by Dr. Ali Shehata
Distinctive Features of Islamic Law
Anyone who studies Islamic Law will find that it is distinguished by certain unique features that are not found in other legal systems. These characteristics have been responsible for its stability, growth, and relevance for over fourteen centuries. Indeed, the Shari’ah has a lasting and global appeal, because it is the final, divinely revealed law for all of humanity, as it is connected with the last of the divinely revealed religions—Islam. Thus, it is a must for the Shari’ah to have unique characteristics so as to provide it with the durability and stability necessary to deal with the ever-changing needs presented by humanity—throughout the globe and across time.
Islamic Law is the broadest, most comprehensive system of legislation in the world, far more complete than any man-made legal system today or at any point in history. It was applied, through various schools of thought, from one end of the Muslim World to the other for the past fourteen hundred years. Only in recent times, with the impact of the colonization of the Muslim lands, has it temporarily ceased to operate except in limited fashion in a few places. It also had a great impact on other nations and cultures throughout its history.
*Watanabe L. (2012) The Possible Contribution of Islamic Legal Institutions to the Emergence of a Rule of Law and the Modern State in Europe. In: Al- Rodhan N.R.F. (eds) The Role of the Arab-Islamic World in the Rise of the West. Palgrave Macmillan, London
Many civilizations of the world borrowed their own legal systems from Islamic Law by way of contact with Islamic Spain, Sicily, West Asia, and the Balkans. * Boisard, M. (1980). On the Probable Influence of Islam on Western Public and International Law. International Journal of Middle East Studies. Vol. 11, No. 4, pp. 429-450. Retrieved from: https://www.jstor.org/stable/163176
Some of the unique features of Islamic Law are the following:
1. Nobility of purpose. Every system of law has an objective that it seeks to fulfill. This objective varies from culture to culture. It also varies due to the changing aims and objectives of those in power. For this reason, changes and amendments are commonplace, as nations employ law as a means of directing their citizenry to certain objectives.
Islamic Law, on the other hand, is not shaped by society. Quite the contrary, society is shaped by it. This is because man did not create it, but in fact, he must recreate himself in conformity to it. In short, Islamic Law aims at a great objective: that of realizing the benefits and best interests of both the individual and society, warding off whatever is to their detriment and giving preference neither to the needs of the individual, nor to those of society as a whole.
2. Islamic Law is divine revelation. All the injunctions of Islamic Law are revelation from God, so the one who is legislating for mankind is their Creator, Who knows best what will be of benefit to his creation in both this world and the next. He knows the psychological, as well as physical, makeup of the human being, what will be in harmony with it, and what will clash with it. Regarding this, God says:
Does the One who created not know? And he is the Gentle, the All-Aware. {67:13}
Man-made law, on the other hand, is the product of the human intellect that has limited insight and is continually learning and readjusting. For this reason, man-made law is often subject to deficiency and error. Therefore, the legislations that come from human effort are not always suitable for human nature.
3. Applying the rulings of Islamic Law constitutes obedience to God. Following Islamic Law is a way of worshipping God and earning His reward. Similarly, disobeying it equals disobedience to God and is deserving of His punishment. Some types of crime have prescribed punishments that are supposed to be carried out in this world. Others hold the threat of punishment in the Hereafter. Hence, the individual Muslim is always policing himself, not only out of fear of God (as opposed to only fearing the state), but also in hope of His Mercy and His eternal reward in the Hereafter—which for many people is a far stronger incentive to obey God.
As for man-made laws, the primary incentive to obey them is tied to the fear of criminal prosecution and civil liability, not the hope of attaining blessings and rewards from God. Likewise, disobedience to such laws does not result in as much a feeling of guilt, as long as it goes unnoticed by the authorities.
4. Islamic Law holds the distinction of being complete in all senses. It requires no amendments, no additions or subtractions. It comes to regulate four different facets of human interaction:
the relationship between the individual and his Creator,
the relationship between the individual and himself,
the relationship between the individual and other members of society, and
the relationship between the individual and the state.
If we compare Islamic Law in this respect to any of the man-made legal systems, we will find that the latter primarily deal with the relationship between the person and others, and the person and the government. As regards the individual’s relationship with himself, who can often be his own worst enemy, it offers no guidance. It is also silent about his relationship with his Creator, who brought the person into existence and submitted the rest of Creation to his needs. In this area though, secular man-made law has conceived the idea of “separation of Church and State,” where God is kept out the law.
This notion of “separation of Church and State” is rejected by the Shari’ah, since God is the only Legislator in that He sends down the Law. Even though ethics is an integral component in both Islamic and secular legal systems, Islamic Law differs slightly since it is also concerned with the future of the human being, not only in this worldly life, but also in the eternal life to come, by enjoining acts of worship that must be carried out by every believer in this faith.
5. Permanence in principles and flexibility in application. Islamic Law is built upon a set of fixed, unchanging principles derived from the Quran and Sunnah which have been accurately recorded and preserved. Many of these texts contain general rules for legislation, without going into all the precise details relating to application. This allows the judge the discretion to take changing circumstances into consideration.
For example, in formulating the Islamic political system, the religious texts give a general outline which includes such things as justice between the citizenry, obedience to political authority, consultation between Muslims, and cooperation in righteous conduct. At the same time, the texts leave the application of this general outline to practical circumstances that require a measure of flexibility. If the outlined objectives of Islamic government are implemented, the manner in which they are carried out or the different forms that this might take are not at issue, so long as the rulings imposed by the sacred texts and the principles of the Shari’ah are not violated.
Modern legal systems on the other hand have very limited collections of permanent principles, often in the form of constitutions that are successively altered by amendments, to go by with the result that change and reform often lead to the downfall of their basic national goals and fundamentals over time. The foundations and principles of most of these legal systems, although sometimes based on the concept of precedent, as in the US, are exposed to change and substitution so often that they become the targets of sport and corruption for a number of lawyers and legislators looking for their own gain.
6. The absence of difficulty. Islamic Law does not impose any obligations of great severity or difficulty.
Whoever closely examines the rulings of Islamic Law will find within them an obvious pattern of making things easier for the person. Moreover, all obligations that have been imposed, from the onset, have had leniency and ease taken into consideration for the ones who must carry them out.
God has decreed that every legally accountable person must perform five prayers a day, no individual prayer requiring more than a few minutes. The one who is unable to stand is permitted to sit. Additionally, the traveler is given the license to shorten their prayer. Additionally, fasting is obligatory for one month out of the year. In spite of this requirement, breaking the fast is permitted for the one who is traveling or ill; and so on.
The obligations imposed by Islamic Law are few. They can all be learned in a short period of time. They do not have many particulars and secondary factors to consider, making it easy to know them. This is attested to by God’s words:
God does not intend to make difficulty for you, but He intends to purify you and complete His favor upon you, that you may be grateful. {5:6}
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