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Old Friday, November 16, 2012
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Role of Morality in Islamic Legislation
(Remaining Part)

The representative of Allah’s legal sovereignty are his chosen servants-the Apostles. He has revealed His commands to His Apostles through His special Envoy Angel Gebriel. The Apostles then have conveyed His message and explained it to the people. If a thorough study of all these commands is done one point comes out quite clear that every Apostle has put more emphasis on the point that:
  • Fear Allah and obey me.
  • If ye do love Allah follow me, Allah will love you.

In Holy Quran Allah has made this point abundantly clear that if someone claims to obey Me, he should follow My Apostle, which would mean that he loves Me. In other words, if someone does not follow His Apostle, it would automatically mean that he does not obey his commands. Thus, obey the Apostle and following him becomes obligatory for every Muslim. Without doing so, obeying Allah or loving Him is not comprehensible. Allah says in the Holy Quran: “We sent not an Apostle, but to be obeyed in accordance with the will of Allah”. In other words, obeying the Apostle in fact is obeying Allah. Thus there is no other way of obeying Allah except through obeying the Apostle. It is also worth mentioning here that Allah has not ordained the people to obey the Apostle in some things and disobey him some others. He has ordained the people to obey him entirely in all the walks of life. The Apostle has to be followed in all matters.

“But no, by thy Lord they can have no real faith until they make you Judge in all disputes between them, and find in their heart no resistance against thy decisions, but accept them with the fullest conviction”.

Thus, the legal sovereignty of Allah means that His Apostle should be obeyed and his decisions considered as final and binding, there should be no compromise on this point.

In the western state model, law is there essentially to protect what is regarded by the state to represent citizen's rights. It provides a safeguard against exploitation and corruption protects the weak from the strong and maintains public order and decency. It is not for the law to legislate or interfere with personal morality as morality is relegated to the private life of the individual. Even public morality must not be enforced by law, though this is not always practical and the law, almost unwillingly, has to adopt a moral attitude. In so doing, the secular state has virtually no choice. If it considers religion as a personal matter and accepts the plurality of moral values, to legislate to satisfy the standards of one group could be detrimental to the other and to legislate to a perceived common morality acceptable to all (based on natural or human values) would be an administrative nightmare, if possible at all.

The complexity of this problem is demonstrated by the well known Devlin-Hart
debate in which Lord Devlin supported the legislation of moral crimes (even when they may not necessarily be immediately injurious to society), came to completely unacceptable conclusions such as, the final arbiter as to what constitutes a moral value would, in the end, be left up to the thinking of the legislature. In this way, morality, one of the most powerful forces that has shaped civilised society, is almost unused by the modern secular state. It is a well-known fact that Islam has a value-system applicable to government and politics. It has a complete code of life and as a consequence, it provides man with theoretical and practical guidance covering all aspects of life, of which the political aspect is but one and focal point. The world, in its view, is a place of preparation of the soul for the hereafter and that this preparation fulfils the ultimate purpose of the creation of man. One cannot therefore consider parts of worldly life as having no meaning with regards to that final purpose. Life does not end with death but continues towards higher and higher elevations. The importance of society and laws governing social interaction in Islam therefore becomes obvious. The ruling of such a society requires Islam to provide guidelines for the establishment of a just administration of the state mechanism. Shah Waliullah, in the Hujjat Allah Al-Baligha points out that the
Hadd punishments were applied to offences of three kinds;
  1. Those subversive of public order and disturbing to the community
  2. Such as, if not prevented early, could be repeated so as to become habitual
  3. Such that the victim could not get redress for him.

For disloyalty and sedition, the most severe punishment was prescribed and mitigation was prohibited. For theft, the punishment was prescribed in the Holy Qur’an, namely, hand-cutting, the offence being one easy to commit, and therefore apt to become both habitual and widespread. The Holy Prophet (peace be upon him) as a lawgiver is reported to have imposed this punishment only where the value of the stolen property was more than a quarter of a dirham. He also laid down the principle that for applying this punishment, the taking must be from actual safe-custody, or under protection, besides being of the requisite value. So, for plucking fruit from a tree or taking animals that were straying in the hills, lesser punishments were given, including a fine of double value of the thing taken. Cases of crimes which cannot be required by the victim are outraging the modesty of respectable women, highway robbery, and false imputation of unchastely, and for these the Hadd punishments were halved. The Holy Prophet (peace be upon him) said-‘if a female slave commits offence, beat her; if a male slave commits theft, sell him’. Another tradition is to the effect that when a complaint was made against a slave by his owner, that he committed theft, the Holy Prophet (peace be upon him) said ‘both belong to you; one is merged in the other’.

There are traditions also with reference to the Hadd punishment for adultery that qualified mitigation was applied, according to the facts. With regard to intoxication through drink, the Holy Prophet (peace be upon him) strengthened the Qur’anic injunctions by declaring it to be Haram. He ordered the punishment of forty lashes to a drunken person. Here too, the offence is one easily committed, and apt to become habitual so that full severity in punishment was justified. Later, it was increased to eighty lashes. A very impressive instance of the Holy Prophet’s (peace be upon him) inclination towards mercy is to be found in the tradition that when a man brought before him, as an offender who had incurred a punishment of hundred lashes, proved to be a sick and a cripple, he said ‘take a branch with a hundred twigs and give him one blow with it’.

During the period when the Holy Prophet (peace be upon him) was the sole arbitrator of his period, he enlarged the jurisprudence of Islam in several directions. The record of his decisions and dicta is contained in the Ahadith. It was he who laid down the rule that in the trial of suits, the obligation of producing evidence to support his claim is on the plaintiff; the defendant must take an oath that his case is true. The reason given was that if relief were always given to plaintiffs on evidence alone, unjust result could follow. Another rule that he laid down is that in cases of doubt, the antecedents of witness should be checked. Supplementing the rule of the Qur’an that one who has proved to have made a false charge of indecency against an honourable woman is forever disqualified as a witness in judicial proceedings, the Holy Prophet (peace be upon him) disqualified also persons who have committed breach of trusts or adultery, as well as those who were enemies of a party.

Rules were laid down as to the taking of oaths-the formula of words, the time and the place. The words should bring to mind the total power and the total knowledge of Allah; the time should be the ‘Asr prayer; in Mecca, the place was within the precincts of theKa’ba, and Medina, at the mosque ofTayyaba. The Holy Prophet (peace be upon him) greatly disapproved litigious persons saying that in the view of Allah these were the most troublesome, but those who avoided contention were praised as magnanimous. False evidence and false case were regarded with a very severe eye; they show disrespect to Allah, who loves not trouble-maker and desires that social order should be maintained. The holy Prophet (peace beupon him) said ‘he who makes a false case to get another’s property is not of my people; he should find his place in hell’. A judgment does not make that lawful which is itself unlawful and the Holy Prophet (peace be upon him) added great emphasis by saying:

“Remember that I am like one of you. If a clever litigant, by artful words, convinces me so that I decide a case in his favour, right if a brother Muslim, such a litigant will go to Hell”.

In his decisions, the Holy Prophet (peace be upon him always up-held the principles of public good. Thus in a case of damage to a garden by a stray camel, he laid down that if it happened in the daytime when garden-owner should have guarded his property. There was no blame to the camel owner, but if it happened at night, when the camel-owner should have kept his animal secure, the camel-owner was liable.

The maxim ‘al-khiraj biz-zaman’, meaning that the profit from a thing belongs to him who is responsible for its existence, from which is derived the corollary ‘al-uzm bil-ghunum’ meaning he who pays for a thing is entitled to the benefit from it, comes from the Holy Prophet (peace be upon him) himself, and in his time was laid down the salutary principle that all transactions that pre-dated the advent of the Islamic state to be left as they were, untouched by the new order of things. The rule favouring the person in possession, where the ownership of property is involved, and the evidence is either doubtful or equal on the two sides was applied by the holy Prophet (peace be upon him) in a case be decided. With regard to property ofwhich no owner could be found, he laid down that its disposal should be governed by the element of benefit to all Muslims as well as to the thing itself, and secondly, by the element of prior possession; failing these, by the casting of lots. He held that contracts should be enforced to the letter, unless anything agreed makes that Halal(lawful) which religion declares Haram(unlawful). Where the parties are not agreed as to the terms of a contract, it should be declared void, and in a particular case, the holy Prophet (peace be upon him) said-‘When seller and buyer are not agreed, and the word of neither can be accepted, if the thing allegedly sold be there, the word of the seller should be accepted, but if the buyer does not agree, the contract should be void.’

Many cases are recorded in which the Holy Prophet (peace be upon him) laid down canons of justice of general application. The paternity of the child of a slave-girl being contested, one party claiming that his brother, when dying said the child was his and should be looked after his family, and the other declaring, it is the child of my father’s slave, and was born in my father’s house, the Holy Prophet (peace be upon him) pronounced as follows: ‘the child belongs to the owner of the house in which it was born; for the adulterer there is stoning’. He decided that in a built-up area, where trouble had arisen through the paths encroached upon by builders; the minimum width of the path should be seven cubits; so a public nuisance was removed. In a case where a person had cultivated land belonging to another tribe than his own, without authority , the holy Prophet (peace be upon him) decided that the man had no right to the produce, but should ask for payment of his expenses of cultivation. He laid down the principle in a pre-emption case, that the ‘right of pre-emption exists only so long as partition has not been effected, so that rights remain joint; when every field has been demarcated, and each owner has his separate way, no right of pre-emption remains’.

Kitab ul Allah and Sunnah of the Prophet may the blessings of God be upon him considered all these deeds, practiced and acted upon. He (PBUH) made the acts of worship precise for them by legislating the causes and time, conditions, pillars, proper behaviours, the ruling leading o their invalidation, the special consideration, the strict interpretations, he (timely) performance of and making-up for missing obligations. He PBUH) specified the acts of disobedience and legislated the ruling of Hadd punishments, deterrent punishments, and atonements. Islamic values are absolute and morally binding upon the believers. As justice is very near to piety and righteousness therefore they should not transgress he limits of justice.

Islam is brought about by a conscious resolve on the part of a politically free nation to renounce all claims to sovereignty in favour of God Almighty. Islam considers no discrimination whatsoever on ground of race or colour and is not bound by any linguistic or geographical barriers as such ensures the Islamic values throughout the world. Allah is the legal sovereign. His law (the Holy Quran) is the final and binding argument. His Apostles must be obeyed and loved by following them. Their guidance is another landmark of Allah’s legal sovereignty.
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