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. 


http://muslim-canada.org/conduct_1.html This is an excerpt from The Muslim Conduct of State by Dr. Muhammad Hamidullah

Islamic Law and the Ulama in Colonial India: A Legal Tradition No Longer Needed

Muhammad Qasim Zaman

[Princeton Studies of Muslim Politics, 2002]

"…the new "Anglo-Muhammadan law" was decidedly not the ulama's legal tradition but a hybrid of certain legal classics and English common law. Historically the most distinctive aspect of their [ulama's] vocation, the interpretation of law, was effectively being removed from them."

Certain works of law that were regarded by Muslims of India as among the more authoritative now came to be invested with almost exclusive authority as the basis of judicial practice in British courts, so far as Muslim personal law was concerned. These works included the Hidaya of al-Marghinani (d.1196-97); the Kitab al-Fara'id al-Sirajiyya of Siraj al-din Muhammad al-Sajawandi; the Durr al-mukhtar of Ala al-din al-Haskafi (d.1677) and the Fatawa-I Alamgiriyya.

A new judicial system was being put in place from the late eighteenth century onwards.

Ever since the time of William Jones the colonial officials had striven to reduce their dependence on indigeneous guides, and Jones' project of codifying law was motivated by the same concern. With a codified law, one would no longer need indigenous legal guides – the muftis and the pundits, whose position was abolished in 1864 – to help the court in its rulings. For if it was merely a matter of applying the rulings contained in certain legal classics and commentaries of "great antiquity and authority" as the Privy Council had stated in 1897, then surely anyone trained in the British legal system could do so. One did not need someone trained specifically in Islamic law.

For the ulama this development meant that there would be only a highly truncated link with the Islamic legal tradition of old: the new "Anglo-Muhammadan law" was decidedly not the ulama's legal tradition but a hybrid of certain legal classics and English common law.

Historically the most distinctive aspect of their [ulama's] vocation, the interpretation of law, was effectively being removed from them.

The ulama could continue to function as muftis, ofcourse, as they had for centuries. Indeed, in colonial India, this function registered certain important changes: from the late nineteenth century, fatwas were often given on the authority of a particular madrasa, such as the madrasa of Deoband rather than on that of a single jurisconsult.

Excerpts from: The ulama in contemporary Islam: custodians of change, Princeton University Press, 2002

Muhammad Qasim Zaman is the Robert H. Niehaus ’77 Professor of Near Eastern Studies and Religion at Princeton University, a position he has held since 2006. Prior to coming to Princeton, he taught at Brown University from 1997 to 2006. He is the recipient of fellowships from the National Humanities Center, the Institute for Advanced Study, and the Carnegie Corporation of New York. He has been awarded a fellowship by the Guggenheim Memorial Foundation, to examine various aspects of Islam in Pakistan in their interrelationship and their varied contexts. http://www.princeton.edu/~nes/faculty_zaman.html

Al-Ghazali & The Basic Purpose of Legislation in Islam: Protect the Interest of People Against Harm

Dr. Mashhad Al-Allaf

Some Muslim scholars of jurisprudence, especially Ibn Taimia (661-728 A.H./1263-1328 A.D.), said that Allah revealed such a legislative system or Shari’ah in order to achieve Justice. Other jurists said it is for the purpose of achieving happiness. And still some others, especially al-Ghazali, said it is only for the achievement and the realization of the very benefits of man on earth.

A closer look at these three approaches to Shari’ah shows that they complement each other: happiness of mankind cannot be achieved at large without justice, and justice is one of the essential benefits and interest of people on earth.

The Maqasid Model of the Existential Structure

The Islamic Divine Law or Shari’ah was revealed for one basic universal purpose: to realize or to make real the best interests of humans on earth.

Maslaha in Arabic language, which literally translates as benefit or interest, is defined by Imam al-Ghazali as that which secures a benefit or prevents harm.

The Islamic Divine Law then has a two-fold function.

12.2. Categories of Benefits in Islam

As we just mentioned Imam al-Ghazali defined Maslaha as that which secures a benefit or prevents harm. However, benefits mentioned in the Islamic Divine

Law are of three kinds:

First: accredited benefits (Masalih Mu'tabarah), which are regulated by The Lawgiver in the sense that a textual authority from the divine law could be found to prove their validity.

Second: nullified benefits (Masalih Mulghat): there are also other kinds of benefits and interests that the Shari’ah neglected because they lead to harm and hardship (Mafsadah), such as stealing or usury.

Third: unregulated benefits (al-Masalih al-Mursalah), since the benefits of people can be as numerous as their public interests, we find that the divine law did not regulate a number of these benefits. So it provides no indication as to their validity. In the principles of jurisprudence these kinds of benefits are called the unregulated benefits, and it is left for legal scholars or jurists to work on them.

Benefits and the Objectives of Shari’ah

According to Imam al-Ghazali, masalih or benefits should be harmonious and consistent with the objective (Maqasid) of the Shari’ah, since the basic purpose of legislation (tashri’) is to protect the interest of people against harm.

In regard to their importance and priority, benefits were divided by Muslim scholars into three kinds:

- The essentials (Da.ru.riy.yat),

- The complementary (Ha.jiy.yat), and

- The embellishments (Tah.seen.niy.yat)

In relation to the masalih and its division, the existential model will consist of four circles, three of them orbiting around the central one which represents the Islamic creed and the main source of legislation:

- The circle of the Shari’ah,

- The circle of the essentials,

- The circle of the complementarities, and

- The circle of the embellishments

In Islamic culture this circle represents the Islamic belief especially the Creed (‘Aqidah) as this ‘Aqidah is presented in the Qur’an and the Sunnah or the tradition of the prophet. The Islamic Divine law represented in this core also emphasizes what is beneficial to all humans. It is like the supreme constitution of necessitation.

This circle is the source of legislation and practicality of preserving existence. Human beings should use their maximum rationalization to understand the wisdom and the benefits of such Divine legislation.

http://www.muslimphilosophy.com/ma/works/maqasid.pdf

Mashhad Al-Allaf is Professor of Philosophy at the University of Toledo. He earned his Ph.D. in Philosophy from the University of Tennessee,1995.