The "Caliphate and Imamate in Islamic Thought" Series
By the writer and thinker Thaer Salama – Abu Malik
Episode Twenty-Four: Purposes and objectives of legislation and law-making that must be clarified before answering the question: Who has the right to legislate?
The state is an executive entity for a set of concepts, standards, and convictions of a nation, i.e., the values and legislative purposes of the Sultan and the government. You will find the manifestation of understanding this definition in the following analysis, God willing:
By studying Islamic legal references and positive law, we find that the legislator sets goals to be achieved by the laws, reasons behind them, and causes[2], i.e., it sets standards for laws and legislation, which form the framework within which all laws in various areas of life move[4], (i.e., the concepts and convictions upon which the Sultan, i.e., the state, is based), such as the value of justice, (it was said: justice is the foundation of the kingdom). These values themselves differ according to the beliefs upon which societies are based, and here lies the crux of the matter. These values may be misleading and may be no more than slogans with no reality. The original principle was for states to be based on correct beliefs before considering the validity of their legislation and laws. Therefore, the establishment of the state on intellectually flawed beliefs such as secularism[6], puts the legislators in those countries in front of a stumbling block, which is the impossibility of achieving the values that the state claims to achieve. Consequently, the law that does not serve values and does not help protect them in society becomes ineffective and inefficient. If the values themselves are wrong or impossible to achieve, the laws are wrong because they are based on error. Therefore, there had to be achievable standards and values to which society refers to regulate social behavior, resolve conflicts, and preserve the legitimate rights of each individual.
We can summarize some of the purposes and goals that legislation takes into account in order to regulate a person’s relationships with himself, with others, with society, and with the state, according to binding standard rules that achieve balance and harmony between the different interests of members of society, as the general purpose of legislation or codification in all laws and in every time and place is: to create a regulation of various legislative or legal relations on a permanent and continuous basis, in order to achieve justice among members of society for whom that law came only to organize their lives and control their behavior with the authority of the state to ensure the stability of their society,
The jurist, the mujtahid, the judge, or the legal expert studies the reality that is to be judged, and then studies the legal or legal (constitutional) texts related to that reality, and applies the ruling to the reality, and during that, he invokes those purposes and remembers its reasons, rationales, and wisdoms when deriving the ruling!
The purpose of this legislation is to achieve specific purposes[8] necessary for humans, which are: preservation of life, wealth, religion, mind, and offspring, and preservation of the state, preservation of security, and preservation of human dignity, and may be added to it (in contrast[10], and those who make positive laws may add[12]!, (for example: privacy - security) and the possibility of taking them into account when enacting many laws, the highest of which contradicts the lowest, and the first of which contradicts the last. This is the first obstacle that perpetuates the human inability to legislate correctly! So remember it!
As you can see, the Western legislator clashed with the reality of the constant development of society and the change in its outlook, and the change in what is called the public interest accordingly, and the role of the media in entrenching certain values that were prohibited for a time, and then whoever wanted to among the influential changed society’s view of them (for example: society’s view of the rights of homosexuals, and for example: society’s view of drugs and the use of cannabis), and this made them not pay much attention to consolidating the purposive view, and to developing accurate definitions of each purpose individually, and how to take it into account, as the purposes themselves are subject to change for them, (and most of their purposes they took from Islamic law[14], so if the goals themselves are smooth, volatile, and changeable, then the loophole in exploiting the laws will inevitably widen on the patcher!
[2] Among the legal sciences parallel to the science of the purposes of Islamic law is the science of the philosophy of law, which has become a leading position in Western legal studies under the name: Legal philosophy, due to the nature of its topics that focus on studying the goals and wisdom that lie behind legal systems and revealing the relationship between law and society, which generally revolve around: protecting human rights, achieving justice and the public good; legal stability and legal security, and each goal has foundations upon which it is based and means that lead to its achievement. See: The Purposes of Positive Law in the Light of the Purposes of Islamic Law, by Dr. Alian Bouziane, published in Issue 150 of the Al-Muslim Al-Muaser magazine.
[4] Among the most important and greatest Islamic values is the value of achieving servitude to God alone, to the exclusion of others, with the broad concept of servitude, and with its specific concept related to the subject of legislation, and considering legislation a right belonging to Him alone, and that people following each other in legislation is like taking them as lords besides God!
[6] Among the values upon which democracy is based and upon which democracy depends for existence and non-existence: first, the rule of the majority opinion in society, the prevention of the concentration of powers in the hands of the minority, or their exploitation, and the representation of the authorities for the opinion of the people, and these three values are impossible to achieve in reality, and the entire Western system is based on the blending and overlap of powers and their concentration in the hands of the ruling parties, and the legislation is carried out by a few legal scholars and judges, and the people are only consulted in the very least of it, and the subject has very many details that are difficult to enumerate here, but democracy is a misleading imaginary philosophy that is impossible to exist in reality!
[8] Imam Al-Shatibi deduced five necessary purposes: which are the preservation of life, wealth, religion, mind, and offspring, and Imam Taqi al-Din al-Nabhani added to them the purpose of preserving security, the purpose of preserving the state, and the purpose of preserving human dignity, by deriving them through intensifying the punishment for committing a crime that affects them legally, so whoever rebels against the state with weapons is fought, and whoever splits the ranks of obedience and pledges allegiance to a second caliph is killed, and other rulings and details are reviewed in the book The Islamic Personality, Part Three, so the necessary purposes became eight.
[10] That is because bringing benefits and averting harms are not the cause of legal rulings absolutely, as there is no text indicating that bringing benefits and averting harms are the cause of legal rulings, nor is there any text indicating that it is the cause of a specific ruling, so it is not a legal cause. Especially since benefits and harms are in reality unknown to humans, so one may think of a matter as a benefit when it contains harm, and vice versa, and therefore judging the assessment of benefits rationally varies, which makes the benefit in itself subject to the legal ruling and the legal ruling is not made subject to it. Our saying this does not mean that the law came to harm creation, but the real benefit and the righteousness that is the basis of the law is not what minds estimate as a benefit, but by leaving the estimation of the benefit to God and wherever He legislated it, there is righteousness and benefit.
[12] Modern Western countries have clashed with these dualities: freedom - security, privacy - security, state intervention in the market - preventing its intervention, and so on, so they began to enact laws that increase the state’s power to monitor individuals and limit their freedoms and privacy, under the assumption of corrupting them in societies and infringing on public security and the public interest, and people protested against the state that it was spying on them, and thus the values that are intended to be a reference for the law contradict the laws and the systems of society!
[14] See: The Purposes of Positive Law in the Light of the Purposes of Islamic Law, by Dr. Alian Bouziane, published in Issue 150 of the Al-Muslim Al-Muaser magazine.
