-FOR INFORMATION ABOUT "THE PILLARS OF ISLAM" AND THE ANNUAL PILGRIMAGE/HAJJ BY MOSLEMS, TAKE A BRIEF SIDESTEP HERE.SPECIAL CONTRIBUTION OF MUSLIMS
LAW exists in human society from time immemorial. Every race, every region, and every group of men has made some contribution in this sphere. The contribution made by Muslims is as rich as it is worthy and valuable.
SCIENCE OF LAW
301. The ancients have all had their particular laws, yet a science of law, abstract in existence and distinct from laws and codes, does not seem to have ever been thought of before Shafi'i* (150-204 H./767-820). The work of this jurist, Risalah designates this science under the expressive name of usul al-fqh "Roots of Law," from which shoot the branches of the rules of human conduct. This science called ever since Usul al-Fiqh among the Muslims, treats simultaneously with the philosophy of law, sources of rules, and principles of legislation, intrepretation and application of legal texts. These, latter, i.e., laws and rules are called furu' (branches) of this tree. Apparently these authors were inspired in the choice of the terms by the Quranic verse (14/24-25): "the example of a goodly word is like a goodly tree: its roots set firm, its branches reaching into heaven", giving its fruit at every season by permission of its Lord".
INTENTION IN ACT
302. Among the novelites in the domain of fundamental notions of law, may be pointed out the importance given to the conception of motive and intention (niyah) in acts. This notion is based on the celebrated saying of the Prophet of Islam (d. 632 after Christ): "The acts
*-He died in 204 H/820). He has had some predecessors, such as Abu Hanifah (d. 767) with his Kitab ar-Ra'y (i.e. on the Jurdical opinion), and this latter's two pupils Muhammad as-Shaibani and Abu Yousuf each of whom with a Kitab Usul al-Fiqh (i.e. on the Roots of Law) Yet none of them has come down to us, in order to judge them on the basis of their contents.
106
are not (to be judged) except by motives." Ever since an intentional tort or crime, and one caused involuntarily, have not been treated alike by Muslim tribunals.
WRITTEN CONSTITUTION OF STATE
303. It is interesting as well as inspiring to note that the very first revelation
(Quran 96/1-5) received by the Prophet of Islam, who was an unlettered person himself,
was the praise of pen as a means of learning unknown things, and as a grace of God.
It is not surprising that, when the Prophet Muhammad endowed his people with a statal
organism, created out of nothing, he promulgated a written constitution for this State,
which was City-State at first, but only ten years later, at the moment of the demise of its
founder, extended over the whole of the big Arabian Peninsula, and the southern portions of
Iraq and Palestine.* After another fiffteen[sic] years, during the caliphate of 'Uthman,
there was an astonishing penetration of Muslim armies to Andalusia (Spain) on the one hand,
and the Chinese Turkistan** on the other, they having already occupied the countries that
lay in between. This written constitution, prepared by the Prophet Muhammad, comprising
52 clauses, has come down to us in toto (cf. Ibn Hisham, for instance). It treats with
a variety of questions, such as the respective rights and duties of the ruler and the ruled,
legislation, administration of justice, organization of defence, treatment of non-Muslim
subjects, social insurance on the basis of mutuality, and other requirements of that age.
The Act dates from 622 of the Christian era, i.e., the first year of the Hijrah.
UNIVERSAL INTERNATIONAL LAW
304. War, which unfortunately has always been very frequent among the members of the human family, is a time when one is least disposed to behave reasonably and do justice against one's own self, and in favour of one's adversary. As it is really a question of life and death, and a struggle for very existence, in which the least mistake or error would lead to dangerous consequences, the sovereigns and heads
*-Among those who received invitation of the Prophet Muhammad to embrace Islam, there
is also the King of Samawah, in Iraq. As to Palestine, the campaign of Tobuk attached
Ailah, Jarba and Adhruh to the Islamic territory.
**-For the conquest of part of Spain in the year 27 H., cf. Tabari, Baladhuri, etc.; and for
that of Transoxiana or Chinese Turkistan in the same year, see Baladhuri, which fact is
corroborated by Chinese historians also.
107.
of States have always claimed the privilege to decide, at their discretion, the measures they
take in regard to the enemy. The science relating to such behaviour of independent sovereigns
has existed from very old times; but it formed part of politics and mere discretion, at the
most guided by experience. The Muslims seem to have been the first to separate this science
of public international law from the changing whims and fancies of the rulers of the States,
and to place it on a purely legal basis. Moreover, it is they who have left to posterity the
oldest extant works on international law, developed as an independent science. Among authors
of such treatises, we find names of such eminent personalities as Abu Hanifah, Malik,
al-Auza'i, Abu Yousuf, Muhammad ash-Shaibani, Zufar, al-Waqidi, etc.
They all called the subject siyar (conduct, i.e., of the sovereign). Further, in the
ordinary codes of law--the oldest extant work hails from Zaid ibn 'Ali who died in 120
or 122 H., and also by every subsequent author--one speaks of this subject as forming part of
the law of the land. In fact one speaks of it immediately after the question of highway
robbery, as if war could be justified for the same reason as police action against
highwaymen. The result is that belligerents have both rights and obligations, cognizable
by Muslim courts.
GENERAL CHARACTERISTICS OF MUSLIM LAW CODES
305. The first thing which strikes the imagination of the reader of a manual on Islamic
law is that this law seeks to regulate the entire field of human life, in its material aspect
as well as the spiritual one. Such manuals begin usually with the rites and practices of cult,
and discuss under this rubric also the constitutional question of sovereignty, since the imam,
i.e., the head of the State is ex-officio leader of the service of worship in the mosque.
One should not therefore be astonished that this part of law books deals also with the
subject of the payment of taxes; since the Quran has often spoken of worship and the zakat-tax
in the same breath, worship being bodily worship and tax the worship of God by means of money.
Thereafter the law manual discusses contractual relations of all sorts; then the crimes and
penalties, which include laws of war and diplomacy also; and finally the rules governing
heritage and wills. Man is composed both of body and soul; and if government with the
enormous resources at its disposal attends exclusively to material affairs, the spirit would
be famished, being left to its own material affairs, the spirit would be famished, being left
to its own private resources, very meagre in comparison with those available in temporal
affairs. The unequal developments of body and soul will lead to lack of equilibrium in man,
the consequences of which will in the long run be disasterous to
civilization. This treatment of the whole, both of body and soul, does not imply that the
uninitiated
108.
should adventure in the domain of religion, even as a poet, for instance, should not be allowed to perform surgical operations; every branch of human activity must have its own specialists and experts.
306. Another feature of the Islamic law seems to be the emphasis laid on the correlativity of right and obligation. Not only the mutual relations of men among themselves, but even those of men with their Creator are based on the same principle; and cult is nothing but the performance of the duty of man corresponding to the rights (to) the usufruct of worldly things that Providence has accorded him. To speak only of the "rights of man," without simultaneously bringing into relief his duties would be transforming him into a rapacious beast, a wolf or a devil.
PHILOSOPHY OF LAW
307. The classical jurists, among Muslims, place laws on the double basis of good and evil.
One should do what is good and abstain from what is evil. The good and evil are sometimes
absolute and self-evident, and at other times merely relative and partial. This leads us to
the five-fold division of all judicial rules, both orders and injunctions. Thus, all that is
absolutely good would be an absolute duty, and one must do that. Everything which has a
preponderant good would be recommended and considered meritorious.
Things where both these
aspects, of good and evil, are equal, or which have neither of them, would be left to the
discretion of the individual to do or abstain from, at will, and even to change the practice
from time to time; this category would be a matter of indifference to law. Things absolutely
evil would be objects of complete prohibition, and, finally, things which have a preponderance
of evil would be reprehensible and discouraged. This basic division of acts or rules into five
categories may have other sub-divisions with as minute nuances as the directions on a compass
dial in addition to the four cardinal points of north, south, east and west.
308. It remains to define and distinguish between the good and the evil. The Quran, which is the Word of God and a holy Book to Muslims, speaks of these on many occasions, and says that one must do the ma'ruf and abstain from the munkar. Now, ma'ruf means a good which is recognized as such by everybody and which is considered by reason to be good, and therefore is commanded. And munkr means a thing which is denounced by everybody as not at all being good, an evil which is recognized as such by everybody; and that which is considered by reason to be evil would be forbidden. A very great part of Islamic morality belongs to this domain; and the cases are very rare
109.
-FOR INFORMATION ABOUT "THE PILLARS OF ISLAM" AND THE ANNUAL PILGRIMAGE/HAJJ BY MOSLEMS, TAKE A BRIEF SIDESTEP HERE.