LAW has existed in human society from time
immemorial. Every race, every region, and every group
of men has made some contribution in this sphere. The
contribution made by Muslims is as rich as it is worthy
and valuable.
[B]Science of Law[/B]
301. The ancients have all had their particular laws, yet
a science of law, abstract in existence and distinct from
laws and codes, does not seem to have ever been thought
of before Shafi’i [1] (150-204 A.H./767-820 C.E.). The
work of this jurist (Risalah) designates this science
under the expressive name of usal al-fiqh (Roots of
Law) from which shoot the branches of the rules of
human conduct. Since then, this science which was
calledUsul al-Fiqh among the Muslims, treats together
with the philosophy of law, sources of rules, and
principles of legislation, interpretation and application
of legal texts. These latter, i.e., laws and rules are called
furu' (branches) of this tree. Apparently these authors
were inspired in the choice of the terms by the Quranic
verse (14:24-25): "the example of a goodly word is like
a goodly tree: its roots set firm, its branches reaching
into heaven, giving its fruit at every season by
permission of its Lord."
[B]Intention in Act[/B]
302. Among the novelties in the domain of fundamental
notions of law, it may be pointed out that the importance
given to the conception of motive and intention ( niyah)
in acts. This notion is based on the celebrated saying of
the Prophet of Islam (d. 632 of Christian era): "The acts
are not (to be judged) except by motives." Ever since,
an intentional tort or crime, and one caused
involuntarily, have not been treated alike by Muslim
tribunals. [B]Written Constitution of State [/B]
303. It is interesting as well as inspiring to note that the
very first revelation (Qur'an 96:1-5) received by the
Prophet of Islam, who was an unlettered person himself,
was the praise of the pen as a means of learning unknown
things, and as a grace of God. It is not surprising that,
when the Prophet Muhammad endowed his people with
a unique form of state, created out of nothing, he
promulgated a written constitution for this State, which
was a city-state at first, but only ten years later, at the
moment of the demise of its founder, extended over the
whole of the big Arabian Peninsula, and the southern
portions of Iraq and Palestine. [2] After another fifteen
years, during the caliphate of 'Uthman, there was an
astonishing penetration of Muslim armies to Andalusia
(Spain) on the one hand, and the Chinese Turkestan [3]
on the other, they having already occupied the countries
that lay in between. This written constitution, prepared
by Prophet Muhammad, which consists of 52 clauses,
has come down to us in toto (cf. Ibn Hisham, for
instance). It addresses a variety of questions, such as the
respective rights and duties of the ruler and the ruled,
legislation, administration of justice, organization of
defence, treatment of non-Muslim subjects, social
insurance on the basis of mutualism and other
requirements of that age. The Act dates from 622 of the
Christian era [C.E.] (the first year of the Hijrah).
[B]Universal International Law[/B]
304. War, which unfortunately has always been very
frequent among the members of the human family, is a
time when one is least disposed to behave reasonably
and do justice against one's own self, and in favour of
one's adversary. As it is really a question of life and
death, and a struggle for very existence, in which the
least mistake or error would lead to dangerous
consequences, the sovereigns and heads of States have
always claimed the privilege to decide, at their
discretion, the measures they take in regard to the
enemy. The science relating to such behaviour of
independent sovereigns has existed from very old times, but it nevertheless formed a part of politics and mere
discretion and was, at the most, guided by experience.
The Muslims seem to have been the first to separate this
science of public international law from the changing
whims and fancies of the rulers of the State, and to place
it on a purely legal basis. Moreover, it is they who have
left to posterity the oldest extant works on international
law, developed as an independent science. Among
authors of such treatises, we find names of such eminent
personalities as Abu Hanifah, Malik, al-Auza'i, Abu
Yousuf, Muhammad ash-Shaibani, Zufar, al-Waqidi, etc.