The Islamic Approach to Law
By: Allamah Muhammad Hussein Tabatabaei
Islam, on the other hand, with a specific series of laws, claims to guarantee, to perfection, the satisfaction of the needs and happiness of human society. In fact, "Islam" is the name of such a method and system of regulations.
It is evident that such an approach and a system of such laws is called upon to modulate its approach with the needs of every age. One of the modulated instances of this system was the practice of the Holy Prophet of Islam (S) and the set of laws that he implemented in his time.
In other epochs, as well, the modulated application of Islam should also imply the best and purest approach to life that can effectively forward the interests of human society of that age. This clarifies the point that the answer to the question raised by a Western scholar about the capacity of Islam to cater to the changing needs of every epoch-in view of the fact that his question is based on a valid scientific basis-is positive. However, as explained, he views Islam as a fixed system of Divine doctrines, which, despite their permanence, claim to guarantee the satisfaction of the needs of every epoch.
In any case, we should examine whether or not the Holy Qur'an, which is the revealed Book of Islam, and the best interpreter of the ends of this Divine religion, interprets the meaning of 'prophethood' and 'religion' on the basis of social, psychological, philosophical and material grounds which call for a separate set of laws corresponding with the ethos of every age; or does it lay down a set of permanent unchangeable laws and fixed moral norms and obligations for mankind of all ages; and if the latter is in reality the Qur'anic viewpoint, how does it justify its claim to satisfy the needs of every epoch?
Does the Qur'an desire that human societies should gradually reach a fixed static condition, and that all the doors of progress should be closed to human civilization? Does the Qur'an want all sorts of developmental and progressive human activities to be brought to a permanent halt? And how does it meet the challenge of a fluid Nature and an ever-changing system of the cosmos, of which man and his society are a part?
What is certain is that the Qur'an explicates the position of the revealed religion as originating from the hidden world ('alam al-ghayb). It links its message to the total system of creation and the perpetually changing universe. At the same time it explicitly states the fixity, unchangeableness and permanence of the constituents of religion. The Qur'an interprets the merits, happiness or misfortune of an individual or a society in a way which differs from the outlook of a Western scholar. These issues, when examined from the eyes of the Qur'an take an appearance quite different from what they seem when perceived through the spectacles of materialistic discussions.
The Qur'an regards the Islamic law and the Islamic approach as a series of principles that guide the system of creation and in particular the human society with its continuously changing and evolving nature which is itself a part and parcel of the world of nature. In other words, the Qur'an considers Islam to be a series of principles that are in complete harmony with the laws of creation, and hence these laws are as unchangeable as nature itself.
These laws embody truth; they are not subservient to the desires and whims of any person, like the laws and statutes of countries with despotic and dictatorial regimes, nor like the laws of democratic countries which are subject to the wishes of the majority. Islamic laws have been legislated in harmony with the system of creation of the universe, and are wholly dependent upon the Will o the God of the universe.
How does Islam Satisfy the Demands of Every Epoch?
In the discussions about society this point has amply been stressed that it was on account of the necessities of life and due to an individual's inability to cope with its demands all alone, that the human being chose to lead a social existence. Similarly, we often hear in juridical discussions that a society can genuinely satisfy the vital needs of its individual members only when it formulates a set of laws and regulations that correspond with their needs, so that each member of society can obtain his genuine rights and benefit from the fruits of collective existence.
In the light of these two notions, the principal basis of social laws is satisfaction of the basic needs of human life, without which a human being cannot, even for a moment, continue its existence. It is this fulfilment of basic needs that directly results in the formation of a society and formulation of laws and regulations. Evidently, a society in which there is no collective effort for the fulfilment of basic needs, and where there is no interrelationship of activities among members, such a group does not deserve to be called a 'society'. In the same way, laws and regulations whose existence and implementation has no effect on fulfilment of the social needs of the people, are not worthy to be called 'laws', that is, a set of regulations that safeguard vital social interests. The presence of laws which more or less satisfy the needs of society and which are, on the whole, acceptable to its members, is necessary even for the most barbarous and backward societies. However, in primitive societies the laws and regulations are products of custom and tradition, having gradually emerged from the irregular collective behaviour of the past.
At times, in such societies, laws are imposed upon the people through the extravagant will of one or more powerful individuals, resulting in the establishment of a well-defined base for the mainstream of social life acceptable to the majority. Even today we see such people in various corners of the world who conserve their customs, culture and traditions without losing the fabric of social life.
In an advanced society, if it is a religious one, the Divine Law prevails. If it is a secular society, the laws legislated through popular consent, exercised directly or indirectly, are implemented. No society exists, nor can exist, where the members are not bound to certain laws, obligations and duties.
How to determine these needs?
It is obvious that the main reason responsible for the legislation of laws and regulations is to meet the social needs of human life. But the question arises: What are these needs? How should they be determined?
These requirements should be, of course, directly or indirectly, susceptible to determination by man, however sketchy and general that determination may be. By the way, we are also confronted with the question whether or not the human being can occasionally make errors in determining his duties and his means of attaining happiness. Are we to accept his estimations and judgements at their face-value?
The majority of people in the so-called progressive world of ours considers human will and wish as the genuine and sufficient basis for legislation of laws. But since it is impossible that all individuals belonging to a nation should think in a similar manner, the consensus of the majority (i.e. 50 percent +1) is, unavoidably, regarded as decisive. The opinions of the minority (i.e. 50 percent -1) are ignored out of necessity, and it is deprived of any freedom of action altogether.
It cannot, however, be denied that human resolution and will is directly related to conditions of life. A wealthy person, who is provided with all necessities of life, cherishes a great number of fanciful desires that would never occur to the mind of a pauper. A hungry person who suffers from extreme hunger and who has lost his control, only longs for food; whether it is delicious or not, whether it belongs to him or others, does not matter to him. But an affluent person may be indifferent even when the most delicious foods are laid out on the table before him. During the times of prosperity, human beings conceive of more fancies than during hard times.
In this way, the pattern of needs changes because of civil progress; while the previous needs of people are satisfied with the march of civilization new needs are generated which replace the old ones. With this change in conditions, people outgrow certain laws and need new laws or demand amendment of the old ones. In this way, among the living nations of the world, new laws always replace worn-out laws.
As mentioned, it is the will and support of the majority of members of every nation which gives validity to the laws and stamps them with the seal of authority, even though the legislation may not be in the interest of the society.
For example, a Frenchman by virtue of his French origin, is a member of the French society and whose will and opinion is honoured if it coincides with that of the majority. The French laws are designed to fashion him as a twentieth-century Frenchman; not like a contemporary Englishman nor as a tenth-century Frenchman. Nevertheless, are there not any constant factors in the varying patterns of human needs which change with the march of civilization? Aren't there any common factors among human societies that have existed in various epochs of history?
Has the basic substratum of humanness, to which a series of natural needs of life are related, undergone an irreversible, though gradual, change? Have our human ancestors of distant past been physiologically different from us? Did incidents such as war and blood-shed, or times of peace and harmony, have any significance other than what they mean to us today? Did the effect of wine and nature of intoxication in the past have a quality different from what it is today? Did the musical compositions of the past impart different types of pleasure than they give today? In short, was the external and internal structure of the human beings of the past different from that of present-day mankind? Obviously, the answers to all these questions are in the negative.
We cannot say that humanity has gradually metamorphosed into something other than what it was in the past. We, also, cannot say that the essence of humanness-which is the common factor between the white race and the black, between the wise as well as the fools, between the young and the old, between the people living in the tropics and those living in the polar zones, and between the peoples of the past and the present has changed with respect to the pattern of common needs.
There are, definitely, certain needs which require a series of fixed and permanent rules and regulations that have nothing to do with the rules that are subject to alteration and change. There is no nation in the world which would not choose to wage a war whenever its existence is decisively threatened by an enemy, and when the enemy cannot be repelled except through blood-shed, would not go for it. There is no nation, for example, which would prohibit people from eating food or ban sexual association altogether. Many such examples can be given, and they all prove the necessity for unchangeable laws which are independent of laws subject to change. The above statement throws light on certain issues:
1) The main reason responsible for emergence of society, social laws and legislation, are the needs of life.
2) All nations of the world, even the barbarous ones, have their own laws and regulations.
3) The means of determining the needs of life, from the modern point of view, is through the will of the majority of the members of society.
4) The will of the majority is not always in accordance with reality and truth.
5) There is a class of laws that are subject to alteration with the passage of time; since they are related to specific conditions and circumstances. But there is another class of laws that are related to mankind's ' human essence", which is a common factor among all human beings of all times, in all parts of the world and in all circumstances and environments. These laws are unchangeable, enduring and fixed.