Qur'anic Studies - An Outline of Law from a Qur’anic Perspective

This paper is an attempt to partially delineate the salient features
of Islamiclaw from a Qur'anic perspective. It seeks to clarify that
every human society necessitates that there exist a system of rules
without which there can be no public order but chaos. It also shows
that in Islam, thereis no separation of religion from morals, worldly
affairs and from politics. Islam is an all-embracing religion
consisting of a set of lawsand injunctions which are requisite for the
establishment of an ideal society. Therefore, all the laws and
injunctions which are of a practical character and which should be
applied to human society can be subsumed under the general rubric
'law.' The paper continues by discussing the sources of Islamic law
and its goals.
Introduction
The Qur'an is the verbatim revelation or the Word of God, revealed in
Arabic through the archangel Gabriel to the Prophet Muhammad during
the twenty-three-year periodof his prophetic mission.
The practices of Muslims as ordained by theShari'ah(Islamic Law) have
their origin in the Qur'an. Although the foundations of
theShari'ahmust also be sought in the Sunnah and the elaboration of
the law depends furthermore, with respect to Shi'ism, upon reason
('aql) and consensus (ijma'), all principles of theShari'ahare already
contained in the Qur'an.
The scheme of life which Islam envisages consists of a set of rights
and obligations, which, as already mentioned, have their origin in the
Qur'an,and every human being who accepts this religion is enjoined to
live up to them. Broadly speaking, the law of Islam imposes four kinds
of rights and obligations on every man: (1) the rights of God, which
every man is obliged to fulfill; (2) his own rights upon his own self;
(3) the rights of other people over him; and (4) the rights of those
powers and resources which God has placed in his service and has
empowered him to use for his benefit.
These rights and obligations constitute thecorner-stone of Islam andit
is the bounden duty of every true Muslim to understand and obey them
carefully. TheShari'ahdiscusses clearly each and every kind of right
and deals with it in detail. It also throws lighton the ways and means
through which the obligations can be discharged.
Social Phenomenon
Issues pertaining to human social life can be divided into two
categories: those which deal with social phenomena irrespective of
their goodness or badness, and those which are concerned with the
value judgements on the various aspects of social life and through
which the goodness and badness of each social phenomenon are judged.In
other words, there are certain issues which deals with 'is' and 'is
not',whereas certain others deal with 'ought to' and 'ought not'. Most
issues of the first category relate to sociology and the philosophy of
history,while those pertaining tothe second fall mainly into the
category of morals and rights. The rulings pertaining to the former
are called real and descriptive rulings, while those pertaining tothe
latter are called normative and prescriptive ones.
Religion and worldly affairs
The prescriptive rulings as mentioned above are divided into three categories:
A. The Divine and Religious Laws: These consist of the commands and
prohibitions which are attributed to God Almighty and as in every
religion, people are required to abide by them, such as keeping the
daily prayer and performing the pilgrimage to Mecca, etc.
B. Moral Laws: That is, thelaws which are comprehended by human
reason, primordial nature (fitra) or consciousness to varying degrees
and which are considered to be of value or validity irrespective of
the Divine or human criteria, such as the goodness of truthfulness and
the ugliness of oppressing others.
C. Legal Laws: That is, the laws which are made for safeguarding the
best interests of human beings in their worldly life by a qualified
authority in view of the relations of individuals with each other
within a society. These laws have an executive backing, which is
usually the government.
Over the years, there has been a tendency to separate these three
groups of law from one another and to specify a distinct area for each
group.. According to this view, the area of Divine laws is restricted
to the rituals and rites which concern the followers of each religion
in specific times and places, such as the religious ceremonies of the
Hindus or the rites of idol-worship which are seen in various parts of
the world. These rites and rituals are not connected at all with other
social aspects of life but rather they consist of performing theduties
which, according to the followers of each religion, are required by
the natural or supernatural powers. Religious laws are neither
connected to the moral laws nor are they connected to the legal ones.
In the Western world, after Christianity had become the official
religion of the Byzantine empire, in spite of accepting Christianity,
apparently on account of the exigencies of the time, some rulers
planned to separate religion from all its worldly aspects
includingpolitics in order to gain the secular power totally,and to
rule over the countries under their control as they wished and to
exclude the divinecommands and prohibitions from the domain of
politics and law in their general sense. For this purpose, they used
every possible means, even the distortion of the scriptures.
After the Renaissance, this attitude gained moremomentum, to the
extentthat a large number of writers and intellectuals demanded the
total separation of religion and law. Furthermore, they supported the
total separation of religion from morals. The separation of religion
from worldly affairs in general and from politics in particular as
seen today in the Muslim countries is nothing but the acceptance of
the current mainstream attitude in the Western world.
Such a separation cannotbe deemed acceptable in any revealed religion.
From the Islamic point of view, religion is a system of theoretical
knowledgeand practical laws, and its practical laws embraceall three
areas of the relation of man to God, the relation of man to himself,
and of man to others. [1]In the Holy Qur'an and the traditions
narrated from the holy Shi'ite Imams, there is a huge collection of
moral and legal laws, therefore the moral and legal systems of Islam
are completely based on the fundamental religious principles
consisting of the belief in Divine Unity, the Resurrection, etc. In
other words, both moralsand law are two main sections of the whole of
the religion and are deeply rooted in the most fundamental theoretical
religious sciences.
Law
In spite of the fact that there are a lot of uses of the word 'law' in
legal terms, it does not have a definite and specific meaning and is
used in different ways. Sometimes, it is used in a wide sense and
includes any prescriptive ruling which should be practised in society
whether it be legislated or non-legislated laws, such as social
customs and conventions.
Thus, some of the law experts use the term "natural law", which refers
to a type of moral theory, as well as to a type of legal theory, but
the core claims of the two kinds of theory are logically independent.
According to natural law ethical theory, the moral standards that
govern human behaviour are, in some sense, objectively derived from
the nature of human beings. However, according to natural law legal
theory, the authority of at least some legal standards necessarily
derives, at least in part, from considerations having to do with the
moral merit of those standards. The phrase "natural law" is sometimes
opposed to the positive law of a given political community, society,
or nation-state, and thus can function as a standard by which to
criticize that law. Positivelaw in the strictest sense is law made by
human beings.
The Main Differences between Morals and Law
The other point to discussin this regard is that though there are
cases where morals and law overlap with each other, there are some
differences between them, the most importantof which are as follows:
1. Legal precepts are just concerned with social behaviour, while
moral rules cover all voluntary human behaviour.
2. Legal rules are based on an external guaranteeof enforcement, while
moral rules are not basedon such a guarantee of enforcement but based
on an internal guarantee of enforcement.
3. Ethical 'dos' and 'don'ts' are permanent, universal and eternal,
while legal 'dos' and 'don'ts' are, more or less, changeable.
4. Legal rules are obligatory, while within the moral domain, there
are both obligatory and recommended obligations.
5. The goals of legal dos and don'ts are to providethe happiness of
people in their worldly life and to establish social justice, order,
security and publicwelfare and the like, while the goals of ethical
commands and prohibitions are to achieve spiritual perfection, which
is nothing other than proximity to God.
6. Legal rules are just concerned with the external aspect of the
act,but are not so concerned with the motivation for and intent of the
doer of the action, while the moral rules are mostly concerned with
the motivation for and the goal of the doer of the action.
Ethical and Legal Concepts are of Conventional Nature
Apart from the above-mentioned differences between legal and ethical
rules, ethical and legal concepts are, however,i'tibari(conventional).
For example, considering theconcept of property, we see that even if
it is applied to such metals as copper and silver, it is not because
of their being metals of a specifickind, but because they are desired
by people and can be used as a means for meeting their needs. In other
words, the acquisition of property by a person signifies another
conceptcalled 'possession' without an external instance.
These concepts are only based on the desires of groups or individuals
without having a relationto objective truth independent of
inclinations of social groups and individuals. These concepts, in
spite of being conventional, are not without relation to external
reality. Their validity is based on the specific needs of man to
attain felicity and his own perfection. Consequently, the worth of
these concepts, albeit dependent on convention, lies in their being a
symbol of the objectively true relationship between man's actions and
their results.
Consider the term "good": one of its meanings is to achieve a purpose
desired by a doer performing an action. The word ''good'' is
contrasted with the result that an agent expects. Without a comparison
and the relationship between theaction and the goal of the action, it
may not be possible to say if the action is good or not.
As is the case with the term 'right': one of its meanings in legal
terms is an advantage which can be claimed and which must be observed
by others. The word ''right'' in this meaning can be understood by
considering a person having an advantage as well as others who have to
observe this right. Therefore, the term ''right'' is predicated on the
external benefit aftera comparison and intellectual analysis. The word
"right" is associated with duty, andthey are two reciprocal concepts
which will be further explained.
The Reciprocity of Right and Duty
Right and duty are two reciprocal concepts and the two faces of the
samecoin. When a person has the right to dispose of hisproperty as he
wishes, others consequently are bound not to dispose of it at all.
Therefore, right and duty are reciprocally determined. That is,
wherever a right is determined, a duty is alsodetermined, and vice
versa. Of course, only oneof the two is explicitly stated; however,
the specification of one necessitates that of the other. It should be
noted that right is of a voluntary nature, whereas duty is of an
obligatory nature. One has a right against something and can use it or
not, but with respect to duty, one is obliged to respect it and should
not evade his or her obligation.
It is worth noting that the fundamental principle of Islamic Law
isthat man has the right and in some cases the bounden duty, to
fulfill all his genuine needs anddesires and make every conceivable
effort to promote his interests andachieve success and happiness.
However, he should do all this in such a way that not only are the
interests of other people not jeopardized and no harm is caused to
their strivings towards the fulfilment of their rights and duties, but
there should be all possible social cohesion, mutual assistance and
cooperation among human beings in the achievement of their objectives.
In respect of those things in which good and evil, gain and loss are
inextricably connected, the tenet of the law is to choose, for
instance, the least harm for the sake of greater benefit and sacrifice
a little benefit, in order to avoid a greater harm. This is the basis
of IslamicLaw. To what degree oneshould choose harm for the sake of a
greater degree of benefit depends on the circumstances in which one is
involved.
Islam attaches great importance to social life, and moreover Islam
considers it incumbent upon all to attend to social problems and to
struggle for the benefit of all human beings and for the establishing
a justsociety on Earth. Being indifferent to such problems is
considered inIslam to be a major sin. Paying attention to such
problems is so crucial that sometimes one feels obliged to spend all
of one's property and even to endanger one's own life in order to save
others from worldly and other-worldly afflictions and harms. It is
unlikely to find any other school of thought other than Islam which
has advanced this idea so far.Of course, all of the revealed religions
are unanimous on basic principles and rules; naturally they are in
common with Islam in this regard.
The word al-haqq (truth or the True) in the Qur'an
In Islam, there appear to be three golden threads that run through all
its aspects and these three golden threads are clearly intertwined.
They are: truth, justice and equity. The words used inthe Qur'an
areal-haqq,al-'adl, andal-qist. It is significant that each of these
words is significantly used in the Qur'an several times; the
wordal-haqqis used about 247 times,al-qist15 times andal-'adl13 times.
The wordal-haqqincorporates the other two terms and has several
meanings depending upon the context: truth, obligation,right and
justice.
Al-haqq can be used as a name for God. For example, the Qur'an says:
That is because Allah, He is the True, and that whereon they call
instead of Him, it is the false, and because Allah, He is the High,
the Great. (22:62). [2]
At this point, it is worth noting that in many Qur'anic verses, the
word`haqq' is used in a sense similar to the technical meaning of law
but not identical with it. Similarlyin theTreatise on Rights(Risalat
al-huquq) by the Fourth Shi`ite Imam, there are topics such as the
rights of your womb relatives, the right of your self (nafs) and the
rights of the tongue, hearing and sight. Many of these rights are
moral in their nature. It should be noted that the wordhaqqis not used
in a legal sense in the above verses but rather it falls into the
category of morals. However, in this paper, while dealing with law
from a Qur'anic perspective, we are not concerned with law (huquq) in
its moral sensebut in its legal sense.
The Source of Right and the Legal Goal of Society from the Islamic Point of View
At the same time, it should be noted that the social laws and
injunctions which make up the legal system of Islam should be based on
a goal which directly results from that system and which secures man's
felicity in social life. The question is: Is there another goal beyond
thisgoal which can be used as a means for the attainment of that goal
or not? In other words, the question is: Is providing for man's
felicity the ultimate goal or the intermediate one?
In answer to these questions, it should be said that the legal system
of Islam is distinct from other ones. The other legal systems based on
a secular world view know no goal beyond that of providing for man's
felicity in social life, and consequently, this very goal is
considered to be the ultimate goal and thedesired object per se. In
other words, in such systems, only those interests and benefits which
can be actualized and attained in this world are taken into
consideration. In this regard, God says in the Qur'an:
They know only some appearance of the life of the world, and are
heedless of the Hereafter (30:7).
Then withdraw (O Muhammad) from him who fleeth from Our remembrance
and desireth but the life of the world (53:29).
Islam does not restrict man's felicity to this world only but rather
thegoal of man's creation transcends this world. The ultimate goal is
to get spiritually closer to God. Man's felicity in this world can be
desirable only when it is consistentwith attaining the ultimate goal.
Islam is a religion which encourages the qualities of purity, beauty,
goodness, virtue, success and prosperity whichAllahwants to flourish
in the life of His people and to suppress all kinds of exploitation
and injustice. As well as placing before us this high ideal, Islam
clearly states the desired virtues and the undesirable
evils.Therefore, the members of society should have the right to use
all the God-given potentialities and abilities for the attainment of
their ultimate goal.
The legal goal of Islam is to prepare the ground and context for the
spiritual growth and eternal felicity of the people. At the very least
they should not be inconsistent with spiritual development, for, in
the view of Islam, the life of this world is but a fleeting phase of
the entire human life which despite its short duration, has a
fundamental role in human destiny. It is in this phase that with his
conscious behaviour the human being prepares for himself his
everlasting felicity or wretchedness. Even if a law could maintain the
social order in this world but would cause eternal misfortune for
humans, itwould not be, from an Islamic perspective, a desirable law,
even if it were to be accepted by the majority.
The Necessity of Law and Legal Rules in Society
Islamic law is based on a realistic view of things which are on one
hand related to God Who created the universe and man based on a
definite goal, and on the other hand to Resurrection, because it is
the last phase of human existence and the ultimate station of his
journey towards God. Finally, it is connected to Divine Wisdom,
because the best created order is built upon the most Sublime Divine
Wisdom. Since the members of a society are not equal in terms of
understanding, and since all the members equally do not seek right and
justice, thus, for the establishment of order and for the prevention
ofchaos, it is necessary that there be some highly qualified
institutionalized powers representing the whole society for taking
responsibility for the crucial functions. These powers consist of the
legislature, the executive and the judiciary.
The functions of the legislature are to be exercised through the
Islamic Consultative Assembly, consisting of the elected
representatives of the people. Legislation approved by this body,
after going through certain stages, is communicated to the executive
and the judiciary for implementation.
The judiciary is of vital importance in the context of safeguarding
the rights of the people in accordance with the line followed by the
Islamic movement, and the prevention of deviations within the Islamic
nation. Provision has therefore been madefor the creation of a
judicial system based on Islamic justice and operated by just judges
with meticulous knowledge of the Islamic laws. This system, because of
its essentially sensitive nature and the need for full ideological
conformity, must be free from every kind of unhealthy relation and
connection (this is in accordance with the Qur'anic verse:"When you
judge among the people, judge with justice"[4:58]).
Considering the particular importance of the executive power in
implementing the laws and ordinances of Islam for the sake of
establishing the rule of just relations over society, and considering,
too, its vital role in paving the way for the attainment of the
ultimate goal of life, the executive power must work toward the
creation of a just Islamic society. Consequently, theconfinement of
the executive power within any kind of complex and inhibiting system
that delays or impedes the attainment of this goal is rejected by
Islam. Therefore, the system of bureaucracy, the result and product of
old forms of government, will be firmly cast away, so that an
executive system that functions efficiently and swiftly in the
fulfilment of its administrative commitments comes into existence.goal
of life, the executive power must work toward the creation of a just
Islamic society. Consequently, theconfinement of the executive power
within any kind of complex and inhibiting system that delays or
impedes the attainment of this goal is rejected by Islam. Therefore,
the system of bureaucracy, the result and product of old forms of
government, will be firmly cast away, so that an executive system that
functions efficiently and swiftly in the fulfilment of its
administrative commitments comes into existence.
The Separation of Powers
During the past three centuries, there have been a lot of disputes
between the philosophers of law and other social scholars. Today the
issue of separation of powers hasbeen stressed so much that it has
been accepted as an indisputable principle of the philosophy of law
and of the basic law.
In the newly-established Islamic society in Medina,the holy Prophet of
Islam had responsibility for thethree powers, and there occurred no
problem in this regard. During the occultation of the twelfthShi'ite
Imam, according to the Shi'ite jurisprudential principles, the leader
has responsibility for all the three powers. [3]Therefore, the powers
of government in the Islamic Republic of Iran, for example, are vested
in the legislature, the judiciary, and the executive functioning under
the supervision of the supreme Leader.
The Basic Law
Most of the social regulations are legislatedand approved by a
legislature, but there is another law called basic law which should be
specified and validated before the formation of alegislature and which
deals with such questionsas why it is necessary that there should be a
legal system in every society, and why law needs three basic
institutions of legislature,judgement and execution, and so on.
The basic law consists of a set of rules which should be validated
before the legislation and codification of the social regulations.
In the democratic systems, in order to give credence to the basic law,
first the people should elect the membersof the constituent assembly
by voting for them. Then, the elected members of the constituent
assembly will legislate and approve thecode of the basic law which is
called constitution, and which is offered to be voted for by the
people.
The term basic law is used in some places as analternative to
"constitution." A Basic Law is either a codified constitution, or in
countries with constitutions which are not codified, a law given to
have constitutional powers and effect. The term basic law is used in
some places as an alternative to "constitution." A Basic Law is either
a codified constitution, or in countries with constitutions which are
not codified, a law given to have constitutional powers and effect.
The Sources of Law in Islam
Each and every legal system consists of a set oflegal rules which are
usually derived from one or more sources. In other words, in order to
build alegal system, some of these sources, and the elements or
constituents which are extracted fromthem, should be used.
To date the Muslim juristic rationalists (usuliyyun) have never used
the term 'the sources of law', and instead they have used the
expression 'the jurisprudential proof', though the meaning of the
latter expression is not the same as the former. The Shi'ite juristic
rationalists (usuliyyun) rely on four proofs called the juristic
proofs, which consist of: the Book (the Qur'an), the Sunnah (the
Tradition), consensus, and reason. Some of the other juristic
rationalists also add some other proofs or sources which consist of:
analogical reasoning (qiyas), juristic preference (istihsan), public
interest (masalih mursalah), opening and blocking the means (fath wa
sadd al-dharaai'), convention, and so on.
Having said this, it has to be noted that the only source of law in
Islam is the Divine Legislative Will. That is, a rule is validin Islam
only when it can be attributed to the legislative Will of God
Almighty. Attributing to any other source can never give validity to
the legal ruling. Firstly, the unique importance of theQur'an and
secondly of the Sunnah (the Tradition, that is, the sayings, actions
and silent assertions of the Prophet and the Imams) is due to the fact
that these two proofs derive from the Divine Legislative Will. That
is, if we wish to know about the rulings of God, we will have no
choice but to refer to these two proofs. These two are notsources
themselves but guide us to the original source. A consensus is binding
if it can be a means for discovering the Sunnah (the Tradition) of the
holy Prophet or of the Imam
As previously stated, the religion of Islam accepts reason as one of
the fundamental proofs of the religious rulings and attaches great
importance to it, if it can be a means for discovering the rulings
ofGod. The Book, the Sunnah, consensus and reason are binding simply
because they are means of discovering the Will of God, and never are
they considered to beindependent sources vis-à-vis the Divine
Legislative Will.
Notes:
[1]Based on the religiousteachings and the consensus of all the
religious scholars, the goal of religion is to provide man with a
comprehensive felicity in this world and the next. Islam as a revealed
religion is both the path and the guide which will lead to man's
eternal happiness. It is composedof three elements which are
intertwined: i. doctrine ii. ethics iii. law. The threefold elements
play an effective role in providing man with happiness when all three
are combined together just as a single organism is composed of its
inseparable organs. These three elements in combination facilitate
man's eternal felicity. Thetexture or combination of these three
elements issuch that they should never be separated from one another,
and if they are considered separately, they will lose their own
essential qualities. Therefore, if anyone believes only in God, the
Creator, the all-Wise, the all-Knowing,the all-Powerful, the
all-Compassionate, the all-Rich, and the Lord of the Universe, who
created man and Who wills both his good and perfection, and who knows
his needs, interests and harms or if he observes an ethical discipline
only for the purification of the soul and the acquisition of good
traits of character or if he only abides by the religious commands and
prohibitions, he will never attain to that comprehensive this-worldly
and other-worldly felicity, which will be actualized thoughthe three
elements mentioned above.. The Islamic intellectual and transmitted
sciences (al-'ulum al-'aqliyyah wa'l-naqliyyah) are comprised of an
extensive scope dealing with different major issues. However, based on
the same threefold elements mentioned above, the religious sciences
are comprised ofIslamic theology, that is the discipline relating to
the beliefs, and ethics, i.e. the discipline relatingto the
purification of the soul, and moral conduct, and jurisprudence, the
discipline concerned with the laws and injunctions relating to man's
individual and social needs. Of course, acquaintance with these
sciences entails being familiar with certain disciplines which are
considered to be their preliminaries and which can be called religious
sciences in one sense.
[2]For further study, refer to the following verses: (30:8), (2:61),
(38:21), (38:22), (38:26), (21:112), (40:20), (40:78), (39:69),
(39:75), (10:47), (10:54), (2:282), (24:48), (24:49) (51:19), (70:24),
(70:25), (6:141), (17:26), (30:38), (2:180), (2:236) and (2:241).
[3]According to twelve-Imam Shi'ism, Abu'l QasimMuhammad ibn al-Hasan
al-Askari, the Proof (al-hujjah), the righteous descendent (al-khalaf
al-salih), the promised Mahdi and the twelfth Imam, peace be upon him,
was born in Surra man ra'a (Samarrah) in the midnight of Sha'ban in
the year 255. When hisfather died, he was five years old and he became
Imam through Divine Command as was the casewith Yahya (John) as He,
the Exalted, says: "O Yahya! Take hold of the Book with strength, and
We granted him judgement while yet a child" (19: 12). God made Yahya a
prophet while hewas a child as He made Christ a prophet while still a
little child. God, the Exalted, says through Jesus when he addressed
his people: "He said: Surely I am a servant of Allah; he has given me
the Book and made me a prophet" (19: 30). The Muslims are agreed on
the appearance of the Mahdi at the end of the time for the
obliteration of ignorance, oppression and tyranny and for
dissemination of the signs of justice and the exaltation of the word
of truth and the manifestation of Religionin its entirety even if the
polytheists may be averse. By the permissionof God, he will deliver
theworld from the disgrace of servitude to other than God and abolish
evilmorals and customs and abrogate the irreligious laws as
established by whims and break the bonds of national and racial
prejudices and eliminate the causes of hostility and hatred which have
given rise to the division and disunity of the community, and God, the
Exalted, will keep through his appearance His promise which He made to
the believers as He says: "Allah has promised to those of you who
believeand do good that He will most certainly make them rulers in the
earth as he made rulers those before them, and that He will most
certainly establish for them their religion which He has chosen for
them, and that He will most certainly, after their fear, give them
security in exchange; they shall serve Me, not associating aught with
Me, and whoever is ungrateful after this, these it is who arte the
transgressors" (24:55). "And We desired to bestow a favour upon those
who were deemed weak in the land, and to make them the Imams, tomake
them the heirs" (28:5). "And certainly We wrote in the Book after the
reminder that (as for)the land, My righteous servants shall inherit
it" (21:105). The Occultation of the twelfth Imam has two distinct
stages: the Lesser Occultation and the Greater Occultation. In the
Lesser Occultation, which began in 260/872 and ended in 329/939,
lasting about seventy years, the Hidden Imam continued to communicate
with humanity through his special deputies. The second, the greater
occultation which commenced in 329/939 and which is continuing as long
as God wills it. According to the Shi'ah, the Mahdi is alive but
hidden. He is the axis mundi, the hidden ruler of the Universe.