Session 10: Law and the Difference in Outlook and Origin
point
As explained in the last session, the above theory is based on an array of statutory principles. The first principle is the exigency of law for society while the second principle is that the law must be divine. After these two stages comes the issue of the implementer of law. Proving this theory to Muslims who accept those principles and believe in the Islamic fundamentals is not difficult. However, in dealing with those who reject those principles and the Islamic fundamentals, or those who wish to delve into the issue in order to
p: 148
- Volume 1 , Page 148 - Islamic Political Theory
be able to reply to the opponents, each of the principles must be explained in more detail.
Exigency of discussing law at the present stage
In this age we are faced with various theories in the context of political issues, so we must engage in theoretical discussions on government and politics so as to present the Islamic view vis-à-vis opposing theories, considering the relentless efforts of the Global Arrogance in besmirching the Islamic viewpoint on government. In addition, we are in a revolutionary period and living at a time when an Islamic system has been established and therefore, for elucidating viewpoints at Islamic, we should use logical and scientific means.
In view of the demand of rule of law by the country’s honorable officials, the people must pay attention to the issue of law and its foundations, credibility and extent, and know why and to what extent we should abide by the law. These factors augment the necessity of addressing political and governmental questions in Islam. As such, the discussion must be carried out in a scientific and academic manner.
Two contradictory views determining domain of laws
Today’s human society is dealing with a variety and multitude of laws. If we take a look at books written about law fifty years ago, we will realize that the increase in volume is approximately geometrical in progression. Compared to the laws existing today, the number of laws existing five decades ago was insignificant. In addition, especially because of office circulars, executive orders and regulations, the number of laws increases everyday. Whenever society feels the need for new rules
p: 149
- Volume 1 , Page 149 - Islamic Political Theory
the concerned authorities try their best to make these laws and thereafter, implement them.
Yet, in academic circles around the world this question is raised in a very serious fashion: Should only the least necessary social laws be codified, or, should social laws be all-encompassing and regulate all facets of human affairs? This question is addressed in political philosophy and legal philosophy at the highest level of academic forums. In this connection, two conflicting approaches face each other.
On one hand, a group is of the opinion that people must be free in their activities and that the legislative organ should make minimum laws and not limit the activities of people beyond what is necessary. This is liberalism, which believes that every individual in society be allowed to behave the way he or she likes. Regulations must be formulated in order to restrain people’s activities only as much as is necessary and not beyond it.
The legislative organ and the government should not regularly make laws and persistently interfere in the activities and lives of people. Opposed to this is the holistic outlook (holism) which holds that everything must be encompassed by law and all human actions—social, political, economic, etc. —must have specific and definite laws. Also, the government must strive to implement these laws. The above question is not a simple and casual question. In fact, it is a very delicate one, dealing with the scope and limit of law—the kind of laws that should be made, and quantitatively, the
p: 150
- Volume 1 , Page 150 - Islamic Political Theory
extent and domain of the lives of people they should encompass.
Status of law in democratic systems
The question about the extent and domain of laws is related to different schools of thought on the philosophy of legislation which offer different theories and views on the right of legislation and the determination of its criteria. A well known perspective maintains that those who have the right of legislation for the people are the ones who are chosen by the people themselves to do so.
Thus, in reality, the right of legislation belongs to the people themselves and they are the ones who enact laws for themselves. The political system which is formed on the basis of this perspective is called “democratic”.
After the acceptance of the democratic system this question is posed: Would whatever the majority of the elected representatives of the people—i. e. 50% plus one—like and agree upon be regarded a binding law? Are there also other rulings needed for legislation, and should certain laws that specify the extent of authority of the representatives in legislation be enacted earlier? The reply is that the constitution determines the scope and right of legislation, rules over statutory laws and judges the extent and scope of legislation.
At this point, another question is raised and that is: various countries have their respective constitutions which are more or less subject to change. Sometimes, with the change of political system or regime, the constitution is also changed. There are also times when the constituent assembly is convened and amendments to the
p: 151
- Volume 1 , Page 151 - Islamic Political Theory
constitution are made. In any case, in view of the changes to be made in the constitution, is there any institution or entity above the constitution which specifies the scope of the constitution?
That which is above the constitution is the institution of human rights—also called the natural law or the basic rights of men—which rules over the constitution and determines its scope. Members of the constitutional committee cannot reflect whatever ‘they like’ in the constitution, let alone make common laws.
Basis of credibility of human rights
Again, another question is posed: Who enacts the law which is above and determines the extent and scope of the constitution, and on the basis of which changes can be made in the constitution? Who has codified the “human rights” reflected in the Universal Declaration of Human Rights or mentioned in the books of legal philosophy, and from where does their credibility emanate? The answer given is that according to the international customs, their credibility emanates from the signatures of those who approved the Declaration, and it is binding because it is ratified by all states of the world. It can be asked: Is this Declaration binding for a state that has not approved it? If it is not binding, it follows that no one has the right to condemn those, who have not approved the Declaration and thereby, refuse to act upon it, for “not observing human rights”.
Again, the answer will be given that the rights and laws described in the Declaration are not enacted laws that become
p: 152
- Volume 1 , Page 152 - Islamic Political Theory
binding after their enactment and approval. They are rather real laws which can be discerned by human reason and are binding whether people accept them or not. Of course, at the present time there are numerous people who hold such an opinion, regarding human rights a real and extrinsic fact. An absolute majority of legal and political philosophers believe that the credibility of these laws, conventions, declarations, and charters emanates from the approval of the states’ representatives, and not because they are an extrinsic reality.
Finally, this serious objection is raised: What justification do all states have to accept these laws and what is the proof for non-signatories? The root of this objection and question cannot be deracinated in any way. For this reason, this question is addressed in legal philosophy: What is the source of credibility of laws? However, for us who have faith in the religion of Islam, God and the Qur’an, there is a simple answer. Once we say that the laws have been codified based on the decree of God, the case is closed and there are no more questions.
But those who refuse to tread this path and want to describe everything through a contract will finally end up in an impasse because they regard human rights as the source of credibility of every law and the reason behind also needs to be investigated. In addition, why is the Universal Declaration of Human Rights codified in about 30 articles only, and not more or less
p: 153
- Volume 1 , Page 153 - Islamic Political Theory
than that? These are questions posed to the crème of legal philosophers and a convincing answer is yet to be offered by them.
Once we say that we are law-abiders, we ought to know where the credibility of law emanates from, and why and to what extent we have to abide by the law. Today, there are many related discussions in speeches, periodicals and newspapers. Some of our educated, especially the university-educated and those who are engaged in studying and teaching social sciences and humanities, particularly the authorities in legal philosophy and political philosophy are encountering these questions.
Thus, in order to improve the cultural level of our society, we have to state the results of the academic inquiries in a simple and concise manner. If we want to deal with these issues meticulously and elaborately, we have to refer to at least four fields in social sciences or four branches of philosophy, viz. philosophical sociology, legal philosophy, moral philosophy, and political philosophy. And if we want to pursue it, we need to study other philosophies, and of course, epistemology, which is considered the mother of philosophy. It is very useful to point out the achievements in these fields of social science and the relationship existing between them for the educated class and wary people who have been trained in the lap of the Islamic Revolution and its culture.
Real, intrinsic laws and status of man’s freewill
It is worth mentioning that the term “law” is a term with two basic meanings. The first meaning of the
p: 154
- Volume 1 , Page 154 - Islamic Political Theory
term is applicable in the experimental sciences, exact sciences and mathematics. In these sciences, law refers to the actual relationship existing among phenomena. For example, the laws of phenomena specify the metallic point of metal, when water will turn into vapor, at what temperature it will evaporate or under what conditions it will turn into ice. So, freezing point or boiling point exists as a law of nature, and man needs to be acquainted with these laws of chemistry, physics and other experimental sciences. Evidently, these laws are fixed, persistent and numerous.
With the advancement of human knowledge, more laws will be discovered, and with every new discovery in every science, hundreds of questions and answers will be raised. Proportionate to the number of these questions, new laws will be discovered in order to answer them. For this reason, the number of questions increases everyday and mankind is in pursuit of discovering more laws to answer them. In other words, in the universe we are in the domain of a set of innumerable laws: ranging from laws related to the elements, chemical compositions and living creatures to space laws and others, whose existence is yet to be discovered by scientists.
At this point, this question comes to the fore: If, in this universe, we are confined in this narrow and constricted sphere of innumerable laws, what then is the role of our freewill and volition? This question is treated seriously, and as such, in philosophical anthropology it is asked: What
p: 155
- Volume 1 , Page 155 - Islamic Political Theory
is the truth of man? Is he totally determined or free? Or, does he have conditional and limited freedom? Assuming that his freedom is limited and conditional, what is its extent? Similarly, today, the question of predestination and freewill or tafwid [1] and the like are still seriously discussed among philosophers in the world as before.
Among them are existentialists who believe that man has unlimited freedom and may do whatever he likes. As Jean-Paul Sartre [2] used to say, “If I wish, the Vietnam War will come to an end! ” That is, man is such a powerful creature that he can put a stop to a bloody war that has taken millions of human lives. Of course, it is an exaggerated claim but the point is that such an outlook which upholds human freewill and unlimited power exists.
Opposed to the existentialists are those who consider human freewill mere illusion, believing that man subsists within the framework of a set of fatalistic laws though he imagines that he has freewill. The last but not least, are the religious beliefs which can be located in between the above- mentioned two, maintaining that man has freewill limited by various laws governing the universe. That is, if we try to draw circles of the set of laws governing the universe, human freewill can be exercised within those circles and not beyond that.
On saying that, we are intrinsically subject to a set of laws, this question spontaneously arises: Do we have the power to
p: 156
- Volume 1 , Page 156 - Islamic Political Theory
break those laws and defy them? Can we make nature subservient to us and limit the extent of laws and live in such a way that the laws of nature do not govern us? The answer is that such an imagination is sheer fancy because manipulation of nature necessitates the discovery of another law of nature itself. For example, if we succeed in the field of medicine in controlling a disease or totally eradicating it, we have to discover another law of nature and follow it.
In reality, we have not succeeded in digressing nature from its course; rather, we have discovered a law of nature and acted accordingly.
Hence, it is impossible to go beyond the domain of intrinsic laws, and in order to live one needs to recognize and benefit from these laws—the same laws God has set in the universe—and to go against them is tantamount to going against man’s intrinsic servitude [‘ibadat-e takwini]. As we have said earlier, within the circles which constitute the set of intrinsic laws, we can move to a certain extent. Among the diverse scientific and intrinsic laws, there are limited spaces for man’s exercise of freewill and the power to choose by means of which he can make use of a law vis-à-vis another law. These limited spaces constitute the domain of man’s freewill.
- Volume 1 , Page 156 - Islamic Political Theory
--------------------
[1]: Tafwid: the belief that after creating all beings, God has left them to administer their own affairs and follow their own wills. In other words, it is the upholding of freewill [ikhtiyar] vis-à-vis predestination. [Trans. ]
[2]: Jean-Paul Sartre (1905-80): French philosopher, dramatist, novelist, political journalist, and leading exponent of existentialism whose writings reflect his vision of the human being as master of his or her own fate, with each life defined by a person’s actions: “Existence precedes essence. ” [Trans. ]
Legislative and divine laws that guarantee man’s felicity and perfection
Within the limited extent of freewill and the power to choose, morally speaking, can man behave in whatever way he likes? Or, should he demonstrate a certain deal
p: 157
- Volume 1 , Page 157 - Islamic Political Theory
of restraint? Are there any laws in this sphere which are mandatory for man to obey? The answer is that there are also laws in that sphere but not intrinsic laws; rather, legislative and extrinsic laws, or moral laws. In the language of our predecessors who used to deal with them for thousands of years, they are laws in the realm of practical wisdom [‘aql-e ‘amali] in contrast to the real laws in the realm of theoretical wisdom [‘aql-e nazari].
That is, practical wisdom has to judge anything related to the voluntary actions of man. Undoubtedly, implementing the divine laws upon which it is within the power of man to act, will lead to the attainment of the ultimate aim and goal, viz. the aspired perfection, and deviation from which will result in man’s fall, making him baser than any animal. The Qur’an also confirms the same fate, saying:
﴿لَقَدْ خَلَقْنَا الإِنسَانَ فِی أَحْسَنِ تَقْوِیمٍ ٭ ثُمَّ رَدَدْنَاهُ أَسْفَلَ سَافِلِینَ ٭ إِلَّا الَّذِینَ آمَنُوا وَعَمِلُوا الصَّالِحَاتِ فَلَهُمْ أَجْرٌ غَیْرُ مَمْنُونٍ﴾
“We certainly created man in the best of forms; then We relegated him to the lowest of low, except those who have faith and do righteous deeds. There will be an everlasting reward for them. ” [1]
By using the innumerable talents God has endowed man with, he can attain the pinnacle of divine proximity and nearness to God. On the contrary, by opposing and rising against the divine laws, he can fall to the lowest ebb and be baser than any animal. So,
p: 158
- Volume 1 , Page 158 - Islamic Political Theory
to obey or defy the legislative, extrinsic and moral laws, are within the freewill of man. If a person accepts and follows these laws, he will attain spiritual and psychological loftiness, tranquility and wellbeing; otherwise, he will fall. It is like health tips and recommendations offered by medical science to us. Observance of them guarantees our wellbeing while heedlessness to them results in ailments and endangers our health and life.
Now, since man is free to observe or not observe these health and medical tips, if he values his health and wants to remain alive and kicking, he has to observe them. On the other hand, if he is not concerned with his health and it does not matter to him if he gets sick, he should not pay attention to these tips. So, the truth of the matter is that wellbeing is impossible without observance of health tips. Of course, such an affair is not fatalistic in nature because observance or non-observance of health and medical tips is within the control of man. Of his own freewill, he may observe these tips and thus remain healthy, or not observe them and expose himself to danger and sickness and even death.
That which is said about the body is also true about the spirit and soul. Just as the physical body has wellbeing and sickness, so does the soul. The observance of certain spiritual values and laws, guarantees the perfection, tranquility and wellbeing of man’s soul; otherwise, his soul gets sick.
p: 159
- Volume 1 , Page 159 - Islamic Political Theory
In this regard, God says:
﴿فِی قُلُوبِهِم مَرَضٌ فَزَادَهُمُ اللّهُ مَرَضاً... ﴾
“There is a sickness in their hearts; then Allah increases their sickness... ” [1]
Man, who is always on the verge of falling, sometimes moves so quickly that he loses control of himself, and gets relegated to the lowest of low and plunges into perdition. On the contrary, if he wants to remain sound he has to move carefully and with such self-restraint that he can make a stop whenever he smells danger. There are also real orders, and by obeying the divine laws, man can attain spiritual wellbeing and eternal bliss. Of course, man is free and autonomous; he may not want to attain bliss but want hell instead. No one can stop him.
Intrinsic freedom has endowed him the right to choose. However, if he wants to attain felicity and nearness to God, he has to obey the commands of God. He should not follow his own desires, because following one’s carnal desires leads to misguidance and deviation from the truth:
﴿أَفَرَأَیْتَ مَنِ اتَّخَذَ إِلٰهَهُ هَوَاهُ وَأَضَلَّهُ اللَّهُ عَلَىٰ عِلْمٍ وَخَتَمَ عَلَىٰ سَمْعِهِ وَقَلْبِهِ وَجَعَلَ عَلَىٰ بَصَرِهِ غِشَاوَةً فَمَن یَهْدِیهِ مِن بَعْدِ اللَّهِ أَفَلاَ تَذَکَّرُونَ﴾
“Have you seen him who has taken his desire to be his god and whom Allah has led astray knowingly, and set a seal upon his hearing and his heart, and drawn a blind on his sight? So who will guide him after Allah? Will you not then take admonition? ” [2]
Whoever is subservient to his carnal desires and dictates
p: 160
- Volume 1 , Page 160 - Islamic Political Theory
of the heart becomes deaf and blind and cannot discern the truth and reality. Even if he has acquired much learning, a veil will cover his eyes and he will not see the truth. In this context, the story of Bal‘am ibn Ba‘ur [1] is an instructive moral lesson for us all. Notwithstanding the gnostic station he acquired and being the most learned of his time, he experienced a fall and a fate about which God said:
﴿وَاتْلُ عَلَیْهِمْ نَبَأَ الَّذِیَ آتَیْنَاهُ آیَاتِنَا فَانسَلَخَ مِنْهَا فَأَتْبَعَهُ الشَّیْطَانُ فَکَانَ مِنَ الْغَاوِینَ ٭... فَمَثَلُهُ کَمَثَلِ الْکَلْبِ إِن تَحْمِلْ عَلَیْهِ یَلْهَثْ أَوْ تَتْرُکْهُ یَلْهَث... ﴾
“Relate to them an account of him to whom We gave Our signs, but he cast them off. Thereupon Satan pursued him, and he became one of the perverse… So his parable is that of a dog: if you make for it, it lolls out its tongue, and if you let it alone, it lolls out its tongue... ” [2]
In light of the freedom that God has given man, he can experience fall to such an extent. However, if man wants to be blissful, he should observe an array of lows. The divine set of laws cannot be confined to a single domain; rather, they can be divided into different domains and types. As such, we are in need of some types of law in our lives.
- Volume 1 , Page 160 - Islamic Political Theory
--------------------
[1]: Surah at-Tin 95: 4-6.
[1]: Surah al-Baqarah 2: 10.
[2]: Surah al-Jathiyah 45: 23.
[1]: Bal‘am ibn Ba‘ur refers to the man at the time of Pharaoh who knew the Greatest Name of God [Ism al-A‘zam], through which anything and everything sought for is immediately granted by God and it is a very closed secret. Pharaoh urged him to pray that Moses might fall into his clutches. Bal‘am agreed and mounted a donkey but the animal would not move. However much he beat the poor donkey, the animal did not stir from its place at all. At last the animal raised its head toward heaven and cried in clear cut words, “Why do you beat me Bal‘am? O man, woe unto you! Do you want me to take you to curse an Apostle of God and the faithful ones with him? Yet, Bal‘am did not relent and beat the faithful animal to death, consequently causing himself to forget the Holy Name of God whereupon he became an infidel. See Mir Ahmad ‘Ali’s commentary of Surah al-A‘raf 7: 175. [Trans. ]
[2]: Surah al-A‘raf 7: 175-176.
Difference between legal and moral laws
That which is known as “law” to us refers to legal laws. The said laws are a set of rules enacted by a credible
p: 161
- Volume 1 , Page 161 - Islamic Political Theory
authority, and the so-called executive power (the government or cabinet) guarantees their implementation. In case of necessity, it imposes these laws upon the people by resorting to the use of naked force to prevent any violation. Legal laws in a general sense also include penal laws. In this context, if a person says that the duty of the government is only to recommend the law to the people—to urge them not to steal and violate others’ sanctities—, but it cannot punish the violators on the pretext that doing so is contrary to the freedom of man, certainly none will accept his argument.
To say that “Since man is free, if he opposes legal laws no one should punish him” means that the existence or non-existence of legal laws means the same. This is why the raison d’être of legal laws is that there should be a guarantor of their implementation. This is their fundamental difference with moral laws besides other differences. In ethics, for example, it is said: “Keep your pledge and do not breach it. ” This is a moral injunction.
Now, if a person breaches a trust, he will neither be punished nor imprisoned for committing such an immoral act. But for violating a legal law he will be apprehended and imprisoned. In the case of penal laws, a specific punishment shall be given to him for fraud. There will be a police force to deal with the violators and forcefully implement the laws as far as they are
p: 162
- Volume 1 , Page 162 - Islamic Political Theory
concerned. The use of force is a requirement of legal laws, the absence of which renders the existence of these laws meaningless. Moral laws, however, are not in need of naked force unless they acquire legal dimension.
In religion there is undoubtedly a set of divine laws pertaining to man’s relationship with God, such as the rulings on ritual prayer, fasting, Hajj, and the like. Such ordinances are mentioned only in religions. Here, the question is: Can religion also have legal laws, or should it only elucidate the relationship between man and God? This is the skeptical question which is widely talked about in universities and periodicals, nowadays.
All of us, whether the university students who are directly confronted with this question or their parents and relatives, should pay heed to this kind of skepticism, because these questions will finally find their way into other strata of society through the educated class and exert influence on our public culture. One day these young students will take the place of their parents, and as influential forces, they will constitute the main sectors of society. Now, if the cultural orientation of this great sector is changed, after one generation the culture of our society will totally change. So, we should be vigilant; we should be aware about the current cultural orientation that is taking form in our society
Difference between Islamic and liberal approach
One of the issues discussed nowadays is that only minimum effort must be made in the enactment of law. This is the liberal approach which
p: 163
- Volume 1 , Page 163 - Islamic Political Theory
believes that the legislature is not supposed to interfere in the life and affairs of people because the less the interference, the more society will progress.
The above approach has a sociological underpinning based on one of the two viewpoints discussed in sociology. The first viewpoint maintains that laws must be comprehensive and encompass all spheres of human life and that freedom must be at minimum level. The second viewpoint propounds that the individual should enjoy maximum freedom and social laws must be at minimum level in order to limit their infringement on man’s freedom. That which is prevalent in Western society today is exactly this individual-oriented approach from which liberalism has emanated which holds that laws should be at the minimum level while people enjoy maximum freedom and do whatever they like.
Before stating the Islamic viewpoint, it is worth mentioning that the issue of maximum or minimum scope of law has something to do with some fields of social sciences such as philosophical sociology (individual-oriented or society-oriented) , moral philosophy (the criterion of moral values, morality and its values above law or determined by law) , legal philosophy, and political philosophy.
According to Islam, all aspects of human life are connected to their ultimate destiny. That is, any effort exerted in this life will affect our eternal bliss or perdition. The Islamic perspective is that “This world is the sowing field for the hereafter. ” In other words, whatever man sows in this world will be reaped in the hereafter and will
p: 164
- Volume 1 , Page 164 - Islamic Political Theory
either lead to his success, or wretchedness and damnation.
If we take this perspective as authentic, is there anything in the life of man which is not in need of law? Here, law has to show the way, method and approach that will enable man to reach his goal. That is, if society yearns for security, no one should have the right to encroach upon the property and dignity of people; otherwise, his property and dignity will also be assaulted. It should not be that:
ببرى مال مسلمان و چون مالت ببرند
داد و فریاد برآرى که مسلمانى نیست
You take away Muslim property, but when they take yours,
Raise a hue and cry, “This is not a Muslim practice! ”
Man is selfishly profit-oriented by nature. He leaves no stone unturned by hook or by crook to gain profit, but once his interests are threatened, he seeks refuge in law. So, in order to remove contradictions and conflicts and foster cooperation and security in society there should be law that deters us from oppressing and encroaching upon others, defines the rights of everyone, specifies the bounds of justice and oppression on the basis of which people know which acts are considered just and iniquitous. Otherwise, all rights will be violated by all, and as a result, neither security nor tranquility, peace of mind nor otherworldly felicity will remain, and no one will achieve his innate goals.
In the Islamic perspective, therefore, all our movements and pauses, whether in individual and family life or
p: 165
- Volume 1 , Page 165 - Islamic Political Theory
social life and even international relations, follow an order and rules. Islam has a legal code for all aspects of human life, legal and social laws included. Islam even has a law regarding man’s imagination and thought, saying that a person has no right to keep in his heart whatever he or she likes, entertain any fancy in his or her mind, and think ill of others—“Indeed some suspicions are sins. ” [1]
Just as non-observance of health tips leads to sickness, endangering the wellbeing of individuals and society, society will also be destroyed for not observing Islamic rules.
What has been said is that no aspect of human life is beyond the scope of Islamic laws and that man should control even his heart and mind but it does not mean obstruction of man’s freedom. It rather means showing him the correct use of freedom and lighting a torch along his path so that he can rightfully enjoy his freedom. Of course, as long as they are not related to man’s social life, these laws do not stipulate penalty in this world but only chastisement in the hereafter. However, if there is a violation of social rules and laws, and social interests are trampled upon, penalty in this world shall be taken into account.
In reality, penalty in this world is a requisite of all legal laws and it is not confined to the legal laws of Islam only. Every legal system that wants to enact laws for the maintenance of
p: 166
- Volume 1 , Page 166 - Islamic Political Theory
order and social security has no option but to consider a set of penalties for violators and offenders. This is because social life can not be established without laws that restrict individual freedom and liberty. As social relations increase and expand, the need for social laws and their guaranteed implementation will also increase.
Session 11: Criterion of Credibility of Law
Exigency of delving into major political issues
In elucidating the Islamic political theory, we have made some discussions during the previous sessions and pointed out that the subject can be approached in two ways. One approach is argumentative [jadali], in which the fact that the addressee is a Muslim who adheres to Islam and Shi‘ism or believes in other ideological and moral fundamentals is disregarded; basic principles and foundations agreed upon by the two sides are taken into account as the principles and basis of discussion.
By sticking to those preliminaries, the discussion continues till conclusion. The second approach is evidential [burhani] in which the discussion is made by organizing and presenting profound rational proofs and all groups of the discussion examine even the principles of the subject. By basing the argument on axiomatic truths, each one tries to present indisputable rational evidence.
Evidence-oriented discussions are wearisome and appropriate for the academic and scientific circles. It must be noted, however, that our society has taken quantum leaps in cultural advancements and acquisition of knowledge. Today, the achievements of our youth, especially in the field of religious and political matters, are greater than those of some scholars in the past.
As such, it is
p: 167
- Volume 1 , Page 167 - Islamic Political Theory
necessary to continuously engage in profound evidential discussions so as to improve the intellectual and cultural level of our society, particularly in areas related to the principles of the system and pristine Islamic doctrines, and acquire the capability to confront and respond to skepticism and not be influenced by others.
At this point, we will try to present the subjects related to the principles of the subject under discussion in a simple manner devoid of intricate scientific and philosophical terms. We will also try to strengthen the rational roots of these doctrines in minds so as to make them more resilient to the prevailing wave of skepticism.
The distinctive function of the government and political system is to support and guarantee the implementation of legal laws in society. The difference between moral laws and legal-political laws is that being ethical, they have no external force guaranteeing their implementation. Every person adheres to them based on his/ her religious beliefs and orientation. Legal laws, on the other hand, have an external support guaranteeing their implementation.
The salient feature of legal laws is that they are imposed on the people by society and the executive organ. Even if a person has no conviction in these laws, he is still duty-bound to follow them. In case of violation by individuals, the government is obliged to implement these laws by resorting to the use of naked force, and in case of necessity, even by the use of arms.
After the victory of the Islamic Revolution, especially
p: 168
- Volume 1 , Page 168 - Islamic Political Theory
after the internal disturbances and arbitrary assassinations, government officials have consistently chanted the slogan of ‘the rule of law’. Even one of the initial years after the Revolution was called “Year of Law”, and till this day, all our presidents have pursued it. It must be taken into account that one of the main valuable slogans of the government is the implementation of law at the national level and prevention of its violations. It is, therefore, expedient that there must be a discussion about law and its credibility, and due response be given to relevant skepticism and questions.
Scope and criterion of credibility of law
- Volume 1 , Page 168 - Islamic Political Theory
--------------------
[1]: Surah al-Hujurat 49: 12.
point
The most common skeptical questions for many people are the following: To what extent can a law be binding and where does its credibility emanate from? Why is it necessary for individuals to submit to law? Which law has such absolute credibility to which one has to submit absolutely? Before continuing the discussion and addressing these questions, it is worth pointing out that according to us Muslims who adhere to the Islamic system and to whom the words of the Imam and the Supreme Leader are considered proof, there is no room for doubt and ambiguity that laws of the Islamic government—whether they are ratified bills of the Islamic Consultative Assembly, or laws ratified by cabinet and even circulars communicated from ministries to offices—are all binding, and according to the statement of the Imam (q) when he says that laws of the Islamic government are binding, we are bound to act upon them.
p: 169
- Volume 1 , Page 169 - Islamic Political Theory
I personally strive to faithfully observe the minutest details of laws and orders of the Islamic government including even those points that are contrary to my personal juristic view and edict.
Observance of decrees and orders of the Islamic government and obedience to the wali al-amr is obligatory upon us, and we have no doubt in this regard. If we discuss the criterion of their credibility, it should not be imagined that we want to cast doubt upon the exigency of acting upon government laws. Our goal is to strengthen the intellectual roots and foundations of adherence to the Islamic government.
Our attempt is to clarify why we have to obey the orders of the Islamic government. When the government declares a certain day as a public holiday, or levies a certain sum as tax to those for whom taxation laws and rules are applicable, or issues certain orders on a certain situation, calls for public participation under exceptional circumstances like war, and implements special laws, the people should know why they should abide by those laws and orders. The mere presence of the one who gives orders is not sufficient reason for the people to follow and act upon his orders.
Our discussion is related to political philosophy, and the issue of law and its credibility and the exigency of following it is among the fundamental issues of all political systems and not only confined to the Islamic system. Those who are familiar with the subjects in political philosophy and legal
p: 170
- Volume 1 , Page 170 - Islamic Political Theory
philosophy know that scholars and experts in these two fields of human knowledge have tried to elucidate this issue and present different views substantiated by reasons and arguments.
So far, however, they have not arrived at a definite view fully substantiated and defensible. We can summarize the most important views and ideas presented by these scholars on the criterion of credibility of law under three headings.
1. Justice theory
Some believe that justice is the criterion of the law’s credibility. If a law is enacted based on justice and the rights of people, it shall be credible for the people to follow it. But if it is not anchored in justice and enacted unjustly, it has no credibility.
2. Providing for social needs
The second view is that it provides for the needs of society. Members of society have particular needs which have no individual or personal dimension. Everyone by himself or herself may have such a sense of needs but these needs are social in essence and emerge in the context of social life. For example, maintenance of public health is a social need. In his/her personal life within his/her home, a person may maintain personal hygiene if he/she wants to, but, with respect to the maintenance of public health, persuading each person to maintain public health is difficult and problematic.
There should be an institution above individual decision and action to provide for these public needs. For instance, when a disease like cholera or plague becomes rampant in a society, individual measures to control it can
p: 171
- Volume 1 , Page 171 - Islamic Political Theory
do nothing. There should be a government body whose function is to control it and maintain public health through programs, such as vaccination and others. By means of enacting rules and regulations—including common rules and regulations—it is the duty of the government to ensure the vaccination of people during that period of time. (As said earlier, we are referring to law in its general sense which also includes binding instructions, circulars and orders. )
Since public health is a need of society and its observance is a social necessity, pertinent laws have been enacted and all are obliged to observe them. Similarly, in relation to environmental protection, keeping the biosphere clean and providing for public needs, the government has instituted certain bodies to address those problems, while the people are obliged to obey the orders and instructions issued by them.
So, the totality of laws and institutions taken into account by the government, such as the Ministry of Training and Education, Ministry of Health and Medical Treatment, and other ministries as well as their orders and instructions are all geared toward addressing social needs and safeguarding the interests of society, and as such, they are legitimate.
3. Will of the people
Some regard the will of the people as the criterion and basis of credibility of law. According to them, law is meant to address the demands of society. When people want something from the government or legislature, the cabinet and the parliament ratifies a law in accordance with the people’s will. Since the law is inspired by
p: 172
- Volume 1 , Page 172 - Islamic Political Theory
the people’s will, it is binding, and the people have to strive to implement it.
In reality, the actual realization of the people’s will is expressed through the election of the members of parliament who enact laws according to the will and need of people. Accordingly, if the deputies elected by the people have no right of legislation, their election by the people will be useless. If they have the right to enact laws but their statutory laws are not binding, legislation will become an exercise in futility.
What has been mentioned is a summary of views of legal and political philosophers on the issue of the source of credibility of law. Muslims regard the will of God as the criterion of credibility of law and we believe that whatever God commands is considered a law and is binding. Of course, the latter view is accepted only by those who have faith in religion and God.
(In examining and criticizing the abovementioned views, we shall refrain from an extensive scientific and academic analysis. We shall do so in a manner commensurate to the people’s common level of understanding. )
Objection to the first view
It was stated in the first view that the law’s credibility emanates from the observance of justice. In this connection, a fundamental question which has also been dealt with by many great scholars of international repute is this: What is justice and how can it be materialized? The concept of justice is clear to all, but legal and political theorists have spent much time
p: 173
- Volume 1 , Page 173 - Islamic Political Theory
over it because of the existence of different interpretations of justice.
If all people equally benefit from the wealth of society, will it be considered justice implemented? That is, if a political system provides such conditions and facilities that all people equally acquire lodging, clothing and transport, is justice implemented, and is its opposite injustice? Such a Marxist approach led to the emergence of the communist theory.
The architects of this theory stated that they were working toward the emergence of a classless society in which everyone worked according to his capacity and enjoyed the fruit of labor according to his need. They realized that this aspiration could not be achieved in practice because the above approach had many challenges along its way, like the conflict between justice and freedom. As such, by modifying and regulating their slogans, they satisfied themselves with a socialist government, though they still regarded a communist government as the ideal.
When Marx observed that a majority of people, particularly the workers and farmers, were being oppressed, he said that this oppression and injustice must come to an end and efforts must be made to make all people enjoy equal rights. It was actually meant to achieve a classless society that would enjoy the perfect and ideal equality of paradise on earth. Then, those who had eclectically Islamic inclinations added an Islamic adjunct and thus emerged the “monotheistic classless society”. It needs to be clarified whether or not justice means that all people are equal and the
p: 174
- Volume 1 , Page 174 - Islamic Political Theory
same.
Some believe that justice means that every person should enjoy the benefits of society according to the effort he puts in. That is, if a person does something, he should receive a payment commensurate to the value of his work. So, if a person is lazy and does nothing, he should only be provided with social security in a bid to create perfect equality, and thus, justice be realized. Justice is realized when those who work get compensation for it. If a person provides surplus value through his efforts and production and does not get its fruit, his right is violated.
Superiority of Islamic laws
Undoubtedly, the above two interpretations of justice—which are cited as an example—are in total conflict and disharmony with each other in practice. They seem to be intolerant, inconsistent and discordant with the divine laws and monotheistic beliefs. For example, we have a set of laws in Islam which, according to our ideological principles, are the best and most beneficial laws for society and certainly concordant with justice.
However, these laws are unacceptable to many people in the world who regard them as unjust and oppressive. For instance, in many cases of inheritance the Islamic laws have set differences between the share of man and woman, though in some cases their share is the same. The difference is based on an explicit text of the Holy Qur’an which stipulates that the share of woman is half that of man:
“Then for the male shall be the like of the share
p: 175
- Volume 1 , Page 175 - Islamic Political Theory
of two females. ” [1]
Undoubtedly, those who are not familiar with the ideological and intellectual foundations of Islam regard such a law as unjust because according to them God has discriminated against women. On the other hand, in relation to the conjugal life of husband and wife, Islam makes it incumbent upon the husband to provide all the family expenses including food, clothing and lodging of his spouse and children. According to the Islamic perspective, the wife has the right to save all her earnings.
Her income and inherited property belong to her and she is not required to contribute even a small sum for the family expenses. She even has the right to ask payment for the services she is rendering at home, such as washing clothes, cooking food and even feeding her infant child. However, those who are not exactly acquainted with Islam, when they take such an order into consideration, even if they deal with it impartially they will say that Islam has nit enacted a just law.
In order to dispel the accusation and prove that such laws are just, we have to see which interpretation and definition of justice we have. If justice means equality, then all laws are unjust because equality is not observed in them. If justice has another interpretation, it must be seen what that interpretation is. Of course, it is not easy to know the essence of justice and the way to implement it. For this reason, great philosophers have conducted extensive research
p: 176
- Volume 1 , Page 176 - Islamic Political Theory
on the relationship between justice, freedom and law.
In sum, if we take justice as the criterion of credibility of law, the problem will not be solved. The first question we shall encounter is this: To which interpretation of justice shall we refer? Interpretations of justice are subjective. What is just and credible for one is unjust and incredible for another.
- Volume 1 , Page 176 - Islamic Political Theory
--------------------
[1]: Surah an-Nisa’ 4: 176