Wednesday, January 5, 2011

Islamic Law: "Abnormal Abuse of Rules Can Neither Legalise The Abusive Practice Nor Render the Authentic Rules Null & Void"

This is an excerpt from The Muslim Conduct of State by Dr. Muhammad Hamidullah

(1)As has aptly been said: "When stable communities whether Tribes, or City-States, or States of a modern type are permanently contiguous, customs hardening in time into law never fail to regulate their intercourse. Ubi societas, ibi jus; wherever developed communities are brought in contact with each other, judicial relations must sooner or later be formed not mainly by agreement, tacit or express, but by the very necessity of the case, and partly from the same cruses as those which working internally create states." 

(8) Law (Fiqh) is variously defined by classical Muslim jurisconsults. "The knowledge of what is for and upon one" is a definition attributed to Abu Hanifah) which in other words may be rendered as "the science of the rights and obligations of man". A late authority, Muhibbullah al-Bihariy, introduces this all-embracing subject in the following words  of his book (compiled 1109 H.) : " The science of ascertaining religious commands (regarding practical affairs of life) by means of their detailed guides." [By guides he means authority or source of information.]

(9) A glance at the contents of works on Fiqh would reveal that they embrace practically all the affairs of human' life, material as well as spiritual. In view of the standard definitions given above and is the face of the contents of works do Fiqh, there remains not the slightest doubt that international law, i.e. the rules of State-conduct in times of war, peace and neutrality, form part of the ordinary law of the land, the Fiqh. These rules of conduct are generally dealt with in books on Fiqh under the heading Siyar i.e. conduct,

(10) Here a brief expose of the origin of law according to Muslim jurists may profitably be added. They say that man must always do what is good, and abstain from what is evil, and take scrupulous care of the intermediary grades of plausible, permissible and disliked. It is, however, not easy to distinguish between good and evil, especially when the matter concerns the subtleties of a complex civilised life beyond the pale of ordinary commonplace things. 

Practical needs would have required the possession of the power to legislate (or lay down definitely grades of good and evil [in] each and every matter) in the hands of Man, either individual, as jurisconsult, or collectively organised, i.e. a State. Yet mere reason, regarded as the touchstone of good and evil, is not without grave difficulties. For it is possible, and also a matter of fact -- so argue Muslim jurists -- that different persons opine differently regarding the same things. 

The belief in Messengers of God is useful even from the point of view of jurisprudence, in so far as the awe and respect due to their persons lead to the acceptance of certain fundamentals without further dispute, wherefrom other and further details may be elaborated. For this reason, the Muslim savants are very thankful to the generosity of God that He gave men along with reason certain chosen human Guldes to help them in the conduct of life. These selected and chosen ones pointed out what God commanded, God the real Sovereign and Lawgiver, regarding good and evil. 

Muhammad has been acknowledged by the Muslims as the Messenger of God; and whatever he gave them in his lifetime, commands as well as injunctions, in the name of his Sender, God, was accepted by the Muslims as indisputably final and most reasonable. 

These Divine Commands, known as the Qur'an and the Hadith - as we shall see later in detail - served practically all the needs of the Muslim community of that time. But human needs multiplied later in such a manner that express provision seemed to be available for some of  the new matters in either the word or deed of the Messenger, who himself had passed away, disconnecting the link whereby Man could receive Commands from his Lord. The consequent result would have been fatal and the fabric of Fiqh would soon have collapsed under the strain, had not there been express provision in the law itself for further elaboration. Credit must also not fail to be given to the Muslim jurists, after the death of the Prophet, who not only discerned this elasticity of the Divine Law, but also utilized it to its fullest extent. In time there emerged a complete system of law which served all the purposes of the Imperial Muslims, even at the height of their widest expansion from the Atlantic to the Pacific Oceans.

(11) Thus law originated from the direct Commands of God; but the power retained by man to interpret and expand Divine Commands, by means of analogical deductions, and other processes, provided all that was required by the Muslims. In this way a dual need was served: that of sanctity to inspire awe in the minds of (hose who were intended to observe it, and that of elasticity or capability of development to meet the needs of times and circumstances.

(12) We have defined international law, first, as a part of the law of the land. The province of the law of the land is therefore, obviously, wider than that of international law; and we have no concern here with the portion of the law of the land which regulates internal affairs of the State or its subjects.

(13) We have also acknowledged customs as contributing to international law. No system of law can positively provide guidance regarding every detail of every matter. Completion of a list of obligatory and prohibited things, along with details of a certain number of permitted matters -- that is all any system of law can achieve Naturally the prevalent customs  general practice, and even innovations hardening in time into prevalent usage eye) regulate the relations in such cases. 

(17) It may be added that, for purposes of illustration, precedents from Orthodox Practice have freely been referred to. These alone are binding. Abnormal and temporary abuse or overlooking of certain rules by a Muslim State can neither legalise the abusive practice nor render the authentic rules null and void. This is an excerpt from The Muslim Conduct of State by Dr. Muhammad Hamidullah

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