Islamic concept of Law
It's Essence is Divinely Determined which determine its Perfection, From Other perspectives.
(“The law is a rule of human conduct established by a communication from God, expressive either of demand or indifference or more declaration.”)
(“AND WHATEVER THE APOSTLE GIVES YOU, FAKE IT: AND WHATSOEVER FORBIDS YOU, ABSTAIN FROM THAT” (AL-QURAN 59:7)
Robert Bolt remarks in a play ‘A Man for all Seasons’ that the law is a causeway on which so long as he keeps to it, a citizen may walk safely. John F. Kennedy said in a televised address: “Our nation is founded on the principle that observance of the law is the eternal safeguard of the liberty and defiance of the law is the surest road to tyranny.”
He draws attention to two aspects of law, the positive as well as negative aspect. The positive aspect is conformity to law: the negative aspect is violation of law. Conformity to law is a guarantee of liberty, defiance is a passport to tyranny. But a reference to these two aspects eclipses the most vital aspect of law: the inviolability of law itself.
How can one be sure about the authenticity of law one is expected to obey or fears to violate? What are its inalienable essentials. These questions remain unanswered and stick out like stale cherries on a ginger cake.
The obedience and defiance of law are secondary issues. The primary issue is its essence, the origin of its nature and the inescapable ingredients of its composition. The secondary issue derives from the primary issues. They are relevant only when the relevance of the primary issue is first determined and categorically established.
If any suspicion is cast on the genuineness of the primary components, secondary components become automatically dubious. Thus the main stress is placed on defining the essence of law.
Once the essence is defined, the classification of its substance becomes a more manageable affair. The validity of legal substance is contingent on the validity of legal essence. This procedure is backed up even by the existentialists justification that essence precedes substance through the precedence in this case is stripped of metaphysical sanctions and places greater premium on substance.
Islamic law is superior form of law to other forms because its essence is divinely determined. Law in Islamic terminology is signified by the word “HUKUM” or “HUKUM E SHARIYAH.” The law is a rule of human conduct established by a communication from God, expressive either of demand or indifference or more declaration.
The term hukum is not a literal signification of the words and letters contained in the commandments of Allah communicated in the form of Quran. It is the rule or legal value established by the divine revelation as it has been clearly elaborated by the Muslim jurists.
“The hukum in its precise technical sense is that which is established by a communication, not the communication itself.” There is no direct equivalence between legal value and divine communication. The latter only plays a determining role in defining the nature of legal value or in regulating rules and laws.
If the legal significance is attached only to the explicit text of divine articulation, then all legal rules and juristic values derived from prophetic sunnah and definite Ijma fall outside the scope of law. But the only standard definition of law in Islamic legal science is that ‘any rule established directly or indirectly from a communication of Allah, which pertains to human acts whether it is demand, a choice between alternatives or a simple declaration is known as hukum or law.’
The hukum (law) in its precise technical sense is that which is established by communication, not the communication itself. Thus there is no direct equivalence between legal value and divine communication. The latter only plays a determining in defining the nature of legal value or in regulating rules and laws.
Thus the law is a body of rules framed to regulate human conduct and established from three things-one is Quran which is an explicit and manifest version of Allah’s communication, second is prophetic sunnah which is an implicit version, practical illustration and physical demonstration of Allah’s communication third and the last is Definite Ijma, which is authoritative device for the inference and rational explication of divine intentions and declarations.
In the light of the threefold derivation of law, it comprises four elements. One is law giver (Hakim) the one who thoroughly explain laws to people. Second is the legal rule which is to be followed always (Hukum). Third is the objectives of the law, those who need to obey or those who use to obey.
(Mahkoom) The fourth and the last is the subject of the law, it explains what is to obey and what is to deny from literally known as (Mahkoom Alayhi) the divine orders. All these are known as the ingredients of law also……..(to be continue)
(The author hails from Tangmarg and can be reached at [email protected])