Islamic Laws

To whom belongs the right to legislate?

By: Ayatullah Sayyid Mujtaba Musavi Lari
Consider the thinking element within the human being and the relatively high degree of intellectual power it has gradually come to attain since the beginning of the human being’s existence on earth. Examine, too, his capacities and his incapacities, and the problems and hardships with which he is faced. Despite all his faculties and properties, has he ever been able, or is he now able, to advance on a straight path of perfection merely by relying on his own mind? Can he preserve himself from all deviation and decline, or put an end to the disorders that plague his existence?
Can he plant the sapling of virtue and piety in the soil of his own being, alone and without drawing on the guidance of the teachers whom heaven has sent? Can he, unaided, bring to fruition the talents and capacities that are latent within him? If until now he has been unable to do any of these things, to implement any of these ideals, it is certain that he will be unable to do so in the future either.
Although some of his capacities may increase in the future, we must also accept that the difficulties and problems with which he is faced will also increase and grow more complex, just as his present problems are greater than those that confronted him in the past.
Apart from this, the scope of the intellect’s ability to perceive and to judge is a limited area which is illuminated only by the light of knowledge and learning. What lies beyond reason is enveloped in veils of obscurity and darkness and lies beyond the grasp of our minds. By contrast, a considerable part of the teachings of God’s Messengers relates precisely to the realities of which we are ignorant and unaware; it consists of the exposition of truths that are not contained within the sphere of our external perception.
In order to become acquainted as much as possible with the origin of all beings, with the duties of the human being and other realities, we need a teacher and a guide sent by God, who will guide us toward perfection and the aim of creation with teachings that are both clear and comprehensive. This is possible only by means of revelation and the teachings of Prophets who have a direct relationship with the source of creation and the lamp of whose intellects has been kindled from the eternal flame of His infinite knowledge.
Another portion of the Prophets’ teachings relates to the reform of our state and the correction of the errors into which we have fallen. Whenever the sphere of what is knowable to us is penetrated by mistake or error, it is possible to correct the error and make up for the deficiency in our knowledge by referring to the guidance of the Prophets. We will thus be able to travel on a path that we could never traverse without the aid of those guides.
Thus we come to understand the significance and value of the mission of the Prophets and the services rendered by them in guiding the human beings and elevating them to the pinnacle of triumph and perfection.
We know that the human being attains and develops his knowledge gradually. If science wishes to display to the human being the principles of his development, it must first be acquainted with all of his powers, capacities, and inner mysteries, and discern all of his various needs. In the opinion of all contemporary thinkers who count as authorities in the areas of education, sociology and politics, any plan or ideology that fails to take into account the basic nature of the human being is bound to be fruitless and valueless.
The establishment of laws is dependent not only on a complete knowledge of all the dimensions of human existence but also on a knowledge of the other beings with which the human being has dealings. It also requires a knowledge of society and its complex relationships. Furthermore, the legislator must be completely removed from distorting and misguiding factors such as ambition, selfishness, personal inclination and desire, which militate against the acquisition of perfect knowledge. It is factors and obstacles such as these which cause the human beings to differ in their assessment of good and evil and the definition and implementation of justice.
Is it possible to cure a sick person without diagnosing his illness? Establishing laws for the human being without understanding his essence and permitting it to remain covered in a host of unknowns, is exactly like trying to cure a patient whose illness is unknown.
For this reason, and because no school of thought has yet succeeded in defining the human being, any plan in the area of legislation is bound to end in failure and defeat.
Despite all the efforts that have been made to discover the secrets contained in the existence of the human being (who is only one small entity among the countless and varied beings found in the scheme of the universe), and despite all the researches carried out by scientific associations having at their disposal precise and complex instruments?despite all this, who can doubt that there are numerous unconquered peaks in the spiritual being and inner world of the human being that we have not even glimpsed?
It is possible that a person may know many scientific and technical facts but be completely ignorant of one topic?namely, the limits and nature of his own being. The knowledge he has acquired is next to zero when compared to this ignorance. Ignorance of the limited nature of one’s ability to perceive and understand gives rise to many other forms of ignorance; it causes the human being to turn his back on many truths and avert his gaze from many realities.
If all obscure points concerning the corporeal aspect of the human being had been clarified, the scientific researches carried out throughout the world by millions of scientists would still be in vain. A French scholar says: “However much we try, we cannot render these mechanisms comprehensible to our minds. All we know is that the regularity of the parts of our body is greater and more precise than that of a thousand great machines operated by the most highly specialized engineers.
“If you do not regard our opinion as a kind of belittlement or insult, all doctors and specialists who exert themselves in their field are convinced that the knowledge we have acquired until now is paltry and insignificant when compared to what we need to know in the future. The truth is that the human being is a complex, obscure and indivisible whole that cannot easily be known. We still lack the methods that would enable us to know him in all of his different parts and, as a whole, as well as in his relations with his environment. Numerous techniques and precise sciences would be needed for such an undertaking, and each science would be able to study only one part of the complex system that is the human being, yielding only a partial result. We advance on this path only so far as technological progress permits us, and the totality of the abstract concepts we acquire does not furnish us a perception of the reality of the human being, for there are numerous significant and valuable points that remain unclarified.
Anatomy, physiology, chemistry, education, history, economics, together with all their branches, cannot reach the ground of the human being’s essence.”4
With respect to the astonishing activities of his soul, human being is without doubt a deep and limitless ocean, and our worldly knowledge concerning him is inevitably slight and insignificant.
Who can claim to have discovered all the capacities and minutiae contained within this mysterious being, or to be aware of all his capacities and the degrees of perfection that are open to him? Thus we conclude that we have but a drop of insignificant knowledge, shot through with doubt and hesitation, compared to an ocean of ignorance and unknowing.
Science today is then confronted with the problem of the limitation of human powers, on the one hand, and the expanse and infiniteness of the world and of the human being, on the other; this problem has induced both bewilderrnent and humility in science.
In fact, science itself has aided us in understanding that the knowledge of the human being can illumine only a small and insignificant part of this expansive world.
Now let us see whether science and intellect alone can assume the mission of impelling the human being to perfection. A world that cannot provide a precise knowledge of being, that does not know what the human being is, from the point of view of either body or soul, that is ignorant of the mysterious social relationships that arise from his spiritual and bodily properties?does such a world have the capacity to lay down laws for the human being that will reflect intelligence and wisdom, and be formed in accordance with the knowledge of the human being’s true needs in their various dimensions? Laws that will ensure his true happiness, answer the totality of his needs, and enable him to walk on the path that benefits him?
As long as we do not know what we wish to make, and for what purpose and for whose sake, how can we even speak of laying down a plan and a program? Those schools of thought which claim to be able to make the human being’s capacities blossom do so without first knowing what the human being is.
How can they succeed in turning him into a being that would deserve all those efforts? The human being’s basic problem today is not simply the acquisition of power but rather which of the various roads laid out before him he should travel.
Many scientific topics and principles were accepted unanimously by thinkers of the past, but with the passage of time and the advancement of knowledge it has become apparent that their views were erroneous and invalid.
If we look at the history of legislation among the nations of the world, we will see that many laws which were the product of careful reflection and lengthy study on the part of outstanding experts and were drawn up with recourse to considerable scientific and intellectual resources, were proved mistaken and inadequate by the passage of time and by the emergence of more accurate research. That the social utility of which was yesterday regarded as proven is seen today as palpably inappropriate and even harmful. The place of such laws is then taken by a new set of laws which will, in turn, be amended and revised in accordance with the advancement of science and thought.
Naturally this does not mean that all the regulations and ordinances that originate in the human mind are useless and incorrect. The point is that because of such errors and their lack of inerrancy, man-made legal systems are incapable of providing for the different needs of the human beings and of leading society. It is entirely true that some scholars have expressed valuable views on the subject of legislation, but their ideas and works have been influenced, directly and indirectly, by the teachings of the Prophets.
We can clearly see that deficiency and inadequacy are the hallmark of all those systems in the world that derive from manmade laws. Moral and material inadequacy, forms of corruption that kill the personality of the human being and drag him down to decline – all these are caused by regulations and laws that derive from human thought. The insufficiency and fallibility of human laws is sufficient proof of this.
Even if they acquire knowledge of the principles of human development, science and human thought are unable to assume alone the responsibility for the human being’s ascent. Such a mission presupposes freedom from arbitrary and capricious desire and from the desire for advantage, for these are factors which prevent the human being from realizing his knowledge of self.
The human being’s love of the self and his devotion to its interests, as well as to whatever stands in relationship to him, is so profound that on a broad scale, whether consciously or unconsciously, he looks at all things from the point of view of his own interests; self-love deprives him of true realism. When taken to the extreme, the pursuit of self-interest becomes a powerful and destructive factor that does away with the human being’s honor. A condition appears in the human being such that every instant he is planning the violation of ethical norms and transgression against the rights of others, in order to draw to himself all conceivable benefits and gains. There is thus no guarantee that the human being can analyze affairs with true impartiality and establish just laws.
Are those who have studied the human being and then – whether individually or collectively – established legal system, really aware of the problem and its solution? Have they avoided the trap of egoism, and are their thoughts and reflections immune from self-interest, discrimination and error? Are they truly aware of the problems of groups and classes other than their own, scattered across the world, and the solutions those problems call for? Are they fully protected from the arbitrary whims and desires, the threats and the tricks, of the wielders of power and influence, of biased and evil-hearted the human beings?
Given all of these questions, it is possible to hope that such founders of legal systems will prove to be ideal, positive and desirable elements? Finally, is it confidently possible to ensure the happiness of the human being by following and submitting to such dubious systems?
Now all these systems are supposed to bring order and equilibrium to the capacities and abilities of the human being, to his perception and choice; they are situated on a higher level than he is. How, then, can it be logically correct that the human being, the intended object of this process, should also be its subject? The human being, the object of the process, wishes to establish a system that will bring order and equilibrium, but ought not he himself be situated within four impenetrable walls that cannot be reached by the factors of deviance and error? If this is necessary, how is to be achieved?
Do the vision, perception and other faculties of the human being extend far enough to permit him to assume a position for which he is not qualified, to establish laws and regulations that take into account the different dimensions of the human being and bring order into all the affairs of the individual and of society, and solve both present difficulties and future problems?
Objective realities without doubt lead us to conclude that the human being is incapable of truly knowing his own individual world or the world of being, and that, at the same time, he faces obscure, complex and vital problems that call for solution.
It is here that the inability of science and thought to fulfill such a mission becomes fully apparent. Even if the ray of science were able one day to illumine all the corners of human existence and to solve all those mysteries that were thought incapable of solution, it would still be unable to guarantee human happiness, given the fact that the human being is by nature condemned to live beneath the sway of self-interest and personal inclination
Another problem that arises with respect to human legislation concerns the difference in levels of education and cultural circumstances prevailing among individuals that belong to different ranks of society. Judgments, interpretations and assessments of existing realities, as well as of national concepts and customs and many other matters, will differ according to the educational, cultural and social situation in which an individual has grown up.
Even the viewpoint of a single class in society is not uniform; the ways in which members of that class elaborate concepts and interpret certain words and terms may be completely different from each other.
Think of all the different interpretations of words such as peace, justice and equality, and of how the interpretation made by every individual or group corresponds to his breadth of vision or thought, as well as to personal or collective viewpoints. Normal people understand these truths in a clear and humane sense, but the rulers and leaders of society look on these terms and the matters connected with them in quite a different way.
Without doubt, the influence on the human beings of their environment is an important factor contributing to the deficiency and inadequacy of man-made laws. Legal scholars and legislators, subject to the influence of the ideas and beliefs prevailing in their societies, accept as irrefutable truth whatever they absorb from their environment. When they draw up laws, their minds are drawn, consciously or unconsciously, to the beliefs and ideas they have acquired or inherited. The specific cultural atmosphere of society robs them of a realistic spirit and does not permit them to perceive realities as they truly are.
Further, the views and opinions of the human being change according to different situations and conditions; as a result of the transformations, events and advances that occur in his life, his views and positions will change.
Once a the human being is installed in the seat of power, his ideas and manner of judgment will no longer be the same as when he was an ordinary individual without any power. According to circumstances, he will look at things in two quite different ways.
Once a the human being’s position changes, his views may be so thoroughly transformed that they no longer bear any resemblance to those he held in the past or have any connection with them; it is as if everything has taken on a new meaning for him.
This is an obvious reality; everyone has seen in his own lifetime examples of these changes in direction as individuals rise and fall in the course of their lives. In addition, when drawing up laws, legislators generally take into account the desires and wishes of the majority, not the truth, even though those desires and wishes may not be beneficial and even be harmful for the individual and for society.
Addressing himself to the inadequacies of these various schools of thought that turn out to be opposed to the advancement and welfare of mankind, Rousseau makes the following realistic remarks: “In order to discover the best possible laws that should truly benefit all nations, a universal intelligence is needed that should be aware of all human passions but not experience them itself; that should have no connection with nature but know it intimately; and whose happiness is not in any way dependent on us but is willing to help us in attaining our happiness.”[5]
Another thinker says: “All of the different systems of government that have been fashioned by the thoughts and ideas of theoreticians are mere castles in the sky. Both the human being who was the good of the French Revolution and the human being who, according to the vision of Marx and Lenin, is to build the society of the future, are unreal. Let us not forget that the laws governing the relations of the human beings with each other have not yet been discovered. Both physiology and economics are imperfect sciences, or even pseudo-sciences. It thus appears that the environment we have created around ourselves with the aid of science is not worthy of us, because it has been created in a haphazard way, without adequate knowledge of the human being’s nature or attention to his nature.”[6]
Legislation can belong, then, only to God, Whose knowledge embraces all directions and dimensions. He knows the human being and his relations with the world and other beings; He is aware of the changes and developments that occur in the human being and the world; He has infinite knowledge of the conditions to which the human being is subject and the limits of his perfection; and His essence is exalted above all the factors that hold the human being back and inflict harm on him. The Quran

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