The Nature Of Islamic

The Muslim lives in a theocentric universe, ''in surrender'' (muslim) to God, seeking through the prophetic Law to discover and implement God's will. The law's primary sources, the qur'anic revelation and the prophetic model (sunna), are the material referents of God's will. From a modern perspective Islamic law is at once legal and meta-legal: a set of legislative rules within a moral system of ''oughts'' and ''ought nots'', defining outward standards, while addressing the inward state of the agent's heart.

David Santillana observes that ''law and religion, law and morality are the two aspects of this same [divine] will by which it is constituted and by which the Muslim community governs itself; every question of law is also a matter of conscience, and jurisprudence is based on theology in the final analysis''.2 Henri de Wael remarks that to be a good Muslim is, first of all, to keep the rules of Islamic law faithfully. Consequently, the law does not allow itself to be reduced to a simple methodology for governing social relations but regards itself as expressing morality at the highest plane, for the law's fundamental purpose is to ''enjoin the right and forbid the wrong''.3 Many acts are not subject to secular sanctions but await their rewards and punishments in the next world. This otherworldly emphasis of the law imbues it with a predominantly ethical tone. Law and

Theological dimensions of Islamic law 239

morality merge into a general philosophy of life. Every social institution and human activity is imbued with religious significance.4

religious and secular law in perspective

Throughout the course of pre-modern history, religion tended to involve all aspects of life. The relegation of religion to the private sphere is a decidedly modern phenomenon. In the West, secularism is often taken for granted as if it were a distinctive legacy, but the division between church and state is relatively recent. It did not emerge in an unbroken continuum from ancient Greece and Rome but was the product of revolutionary politics, beginning with the Glorious Revolution of the seventeenth century and reaching its apotheosis with the Russian Revolution over 200 years later.5 Although Islamic law falls within the traditional pattern of embracing the private and public spheres, surprisingly, the separation between religious authority and the state - contrary both to common opinion and to contemporary Islamist ideology - was the norm in the Islamic world for more than a millennium.6

In its comprehensiveness, Islamic law is akin to the legal outlook of the Hebrew prophets, Rabbinic Jews and the Persian Mazdeans. In early Indic religion, the governing concept of dharma stood for the totality of religion, legality and morality. Dharma mirrored the natural order of the universe and permeated all human relationships, so that ''the distinction between religion and law can be justified only from the European point of view; the two notions are one in the Indian dharma''.7 The origins of Greek and Roman law were religious; it was only later that they became secular. The priest of ancient Rome has been compared to the Muslim mufti, and Roman law did not remove itself from the precincts of the priestly collegiums until the latter part of the fourth century bce.8

Like Islam, Rabbinic Judaism is distinctly nomocratic. Rabbinic Jews, like Muslims, govern their communities through a system of revealed law, and not through theocratic priesthoods as in the Biblical (pre-Rabbinic) or Mazdean traditions. Orthodox rabbis summon Jews to take on the ''yoke of the Kingdom'' in faith and moral conduct, meaning total submission to God's law at the individual and social levels.9 Nevertheless, the legal implications of both the Islamic and Rabbinic systems, apart from what is unequivocally understood from revelation, are matters of extension by exegesis and cognate principles. Both religions combine revelation with reason as the path to legal knowledge, while rejecting exclusively human legislation.

The earliest Christian attitudes towards the law did not depart radically from the Old Testament worldview. It has been argued that ''nothing which Jesus said or did which bore on the law led his disciples after his death to disregard it''.10 Jewish Christianity in particular was noted for its fidelity to Mosaic law: ''Till heaven and earth pass away, not an iota will pass from the law until all is accomplished" (Matt. 5:18).11 Pauline Christianity opposed this conviction. Yet Paul himself understood Christ in terms of the law, ascribing to him qualities which in Rabbinic Judaism were attributes of the law alone. Even for Paul, there was a distinction between God's law per se, which was good, and Pharisaic ''legalism'', which was not.12

In the mainstream Christian theology which developed after Paul, adherence to the Mosaic law came to be seen as theologically pointless, given Christ's vicarious sacrifice: the law had been an inferior dispensation, which the grace and liberty of the Gospel transcended.13 Nevertheless, the churches developed vast bodies of canon law. The chief difference between these systems and the laws of Muslims and Jews was that canon law was theocratic and not nomocratic. Its ultimate legislative authority rested in priestly prerogative. During the Middle Ages, the canon lawyer enjoyed a pre-eminence not unlike that of Muslim and Jewish jurists in their own communities. Both Christianity and Judaism entered Europe with organised legal structures of positive religious law, and the survival of the Western church in the midst of Europe's barbaric kingdoms was in large measure due to its independent system of canon law.14

Canon law was no less prominent in Eastern Christianity, especially in lands where the church came under Muslim rule. Islamic law required each denomination to administer its community autonomously as a ''protected religious community''. The policy of dhimma (state protection of religious minorities) required the Eastern churches to provide comprehensive codes for their respective Christian judges, who presided over all spiritual and worldly affairs that did not fall under the jurisdiction of Muslim courts (such as legal disputes arising between Muslims and Christians). Canonical writing became a preoccupation of the Eastern churches;in the case of the Nestorians, it took precedence over all other types of literature.15

0 0

Post a comment