"The Caliphate and the Imamate in Islamic Thought" Series
By the writer and thinker Thaer Salama - Abu Malik
Episode Twenty-Five: Necessary Standards Before Answering the Question: Who Has the Right to Legislate?
So, what are the standards that must be met to judge the result of legislation as correct or incorrect? Righteous or corrupt?
Perhaps the most valuable thing that can be agreed upon as a basis for sovereignty (i.e., governance) is justice. Laws must ensure the achievement of justice. Therefore, we will discuss examples that examine the ability or inability of laws to achieve the value of justice as a basic standard (and we will choose from the laws what is related to the value of justice and see the application of the value to the law, and we will also look where we need other values related to the law and look at their consideration and achievement):
First: The legislator's ability to ensure the achievement of the goals of legislation is valid for every person in every time and place (stability in laws and treatments and their ability to solve problems correctly, accurately, logically, and applicable to reality, achieving the purpose).
When we say: valid for every time and place, if we take, for example, that we are facing legislation that regulates the relationship between male and female, and we have previously said that satisfying this aspect of the instinct of self-preservation may be through one of four ways: either natural satisfaction (marriage), or wrong satisfaction (fornication), or deviant satisfaction (homosexuality), or no satisfaction at all.
Western countries used to prohibit and reject homosexual relationships until very recently, and most human laws and legislations fought this relationship relentlessly. Now, many of those laws have retreated from criminalizing this relationship and prohibiting "marriage" based on it. Let's put the following hypothesis: if this satisfaction is correct, achieving the legal values and objectives mentioned above, then legal scholars have deprived a segment of people from exercising their rights for a long time, then their mistake became clear to them, and there is no way to remedy their mistake regarding those who died or suffered!
Then, if it turns out later that it is the cause of serious sexually transmitted diseases, and that their motives for analyzing it were based on scientifically incorrect foundations[2], which constitutes one of the most important problems facing the human world through the state of collision that societies live in their entity as a result of excessive selfishness, and as a result of the concentration of powers capable of legislating laws in the hands of influential people in those societies, which are served by the political class on the one hand, and the legal professionals on the other hand, and as a result of the contradictions and disparities in the interests and ideas guiding their laws, and this is a natural result of placing legislation in the hands of humans!
Fourth: That the legislator is able to know the interest and benefit in truth to ensure that the law achieves it. Since the days of Greece - and its echo continued in Western legal thought - the idea that benefit and interest are the basis and essence of the law has emerged; wherever the law achieves the interest, it is a just law. However, this clashes with the fact that a person may think that the interest and benefit are in matters, then it becomes clear to him that his assessment is wrong after a while, and he repeats the process, sometimes right and sometimes wrong, and there is no real ability to realize the interest and benefit with certainty, and therefore the legislator must fail to achieve the real interest and benefit, and we will shed light in detail on this point because of its importance in the next chapter, God willing.
Since minds vary in strength and weakness, and since man is constantly changing in the world in exploration and understanding, and as he progresses in this journey in life, he is revealed truths that had not been revealed to him before, the mind was undoubtedly unable to be certain that the interest is here or that what he was told is an interest there, is actually an interest!
However, Islamic legislation did not make achieving the interest a goal or purpose to be achieved, because the starting point of Islamic legislation differs from the starting point of Western positive legislation. Islam issued rulings on the actions of people, so it put treatments for the actions of people, and the rulings were characterized by stability and the validity of the treatments in every time and place, and we will shed more light on this shortly. As for the Western legislator, he considered the interest, so we argued with them that they cannot realize the interest or benefit in truth.
[2] For example: Western laws seek to entrench the principle of personal freedom, so the state does not have the right to access people's privacy, so it clashed with the principle of achieving collective security, which pushes it to spy on a group of people in society for fear of them carrying out actions that threaten security, so which of the two values prevails? And where do the laws stop? The process may begin by monitoring a few individuals and end with owning huge databases about people in their lives and shopping desires, and who they elect, and these rules are used in commercial, security operations, sold and bought, and the matter may reach its maximum extent by enacting secret evidence laws, so the accused is imprisoned without knowing what his accusation is, and the judge does not see it, nor the lawyer, on the pretext that presenting the evidence in court leads to undermining national security, and so the laws began by considering the values of personal freedom, privacy, and protecting it, and ended by eliminating all its forms and neglecting it, and these are laws that are applied in America, Canada and other "civilized" countries of the world!
