Islamic Sharia and the public interest
The aim of this article is to illustrate why Muslims and Muslim nations are averse to a civil state with secular laws. It is not a critique of non-Muslim governments or laws which are widely accepted by proper Islamic scholars as legitimate systems of law and order for its citizens and constituents, including its Muslim citizens and constituents. It is even acknowledged that much of secular law or civil government is quite similar to Islamic law; however, this article will focus on the Muslim public interest as well as the social, political and economic benefits that come from Islamic Sharia.
According to the perspective of Islamic theology and scholarship, God has created the universe to follow His laws: ‘Some seek other than the religion of Allah, but the entire heavens and earth are subservient to Him, whether willingly or unwillingly, and unto Him they will be returned’ (Al-Imran: 83). It is implied by this verse that creation is necessarily contingent on certain divine principles insofar as everything is ‘subservient to Him’. Throughout the Quran, God reveals verses relating to different facets of life in different modes of speech including commands, prohibitions, allegories, metaphors, generalities, specificities, etc. It has historically been the job of very learned scholars and experts of language, grammar, jurisprudence and its principles who have derived Islamic law from the sharia, since ‘religious’ law is as complex and intricate as ‘secular’ law.
Therefore, following from the principles which have been established by the understanding of top jurists and scholars, a Muslim must a priori seek law or arbitration from God alone, and/or from the Prophet’s practical application. Islamic belief is tethered to acceptance or contentment with the clear principles of Islamic law. Allah says in the Quran: ‘By thy Lord, they will not believe in truth until they make you judge of what is in dispute between them and find within themselves no dislike of that which you decided, and submit with full submission.’ (A-Nisa’: 65). In other words: some people may only be content if you follow their ways, but the Muslim must be content with the edicts announced by God and evinced by the Prophet in his actions, peace and blessings be upon him. Without this, Islam would merely be words without practice, as when Allah says: ‘Have you not seen those who pretend that they believe in that which is revealed to you and that which was revealed before you, how they would seek judgment of their disputes via false deities when they have been ordered to abjure them? Satan would mislead them far astray.’ (Al-Nisa’: 60). Allah is the Creator, the Sovereign and the Legislator who says: ‘Who is better than Allah for judgment between a people who have certainty in their belief?’ Al-Maeda: 50) (1).
Allah alone is the Lawgiver.
Muslims believe that true law is derived from the Quran and the Prophetic legacy, since, for believing people, God represents the sole Sovereign and Lawgiver – characteristics of His divinity. ‘The decision rests with Allah only, Who has commanded that you worship none except Him.’ (Yusuf: 40). It is therefore also believed that Allah has universal arbitration over His creation insofar as He designates judgment: ‘He makes none to share in His government’ (Kahf: 26) (2). And: ‘When Allah judges there is none that can postpone His judgment’ (Al-Ra’id: 41).
The Prophet, while not considered a legislator, acted as the ‘elected’ messenger to convey and apply Allah’s message to humanity: ‘Remind them, for you are only one who reminds, though you are not a warder over them’ (Gashiya: 21-22), ‘The messengers are only charged with plain conveyance of the message.’ (Nahl: 35). Following from this, Muslims believe that man should refrain from legislating the permissibility or prohibition of matters except by way of using the original principles found in the religious texts and elaborated by the books of jurisprudence: ‘Speak not concerning that which your own tongues deem saying: “This is lawful, and this is forbidden,” so that you invent a lie against Allah. For those who invent a lie against Allah will not succeed’ (Nahl: 116).
Islamic law and the public interest.
Islam came with many great causes including protecting the public interest; public interest being defined as peoples’ greatest necessities, upon which lives and the stability of family and community depend. Islam protects 5 fundamental human rights: religion, life, intellect, honor, and property. If any one of these rights or needs is in loss or in danger, in imbalance or disorder, in chaos or turbulence, then suffering or oppression will almost surely result.
As religion is central to life in Islam, Islamic law requires that Muslims have certain beliefs and practice certain rituals. The fundamental tenets of faith are: belief in God, all of the Prophets, the divinely revealed books, the angels, the day of retribution, and destiny. If someone believes these things, then he or she is a Muslim and entitled protection and Islamic law. Regarding the outer ritual, a Muslim is obligated to: pray, pay the alms tax of 2.5% if his wealth is sufficient, fast during the month of Ramadan, and make the pilgrimage at least once in his life (if he is physically and financially able).
It is a communal obligation to invite people to Islam: ‘We have sent thee O Muhammad as a messenger to mankind and Allah is sufficient as Witness’ (A-Nisa’: 79), ‘He it is Who has sent His messenger with the guidance and the religion of truth, that He may cause it to prevail over all religions, however much idolaters may be averse.’ (Al-Tawba: 33). However, it is important to note that Islamic law also has provisions for the protection of and service to non-Muslims, for ‘There is no compulsion in religion’ (Baqarah: 256).
Murder and assault are strictly prohibited. ‘Do not slay the life which Allah has made sacred, save in the course of justice. He has command you to this in order that you may discern.’ (Al-Ana’am: 151). Intimidating people or attacking someone without right is likewise prohibited: ‘For that cause We decreed for the Children of Israel that whosoever kills one human being, it is as if he had killed all mankind, and whoso saves the life of one, it shall be as if he had saved the life of all mankind.’ (Al-Maeda: 32), and ‘Whoso kills a believer on purpose, his reward is Hell for ever. Allah is wroth against him and He has cursed him and prepared for him an awful doom.’ (Al-Nisa’: 93).
Allah has ordained punishment for the aggressor in order to deter would-be evil doers and protect the innocent: ‘And We prescribed for them therein: a life for a life, and an eye for an eye, a nose for a nose, and an ear for an ear, and a tooth for a tooth, and equal retaliation for wounds.’ (Al-Maeda: 45), ‘And there is life for you in retaliation, O men of understanding, that you may ward off evil’ (Baqarah: 179), And the prophet, peace be upon him, said: ‘Intentional slaughter will lead to retaliation’. Even unintentional manslaughter requires atonement and reparation: ‘He who has killed a believer by mistake must set free a believing slave, and pay the blood-money to the family of the slain, unless they remit it as a charity….’ (Al-Nisa’: 93).
This differs from civil laws in that there tends to be an insistence on penalization, whether intentional or unintentional, and that a pardon from the victim’s relatives (or ransom) is not accepted.
As the intellect is something unique to humans, and a mark of our humanity, Islam prohibits that which could potentially harm the mind. As such, there is a prohibiting against alcohol, wine or anything that corrupts the mind such as drugs, etc: ‘O you who believe, strong drink and games of chance and divining arrows are only an abomination of Satan. So leave it that you may succeed’ (Al-Maeda: 90), And the Prophet, peace be upon him said, ‘Every intoxicant is alcohol and every intoxicant is forbidden’.
To discourage the presence of alcohol in community, and intimidate those who drank secretly, the Prophet said,
‘Allah has cursed alcohol, its drinker, the one who pours it, its vendor, its buyer, and its maker, as well as he who squeezes it from grapes, the one who carries it, and the one it is carried to’
(Narrated by Abu Dawood and Ibn Majah).
Although civil states have bans on most drugs, they do not have a ban on alcohol, even though there is strong evidence that it causes great personal, familial and societal harm.
Honor can be defined as having high respect for something or the integrity an individual has; it is also defined as a privilege, a distinction; and of relating to reputation and virtue. It is this last nuance of honor, reputation and virtue, which concerns us here in understanding Islam’s definition of honor and the reason for protecting is as a right of every man, woman and child.
Although Islam protects all of the aforementioned, it is particularly concerned with the honor of a woman, i.e. her chastity or reputation for this, as this is the bedrock of an honest and tight-knit family relationship, and by extension, the virtues of the greater community. (It should be noted that a man’s chastity is equally important.) Firstly, Islam recognizes that false allegations of immoral behavior is particularly heinous and damaging to an innocent woman or her reputation, and thus severely forbidden even the accusation of being unchaste. Secondly, as a way to protect honor and the sanctity of marriage and the family unit, Islam prohibits fornication and adultery: ‘Do not come near to adultery; for it is an abomination and evil way’ (Isra: 32).
Islam also honors the man and woman by requiring them to dress modestly and not shamelessly mix and mingle: ‘When you ask of them [the wives of the Prophet] anything, ask it of them from behind a curtain, for that is purer for your hearts and for their hearts.’ (Al-Ahzab: 53), The Prophet, peace be upon him, also said: ‘Beware of entering upon any women unannounced’.
The command to wear hijab for women is to encourage modesty as well as to honor her as a freethinking individual as opposed to an object of men’s desires: ‘Live in your houses but do not adorn yourselves with the adornment of ignorant times’ (Al-Ahzab: 33), ‘O Prophet, Tell your wives and your daughters and the women of the believers to cover themselves modestly; that will be better for them so that they may be recognized yet not harassed. Allah is ever Forgiving, Merciful.’ (Al-Ahzab: 59).
God encouraging marriage as a way to enable man and woman to protect their honor and chastity yet fulfill their desires lawfully with one another: ‘Of His signs is that He created for you partners from yourselves that you might find rest in them, and He ordained between you love and mercy. These are portents for those who reflect.’ (Rum: 21), And the Prophet, peace be upon him said, ‘O young men, whoever among you can afford to get married let him do so.’ Yet if a couple cannot get along whatsoever, divorce is allowed: ‘But if they separate, Allah will compensate each out of His abundance’. (Al-Nisa’: 130).
Although the institution of marriage exists within civil laws, there are few protections in place for the woman. As a result, society witnesses higher cases of sexual activity out of wedlock, higher disease and divorce rates, and higher rates of adultery.
‘Property’ can refer to one’s wealth, land, horses, gold, etc. In short, anything of value relating to one’s capital. However, wealth must be obtained via legitimate methods in order to maintain the inherent justice of Islamic economy: ‘Allah permits trading and forbids usury’ (Baqarah: 275). ‘O you who believe: Observe your duty to Allah, and give up what remains due to you from usury, if you are truly believers. But if you do not, then be warned of war against you from Allah and His messenger. And if you repent, then take your principal without interest. Wrong not, and you shall not be wronged.’ (Baqarah :278 -279). As such, there is prohibition of unjust financial transactions: ‘And eat not up your property among each other unjustly’ (Baqarah: 188).
One of the biggest injustices in civil or secular lands is the legality of usurious transactions between banks and other financial institutions, which leads to the exploitation of millions of people. Civil law punishes insolvent debtors yet does nothing to the immoral and unscrupulous bankers, investors and others who intentionally manipulate interests rates to create for themselves maximum profit and minimal risk at the expense of unsuspecting citizens, or citizens with no recourse to sustenance except through such a scheme.
(1) Since the revolution of 1919 and abolition of the Caliphate, the international Islamic community has fluctuated between Eastern and Western systems; yet what has it benefited from these other legislative systems or in what way has the community been served?
(2) Reference to the invalidity of the so-called legislative power of human beings.