harshness reflects how much something is disapproved of, whereas mildness, as some Western Laws comparatively are, reflects how much the action is tolerated. It is also evident that harshness has a greater discouraging effect. Therefore, the punishment abolishes itself. The harm done by the punishment is more than neutralised by the good it does in removing the evil. Conversely, if the evil is allowed to spread owing to the mildness or uncertainty of the consequences, then the unwise compassion this turns into cruelty. In the West some Islamic Laws are regarded as barbaric. But it can be argued that those who tolerate or condone these evils and allow them to spread are even more barbaric seeing that they do care how much suffering these cause.

Another Muslim adds:-

Islamic law mandates liberty for all humanity and binds those who exercise sovereignty to establish, preserve, and defend liberty for every human being, and forbids coercion of any kind.

Islamic law preserves the sovereignty of federated communities and does not intrude into their affairs or impose Shariah law upon them. Islamic law sharply demarcates its jurisdiction and is applicable only to Muslims.

Western law possesses none of these characteristics. Western law preserves all the historical prerogatives of the autocratic dictatorships of kings and princes, by pretending to bestow coercive power which no human being has any right to exercise, on all the people, while vesting those powers exclusively in an elite class who wield them, in the name of the people, to their own aggrandizement.

"Free Woman" asks:-

How are believers guided by Mohammad as quoted in the following Hadith? "I was shown hell-fire and the majority of its dwellers were women who were ungrateful" (Sahih Bukhari 1:28)

Comment:-

That is either a factual statement or it is meant to teach something or both.

I presume it is meant to promote gratitude.

“Free Woman”:-

How are believers guided by Mohammad in the following Suras? 4:34, 2:222, 2:223 47:4, 24:2, 3:4, 5:155, 7:167, 41:43, 6:18, 9:29.

Comment:-

These points keep coming up and have been dealt with several times.

As you call yourself "Free Woman", I presume you are not a Muslim and do not accept the Quran as the Word of God or as guidance. That being the case it does not apply to you and you need no explanation, especially as we can see that you have read the Quran with a negative attitude and out of context.

However, here is a general explanation:-

Someone is "Free" if they conform to their nature as made by Allah, otherwise there is inner and outer conflict that traps a person. This is regarded as a disease, caused by wrong social and cultural conditioning. Islam is concerned with freeing people from this prison so that they can fulfil themselves. That is what the instructions in the Quran are meant to do and that is how they are to be interpreted.

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