Law

 

Question:-

Why do Muslims want the Shariah Law? What is wrong with the Secular Law that seems to work well in the civilised world? Is it not Democratic giving human beings control over their own affairs instead of being imposed on them by a dictator?

Answer:-

Islam is centred on Allah, the fundamental self-existing Reality and creator of all other things. Law from an Islamic point of view, refers to the natural order, that created by Allah. The belief in Allah is regarded as the fundamental because without it there can be no sense of objective truths that transcend human opinion. Human beings are part of a world on which they are dependent. Their welfare and development depends on adjustment to Reality. They will suffer and be destroyed if they flout Reality. However, they are Agents of Allah, having His spirit within them and this gives them certain powers of creativity but also responsibilities. The belief in Allah, therefore, also provides them with the motives and value systems that are compatible with their own nature and the Universal process.

The Islamic Law, the Shariah is based on the faith in and awareness of Allah, It is, therefore, based on objective principles such as Truth, Benevolence and Justice, that are the attributes of Allah. It is comprehensive in that it deals with all aspects of life in a self-consistent manner. It requires:-

“And give full measure (or judgement) when you measure out (or judge), and weigh with a right balance; that is better and fairer in the final determination.  And follow (or pursue) not that of which you have no knowledge; verily, the hearing, the sight, and the heart, of all of these it shall be asked (to give an account).  And walk not on the earth arrogantly; verily, you can not rend the earth asunder, nor can you stretch to the height of the mountains.” 17:35-37

Western Law is man-made and, therefore, subject to human limitations. It depends to an extent on whims and prejudices and on the outcome of a power struggle between competing parties. It is concerned mainly with control of the social order and not with any objective principles such as Justice, Truth or Compassion. It is not concerned with social or psychological welfare and development of people, but it is concerned with wealth and economic matters and now increasingly with environmental matters. Though it is loosely based on moral principles derived from the religious traditions, religion that concerns a comprehensive way of life, plays little part in the Law, except in so far as some of the legislators might have religious scruples. It is based on expediency and not any value system. If human beings have the right to judge and make laws, then the judgement or opinion of any individual is as good as anyone else’s. The only way anyone can be expected to conform to the laws made by others is through coercion by force.

But there is a tendency to justify the Law on the grounds that there is a social consensus to abide certain rules. This consensus, it is asserted is provided by the Democratic process. This view, however, cannot be sustained. People are born into the community the rules of which are imposed on them. They are not asked to consent to its rules and there is no reason why they should. The only reason why a social life exists is because people have a built-in need for self-preservation, sexual and social needs for family and friends that involves impulses such as sympathy, fellow-feeling and cooperativeness and they have a self-extensive drive that gives a desire for self-improvement and growth. Anything that goes counter to this disrupts the society and brings about a social reaction designed to remove the disrupting factor.  All this is according to Natural Law that transcends any individual human being. That is to human beings do not create this Law but are a product of it. They are imbedded in and have arisen in adaptation to a natural environment with which they interact where certain universal laws operate.

When human beings, owing to partial knowledge, prejudice or fantasy invent rules and organisations that do not conform to these Natural Laws but obstruct their working, then there will also be a Natural Reaction that leads to various unpredicted and uncontrolled psychological, social, and even environmental malfunctions. People will try to deal with these malfunctions, but owing to inadequate knowledge, wrong motives of lack of capability they will tend to make things even worse.

The Shariah in so far as it is based on the Quran and Sunna, is not detailed but compact. It deals mostly with generalities and is, therefore, flexible because the details can be provided according to circumstances by scholars and those appointed as Judges. In fact, it is recommended that there should be a minimum of laws. Everything that is not expressly forbidden is allowed, and everything not expressly made obligatory is compulsory, though some things are disapproved and others are approved. No one is guilty unless proved to be so, privacy is protected, gossip is forbidden and false accusations are prosecutable offences.

The Shariah because it requires individual responsibility, depends mostly on the acceptance of those who have faith rather than on coercion.

“O you who believe! You have charge of (or guardianship of) your own souls; he who errs can do you no hurt if you are rightly guided. Unto Allah will you all return, and He will declare to you the truth of that which you did.” 5:105

“O mankind! There has come to you the Truth from your Lord, and he who is guided by it, his guidance is only for his own soul; and he who errs, errs only against it; and I am not a warder over you." 10:109

“He who accepts guidance (or does right), accepts it only for his own soul: and he who errs, errs only against it; nor shall one burdened soul bear the burden of another. Nor would We punish until we had sent a Messenger (with warnings).” 17:15

The result of this has been that because in modern days, under the worldwide dominant influence of Western Secularism religious faith everywhere has eroded. Muslims have largely abandoned the Shariah. But because of the Shariah Law, Muslims have not been able to develop a replacement Secular Law either. The suffering of the Muslims in Afghanistan and Iraq and elsewhere can be attributed to the abandonment of the Shariah. Indeed many who, though by name are Muslims, do not want the Shariah Law because it would interfere with their desire for self indulgence and pleasures such as gambling, usury, fornication, taking alcohol and drugs, indulging in immoral and irresponsible entertainment, enterprises and life styles. In the West, where the foundations lie in Christianity, the religious Law was also abandoned despite the words of Jesus that he had come to fulfil the Hebrew Law not to abolish it and that not one title of it could be abolished. Instead Christian nations adopted the Roman Law which was concerned with social order and control and not spiritual development. This is also a reason why Islam came to restore the religious Law.

In the main Secular Laws are not incompatible with Islam because they are based on certain common human characteristics such as the abhorrence of murder, injury and theft – we all have an instinct of self-preservation, desire to live and wish to defend ourselves.

We see that Western law concerns itself with the physical welfare and property of individuals. Unlike the Shariah, it seldom concerns itself with the maintenance and welfare of families and not at all with the spiritual or psychological development of mankind. True that it has instituted universal education but that has a commercial purpose. The aim is mainly to provide a good labour force for industry, though sometimes it is to enable individuals to obtain lucrative careers, and often it is to create a competitive advantage on the international market. It is well known by now that that human nature depends, (a) apart from inherent genetic factors, (b) on the physical and cultural environment, the former being modified by the latter, and (c) also on the efforts people make and this depends on the value system that exists in the community. But even the genetic constitution of the people depends on the selective pressure exerted by the social, physical and cultural environment. The Social Cultural conditions not only affect the Psychological and Spiritual conditions but also the whole Physical Environment, the planet, with which humanity interacts, on which they depend and which they have transformed. It is not, therefore, difficult to see that the educational environment refers to much more than the class room and the colleges. The Family is a particularly important part of that total environment, though it too is dependent on the rest of the culture. It is, therefore, absolutely necessary that the law should take account of this.

It is, of course, true that all laws, whether it is a man made Secular Law or the Religious Law based on objective sources such as the Shariah, must be interpreted and carried out by human beings and this means that it will suffer from the limitations that human beings have. In particular the effectiveness of the Law depends on the miscreant being found out, caught and successfully prosecuted and punished in a manner that will deter him and others. But the miscreant takes great precautions against all this. It is not possible to get a social system where virtue - Truth, Benevolence and Justice prevails without having a system of moral values that is (a) propagated by the educational system, (b) permeates the culture, and (c) is incorporated in the thoughts and lives of the people. The Shariah is embedded in such a system and it is an integral part of it to promote these moral values. It provides and promotes a comprehensive world view, a noble self-image as an agent of Allah, a sense of responsibility and purpose. The Secular system does none of these and is independent of Morality. This means that people can calculate whether a course of action is worth the advantages or disadvantages, the reward or punishment, and whether something can be done to increase the probability of gaining one and avoiding the other.

There are, however, a number of injustices in Western Law that are also quite widely recognised as wrong. Here are just a few of them:-

The Law defines a number of human rights, but no equivalent duties and obligations. Whereas people are allowed to set up businesses to earn their living however they can, there is no obligation to supply a useful service and ensure that the rewards are proportional to the usefulness of the work.  The Law deals with particulars and depends on the letter of the Law and not on the spirit which leaves out much that is recognised as morally wrong or right. The Law is slow so that contrary to the demands of Justice, much time passes between the accusation, the judgement and the punishment. The accused person, for instance, may be innocent, but is punished by the strains of uncertainty. The law tends to support corporations against individuals and the rich against the poor. It is often costly to get justice so that not all can afford it, and it is often a gamble not worth taking because costly clever lawyers can outfox cheaper less able ones and take advantage of loopholes in the Law. Much miscarriage of Justice takes place because of the technicalities and procedures of the court. Those found guilty by the courts are not always guilty and those acquitted as innocent are not always so. Governments, their agencies, specially the secret ones and the rich and powerful are able to manipulate the legislators, the police, courts and officials to cover up, suppress, distort or manufacture evidence according to their convenience. This is less likely to take place in a different cultural and organisational environment. Sometimes these misdemeanours are justified on the grounds of patriotism. But patriotism can be regarded as one of the worst vices as it implies narrow loyalty and contradictory standards by which actions that would be regarded as criminal when done against citizens of one nation are regarded as virtuous when done to the others and actions regarded as good  are regarded as bad. This promotes psychological and social disintegration. Patriotism is a primitive and harmful emotional attachment. The supreme loyalty should only be to Allah, and therefore, to Truth, Benevolence and Justice that are the attributes of Allah. The second loyalty should be to the community of those who have the first loyalty.

There is a tendency to encourage crime in that the criminal is protected from retaliation by the victim. A burglar who breaks into a person’s house to steal should be presumed to take the risk that his act involves. But according to Western Law if the householder injures the burglar, then the latter can sue the former and the law will punish the householder. The Law does not allow natural retaliation or take into consideration the circumstances and the provocations.

The Law has taken away parental responsibility and given children rights over their parents. The parents are forbidden by Law to discipline their children and the State requires the children to be taken into schools. In some places children can sue their parents and even divorce them. On the other hand, teachers are also prevented from disciplining the children that the parents failed to control. In fact, children of attack teachers and the parents of unruly children also often attack teachers. School teachers and strangers are prevented from comforting small children in distress without parental consent, but school teachers, social workers  and doctors can conceal from the parents the immoral behaviour and pregnancy of their child and even recommend and implement abortion in secret.

The undermining of the Family in these ways, and by condoning fornication and adultery, is also done by the interference of the Law between the spouses. Their responsibilities towards each other and their rights over each other have been eroded. The result has been increasing irresponsibility of the spouses with respect to each other and their children. In particular the balance between the spouses has shifted because the fathers have little rights with respect to their children compared to the mothers.

 

The Islamic Shariah applies only to Muslims. It recognises people of other faiths and even if they live in a predominantly Muslim country, it allows them to be judged by their own laws. If a nation is to be truly Democratic then they must certainly be ruled by laws that they consent to.

 

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