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Law and Society >
The Community Versus the Individual

Many commentators have held the view that the divine Shariah does not relate to the concerns of society in the way that human-made laws are expected to do. Instead of taking its origin from the needs and aspirations of society, Islamic law expects the society to conform with its mandate. In this view, Islamic law is shown to be nonparticipatory and authoritarian. But attention must be given to a different side of this picture: Islamic legal theory also incorporates general consensus (ijma), considerations of public interest (istislah), and social custom (urf) among the recognized sources of Shariah. Consensus is particularly important because it is the binding source that ranks in authority next to the Quran and the Sunna. Furthermore, the Quran proclaims consultation as a principle of government and a method that must be applied in the administration of public affairs. Islamic legal theory thus recognizes a number of nonrevealed sources that are eminently participatory and founded in social need and consensus. The dignified status of the community finds support in its Quranic designation as the vicegerent of God in the earth (Quran 22:31) and the declaration that God has subjugated the earth and the entire created universe for the benefit of human beings (Quran 45:12). This in turn provides the doctrinal basis of general consensus as a source of the Shariah.

From this perspective, Islamic law responds positively to the prospect of legislation on rationalist and utilitarian grounds that accommodate social change.

The populist base of Islamic law is strong enough to persuade many Muslim commentators to embrace the minority view that sovereignty in an Islamic state belongs to the Muslim community (ummah). This is because in the constitutional theory of the Shariah, the head of state acts in his capacity as the representative (wakil) of the people, and he may be deposed by the people in the event of a flagrant violation of the Shariah. Legal theory recognizes general consensus as a binding source of law, and the government is also bound by the Quranic mandate to consult the community in public affairs. The conclusion is that the Muslim community is the repository of what is known as executive sovereignty. The majority view, however, is that sovereignty in the Islamic state belongs exclusively to God, whose will and command, which is the Shariah, binds the community and state.

Public interest is not only recognized as a source of law, but Islamic law further requires that governmental affairs must be conducted in accordance with public interest. This is the subject of a legal maxim that declares: “The affairs of the imam are determined by reference to public interest.” According to another legal maxim, instances of conflict between public and private interests must be determined in favor of public interests. Public interest is thus the criterion by which the success or failure of government is measured from the perspective of the Shariah.

Furthermore, the Quran and the Sunna are emphatic on solidarity with the vast majority of the community of believers (jamaa). In a number of places the Quran simultaneously praises and defines the Muslim community as “a mid-most nation” (2:143), a nation of moderation that is averse to extremism; “it enjoins good and forbids evil” (3:109); a community that is committed to the truth and administers justice on its basis (7:181); a community that advocates unity and shuns separation (3:102 and 21:92); and a community that in its advocacy of truth is a witness unto itself and over mankind (16:89 and 2:143). The jurists have consequently formulated the doctrine of the infallibility of the collective will of the community, which is the doctrinal basis of consensus. Although consensus consists of the agreement of the jurists, they must act in the capacity of the representatives of the community. Representation as such does not change the original locus of authority, which still remains the Muslim community. The Sunna is also emphatic on solidarity with the community, which is the subject of numerous hadiths, including the following: “Whoever separates himself from the community and dies, dies the death of ignorance [jahiliyyah]”; and “Whoever boycotts the community and separates himself from it by the measure of a span is severing his bond with Islam.”

Notwithstanding the concern of the Shariah for social well-being, the Shariah is also inherently individualist. Religion is a matter primarily of individual conscience. As religious law, the Shariah exhibits the same tendency. The individualist orientation of the Shariah is manifested in a variety of ways, including the fact, for instance, that the rules of Shariah are addressed directly to the legally competent individual. The Shariah's focus on the individual was evidently strong enough to persuade the Kharijites (literally, “outsiders”), who boycotted the community in the early decades of Islam, and the Mutazilite followers of Abu Bakr al-Asamm in the late eighth-century emigration to embrace the minority view that forming a government was not a religious obligation. For the Shariah addresses the individual directly; if every individual complied with the Shariah, justice and peace would prevail even without a government. These and similar views were expressed within a context that assumed basic harmony between the interests of the individual and those of the community. This is a corollary of the Quranic doctrine of monotheism (tawhid), that is, the oneness of being that encourages unity and integration in Islamic thought and institutions and discourages duality and conflict: God created the universe and every part of it is reflective of the unity of its source and consequently synchronized with every other part. Religion is inseparable from politics, morality, and economics, just as the human personality cannot be compartmentalized into religious, political, and economic segments.

Broadly speaking, Islam pursues its social objectives through reforming the individual. The ritual ablution before prayer, the five daily prayers, fasting during the month of Ramadan, and the obligatory giving of charity all encourage punctuality, self-discipline, and concern for the well-being of others. The individual is also seen not just as a member of the community and subservient to the community's will, but also as a morally autonomous agent who plays a distinctive role in shaping the community's sense of direction and purpose. This can be seen, for example, in the conditions that the Quran and the Sunna have attached to the individual's duty of obedience to the government, and the right the individual is simultaneously granted to dispute with the rulers over government affairs (Quran 4:59). The individual obeys the ruler on the condition that the ruler obeys the Shariah. This is reflected in the declaration of the hadith that “there is no obedience in transgression; obedience is only in righteousness.” The citizen is thus entitled to disobey an oppressive command that is contrary to the Shariah. The hadiths convey a general ruling that applies to all contexts, military or otherwise. But the general ruling of the Quran and the Sunna, according to the majority (excluding the Hanafi school), is speculative and may be specified or qualified on rational grounds. Other hadiths substantiate the moral autonomy of the individual. One of these instructs the believers to “tell the truth even if it be unpleasant”; the other declares that “the best form of jihad [holy struggle] is to tell a word of truth to an oppressive ruler.” Because these hadiths are also conveyed in general terms, their messages are not confined to moral teaching; rather, they may be adopted into legal rules.

The dignity of the human being is a central concern of Islamic law. This is the clear message of many of God's proclamations in the Quran: “We have bestowed dignity on the progeny of Adam” (17:70), “We created humans in the best of forms” (95:17), and in the affirmation that “I breathed into Adam of My spirit” (38:71) and “endowed him with a spiritual rank above that of the angels” (2:30 and 17:70). The five essential values of Shariah, on which the ulama are in agreement—faith, life, intellect, property, and lineage—are premised on the dignity of the human being, which must be protected as a matter of priority. Although the basic interests of the community and those of the individual may be said to coincide within the structure of these values, the focus is nevertheless on the individual.

The Quranic principle of enjoining good and forbidding evil is supportive of the moral autonomy of the individual. This principle authorizes the individual to act according to his or her best judgment in situations in which his or her intervention would advance a good purpose. The principle also addressed the Muslim community and its leadership. The individualist moorings of this principle tend to predominate nevertheless. This can be seen in a hadith that addresses the believers in the following manner: “If any of you sees an evil, let him change it by his hand, and if he is unable to do that, let him change it by his words, and if he is still unable to do that, then let him denounce it in his heart, but this is the weakest form of belief.” This principle assigns to the individual an active role in the community in which he or she lives. It also validates in principle the citizen's power of arrest, but it is only on grounds of caution that the police have been made the exclusive repository of this power. The jurists have dealt with the details of this concept at length. Suffice it to say that a person must act out of conviction when he believes that the initiative taken is likely to achieve the desired result. He is advised not to do anything if he is convinced that his intervention, however well intended, might cause a harm equal to or greater than the one he is trying to avert.

Another Quranic principle that supports moral autonomy of the individual is that of sincere advice (nasihah), which entitles everyone to advise and to alert a fellow citizen, including the head of state and his officials, to what she considers to be of benefit or to what may rectify an error on her part. The main difference between the principle of enjoining good and forbidding evil and that of sincere advice is that the former is concerned with events that are actually witnessed at the time they occur, but the latter is not confined to the actual moment of direct observation. Therefore it is more flexible. The broad scope of sincere advice is clearly depicted in a hadith in which the Prophet declared that “religion is good advice.” Religion, in other words, is meant to be the agent of benefit and a reminder to good. These individualist leanings of the Shariah are also evident from the familiar tone of the Quranic address to the believers to “take care of your own selves. If you are righteous, the misguided will not succeed in trying to lead you astray . . .” (Quran 5:105). Within the context of matrimony, for example, the Shariah opts for the separation of property, and the wife's right to manage her own financial affairs remains unaffected by her marriage. Once again, although Islam encourages the call to religion (dawa), it proclaims nevertheless that “there shall be no compulsion in religion” (Quran 2:256). For example, a husband is required to respect the individuality of his non-Muslim wife; he is therefore not allowed to press her into embracing Islam.

The individualist propensities of Islamic law can also be seen in the history of its development. For instance, Islamic law is often characterized as the jurists’ law, developed mainly by private jurists who made their contributions primarily as pious individuals rather than as government functionaries and leaders. This aspect of Islam's legal history is also seen as a stabilizing factor in that it was not particularly dependent on government participation and support. Governments came and went but the Shariah remained as the common law of the Muslims. Another dimension of Islam's individualist propensities is that relations between governments and the ulama remained generally less than amicable ever since the early years of the Umayyad rule (661-750). The secularist tendencies of the Umayyad rulers marked the end of the “Righteous Caliphate”; the ulama became increasingly critical of this change of direction in the system of government. The ulama retained their independence by turning to prominent individuals among them, which led eventually to the formation of the schools of law that bore the names of their founders (Hanafi, Maliki, and so on). One of the consequences of this pattern of development was that Islamic law made few concessions to the government. The immunities against prosecution, for example, which are enjoyed to this day by the monarch, the head of state, state assemblies, and diplomats in other legal systems, are totally absent in Islamic law. No one can claim any immunity for his or her conduct merely on account of social and official status. Trial procedures in the courts of Shariah consequently did not permit the judge to treat the head of state, if he were involved in a dispute, any differently than other citizens. There have been many instances of this in legal history.

The schools of law functioned as guilds and professional associations in which outstanding contributions found recognition and support, even if they went against official policy. The two most important principles of Islamic law—personal reasoning (ijtihad) and general consensus (ijma)—can be conducted by jurists without depending on the participation of the government in power. These two principles manifested the nearest equivalent of parliamentary legislation in modern times. Personal reasoning has almost always been practiced by individual jurists. General consensus is broadly described as the unanimous consensus of the qualified scholars (mujtahidun) of the Muslim community on the ruling of a particular issue. As such, consensus can be initiated by individual jurists, concluded, and made binding on the government even without the latter's participation. Neither ijtihad nor ijma were institutionalized and have remained uninstitutionalized to this day. The jurist who carries out independent reasoning in theory enjoys complete independence from government and is only expected to act on the substantive merit of each case in line with the correct procedure of ijtihad. It is not surprising therefore to see that commentators have described Islamic law and its main advocates, the ulama, as champions of the rights of the individual and bulwarks against arbitrary exercise of official power.

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